Nevada Reports 1997 (113 Nev.) PDF

113 Nev.
1, 1 (1997)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 113
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113 Nev. 1, 1 (1997) Gramanz v. Gramanz
CLAIRE GRAMANZ, Individually, and in Her Capacity as Trustee of the Claire Gramanz
Living Trust U.T.D., 07/22/91, Appellant, v. BRENT GRAMANZ, ANISAC
CORPORATION, a Nevada Corporation, and G & S ENTERPRISES INC., a Nevada
Corporation, Respondents.
No. 25788
January 3, 1997 930 P.2d 753
Appeal from a declaratory judgment. Eighth Judicial District Court, Clark County; Donald
M. Mosley, Judge.
Former husband sought declaratory judgment concerning rights and liabilities of former
wife with regard to leases owned by community business that had been awarded to husband.
The district court granted relief from which former wife appealed. The supreme court held
that: (1) court had jurisdiction to enter declaratory relief; (2) leases were subject to division as
property omitted from divorce judgment and underlying stipulation; and (3) obligation
undertaken by former wife in connection with business was enforceable.
Affirmed in part, reversed in part, and remanded.
[Rehearing denied November 21, 1997]
Laura Wightman FitzSimmons, Las Vegas, for Appellant.
Lemons, Grundy & Eisenberg, Reno, for Respondents.
1. Declaratory Judgment.
California divorce proceeding was not pending when former husband sought declaratory judgment that leasehold interests, which
he was about to sell, were set aside to him as his sole and separate property in the divorce proceeding, and, therefore, California action
did not preclude trial court from entertaining action for declaratory relief, where stipulation merged in divorce decree appeared to make
final distribution of all property owned by the parties.
2. Declaratory Judgment.
Trial court did not abuse its discretion in accepting jurisdiction over former husband's declaratory judgment action concerning sale
of lease agreements owned by parties before their divorce, even though former wife was willing to acquiesce in the transaction. Former
wife's willingness to acquiesce in transaction did not resolve dispute regarding proceeds from transaction and former wife's alleged
liability for part of an alleged bonus fee agreement.
3. Divorce.
Leases owned by spouses' business were subject to division, even though business itself was divided in divorce proceedings, where
leases were omitted from valuation of business through mutual mistake of fact.
4. Contracts.
Mutual mistake occurs when both parties, at time of contracting, share misconception about vital fact upon which they base their
bargain and is basis for equitable rescission of contract.
5. Husband and Wife.
Agreed valuation of business was based on mutual mistake of fact, where parties intended to divide their assets equally, both
parties apparently mistakenly believed that leases owned by their business had no independent value apart from their value as assets of
ongoing business, and optimal value of leases, in fact, turned out to be $6,450,000.
Settlement agreement allocating community property and debts on reserved issues did not preclude enforcement against former
wife of bonus fee agreement that pertained to parties' business. Agreement allowed unnamed obligations to be enforced by order of
court of competent jurisdiction.
OPINION
Per Curiam:
FACTS
Appellant Claire Gramanz (Claire) and respondent Brent Gramanz (Brent) were
married in 1975, had three children together, and divorced in California in 1989.
During the marriage, Brent operated three retail souvenir shops in a building located in Las
Vegas at 3235 Las Vegas Boulevard adjacent to the Desert Inn. These businesses had
long-term commercial leases. In August 1987, a bank threatened foreclosure on the
underlying property on which Brent was operating his shops.
On August 24, 1987, Brent and the property owner signed an agreement by which Brent
helped the owner avoid foreclosure in exchange for a 25% ownership interest in the property.
At the same time, Brent exercised options to extend the terms of all three leases until 2007.
Brent and the owner signed these options. On September 24, 1987, the owner conveyed a
deed for 25% interest in the real property to Brent and Claire as joint tenants. Brent and his
attorney allegedly had an agreement that if the property was later sold at a profit, the attorney
would receive a bonus fee.
In 1989, Brent and Claire's divorce was entered in California. However, the parties
continued negotiating for resolution of property and child custody issues. In November 1990,
the parties entered into a stipulation before the California court concerning the disposition of
their property. The stipulation stated that it was a distribution of all property owned by the
parties. Each party warranted that it did not own any other community property of any kind
other than that listed in the stipulation. If such property were later discovered, it was to be
divided equally. The only remaining questions at the time of the stipulation dealt with custody
and visitation regarding the minor children, and with the value of certain properties and
businesses which had been distributed to the parties. The stipulation was merged into the
earlier judgment of dissolution.
The value of the 25% ownership in the Las Vegas property was not determined in the
November 1990 stipulation, because the parties felt that the property was valuable and would
be far more [valuable] down the line such that they could make a large profit on any sale.
Accordingly, the property was placed in a limited partnership, with Brent as the controlling
partner and Claire as a limited partner.
Pursuant to the November 1990 stipulation, Claire transferred all her rights, interest and
shares in the Gramanz corporations, including Anisac Corporation (Anisac), and their
assets, to Brent as his sole and separate property, with the value of Anisac to be divided
equally, in exchange for Brent holding her harmless against any liabilities or obligations
against the corporations. The stipulation did not mention the disposition of G & S
Enterprises.
The final valuation of Anisac was reserved for future determination. The parties agreed
that Anisac would be appraised by two CPAs, who would attempt to agree upon a value that
would then be divided equally between the parties. On October 2, 1991, the parties filed a
Stipulation to Final Valuation of Anisac Corporation and Order with the California
Superior Court. That stipulation reflected the agreement of the parties, upon the valuation of
their accountants, that Anisac stock would be valued at $300,000.
In the divorce proceedings, Claire received property and cash with a total net value of
nearly $1,600,000 plus her 12.5% interest in the Las Vegas Boulevard property (for which she
later received $400,000). Claire ultimately received approximately $2,000,000 in property
and cash.
In 1993, ITT-Sheraton expressed interest in purchasing the Las Vegas Boulevard real
property on which the stores were located. On July 13, 1993, Claire's attorney sent a letter to
Brent's attorney asserting that the commercial leases on the Las Vegas property and the assets
of G & S had never been distributed in the divorce. The letter stated that Claire is making a
claim to the lease rights and any proposed buy-out offers. Brent became concerned that
Claire's assertion of a right to the proceeds of the sale to ITT-Sheraton might impair the sale.
On August 10, 1993, Brent, Anisac and G & S filed a complaint for declaratory relief against
Claire in the Eighth Judicial District Court, Clark County (the Clark County case).
In Brent's complaint, he alleged that he and Claire were partners in the Las Vegas property,
in which they each owned a 12.5% share, and that Brent was the controlling partner. He
alleged that the partnership agreement gave him the unilateral right to enter into an agreement
with a third party for the sale of the partnership interest in the real property. Brent further
alleged that he had been awarded all interest and assets in both Anisac and G & S by the
divorce and that, by virtue of that fact, he had also received all interest to the leasehold
interests. Brent claimed that the three leases in the property were all assets of Anisac that had
been set aside to him as his sole and separate property in the divorce stipulation. He alleged
that Claire's assertion of an interest in the leases or input regarding the terms of a sale of the
property would jeopardize the sale, and that absent declaratory relief, he would be inhibited
from concluding the sale.
In early November 1993, the parties entered into two separate stipulations regarding the
Nevada property and the Nevada corporations. First, on November 1, 1993, the parties filed a
stipulation in the California divorce case. This stipulation recognized that there was a dispute
over the rights and obligations of the parties regarding the Nevada corporations and the
Nevada property. The stipulation then stated that the parties agreed that the California court
should defer the exercise of Jurisdiction over all the Nevada property and Corporations, and
that issues and property rights should be decided by the Clark County, Nevada Court.
A few days later, on November 9, 1993, the parties filed a stipulation in the Clark County
case. The stipulation indicated that the parties would allow the closing and consummation of
the ITT-Sheraton transaction involving the property at 3235 Las Vegas Boulevard, and
certain funds "shall be impounded under the jurisdiction of the Eighth Judicial District
Court pending the outcome of this adversary proceeding."
Vegas Boulevard, and certain funds shall be impounded under the jurisdiction of the Eighth
Judicial District Court pending the outcome of this adversary proceeding. The stipulation
ended with the following provision:
9. The Parties have stipulated and agreed that the California Court should defer the
exercise of Jurisdiction over all the Nevada property and Corporations, including the
issues presently in dispute as raised by Petitioner, and that those issues and property
rights should be decided by the Clark County, Nevada Court, exercising Jurisdiction,
and pursuant to their Stipulation, all further proceedings in the California action have
now been stayed.
As agreed in the November 9, 1993 stipulation, the transactions with ITT-Sheraton went
forward. In June 1990, the entire fee simple ownership of the property was appraised at
$5,715,000. The Gramanz 25% interest was eventually sold to ITT-Sheraton for $1,550,000.
ITT-Sheraton paid $4,500,000 for the other 75% ownership interest. Thus, the 100% fee
simple interest was sold to ITT-Sheraton for approximately $6,050,000, which was $300,000
more than the appraised value of the property in 1990. After paying off the mortgage on the
property, Claire received approximately $400,000 for her 12.5% interest.
In addition to what he received for his fee interest, Brent received $6,450,000 by selling
his Anisac stock to ITT-Sheraton. ITT-Sheraton bought the Anisac stock for the purpose of
extinguishing the three leases. Because Claire claimed an interest in those proceeds, the funds
were impounded until the dispute could be resolved.
The parties agreed that the two issues in the declaratory relief actiona bonus fee
agreement made with Brent's attorney, and the leases on the property on Las Vegas
Boulevardwould proceed to trial in Clark County. At trial Grant Anderson, one of the two
CPAs hired to appraise Anisac when Brent and Claire divorced, testified that he utilized an
excess earnings method to arrive at a value of $221,500 for Anisac. Anderson admitted that
he did not look at the leasehold interests individually, but looked at the value of the business
as a whole which would encompass all assets of the business. He stated that the other CPA
used a different method to appraise Anisac, but also valued it as a whole rather than by its
individual assets. On cross-examination, Anderson testified that he did not recall receiving
any leases with the documents with which he performed the valuations. He also stated that he
did business valuations, but was not qualified to appraise real estate. The leases were
reflected in his appraisal only to the extent that they may have been reflected in the business's
income statements as bargain leases.
Gary Kent, a real estate appraiser, testified on Claire's behalf. Kent had prepared an
appraisal report of the real property in June 1990. He testified that he did not do an
independent valuation of the leases, partly because they appeared not to be arm's length
transactions.
The district court held that Claire had no right, title or interest to the $6,450,000 in
proceeds from the sale of the leases, and that Claire was liable for payment of a bonus fee to
Brent's attorney.
DISCUSSION
Jurisdiction
[Headnote 1]
Claire contends that the district court abused its discretion in exercising jurisdiction over the declaratory relief action. Claire contends
that at the time the declaratory judgment complaint was filed, the dissolution proceedings between the parties in California had not been
concluded and thus, it was improper for the district court to entertain the declaratory relief action.
Claire's assertion that the same issues were being litigated in California at the time the declaratory relief action was instituted, or when
the district court entered its judgment, is without factual basis. The stipulations filed in California Superior Court appeared to make a final
distribution of all property owned by the parties. Every issue as to the distribution and valuation of property was believed to have been fully
resolved in the California divorce case as of October 2, 1991, nearly two years before the declaratory relief action was filed in August 1993.
Brent never received any complaints about the property distribution from Claire or her attorneys between the filing of a stipulation in
October 1991 and the receipt of Claire's lawyer's letter in July 1993. During that time no legal proceedings were instituted in California or
elsewhere regarding the distribution.
On October 15, 1993, two months after Brent filed the declaratory relief action, Claire's attorney filed a motion in the California
divorce case. However, three days later, Claire signed a stipulation in which she agreed that the California court should defer the exercise of
jurisdiction over all the Nevada properties and corporations, and that those issues and property rights should be decided by the court in
Clark County. Accordingly, we conclude that the district court did not abuse its discretion in exercising jurisdiction over the declaratory
relief action as such assumption of jurisdiction did not interfere with any matters pending before the California courts at the time.
[Headnote 2]
Claire also contends that because she signed a stipulation agreeing to the sale of Brent's businesses to ITT-Sheraton, with the funds
from the sale to be placed in a Clark County escrow account, the district court abused its discretion by going
forward with the declaratory relief action because, as of November 9, 1993, no conduct of Claire's jeopardized
the sale to ITT-Sheraton.
the funds from the sale to be placed in a Clark County escrow account, the district court
abused its discretion by going forward with the declaratory relief action because, as of
November 9, 1993, no conduct of Claire's jeopardized the sale to ITT-Sheraton.
Claire's willingness to acquiesce in the ITT-Sheraton transaction did not resolve the
dispute regarding the proceeds from the transaction and Claire's alleged liability for a portion
of an alleged bonus fee agreement. Each party was asserting a claim, interest and right to the
proceeds of the ITT-Sheraton transaction. Therefore, the district court did not abuse its
discretion in exercising jurisdiction over the declaratory relief action after the sale to
ITT-Sheraton.
Valuation of the leases
[Headnote 3]
Claire contends that there is no substantial evidence to support the district court's finding that the accountants included the value of the
three commercial leases in their agreed upon valuation of Anisac stock. It is undisputed that the leases claimed to be assets of Anisac were
not considered individually. Brent's accountant testified that he was qualified to do business valuations, but was not a real estate appraiser.
When valuating Anisac, he did not remember having the leases to work with and did not have the leases in his file. He had no
understanding of the specific nature of the leases, including their duration. He also had no information as to whether the leases favored the
lessee or the lessor, nor any information as to how many leases Anisac held. He conceded that he did not review any lease in the course of
valuing Anisac, and that when he explained that the lease had been a factor in his excess earnings approach to its valuation, what he had
really been talking about was the rent expense.
Claire's appraiser, Gary Kent, testified that typically, the value of a lease would not have been captured in a business valuation and that
a lease has a value separate and apart from the value of the business as an ongoing concern. Kent also testified that in 1990, he prepared an
appraisal report that did not include a valuation of the three leases because the transaction between lessor and lessee did not appear, in his
opinion, to be at arm's length. Also before the court was a letter from one of the CPAs to the lawyers in the California dissolution
proceedings, dated January 4, 1990. That letter stated that we have not attempted to place a value on leasehold interests where the rent
might be below market.
Although there is some evidence that the leases were mentioned during the divorce proceedings, when the parties stipulated to
resolve their dispute regarding the valuation of Anisac, the accountants did not value the leases except as part
of the going business.
lated to resolve their dispute regarding the valuation of Anisac, the accountants did not value
the leases except as part of the going business. Therefore, we conclude that there was no
substantial evidence to support the district court's finding that the three leases were among the
assets valued by the accountants.
The November 8, 1990, partial stipulation in the California divorce proceedings states that
the community assets would be divided equally and interpreted under and in accordance with
the laws of California. The basic agreement and expectation of the parties was that their
assets would be divided equally; however, the assets were not divided equally because three
long-term commercial leases of substantial independent value were omitted from the
valuation of the businesses.
In entering into the stipulation regarding valuation of the businesses, it appears that both
parties were unaware of the leases' value separate and apart from the businesses. In the lower
court proceeding, Brent testified that at the time of the divorce, he wanted the leases so that
he could run the businesses. He further testified that he did not realize that the leases had a
value if he agreed to cancel them until his negotiations with ITT-Sheraton. Accordingly, the
parties entered into the stipulation as to the valuation based upon the mistaken fact that the
leases had no value apart from being assets of an ongoing business.
[Headnotes 4, 5]
Mutual mistake occurs when both parties, at the time of contracting, share a misconception about a vital fact upon which they based
their bargain. General Motors v. Jackson, 111 Nev. 1026, 1032, 900 P.2d 345, 349 (1995) (citation omitted). [A] mutual mistake is a
basis for an equitable rescission of a contract. Tarrant v. Monson, 96 Nev. 844, 845, 619 P.2d 1210, 1211 (1980). Here, both parties
apparently mistakenly believed that the leases had no independent value apart from their value as assets of an ongoing business, when in
fact, the optimal value of the leases was as a nuisance for which ITT-Sheraton would be willing to pay $6,450,000. The stipulation as to the
valuation of the Gramanz's businesses was entered into by the parties based upon a mutual mistake, and did not result in an equitable
division of the community property.
The November 8, 1990 partial stipulation makes clear that the parties intended to divide their assets equally. Under California law,
when an item of community property is not awarded in dissolution proceedings, a spouse has a right to a judicial determination of her
interest in the property. See Bowman v. Bowman, 217 Cal. Rptr. 174, 179 (Cal. App. 1985). In the interim, the parties are considered
tenants in common of the property. Henn v. Henn, 161 Cal. Rptr. 502, 505 (Cal. 1980). Here, actual division of the parties'
community property was not in accordance with their agreement to divide their assets equally.
division of the parties' community property was not in accordance with their agreement to
divide their assets equally. The value of the three leases was not considered in the previous
dissolution proceedings. Thus, Claire retains an interest in the three leases, which are missed
assets subject to division as omitted assets. Accordingly, we reverse the decision of the
district court and remand for a determination of Claire's interest in the three leases.
The oral bonus fee agreement
When the owner of the real property on Las Vegas Boulevard started having difficulty
paying his debt to a bank, the bank threatened foreclosure on the property. Because of the
threatened foreclosure, Brent retained attorney Jason Landess (Landess) to secure the Gift
Emporium property and to obtain further leases, if possible. According to Brent, Brent and
Landess orally agreed that if Landess could negotiate an ownership interest in the property for
Brent and Claire, and if Brent and Claire ever sold the property at a profit, Landess would
receive a bonus fee, 10 to 15 percent of the gross profits depending upon the terms and
conditions of the sale. According to Brent, Claire was fully aware of the oral bonus fee
agreement, was present when Brent and Landess entered into the agreement, indicated her
acquiescence in the agreement, and did not object to the agreement. Claire's trial counsel
conceded that the bonus fee agreement actually existed. Claire's counsel stated, in essence,
that the only issue was whether Claire shared in the liability for the bonus fee.
The property was sold and Brent became liable for the bonus fee agreement. Brent claimed
before the district court that Claire shared half of the liability. The district court found and
concluded that Claire was liable for her share under the agreement.
1
Claire claims that the district court erred in finding and concluding that Claire was
obligated to reimburse Brent under the bonus fee agreement.
[Headnote 6]
We conclude that substantial evidence supports the district court's finding that Claire had acquiesced in the oral bonus fee agreement
entered into between Brent and attorney Landess, calling for a bonus fee to be paid to Landess upon the sale of the Gramanz 25%
ownership interest in the real property. Claire never denied the bonus fee agreement existed, and Brent testified that the bonus fee
agreement had been discussed between Brent and Claire, with Claire being fully aware of it; Claire indicated her
agreement or acquiescence in the bonus fee agreement; and Claire did not object to the agreement.
__________

1

The bonus fee agreement provided for Landess to receive 10% to 15% of the net proceeds of the sale of the property. However, by
stipulation of the parties, the percentage was reduced to 8%.
and Claire, with Claire being fully aware of it; Claire indicated her agreement or acquiescence
in the bonus fee agreement; and Claire did not object to the agreement. Claire signed a special
power of attorney for the express purpose of enabling Landess to secure a refinance loan from
Nevada State Bank. The loan's purpose was to facilitate the acquisition of her ownership
interest in the real property that she agreed to sell to ITT-Sheraton for a substantial profit.
Thus, Claire benefitted from and used Landess' services.
However, in the California stipulation allocating community property and debts on
reserved issues, the parties warranted to one another that there were no obligations on which
the other party is or may become liable or an obligation that could be enforced at any time
against an asset held . . . under this stipulation . . . except as expressly authorized by this
stipulation, by subsequent stipulation between the parties, or by order of a court of competent
jurisdiction. Since the bonus fee agreement was not mentioned in the stipulation, Claire
contends it violates the warranty and cannot be enforced against her.
Nevertheless, Claire fails to recognize that the stipulation does allow an unnamed
obligation to be enforced by order of a court of competent jurisdiction. Given the evidence
that Claire knew of and acquiesced in the agreement and the fact that the stipulation provided
that a court of competent jurisdiction, in this case the Nevada district court, could enforce an
unnamed obligation, Claire's argument lacks merit.
With respect to the bonus fee agreement, Claire's only potentially meritorious legal
arguments relate to alleged violations of various Nevada Supreme Court rules. These
contentions were never raised in the district court, and Claire is raising the contentions for the
first time on appeal. As such, these contentions need not be considered by this court. Laird v.
State of Nev. Pub. Emp. Ret. Bd., 98 Nev. 42, 46, 639 P.2d 1171, 1173 (1982). Furthermore,
although these Supreme Court Rule provisions may possibly have been a defense if attorney
Landess had sued Brent and Claire directly for the contingent fee, this was not a suit by
Landess against Brent and Claire. Instead, Brent and Claire admitted the existence of the
bonus fee agreement and Brent attempted to obtain reimbursement for Claire's half of the
obligation. Moreover, it is far from clear that Nevada law, rather than California law, would
control the issue in any event. We conclude that Claire's argument lacks merit.
CONCLUSION
The district court did not abuse its discretion in exercising jurisdiction over the declaratory
relief action. There is substantial evidence to support the district court's finding that Claire
was liable for the bonus fee agreement entered into between Brent and his attorney and
therefore the judgment against Claire for payment of a bonus fee to Brent's attorney is
affirmed.
evidence to support the district court's finding that Claire was liable for the bonus fee
agreement entered into between Brent and his attorney and therefore the judgment against
Claire for payment of a bonus fee to Brent's attorney is affirmed.
However, the district court erred in finding that the three leases were appraised at the time
of the dissolution proceedings. Because they were not, they are omitted community assets.
Accordingly, we reverse the judgment of the district court and remand the case to the district
court for a determination of Claire's interest in the leases.
2

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2
The Honorable Robert E. Rose, Justice, voluntarily recused himself from participation in this appeal.
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113 Nev. 11, 11 (1997) Murray v. State
STEVEN MURRAY, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 26075
ROBERT BYFORD, Appellant, v. THE
No. 26653
CHRISTOPHER GARTH WILLIAMS, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 26672
January 3, 1997 930 P.2d 121
Appeal from a judgment of conviction, pursuant to a jury verdict, of first degree murder
with use of a deadly weapon. Eighth Judicial District Court, Clark County; Stephen L.
Huffaker, Judge (Docket No. 26075).
Appeals from judgments of conviction of first degree murder with the use of a deadly
weapon and from sentences of death, pursuant to a jury trial. Eighth Judicial District Court,
Clark County; Stephen L. Huffaker, Judge (Docket Nos. 26653, 26672).
Consolidating appeals, the supreme court held that state violated each defendant's Fifth
Amendment right to remain silent by commenting on that silence.
Reversed and remanded for new trials.
David M. Schieck, Las Vegas, for Appellant Murray.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney,
James Tufteland, Chief Deputy District Attorney, and Brian Kochevar, Deputy District
Attorney, Clark County, for Respondent.
David M. Schieck, Las Vegas, for Appellant Byford.
James Tufteland, Chief Deputy District Attorney, and William D. Kephart, Deputy District
McDonald & Associates, Las Vegas, for Appellant Williams.
James Tufteland, Chief Deputy District Attorney, and William D. Kephart, Deputy District
1. Criminal Law.
Prosecution is forbidden to comment at trial upon defendant's election to remain silent following his arrest and after being advised
of his rights as required by Miranda.
2. Criminal Law.
State improperly commented on defendant's post-arrest silence, even though record did not show that defendant was advised of his
Miranda rights, particularly as record showed that defendant invoked his right to consult attorney before speaking and, thus, he clearly
elected to remain silent. U.S. Const. amend. 5.
3. Criminal Law.
Prosecutor's reference to defendant's pre-arrest silence was not improper.
4. Criminal Law.
Supreme court may review plain error or issues of constitutional dimension sua sponte despite party's failure to raise issue below.
5. Criminal Law.
Improper comments on defendant's post-arrest silence made during cross-examination of defendant, in closing argument, and
during examination of state witness was not harmless in murder prosecution, particularly as defendant's credibility was crucial to his
defense. Case was primarily defendant's word against that of main prosecution witness, each of whom accused other of having
committed murder. U.S. Const. amend. 5.
6. Criminal Law.
Improper deliberate comments on murder defendants' post-Miranda silence, which occurred on cross-examination and during
closing argument, were not harmless, particularly as credibility of both men was crucial to their defense, which was that murder had
actually been committed by the only other eyewitness to crime. U.S. Const. amend. 5.
OPINION
Per Curiam:
These appeals have been consolidated for the purpose of this opinion. We conclude that in
each case the State violated the appellants' Fifth Amendment rights. We therefore reverse and
remand each case for a new trial.
FACTS
MURRAY v. STATE
On March 13, 1987, Paul Eugene Dudley was murdered in the parking lot of a North Las
Vegas casino. His partly burned body was found several days later in the desert. Appellant
Steven Murray and chief prosecution witness Melanie Chapman were present at the murder.
At Murray's trial, each accused the other of the act. Murray was originally charged with the
murder in 1988. Insufficient evidence was presented at his preliminary hearing to bind him
over for trial, and the charges were dismissed without prejudice. Chapman was tried for
aiding and abetting in the murder in 1993, but she was acquitted. In 1993, Murray was
indicted for the murder by a grand jury. He was tried before a jury and convicted in 1994.
Facts
On March 20, 1987, Dudley's body was discovered at the bottom of a wash in a remote
location several miles north of Las Vegas. The body had post-mortem burns on about thirty
percent of its area. A stab wound to Dudley's heart had killed him.
The main prosecution witness was Melanie Chapman, formerly Melanie Thomas, who
testified as follows. She met appellant Murray and his brother Billy Murray (Billy) at a bar in
New Mexico in early March 1987. They decided to drive to Las Vegas together in the
brothers' pickup truck and camper. Chapman went with Murray and Billy to the Silver Nugget
Casino on March 13, 1987, a day or two after they arrived in Las Vegas. They went in the
morning and started drinking and gambling. That evening Chapman began to talk with the
victim, Dudley, who was at the casino bar, and he offered her a ride to her mother's house in
Las Vegas. Chapman and Dudley went to the camper to get her things from it. Murray
approached and demanded to know what they thought they were doing. Chapman went inside
the camper, and when she came out, Dudley was lying on the ground in back of the truck.
Murray held a long knife, which he threw into the camper. Murray put Dudley into the
camper and ordered Chapman inside too.
Chapman inside too. Murray closed the door and the tailgate and began to drive the truck.
Chapman tried to open the door, but the tailgate was closed which prevented the door from
opening. (Murray presented evidence that the tailgate could not close because the camper
extended beyond the tailgate.) After driving onto a dirt road, Murray stopped and pulled
Dudley from the camper and dragged him away. As Murray drove away with Chapman still in
back in the camper, she saw a fire through the window.
Two days later, Chapman flew home to New Mexico. She was arrested the day after that
on cocaine charges. Beginning in July 1987, Las Vegas Metropolitan Police Department
detectives spoke to Chapman several times about Dudley's murder. Chapman told detectives
several different stories before she ever stated that she was present when Murray killed
Dudley. Two years later, Chapman was arrested for Dudley's murder and extradited to
Nevada. She was tried for the crime but acquitted. On cross-examination at Murray's trial,
Chapman admitted that she used methamphetamine regularly and other drugs occasionally.
She had felony convictions for writing bad checks and for drug trafficking.
Creede White testified for the State. He knew Billy, and Billy, Murray, and Chapman
visited his apartment in North Las Vegas in March 1987. Later that month, White went with
Billy and Murray, who were driving to Kansas. During the trip, Murray told White that he
and Chapman went to roll a guy, the guy got tough, and he (Murray) stabbed him. Murray
further told White that they dumped the body in the desert and tried to burn it with gasoline.
Bernestine Love testified for the defense. She testified that she was in the Clark County
Detention Center with Chapman in April 1990 when Chapman was being detained for her
trial and that Chapman spoke with her three times about the murder. Chapman told Love that
she had met a trick at a nightclub, whom she rolled because she lacked money. The trick
ended up being killed by Murray. (The State had presented this evidence at Chapman's trial.)
Murray testified that on the day in question, he and Chapman were at the Silver Nugget. At
some point in the evening, Murray saw Chapman walk outside with an older gentleman.
When she did not return after ten or fifteen minutes, he became concerned and went outside.
He found her at the camper, and she drove them away from the casino. He asked where they
were headed, and she told him she had killed somebody. She turned off on a dirt road, pulled
a body from the camper, poured Coleman fuel on it, and lit it on fire. Murray did not report
the murder because he was afraid he would be blamed for it.
was afraid he would be blamed for it. Murray and Chapman drank the next day and argued;
she ran off, and Murray did not see her again until the trial. Billy's friend, White, went to
Kansas with Murray and Billy, but Murray denied ever telling White that he killed anyone.
Murray thought that White might have overhead Murray telling his brother that Chapman
killed someone.
The record further shows that although Murray surrendered to the police in October 1988,
he did not make a statement to authorities until he testified before a grand jury in September
1993. During direct examination of Detective Alfred Leavitt, who took Murray into custody
in October 1988, the prosecutor asked:
Q Did Mr. Murray ever make any statement to yourself about anything of this
crime?
A He did not.
Q At the time of [Chapman's] trial, did you have any reason to believe that Mr.
Murray, Mr. Steven Murray, the defendant, would testify at [Chapman's] trial?
A No.
Defense counsel did not object. On redirect, the State established that Murray had never made
any statement to the police since he was arrested in 1988 and that it would have been
improper for the detective to seek any statement from Murray after he had asked for an
attorney.
During cross-examination of Murray, the prosecutor questioned Murray regarding his
post-arrest silence or referred to it indirectly several times. The prosecutor's questions
included After you conferred with this attorney . . . did you go tell Detective Leavitt your
story? and Did you testify at your preliminary hearing in 1988? During closing argument,
the prosecutor referred to Murray's silence as evidence of his lack of veracity and his guilt,
making the following statements. He's had over six years to manufacture this. There's
another inescapable fact that you can conclude: What kind of person maintains silence for six
and-a-half years about the horrible murder and burning of a human being? The man that did
it. No objection was made to any of these questions or remarks.
The jury found Murray guilty of first degree murder with use of a deadly weapon and not
guilty of robbery. The district court entered judgment accordingly and sentenced him to two
consecutive sentences of life without the possibility of parole.
BYFORD v. STATE and WILLIAMS v. STATE
In March of 1991, Monica Wilkins was shot to death. Her body was burned and left in the
desert. Todd Smith and appellants Robert Byford and Christopher Williams were charged
with the murder.
lants Robert Byford and Christopher Williams were charged with the murder. Smith agreed to
testify against Byford and Williams. Byford and Williams were found guilty by a jury.
Following the penalty hearing held on July 13, 1994, the jury returned verdicts of death by
lethal injection for both men.
Facts
At trial, Smith testified that he saw Byford and Williams kill Wilkins and burn her body.
He further testified that he returned to the scene of the murder with Byford and Williams to
bury the body. Byford and Williams testified that Smith had killed Wilkins and that Byford
then set the body on fire in an attempt to conceal what Smith had done. A week or two later,
Byford and Williams became worried that the body would be discovered and decided to go
out and bury the remains. In addition to the testimony of Smith, Williams, and Byford, the
State presented several witnesses who claimed to have heard Byford and Williams bragging
about the murder.
During cross-examination of Williams the following exchange took place:
Q: Chris, are you aware that the District Attorney's office waited for three years to
hear what you had to say about this case?
A: Yes, sir.
Q: Now you come in here and you tell these twelve individuals, fourteen
individuals, your part of this case?
A: Yes, sir.
Q: Do you really expect these individuals to believe you after that long?
During closing arguments, the prosecutor made the following statement:
Chris would have you believe he sat in the truck. He told us it was disgusting to see
her burn, while he's on LSD, 80 feet away, while he is sitting in the truck worrying
about the keys, trying to drive away. And they tell you that. They tell you that and they
tell us that just for the first time on Friday.
The prosecutor went on,
Three years have passed since Monica Wilkins lost her life. A year and-a-half it took
to investigate this crime. The defendants took the stand and they admitted that they
have spoken with one another practically once a week since it's happened. They have
been in court every single time this case has been here. They listened to testimony at a
preliminary hearing; they listened to testimony for two weeks from this stand. Then and
only then
MR. SCHIECK: Your Honor, I'm going to object. This is improper argument
concerning the defendants sitting here in court listening to testimony.
MR. McDONALD: Join in the objection, Your Honor.
THE COURT: Sustained.
[PROSECUTOR]: Then they come in here and they give you their story.
MR. SCHIECK: Objection again, Your Honor. It's the same argument.
MR. McDONALD: Join, Your Honor.
THE COURT: Overruled.
DISCUSSION
[Headnotes 1-4]
The prosecution is forbidden at trial to comment upon a defendant's election to remain silent following his arrest and after being
advised of his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966). Neal v. State, 106 Nev. 23, 25, 787 P.2d 764, 765 (1990);
see also Doyle v. Ohio, 426 U.S. 610 (1976). Although the record does not show that Murray was advised of his Miranda rights, this court
has held that impeaching a defendant with his or her post-arrest silence constitutes prosecutorial misconduct whether or not the defendant
received a Miranda warning. Coleman v. State, 111 Nev. 657, 664, 895 P.2d 653, 657 (1995). Further, the record shows that Murray
invoked his right to consult an attorney before speaking. Therefore, he clearly elected to remain silent, and the State improperly commented
on his silence numerous times.
1
Although Murray failed to object to this misconduct at trial, this court may review plain error or issues of
constitutional dimension sua sponte despite a party's failure to raise an issue below. Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723
(1991). Byford and Williams were informed of their Miranda rights and, like Murray, chose to remain silent. The State improperly
commented on their silence both during cross-examination of Williams and during closing argument.
__________

1
The prosecutor also referred to Murray's silence after the murder in March 1987 until his arrest in October 1988. Comment on this
pre-arrest silence was not improper. Jenkins v. Anderson, 447 U.S. 231, 240 (1980). Since the prosecution improperly commented on
Murray's silence after his arrest and before the charges were dismissed without prejudice, it is not necessary to decide whether comment on
his post-dismissal silence was improper. It is an interesting question because after the dismissal, Murray was not in custody for several
years, but he had been charged with the crime once and knew that he was still a suspect and still liable for prosecution for the murder.
However, the State never distinguished between these periods of silence and did not limit its comments at trial to Murray's pre-arrest silence
or his post-dismissal silence.
This court must determine if the improper comments were harmless beyond a reasonable
doubt. McCraney v. State, 110 Nev. 250, 256, 871 P.2d 922, 926 (1994). We have held that
reference during cross-examination of a defendant and closing argument to the defendant's
post-Miranda silence is not harmless error when the defendant's credibility is crucial to his
defense and the prosecutor's comments are deliberate and repetitious. Id.
[Headnotes 5, 6]
In Murray's case, the comments were made during cross-examination of the defendant, closing argument, and examination of a state
witness. Murray's credibility was crucial to his defense: the case was primarily his word against Chapman's. The prosecutor's comments
were deliberate and repeated. In the trial of Byford and Williams, the improper comments occurred on cross-examination and during
closing argument and were deliberate. The credibility of both men was crucial to their defense, which was that the murder had actually been
committed by the only other eyewitness to the crime.
In none of these cases can we conclude beyond a reasonable doubt that the prosecutorial misconduct was harmless error and the juries
would have reached the same verdict absent the improper comments. Accordingly, we reverse the judgments of conviction of Murray,
Byford, and Williams and remand all three cases for new trials.
____________
113 Nev. 18, 18 (1997) Todd v. State
RONALD ROBERT TODD, Appellant, v.
No. 26742
January 3, 1997 931 P.2d 721
Appeal from a judgment of conviction entered pursuant to a jury verdict of one count of
robbery with use of a deadly weapon and one count of kidnapping in the second degree with
use of a deadly weapon. Second Judicial District Court, Washoe County; Steven R. Kosach,
Judge.
Defendant was convicted before the district court of robbery with use of a deadly weapon
and kidnapping in the second degree with use of a deadly weapon, and he appealed. The
supreme court, Rose, J., held that: (1) defendant's failure to object to alleged errors at trial
precluded appellate review of his claims, and (2) district judge's consideration of improper
evidence at sentencing phase mandated that defendant receive new sentencing hearing.
113 Nev. 18, 19 (1997) Todd v. State
sentencing phase mandated that defendant receive new sentencing hearing.
Affirmed in part, vacated in part, and remanded.
Springer, J., and Steffen, C. J., dissented.
Joseph R. Plater, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District
Attorney, Gary H. Hatlestad, Chief Appellate Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
In deciding whether to review improperly preserved objections to trial court's proceedings, supreme court must balance several
competing interests: court must defend both defendant's interests in due process and public's faith in ability of judicial system to
protect the innocent; court must also defend the process itself by encouraging litigation of all relevant issues at trial and discouraging
defense counsel from remaining silent in face of trial court errors and misconduct, for tactical reasons, in order to get a second bite of
the apple if verdict is returned against client. U.S. Const. amend. 14.
2. Criminal Law.
Supreme court would not exercise its discretion to review improperly preserved assignments of error as to admission of expert's
testimony, where evidence of guilt was substantial, alleged errors were unlikely to have affected verdict, and failure to object was
unexcused.
3. Criminal Law.
Where it appears that defendant had no opportunity to object to alleged error, supreme court will address plain error sua sponte.
4. Attorney and Client.
Attorney-client relationship may be implied: when person seeks advice or assistance from attorney; advice or assistance sought
pertains to matters within attorney's professional competence; and attorney expressly or impliedly agrees to give or actually gives
desired advice or assistance.
Attorney-client relationship may be established through preliminary consultations, even though attorney is never formally retained
and client pays no fee.
Implied attorney-client relationship was formed when inmate in county jail asked attorney, who was visiting jail to meet with
another client, about possible civil lawsuit. Attorney admitted that inmate sought his advice on matters which were within his
professional competence, and by stating that he would read inmate's version of events, attorney impliedly agreed to consider case and
render advice sought.
7. Witnesses.
Handwritten notes which county jail inmate conveyed to attorney while attorney was visiting jail to meet with another client
constituted confidential communication protected by attorney-client privilege. Inmate and attorney had formed an implied
attorney-client relationship when inmate sought attorney's advice on bringing possible civil suit for police
brutality, and attorney agreed to read inmate's version of events.
113 Nev. 18, 20 (1997) Todd v. State
when inmate sought attorney's advice on bringing possible civil suit for police brutality, and attorney agreed to read inmate's version of
events.
8. Criminal Law.
Sentencing judge has wide discretion in imposing sentence, and determination will not be overruled absent showing of abuse of
discretion.
9. Criminal Law.
Sentencing court is privileged to consider facts and circumstances which would clearly not be admissible at trial.
10. Criminal Law.
Supreme court will refrain from interfering with sentence imposed so long as record does not demonstrate prejudice resulting from
consideration of information or accusations founded on facts supported only by impalpable or highly suspect evidence.
Confidential and privileged material disclosed by attorney without consent of client, and attorney's impressions regarding that
confidential and privileged information, should never be submitted for district judge's consideration in sentencing proceeding without
prior consent of client, especially when that information is damaging to client and could result in client receiving a heavier sentence.
12. Criminal Law.
District judge's receipt during sentencing phase of trial of defendant's handwritten notes to attorney giving his version of events
and attorney's cover letter, combined with judge's failure to inform defendant of such receipt, constituted reversible error. Although
defendant's notes were not overly prejudicial because notes were almost identical to defendant's trial testimony, attorney's cover letter
was prejudicial to such degree that new sentencing hearing was required. Attorney's letter commented on defendant's mental state,
recommended to district judge a sentence, and concluded by implying that defendant might be lying.
OPINION
By the Court, Rose, J.:
Appellant Ronald Todd was found guilty of robbery with use of a deadly weapon and
kidnapping in the second degree. On appeal, Todd argued that reversible errors occurred at
trial and that he should receive a new trial. We conclude that Todd's failure to object to those
alleged errors at trial precludes appellate review of his claims. We further conclude that the
district judge's consideration of improper evidence during the sentencing phase constituted
reversible error, and therefore, Todd's sentence must be vacated and Todd must receive a new
sentencing hearing before a different district judge.
FACTS
At about 11:30 p.m. on April 29, 1994, Todd forced his way into a guest's room at the
Eldorado Hotel and Casino in Reno, Nevada, and robbed and severely beat the guest.
113 Nev. 18, 21 (1997) Todd v. State
Nevada, and robbed and severely beat the guest. Earlier in the day, Todd had been swindled
out of $400 by an individual known only as Matt, who had approached Todd in the casino
and offered to purchase marijuana for him. After learning that he had been swindled in the
drug deal, Todd broke into his ex-son-in-law's house and took his ex-son-in-law's revolver.
Todd returned to the hotel and forced his way into the guest's room, mistakenly believing that
Matt was staying there. In fact, the guest had nothing to do with the drug deal scam;
nevertheless, Todd beat the guest about the face with his fists and the pistol and took $80
from the guest's wallet.
Eldorado Hotel security arrived while Todd was still in the guest's room. Todd exited the
room, waved the pistol at the security guards, and ordered them not to move. Despite Todd's
threats, the security officers ran to a nearby elevator. Todd forced his way into the elevator
and ordered all of the security officers out, except for one. After the elevator descended three
floors, Todd ordered the security guard, at gunpoint, to exit the elevator and walk with him
down a nearby flight of stairs. Another security guard was waiting in the stairwell, a struggle
ensued, and Todd eventually was subdued and taken into custody.
Following a jury trial, Todd was convicted of robbery with the use of a firearm and
kidnapping in the second degree with the use of a firearm. On January 20, 1995, the district
court sentenced Todd to (1) twelve years in the Nevada State Prison for the robbery
conviction plus a consecutive twelve year enhancement for using a firearm and (2) a fifteen
year term for the kidnapping conviction plus a consecutive fifteen year sentence enhancement
for using a firearm, to be served concurrently with the sentence imposed for the robbery.
DISCUSSION
Todd's failure to object to alleged errors at trial precludes appellate review of his claims
On appeal, Todd contends (1) that the State's expert witness made improper comments
regarding Todd's guilt and whether voluntary intoxication is a legally permissible defense, (2)
that the district court erred in admitting evidence of uncharged crimes, and (3) that the
prosecutor made improper remarks to the jury during closing argument.
Part of Todd's theory of the case at trial was that he was too intoxicated at the time of the
incident to form the intent necessary to commit the crimes with which he was charged. In
anticipation of this defense, the State presented, during its case-in-chief, the expert testimony
of a psychiatrist. In this appeal, Todd has raised several potentially meritorious challenges
to the admissibility of the expert's testimony.
113 Nev. 18, 22 (1997) Todd v. State
several potentially meritorious challenges to the admissibility of the expert's testimony.
Todd concedes that his counsel failed to make any objections to the expert's testimony at
trial. Nevertheless, Todd contends that the errors complained of are patently prejudicial and
should be considered by this court in spite of his failure to make a proper objection at trial.
See, e.g., Sipsas v. State, 102 Nev. 119, 125, 716 P.2d 231, 234-35 (1986) (stating that as a
general rule, a failure to object at trial precludes appellate review, but where errors are
patently prejudicial and inevitably inflame or excite the passions of the jurors against the
accused, the general rule does not apply). In response, the State argues that this is not a case
in which we should exercise our discretion to review improperly preserved assignments of
error. We agree.
[Headnote 1]
In deciding whether to review improperly preserved objections to the trial court's proceedings, this court must balance several
competing interests. On the one hand, this court must defend both the defendant's interest in due process and the public's faith in the ability
of the judicial system to protect the innocent. On the other hand, this court must also defend the process itself by encouraging litigation of
all relevant issues at trial and discouraging defense counsel from remaining silent in the face of trial court errors or misconduct, for tactical
reasons, in order to get a second bite at the apple if a verdict is returned against their clients.
[Headnote 2]
In the present case, where the evidence of guilt is substantial, the alleged errors are unlikely to have affected the verdict, and the failure
to object is unexcused, we conclude that these competing interests are best served by adhering to the general rule that errors not properly
objected to at trial are waived. We have thoroughly reviewed Todd's additional contentions and conclude that they are either without merit
or they charge errors that are harmless in light of the overwhelming evidence of guilt in this case. See NRS 178.598 (error not affecting
substantial rights shall be disregarded); Chapman v. California, 386 U.S. 18, 24 (1967). Finding no reversible error, we affirm the judgment
of the district court.
The district judge's consideration of improper evidence at the sentencing phase mandates that Todd receive a new sentencing hearing
We conclude that Todd's sentence must be vacated and that Todd is entitled to a new sentencing hearing based on the fact that the
district judge considered highly improper evidence during the sentencing phase of the trial.
113 Nev. 18, 23 (1997) Todd v. State
the district judge considered highly improper evidence during the sentencing phase of the
trial.
While reviewing the record during the evaluation of this appeal, this court discovered in
the confidential envelope containing Todd's parole and probation report, which had originally
been sealed and sent to the district judge by the Department of Parole and Probation, a cover
letter authored by Samuel T. Bull, Esq. (Bull), a private attorney not associated with these
proceedings, and attached to the cover letter were five pages of handwritten notes authored by
Todd.
1
The letter and attached notes were sent to and received by the district judge who heard
this case. In the letter, Bull explained that while he was in the county jail visiting a client,
Todd, who was incarcerated in the same facility, asked to speak to him regarding a possible
civil lawsuit against the Eldorado Casino for police brutality. Bull wrote that he spoke with
Todd because he never turned anybody down. It is obvious that Todd wanted to speak to
Bull because he was a lawyer. Because it was 10:30 p.m. when he and Todd met, Bull asked
Todd to write down what had happened at the Eldorado Hotel, leaving nothing out, and to
give this written account to him later, presumably the next day. At some point, Todd
delivered to Bull his handwritten account of the events that occurred at the Eldorado Hotel.
Subsequent to reading Todd's account of the events, Bull drafted a cover letter, attached
Todd's handwritten notes, and sent the package to the district judge who was hearing Todd's
case. The cover letter stated in pertinent part:
After reading [Todd's handwritten notes], I would feel that I had abdicated from moral
obligation unless I gave [them] to you, for whatever use you may make of [them]. I
know this guy is coming up in your court for sentencing and maybe these notes may
make a difference.
To my mind, the guy is obviously guilty of an assault with a deadly weapon, even
though he was obviously high as hell on something.
__________

1
The dissent argues that the origin of the letter in question is doubtful. This is simply not true. The letter was signed by Bull, was
written on Bull's stationery, and was addressed to the district judge who heard this case. The letter was found in an envelope which was sent
to the district judge, was originally sealed and marked confidential, and contained only the presentencing report from the Department of
Parole and Probation. The judge opened the envelope and read the parole and probation report as evidenced by the fact that he referred to
the report during the sentencing hearing. The letter was discovered by this court in that envelope, which had not been resealed, along with a
piece of paper containing the judge's handwritten notes made during the sentencing hearing. Therefore, it seems clear that the district judge
considered the letter in question and placed the letter back into the envelope where it was eventually found by this court.
113 Nev. 18, 24 (1997) Todd v. State
a deadly weapon, even though he was obviously high as hell on something.
Furthermore, Steve, I've known these conmen [sic] all my life and the reference to a
room on the 20th floor where the stash is, takes me back 50 years. I think that's the
oldest gag there is, and this crazy young guy bit on it.
If I were the judge, I'd give this ass 10 years for stupidity, and 10 years for assault.
But of course, maybe he's lying
. . . .
Nothing in the file indicates that the district judge did not read the letter and the notes, and
the fact that the letter was located in the confidential envelope which was to be opened only
by the district judge is a strong indication that the district judge read the letter and the notes
prior to sentencing Todd. Furthermore, the district judge never informed the parties that he
had received and read Bull's letter and Todd's attached notes.
[Headnote 3]
Todd did not object to the district judge's consideration of this letter on the grounds that such consideration was prejudicial or that it
violated the attorney-client privilege, but it is almost certain that Todd did not even know of the existence of the letter or the district judge's
receipt and apparent consideration of the letter. As stated above, the failure to object at trial generally precludes appellate review. Sipsas v.
State, 102 Nev. 119, 125, 716 P.2d 231, 234-35 (1986). However, it appears that Todd had no opportunity to object, and this court will
address plain error sua sponte. Bradley v. Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986).
[Headnotes 4, 5]
In DeVaux v. American Home Assurance Co., 444 N.E.2d 355, 357 (Mass. 1983) (quoting Kurtenbach v. TeKippe, 260 N.W.2d 53,
56 (Iowa 1977)), the Massachusetts Supreme Court stated that:
An attorney-client relationship may be implied when (1) a person seeks advice or assistance from an attorney, (2) the advice or
assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly
agrees to give or actually gives the desired advice or assistance.
See also People v. Bennett, 810 P.2d 661, 664 (Colo. 1991); Stuart v. State, 801 P.2d 1283, 1285 (Idaho 1990). Furthermore, the
attorney-client relationship may be established through preliminary consultations, even though the attorney is never formally retained
and the client pays no fee."
113 Nev. 18, 25 (1997) Todd v. State
mally retained and the client pays no fee. Bays v. Theran, 639 N.E.2d 720, 723 (Mass.
1994); see also Stuart, 801 P.2d at 1285; Central Cab Company v. Clarke, 270 A.2d 662, 666
(Md. 1970).
[Headnote 6]
We conclude that the facts as presented in Bull's letter to the district judge clearly prove that Todd and Bull had formed an implied
attorney-client relationship. Bull admitted that Todd sought his advice on matters which were within Bull's professional competence.
Additionally, by stating that he would read Todd's version of the events, Bull impliedly agreed to consider the case and render the advice
sought. Absent a written contract for services, we can envision no clearer facts which would establish an attorney-client relationship.
[Headnote 7]
Todd's handwritten notes to Bull constituted a confidential communication. NRS 49.055. Todd had a privilege to prevent Bull from
disclosing the confidential communication. NRS 49.095(1). Furthermore, by virtue of SCR 156(1),
2
Bull was duty bound to keep Todd's
information to himself and not to disclose it without Todd's consent. McKay v. Board of Cty. Comm'r, 103 Nev. 490, 494, 746 P.2d 124,
127 (1987). However, Todd was presumably never afforded the opportunity to assert his privilege to prevent Bull from disclosing the
information because Bull apparently sent the letter to the district judge without Todd's knowledge or consent.
[Headnotes 8-10]
The sentencing judge has wide discretion in imposing a sentence, and that determination will not be overruled absent a showing of
abuse of discretion. A sentencing court is privileged to consider facts and circumstances which would clearly not be admissible at trial.
Norwood v. State, 112 Nev. 438, 440, 915 P.2d 277, 278 (1996) (citations omitted). Furthermore,
[s]o long as the record does not demonstrate prejudice resulting from consideration of information or accusations founded on facts
supported only by impalpable or highly suspect evidence, this court will refrain from interfering with the sentence imposed.
Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976).
__________

2
A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for
disclosures that are impliedly authorized in order to carry out the representation . . . . SCR 156(1).
113 Nev. 18, 26 (1997) Todd v. State
[Headnote 11]
While our case law has until now addressed only prejudice resulting from consideration of evidence that is impalpable or highly
suspect, we feel compelled to proscribe also the consideration of (1) confidential and privileged material disclosed without consent of the
client, and (2) the attorney's impressions regarding that confidential and privileged information. Without prior consent of the client,
privileged information of this type, and the attorney's views on that information, should never be submitted for the district judge's
consideration, especially when that information is damaging to the client and could result in the client receiving a heavier sentence.
[Headnote 12]
We note that the district judge's receipt and apparent consideration of Todd's actual handwritten notes was not overly prejudicial to
Todd because the notes were almost identical to Todd's trial testimony. However, the judge's receipt and apparent consideration of Bull's
cover letter was prejudicial to Todd to such a degree that a new sentencing hearing is required. Bull's letter commented on Todd's mental
state, recommended to the district judge a sentence for Todd (10 years for stupidity, and 10 years for assault), and concluded by implying
that Todd might be lying. An attorney's opinion that a client is lying can have great persuasive force. The district judge's receipt and
apparent consideration of this prejudicial information, combined with his failure to inform the parties of the same, constituted reversible
error. Therefore, we conclude that Todd's sentence must be vacated and this case must be remanded to the trial court for a new sentencing
hearing before a different district judge.
CONCLUSION
Todd's failure to object to errors during the trial precludes appellate review of his claims. However, during the sentencing phase, the
district judge's consideration of Todd's confidential handwritten notes and Bull's comments on those notes constituted reversible error.
Therefore, we vacate Todd's sentence and remand this case to the district court for resentencing by a different district judge.
Young and Shearing, JJ., concur.
Springer, J., with whom Steffen, C. J., agrees, dissenting:
I have a very hard time understanding why this appellate court has intruded itself, sua sponte, into the trial court's sentencing
processes. The majority states that [n]othing in the file indicates that the district judge did not read the letter and the notes.
113 Nev. 18, 27 (1997) Todd v. State
Absence of evidence is not evidence of absence; and the mere fact that there is no evidence
that the judge did not read the documents is not evidence that the judge either did or did not
read them.
The manner in which the documents in question got into our files is doubtful. The majority
apparently believes that the district judge placed the documents in the parole and probation
envelope. To my mind this is all conjecture. It was found by this court's staff, out of place, in
an envelope that contained the presentencing report. The envelope in question had been
sealed when it was delivered to the district judge; and it is anyone's guess how the contraband
letter and accompanying documents got into the supreme court's file at all, much less showing
up in a previously-sealed envelope that had been intended to contain only the report from the
department of parole and probation. Assuming for the moment that the letter and documents
in question are properly a part of the record (they certainly were not designated as such), I am
inclined to believe (guess) that the trial judge did not consider the documents. If he had, I am
satisfied that he would have advised counsel for both parties. If there is any dispute on the
point, I would resolve it in favor of the trial judge.
This court is not justified in concluding, because the file does not indicate whether or not
the judge read the letter and notes, that the district judge's consideration of Todd's
confidential handwritten notes and Bull's comments on those notes during the sentencing
phase constituted reversible error. In my opinion the reversal of the sentencing order in this
case is an unwarranted and unnecessary intrusion into the trial judge's realm. I would affirm
the judgment of the trial court in its entirety.
____________
113 Nev. 27, 27 (1997) Medallion Dev. v. Converse Consultants
MEDALLION DEVELOPMENT, INC., a Nevada Corporation, Appellant, v. CONVERSE
CONSULTANTS; CONVERSE CONSULTANTS SOUTHWEST, INC.;
KENNEDY, JENKS & CHILTON; and BAUGHMAN & TURNER, Respondents.
No. 26870
January 3, 1997 930 P.2d 115
Appeal from an order of the district court granting summary judgment and dismissing
appellant's cross-claim. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
Homeowners association sued developer/general contractor and subcontractors for
construction defects in condominium complex. Contractor and subcontractors filed
cross-claim seeking indemnity and contribution, and homeowners association settled
claims against subcontractors.
indemnity and contribution, and homeowners association settled claims against
subcontractors. Subcontractors sought summary judgment. The district court granted
subcontractors' summary judgment motion against contractor's indemnity claims based on
determination of good faith settlement. Contractor appealed, contending grant of summary
judgment on indemnity claims was error. The supreme court held that: (1) as an apparent
matter of first impression, tort-feasors could bring claim of implied contractual (equitable)
indemnity against one another where good faith settlement had been reached between injured
plaintiffs and one or more tort-feasors; (2) defendants who relied on implied contractual
indemnity claims had to meet equitable indemnity legal standards; and (3) fact issue as to
whether settling subcontractors gave improper recommendations in design specifications
precluded summary judgment.
Reversed and remanded.
[Rehearing denied March 6, 1997]
Beckley, Singleton, Jemison & List, and Daniel F. Polsenberg, Las Vegas, for Appellant.
Dennis R. Haney & Associates, and Philip J. Dabney, Las Vegas, for Respondents
Converse Consultants and Converse Consultants Southwest, Inc.
Hale, Lane, Peek, Dennison & Howard, and Donald L. Christensen, Las Vegas, for
Respondent Kennedy Jenks & Chilton.
Kravitz, Schnitzer & Sloane, Las Vegas, for Respondent Baughman & Turner.
Gerard, Selden & Associates, Las Vegas, for Amicus Curiae Duck Creek Village.
1. Contribution; Indemnity.
There is clear distinction between contribution and indemnity. Contribution is equitable share of liability and indemnity is
complete shifting of liability to party primarily responsible.
2. Indemnity.
Contractual indemnity is where, pursuant to a contractual provision, two parties agree that one party will reimburse the other
party for liability resulting from the former's work.
3. Indemnity.
Equitable indemnity is judicially-created construct to avoid unjust enrichment.
4. Indemnity.
Tort-feasors may bring claims of implied contractual (equitable) indemnity against one another where a good faith settlement has
been reached between the injured plaintiffs and one or more of the tort-feasors. NRS 17.245.
reached between the injured plaintiffs and one or more of the tort-feasors. NRS 17.245.
5. Indemnity.
Defendants, relying on implied contractual indemnity claims where good faith settlement has been reached between injured
plaintiffs and one or more of the tort-feasors, must meet legal standards addressing indemnity. Implied contractual indemnity would be
inapplicable if fact finder determines that defendants are in whole or in part equally responsible for each of the claims. NRS 17.245.
6. Judgment.
Fact issue precluded summary judgment dismissing implied contractual indemnity claim by contractor against subcontractors who
had entered into good faith settlement with injured plaintiffs in construction defect case where evidence was that settling
subcontractors may have given improper recommendations in design specifications and that non-settling contractor may not have been
negligent in any manner. On remand contractor would have to show that one or more of the settling subcontractors was primarily liable
on one or more of the claims brought by plaintiffs.
OPINION
Per Curiam:
This appeal arises from a complex construction-defect case involving the Duck Creek
Village condominium complex in Las Vegas, Nevada. Appellant Medallion Development,
Inc. (Medallion) was the developer/general contractor for Duck Creek Village.
Respondent Converse Consultants and Converse Environmental Consultants Southwest,
Inc. (collectively referred to as Converse), a soils engineering firm, performed various
pre-construction soil tests, recommended the grading and design of building pads, and
inspected the concrete pouring of a number of building pads and foundations at Duck Creek
Village. Respondent Baughman & Turner (B&T), an engineering firm, prepared the
original hydrology report for the development. Respondent Kennedy, Jenks & Chilton
(KJC), also an engineering firm, updated the hydrology reports prepared by B&T and
prepared certain water and sewer plans.
1
In May 1990, the Duck Creek Village I and II Homeowners Association (Homeowners
Association) brought this action against Medallion for negligence, nuisance, strict liability,
breach of warranty, negligent misrepresentation, negligent failure to disclose, fraud,
conversion, breach of contract and rescission. The Homeowners Association alleged several
specific defects in the construction of Duck Creek Village, including poor construction of
artificial fill soils, improper design and construction of roofs, improper drainage,
improperly installed electrical systems, improperly installed sewer systems, and improper
design and construction of walls.
__________

1
Converse, B&T and KJC are collectively referred to as respondents.
tion of artificial fill soils, improper design and construction of roofs, improper drainage,
improperly installed electrical systems, improperly installed sewer systems, and improper
design and construction of walls. In October 1992, the Homeowners Association amended its
complaint to include Converse, B&T, and KJC.
As co-defendants, Medallion and respondents filed cross-claims against each other,
seeking indemnity and contribution. Because, Medallion's contracts with respondents contain
no express indemnification provisions, Medallion's indemnity cross-claims against
Converse, KJC and B&T sounded exclusively in implied contractual (equitable) indemnity,
not contractual indemnity.
In August 1994, plaintiff Homeowners Association settled its claims against respondents.
The settlement was for a combined $75,000: $25,000 from each of the respondents. The
Homeowners Association filed a motion in district court to find that the proposed settlement
is in good faith pursuant to NRS 17.245. The Homeowners Association represented that
respondents were partially responsible for certain construction defects, namely drainage and
pavement problems and some foundation cracking. It asserted that this settlement would
provide funds to begin repairing its damaged property. On October 18, 1994, the district court
orally granted the motion for approval of the good faith settlement.
In December 1994, Converse filed a motion to dismiss Medallion's indemnity claims or for
summary judgment. Converse asserted that the determination that the settlement was in good
faith extinguished any remaining equitable indemnity claims. In addition, Converse asserted
that no factual basis existed to impose equitable indemnity. KJC and B&T joined in the
motion.
On January 4, 1995, the district court granted the motion to dismiss, ruling that the
determination of the good faith of the settlement barred any further claims against Converse.
It found that no equitable or factual circumstances warrant or justify allowing Medallion to
pursue its equitable indemnification claims against the Converse Defendants in light of this
Court's previous Order Approving the Good Faith Settlement entered into between the
Converse Defendants and the Plaintiff. Thereafter, the district court entered an order
dismissing Converse, KJC, and B&T from the lawsuit with prejudice and entering summary
judgment against Medallion on all of its claims against respondents.
On January 11, 1995, Medallion moved to amend the district court's orders and for relief
from judgment. Medallion argued that because the Homeowners Association's settlement
with the subcontractors did not resolve the association's claims against Medallion for the
damages allegedly caused by the subcontractors, the settlement should not extinguish
Medallion's indemnity rights.
Medallion for the damages allegedly caused by the subcontractors, the settlement should not
extinguish Medallion's indemnity rights. The district court denied the motion.
In February 1995, the Homeowners Association entered into a global settlement with
Medallion for $1,200,000. The settlement allocated values to each aspect of the Homeowners
Association's claims for construction defects based on estimates from experts for both
Medallion and the Homeowners Association.
On appeal, Medallion contends that the district court erred in granting summary judgment
on its claims against respondents because respondents' good-faith settlement with the plaintiff
does not resolve its claims for implied contractual (equitable) indemnity.
DISCUSSION
Appellant Medallion contends that the district court erred in dismissing its indemnity
claims against respondents. Medallion asserts that a good-faith settlement bars contribution,
but does not bar indemnity claims against the settling tortfeasor. Medallion argues that it
stated a claim for equitable indemnity against respondents because it had a special
relationship with respondents.
Summary judgment is only appropriate when, after a review of the record viewed in the
light most favorable to the non-moving party, there remain no issues of material fact. Butler
v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). In determining whether
summary judgment is proper, the non-moving party is entitled to have the evidence and all
reasonable inferences accepted as true. Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774
P.2d 432, 433 (1989). This court's review of a summary judgment order is de novo. Tore, Ltd.
v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989). We are required to determine
whether the trial court erred in concluding that an absence of genuine issues of material fact
justified its granting of summary judgment. Bird v. Casa Royale West, 97 Nev. 67, 68, 624
P.2d 17, 18 (1981). A party opposing summary judgment may not rely on his allegations to
raise a material issue of fact where the moving party supports his motion with competent
evidence. Garvey v. Clark County, 91 Nev. 127, 130, 532 P.2d 269, 271 (1975).
In the instant case, the district court approved the settlement between the Homeowners
Association and respondents as in good faith pursuant to NRS 17.245, which states in
pertinent part:
When a release or a covenant not to sue or not to enforce judgment is given in good
faith to one of two or more persons liable in tort for the same injury or the same
wrongful death:
. . .
2. It discharges the tortfeasor to whom it is given from all liability for contribution
to any other tortfeasor.
This statute was enacted in 1973 as part of the Uniform Contribution Among Tortfeasors Act,
NRS 17.225 et seq., which recognizes the right of joint tortfeasors to seek an equitable
distribution of liability among them. NRS 17.245 provides that when a good-faith settlement
is reached between one of several tortfeasors and the injured party, it discharges the settling
tortfeasor from all liability for contribution to the non-settling tortfeasors, but does not
discharge any of the non-settling tortfeasors from liability.
NRS 17.245 does not address the effect of a settlement on an indemnity claim between
tortfeasors. However, NRS 17.265 makes clear that the right of indemnity remains
unimpaired:
NRS 17.225 to NRS 17.305, inclusive, do not impair any right of indemnity under
existing law. Where one tortfeasor is entitled to indemnity from another, the right of the
indemnity obligee is for indemnity and not contribution, and the indemnity obligor is
not entitled to contribution from the obligee for any portion of his indemnity obligation.
This statute declares that a good-faith settlement under NRS 17.245 does not impair any right
of indemnity, provided that the right of the obligee is for indemnity and not contribution.
NRS 17.265.
[Headnote 1]
Black's Law Dictionary defines contribution as the [r]ight of one who has discharged a common liability to recover of another also
liable, the aliquot portion which he ought to pay or bear. Black's Law Dictionary 326 (6th ed. 1991). It further states that [u]nder [the]
principle of contribution,' a tort-feasor against whom a judgment is rendered is entitled to recover proportional shares of judgment from
other joint tort-feasors whose negligence contributed to the injury and who were also liable to the plaintiff. Id. (citing Dawson v.
Contractors Transport Corp., 467 F.2d 727, 729 (D.C. Cir. 1972)). Black's defines indemnity, on the other hand, as [r]eimbursement [or]
[a]n undertaking whereby one agrees to indemnify another upon the occurrence of an anticipated loss. A contractual or equitable right
under which the entire loss is shifted from a tortfeasor who is only technically or passively at fault to another who is primarily or actively
responsible. Id. at 769 (citations omitted). Thus, there is a clear distinction between contribution and indemnity: the former is an equitable
sharing of liability while the latter is a complete shifting of liability to the party primarily responsible.
[Headnotes 2, 3]
We also note the existence of two types of indemnity: contractual and equitable. Contractual indemnity is where, pursuant to a
contractual provision, two parties agree that one party will reimburse the other party for liability resulting from the former's work. See, e.g.,
Continental Casualty Co. v. Farnow, 79 Nev. 428, 386 P.2d 90 (1963). On the other hand, equitable indemnity is a judicially-created
construct to avoid unjust enrichment. See Piedmont Equip. Co. v. Eberhard Mfg., 99 Nev. 523, 528, 665 P.2d 256, 259 (1983). In the
instant case, Medallion argues that it is entitled to equitable, not contractual, indemnity from respondents.
This court has developed a line of cases addressing equitable indemnity. See id.; Black & Decker v. Essex Group, 105 Nev. 344, 775
P.2d 698 (1989); Reid v. Royal Insurance Co., 80 Nev. 137, 390 P.2d 45 (1964).
We have previously held that equitable indemnity is not applicable where the tortfeasors were in pari delicto, i.e., equally responsible
for the loss. Reid, 80 Nev. at 146, 390 P.2d at 48. The Reid court determined that because the subcontractor and general contractor both
bore equal liability for the injury, the contractor does not have a claim for relief against the subcontractor on the theory of indemnity
applied in law. Id. at 146, 390 P.2d at 49. However, this court also noted that so long as a legal relationship such as
contractor-subcontractor is present, [h]ad the plaintiffs' loss been caused solely by the negligence of the subcontractor[,] we would not
hesitate to apply an indemnity principle to shift the entire burden of the loss from the contractor to the subcontractor. Id. at 142-43, 390
P.2d at 48.
In Piedmont, we explained that restitution forms the basis for implied indemnity and that indemnity is only available so long as the
indemnitee is free from active wrongdoing regarding the injury to the plaintiff. Piedmont, 99 Nev. at 527-28, 665 P.2d at 259. Evidence
supporting only passive negligence, breach of implied warranty or strict liability is insufficient to establish active wrongdoing. Id.
In Black & Decker, this court further addressed equitable indemnity. In deciding that Black & Decker was entitled to full indemnity
from Essex Group, this court stated:
The right of indemnity rests upon a difference between the primary [active] and the secondary [passive] liability of two persons,
each of whom is made responsible by the law to an injured party. Tromza v. Tecumseh Products Co., 378 F.2d 601, 605 (3rd Cir.
1967) (citation omitted). The difference between primary and secondary liability depends on a difference in the character or
kind of wrongs that cause the injury and in the nature of the legal obligation owed by each of the
wrongdoers to the injured person.
ence in the character or kind of wrongs that cause the injury and in the nature of the
legal obligation owed by each of the wrongdoers to the injured person. Id.
105 Nev. at 345, 775 P.2d at 699.
[Headnote 4]
The principles elucidated by this court in our aforementioned decisions are equally applicable in the context of implied contractual
indemnity. Accordingly, consistent with prior case law and NRS 17.245, we now hold that tortfeasors may bring claims of implied
contractual (equitable) indemnity against one another where a good-faith settlement has been reached between the injured plaintiffs and one
or more of the tortfeasors.
2
This holding stresses accountability and fairness among tortfeasors. Active wrongdoers should bear the
consequences of their injurious actions. Far from discouraging global settlement, this authorization of implied contractual indemnity claims
between settling and nonsettling tortfeasors works to ensure that co-defendants do not avoid significant liability to one another where there
are widely disparate degrees of fault.
3
[Headnote 5]
We also note, however, that NRS 17.245 makes clear that a good-faith settlement entered into by one tortfeasor prevents all others from
bringing claims for contribution against that settling tortfeasor. Consequently, defendants relying upon implied contractual indemnity
claims must meet the legal standards outlined in our previous decisions addressing indemnity. See, e.g., Black & Decker, 105 Nev. at 344,
775 P.2d at 698; Piedmont Equip. Co., 99 Nev. at 523, 665 P.2d at 256; Reid, 80 Nev. at 137, 390 P.2d at 45.
[Headnote 6]
Our review of the record in the instant matter reveals that summary judgment was prematurely granted. The record shows that material
issues of fact do exist. Medallion's expert, Donald Seppa, has averred that, after his review of respondents' evidence, Converse, B&T, and
KJC were responsible for the development's construction defects and that Medallion "was not negligent in any
manner."
__________

2
We do not address the issue of whether implied contractual indemnity is available where the defendant tortfeasors have expressly
contracted with respect to the duty to indemnify. In the instant matter, it appears that no express indemnification clause was contained in
any of Medallion's contracts with respondents.

3
We decline to follow Vertecs Corp. v. Reichhold Chemicals, Inc., 661 P.2d 619 (Alaska 1983), in which the Supreme Court of
Alaska rejected the doctrine of equitable indemnity. We also note that the holding in that case has been modified by statute and subsequent
case law. See Benner v. Wichman, 874 P.2d 949 (Alaska 1994).
opment's construction defects and that Medallion was not negligent in any manner. Indeed,
respondents' preliminary allocation matrix, though it did not specifically determine the
involvement of the respondent design professionals, indicates that soil conditions, paving,
site drainage, and foundation defects alleged by the Homeowners Association may have been
primarily caused by respondents.
Reports prepared by the respondents for Medallion also appear to confirm that all three
respondents may have given improper recommendations in many of their design
specifications. Specifically, the evidence shows that Converse may have been responsible for
improper pavement design and failure to require a corrosion inhibitor to protect the copper
water pipes from deterioration. KJC and B&T may have been responsible for failing to
adequately protect the pipes and failure to provide sufficient pavement drainage. This is
sufficient to show that respondents may be primarily liable for the construction defects in the
Duck Creek subdivision.
On remand, Medallion will have to show that one or more of the subcontractors is
primarily liable on one or more of the claims brought by the Homeowners Association. See
Black & Decker, 105 Nev. at 344, 775 P.2d at 698. After a thorough examination of all the
evidence, the fact finder may determine that the defendants are, in whole or in part, equally
responsible for each of the claims. In that instance, implied contractual indemnity would be
inapplicable. However, until all meaningful evidence is fleshed out and liability determined,
material issues of fact still exist. Accordingly, we reverse the order of the district court and
remand this case to the district court for proceedings consistent with this opinion.
____________
113 Nev. 35, 35 (1997) Quevedo v. State.
CARLOS QUEVEDO, Appellant, v. THE
No. 25579
January 3, 1997 930 P.2d 750
Appeal from a judgment of conviction of seven counts of sexual assault. Ninth Judicial
District Court, Douglas County; Norman C. Robison, Judge.
Defendant was convicted in the district court on seven counts of sexually assaulting his
seven-year-old daughter. Defendant appealed. The supreme court, Springer, J., held that trial
court clearly erred in failing to hold hearing to determine trustworthiness of daughter's
hearsay statements to teacher and sheriff's deputy before allowing teacher and deputy to
testify as to those statements.
113 Nev. 35, 36 (1997) Quevedo v. State
ness of daughter's hearsay statements to teacher and sheriff's deputy before allowing teacher
and deputy to testify as to those statements.
Steffen, C. J., and Shearing, J., dissented.
Patrick Gilbert, Minden, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Scott W. Doyle, District Attorney,
Kristine L. Brown, Deputy District Attorney, Douglas County, for Respondent.
Criminal Law.
Trial court clearly erred in failing to hold statutorily required hearing outside presence of jury to determine trustworthiness of
hearsay statements made by seven-year-old victim of alleged sexual assault to teacher and sheriff's deputy before allowing teacher and
deputy to testify as to those statements, thus warranting reversal notwithstanding absence of objection to hearsay statements at trial.
NRS 51.385(1).
OPINION
By the Court, Springer, J.:
Appellant Carlos Quevedo (Quevedo) was charged with seven counts of sexually
assaulting his seven-year-old daughter. The charges were based on his daughter's reports that
her father had been engaging in intercourse with her and also forcing her to perform fellatio
upon him. The victim made these reports to her third-grade teacher and to a Douglas County
sheriff's deputy. At trial, Quevedo's daughter testified, as did her teacher and the deputy who
interviewed her. Quevedo was convicted on all seven counts. He was sentenced to seven life
sentences, three of them to run consecutively.
The district court erred by not adhering to the mandate of NRS 51.385; consequently, the
convictions must be reversed.
NRS 51.385 provides, in part:
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 is admissible in a criminal proceeding
regarding that sexual conduct if the:
(a) 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
provide sufficient circumstantial guarantees of trustworthiness; and
(b) Child either testifies at the proceeding or is unavailable or unable to testify.
This court has held that NRS 51.385 requires that a hearing as to trustworthiness be held
prior to admission of the child's hearsay statements. Lytle v. State, 107 Nev. 589, 590, 816
P.2d 1082, 1083 (1991).
Both the victim's teacher, Susan Linn (Linn), and Sheriff's Deputy Paul Pabon (Pabon)
testified as to statements made to them by Quevedo's daughter. These statements are hearsay.
In Lytle, this court held that NRS 51.385 clearly requires a hearing for the purpose of
determining the trustworthiness of the offered hearsay statements prior to the statements
being brought before the jury. 107 Nev. at 591, 816 P.2d at 1083 (footnote omitted).
Lytle is factually almost identical to this case. In Lytle the defendant was convicted of open
and gross lewdness with his five-year-old stepdaughter. The victim in Lytle testified, as did
the victim in this case. Additionally, hearsay statements made by the victim to her mother and
to juvenile authorities were admitted in Lytle. These statements are similar to the statements
made to Linn and Pabon in this case. This court concluded in Lytle that the district court's
failure to follow the specific requirements of NRS 51.385 [] justifies the reversal of
appellant's convictions. Id.
We noted in Lytle that [u]nder the opening phrase of NRS 51.385(1), this hearing is
required unless the hearsay is otherwise admissible under a recognized exception to the
hearsay rule. Id. at n.1. However, the statements made to Linn and Pabon do not fit into any
of the recognized hearsay exceptions. In this case, the district judge did not mention any
hearsay exception that would allow the statements, which was exactly the situation in Lytle.
In fact, in Lytle, as in this case, no objection was made to the hearsay statements at trial.
However, this court stated in Lytle that
[t]he State contends that the hearing is required only if the defendant objects to the
introduction of the hearsay. This contention is simply not consistent with the clear
language of NRS 51.385, which allows hearsay statements only if the court finds, in a
hearing out of the presence of the jury sufficient guarantees of trustworthiness.
Id. We conclude that Lytle is directly on point and is controlling in this case. It was clearly
error for the district court to fail to hold the hearing to determine the trustworthiness of the
hearsay statements before allowing Linn and Pabon to testify.
statements before allowing Linn and Pabon to testify. The convictions of Quevedo are
therefore reversed, and the case is remanded to the district court for a new trial.
Young and Rose, JJ., concur.
Steffen, C. J., dissenting:
I strongly disapprove of the majority's perfunctory invocation of this court's fragile ruling
in Lytle v. State, 107 Nev. 589, 816 P.2d 1082 (1991), as a basis for subjecting the
child-victim in the instant case to the extreme trauma of another trial. I therefore dissent.
Especially troubling is the majority's apparent belief that any failure to hold a hearing
pursuant to NRS 51.385 requires, under Lytle, an automatic reversal. The extreme, myopic
deference accorded Lytle dispenses with all semblance of appellate review calculated to
determine whether there was prejudicial error requiring this court to reverse the careful
deliberations of a jury who heard all of the evidence. Indeed, the total lack of analysis by the
majority in reaching the wooden decision to subject this child-victim to the trauma of another
trial is most distressing.
It appears to me that several matters of concern should have given the majority pause
before investing so little time in concluding that Lytle mandates an automatic reversal of what
otherwise appears to be a fair and just trial. First, the majority should realize that the concerns
expressed in Lytle are not of a constitutional magnitude where, as here, the child-victim
testifies at trial and is available for full cross-examination. In Felix v. State, 109 Nev. 151,
175, 849 P.2d 220, 237 (1993), we concluded that:
NRS 51.385 authorizes the admission of out-of-court CSA allegations made by
child-declarants whether or not they testify. If a child does testify, admission of that
child's prior consistent or inconsistent out-of-court statements does not violate the
defendant's constitutional right to confrontation, so long as the child is subject to full
and effective cross-examination concerning the statements.
Second, the majority should realize that NRS 51.385 was not enacted because of any belief
that children are less trustworthy than older witnesses. To the contrary, the statute was
enacted in order to add another hearsay exception that applies to children under ten years of
age. See NRS 51.385 (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 . . . is admissible . . . .).
Notwithstanding the policy underlying the statute, the majority blithely concludes that the
hearsay statements in the instant case would "not fit into any of the recognized hearsay
exceptions."
ments in the instant case would not fit into any of the recognized hearsay exceptions. Given
the nature of the child's testimony, and its inherent aura of trustworthiness, I have great
difficulty understanding how the majority can so readily conclude, as a matter of law, that the
hearsay statements do not fit within any recognized exceptions to the hearsay rule.
In considering the majority's naked conclusion that the hearsay statements in the present
case would not fit into a recognized hearsay exception, I refer my brethren to our recent case
of Bockting v. State, 109 Nev. 103, 847 P.2d 1364 (1993). In analyzing the constitutionality
of NRS 51.385 under the constraints of Idaho v. Wright, 497 U.S. 805 (1990), we noted that
the Wright court determined that the Constitution does not impose a fixed set of procedural
prerequisites to the admission of hearsay attributable to children. Bockting, at 109, 847 P.2d
at 1368 (citing Wright, 497 U.S. at 822). We also noted that the Wright court identified
several non-exclusive factors that were of significance in evaluating the reliability of
hearsay statements attributable to children in child sex abuse cases. Among those listed in
Wright were: (1) spontaneity and consistency in repetition; (2) declarant's mental state; (3)
use of unexpected terminology by child of a given age; and (4) absence of motive to
fabricate. Id. We then stated: Disavowing mechanical tests for determining particularized
guarantees of trustworthiness, the [Wright] Court declared that the unifying principle is that
these factors relate to whether the child declarant was particularly likely to be telling the truth
when the statement was made.' Id., quoting Wright, 497 U.S. at 822.
I strongly suggest that under the circumstances of this case, the recognized hearsay
exception, NRS 51.075, which requires assurances of accuracy, would likely validate the
admissibility of the hearsay statements testified to by the victim's teacher, Susan Linn, and
Deputy Sheriff Paul Pabon. Both statements are essentially consistent with the testimony of
the child-victim at trial. Moreover, the child-victim was available for full cross-examination
concerning the statements and the circumstances under which they were made. Moreover,
virtually all of the factors identified in Wright as having significance in determining the
reliability of the hearsay are strongly satisfied in this case.
The majority seem to justify their bare conclusion that the hearsay would not be accorded
admissibility under recognized exceptions to the hearsay rule by noting that the trial judge did
not mention any hearsay exception that would allow the statements . . . . Of course, the
majority disregards the fact that defense counsel did not object to either of the hearsay
statements. It thus appears that the majority now assumes that if defense counsel fails to
object to hearsay statements attributable to a child- victim under the age of ten years, the
judge must either intervene and justify on the record why the statements are admissible
notwithstanding a lack of objection, or the State must object to its own proffered
testimony and then ask that the objection be overruled for reasons that the State must
then specify.
counsel fails to object to hearsay statements attributable to a child- victim under the age of ten
years, the judge must either intervene and justify on the record why the statements are
admissible notwithstanding a lack of objection, or the State must object to its own proffered
testimony and then ask that the objection be overruled for reasons that the State must then
specify.
I suggest that the majority's ruling turns the law on its head. Under usual circumstances
where hearsay has been admitted without objection, we would not review that claim of error
on appeal, but leave to post-conviction proceedings the question of whether counsel
prejudiced the fairness of the trial by failing to object. At that time, a full hearing could focus
on the issue of the admissibility of the hearsay and this court would thereafter have a
complete record upon which to make an enlightened judgment on the issue. In these types of
cases, where small children are victimized by the ordeal of trial alone, sound policy and
procedure demand nothing less.
Finally, I fully agree with the dissenting analysis of my colleague Justice Shearing and join
in her dissent. As she has concluded, even if we were to concede error as to the admission of
the hearsay statements without a hearing, under the circumstances of this case, the error
would clearly be harmless.
For the reasons abbreviated above, I dissent.
Shearing, J., dissenting:
I would affirm Carlos Quevedo's conviction of seven counts of sexual assault. I disagree
with the majority's position that the district court's failure to hold a trustworthiness hearing
pursuant to NRS 51.385 before admitting the victim's hearsay statements requires reversal of
the conviction.
First, I do not agree with this court's interpretation of NRS 51.385 expressed in Lytle v.
State, 107 Nev. 589, 816 P.2d 1082 (1991), making a hearing mandatory even if counsel does
not object to the evidence. NRS 51.385, like virtually every other rule in the evidence code,
should be subject to waiver when there is no objection. I agree with the dissenting opinion in
Lytle. 107 Nev. at 591-95, 816 P.2d at 1084-86. A proper objection is a prerequisite to this
court's consideration of an issue on appeal. Lord v. State, 107 Nev. 28, 38, 806 P.2d 548, 554
(1991).
Second, even if it was error to admit the victim's hearsay statements without a hearing, it
was harmless error. This case is very similar to Brust v. State, 108 Nev. 872, 839 P.2d 1300
(1992), in which this court held that the admission of the child victim's statements to a
clinical psychologist without a trustworthiness hearing was harmless error. The child had
testified and been subject to cross-examination at the trial, and the statements were merely
repetitive.
ments were merely repetitive. In the instant case, both the victim's teacher and a sheriff's
investigator testified to statements the child made to them consistent with her trial testimony.
It is a waste of court resources to require a separate trustworthiness hearing when the court
has already heard the child's testimony on direct and cross-examination; the district court is
thereby in a superior position to determine trustworthiness without a separate hearing.
I also join in the dissent of Justice Steffen.
____________
113 Nev. 41, 41 (1997) Powell v. State
KITRICH POWELL, Appellant, v. THE
No. 22348
January 3, 1997 930 P.2d 1123
On remand from the United States Supreme Court.
Defendant was convicted by the district court of first-degree murder of his girlfriend's
four-year-old daughter, and his conviction was affirmed by the supreme court, 108 Nev. 700,
838 P.2d 921 (1992). On defendant's petition for review, the United States Supreme Court,
Justice Ginsburg, vacated and remanded, 511 U.S. 79, 114 S.Ct. 1280 (1994). On remand, the
Nevada Supreme Court, Shearing, J., held that: (1) Federal Constitution did not require per se
exclusion of confession due to unlawful detention; (2) harmless error analysis applied to
Gerstein/McLaughlin violation for evidence obtained during period of unlawful detention;
and (3) although admission of defendant's statements made during illegal detention may have
been erroneous, error was harmless because statements were substantially same as clearly
admissible statements made at arrest.
Affirmed.
[Rehearing denied May 22, 1997]
Michael Pescetta, Las Vegas; Steven G. McGuire, State Public Defender and Timothy P.
O'Toole, Deputy State Public Defender, Carson City, for Appellant.
and James Tufteland, Chief Deputy District Attorney, and Daniel M. Seaton, Deputy District
1. Criminal Law.
Court is not compelled to exclude evidence obtained in violation of Fourth Amendment if police officer relied in good faith on
warrant. U.S. Const. amend. 4.
2. Criminal Law.
Issue of exclusion of evidence is separate from question of whether Fourth Amendment has been violated, and exclusion is only
appropriate where remedial objectives of the exclusionary rule are served. U.S. Const. amend. 4.
3. Criminal Law.
United States Constitution does not require a per se exclusion of a confession due to unlawful detention. U.S. Const. amend. 4.
4. Criminal Law.
In determining whether circumstances warrant exclusion of evidence obtained during period of unlawful detention, voluntariness
of confession determines its admissibility even though it may have been taken during period of unlawful confinement, and other factors
that must be considered are temporal proximity of arrest and confession, presence of intervening circumstances, and purpose and
flagrancy of official misconduct. U.S. Const. amend. 4.
5. Criminal Law.
Harmless error analysis applies to a Gerstein/McLaughlin violation concerning evidence obtained during period of unlawful
detention.
6. Criminal Law.
Although admission of statements defendant made during period of illegal detention may have been erroneous, possible error was
harmless because defendant's statements during period of illegal detention were substantially the same as clearly admissible statements
defendant made at his arrest, and because other evidence adduced at trial was so compelling that excluding statements made during
period of illegal detention would not have changed result. U.S. Const. amend. 4.
OPINION
By the Court, Shearing, J.:
This case comes to us on remand from the United States Supreme Court. The United
States Supreme Court determined that this court erred in failing to apply County of Riverside
v. McLaughlin, 500 U.S. 44 (1991), retroactively to the case of Kitrich Powell. The case was
remanded to this court for a determination of the appropriate remedy for the delay in
determining probable cause and for a determination as to whether harmless error analysis
applies.
1
Police arrested Powell without a warrant on Friday, November 3, 1989, for felony child
abuse of his girlfriend's four-year-old daughter. Earlier that day, Powell had made several
admissions to the police. On November 7, 1989, while still in custody, Powell made several
more admissions to the police. In an ex parte hearing later that day, a magistrate found for the
first time that probable cause existed to arrest Powell.
__________

1
Powell v. Nevada, 114 S. Ct. 1280 (1994).
On November 8, 1989, Powell was charged with child abuse causing substantial bodily
harm in violation of NRS 200.508. After the child died, Powell was charged with murder. At
trial, prosecutors presented evidence of Powell's statements both before his arrest and on the
day of his probable cause hearing. A jury subsequently found Powell guilty of first degree
murder and sentenced him to death.
On direct appeal Powell claimed, among other things, that he was not brought before a
magistrate within seventy-two hours after his arrest as required by NRS 171.178(3).
2
We held
that Powell had waived his right to a timely arraignment. Powell v. State, 108 Nev. 700, 706,
838 P.2d 921, 925 (1992). However, in the course of our opinion, we noted that in
McLaughlin, 500 U.S. at 56, the United States Supreme Court held that a judicial probable
cause determination must generally be made within forty-eight hours of a warrantless arrest.
Powell, 108 Nev. at 705, 838 P.2d at 924. Relying on McLaughlin, this court held that NRS
171.178(3) violated the Fourth Amendment of the United States Constitution to the extent
that it permitted an initial appearance for a probable cause determination up to seventy-two
hours after an arrest and excluded nonjudicial days from the calculation of the seventy-two
hours.
3
Id.; 838 P.2d at 924.
However, in this court's opinion affirming Powell's conviction, we noted that the
forty-eight hour rule announced in McLaughlin did not apply retroactively to Powell's case.
__________

2
NRS 171.178(3) provides, in pertinent part:
3. If an arrested person is not brought before a magistrate within 72 hours after arrest, excluding nonjudicial days, the magistrate:
(a) Shall give the prosecuting attorney an opportunity to explain the circumstances leading to the delay; and
(b) May release the arrested person if he determines that the person was not brought before a magistrate without unnecessary
delay.

3
In Powell v. State, 108 Nev. 700, 838 P.2d 921 (1992), the court specifically held:
The McLaughlin case renders NRS 171.178(3) unconstitutional insofar that it permits an initial appearance up to seventy-two
hours after arrest and instructs that non-judicial days be excluded from the calculation of those hours. Based on McLaughlin, we
hold that a suspect must come before a magistrate within forty-eight hours, including non-judicial days, for a probable cause
determination.
Id. at 705, 838 P.2d at 924. That holding is misleading and should be revised to read:
The McLaughlin case renders NRS 171.178(3) unconstitutional insofar as it permits a probable cause determination up to
seventy-two hours after arrest and instructs that non-judicial days be excluded from the calculation of those hours. Based on
McLaughlin, we hold that a suspect must receive a probable cause determination within forty-eight hours, either ex parte or
before the magistrate, within forty-eight hours, including non-judicial days.
did not apply retroactively to Powell's case. Id. at 705 n.1; 838 P.2d at 924 n.1. The United
States Supreme Court disagreed on the ground that the rule was applicable to all convictions
which had not become final when McLaughlin was announced. Powell v. Nevada, 511 U.S.
79 (1994). The United States Supreme Court remanded this case to this court for our
determination of the appropriate remedy for the delay in determining probable cause and for
consideration of the argument that the error was harmless.
4
Id.
The United States Supreme Court first recognized the right to a prompt judicial
determination of probable cause in Gerstein v. Pugh, 420 U.S. 103 (1975). Gerstein resolved
two important issues. First, although it required police officers to prove probable cause for
arrests, the Court did not require an adversarial hearing. Id. at 120. Second, the Court stated
that a state's failure to conduct a probable cause hearing is not sufficient in itself to void a
subsequent conviction. Id. at 119.
Gerstein left two important questions unanswered: (1) the timing necessary for a prompt
judicial determination, and (2) the proper remedy for a violation of the Fourth Amendment
right to a prompt probable cause hearing. The United States Supreme Court resolved the first
question in McLaughlin when it held that a jurisdiction that provides judicial determinations
of probable cause within 48 hours of arrest will, as a general matter, comply with the
promptness requirement of Gerstein. McLaughlin, 500 U.S. at 56.
This court must now determine whether the exclusion of evidence obtained during an
unlawful detention is the proper remedy for an unconstitutional denial of the right to a
probable cause hearing within forty-eight hours of arrest, i.e., a Gerstein/McLaughlin
violation.
In Weeks v. United States, 232 U.S. 383, 398 (1914), the United States Supreme Court
first reasoned that evidence obtained in violation of the Fourth Amendment must be excluded
in the federal courts. The Court later increased the breadth of the exclusionary rule by holding
that the rule applied to the states as well as to the federal government. Mapp v. Ohio, 367
U.S. 643, 655 (1961). The Mapp Court reasoned that the Fourth Amendment right carries
with it a most important constitutional privilege, namely, the exclusion of the evidence
which an accused had
__________

4
The United States Supreme Court also raised the issue of the consequences of Powell's failure to raise the federal question, but this
court has the authority to address any constitutional law issue sua sponte; consequently, Powell's failure to raise the federal issue does not
bar this court from considering it. See McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983).
been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right
but in reality to withhold its privilege and enjoyment. Id. at 656.
[Headnote 1]
Recently, the United States Supreme Court has limited the exclusionary rule, apparently abandoning the position that effectuation of
the Fourth Amendment requires unwavering application of the exclusionary rule. The Court has concluded that the exclusionary rule may
not apply in certain forums, including grand jury hearings,
5
actions to recover a tax delinquency,
6
and deportation hearings.
7
Significantly,
the Court has also determined that a court is not compelled to exclude evidence obtained in violation of the Fourth Amendment if a police
officer relied in good faith on a warrant. United States v. Leon, 468 U.S. 897 (1984). In Leon, the Court held that a police officer's good
faith reliance on a magistrate's warrant can sufficiently support the purposes of the Fourth Amendment even when the magistrate's probable
cause determination is erroneous. Id. at 925-26.
[Headnote 2]
In its decision last year in Arizona v. Evans, 514 U.S. 1, 13-14, 115 S. Ct. 1185, 1192-93 (1995), the United States Supreme Court
reiterated its position that the issue of exclusion is separate from the question of whether the Fourth Amendment has been violated, and that
exclusion is only appropriate where the remedial objectives of the exclusionary rule are served. In Evans, a clerical employee mistakenly
failed to delete an arrest warrant from a computer, and a police officer arrested the defendant, pursuant to the warrant, in good faith. Id. at
15, 115 S. Ct. at 1193. The Court concluded that the clerical employee would not be deterred by application of the exclusionary rule, and
reversed the Arizona Supreme Court determination that invocation of the exclusionary rule was appropriate where negligent recordkeeping
resulted in an unlawful arrest. Id. at 15.
[Headnote 3]
Under Evans, it appears that the failure to make a prompt probable cause determination could also be regarded as yet another instance
where the exclusionary rule does not necessarily apply, since the failure to make such a determination does not directly implicate police
conduct. In the instant case, Powell confessed during a period of detention later ruled to be unlawful on the basis that
no probable cause determination had been made within forty-eight hours.
__________

5
United States v. Calandra, 414 U.S. 338 (1974).

6
United States v. Janis, 428 U.S. 433 (1976).

7
Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032 (1984).
confessed during a period of detention later ruled to be unlawful on the basis that no probable
cause determination had been made within forty-eight hours. We conclude that the United
States Constitution does not require the per se exclusion of a confession due to unlawful
detention.
[Headnote 4]
It remains to be determined whether the circumstances of this case warrant exclusion. In State v. Boudreau, 67 Nev. 36, 214 P.2d 135
(1950), this court held:
[T]he voluntary character of a confession is the chief test of its admissibility. . . . [T]his rule should be adhered to in cases where,
as in the instant case, the confession is made while the defendant is under arrest and prior to his presentation before a magistrate,
and though the detention shall have become unlawful.
Id. at 49, 214 P.2d at 141 (emphasis added). Thus, the voluntariness of the confession determines its admissibility even though it may have
taken place during a period of unlawful confinement. To determine the voluntariness of a confession, the court must consider the effect of
the totality of the circumstances on the will of the defendant. The question in each case is whether the defendant's will was overborne when
he confessed. Passama v. State, 103 Nev. 212, 214, 735 P.2d 321,323 (1987) (citations omitted).
However, voluntariness alone is not sufficient:
[I]n order to determine whether a confession obtained during a Fourth Amendment violation is admissible, the following factors,
in addition to voluntariness, must be assessed: (1) the temporal proximity of the arrest and the confession, (2) the presence of
intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. The government has the burden of
showing a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment
violation. Oregon v. Elstad, 470 U.S. 298, 306 (1984).
Arterburn v. State, 111 Nev. 1121, 1126, 901 P.2d 668, 671 (1995) (emphasis added). Thus, when a confession is obtained during a period
of unlawful detention, its voluntariness, as well as the foregoing factors must be evaluated.
[Headnotes 5, 6]
In the instant case, the district court made no determination regarding the voluntariness of the confession nor any of the other pertinent
factors. We conclude, nevertheless, that harmless error analysis applies to a Gerstein/McLaughlin violation. Although the admission of
the statements Powell made during the period of illegal detention may have been erroneous, we conclude that
this possible error was harmless beyond a reasonable doubt, Chapman v. California, 3S6 U.S. 1S {1966),
because Powell's statements during the period of illegal detention were substantially the same as the clearly
admissible statements Powell made at his arrest.
the admission of the statements Powell made during the period of illegal detention may have
been erroneous, we conclude that this possible error was harmless beyond a reasonable doubt,
Chapman v. California, 386 U.S. 18 (1966), because Powell's statements during the period of
illegal detention were substantially the same as the clearly admissible statements Powell
made at his arrest. On both occasions, Powell told the police officers that while he was
playing with the child victim, she fell backwards over his shoulder and hit her head. On both
occasions, he denied ever intentionally injuring the child. Powell also admitted in both
statements that he spanked the child. Furthermore, the other evidence adduced at trial was so
compelling that it is unreasonable to conclude that excluding the statements made during the
period of illegal detention would have changed the result.
We affirm the judgment of the district court.
Steffen, C. J., concurring in result:
I concur in affirming the judgment entered in the district court, but do not agree that the
exclusionary rule should be viewed as part of the armamentaria to be used in remedying or
resolving violations of the Gerstein/McLaughlin rule. The exclusionary rule penalizes truth
and accountability and provides windfalls to criminal defendants. I personally applaud the
United States Supreme Court in progressively retrenching the reach of this inefficacious rule.
The plain fact of the matter is that the exclusionary rule is a failure. There is little evidence
that it deters police misconduct, and it has extremely limited beneficial aspects to society; it
primarily operates to facilitate the avoidance of accountability by criminal defendants.
1
To
conclude, as the majority apparently does, that the exclusion of the most cogent evidence of
guilt should be one of the options for dealing with errors or derelictions performed by clerks,
judges, deputy district attorneys, jail administrators or arresting officers is not, in my view, a
productive ruling. Human error will continue to occur, but now the result may be an added
obstacle to criminal convictions, all to the benefit of criminal defendants who are
undeserving of such judicial largesse.
__________

1
See, e.g., Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970); Schroeder, Deterring Fourth
Amendment Violations: Alternatives to the Exclusionary Rule, 69 Geo. L.J. 1361 (1981); Wilkey, The Exclusionary Rule: Why Suppress
Valid Evidence?, 62 Judicature 214 (1978); Caldwell & Chase, The Unruly Exclusionary Rule: Heeding Justice Blackmun's Call to
Examine the Rule in Light of Changing Judicial Understanding About Its Effects Outside the Courtroom, 78 Marq. L. Rev. 45 (1995);
Ranney, The Exclusionary Rulethe Illusion vs. the Reality, 46 Mont. L. Rev. 298 (1985).
result may be an added obstacle to criminal convictions, all to the benefit of criminal
defendants who are undeserving of such judicial largesse.
There are other methods of dealing with human error that do not penalize society and
create windfalls for criminal defendants. One such remedy for a failure to conduct a probable
cause hearing within forty-eight hours would be to require the release of the defendant, thus
burdening law enforcement authorities with the process of either monitoring the defendant's
whereabouts or relocating him or her after the release in order to effectuate another arrest.
This would promote greater vigilance on the part of the police and other responsible officials
especially with respect to arrestees suspected of violent criminal conduct. It would appear that
release may eventually be required in any event where the defendant's incarceration is
challenged as unlawful under the Gerstein/McLaughlin rule, and in most cases that could
prove more friendly to society than the exclusion of evidence that would render prosecution
impossible or ineffectual.
In any event, I agree with the majority's harmless error analysis and perceive no basis for
granting Powell relief from his judgment and sentence.
For the reasons briefly mentioned above, I concur only in affirming the judgment of the
district court.
Springer, J., concurring in the result:
Although I do not share Chief Justice Steffen's opinion concerning the exclusionary rule, I
agree that the exclusionary rule is not an appropriate remedy where the only Fourth
Amendment infirmity is violation of the Gerstein/McLaughlin rule. I would hold that a
confession given under the circumstances of this case is admissible so long as it is voluntary.
I do not agree with the majority that the additional factors set forth in Oregon v. Elstad, 470
U.S. 298, 306 (1984), and Arterburn v. State, 111 Nev. 1121, 1126, 901 P.2d 668, 671
(1995), must also be applied. Those factors were created to analyze the admissibility of
confessions made by defendants following an unlawful arrest and, on their face, make little
sense in a case such as this.
In the present case, Powell's arrest was eventually determined to have been supported by
probable cause. Moreover, as stated in our earlier opinion: Powell does not challenge the
voluntariness of his statements, nor is there any indication in the record that the statements
were involuntary. Powell v. State, 108 Nev. 700, 706, 838 P.2d 921, 925 (1992). I believe
these facts sufficient to establish the admissibility of Powell's second custodial confession.
Accordingly, I concur only in affirming the judgment and sentence of the district court.
____________
113 Nev. 49, 49 (1997) Skinner v. State
PAUL ANTHONY SKINNER, Appellant, v.
No. 25649
January 3, 1997 930 P.2d 748
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; Jerry Carr Whitehead, Judge.
Petition was filed for writ of habeas corpus based on trial court's failure to inform
petitioner that probation was unavailable for sexual assault. The district court denied petition.
Petitioner appealed. The supreme court held that failure to inform petitioner that probation
was not available entitled petitioner to withdraw guilty plea.
Stephen G. Young, Reno, for Appellant.
Attorney, Washoe County, for Respondent.
1. Criminal Law.
Provision of plea agreement stating defendant's understanding of possible imprisonment for at least five years failed to
affirmatively show that defendant was informed that probation was not available for sexual assault, and, thus, defendant was entitled to
withdraw guilty plea. NRS 176.165.
2. Criminal Law.
Acceptance of guilty plea is fatally defective if record does not affirmatively show that defendant was informed that probation was
not available. NRS 176.165.
3. Criminal Law.
Acceptance of guilty plea without defendant being informed that probation is not available requires that defendant be allowed to
withdraw guilty plea. NRS 176.165.
OPINION
Per Curiam:
On October 17, 1992, appellant Paul Anthony Skinner pulled a young woman into an area
near some trash receptacles along the Truckee River and attempted to penetrate her sexually
with his penis. He then demanded that she perform fellatio upon him. While talking to the
victim, Skinner picked up some change, the victim's driver's license and an address book, all
of which had been dropped by the victim. Skinner allowed the victim to leave, and the victim
reported the incident to the police.
and the victim reported the incident to the police. Skinner was located and positively
identified by the victim. Skinner was discovered to have the victim's driver's license and
address book and approximately $2.25 in change.
On January 4, 1993, the state filed an information charging Skinner with sexual assault,
attempted sexual assault and robbery. Skinner signed a guilty plea memorandum and pleaded
guilty to sexual assault and robbery. In exchange for his guilty plea, the state agreed to
dismiss the attempted sexual assault charge and agreed not to object to the sentence for
robbery being concurrent with the sentence for sexual assault. The guilty plea memorandum
did not mention that probation was not available for the crime of sexual assault.
On April 21, 1993, the district court sentenced Skinner to life for the sexual assault and a
consecutive five-year term for the robbery. During the canvass, the district court failed to
inform Skinner that sexual assault was not a probationable offense.
On October 18, 1993, Skinner filed a post-conviction petition for a writ of habeas corpus.
The district court conducted an evidentiary hearing on February 23, 1994. On March 10,
1994, the district court entered its order denying Skinner's petition.
[Headnote 1]
On appeal, Skinner contends that the district court erred by denying his petition. Specifically, Skinner argues that his guilty plea was
defective because he was not informed that probation was not available for the crime of sexual assault.
[Headnote 2]
This court has held that [w]hether or not probation is available is critical to the defendant's understanding of the consequences of his
guilty plea. Meyer v. State, 95 Nev. 885, 887, 603 P.2d 1066, 1067 (1979). Further, a guilty plea may be withdrawn where the defendant
was not informed, on the record, that probation is not available to one convicted of sexual assault. Id. at 886, 603 P.2d at 1066. If the
record does not affirmatively show that the defendant was informed that probation was not available, the acceptance of the defendant's
guilty plea is fatally defective. Id. at 887, 603 P.2d at 1067.
In determining whether the defendant was informed that probation was not available, the reviewing court is not limited to examination
of the plea canvass. For example, the defendant could be informed in the plea bargain memorandum, or at a pretrial hearing. However, it
must affirmatively appear, somewhere in the record, that the defendant was so informed.
The state argues that Skinner knew that probation was not available because the plea agreement said that he understood that he could
be imprisoned for a period of not less than five years.
he could be imprisoned for a period of not less than five years. This language in the plea
agreement is insufficient because it does not affirmatively show that Skinner was informed
that probation was not available. Further, an understanding that the minimum sentence for a
crime is five years is very different from understanding that probation is not available. We
therefore conclude that the state's argument is without merit.
[Headnote 3]
In the instant case, the record does not show that Skinner was told that probation was not available for sexual assault. Acceptance of a
guilty plea without the defendant being informed that probation is not available requires that the defendant be allowed to withdraw the
guilty plea. Aswegan v. State, 101 Nev. 760, 761, 710 P.2d 83, 83 (1985). We conclude that pursuant to Meyer and Aswegan, the district
court should have granted Skinner's petition and allowed him to withdraw his guilty plea. Accordingly, we reverse the order of the district
court and remand this case for further proceedings consistent with this opinion.
1
__________

1
Because we have concluded that the order of the district court must be reversed on the ground that Skinner was not informed that
probation was not available for the crime of sexual assault, we need not consider Skinner's other contentions.
____________
113 Nev. 51, 51 (1997) Mosley v. Figliuzzi
DONALD M. MOSLEY, Individually, Appellant/Cross-Respondent, v. TERRY MARIE
FIGLIUZZI, Respondent/Cross-Appellant.
No. 26516
January 3, 1997 930 P.2d 1110
Appeal and cross-appeal from an order of the district court dissolving joint legal custody,
awarding sole custody to respondent, and denying respondent's motion for attorney's fees.
Eighth Judicial District Court, Clark County; Steven R. Kosach, Judge.
Mother moved to amend court order to correct alleged irregularities in joint custody
decree. The district court terminated joint custody and awarded sole custody to mother. Father
appealed. The supreme court, Springer, J., held that: (1) trial court should not have terminated
joint custody, and (2) trial court should have considered presumption of preference for joint
custody agreed to by parties and likelihood of one parent allowing child to have frequent
associations or continuing relationship with other parent.
Order changing custody vacated; remanded for further proceedings.
[Rehearing denied August 20, 1997]
Shearing and Rose, JJ., dissented.
Carl E. Lovell, Las Vegas; Jimmerson, Davis & Santoro, Las Vegas, for
Appellant/Cross-Respondent.
Beasley, Holden & Kern, Reno, for Respondent/Cross-Appellant.
1. Parent and Child.
Terminating joint custody and granting sole custody to mother was improper on mother's motion to amend custody order entered
only a few weeks earlier; since mother had not moved for change of custody, father had no notice that she was seeking to terminate his
custody, and nothing indicated change of circumstances occurring after joint custody decree.
2. Infants.
Doctrine of res judicata prevents persons dissatisfied with child custody decrees from filing immediate, repetitive, or serial
motions until right circumstances or right judge allows them to achieve different result based on essentially same facts.
3. Infants.
When judge makes decision on child custody, that decision should not be subject to modification if substantially same set of
circumstances that were present at time of decision remains in effect.
Terminating joint custody and depriving father of fatherhood because of nickname for son Skeeziks would be inherently absurd.
Father's occupation as judge should be given little weight in determining his residential responsibility in joint custody
arrangement.
Trial court that terminated joint custody and awarded sole custody to mother should have considered statutory presumption for
joint custody agreed to by parents, likelihood of one parent or the other allowing child to have frequent associations and continuing
relationship with other parent, and best interests of child, should have stated reasons for denial of joint custody, and should have stated
why parents' difficulties in quarreling over joint custody justified removing child from father's life. NRS 125.460, 125.480(3)(a),
125.490.
Court should be striving to impose as little change from intact two-parent family as possible after parents separate. NRS 125.460.
Court should not terminate joint custody and award sole custody to first parent who claims in court right to sole custody because
of inability to get along with other parent. Awarding sole custody to noncooperative parent because of mutual conflict rewards
uncooperative conduct and unnecessarily deprives child of company of one parent, and would permit one parent to sabotage joint
custody merely by convincing court that bickering with other parent has created situation in which best interest of child requires award
of sole custody. NRS 125.480(3)(a).
OPINION
Donald Mosley, the father of four-year-old Michael Mosley, appeals the judgment of the
trial court which terminated this father's joint legal and physical custody of his son, and
vested sole custody in the child's mother, Terry Figliuzzi.
Shortly after Michael was born, the district court, in accordance with the wishes of the
parents, decreed that the parents should have joint custody, with appropriate residential
arrangements that would accommodate the child's age. Three out of the four times that the
matter of custody came before the district court, the court concluded that joint custody was in
the best interest of the child.
After the third joint custody decree was entered, the mother was successful in having the
matter transferred to a new judge. She then applied for a hearing on her Motion to Amend
Court Order, a motion which she filed less than three weeks after the third joint custody
decree. The stated purpose of her Motion to Amend Court Order was to correct claimed
irregularities in the joint custody decree. The district court held hearings on the mother's
motion to correct the third joint custody order, a motion which did not even suggest that
custody be taken away from the father and given to the mother. For reasons that are not
apparent from the record, the trial court, rather than either granting or denying the mother's
Motion to Amend Court Order, decided to terminate the father's custodial rights and grant
sole custody to the mother.
Apart from the readily apparent procedural defect inherent in the court's terminating the
father's custody without having a change of custody motion before the court, the district court
did not act in accordance with the state statutes relating to custody that were in effect at the
time when it ordered the termination of joint custody. For these reasons the judgment of the
trial court must be reversed.
LITIGATION HISTORY
Michael Mosley was born on February 15, 1992. The first joint custody order was issued
pursuant to a court master's recommendation. In June of 1993, the original joint custody
decree was modified by a superseding Stipulation and Order under which the mother and
father agreed that it was the intention of the parties to reach, when the child is of an
appropriate age, a true 50/50 time share.
In March of 1993, the mother sought to terminate the joint custody arrangement on the
ground that she and the child's father were unable to cooperate, communicate and support
each other as parents and that the child was in need of the stability and structure inherent in
a sole custody situation.
1
The mother's March 1993 motion to dissolve the joint custody
arrangement was not heard until July of 1993. At this time the mother's counsel argued that
joint custody was not appropriate given the friction of the parties and asked that the parents'
joint custody be terminated and that the mother be awarded custody of the child with a 50/50
time share if that can be worked out, so the child is spending good quality time with both
parents. During the July 1993 hearing on the mother's motion for change of custody the
district court asked the mother's counsel directly if, aside from the question of whether joint
custody should continue, she had any philosophical or practical objections to an equal
division of time? The mother answered the court's question by saying, If Don [the father] is
spending the time with Michael, I have never had an objection to that," adding that she did
not "want to divide it up so Michael's life is so disrupted, and he's back and forth every
night, and Don isn't with him."
__________

1
It is appropriate at this juncture to make note of a commonly raised objection to joint physical custody, an objection that eventually
was raised by the mother in this casethat the child would be forced to go back and forth and that the child's life will be disrupted by
being transported from one parent's home to the other's. This disruption is frequently used by psychologists and other experts to defeat
the State's public policy in favor of frequent associations and a continuing relationship with both parents. The debate between those who
claim that shared custody creates an intolerable lack of stability and security in childrens' lives and those who claim that children are
entitled, if it is at all possible, to the influence, love and companionship of both parents has been resolved by NRS 125.460. Still, there are
lawyers and judges who continue to argue that although shared custody may be in the best interests of children, the confusion inherent in
the yo-yo practice of moving the children about outweighs the advantage inherent in custody sharing. It appears now that the social
sciences have resolved this debate, for the present, anyway. Although there are a number of studies relating to this question, the most
extensive study to address the subject is that of Susan Steinman in The Experience of Children in Joint Custody Arrangement: A Report
and Study, 51 American Journal of Orthopsychiatry, 403-414 (1981). Dr. Steinman's study found that three out of four children she
interviewed had no trouble moving back and forth between homes. (Their clarity about their schedules and the location of their homes was
impressive, particularly since some children switched as frequently as several times a week and had numerous places and people to go to
(including school, day care, friends' homes, lessons).) Such studies are not offered as being conclusive on the question, but they do provide
strong evidence that joint custody does not have the degree of adverse impact on children that is predicted by its critics. The impact of these
studies is not that joint custody results in superior adjustment of children; they only stand for the propositions that courts can no longer
safely cite the best interests of the child as reason for refusing to order joint custody and that joint physical custody, of itself, probably
will not make life more difficult for most children than the traditional mother-custody/father-visitation arrangements of the past.
had an objection to that, adding that she did not want to divide it up so Michael's life is so
disrupted, and he's back and forth every night, and Don isn't with him.
After denying the mother's motion to dissolve the joint custody decree, the court in
continuing the joint custody arrangement appropriately commended the parties for their
willingness to share custody on an equal basis, stating that the mother and father were both
intelligent human beings, and each has quite a lot to offer both society and the child. And I
believe that the child's best interests are best served by having a father and a mother both
involved in being responsible for him and sharing time equally with him. (Emphasis added.)
As stated, the court denied the mother's application for sole custody
2
and ruled that joint
custody will continue as previously recommended and twice ordered by other courts with the
division of time . . ., and now is the time to move to the equal division of time which the
parties had stipulated to and was ordered by the previous court.
The court then explained that it understood the disadvantage of moving the children
back and forth, but that, [h]aving recognized that [disadvantage], . . . the advantage of the
child knowing each parent, having a mother and a father, and having only one move per week
outweighs the disadvantages. (Emphasis added.) Based on these considerations the court
ordered joint physical custody, with the child's being with the father approximately half of the
time, with only one transfer per week, the final order being issued on August 26, 1993. At the
time of the entry of this August 26, 1993 decree, the district court adjudged that "the child's
best interests are best served by having a father and a mother involved in being
responsible for him and sharing time equally with him," and by the child's "knowing each
parent, [and] having a mother and a father."
__________

2
Although the district court appeared to have been completely justified by the facts in ordering the continuation of joint custody after
this hearing because of the presumption and preference for joint custody discussed in the text and because a 50/50 time share appears to
have been the continued intention of this mother and father, another basis for denying the mother's attempt to gain sole custody of Michael
is the mother's blatant and perjurious misrepresentations to the court. When the judge went out to what he thought was the mother's home to
inspect the home surroundings of the child while the child was in the mother's custody, the judge discovered that the mother had lied about
where she was living and had taken the judge to a place that was not in fact her residence. Upon being confronted with this fraud on the
court, the mother readily admitted her lies in open court, thus: I misrepresented to the Court that I had been living at that address and that
in fact is not true. The trial judge would certainly have been justified in not accepting other testimony presented by the mother as a witness
in the hearings on the motion.
The court properly admonished the mother in this way: I think it's unfortunate any time a person comes in and lies to the Court. The
first step in getting back on the right track is to tell the truth, begin from there. . . . You lied to us, took us out on a false goose chase, and
we didn't get back until 10:00 o'clock last night.
the child's best interests are best served by having a father and a mother involved in being
responsible for him and sharing time equally with him, and by the child's knowing each
parent, [and] having a mother and a father.
Three joint child custody decrees have been entered in this case. The eventual termination
of joint custody of this child was the outcome of the mother's filing a proper person Motion
to Amend Court Order, filed on September 13, 1993. The mother's motion was filed less
than three weeks after entry of the third joint custody decree of August 26, 1993. The
mother's motion for correction did not seek a termination of the long-standing joint custody
decree or the vesting of sole custody in the mother; rather, the motion merely sought to
amend the Order [of August 26] to more accurately reflect the decisions rendered by the
Court. A proposed Amended Order is attached. The attached Amended Order proposed by
the mother suggested changes in residential arrangements but fully accepted the court's
August 26 findings and conclusions that joint custody is in the best interest of the minor
child, that the parties had stipulated to joint custody, that the child needs both parents and
that after a prescribed time out' between them . . . good sense and fair play will take over in
order that the parties will be able to raise a healthy, happy child. The Amended Order,
proposed by the mother and attached to her motion also recognized the above-quoted
provision that custody shall be divided 50/50, equally, between the parties as was the
intention set forth by the Arbitrator previously and in the Stipulation and Order executed by
the parties previously. The gist of the mother's motion to amend the August 26 decree was to
correct claimed discrepancies between the order and the transcript and to request[] that such
discrepancies be amended to reflect the true decision handed down by the court. The motion
contained no request for a change of custody.
The mother's Motion to Amend Court Order, filed for the stated purpose of correcting
supposed discrepancies between the transcript and the court's order, lay dormant from its
filing in September of 1993 and was not brought to a hearing until June 3, 1994. By the time
of the June 3 hearing, the judge who had been hearing the case disqualified himself, filing a
document on March 15, 1994, in which he stated that he had come into information
concerning the respondent, Terry Marie Figliuzzi and that the information was so
prejudicial against her (such as her attempting to manipulate the judicial process without
consideration for the best interests of the minor child) that he did not believe that he could
continue to judge the case in an impartial and unbiased manner.
On June 3, 1994, a newly-assigned judge, Judge Steven Kosach, held a hearing on the
mother's motion to correct supposed discrepancies in the joint custody decree.
Kosach, held a hearing on the mother's motion to correct supposed discrepancies in the joint
custody decree. No custody decision came out of the June 3 hearing, but the court did enter an
order appointing one Linda Peterson, Ph.D for the purpose of a home evaluation and
evaluation of both parties and their child; and hearing on the Motion to Amend Court Order
was deferred until September 9, 1994, presumably for the purpose of informing the court on
matters relating to residential arrangements under the August 26, 1993, joint custody decree.
On the day before the September 9 hearing on the Motion to Amend Court Order, the mother
presented to the court for the first time the suggestion that she wanted a radical change in
child custody. In a supporting document entitled Summary of Relief Requested by
Respondent Terry Marie Figliuzzi, filed the day before the court hearing, the mother notified
the court and the father for the first time that she thought the previous custody order (of
August 26, 1993) should be changed, and urged that she be granted primary physical
custody of Michael and that the father's visitation with his son be limited and supervised.
On the day before hearing, the mother announced her intention to change her approach
from that of modifying and correcting discrepancies (per the mother's September 1993
Motion to Amend Court Order) to seeking a radical change of custody whereby the father's
custody would be terminated. A reading of this record gives reason to believe that the
mother's change of position from that of correcting discrepancies by way of her Motion to
Amend Court Order to that of trying to deprive the father of custody of Michael was brought
about by forum shopping and was prompted by the mother's being able to remove the judge
who, based on essentially the same set of facts that we now have before us, ordered that the
joint custody of Michael should continue. The procedural aspects of this case are deserving of
some scrutiny.
IMPROPRIETY OF THE TRIAL COURT'S TERMINATING
JOINT CUSTODY BASED ON A PROCEDURAL
MOTION TO AMEND COURT ORDER
[Headnote 1]
The district court did not have before it a motion to terminate the father's custody nor a motion to award sole custody to the mother.
The mother filed her Motion to Amend Court Order only a few weeks after the final August 26, 1993 decree which continued in effect the
previous joint custody decree. The mother did not and could not, of course, seek a change in custody so soon after all matters relating to
child custody had been decided upon by the court.
Two areas of concern are raised by the foregoing. The first is the lack of notice to the
father that the mother was seeking to terminate his custody of his child. In Dagher v. Dagher,
103 Nev. 26, 731 P. 2d 1329 (1987), we ruled that the trial court erred in changing custody
without prior, specific notice of the requested change. Although a memorandum filed by the
mother on the day before the hearing does mention her desire to terminate the father's child
custody rights, as stated, there certainly was not on file a proper motion seeking to terminate
the joint custody.
There being no proper motion for change of custody on file, naturally there was nothing
before the court to indicate any change of circumstances that had occurred after the entry of
the joint custody decree. It is difficult to think of any change of circumstances in this
casethe parents could not get along in the beginning, and they cannot get along in the end.
This quarreling does not mean that one or the other of the parents should be given sole
custody.
[Headnotes 2-5]
We said in Truax v. Truax, 110 Nev. 437, 438, 874 P.2d 10, 11 (1994), that if it is shown that the best interest of the child requires
the modification or termination of a joint custody, [a]ny order for joint custody may be modified or terminated by the court upon the
petition of one or both parents or on the court's own motion. This did not mean that we abandoned the doctrine of res adjudicata in child
custody matters and that persons dissatisfied with custody decrees can file immediate, repetitive, serial motions until the right
circumstances or the right judge allows them to achieve a different result, based on essentially the same facts. The moving party in a
custody proceeding must show that circumstances . . . have substantially changed since the most recent custodial order. . . . Events that took
place before the proceeding [are] inadmissible to establish a change of circumstances.' McMonigle v. McMonigle, 110 Nev. 1407, 1408,
887 P.2d 742, 743 (1994) (quoting Stevens v. Stevens, 810 P.2d 1334, 1336 (Or. Ct. App. 1991)). It is rather obvious that when a judge
makes a decision on child custody, such a decision should not be subject to modification if substantially the same set of circumstances that
were present at the time the decision was made remains in effect. What we said in Truax was that the best interest of the child was
paramount and that we would not allow reliance on a technical failure to allege a change of circumstances to interfere with this paramount
consideration. We certainly did not say or intimate that litigants were to try the same issues over and over again, before different
judges, based on the same predicate facts.3
over again, before different judges, based on the same predicate facts.
3
The dissent remarks that it is clear from the pleadings and the history of the proceedings
that both parties wanted to litigate the custody issue. This is not true. It certainly cannot be
said that this father wanted to litigate the custody issue all over again when it had just been
decidedfor the third time.
__________

3
We note that at the hearing on the Motion to Amend Court Order the mother did try to embellish her case by showing some
circumstances that were not related to her principal ground for seeking sole custody, which was the parents' inability to get along with each
other. Two new items that came up in the last hearing are the father's calling the child by a nickname, Skeeziks (Skeezix, of cartoon
fame) and the father's creating a danger to the child by supposedly leaving loaded weapons around the house. Neither of these matters have
any substance.
The nickname contention is almost laughable. The father has gotten into the habit of calling his son Skeeziks. Using this nickname,
says the mother's child psychology expert, Dr. Marks, creates a danger of having a profound and adverse effect on the development of the
minor child. The contention that the father should be deprived of his fatherhood because he calls Michael Skeeziks must be rejected on
the ground of inherent absurdity.
The loaded gun argument is also rather obviously a shallow attempt to show some ground for terminating joint custody other than
that of the parties' continuing conflict. Dr. Linda Peterson relied in her report to the court on the father's keeping a loaded gun under his
pillow. On cross-examination, Dr. Peterson admitted that her home visit did not reveal this condition in the father's home, but, rather, her
investigation revealed a gun in a cabinet, and she did not know whether the gun was loaded or not. We do not find in this record a case for
the proposition that the father, Judge Mosley, is so careless about leaving loaded weapons at the disposal of his son that he is not entitled to
custody.
There is one other possible factor that might have been considered that was not before the court at the August 26, 1993 hearing. As
mentioned, the court appointed Linda Peterson, Ph.D., to make an evaluation and recommendation in this case. She expressed the opinion
that Michael's best interests would be served by depriving him of his father. Dr. Peterson's opinion was based on the mutual conflict of the
parties and on another interesting factor, the father's being a judge. Speaking of the father's profession, Dr. Peterson had this to say:
Where people are very preoccupied with other issues in their livesand I would characterize Don [Judge Mosley] in that fashion
in the reportwhere they have to consider the needs of many. And have a very demanding job, that is a factor that I have to factor
in on the case.
That the father should be denied custody because he is a judge is somewhat more sensible than Dr. Mark's opinion that calling Michael
by a nickname may have a profound and adverse effect on the development of the minor child; but we trust, if this matter comes before
the court again, that not much weight will be given to the father's occupation in the making of a determination of how much residential
responsibility should be given to him when this allocation is made in accordance with the directions given in this opinion.
it had just been decidedfor the third time. There is no reason to believe that he was anxious
to put his custody rights unnecessarily in jeopardy. The Motion to Amend Court Order sought
only minor amendments relating to residential arrangements only. There was no reason for
the father to believe that the court's wanting a home evaluation had anything to do with other
than the fine-tuning of residential responsibilities and periodic allocations of time with each
of the parents. The father was of course bound by the court's sua sponte directions in this
regard; but this does not give notice to the father that the mother had intentions of depriving
him of his son altogether. As stated above, the father did not know that this was the mother's
intention until the day before the hearing. This can hardly be considered as proper notice for a
hearing that would result in the father's losing his child. See Dagher, above. It is not
reasonable, under these circumstances, for the dissent to suggest that the father consented in
any way to re-litigate the issue of custody as distinguished from merely settling issues relating
to residential arrangements, a subject that had been the matter of periodic dispute between the
parties.
PRESUMPTION, PREFERENCE AND
COOPERATIVENESS IN JOINT
CUSTODY CASES
[Headnote 6]
NRS 125.490 provides that when parents have agreed to an award of joint custody (as was the case here), there is a presumption,
affecting the burden of proof, that the joint custody would be in the best interest of the minor child and a statutory order of preference
which states as a first preference an award to both parents jointly unless the court is willing to state in its decision the reasons for the
denial of joint custody. It does not appear from our reading of the record that in terminating joint custody the court gave effect to the stated
presumption or preference or that it stated in its decision any reason for denying joint custody.
NRS 125.460 dictates the public policy of this state in child custody matters. The policy is that the best interests of children are served
by frequent associations and a continuing relationship with both parents and by a sharing of parental rights and responsibilities of child
rearing. It is clear from the testimony on this Motion to Amend Court Order and from the statements and rulings of the court that the
decision to deprive the father of custody was brought about almost entirely by the fact that these two parents could not get along together
and were having great difficulties in being cooperative in matters relating to their joint custody.
custody. If the bickering and chronic disagreement was so severe as to affect the welfare and
upbringing of Michael, then (after considering which parent was the more cooperative) this
might have been a ground for altering the joint custody decree, if there had been a proper
motion with reasonable notice and if reasons had been stated in the decree. If the trial court
had had a proper motion before it and had decided to terminate the preferential joint custody,
the court was bound under NRS 125.490 to state the reasons for its denial of joint custody
and to state why the difficulties that the parents were having justified removing the child's
father from his life. None of these requirements has been fulfilled in this case.
Cooperativeness of the parents in child custody matters is another factor that must be
considered in cases like this one. NRS 125.480(3)(a) provides that when awarding custody
to either parent, the court shall consider, among other factors, which parent is more likely to
allow the child to have frequent associations and a continuing relationship with the
noncustodial parent.
4
(Emphasis added.) This prudent legislative directive rewards
cooperativeness and punishes obstinacy. If the court had had a proper motion before it and
had properly considered the mentioned statutory presumption and preference for joint
custody, it was still obligatory for the court to consider, among other factors, which parent
was more likely to allow a continuing relationship with the other parent. There is nothing in
this record to indicate that the court abided by the statutory requirement that it "shall
consider" this cooperation factor before it awarded sole custody to the mother.
__________

4
We make note that the policy statement adopted by the Nevada Legislature favoring frequent associations and a continuing
relationship with both parents and which encourages parents to share equally parental responsibilities after separation represents a
substantial departure from the cultural assumptions which have been accepted in child custody decisions for many years. Prior to the
enactment of the present statute, except in cases of obvious unfitness of the mother, children were almost always awarded to the mother
after separation or divorce. This arrangement was based on the generalization that mothers are usually better parents than fathers. This
assumption was expressly done away with by our legislature when it declared that no preference in custody matters should be given for the
sole reason that the parent is the mother or the father. NRS 125.480(2). Nevada has recognized that raising children is not the exclusive
province of women any more than work outside the home is the exclusive province of men. Unfortunately, such legislative declarations are
slow to be accepted, and very often, the best interests of the child is viewed by parents and family court judges to mean, still, custody
with a primary custodian, almost always the mother, with intermittent visitation privileges being granted to the father. It is, then,
commendable that in this case both the parents and the court sought and provided for an arrangement in which Nevada's public policy
favoring shared parenting after separation would be carried out. It is indeed unfortunate and clearly contrary to the best interest of their
child that these parents were unable to persevere in their original parenting plan and that the mother felt compelled to try to deprive the
father of his custodial rights.
to indicate that the court abided by the statutory requirement that it shall consider this
cooperation factor before it awarded sole custody to the mother. If the mother decides to file a
proper motion to change custody, a ruling must be made on this issue if the court is going to
rescind the joint custody decree.
Because there was no motion, timely or otherwise, to change custody before the court,
because no due consideration was given to the presumption and preference for joint custody,
because no consideration was given by the trial court to the question of which parent is more
likely to allow Michael to have frequent associations and a continuing relationship with the
other parent, and because it does not appear from this record that the best interest of Michael
will be served by removing his father from his life, the judgment of the trial court must be
reversed.
SOME OBSERVATIONS ON SHARED CUSTODY AND THE
BEST INTEREST OF THE CHILD
Because the mother may in the future seek, by proper means, to attack the joint custody
decree of August 26, 1993, and because it is rather apparent that the trial court, in ruling on
the mother's Motion to Amend Court Order, did not, in ordering the subject termination of
joint custody, consider all of the statutory requisites relating to best interest of the child, we
deem it appropriate to comment on this vital aspect of child custody adjudication.
The enactment of NRS 125.460,
5
in 1981, was a remarkable historical event. Throughout
most history legislatures and courts have been blind to the reality that most children are in
most cases much better off, after their parents separate, if they can continue to have two
parents rather than only one.
6
The realization that children are better off with both parents has been a long time in
coming. Throughout most child-custody litigation in the past, the child was "awarded" to
one parent or the other; one parent "won" custody, and the other "lost."
__________

5
NRS 125.460 provides:
125.460. State policy. The legislature declares that it is the policy of this state:
1. 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
2. To encourage such parents to share the rights and responsibilities of child rearing.

6
We must face the reality that when the court deprived Michael of his father, it was placing the child at great risk. As put recently by
Wade F. Horn, Ph.D., former United States Commissioner for Children, If you look at any measure of child well-being you see that kids
are placed at great risk when they grow up absent their fathers. They are more likely to have psychological problems, abuse drugs and
alcohol, live in poverty and fail in school. Seventy percent of kids in state reform institutions grew up without fathers.
litigation in the past, the child was awarded to one parent or the other; one parent won
custody, and the other lost. In either case, the child lost because the child was in many cases
unnecessarily deprived of one parent. Courts, until recently, seem to have been unable to
grasp the rather simple fact that most children have two loving parents and are entitled to the
love of bothto the greatest extent possiblein the event that the two parents decide not to
live together in one household.
Throughout most history, and in much of the world today, the law has contained a strong
or conclusive presumption that sole custody should be awarded to the father in all cases of
family dissolution. In this country, the paternal preference started changing as the industrial
revolution accelerated through the 19th century when fathers were being pushed out of family
farms and other family enterprises into the factories. This started the trend toward maternal
preference that became almost as absolute as the paternal preference had been before.
As the trend toward maternal preference developed, social theorists began to define rather
rigid sex role separations with the father being seen as the external wage earner and the
mother as a home-bound nurturer. Eventually the trend developed to the point where there
was an almost complete swing of the pendulum, resulting in what came to be known as the
tender years doctrine, under which exclusive custody was awarded almost automatically to
the mother, with the same rigidity as the earlier awards of automatic custody to the father.
As of late, the tender years doctrine has gone out of vogue, and the law has been
advancing, both legislatively and judicially to the point of recognizing that either father or
mother could be safely adjudged to be the better parent.
7
After this recognition, the next step
was the recognition that the best parent is both parents.
There is presently a broad political and scientific consensus that children do better when
they have two actively involved parents.
8
By encouraging frequent associations and a
continuing relationship with both parents" and by enacting the joint custody preference
statute our legislature was recognizing the importance of encouraging family
preservation after separation and divorce and the vital necessity for maintaining both
paternal and maternal influences on children to the greatest extent possible.
__________

7
For approximately ten years the pendulum has been swinging to a more centered position. Most states have abrogated the tender
years doctrine as a violation of equal protection, and virtually all states base custody decisions on best interests rather than by reference to
the parents' gender. In 1991, Nevada expressly recognized that [n]o preference may be given to either parent for the sole reason that the
parent is the mother or the father of the child. NRS 125.480(2).

8
For example:
With unanimity of view that is virtually unparalleled, social science researchers have documented the fact that children of divorce
or unwed birth fair poorly in comparison to children from intact families. Regardless of the social problem which is under
consideration, whether
relationship with both parents and by enacting the joint custody preference statute our
legislature was recognizing the importance of encouraging family preservation after
separation and divorce and the vital necessity for maintaining both paternal and maternal
influences on children to the greatest extent possible. The legislature has recognized that the
key to preserving the best interests of the child lies in accepting the principle that it is not
necessary for the courts, in child custody decrees, to perform a parentectomy.
9
[Headnote 7]
The record in this case discloses that both parents are good parents and genuinely love Michael and that both parents want to function
as parents and not as occasional visitors. The courts should continue to seek to preserve for Michael, and for other children, as much as
possible of the benefits that we know to flow from full, active, emotional and physical relationships between children and both of their
parents. Thus, the courts should be striving to impose as little change from the intact two-parent family as possible after the parents
separate. This is exactly what the court did for most of Michael's life and until the order entered in this case, when the parentectomy was
performed, excising Michael's father from Michael's life.
The termination of this father's custody could very easily be perceived as being an unnecessary parentectomy and in a certain sense, a
parricide. The question that must be addressed by the trial court now is whether, after the parties agreed to joint custody and after three
judges awarded joint custody to the mother and father, it is necessary and in the best interests of Michael to sever the joint custody and to
alter the agreed-upon 50/50 custody arrangement. Is it necessary and in the best interest of Michael that this father, who so wants to be
actively engaged in the upbringing of his son, must become a stranger to his son and another every-other-week-end father?
We stress the risks that are involved in terminating the joint custody in this case and in changing father-custody to father-visitation. As
we point out throughout this opinion, significant differences do emerge in social science studies between one-parent and
two-parent families, differences that will most likely affect the future life of Michael.
__________
it be drug abuse, juvenile delinquency, teenage pregnancy, low self-esteem, poor academic achievement, or even suicide, research
points to family breakdown as a primary cause.
Children, Family, Neighborhood, Community: An Empowerment Agenda, American Legislative Exchange Council (1991).

9
Preventing Parentectomy After Divorce, Frank S. Williams, M.D., Director of Family and Child Psychology, Director or Programs
for Children and Families in Divorce, Cedars-Sinai Medical Center of Los Angeles, California (1990).
differences do emerge in social science studies between one-parent and two-parent families,
differences that will most likely affect the future life of Michael.
10
SOME OBSERVATIONS ON DEPRIVING A CHILD OF ONE
OF ITS PARENTS ON THE GROUND THAT THE
PARENTS CANNOT GET ALONG TOGETHER
With respect to the parties' continued bickering and inability to get along with each other,
we note that the basic thrust of the mother's present position is that the father's custody must
be ended because the father and she could not get along with each other. She takes this
position even though she had formally stipulated with the child's father to the entry of a joint
custody decree and even though on three different occasions judges have decreed that the best
interest of the child dictate joint custody with equal physical custody being enjoyed by both
parents. She takes this position even though she declines to lay the blame for this unhappy
condition on either her husband or her. It would appear that the father is being made to suffer
all of the adverse consequences relating to this condition, irrespective of which party brought
it about.
Although other reasons have been suggested by the mother in her efforts to win custody
in this case, it is quite clear that all of her claims get down to the simple assertion that
Michael's parents are at such odds with each other that the father must be cut out of the child's
life. A basic question that must be answered in this case is, then, whether Michael should be
denied the custodial care of one of his parents because of the parents' mutual fault in being
unable to make suitable arrangements for joint physical custody.
The district court had already recognized and dealt with the disagreeable parents problem
in its August 28, 1993 decree. The court discussed the dispute that exists between the
parties but concluded that with a time out, with only one transfer per week and with some
third party mediation, a substantially equal sharing of custody was feasible and in the best
interest of the child. The decree which we now have under review, the September 30, 1994
decree, comes to the opposite conclusion on virtually the same facts {with the exception
of Dr.
__________

10
In 1965, Patrick Moynihan was criticized for making the following observation on the consequences of family breakdown;
Moynihan's heresy in 1965 probably reflects the consensus today:
From the wild Irish slums of the 19th century eastern seaboard, to the riot torn suburbs of Los Angeles, there is one unmistakable
lesson on American history: A community that allows a large number of men to grow up in broken families, dominated by women,
never acquiring any stable relationship to male authority, never acquiring any rational expectations about the futurethat
community asks for and gets chaos.
1994 decree, comes to the opposite conclusion on virtually the same facts (with the exception
of Dr. Peterson's testimony,
11
the Skeeziks testimony and the loaded-gun-under-the-pillow
testimony). The questionable assumption behind the September 30, 1994 decree, now under
review, is that the parties do not get along, that they are never going to be able to get along,
and that, therefore, one or the other of the parties must be denied custody of Michael. It is this
assumption (the assumption that in cases involving parents who cannot agree on the times
and manner of distributing joint residential responsibilities, one or the other of the parents
must lose custody and meaningful, healthy contact with the child) and the accompanying
reality that Michael is now being deprived of his father that we now address in this opinion.
[Headnote 8]
The danger that arises in situations involving two, equally-competent but chronically conflicting parents is seen in cases in which a
father might come in and say, in effect, I cannot get along with the mother of my child; therefore, the court must award sole custody to me,
the father. The court's accepting this kind of argument has the effect of permitting one uncooperative parent to deprive a child of either his
mother or his father, merely by establishing that the parents are in conflict. Proving the existence of a conflict between parents could, thus,
allow the complaining party to win
12
a custody battle. The prize should not automatically go to the parent who comes before the court
and tells the court, as did the mother in this case, something to this effect: I told the court before; we cannot get along and are not going to
get along in the futuretherefore, the best interests of the child requires that you give me the sole custody. Parental conflict almost always
involves some fault on the part of each parent. To permit one non-cooperative parent to come in and get sole custody just because of a
mutual conflict not only rewards uncooperative conduct but also, as said before, unnecessarily deprives the child of the company
of one or the other of his or her parents.
__________

11
We note that Dr. Peterson's report and recommendation was, for some reason, timely delivered to the mother but was not given to
the father until the day before the hearing.

12
Courts are accustomed to adversarial presentations that are resolved by the selection of a winner and a loser. The system works well
in commercial disputes. The court picks a winner and a loser; the loser is ordered to pay the winner, then we move on to the next case. The
difference in domestic relations cases is that it is immoral and destructive to treat children as prizes to be awarded to a winner and denied to
a loser.
The mother won this case, but by removing the child's father from his life, she really loses, as, certainly, does the child.
Every-other-week-end visitation effectively takes Michael's father away. This is not the kind of victory that we want to see in our
family courts.
deprives the child of the company of one or the other of his or her parents.
If the decree terminating joint custody were allowed to stand, the mother would have
won the case, having been rewarded with an award of full custody. The father would
have lost and would have been punished by being deprived of the equal custody that he
formerly hadall because (as put by the trial judge in the decision that is now under review)
two people . . . are extremely hostile and distrustful towards one another. (Emphasis
added.) In the case now before us the court found that there is no chance that the parties
[both of them] can agree on anything having to do with their child, let alone attempt to
resolve their differences themselves, even with professional help. It is notable that the trial
judge did not assign a majority of the fault to one party or the other and that, throughout, the
assumption is that both parties are relatively equally at fault in their failure to put their son's
welfare above their own personal bickering. What should the court do, then, when two
parents want to have equal custody of their child but are unable to agree about what to do
with respect to making arrangements for the equal sharing of custody? Quite obviously the
courts should not grant custody to the first parent who comes in and claims that the child
should be awarded to the complaining party because he or she cannot get along with the other
parent. To permit this to happen would permit one parent to sabotage a joint custody merely
by convincing the court that his or her bickering with the other parent has created a situation
in which the best interest of the child requires that the child be awarded to the
complaining party. In this kind of scenario the more aggressive and hostile parent is more
likely to win and thus become the sole custodian of the child, while the more cooperative
parent who did not have the presence of mind to seek sole custody on the ground that the
parents were warring, becomes a marginal, no-real-contact parent. Fortunately, NRS
125.480(3)(a) is designed to keep this from happening and favors the parent who is more
likely to allow the child to have frequent associations and a continuing relationship with the
other parent.
We look to the District of Columbia for an insightful discussion of the importance of
favoring the cooperative parent in making residential allocation in cases where joint custody
is adjudged not to be in the best interests of the child. In Prost v. Greene, 652 A.2d 621 (D.C.
Cir. 1995), the District of Columbia Court of Appeals recognized and approved the propriety
of considering the relative cooperativeness of the two parents in allocating residential
responsibility. The court validated the trial court's finding that it is overwhelmingly in the
childrens' best interests that they spend substantial time with both their parents" and
recognized that "determining that the best interest of the child requires developing the
best possible relationship with both parents."
interests that they spend substantial time with both their parents and recognized that
determining that the best interest of the child requires developing the best possible
relationship with both parents. Id. at 628. The court expressed its approval of the idea that
conduct by one parent which interferes with the fulfillment of children's need for the
guidance and love of [the other parent] may have a serious effect on the welfare of children,
(Id. at 628 (citing Kahn v. Kahn, 252 A.2d 901 (D. C. 1969)) and noted that, [i]ndeed, some
jurisdictions [like Nevada] by statute require a court, in determining custody, to consider a
parent's willingness and ability to promote a positive relationship between children and the
other parent. (Citing Katherine Kataz, Custody Disputes Between Parents, in 2 Child
Custody and Visitation Law and Practice, at 10-115 and note 44, q. v.)
In the Prost case, Judge Harriet Taylor of the Superior Court of the District of Columbia
granted custody to the father (Greene) of the two minor children of the parties and granted
visitation rights to the mother.
13
It does not appear in the Prost case how extensive the
visitation rights were, but the court's language would indicate that it extended well beyond
partial visitation on every other week-end. This is evidenced by a number of the Prost trial
judge's statements in her memorandum opinion; for example: It is important that the
children maintain substantial and regular contact with both parents so that they can realize
and reap the benefits of the love, the support and the individual personalities of both their
mother and their father . . . . Prost, 652 A.2d at 625 n.5.
The Prost trial judge's decision to make the father the majority custodian appears to have
been based principally on her observations of the uncooperative nature of the mother and of
repeated instances of [in]flexib[ility]' by [the mother] which bode[] ill for both the
atmosphere and the extent of the time that she would permit the children to spend with their
father (regardless of any court order) . . . .' Id. at 625.
On appeal, the mother attacked the trial court's improper focus on Prost's interaction with
Greene, claiming that the court gave too much attention to the "negative aspects of
Prost's relationship with Greene."
__________

13
Apropos to the case now before us, Judge Taylor cautioned the mother and father in Prost, in her memorandum opinion, as follows:
The parties should be ashamed of themselves, but it does not appear that they are. These two highly-educated, talented and
politically astute adults, with responsible positions that affect thousands of lives, have not found it within themselves to put aside
their differences, to call a halt to the hostilities, for the sake of the children they profess to love and, the Court believes, truly do
love.
The parties must turn that picture around. They must remember and convey that both parents are important to their children's
development into independent, well-rounded, confident adults.
gave too much attention to the negative aspects of Prost's relationship with Greene. The
Court of Appeals rejected this argument and approved of the trial court's recognition of the
importance of the relationship between the mother and father, especially as concerns a factor
that was paramount for the judge: which parent would predictably cooperate most in
according the other a regular and substantial role in the children's lives. Id. at 627.
In the proceedings which terminated the joint custody in this case and which allocated
custody in a manner that virtually shuts the father out from his son's life, no consideration
was given by the court to the vital factor, which parent is more likely to allow the child to
have frequent associations and a continuing relationship with the noncustodial parent (NRS
125.480(3)) or, as put in Prost, which parent would predictably cooperate most in according
the other a regular and substantial role in the children's lives.
Should the mother file a proper motion for the change of child custody in the district court,
the court should pay heed in a case of this nature to the cooperation factor discussed above.
The judgment of the trial court is reversed, and the August 26, 1993, joint custody decree
shall remain in force and effect until such time, if any, as the decree is modified by the district
court in a manner that is in accordance with this opinion.
Steffen, C. J., and Wagner, D. J., concur.
14
Shearing, J., dissenting, with whom Rose, J., concurs:
I would affirm the judgment of the district court.
In March 1993, the mother filed a motion for modification of joint custody. The motion
requested, inter alia, that the mother be awarded sole legal and physical custody of the
minor child. After a hearing on the matter, the district judge ordered that joint legal custody
continue with virtually equal physical custody. On September 13, 1993, the mother filed a
motion to amend the court order.
A period of acrimonious court proceedings involving visitation and other issues followed.
On May 31, 1994, the father filed an opposition to the mother's motions for relief and in his
prayer for relief requested [t]hat both Respondent and Petitioner be Ordered to have
psychiatric evaluations by the same psychiatrist selected by this court. Both parties had
previously agreed to be subjected to home studies and psychological evaluations, but
apparently no such studies or evaluations had been made.
__________

14
The Honorable Richard Wagner, Judge of the Sixth Judicial District Court, was designated by the Governor to sit in place of The
Honorable Cliff Young, Justice. Nev. Const. art. 6, 4.
apparently no such studies or evaluations had been made. A hearing was held on June 3,
1994, at which numerous witnesses testified. After the hearing, the district judge ordered that
Dr. Linda W. Peterson, a psychologist, conduct an evaluation of the home environment, the
parties and the child. The district judge ordered that Dr. Peterson report to the court with her
findings and recommendations, after which another hearing would be held. The district court
also ordered that [f]ollowing the conclusion of the hearing and a report to the Court from Dr.
Peterson, this Court will make a determination as to custody. A further hearing with
additional testimony was conducted on September 9, 1994. Both mother and father
participated fully in all the proceedings with no objection.
Neither party on appeal has raised the issue of whether child custody was properly at issue
before the district court and it is clear from the pleadings and the history of the proceedings
that both parties wanted to litigate the custody issue. Yet the majority would hold that a
procedural defect is fatal. NRCP 15(b) provides:
When issues not raised by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any party at any time,
even after judgment; but failure so to amend does not affect the result of the trial of
these issues.
The custody of Michael was appropriately tried by the district court with the parties' consent.
After the hearings, the district court made extensive findings of fact and concluded that
Michael's best interests would be served by vesting sole legal custody in the mother. The
court found the following:
Testimony given to this Court presents two people who are extremely hostile and
distrustful towards one another. . . . The parents focus this venom towards one another,
under no uncertain terms, and in virtually every place the two meet. They cannot affect
even a custodial exchange of the child, Michael, without major disputes, even though
both profess to love him. . . .
There is no chance, based on the evidence produced in both days of testimony, that
the parties can agree on anything to do with their child, let alone attempt to resolve their
differences themselves, even with professional help.
The Court went on to make detailed findings regarding the parties and their interaction
with Michael which justify overcoming the presumption in favor of joint custody. Based on
these findings, the court concluded that Michael would be safer, more warmly loved and
more daily nurtured with the mother, in the mother's home. The court specified visitation
and child support, which neither party appealed. The court also denied attorney fees to both
parties, which the parties did appeal.
In a child custody case, the district court's foremost concern is the welfare of the child.
Culbertson v. Culbertson, 91 Nev. 230, 233, 533 P.2d 768, 770 (1975). It is presumed that the
district court properly exercised its judicial discretion in determining the best interests of the
child. Id. The determination will not be overturned absent a clear abuse of discretion. Id.
There is absolutely no indication that the court abused its discretion. On the contrary, the
court made extensive findings which fully justify its conclusion and order, both as to child
custody and attorney fees. Therefore, I would affirm the order of the district court.
____________
113 Nev. 71, 71 (1997) Reynolds Elec. v. State, Dep't Taxation
REYNOLDS ELECTRICAL & ENGINEERING CO., INC., Appellant, v. THE STATE OF
NEVADA, THE NEVADA DEPARTMENT OF TAXATION, and the NEVADA TAX
COMMISSION, Respondents.
No. 27107
January 3, 1997 930 P.2d 746
Appeal from a district court judgment affirming in part and reversing in part an order of
the Nevada Department of Taxation assessing taxes against appellant. First Judicial District
Court, Carson City; Michael R. Griffin, Judge.
Public contractor that administered sale of United States government property by auction
challenged sales tax assessment. District court upheld assessment, and taxpayer appealed. The
supreme court held that public contractor did not qualify as retailer subject to sales tax
when it sold United States property at auction.
Shearing, J., dissented.
Booker T. Evans, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, John S. Bartlett, Deputy Attorney General,
Carson City, for Respondent.
Taxation.
Public contractor that administered sale of United States government property at auction did not qualify as retailer subject to
sales tax when it sold such property. NRS 372.055(1)(a), 372.105.
OPINION
Per Curiam:
Appellant Reynolds Electrical & Engineering Company, Inc. (REECo), under a
management and operating contract with the United States, manages auctions of surplus
federal government property. The Nevada Department of Taxation (Department) ordered
REECo to pay state sales tax on sales of United States property. REECo appealed the order,
and a Department hearing officer affirmed REECo's liability. The Nevada Tax Commission
reviewed REECo's appeal and affirmed the hearing officer's determination. REECo sought
judicial review, and the district court affirmed the Commission's order. We conclude that
REECo is not a retailer under NRS 372.105 and therefore is exempt from sales tax liability.
Accordingly, we reverse the judgment of the district court.
Reynolds Electrical & Engineering Company, Inc., a private, for-profit corporation,
operating under a management and operating contract with the United States Department of
Energy (DOE), administers the sale of United States government property at the Nevada Test
Site. REECo conducts auction sales pursuant to extensive procedures set forth in the Federal
Property Management Regulations (41 CFR 101-45.304 (1995) (Sales Procedures)), and
is subject to DOE supervision throughout the liquidation process. Title to property is
transferred directly from the United States to the purchaser. At no time does REECo hold title
to the property. The purchaser pays REECo either in cash or by check made payable to
REECo. REECo also handles the advertising and publicity for these government surplus
sales.
The present dispute arose in April 1993 when the Nevada Department of Taxation served a
Notice of Audit Deficiency (Assessment) on REECo for the three-year period from January
1, 1990, through December 31, 1992. In the Assessment, the Department asserted that
REECo owed a deficiency in sales and use tax. REECo paid part of the alleged deficiency,
and filed a petition for redetermination regarding the remaining amount.
Subsequently, the Department held an evidentiary hearing. The hearing officer upheld that
portion of the Assessment related to sales tax on the sale of United States property to private
buyers. REECo appealed the hearing officer's order to the Nevada Tax Commission, which
affirmed the decision. REECo then filed a petition for judicial review in the district court.
petition for judicial review in the district court. The district court affirmed the imposition of
state sales taxes on REECo's sale of United States property to private buyers.
REECo brought this appeal challenging the district court's decision, claiming that it is
inconsistent with Nevada statutes. Specifically, REECo claims that it does not meet the
statutory definition of a retailer, and therefore is not subject to Nevada sales tax.
Alternatively, REECo claims that the imposition of state sales tax on sales of United States
property invalidly infringes on the federal government's constitutional tax immunity.
REECo contends that it is exempted from Nevada sales tax, noting that NRS 372.105
imposes sales tax only on retailers selling tangible personal property. NRS 372.055(1)(a)
defines a retailer as every seller who makes any retail sale or sales of tangible personal
property, and every person engaged in the business of making retail sales at auction of
tangible personal property owned by the person or others. The statute further provides that
person shall include any individual, firm, . . . corporation, . . . but shall not include the
United States, this state or any agency thereof, or any city, county, district or other political
subdivison of this state. NRS 372.040 (emphasis added). We conclude that others in NRS
372.055(1)(a) (every person engaged in the business of making retail sales at auction of
tangible personal property owned by the person or others) is intended to refer to other
persons. See Wilshire Westwood Assoc. v. Atlantic Richfield Corp., 881 F.2d 801, 804 (9th
Cir. 1989) (doctrine of last antecedent provides that qualifying words, phrases and classes
must be applied only to words immediately preceding them).
Specifically excluding government entities from its definition of person, the legislature
clearly set them apart from other entities. By selecting to use the term person in defining a
retailer, the legislature exempted sales of government property, including that owned by the
United States, from state sales tax liability.
REECo does not sell its own property, but sells property of the United States. The United
States is not a person or an other as defined in NRS 372.040. Therefore, REECo is not a
retailer within the meaning of the state sales tax statute. Because REECo is not a retailer
when it sells United States property at auction, the Department is without statutory authority
to levy sales tax on these sales.
1
__________

1
Due to our determination that sales tax is inappropriate in this instance, this court need not reach REECo's contention that imposing
Nevada sales tax on its sale of United States property would violate the Supremacy Clause. U.S. Const. art. VI, cl. 2.
We, therefore, reverse the judgment of the district court and remand for entry of judgment
consistent with this opinion.
I would affirm the judgment of the district court. I do not agree with the majority's
interpretation of NRS 372.055.
It appears to me that Reynolds Electrical & Engineering Co. is a retailer within the
definition of retailer set forth in NRS 372.055 in that it was engaged in the business of
making retail sales at auction of tangible personal property owned by the person or others.
The majority seems to believe that others is somehow limited by the definition of person
in NRS 372.040. The rule of construction referred to by the majority as the doctrine of last
antecedent does not apply here. The doctrine of last antecedent clause applies to qualifying
phrases which follow the series to be interpreted. There is no qualifying phrase following
others. There is nothing else in the statute which limits the definition of others and there
is no question that REECo was making retail sales of the property of others. REECo is
therefore subject to the tax.
____________
113 Nev. 74, 74 (1997) Boulter v. Boulter
RONALD O. BOULTER, Appellant, v.
NOLEEN BOULTER, Respondent.
No. 27228
January 3, 1997 930 P.2d 112
Appeal from order awarding attorney's fees and compelling enforcement of divorce decree.
First Judicial District Court, Carson City; Jack B. Ames, Judge.
Former wife filed motion for order compelling enforcement of property settlement
agreement incorporated into divorce decree. The district court granted motion and awarded
attorney fees and costs to former wife. Appeal was taken. The supreme court held that: (1)
state court divorce decree incorporating property settlement agreement to divide social
security retirement benefits constituted state action preempted by federal Social Security Act
provision barring transfer of benefits, and (2) property settlement agreement was invalid
contract to transfer retirement benefits before former husband was eligible to receive them,
rather than mere agreement on use of social security proceeds once received.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Karen A. Peterson, Carson
City, for Appellant.
Leslie J. Shaw, Stateline, for Respondent.
1. Divorce; States.
State court divorce decree incorporating property settlement agreement to divide social security retirement benefits between
spouses constituted state action preempted by federal Social Security Act provision barring transfer of benefits. 42 U.S.C. 407(a).
2. Husband and Wife; Social Security and Public Welfare.
Property settlement agreement incorporated into divorce decree and purporting to require former husband to give one-half of his
social security retirement benefits to former wife was contract to transfer benefits before former husband was eligible to receive them,
and thus was invalid under Social Security Act provision barring transfer of unpaid benefits, regardless of whether property settlement
agreement was entered into voluntarily by parties. Former wife asserted settlement was mere agreement on use of proceeds of social
security benefits once received. 42 U.S.C. 407(a).
3. Social Security and Public Welfare.
If bank account contains social security funds, funds are exempt from legal process. 42 U.S.C. 407(a).
OPINION
Per Curiam:
After a thirty-seven year marriage, appellant Ronald Boulter filed a complaint for divorce
against his wife, respondent Noleen Boulter, on April 18, 1990. Subsequently, Ronald and
Noleen executed a property settlement agreement. The district court entered a decree of
divorce which, by its terms, ratified, merged and incorporated the property settlement
agreement. Eight months later, Noleen filed a motion for an order compelling enforcement of
the divorce decree. Specifically, she asked for enforcement of paragraph 4(E) of the property
settlement agreement.
1
When Ronald turned 65, he refused to apply for social security
benefits, and refused to directly deposit the equivalent of one-half of his benefits {as if he
were receiving them), into Noleen's bank account.
__________

1
Paragraph 4E states:
Each party is eligible to receive Social Security Benefits at normal retirement age. The parties have agreed to equalize Social
Security Benefits as they are received during their joint lifetimes. Husband agrees to pay to wife one-half of each monthly Social
Security check he receives. Wife agrees likewise to split equally with husband each Social Security check she receives. The parties
will arrange with Social Security to have the Social Security checks deposited directly into their respective bank accounts, and
shall arrange with their banks for an automatic transfer of the other party's share as set forth herein.
It is the parties' intention that Social Security benefits be divided, if possible, only to the extent that they were earned prior to
the end of 1990. Accordingly, if the parties can obtain from Social Security within one hundred and eighty days of the date hereof,
sufficient information to ascertain the benefits derived solely from earning prior to December 31, 1990, the parties specifically
agree to amend this portion of this Agreement to include such specific monthly amounts.
When Ronald turned 65, he refused to apply for social security benefits, and refused to
directly deposit the equivalent of one-half of his benefits (as if he were receiving them), into
Noleen's bank account. Noleen contends that paragraph 4(E) required Ronald, upon reaching
age 65, to pay her a sum equal to one-half of his monthly social security entitlement earned
prior to the end of 1990. Pursuant to the agreement, Noleen sought attorney's fees and costs
for filing the motion.
2
Ronald opposed the motion, arguing that federal law prohibits the division of social
security benefits in a marital dissolution proceeding. Alternatively, he argued that Noleen's
motion should be denied because the language of the property settlement agreement neither
required Ronald to apply for benefits at a certain age nor required him to pay Noleen one-half
of his benefits at a certain age, and only required the equalization and payment of benefits
actually received by the parties.
The district court granted Noleen's motion because the property settlement agreement
equalizing social security benefits was not in violation of federal social security statutes.
Moreover, the district court held that since Ronald's former attorney prepared the agreement,
any ambiguity should be resolved against Ronald. Finally, the district court determined that
Noleen was entitled to an award of attorney's fees and costs under the agreement as prevailing
party. This appeal ensued.
DISCUSSION
In pertinent part, the federal Social Security Act provides that:
The right of any person to any future payment under this subchapter shall not be
transferable or assignable, at law or in equity, and none of the moneys paid or payable
or rights existing under this subchapter shall be subject to execution, levy, attachment,
garnishment, or other legal process, or to the operation of any bankruptcy or insolvency
law.
42 U.S.C. 407(a)(1983).
Ronald contends that his right to future social security payments is being subjected to legal
process in violation of 407(a) because the district court incorporated the property settlement
agreement into the divorce decree and because this court is now employed to enforce that
decree. We agree.
Any state action is preempted by a conflicting federal law, such as the Social Security Act,
under the Supremacy Clause of the United States Constitution, Article VI, Clause 2.
__________

2
The agreement provides for an award of attorney's fees to the prevailing party in any action by which the court's assistance is sought
to enforce the agreement.
United States Constitution, Article VI, Clause 2. Kirk v. Kirk, 577 A.2d 976, 979 (R.I. 1990).
The [Social Security Act], consistent with its remedial purpose, provides for the various
contingencies of life including the dissolution of marriage. Since the statute itself
provides for an equitable distribution of its benefits to . . .divorced spouses, . . . we will
not disturb the statutory scheme by suggesting any award of any part of the actual social
security retirement benefits to which respondent may be entitled upon his reaching
retirement age.
In re Marriage of Hawkins, 513 N.E.2d 143, 147 (Ill. App. Ct. 1987) (citations omitted)
(emphasis added); see also Olson v. Olson, 445 N.W.2d 1, 11 (N.D. 1989) (social security is
immune to adjustment by state courts in dividing marital property); Umber v. Umber, 591
P.2d 299, 301-302 (Ok. 1979) (Congress intended to provide distribution of social security
benefits between spouses at time of divorce, thus placing the subject beyond state control);
Swan v. Swan, 720 P.2d 747, 751-52 (Or. 1986) (Congress intended to preempt state property
division law as applied to social security benefits of a spouse upon divorce); Richard v.
Richard, 659 S.W.2d 746, 749 (Tex. App. Ct. 1983) (Congress exempted social security
benefits from state law regarding property division since divorced spouse is provided social
security benefits).
The United States Supreme Court has construed 407(a) to impose a broad bar against
the use of any legal process to reach all social security benefits. Philpott v. Essex County
Welfare Bd., 409 U.S. 413, 417 (1973). In enacting such anti-assignment statutes, Congress
has afforded recipients [protection] from creditors, taxgatherers, and all those who would
anticipate' the receipt of benefits. . . . Hisquierdo v. Hisquierdo, 439 U.S. 572, 575-76
(1979), superseded in part by 45 U.S.C. 231m (1986).
3
[Headnote 1]
In the instant case, the district court merged the property settlement agreement that equalized social security benefits into the divorce
decree.
__________

3
In Hisquierdo, the United States Supreme Court considered whether benefits provided under the Federal Railroad Retirement Act of
1974 could be divided upon divorce. The anti-assignment statute in that case, 45 U.S.C. 231m(a), is virtually identical to the Social
Security Act's anti-assignment clause, 42 U.S.C. 407(a). That statute provides:
[N]otwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or
supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or to other legal process under any
circumstances whatsoever, nor shall the payment thereof be anticipated.
45 U.S.C. 231m(a).
the divorce decree. We hold that under Philpott, the district court's decree constitutes state
action that has been preempted by the federal Social Security Act. Philpott, 409 U.S. at 417.
Because the court was without power to take any action regarding the parties' social security
benefits, paragraph 4E was not properly incorporated into the divorce decree. Accordingly,
this court may not sustain the district court order enforcing paragraph 4(E) of the decree. We
must therefore determine whether the lower court may nevertheless order enforcement of a
private agreement dividing future payments of social security.
In U.S. v. Eggen, 984 F.2d 848 (7th Cir. 1993), the court held that once social security
benefits are paid over to the recipient, . . . he can use them to satisfy his preexisting
obligations. Id. at 850 (citing Ponath v. Hedrick, 126 N.W.2d 28, 31 (Wis. 1964)). In Ponath
the court stated that,
Federal cases construing 42 U.S.C.A. 407, hold that the provision seeks to prevent
transfer of benefits prior to receipt. . . . The section [407] is intended to preclude a
person entitled to benefits . . . from transferring his right before, but not after the
Administrator has recognized it. The provisions of section 407 apply to the assignment
of future receipts, not to received benefits.
Ponath at 31 (quoting Beers v. Federal Security Administrator, 172 F.2d 34, 36 (2d. Cir.
1949)).
[Headnote 2]
Noleen contends that the division of social security benefits was a voluntary agreement between two private individuals to divide the
benefits once they were received, and not an agreement dividing future social security benefits.
Although social security recipients may use the proceeds of their social security, after their receipt, to satisfy preexisting obligations,
they may not contract to transfer their unpaid social security benefits. Thus, in contracting to give Noleen one-half of his benefits before he
was eligible to receive them, Ronald ineffectually transferred his right to the benefits. Because Ronald and Noleen attempted to transfer
their rights to future benefits in violation of 42 U.S.C. 407(a), the agreement was invalid and neither this court nor the district court may
order its enforcement.
Moreover, the fact that the property settlement agreement was entered into voluntarily by the parties is without relevance. As another
court correctly ruled, Congress' clear and stringent interpretation of the prohibition on transfer or assignment of benefits in section 207(b) .
. . compels us to strictly interpret that clause to prohibit voluntary as well as involuntary transfers or assignments."
assignments. Ellander v. Schweiker, 575 F. Supp. 590, 599 (S.D.N.Y. 1983), appeal
dismissed, 781 F.2d 314 (2nd Cir. 1986). If voluntary assignments and transfers of future
benefits were allowed, the security aspect of the social security program would frequently
be jeopardized. Moreover, as discussed above, the agreement in this case is prohibited by
federal statute.
Even if the benefits were received by Ronald and directly deposited in his account, the
court is not empowered to compel Ronald to pay those benefits to Noleen. It is clear from
the U.S. Supreme Court's opinion in Philpott v. Essex County Welfare Board, . . . that if a
bank account contains social security funds, the funds are exempt from legal process.
Hatfield v. Cristopher, 841 S.W.2d 761, 767 (Mo. App. Ct. 1992).
Noleen cites Owens v. Owens, 591 S.W.2d 57 (Mo. App. Ct. 1980), in support of her
position that the court can compel Ronald to transfer one-half of his social security benefits to
Noleen once they are paid to Ronald. Owens held that once social security funds have been
paid to the recipient, the funds are his personal property and no longer exempt from execution
on the sole ground that the government was the source of those payments. Id. at 58. The
Owens case was followed in Fraser v. Deppe, 770 S.W.2d 479 (Mo. App. Ct. 1989).
[Headnote 3]
However, in Collins, Webster and Rouse v. Coleman, 776 S.W.2d 930 (Mo. App. Ct. 1989), without overruling either Owens or
Fraser, the same court held that social security benefits deposited in a bank account were exempt from process by a creditor under Philpott.
The court held that Philpott was controlling and was apparently not considered in Owens, nor cited in Fraser . . . which follows Owens.
Thus, Noleen's reliance on Owens is unavailing. In any event, we agree with Hatfield's interpretation of Philpott, concluding that if a bank
account contains social security funds, the funds are exempt from legal process. Hatfield, 841 S.W.2d at 767.
In view of our ruling that the contested paragraph of the property settlement agreement was neither enforceable nor properly
incorporated into the divorce decree, we need not consider Ronald's contention that the district court improperly interpreted the agreement.
Finally, Ronald notes that paragraph 8(D) of the agreement provides for an award of reasonable attorney's fees and costs to the
prevailing party in an action that challenges or seeks to enforce the property settlement agreement. The district court awarded attorney's fees
and costs to Noleen as the prevailing party. However, as a result of our reversal of the order entered by the district court, that award will
have to be vacated.
CONCLUSION
Under 42 U.S.C. 407(a), the district court was without jurisdiction to enforce an award
of Ronald's social security benefits to Noleen pursuant to paragraph 4(E) of the property
settlement agreement. Although the agreement was the product of the voluntary negotiations
of the parties, the enforcement of the contested paragraph is nevertheless prohibited by the
federal statute.
For the reasons expressed above, we reverse the order entered below, including the district
court's ruling with regard to the property settlement agreement, vacate the award of attorney's
fees and costs to Noleen, and remand this matter to the district court with instructions to
reconsider the property distribution to the parties, and the issue of attorney's fees and costs.
____________
113 Nev. 80, 80 (1997) Ashwood v. Clark County
ANN ASHWOOD and RICHARD ASHWOOD, Appellants, v. CLARK COUNTY, a
Political Subdivision, NEVADA STATE HORSEMAN'S ASSOCIATION, a Nevada
Corporation, SOUTHERN NEVADA HUNTER JUMPER ASSOCIATION, a
Nevada Corporation, and DIXIE BENNETT and JOHN DOE BENNETT, Husband
and Wife, Respondents.
No. 26902
January 3, 1997 930 P.2d 740
Appeal from entry of summary judgment in favor of respondents in a personal injury
action. Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Participant in horse show held at county park was injured when she fell while attempting
to climb fence between barn area and nearby open area in order to provide assistance to rider
who had fallen. Participant brought action against county and sponsors of show. The district
court granted summary judgment to defendants, and participant appealed. The supreme court,
Springer, J., held that: (1) county and sponsors did not have duty to keep gate in fence nearest
to where participant fell open; (2) county building code could not provide basis of duty under
doctrine of negligence per se; and (3) contractual safety precautions in lease of park did not
give rise to duty to keep gate open.
Affirmed.
Rose and Shearing, JJ., dissented.
Davidson & Myers, Las Vegas; Snyder & Wenner, Phoenix, Arizona, for Appellants.
Edwards & Hale and Sharon Gwin Immerman, Las Vegas, for Respondent Clark County.
Beckley, Singleton, Jemison & List and Daniel F. Polsenberg, Las Vegas, for Horseman's
Association and Bennett.
1. Negligence.
It is courts and not juries that have ultimate responsibility of defining duty in relation to particular circumstances and defining
legal standard of reasonable conduct in light of apparent risk, and by defining scope of duty in negligence cases before them, courts
make vital expression of aggregate of those policy considerations which cause law to conclude that protection is owed.
2. Negligence.
Foreseeability of harm is predicate to establishing element of duty for purposes of negligence action.
3. Counties; Theaters and Shows.
County which owned park at which horse show was held, and sponsors of show, did not owe duty to participants in show to keep
gate leading from barn area to open area nearby unlocked, and thus, were not liable for injuries suffered by show participant who was
injured when she attempted to climb fence so that she could assist second rider who had been injured in fall. Nothing indicated that
main gate, which was located 150 feet away and was open, would have been inadequate, and no duty existed to provide shortest and
quickest route from one area of park to another.
4. Negligence.
In order for rescue doctrine, under which liability for plaintiff's injuries suffered in rescue attempt may be imputed to defendant,
to be applicable, defendants must first be liable to victim being rescued.
5. Negligence.
Violation of statute establishes duty and breach elements of negligence action under doctrine of negligence per se only if injured
party belongs to class of persons that statute was intended to protect and injury is of type against which statute was intended to protect.
Participant at horse show held in county park who was injured when she fell while climbing fence in attempt to reach rider who
had been injured in fall and provide assistance was not member of class of persons that panic hardware provision of county building
code, which required that exit doors in group occupancy areas may be latched only with devices which allow egress, was intended to
protect. Violation of code could not establish breach of duty on part of county and sponsors of show under doctrine of negligence per
se. Participant was not in any danger, but was simply in hurry to get from one part of park to another. Clark County Ordinance
22.04.010.
Contractual safety precautions in lease of county park by sponsors of horse show were intended to protect visitors who might
otherwise be unable to escape dangerous situation or might otherwise be injured trying to escape dangerous situation
because of obstruction, and did not give rise to duty to keep gate leading from barn area to open area
nearby, as would allow recovery in negligence action by participant who was injured while climbing fence
in attempt to reach rider who had fallen and provide assistance.
trying to escape dangerous situation because of obstruction, and did not give rise to duty to keep gate leading from barn area to open
area nearby, as would allow recovery in negligence action by participant who was injured while climbing fence in attempt to reach
rider who had fallen and provide assistance.
OPINION
This is an appeal from a summary judgment in favor of the respondents in a negligence
action. The claimed negligence arouse out of an incident in which the injured plaintiff,
appellant Ann Ashwood, injured her knee as she attempted to come to the assistance of a
fallen horseback rider at Horseman's Park in Las Vegas. Ashwood was in the barn area of the
park at the time she learned of the accident. Ashwood at first tried to reach the fallen rider by
leaving the barn area through a nearby gate, but found that the gate was locked. There was
another gate nearby, less than 150 feet from the locked gate; nevertheless, Ashwood sued
Clark County and others claiming that they had a duty to keep the locked gate open and that
breach of that duty was the cause of her injuries.
Because we are asked to rule on the correctness of the trial court's ruling that no duty was
owed by any of the respondents to keep the gate unlocked, it will be necessary for us to relate
the facts relating to Ashwood's claims in some detail. Because this case is before this court
upon appeal of an award of summary judgment, the facts are related in the light most
favorable to appellant. See Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663
(1985).
On September 1, 1990, Ashwood and her family attended a horseshow at Horseman's Park
in Las Vegas. The park is owned by defendant/respondent Clark County. On the date in
question, the park was leased to defendant/respondent Nevada State Horseman's Association
(NSHA), the sponsor of the event.
The park includes a barn area surrounded by a chain-link fence. There are several gateways
through the fence, although on the night in question only the main gateway to the south
remained unlocked. Ashwood was assigned a stall in Barn C near the western fence line.
While in the barn area, she heard the sounds of a runaway horse and cries for help. She
observed a rider lying on the ground in an open area to the west of the barn area and on the
other side of the fence.
Ashwood, who is trained in CPR, believed that the fallen rider needed immediate
assistance and ran toward the nearest gate in the barn area fence to assist the injured rider.
the barn area fence to assist the injured rider. The nearest gate was the west gate, which was
locked. Concerned that the fallen rider might be unconscious and not breathing, Ashwood
attempted to climb over the chain-link fence, rather than run through the open main gate
approximately 150 feet away. Unfortunately, Ashwood fell in the process and sustained a
severe injury to her knee.
Ashwood brought suit against Clark County, the NSHA, and the manager of the barn area,
Dixie Bennett (referred to collectively as Respondents). Ashwood claims that Respondents
are liable in negligence for failing to keep the west gate unlocked. After substantial discovery,
Respondents moved for summary judgment. Ashwood filed a response to Respondents'
motion and filed a cross-motion for partial summary judgment on the issue of duty.
In support of her motion for summary judgment, Ashwood presented the district court with
the affidavit of Dan Cashdan (Cashdan), a registered civil engineer employed by the State of
Nevada. Cashdan is thoroughly familiar with the Uniform Building Code (U.B.C.) in effect
in Clark County at the time of the incident, and his duties include reviewing building plans
for compliance with the Building Code. Cashdan testified that the Building Code required the
west gate be operable from inside the barn area. According to Cashdan, the padlocked west
gate was a clear violation of the Building Code and a danger to public safety.
Ashwood also supported her motion with the affidavit of Drusilla E. Malavase (Malavase),
an expert in equestrian training and safety for the past forty years and an organizer of
horseshows. Malavase testified that Respondents' conduct was below the national standard of
care, which mandates that gates shall not be locked during the show and while the public is
present. According to Malavase:
It is a known risk of and a common occurrence at horseshows for horses to behave
erratically and endanger people in the area. This is especially true in a barn area where
many horses congregate. It is highly foreseeable that an emergency will occur requiring
people to exit the barn area quickly. In addition, to avoid the hazard of panic which can
occur in these emergency situations, it is essential that exits in the barn area remain
open and usable. By having the gate locked every person in the barn area was placed at
risk and in danger. In so doing, the NSHA clearly fell below the standard of care of a
reasonable person or group conducting a horseshow like the Labor Day Show.
Ashwood also presented the district court with the lease agreement between NSHA and
Clark County, under which NSHA was obligated to comply with all laws and ordinances of
the State of Nevada and Clark County. The lease agreement provided, among other things,
that:
[N]o portion of the sidewalks, entries, passages, elevators, ramps, stairways, or
access to public utilities of said buildings or grounds shall be obstructed or used for any
purpose other than for ingress and egress to and from the premises.
Finally, Ashwood presented evidence that, at past horseshows, people had climbed over
fences to rescue fallen riders.
On January 20, 1994, the district court granted Respondents' motion for summary
judgment and denied Ashwood's cross-motion for partial summary judgment. On February 2,
1994, the district court entered judgment in favor of Respondents. Ashwood appealed.
Ashwood contends that the district court erred in granting summary judgment because
there are material facts remaining to be tried and that, therefore, Respondents were not
entitled to judgment as a matter of law.
The first question raised by appellant Ashwood is whether, as a matter of law, the trial
court erred in ruling that no duty was owed to her to keep the gate in question unlocked. In
this regard Ashwood claims that Respondents owed her a common law duty, that
Respondents were guilty of negligence per se, and that Respondents owed her a contractual
duty to keep the west gate unlocked. We consider each of these claims in turn.
Common Law Duty
[Headnote 1]
It is the courts and not juries that have the ultimate responsibility of defining duty in relation to particular circumstances and to define
the legal standard of reasonable conduct in the light of the apparent risk.' Merluzzi v. Larson, 96 Nev. 409, 412-13, 610 P.2d 739, 742
(1990) (quoting W. Prosser, Law of Torts, 53 at 324 (4th ed. 1971) (emphasis added)), overruled in part on other grounds, Smith v.
Clough, 106 Nev. 568, 570 n.2, 796 P.2d 594 (1990). By defining the scope of duty in negligence cases that come before them, the courts
are making a vital expression of the aggregate of those policy considerations which cause the law to conclude that protection is owed.
Merluzzi, 96 Nev. at 409, 610 P.2d at 742.
Ashwood presents two arguments on the duty question. First, she argues that there was a specific duty to keep the west gate unlocked
because it was foreseeable that in an emergency she would need to use the padlocked gate to exit the barn
area.
unlocked because it was foreseeable that in an emergency she would need to use the
padlocked gate to exit the barn area. Ashwood also argues that the Respondents should have
foreseen that during an emergency people would attempt to exit the barn area by climbing the
fence if the gate were locked.
[Headnote 2]
Foreseeability of harm is, of course, a predicate to establishing the element of duty. Id. at 414, 610 P.2d at 742; and Respondents
contend that a fallen rider in another part of the park is not the kind of foreseeable emergency that would give rise to a duty, enforceable by
Ashwood, to keep the west gate unlocked. Respondents emphasize the unquestioned fact that there was an alternate safe means for
Ashwood to carry out the intended rescue, namely, by going through the other, unlocked main gate that was less than 150 feet away.
Respondents argue that there was no duty to provide the shortest or quickest route to any area of the horseshow grounds.
[Headnotes 3, 4]
Ashwood has presented no evidence to suggest that the main gate, located 150 feet away from the locked gate, would have been
inadequate to effect the intended rescue. Ashwood did not contend that she was physically incapable of traversing the additional distance
nor that going to the open gate would have put her in personal danger or unacceptably delayed her attempted rescue. The exigent
circumstances presented by the fallen rider did not constitute the kind of emergency alluded to by Ashwood's own expertssuch as a fire,
panic, or stampedewhere an alternative means of egress may not have been reasonably available and where the immediacy of the danger
combined with the inability to use the locked gate might have necessitated an attempt to scale the fence rather than to proceed to the
unlocked gate. Under the circumstances, we agree with Respondents that this case really boils down to whether there existed a duty to
provide Ashwood the shortest or quickest route from one area of the park to another. We conclude that there was no such duty. Accord
Nicoletti v. Westcor, Inc., 639 P.2d 330, 333 (Ariz. 1982) (The landowner has a duty to provide a reasonably safe means of ingress and
egress for those who enter onto the land. . . . The landowner, however, does not have to provide the shortest route to any destination.);
Harris v. Union Stock Yard & Transit Co. of Chicago, 331 N.E.2d 182, 188 (Ill. App. Ct. 1975) (landowner owes invitee a duty to provide
a reasonably safe means of ingress and egress, but not necessarily the shortest route to the invitee's destination).
1
__________

1
Finally, although we emphasize that this may be a case to which the
In light of the particular risk present in this case, Respondents' common law duty of
reasonable care did not give rise to a specific duty to keep the west gate unlocked.
Negligence per se
Ashwood also contends that a duty to keep the west gate unlocked arose under the Clark
County Building Code (the Code).
2
In response, Respondents first argue that the sections of
the Code cited by Ashwood are not applicable either to the barn area or to the area
surrounding the fence. Second, Respondents argue that, even if Respondents did violate the
Code, the violations do not amount to negligence per se.
[Headnote 5]
A violation of statute establishes the duty and breach elements of negligence only if the injured party belongs to the class of persons
that the statute was intended to protect, and the injury is of the type against which the statute was intended to protect. Sagebrush Ltd. v.
Carson City, 99 Nev. 204, 208, 660 P.2d 1013, 1015 (1983).
[Headnote 6]
Ashwood contends that the Code prohibits Respondents from padlocking the west gate while the public is present. Ashwood's
contention depends upon the barn area being a Group A Occupancy under U.B.C. section 601 and the west gate being a required exit.
Exit doors in a Group A Occupancy are not to be latched or locked except with panic hardware, a latching device that allows egress from
the structure in an emergency. See U.B.C. 3317(d). We are not convinced that the Horseman's Park barn area is a Group A Occupancy,
nor are we convinced that the west gate is a required exit; we need not decide this issue, however, because even if locking the west gate was
a violation of section 3317(d), the violation would not be negligence per se in this case.
__________
maxim danger invites rescue is applicable, this is not a case where liability for a plaintiff's injuries may simply be imputed to defendants
under the so-called rescue doctrine. In order for that doctrine to apply, the defendants must first be liable for the injury to the victim being
rescued. See Wagner v. International R.R. Co., 133 N.E. 437, 438 (N.Y. 1921) (Cardozo, C.J.); Estate of Keck v. Blair, 856 P.2d 740
(Wash. Ct. App. 1993). In this case, Ashwood has not alleged that Respondents were responsible for the fall of the rider for whom she was
attempting rescue at the time of her own injury.

2
Clark County has, with certain express exceptions, adopted the U.B.C. by the International Conference of Building Officials (1994
edition) as the building code of Clark County. See Clark County Ordinance 22.04.010. Accordingly, where applicable, citations are to the
U.B.C.
Ashwood argues that the Code is a safety enactment. As discussed above, however,
Ashwood herself was never in any danger; she was simply in a hurry to get from one part of
Horseman's Park to another and chose, unwisely it turns out, to climb the fence rather than
exiting through the open south gate. Clearly, the Code was not intended to ensure good
samaritans the shortest route from one part of a public facility to another. Under the
circumstances, we conclude as a matter of law that Ashwood is not a member of the class of
persons the panic hardware provision of the building code was meant to protect.
Accordingly, even if the Code was violated, the violation was not negligence per se and did
not establish a duty owed to Ashwood to keep the west gate unlocked.
3
Contractual duty
Ashwood also contends that Respondents owed her a duty to keep the gate unlocked under
the lease agreement for Horseman's Park. According to Ashwood, a duty to keep the gate
unlockedenforceable in tortmay be inferred from the contractual obligations between
Respondents. The Horseman's Park lease between NSHA and Clark County contains several
clauses that Ashwood describes as safety precautions. For example, the lease provides:
Lessee agrees that no portion of the entries, passages, elevators, ramps, stairways, . . .
shall be obstructed or used for any purpose other than for ingress or egress to and from
the premises.
. . . .
Lessee expressly agrees to observe all applicable safety procedures to insure that
animals, as well as spectators, are not exposed to unsafe operational conditions.
__________

3
We note in passing that there is some question as to whether the Clark County Building Code is an appropriate basis for application
of the negligence per se doctrine. In Price v. Sinnott, we held that proof of a deviation from an administrative regulation is only evidence
of negligence; not negligence per se. 85 Nev. 600, 605, 460 P.2d 837, 840 (1969) (negligence per se not applicable to violation of safety
rule promulgated by Nevada Liquified Petroleum Gas Board). We reasoned that, This point of view best serves all interests since it accords
appropriate dignity to administrative rules and concomitantly affords some leeway for those instances where the rule in issue may be
arbitrary and its violation not necessarily unreasonable. Id. at 605, 460 P.2d at 840.
Although the Clark County Building Code is promulgated as a legislative ordinance, it appears, at least arguably, administrative in
nature. Nevertheless, because this issue was neither raised before the district court, nor briefed on appeal, and because resolution of this
issue would not affect the outcome of this case, we decline to consider this issue at the present time.
According to Ashwood, these provisions of the contract create a specific duty in Respondents
to keep the west gate unlocked.
Ashwood cites Granite Construction Co. v. Rhyne, 107 Nev. 651, 817 P.2d 711 (1991),
and Baroco v. Araserv, Inc., 621 F.2d 189 (5th Cir. 1980). In Granite Construction, we
recognized that a contractor owed a duty to a driver injured in a collision with a bull arising
out of a contract to furnish protective fencing that would prevent livestock from straying upon
the highway. Similarly, in Baroco, the United States Court of Appeals for the Fifth Circuit
recognized that a contractor owed a duty to a drowned swimmer arising out of a contract to
provide lifeguards and lifesaving equipment at a beach. Respondents argue that the
above-cited cases are distinguishable. We agree.
[Headnote 7]
In both Granite Construction and Baroco, the plaintiff was clearly among the class of persons the contract was intended to protect
(drivers on the highway and swimmers at the beach, respectively) and the injury sustained by the plaintiff was precisely the kind of harm
that the contract was intended to obviate (hitting livestock wandering onto the highway and drowning in the water). In the present case, on
the other hand, the contractual safety precautions in the Horseman's Park lease were, like the building code provisions, clearly intended to
protect visitors who might otherwise be unable to escape a dangerous situation within an area of the park or who might otherwise be injured
trying to escape such a dangerous situation because an obstruction blocked the way. As previously stated, Ashwood herself was never in
any danger, and a safe and adequate means of exiting the barn area was readily available to her. We therefore conclude that, for the same
reason that the statutory safety enactments of the building code could not have given rise to a duty to keep the west gate unlocked in this
case, the contractual safety precautions of the Horseman's Park lease cannot have given rise to a duty to keep the west gate unlocked.
CONCLUSION
Neither the common law, Clark County ordinances, nor the Horseman's Park lease agreement imposed upon Respondents a duty owing
to Ashwood to keep the west gate unlocked; we conclude, therefore, that Respondents have negated an essential element of Ashwood's case.
We hold, accordingly, that the district court did not err in entering summary judgment against Ashwood. See Perez, 107 Nev. at 4, 805
P.2d at 591. The judgment of the district court is affirmed.
Steffen, C. J., and Young, J., concur.
Rose, J., with whom Shearing, J., joins, dissenting:
I dissent from the majority's affirmance of the district court's judgment against the
Ashwoods because questions of material fact remain, and therefore, the district court erred in
awarding summary judgment against the Ashwoods in their negligence cause of action.
As to the question of what common law duty respondents owed to Ann Ashwood, in
Moody v. Manny's Auto Repair, 110 Nev. 320, 333, 871 P.2d 935, 943 (1994), we held that
an owner or occupier of land should be held to the general duty of reasonable care when
another is injured on that land, and that determinations of liability should primarily depend
upon whether the owner or occupier of land acted reasonably under the circumstances. The
majority concluded that respondent's duty of reasonable care did not encompass a specific
duty to keep the west gate unlocked. This conclusion is erroneous because it is beyond the
province of the district court or this court to make a determination as to whether the condition
of respondents' gate falls within the landowner's duty to use reasonable care.
We have repeatedly noted that [c]ourts are reluctant to grant summary judgment in
negligence cases because foreseeability, duty, proximate cause and reasonableness usually
are questions of fact for the jury. . . .' Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414,
417, 633 P.2d 1220, 1222 (1981) (emphasis added). Although in Meluzzi v. Larson, 96 Nev.
409, 412-413, 610 P.2d 739, 742 (1980), overruled on other grounds by Smith v. Clough,
106 Nev. 568, 570 n.2, 796 P.2d 592, 594 (1990), we said that duty' is only an expression
of the aggregate of those policy considerations which cause the law to conclude that
protection is owed, we have also concluded that summary judgment is precluded where
genuine issues of fact pertaining to a defendant's duty have been raised. See State, Dep't of
Transp. v. Central Telephone, 107 Nev. 898, 901,822 P.2d, 1108, 1109 (1991) (holding
summary judgment inappropriate where genuine issue of material fact remains as to whether
respondent had a duty to maintain a right of way in a safe condition).
In this case, the Ashwoods have presented sufficient evidence to survive summary
judgment on the issue of respondents' duty of care. The majority recognizes that the district
court may not pass on the credibility of affidavits and must accept the Ashwoods' statements
as true. Sawyer v. Sugarless Shops, 106 Nev. 265, 267, 792 P.2d 14, 15 (1990). However, the
opinion proceeds to reject the veracity of the Ashwoods' expert, Dan Cashdan, whose
affidavit stated that the barn area where the accident occurred was a Group A classification.
A Group A classification would have required the west gate to remain unlocked. Cashdan
further concluded, based upon his experience with the U.B.C. as a State-employed civil
engineer, that there was a duty to keep the west gate unlocked while Horseman's Park
was being used by the public.
concluded, based upon his experience with the U.B.C. as a State-employed civil engineer,
that there was a duty to keep the west gate unlocked while Horseman's Park was being used
by the public.
Nonetheless, the majority states that it is not convinced that the barn area is a Group A
Occupancy, nor is it convinced that the west gate is a required exit. Under our
jurisprudence, I do not believe that the Ashwoods bear the burden of convincing this court of
these facts, since Cashdan's affidavit should have been deemed presumptively credible on
summary judgment review by the district court. In past cases, this court has reversed a district
court's order granting summary judgment where the record contains conflicting evidence
concerning a defendant's duty of care. Harry v. Smith, 111 Nev. 528, 534, 893 P.2d 372, 375
(1995). I conclude that it was error for the district court to keep the resolution of such issues
of fact from the jury, and the majority errs in affirming the lower court's erroneous decision.
In rejecting the Ashwoods' negligence per se and contractual duty arguments, the majority
concludes that Ms. Ashwood was not a member of the class of persons meant to be protected
by U.B.C. 3317(d) or by the Horseman's Park lease contract between NSHA and Clark
County. I conclude that whether or not the building code provision or the contractual safety
precautions were meant to protect Ms. Ashwood were clearly questions of fact that should
have been submitted to the jury.
For these reasons, I dissent from the majority's opinion affirming the district court's
summary judgment against the Ashwoods on their claim of negligence.
____________
113 Nev. 90, 90 (1997) University System v. Farmer
UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA, Appellant, v.
YVETTE FARMER, Respondent.
No. 25912
January 3, 1997 930 P.2d 730
Appeal from a final judgment, pursuant to jury verdict, and from order denying motion for
judgment notwithstanding the verdict or, in the alternative, motion for new trial. Second
Judicial District Court, Washoe County; Steven R. Kosach, Judge.
White female faculty member sued state university system alleging violation of Title VII
of the Civil Rights Act of 1964, and of the Equal Pay Act (EPA), as well as breach of
contract. The district court rendered judgment for faculty member based on jury verdict, and
university appealed.
on jury verdict, and university appealed. The supreme court, Steffen, C. J., held that: (1)
university's affirmative action plan passed constitutional muster; (2) 1991 Amendments to
Title VII do not proscribe affirmative action; (3) no violation of Title VII was shown in hiring
of black male faculty member before plaintiff, at higher salary than she received when hired a
year later; (4) university demonstrated legitimate, business-related reason for wage disparity
between the black male faculty member and plaintiff, establishing defense under the EPA;
and (5) breach of contract was not shown on theory that university's unwritten minority bonus
policy, which allowed a department to hire additional faculty member following initial
placement of minority candidate, contravened university's affirmative action statement.
Reversed.
Springer and Shearing, JJ., dissented.
Donald Klasic, General Counsel, University and Community College System of Nevada,
Reno, for Appellant.
Goedert & Michaels, Reno, for Respondent.
1. Appeal and Error.
On review of motion denying judgment notwithstanding verdict (JNOV), supreme court views evidence in light most favorable to
party against whom motion was directed, to determine whether evidence of record is such that reasonable men would have necessarily
reached a different conclusion, and it is not court's prerogative to consider weight of the evidence or credibility of witnesses, but order
also will be reversed if final judgment is unwarranted as a matter of law.
2. Civil Rights.
State university's affirmative action policy passed constitutional muster, as university demonstrated compelling interest in
fostering culturally and ethnically diverse faculty, whites held 87 to 89 percent of full-time faculty positions and blacks only one
percent, and its minority bonus policy, allowing a department to hire additional faculty member following initial placement of minority
candidate, was narrowly tailored to accelerate racial and gender diversity, and race was only one of several factors used in evaluating
applicants. U.S. Const. amend. 14; 42 U.S.C. 2000e et seq.
3. Civil Rights; Colleges and Universities.
Given aspect of subjectivity involved in choosing between faculty candidates, university must be given latitude to make its own
employment decisions, provided they are not discriminatory.
4. Civil Rights.
The 1991 Amendments to Title VII do not proscribe affirmative action. 42 U.S.C. 2000e-2(m).
5. Civil Rights.
In suit under Title VII in which white female faculty member at state university complained of hiring before herself of black male
faculty member, at higher salary than she later received, jury was not properly equipped to understand
necessary legal basis on which it could reach its factual conclusions concerning legality of university's
affirmative action plan, in light of rejection of university's proposed instruction that implementation of
affirmative action policy designed to remedy effects of past discrimination is not violation of Title VII.
member, at higher salary than she later received, jury was not properly equipped to understand necessary legal basis on which it could
reach its factual conclusions concerning legality of university's affirmative action plan, in light of rejection of university's proposed
instruction that implementation of affirmative action policy designed to remedy effects of past discrimination is not violation of Title
VII. 42 U.S.C. 2000e et seq.
6. Civil Rights.
State university did not violate Title VII in hiring black male faculty member rather than white female and paying him more than
white female was paid when she was hired a year later under university's affirmative action minority bonus policy, allowing department
to hire additional faculty member following initial placement of minority candidate, where the two candidates were equal in most
respects. 42 U.S.C. 2000e et seq.
7. Labor Relations.
In order for female university faculty member complaining of higher pay to male faculty member to prevail on Equal Pay Act
(EPA) claim, she had to prove that university's employment decision was impermissibly based on gender, but after she presented prima
facie case, employer had to satisfy one of EPA's four affirmative defenses in order to avoid liability. 29 U.S.C. 206(d)(1).
8. Labor Relations.
In order to establish affirmative defense to Equal Pay Act (EPA) claim under catchall provision allowing pay disparity based on
any factor other than sex, employer must demonstrate business-related reason for the wage disparity. 29 U.S.C. 206(d)(1).
9. Labor Relations.
State university demonstrated legitimate business-related reason for wage disparity between male and female faculty members and
thus met its burden in avoiding liability under the Equal Pay Act (EPA), where only one percent of university's faculty were black
while 87 percent were white and university sought to achieve progress in reducing this manifest racial imbalance by hiring black male
before white female, it was undisputed that qualified minority applicants, being in short supply, can command premium salaries on the
open market, and search committees elected to avoid all-out bidding war with other educational institutions by offering black male
candidate salary commensurate with his credentials, minority status, and overall marketability. 29 U.S.C. 206(d)(1).
Defendant was in no position to complain on appeal of refusal of instruction proffered by plaintiff where defendant failed to join in
proffering the instruction and objecting to its rejection.
11. Civil Rights.
Minority bonus policy, adopted as unwritten amendment to state university's affirmative action policy and allowing a department
to hire an additional faculty member following the initial placement of a minority candidate, did not contravene the university's
affirmative action statement, which required additional efforts to recruit, employ, and retain and promote qualified women, minorities,
handicapped and veterans.
OPINION
By the Court, Steffen, C. J.:
Appellant, the University and Community College System of Nevada (the University),
appeals from a final judgment, pursuant to a jury verdict, awarding respondent Yvette
Farmer, an assistant professor of sociology at the University of Nevada, Reno, $40,000.00 in
damages for violations of the Equal Pay Act (the EPA), Title VII of the Civil Rights Act,
and for breach of an employment contract. The primary issues before us are whether the
University was entitled to judgment as a matter of law and whether the district court erred by
refusing to submit either of two jury instructions.
For reasons set forth hereafter, we reverse.
FACTS
Between 1989 and 1991, only one percent of the University's faculty were black, and
eighty-seven to eighty-nine percent of the full-time faculty were white. During this period,
twenty-five to twenty-seven percent of the full-time faculty were women. In order to rectify
the racial imbalance, the University instituted the minority bonus policy, an unwritten
amendment to its affirmative action policy which allowed a department to hire an additional
faculty member following the initial placement of a minority candidate.
In 1990, the University published an announcement regarding an impending vacancy in the
sociology department. The announcement for a replacement emphasized a need for
proficiency in social psychology and formal organizations, with a stipulated salary range
between $28,000.00 and $34,000.00, dependent upon experience and qualifications.
University hiring guidelines require departments to conduct more than one interview;
however, this procedure may be waived. Although Farmer was one of the three finalists
chosen by the search committee, the University claimed they followed procedural protocol by
obtaining a waiver to only interview Johnson Makoba, a black African male emigrant. The
department chair recalled that the search committee ranked Makoba first among the three
finalists.
Because of a perceived shortage of black Ph.D. candidates, coupled with Makoba's strong
academic achievements, the search committee sought approval to initially offer Makoba
$35,000.00, with an increase to $40,000.00 upon completing his Ph.D.
Ph.D. This initial offer exceeded the advertised salary range of $28,000.00 to $34,000.00.
Even though Makoba had not accepted any competing offers, the University justified its
premium offer as a method of preventing a bidding war between two prestigious universities
slated to interview Makoba. This strategy, according to the University, was designed to
preempt other institutions from hiring Makoba.
Farmer claims that she was more qualified for the position initially offered to Makoba.
However, the curriculum vitae for both candidates revealed comparable strengths with respect
to their educational backgrounds, publishing, areas of specialization, and teaching experience.
The search committee concluded that despite some inequalities, their strengths and
weaknesses complemented each other; hence, as a result of the additional position created by
the minority bonus policy, the department hired Farmer one year later. Although the
University started Makoba at $35,000.00 with a $5,000.00 increase upon completing his
dissertation, Farmer was offered a starting salary of $31,000.00 and a $2,000.00 raise after
completion of her dissertation. This, according to the Dean of the College of Arts and
Science, was slightly above the mean for new hires in the social sciences.
Starting with an initial pay differential of $7,000.00 upon completion of their dissertations,
the pay gap has since widened to $10,838.00 because of Makoba's additional year of
employment and differences in merit increases granted to Makoba and Farmer.
On January 13, 1993, Farmer filed a complaint alleging four causes of action. She first
claimed that the University violated the Equal Pay Act by paying her unequal wages for equal
work relative to a male employee of similar qualifications. Her second cause of action alleged
race and gender violations under Title VII of the Civil Rights Act as amended in 1991.
Farmer's third cause of action alleged that the University breached its employment contract
with her by failing to abide by its promulgated policies delineating the terms and conditions
of employment. Her fourth cause of action alleged a breach of the implied covenant of good
faith and fair dealing.
The district court granted the University's motion for summary judgment as to Farmer's
fourth cause of action, but denied summary judgment regarding the first three causes of
action.
After the close of evidence, the district court rejected the following jury instruction offered
by Farmer:
The Equal Pay Act specifically forbids that Dr. Makoba's salary should be lowered to
make two rates of pay equal.
The University then offered the following proposed jury instruction:
The implementation by an employer of a race-conscious affirmative action policy
designed to remedy the effects of past discrimination against a traditionally
disadvantaged group, particularly to remedy a manifest imbalance in a traditionally
segregated job category, is not a violation of Title VII of the Civil Rights Act, provided
the rights of other persons are not unnecessarily trammeled or impeded.
The district court also rejected this instruction.
The jury returned a verdict in Farmer's favor for her first three causes of action, awarding
her $40,000.00 in damages. The University timely filed a motion for a judgment
notwithstanding the verdict, or in the alternative, for a new trial under NRCP 50(b) and 59(a).
The district court denied the motion, prompting the University to appeal.
DISCUSSION
Standard of Review
[Headnote 1]
In appealing from the final judgment, the University contends that the district court erred in denying its motion for judgment
notwithstanding the verdict or, in the alternative, motion for a new trial. On review of a motion denying a judgment notwithstanding the
verdict, we are enjoined to view the evidence in the light most favorable to the party against whom the motion is directed. Air Service Co.
v. Sheehan, 95 Nev. 528, 530, 594 P.2d 1155, 1156 (1979). It is not this court's prerogative to consider the weight of the evidence or the
credibility of witnesses. Id. In reviewing the denial of the motion for JNOV, the question we must ask and answer is whether the evidence
of record is such that reasonable men would have necessarily reached a different conclusion.' Id. (quoting Drummond v. Mid-West
Growers, 91 Nev. 698, 542 P.2d 198 (1975)). Of course, an order denying a JNOV motion will also be reversed if the final judgment is
unwarranted as a matter of law. See McDevitt & Street Co. v. Mosher Steel, 574 So. 2d 794, 797 (Ala. 1991).
Affirmative Action Analysis
The University contends that the district court made a substantial error of law by failing to enter a proposed jury instruction which
would have apprised the jury that Title VII does not proscribe race-based affirmative action programs designed to remedy the effects of past
discrimination against traditionally disadvantaged classes.
disadvantaged classes. The University asserts that the district court's rejection of the proposed
instruction left the jury with the impression that all race-based affirmative action programs
are proscribed.
Farmer maintains that the University has not demonstrated that Makoba's race was job
related for the position in question and consistent with business necessities. Farmer also
asserts that the University's unwritten minority bonus policy contravenes its published
affirmative action plan. Finally, Farmer alleges that all race-based affirmative action plans are
proscribed under Title VII of the Civil Rights Act as amended in 1991; therefore, the
University discriminated against her as a female, a protected class under Title VII.
Tension exists between the goals of affirmative action and Title VII's proscription against
employment practices which are motivated by considerations of race, religion, sex, or
national origin, because Congress failed to provide a statutory exception for affirmative
action under Title VII. See 42 U.S.C. 2000e. Until recently, the Supreme Court's failure to
achieve a majority opinion in affirmative action cases has produced schizophrenic results.
[Headnote 2]
The permissible contours for voluntary affirmative action plans are blurred. There are, however, a few pivotal cases that provide
guidance. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Bakke plurality held that in the limited setting of a
graduate school, an attempt to attain a diverse student body through a preferential treatment admissions policy is not per se unconstitutional
as long as race is one of several factors used in evaluating applicants. Id. at 314-18. Quotas, however, are proscribed. Id. at 318.
United Steelworkers of America v. Weber, 443 U.S. 193 (1979), is the seminal case defining permissible voluntary affirmative action
plans. See also Johnson v. Transportation Agency, Santa Clara City, Cal., 480 U.S. 616 (1987). Under Weber, a permissible voluntary
affirmative action plan must: (1) further Title VII's statutory purpose by break[ing] down old patterns of racial segregation and hierarchy
in occupations which have been traditionally closed to them; (2) not unnecessarily trammel the interests of white employees; (3) be a
temporary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Weber, 443 U.S. at
208.
Since the advent of Weber, the Supreme Court's affirmative action decisions have displayed an accordion effect. City of Richmond v.
J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion), signaled a marked departure of equal protection analysis by
requiring that the strict scrutiny standard apply for affirmative action jurisprudence.
opinion), signaled a marked departure of equal protection analysis by requiring that the strict
scrutiny standard apply for affirmative action jurisprudence. The Court criticized the City of
Richmond's minority set-aside program for independent contractors in the construction
industry as one which was not sufficiently and narrowly tailored. A year after Croson, the
Court, in Metro Broadcasting Inc. v. FCC, 497 U.S. 547 (1990), abruptly changed course and
held that the intermediate scrutiny standard of review applies towards congressionally
mandated benign racial classifications.
Most recently, in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097
(1995), the Supreme Court revisited affirmative action in the context of a minority set-aside
program in federal highway construction. In the 5-4 opinion, the Court held that a reviewing
court must apply strict scrutiny analysis for all race-based affirmative action programs,
whether enacted by a federal, state, or local entity. Id. at 4530. Building on the rationale of
Croson, the Court explicitly stated that federal racial classifications, like those of a State,
must serve a compelling governmental interest, and must be narrowly tailored to further that
interest. Adarand, 63 U.S.L.W. at 4533. In so holding, the Court overruled Metro
Broadcasting which employed different standards of review to state and federal racial
classifications. Id. at 4530.
Here, in addition to considerations of race, the University based its employment decision
on such criteria as educational background, publishing, teaching experience, and areas of
specialization. This satisfies Bakke's commands that race must be only one of several factors
used in evaluating applicants. We also view the desirability of a racially diverse faculty as
sufficiently analogous to the constitutionally permissible attainment of a racially diverse
student body countenanced by the Bakke Court.
The University's affirmative action plan conforms to the Weber factors. The University's
attempts to diversify its faculty by opening up positions traditionally closed to minorities
satisfies the first factor under Weber. Second, the plan does not unnecessarily trammel the
interests of white employees. The University's 1992 Affirmative Action Report revealed that
whites held eighty-seven to eighty-nine percent of the full-time faculty positions. Finally,
with blacks occupying only one percent of the faculty positions, it is clear that through its
minority bonus policy, the University attempted to attain, as opposed to maintain, a racial
balance.
The University's affirmative action plan therefore passes constitutional muster. The
University demonstrated that it has a compelling interest in fostering a culturally and
ethnically diverse faculty.
faculty. A failure to attract minority faculty perpetuates the University's white enclave and
further limits student exposure to multicultural diversity. Moreover, the minority bonus
policy is narrowly tailored to accelerate racial and gender diversity. Through its affirmative
action policies, the University achieved greater racial and gender diversity by hiring Makoba
and Farmer. Of note is the fact that Farmer's position is a direct result of the minority bonus
policy.
[Headnote 3]
Although Farmer contends that she was more qualified for Makoba's position, the search committee determined that Makoba's
qualifications slightly exceeded Farmer's. The record, however, reveals that both candidates were equal in most respects. Therefore, given
the aspect of subjectivity involved in choosing between candidates, the University must be given the latitude to make its own employment
decisions provided that they are not discriminatory.
[Headnote 4]
In addition, Farmer cites no authority for her proposition that the 1991 amendments to Title VII proscribe affirmative action.
1
Notably,
Farmer failed to include a contrasting provision which undermines her novel interpretation of 2000e-2(m).
2
[Headnotes 5, 6]
Given the void created by the rejection of the jury instruction at issue, we conclude that the jury was not equipped to understand the
necessary legal basis upon which it could reach its factual conclusions concerning the legality of the University's affirmative action plan.
Moreover, the undisputed facts of this case warranted judgment in favor of the University as a matter of law. Therefore, even if the jury had
been properly instructed, the district court should have granted the University's motion for judgment notwithstanding the verdict.
__________

1
42 U.S.C. 2000e-2(m) (Supp. V 1993) states:
Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though
other factors also motivated the practice.
The conduct Farmer complains of occurred prior to the effective date of the amended 1991 Civil Rights Act; therefore, those applicable
portions of the amended Act are not controlling. Makoba was hired on July 1, 1990, followed by Farmer's appointment on July 1, 1991. The
Civil Rights Act of 1991 went into effect on November 21, 1991.

2
Nothing in the amendments made by this title shall be construed to affect court-ordered remedies, affirmative action, or conciliation
agreements that are in accordance with the law. 116, 105 Stat. at 1079 (1991) (codified at 42 U.S.C. 1981 note (Supp. V 1993)
(emphasis added).
judgment notwithstanding the verdict. Reversal of the jury's verdict on the Title VII claim is
therefore in order.
The Equal Pay Act
The University contends that it fully satisfied the requisites of the EPA and was entitled to
judgment on this claim as a matter of law.
[Headnote 7]
On the other hand, Farmer insists that the University's affirmative defense under the EPA was pretextual and that its true motivation for
creating the wage disparity was rooted in gender discrimination. In order for Farmer to prevail on her EPA claim, she had to prove that the
University's employment decision was impermissibly based on gender.
Corning Glass Works v. Brennan, 417 U.S. 188 (1974), is the seminal case interpreting the Equal Pay Act.
3
The Supreme Court stated
that a prima facie case under the EPA is established if the plaintiff can show: (1) that an employer is paying different wages to employees of
the opposite sex; (2) that the employees are performing jobs which require equal skill, effort, and responsibility; and (3) that the employees
have similar working conditions. Id. at 190.
After the plaintiff has presented a prima facie case, an employer must then satisfy one of the EPA's four affirmative defenses in order to
avoid liability. In Corning, the Court concluded that the burden of proof in proffering one of the four affirmative defenses rests with the
defendant, even though the Act is silent on this issue. The employer must prove that the reason for the pay disparity is due to: (i) a
seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity of production; or (iv) a differential based on any
factor other than sex. Id. at 196.
[Headnote 8]
The bulk of EPA litigation rests with the Act's fourth affirmative defense. The any factor-other-than-sex defense has often been
referred to as a catch-all provision, and understandably, is the source of discriminatory abuse. In an effort to limit employer abuses under
this catch-all provision, the courts have attempted to delineate nondiscriminatory factors other than sex. There is however, an
acknowledged conflict among the circuit courts concerning an employer's burdens in raising this affirmative defense.
In Aldrich v. Randolph Cent. School Dist., 963 F.2d 520, 526 {2d Cir.), cert. denied, 506 U.S. 965, 113 S. Ct. 440
{1992), the court held that an employer must establish a bona fide business-related reason for establishing the
factor-other-than-sex affirmative defense.
__________

3
Sex-based discrimination is the gravamen of The Equal Pay Act of 1963. 29 U.S.C. 206(d)(1).
(2d Cir.), cert. denied, 506 U.S. 965, 113 S. Ct. 440 (1992), the court held that an employer
must establish a bona fide business-related reason for establishing the factor-other-than-sex
affirmative defense. Likewise, in Maxwell v. City of Tucson, 803 F.2d 444, 447 (9th Cir.
1986), the court determined that an employer satisfies the factor-other-than-sex defense by
establishing legitimate organizational needs. See Kouba v. Allstate Ins. Co., 691 F.2d 873,
876 (9th Cir. 1982) (a wage differential between a male and female must be grounded in an
acceptable business reason); E.E.O.C. v. J.C. Penney Co., Inc., 843 F.2d 249, 253 (6th Cir.
1988) (any factor will not satisfy the factor-other-than-sex defense, rather, a legitimate
business reason must exist).
The Seventh Circuit, in Fallon v. State of Illinois, 882 F.2d 1206, 1211 (1989), reached a
contrary position in ruling that [t]his circuit . . . does not require that the
factor-other-than-sex defense be related to the requirements of the particular position in
question, or that it be a business-related reason[ ].' We are not persuaded that the reasoning
in Fallon furthers the purposes of the Equal Pay Act and elect to adopt the rationale and
rulings of the Second and Ninth Circuits in Aldrich and Maxwell.
We conclude that the proper legal standard underlying the factor-other-than-sex defense
requires, at a minimum, that an employer demonstrates a business-related reason for the wage
disparity. It is essential that the factor-other-than-sex defense is business related in order to
avoid the pitfalls otherwise created by such a broadly worded provision.
[Headnote 9]
The most glaring statistic in this litigation is that only one percent of the University's faculty were black while eighty-seven percent
were white. Concurrently, women occupied twenty-five to twenty-nine percent of the full-time faculty positions. The University sought to
achieve progress in this manifest racial imbalance by hiring Makoba before Farmer. Clearly, the University had a bona fide business-related
reason for attaining a culturally diverse faculty. It is undisputed that qualified minority applicants, who are in short supply, can command
premium salaries in the open market. The search committee elected to avoid an all-out bidding war with other educational institutions by
offering Makoba a salary commensurate with his credentials, his minority status, and his overall marketability.
Farmer has failed to demonstrate that the University's pay disparity was rooted in gender discrimination. Indeed, the University's Dean
of the College of Arts and Science testified that the Chemistry Department had recently hired a female chemist at a higher salary than a
male with similar qualifications in order to diversify its faculty and provide a female role model.
diversify its faculty and provide a female role model. Market forces dictate higher salaries for
female Ph.D.'s in chemistry due to a shortage of qualified women.
[Headnote 10]
Although the jury would have been in a better position to understand what the University could or could not do with respect to wage
disparity in the context of the EPA if Farmer's proposed instruction to the jury had been accepted by the district court, the University is in
no position to complain since it failed to join in proffering the instruction and objecting to its rejection.
4
We nevertheless conclude that the
omission of the instruction is of no consequence to the resolution of this appeal. The undisputed facts reveal that the University did not
base its employment decision on Farmer's gender. To the contrary, a manifest racial imbalance and market factors were the touchstone for
the University's employment decision.
We conclude that the University has met its burden in avoiding liability under the EPA by demonstrating a legitimate business-related
reason for the wage disparity between Farmer and Makoba. This satisfies the EPA's fourth affirmative defense, a differential based on any
factor other than sex. Corning, 417 U.S. at 196. Under the undisputed facts and the law, the judgment entered against the University
pursuant to Farmer's second cause of action must be reversed.
Breach of Contract
[Headnote 11]
The disposition of the Breach of Contract claim is derivative in nature and wholly dependent on the resolution of the EPA and Title VII
claims. According to Farmer's strained reading of the University's Affirmative Action statement,
5
the unwritten minority bonus policy
contravenes the University's affirmative action policy.
__________

4
As noted previously in the body of this opinion, the rejected instruction offered by Farmer would have instructed the jury that: The
Equal Pay Act specifically forbids that Dr. Makoba's salary should be lowered to make two rates of pay equal.

5
The University of Nevada, Reno, Affirmative Action Statement of Policy and Intent provides in part:
The University of Nevada, Reno in conformity with the Affirmative Action policy of the University of Nevada System and Federal
law, is guided by the principle that there shall be no difference in the treatment of persons because of race, creed, color, sex,
disability, religion, age, veteran status or national origin, and that equal opportunity and access to programs shall be available to
all. This principle is applicable to every member of the University community, students and employed
ity bonus policy contravenes the University's affirmative action policy.
The University, as noted above, has adopted a lawful race-conscious affirmative action
policy in order to remedy the effects of a manifest racial imbalance in a traditionally
segregated job category. The unwritten minority bonus policy merely augments the
University's Statement of Policy and Intent, which provides, in part: Affirmative Action
requires more than employment neutrality. It requires additional efforts to recruit, employ,
retain and promote qualified women, minorities, handicapped and veterans.
The University has aggressively sought to achieve more than employment neutrality by
encouraging its departments to hire qualified minorities, women, veterans, and handicapped
individuals. The minority bonus policy, albeit an unwritten one, is merely a tool for achieving
cultural diversity and furthering the substantive goals of affirmative action.
For the reasons discussed above, the University's affirmative action policies pass
constitutional muster. Farmer has failed to raise any material facts or law which would render
the University's affirmative action policy constitutionally infirm.
In view of our disposition of this appeal, it is unnecessary to address other issues on
appeal. We note in passing, however, that it would appear that the University should have
received the benefit of a summary disposition of all of the claims against it, thereby obviating
the time and expense of trial.
CONCLUSION
For the reasons discussed above, we conclude that the district court erred in denying the
University's motion for judgment notwithstanding the verdict. We therefore reverse.
Springer, J., dissenting:
However schizophrenic the majority may find the United States Supreme Court's
affirmative action jurisprudence, it is now firmly established that all racially discriminatory
state actions, "benign" or otherwise, are permissible only if they are necessary to meet a
compelling state interest.
__________
personnel at every level, and to all units, facilities, and services of the university.
In the employment of all personnel, the university recognizes that as a public agency, it is obligated to support Federal and State
policies which seek to achieve affirmative action in employment for members of minority groups, women and the disabled. . . .
Affirmative Action requires more than employment neutrality. It requires the University of Nevada System to make additional
efforts to recruit, employ, retain and promote qualified women, protected class minority group members, and the disabled.
firmly established that all racially discriminatory state actions, benign or otherwise, are
permissible only if they are necessary to meet a compelling state interest. Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097 (1995). I dissent because I do not
think that the University's affirmative action program, enacted to remedy a perceived racial
imbalance among the faculty, passes this strict standard of constitutional review; and I find no
authority for the majority's assertion that fostering a culturally and ethnically diverse faculty
is a sufficiently compelling reason for intentional racial discrimination by Nevada's public
university.
In Hopwood v. State of Texas, 78 F.3d 932, 945-46 (5th Cir. 1996), cert. denied,
------
U.S.
------
, 116 S. Ct. 2581 (1996), the United States Court of Appeals for the Fifth Circuit
recently rejected the notion that an attempt to achieve racial diversity will satisfy this strict
scrutiny standard.
1
As the Hopwood court noted, Justice Powell's diversity argument in
Regents of the University of California v. Bakke, 438 U.S. 265 (1978), relied upon by the
majority, garnered only his own vote and has never represented the view of a majority of the
Supreme Court. 78 F.3d at 944. After review of the relevant Supreme Court cases, I turn to
Hopwood and conclude that the racially discriminatory action taken by the University is
constitutionally impermissible. Cultural and ethnic diversity simply cannot justify the
University's undisguised racial discrimination in the pursuit of a more racially heterogeneous
faculty.
2
__________

1
Cf. Taxman v. Board of Educ. of Township of Piscataway, 91 F.3d 1547, 1558-63 (3rd Cir. 1996), petition for cert. filed (Congress
neither addressed nor embraced racial diversity for education's sake as a purpose of Title VII, and nothing in federal case law, including
the Supreme Court's equal protection cases, supports recognition of such a purpose.).

2
One compelling interest recognized by the Supreme Court is remedying the effects of prior discrimination. See, e.g., North Carolina
State Board of Education v. Swann, 402 U.S. 43, 46 (1971); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality
opinion); Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) (plurality opinion). However, remedial race-based state action
passes constitutional muster only if the race-based action is taken to remedy prior discrimination by the involved governmental unit, and
not simply in response to statistical disparities resulting from general societal discrimination. Wygant, 476 U.S. 277-78 (plurality opinion of
Powell, J.); accord Croson, 488 U.S. 469.
In the present case, in spite of the majority's loose reference to Dr. Makoba's position as a traditionally segregated job category, the
University has made no showing whatsoever that it has discriminated against blacks in hiring. In fact, as recognized by the majority, the
purpose of the University's affirmative action hiring policy is simply to rectify a manifest racial imbalance among the faculty.
Consequently, this is not a case of remedial affirmative action. Even if it were, it is difficult to see how hiring a recent emigrant from Africa
would be an appropriate remedy for prior discrimination against black Americans.
I dissent from the majority opinion's affirmative action analysis. I also dissent from the
majority's equal pay act analysis and join Justice Shearing's dissenting opinion in this regard.
Accordingly, I would affirm the judgment of the district court.
I do not agree that the University was entitled to judgment as a matter of law on the cause
of action alleging that the University violated 29 U.S.C. Sec. 206(d), the Equal Pay Act. I
would affirm the judgment in favor of Farmer on that cause of action.
This case was submitted to a jury which reached a verdict in favor of Farmer. As the
majority stated, on review of a motion denying judgment notwithstanding the verdict, this
court must view the evidence in the light most favorable to the party against whom the
motion is directed. Air Service Co. v. Sheehan, 95 Nev. 528, 530, 594 P.2d 1155, 1156
(1979). It is not this court's prerogative to consider the weight of the evidence or the
credibility of witnesses. Id. The question we must ask and answer is whether the evidence of
record is such that reasonable people would have necessarily reached a different conclusion.
Id.
Accordingly, we must view the evidence in the light most favorable to Farmer. Regardless
of our own inclinations, we must accept the fact that the jury believed that the disparity in pay
between Farmer and her male colleague was based on gender discrimination. The University
presented evidence that other factors were responsible for the disparity in pay between Farmer
and her male colleague. Obviously the jury did not believe the University's witnesses. The
University does not dispute that the jury was correctly instructed on the requirements and the
burdens of proof under the Equal Pay Act. Appellant's only assignment of error in the
instructions related to the allegations of violation of Title VII of the Civil Rights Act.
Therefore, we are obligated to affirm the verdict and judgment of the trial court with regard to
violation of the Equal Pay Act.
____________
113 Nev. 104, 104 (1997) Golconda Fire Dist. v. Co. of Humboldt
GOLCONDA FIRE PROTECTION DISTRICT, Appellant, v. COUNTY OF HUMBOLDT, a
Political Subdivision of the State of Nevada, Respondent.
No. 26906
January 4, 1997 930 P.2d 782
Appeal from an order of the district court granting respondent's motion to dismiss; petition
for rehearing. Sixth Judicial District Court, Humboldt County; Richard A. Wagner, Judge.
Rehearing granted and opinion clarified.
113 Nev. 104, 105 (1997) Golconda Fire Dist. v. Co. of Humboldt
Puccinelli & Puccinelli and Alvin R. Kacin, Elko, for Appellant.
R. Michael McCormick, District Attorney and Kyle B. Swanson, Deputy District Attorney,
Elko, for Respondent.
OPINION ON REHEARING
Per Curiam:
This is an appeal from an order of the district court granting respondent's motion to
dismiss. On June 24, 1996, we reversed and remanded the district court's order and directed
the district court to conduct an accounting. Humboldt County petitions this court for
rehearing contending that a statute of limitations defense or the doctrine of laches defense
could bar Golconda's recovery in this case. These defenses were raised in Humboldt County's
motion to dismiss to the district court. However, neither party raised these defenses in the
briefs on appeal because the district court's ruling was based solely upon Humboldt County's
immunity from suit.
In the June 24, 1996 opinion regarding this appeal, this court did not intend to prohibit the
district court from considering Humboldt County's legal defenses that were not previously
resolved by the district court or asserted on appeal. Therefore we grant Humboldt County's
petition for rehearing to clarify the mandate of our June 24, 1996 opinion. The district court
may conduct further proceedings in this matter consistent with the reasoning in the June 24,
1996 opinion of this court and is not precluded from considering statutes of limitation, the
doctrine of laches or any other legal defenses that Humboldt County may assert.
1
It is so ORDERED.
2
__________

1
We express no opinion on the merits of any defenses that may be asserted in the proceedings.

2
Having granted Humboldt County's petition for rehearing, we deny the motions filed on July 12, 1996, by the Nevada Association of
Counties, Clark County and Washoe County for leave to appear as amici curiae and to enlarge time to file amicus brief in support of
petition for rehearing. This opinion constitutes our final resolution of this appeal on rehearing.
____________
113 Nev. 106, 106 (1997) Lewis v. District Court
KELLY LYNN LEWIS, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Washoe, and THE
HONORABLE CHARLES M. McGEE, District Judge, Respondents, and MARK
QUINTIN LEWIS, Real Party in Interest.
No. 27119
January 4, 1997 930 P.2d 770
Original petition for a writ of mandamus and prohibition challenging an order of the
district court involving parental visitation rights.
Divorced father filed motion to modify custody. The district court filed order enforcing
divorce decree and earlier modification, including father's visitation rights, and mother
petitioned for writ of mandamus and prohibition. The supreme court, Young, J., held that
district court had subject matter jurisdiction although mother and children presently resided in
California.
Petition denied.
Steffen, C. J., dissented.
Martin Crowley, Reno, for Petitioner.
David D. Loreman, Elko, for Real Party in Interest.
1. Divorce.
Nevada district court had subject matter jurisdiction over motion to modify child custody, under the Uniform Child Custody
Jurisdiction Act (UCCJA), though children had resided in California for several years and mother and several relatives resided there,
where all parties had resided in Nevada for several years prior to divorce proceedings, father continued to reside in Nevada, and
Nevada district court had entered the initial divorce decree and modification thereof and had intimate familiarity with child custody
matter at issue. NRS 125A.050.
2. Divorce.
In case in which trial court acted within its jurisdiction in oral order effectuating its prior divorce decree and modification, though
written order entered after order of supreme court staying all further proceedings in district court was void, this would not prohibit
district court from entering an identical order following supreme court's filing of its opinion.
3. Costs.
Sanctions for frivolous actions are not intended to chill attorney's enthusiasm or creativity in reasonably pursuing factual or legal
theories, and court should avoid employing wisdom of hindsight in analyzing attorney's action at the time of pleading. NRCP 11.
OPINION
By the Court, Young, J.:
FACTS
On April 6, 1988, petitioner Kelly Lynn Lewis (Kelly) and respondent Mark Quintin
Lewis (Mark) were granted a decree of divorce, subsequently modified on August 8, 1988,
by respondent Second Judicial District Court (district court). During the course of their
eight-year marriage, Kelly and Mark produced three children, Jessica (DOB 2-21-82), Eric
(DOB 7-14-84) and Kyle (DOB 8-11-85), who are the subject matter of these proceedings.
The April 6, 1988 divorce decree granted Kelly physical custody of the children, while the
August 8, 1988 modification allowed Mark two months visitation during the summer and two
weeks visitation during both Christmas and Easter. In October 1993, Mark filed a motion to
modify custody in the district court.
On June 2, 1995, after appointing a licensed clinical social worker, Frank Hall (Hall), to
thoroughly inquire into Kelly's accusations of physical and sexual abuse by Mark toward his
children, the district court orally ordered the enforcement of the April 6, 1988 divorce decree
and the August 8, 1988 modification.
On June 13, 1995, before the district court filed its written order and findings regarding the
June 2, 1995 hearing, Kelly filed an emergency petition for a writ of mandamus and
prohibition with this court. The petition for a writ of mandamus urges this court to direct the
district court to conduct a hearing or hearings regarding the visitation issues surrounding the
children. The petition for a writ of prohibition endeavors to prevent the district court from
enforcing its orally announced order of June 2, 1995.
On June 13, 1995, the same day Kelly filed her emergency petition, this court entered an
order staying (1) any further proceedings in the district court; and (2) the district court's orally
pronounced order of June 2, 1995.
On June 19, 1995, the district court filed a written order enforcing the April 6, 1988
divorce decree and the August 8, 1988 modification, including Mark's visitation rights with
his children. The June 19, 1995 written order further stated that the district court had no
current intention of changing child custody and that Kelly would be responsible for half the
children's transportation costs to Mark's residence in Elko, Nevada. Additionally, despite our
dissenting colleague's unfounded assumptions, the June 19, 1995 order clearly mandated
that Kelly and Mark comply with a reintroduction plan which was carefully crafted by the
court-appointed social worker, Hall.
the June 19, 1995 order clearly mandated that Kelly and Mark comply with a reintroduction
plan which was carefully crafted by the court-appointed social worker, Hall.
1
DISCUSSION
Jurisdiction of the district court
During the proceedings below and in her petition for an extraordinary writ, Kelly argued
that the district court lacked subject matter jurisdiction over the proceedings. We have
previously indicated that a determination of subject matter jurisdiction by the district court is
a threshold requirement of the Uniform Child Custody Jurisdiction Act (UCCJA). Swan v.
Swan, 106 Nev. 464, 469, 796 P.2d 221, 224 (1990). The Swan court further suggested that
subject matter jurisdiction can be raised by the parties at any time, or sua sponte by a court
of review, and cannot be conferred by the parties. Id.
[Headnote 1]
Contrary to Kelly's contention regarding the district court's purported lack of subject matter jurisdiction, we conclude that the district
court had jurisdiction over the motion to modify child custody in the case at bar.
In 1979, the Nevada Legislature adopted the UCCJA. NRS 125A.010. The UCCJA was designed to bring some semblance of order
into the existing chaos of child custody jurisprudence.
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1
Hall proposed the following plan to reintroduce the children to their father:
1.) Initial contact should begin by the children's father sending them letters, presents, etc., and talking to them on the telephone.
2.) In-person visitation must occur in an arena in which the children feel safe. It would be the recommendation of this therapist
that Dr. Laskow and the Offices of the Desert Community Mental Health Center be the supervising agent for reintroducing father
and the children.
3.) Activity-centered contact between father and children, in California, can begin when Dr. Laskow believes that the children are
ready to take this step.
4.) At the time Dr. Laskow believes that the children's comfort level is sufficient to allow visitation with their father and
step-mother in Elko, such visitation should be supervised by an experienced mental health professional.
5.) Upon demonstration of successful reintroduction of children and father and step-mother, the parties need to make use of a
formal mediation process to work out an on-going custody and visitation plan. In view of the many moves and uprootings these
children have already undergone, it would be this therapist's strong recommendation that the children continue to attend their
current school where they are comfortable and have achieved some real success, both academically and socially.
Prefatory Note to Unif. Child Custody Jurisdiction Act, 9 U.L.A. 118 (1979); see also NRS
125A.020 (indicating statutory purposes of Nevada's version of the UCCJA). Also,
recognizing that the person who has physical possession of the children had an enormous
tactical advantage in child custody disputes, the UCCJA was meant [t]o remedy the
intolerable state of affairs where self-help and the rule of seize-and-run' prevail rather than
the orderly processes of the law. Prefatory Note to Unif. Child Custody Jurisdiction Act, 9
U.L.A. at 117.
Jurisdiction over child custody disputes in Nevada is governed by NRS 125A.050. In
pertinent part, NRS 125A.050 provides that a court of this state has jurisdiction to make a
child custody determination by initial or modifying decree if:
(b) It is in the best interests of the child that a court of this state assume jurisdiction
because:
(1) The child and his parents, or the child and at least one contestant, have a
significant connection with this state; and
(2) There is available in this state substantial evidence concerning the child's
present or future care, protection, training and personal relationships.
In Swan, we held that the Nevada district court did not have jurisdiction under NRS
125A.050(1)(b) to enter a divorce decree which granted the father custody of his children.
Swan, 106 Nev. at 467, 796 P.2d at 223. However, the facts of the Swan case are dissimilar to
the facts of the present case. In Swan, the father moved to Nevada in January 1987. Id. at 466,
796 P.2d at 222. Several months later, he removed the children from their home state of Utah
and brought them to Nevada. Id. Less than forty days after he brought the children to Nevada,
he filed a complaint for divorce and sought custody of the children. Id. The district court
entered a divorce decree and granted custody of the children to the father. Id. The children's
mother filed a motion to vacate the child custody award because the district court lacked
subject matter jurisdiction. Id.
After the mother's motion to vacate the custody decree was denied by the district court, she
appealed to this court, arguing that the district court erred when it refused to grant her motion
to vacate. Id. We agreed, stating that [r]esiding in Nevada for less than forty days can hardly
constitute a significant connection.
2
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2
Another fact which distinguishes Swan from the case at bar is that the Nevada district court, at the time it granted the divorce decree
and granted the father custody of the children, knew that there was an action pending in the Utah district court on the same subject matter.
See Swan, 106 Nev. at 467, 796 P.2d at 223. In spite of this apparent jurisdictional conflict, the Nevada district court proceeded with the
father's complaint for divorce. In
Id. at 467, 796 P.2d at 223. Accordingly, we ruled that the district court was not authorized to
exercise its jurisdiction under the significant-connection provision of NRS 125A.050(1)(b).
Id.
In the present case, the district court's determination regarding jurisdiction is consistent
with factually analogous decisions from other states which have interpreted the UCCJA. See
In re Marriage of McEvoy, 414 N.W.2d 855 (Iowa Ct. App. 1987); Joseph E. H. v. Jane E.
H., 423 A.2d 739 (Pa. Super. Ct. 1980) (remanded on other grounds). In McEvoy, the court
stated that [s]ignificant connection jurisdiction will continue in the decretal state where the
court record and other evidence exists and where one parent continues to reside. McEvoy,
414 N.W.2d at 857. In Joseph E. H., the court held that significant-connection jurisdiction
had been established in Pennsylvania, notwithstanding the fact that the mother and child were
residents of Maryland. Joseph E. H., 423 A.2d at 741. The Joseph E. H. court's determination
of significant connections with Pennsylvania was based upon the following: (1) the length of
the parents' and son's previous residence in Pennsylvania; (2) the father's continued residence
in Pennsylvania; (3) the son was born in Pennsylvania and lived there until the mother moved
with him to Maryland; (4) the parents had previously litigated the question of child custody in
Pennsylvania; and (5) the parents were subject to an order of the Pennsylvania court
concerning custody and visitation. Id.
3
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contrast, and what we must emphasize, to this court's knowledge, there are no proceedings pending in the children's home state of
California.
Additionally, unlike in Swan, a divorce decree and modification, including custody and visitation orders, were already in place prior to
Kelly and the children leaving Nevada. Although Mark motioned for a change of custody, the district court declined to do so and merely
enforced the already existing visitation order, while ordering compliance with a reunification plan to effectuate that visitation. Therefore, in
effect, the district court left the parties virtually as they were at the time of the divorce decree and modification.

3
Our dissenting colleague cites only to Sholty v. Carruth, 616 P.2d 918 (Ariz. Ct. App. 1980), for his proposition that this court
should deny jurisdiction over this matter pursuant to the UCCJA. In Sholty, the Arizona Court of Appeals held that an Ohio trial court had
no jurisdiction to grant the father visitation with his children who previously moved with their mother from Ohio to Arizona. Id. at 919.
One significant difference from the present case is that in Sholty the father was first seeking visitation; whereas, here, the district court
merely enforced visitation rights that had already been established while Nevada was still the Lewis children's home state.
Additionally, in Sholty, the mother challenged the Ohio order in Arizona by way of a petition for a temporary restraining order, alleging
that Arizona had the proper jurisdiction, not Ohio. Id. at 918. Conversely, to this court's knowledge, at no time had Kelly brought any legal
action in California with respect to this case and even chose to challenge the district court's order in
Similarly, in the present case, we conclude that the requirements for jurisdiction set forth
in NRS 125A.050(1)(b) have been met for the following reasons: (1) Kelly, Mark and their
children had previously resided in Nevada for several years prior to the divorce proceedings;
(2) Mark has continuously resided in Nevada and plans to continue residing in this state with
his current wife; (3) the children were born in Nevada and lived here for several years until
Kelly moved them to several other states before eventually settling in California with her new
husband; (4) Kelly and Mark have previously litigated the issue of child custody in the district
court on several previous occasions and the entire court record concerning the children's
custody is located in Nevada; and (5) the parents are subject to an order of the district court
concerning the custody and visitation of their children.
We further conclude that [t]here is available in this state substantial evidence concerning
the child[ren]'s present or future care, protection, training and personal relationships. NRS
125A.050(1)(b)(2). It is inarguable that the district court has a keen understanding of the
issues surrounding this child custody matter. The district court entered the initial divorce
decree in addition to the modification of the initial divorce decree. Also, the district court
heard numerous motions and contentions regarding the children's custody resulting from
Mark's motion to modify the divorce decree. Consequently, because of the district court's
intimate familiarity with the child custody matter at issue, we conclude that the district court
is in the best position to render a child custody determination that is in the best interests of the
children. Additionally, we note that Hall, the court-appointed social worker, is present in this
state. Hall conducted an extensive home study and evaluation of the parties involved in this
case and submitted a report to the district court which included the reintroduction plan. To
reiterate, in its June 19, 1995 order, the district court mandated that this reunification plan be
followed to effectuate visitation between Mark and his children. Despite our dissenting
colleague's concern, we have every confidence that the district court will oversee the
execution of this plan.
We do not dispute that the children have significant connections to the State of California
because they have been residing in that state for the previous several years. Also, Kelly and
several of her relatives reside in the State of California. Although the California courts are
undoubtedly qualified to handle motions to modify child custody which were originally
entered in another jurisdiction, based upon the facts of this case, we believe that the
district court's continuing jurisdiction over the present child custody matter will further
the UCCJA's goals.4
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Nevada rather than petitioning a California court to assume jurisdiction. Consequently, we do not find Sholty persuasive and prefer to
follow the authority of McEvoy and Joseph E. H.
modify child custody which were originally entered in another jurisdiction, based upon the
facts of this case, we believe that the district court's continuing jurisdiction over the present
child custody matter will further the UCCJA's goals.
4
In sum, a conclusion that the district court lacked subject matter jurisdiction to entertain
Mark's motion to modify child custody will contradict the letter and spirit of the UCCJA,
further delay the children's reunification with their natural father and result in an unnecessary
waste of scarce judicial resources. We cannot subscribe to this notion.
Petition for writ of mandamus
A writ of mandamus is available to compel the performance of an act which the law
requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an
arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97
Nev. 601, 603-04, 637 P.2d 534, 536 (1981). We conclude that the district court did not act
arbitrarily or capriciously during the course of the June 2, 1995 hearing. See NRS 125A.310.
Accordingly, we perceive no compelling reason for granting Kelly's petition for a writ of
mandamus. See Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982).
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4
With regard to the modification of another state's custody decree, the UCCJA authors wrote that [c]ourts which render a custody
decree normally retain continuing jurisdiction to modify the decree under local law. Unif. Child Custody Jurisdiction Act 14
commentary, 9 U.L.A. 292 (1979). The authors further stated that
[i]n order to achieve greater stability of custody arrangements and avoid forum shopping, . . . other states will defer to the
continuing jurisdiction of the court of another state as long as that state has jurisdiction under the standards of this Act. In other
words, all petitions for modification are to be addressed to the prior state if that state has sufficient contact with the case to
satisfy [the UCCJA's jurisdictional requirements]. The fact that the court had previously considered the case may be one factor
favoring its continuing jurisdiction.
Id.
Numerous prominent commentators have also expressed their opinions that the UCCJA's goals will be furthered, provided that
jurisdiction has been met, if the state which entered the original child custody decree retains exclusive continuing jurisdiction over the
matter. See, e.g., Brigitte M. Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction Under UCCJA, 14 Fam.
L.Q. 203, 214 (1981) (stating that the UCCJA rule of continuing jurisdiction carries out the Act's two objectives of (1) preventing the
harm done to children by shifting them from state to state to relitigate custody, and (2) preventing jurisdictional conflict between the states
after a custody decree has been rendered); Helen Donigan, Child Custody Jurisdiction: New Legislation Reflects Public Policy Against
Parental Abduction, 19 Gonz. L. Rev. 1, 18 (1983) (stating that [a] uniform deference to the original state creates predictability and
lessens incentives to continuously relitigate custody orders in new states).
Petition for writ of prohibition
[Headnote 2]
A writ of prohibition may issue to arrest the proceedings of a district court exercising its judicial functions when such proceedings are
in excess of the jurisdiction of the district court. NRS 34.320. We conclude that the district court's June 2, 1995 oral order was not outside
the district court's authority and did not transcend the limits of its jurisdiction. Instead, we conclude that the district court's June 2, 1995
oral order was simply effectuating the April 6, 1988 divorce decree and its August 8, 1988 modification. Accordingly, we deem Kelly's
petition for a writ of prohibition unwarranted. See Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).
In coming to this conclusion, we recognize that the district court's June 19, 1995 written order was entered after our June 13, 1995
order staying all further proceedings in the district court. Consequently, we deem the district court's June 19, 1995 written order void.
However, this conclusion does not prohibit the district court from entering an identical order after this court files the present opinion.
Request for attorney's fees pursuant to NRCP 11
[Headnote 3]
We conclude that Mark's request for attorney's fees pursuant to NRCP 11 is without merit. NRCP 11 sanctions should be issued for
frivolous actions. Marshall v. District Court, 108 Nev. 459, 465, 836 P.2d 47, 52 (1992). However, NRCP 11 sanctions are not intended to
chill an attorney's enthusiasm or creativity in reasonably pursuing factual or legal theories, and a court should avoid employing the wisdom
of hindsight in analyzing an attorney's action at the time of the pleading. Id. at 465-66, 836 P.2d at 52 (citing Marco Holding Co. v. Lear
Siegler, Inc., 606 F. Supp. 204, 211 (N.D. Ill. 1985)). In the case at bar, we conclude that Kelly's petition for a writ of mandamus and
prohibition was not brought frivolously. Therefore, we conclude that NRCP 11 sanctions are not appropriate.
CONCLUSION
Having concluded that Kelly's petition for a writ of mandamus and prohibition will not be granted, we do not need to address her other
contentions regarding Hall's removal from the case or reassigning the case to another department of the district court.
Accordingly, we deny Kelly's petition for a writ of prohibition and mandamus. Furthermore, our June 13, 1995 order staying (1) any
further proceedings in the district court; and (2) the district court's June 2, 1995 orally pronounced order is hereby vacated
in its entirety.
court's June 2, 1995 orally pronounced order is hereby vacated in its entirety.
Springer, Shearing, and Rose, JJ., concur.
Steffen, C. J., dissenting:
I am unable to endorse the Majority Opinion for two reasons. First, the majority has
apparently failed to discern that the respondent district court has not followed and, quite
obviously, does not intend to follow the carefully crafted gradual reintroduction plan
quoted approvingly in footnote 1 of the Majority Opinion. Second, in my view, the majority's
decision does not properly apply and construe the Uniform Child Custody Jurisdiction Act
(UCCJA). See NRS Chapter 125A. In particular, the Majority Opinion does not promote the
general purposes of the UCCJA to assure that child custody litigation is ordinarily resolved in
the state where children and their families have the closest connection, and where
significant evidence concerning the children's care, protection, training and personal
relationships is most readily available. See NRS 125A.020(3) (emphasis added). Nor does
the Majority Opinion advance the general purpose of the UCCJA to assure that the courts of
this state decline jurisdiction over custody disputes when children and their families have a
closer connection with another state. Id. Therefore, I respectfully dissent.
THE REINTRODUCTION PLAN
On June 13, 1995, petitioner Kelly Lynn Lewis (Kelly), filed in this court an emergency
petition seeking an immediate stay of proceedings before the respondent district court and
this court's issuance of writs of mandamus and prohibition. Specifically, Kelly requested this
court to prevent the District Court from enforcing its orally announced order of June 2,
1995, and to issue an emergency order staying the District Court's order pending a full and
fair determination of this petition . . . .
Because the district court had not yet entered a written order memorializing its oral ruling
of June 2, 1995, Kelly attached to her petition a copy of the minutes of the in-chambers
proceeding conducted by the district court. The minutes disclose that the district judge
announced the following ruling at the conclusion of the June 2, 1995, in-chambers
proceeding:
COURT ORDERED: Plaintiff [Kelly] held in civil contempt of Court and is to be
placed in custody of the Washoe County Sheriff until the contempt is purged. The
plaintiff may purge this contempt by supplying to the Court the face sheets of either
three or four one-way tickets to Elko, Nevada for the children to have visitation with
their father after school is out.
Nevada for the children to have visitation with their father after school is out. It will
then be determined by Mr. Hall whether or not the children need to go into a foster
care program during this reunification or will be able to immediately go to their father.
The primary care of the children will not be changed at this time, however, the children
will spend their summer vacation with their father in Elko.
(Emphasis added.)
Along with two other justices of this court, and on the same day that the petition was filed
in this court, I signed an order granting Kelly's request for an emergency stay. That order also
directed the father of the three children involved, real party in interest Mark Quintin Lewis
(Mark), to file an answer to the petition. My immediate concern was that the district court had
ordered three evidently apprehensive minor children to be removed from a stable home
environment in Californiawhere they have been well cared for by Kelly and where they
have an extended support systemand sent to Elko, Nevada, for the summerwhere they
could be placed in foster care while they were being reintroduced to a father with whom they
have had minimal contact in the past eight years. Nothing subsequently presented in the
documents and the oral argument before this court has alleviated my initial, immediate
concern.
Kelly alleged in her petition that, after her divorce from Mark in 1988, she married
Howard Durler, an active duty member of the United States Military. With Mark's consent,
and because of her new husband's military service commitment, Kelly and the children
relocated to Florida in 1989. Later, they relocated again to Idaho and Virginia for brief
periods. In 1993, Kelly, who by then had two additional children by Howard Durler, moved
to Palm Desert, California, where she and her now five children continue to reside. The three
children that are the subject of the instant custody and visitation dispute have not lived in
Nevada, nor have they had any significant contact with this state for what is now a period of
over eight years.
In her petition, Kelly does not oppose a graduated process of re-introduction overseen by
a licensed clinical children's psychologist. She observes that exactly such a process was
proposed in an August 1994 report to the district court by Frank Hall, the court-appointed
clinical social worker from Elko, Nevada. As noted, Hall's August 1994 recommendations are
set forth in footnote 1 of the Majority Opinion. Kelly complains, however, that despite the
near total absence of material compliance with any of Hall's August 1994 gradual
reintroduction recommendations, and without having ever conducted any formal evidentiary
hearing of any kind in open court, the district court has ordered what is "tantamount to a
temporary change of custody for the entire summer."
what is tantamount to a temporary change of custody for the entire summer.
It appears clear that the district court ordered the summer-long visitation in Elko despite
the fact that Hall's 1994 proposal for a gradual process of reintroduction in California, to be
overseen by a licensed clinical children's psychologist, has never been implemented or
followed. Instead, based on the documents on file before this court and the representations of
counsel at oral argument, it is apparent that the district court has abandoned the initial
proposals made by Hall in 1994, and has embarked upon a new plan of action which includes
the possibility that the children will be committed to foster care while they are being
reintroduced to their father.
Under Hall's August 1994 plan: (1) Mark was to have had a series of initial contacts and
meetings with the children in California; (2) those meetings were to have been carefully
monitored and supervised in California by Dr. Laskow, a licensed California clinical
children's psychologist; (3) the in-person visitation was to occur in an arena in which the
children would feel safe; and (4) when Dr. Laskow felt that the children's comfort level was
sufficient to allow visitation with their father and stepmother in Elko, the Elko visit was to
have been supervised by an experienced mental health professional. See Majority Opinion, at
2-3, n. 1. This closely monitored gradual reintroduction plan was expressly proposed by Hall
as a means of overcoming what Hall himself described in his August 1994 report as real
fears and apprehensions that the children have developed of their father.
1
On September 29, 1994, the district court entered an order stating: it is HEREBY
ORDERED that the re-acquaintance period between [Mark] and the children should be
accelerated such that Dr. Laskow and Mr. Hall should have these children ready to begin
monitored supervision in Elko within ninety (90) days from the date of this order. Such a
supervised contact in California between Mark and the children was arranged for November
11, 1994.
In an affidavit filed in this court on June 19, 1995, Hall states: I contacted the facility
where Dr. Laskow had worked and found that he was no longer there and had left under
something other than normal circumstances.
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1
Hall's report states:
All of the children are exceedingly clear in describing their anxiety and concerns about the prospect of being returned to their
father's care. Although it is difficult to gauge to what degree this apprehension is the product of coaching by others, it is the
opinion of this observer, as well as Dr. Laskow, that the concerns and fears of the children are real, whatever their origins.
than normal circumstances.
2
Hall further avers that he contacted the facility [where Dr.
Laskow had worked] and was informed that no-one could do an after hours visitation
facilitation; that he thereafter arranged for someone other than Dr. Laskowwhose
qualifications as a clinical child therapist are not specified by Hallto meet with the
children prior to [Mark's] arrival and to then also meet with the children and [Mark] on
Friday, November 11, 1994. Nonetheless, Hall reports that neither this contact, nor any other
supervised visitations ever took place.
3
Thus, no carefully monitored visitations have ever
occurred, and no licensed California child therapist has ever determined that the children's
comfort level is sufficient to allow visitation with their father and step-mother in Elko.
Moreover, there is nothing in any of the documents before this court indicating that the
court-ordered summer-long visitation in Elko will be supervised by an experienced mental
health professional.
In light of the above, it appears clear that the district court has abandoned the reunification
plan set forth in Hall's 1994 report. It also clearly appears that the district court is presently
adhering to a new reunification plan which permits Hall to make a determination as to
whether the children should be immediately sent to live with their father for the summer or
placed in a foster care program in Elko for some unspecified period.
More specifically, I note that, on June 19, 1995, the district court entered a Supplemental
Order With Findings, concluding that the children should go for their summer visitation
with their father. In addition, the district court expressly found that its "carefully monitored
reintroduction program through Frank Hall is still in place and ready to begin through his
offices."
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2
Hall also states in this affidavit that he now finds the findings of Dr. Laskow suspect. He does not elaborate on this statement. Nor
does Hall explain if he has altered his opinion, expressed in his report of August 1994, that the concerns and fears of the children [for their
father] are real, whatever their origins. In any event, I note that Kelly poses an interesting question respecting the competency of a social
worker to challenge the findings of a licensed psychologist.

3
Hall's affidavit indicates that these meetings did not take place because of last minute changes of plan by Kelly. There is much in the
documents before this court to indicate that Kelly may not have been solely or unreasonably responsible. At the oral argument before this
court, Kelly's counsel complained that, although he was prepared to present evidence and cross-examine witnesses, no formal evidentiary
hearing was ever conducted by the district court respecting whether Kelly unreasonably impeded any scheduled visits. Even assuming that
Kelly was solely and unreasonably responsible for any failed visitation attempts, however, I suggest that such recalcitrance does not justify
abandonment of measures designed to promote the best interests of the children. Uprooting apprehensive children and sending them to Elko
for the summer, where they may be committed to a foster care program, will do little in my view to overcome the real anxieties and fears
that the children have of their father.
carefully monitored reintroduction program through Frank Hall is still in place and ready to
begin through his offices. However, the district court also found:
Mark Quintin Lewis already has an established summer visitation schedule by reason of
a stipulation between the parties in 1988 which allowed [Kelly] to move with the
children subject to certain other requirements such as keeping their father advised of
their whereabouts. Because he has summer visitation, this Court considers that
provision to be the in-place rule governing this case.
(Original emphasis.)
Obviously, the reference in this order to the in place carefully monitored reintroduction
program through Frank Hall, is not a reference to Hall's carefully crafted August 1994
recommendations, the recommendations cited in footnote 1 of the Majority Opinion. The plan
that the district court now has in place appears to have been stated quite plainly by the
district judge in his oral ruling of June 2, 1995, when the judge announced that, after the
children arrive in Elko, [i]t will then be determined whether or not the children need to go
into a foster care program during this reunification or will be able to immediately go to their
father.
4
My reading of this record indicates that the district court has now concluded that a
summer-long visitation must proceed without any material compliance with Hall's August
1994 recommendations. Moreover, despite the lack of any prior adherence to Hall's 1994
reintroduction recommendations, it appears that the district court has concluded that the
children must now be removed to Elko for a summer-long visitation, where they could very
well wind up in a foster care program. It seems quite clear to me that this is now the
in-place carefully monitored reintroduction program to which the district court intends to
adhere.
Indeed, it appears that the district court has concluded that a clinical social worker from
Elko, Nevada, who has apparently only met with the children briefly on one prior occasion,
will determine whether the children need to go into a foster care program during this
reunification or will be able to immediately go to their father. I simply cannot countenance
returning this matter to the jurisdiction of the Nevada district court, where the reintroduction
plan under which the district court is now proceeding appears to include the possibility that
young, apprehensive children will be taken from a stable, supportive environment with their
mother and placed in foster care.
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4
My conclusion in this respect is reinforced by the remarks of counsel at oral argument.
their mother and placed in foster care. I find such an arrangement to be wholly unacceptable.
In sum, Hall initially designed a gradual, carefully supervised reintroduction plan as a
means of decreasing the real anxieties and fears of the children for their father. Hall wrote
that such a reintroduction process would ensure that the children will not suffer further
trauma, and, through the involvement of Dr. Laskow, provide a mechanism to deal with
whatever may have happened in the past, in addition to protecting the rights of each parent to
have meaningful contact . . . . Despite the real anxieties, apprehensions, and trauma from
which the children suffer, the record reflects that: (1) no gradual, supervised, initial contacts
of any kind between the children and their father occurred prior to the district court's June 2,
1995, decision to compel the children's summer-long visitation in Elko; (2) Dr. Laskow was
not and is not now available to supervise any such initial contacts; (3) no licensed California
clinical child psychologist has ever made a determination that the children's comfort level is
sufficient to allow for visitation with their father and stepmother in Elko; (4) the district court
has abandoned the gradual reintroduction process set forth in Hall's 1994 report and does not
now intend to require any initial contacts supervised by a licensed clinical child psychologist
in California prior to subjecting the children to a lengthy, possibly traumatic separation from
their mother, their other siblings, and the extended family and social support system they now
have in California; and (5) no experienced mental health professional has been named to
supervise the children during the Elko visitation ordered by the district court. Quite to the
contrary, it appears that the district court's current plan is to compel the children to go directly
to Elko, where Hall will determine whether the children need to go into foster care during the
reunification with their father or will be able to immediately go to their father.
The district court and Hall have evidently abandoned key elements of the initial plan and
have elected to proceed instead without the carefully crafted guarantees that the Majority
Opinion cites approvingly in footnote 1. I fear that the majority's decision is based, in part at
least, on a misconception that the plan it cites approvingly in footnote 1 remains in place, and
that no forced visitation will occur until there has been compliance with the recommendations
in that plan. I also fear that whatever plan does remain in place includes an arrangement for
placing the children in foster care during a summer-long reintroduction to their father. I am
hard pressed to imagine an arrangement which would do more to exacerbate, rather than
relieve, what Hall has defined as real fears and anxieties of the children for their father.
JURISDICTION UNDER THE UCCJA
Even if I could be reassured that the district court intends to adhere to Hall's August 1994
reintroduction plan, I cannot join in the Majority Opinion because its holding does not
conform to the letter or the spirit of the UCCJA. The threshold issue is whether NRS
125A.050 provides a basis for the Nevada district court to exercise jurisdiction over Mark's
motion for a change in custody. In my view, it does not.
The majority concludes that the respondent district court has properly assumed jurisdiction
over this dispute under NRS 125A.050(1)(b).
5
The respondent court may exercise jurisdiction
under NRS 125A.050(1)(b) if it is in the best interest of the children for the court to do so
because: (1) the children and their parents, or the children and at least one contestant, have a
significant connection with this state; and (2) [t]here is available in this state substantial
evidence concerning the children's present or future care, protection, training and personal
relationships. In my view, there are far more significant California contacts and there is far
more substantial evidence in California concerning the children's care, protection, training
and personal relationships. For example, in Hall's August 1994 report, we are told the
following facts.
Kelly is employed near Palm Desert, California, where she lives with the children in a
quite comfortable home. The two boys, now 11 and 12 years old, sleep in bunk beds on a
spacious, enclosed porch. The parties' 14-year-old daughter has her own room which is
well furnished. Kelly's sister, a physical therapist, and her sister's husband play a very
important supportive role in the lives of [Kelly] and her children. The children's aunt
provides after-school care to the children. They ride the school bus to their aunt and uncle's
home after school, and Kelly picks them up there when she gets off work.
Hall has made one trip to California to interview the children. He was unable, however,
to interview the daughter personally because of school activities, sports, and a medical
appointment.
__________

5
It is clear that NRS 125A.050(1)(b) provides the only possible basis for arguing that the Nevada district court may assume
jurisdiction. None of the other grounds listed in that statute are even remotely applicable. In particular, Nevada was not the home state of
the children at the time of the commencement of this proceeding. Therefore, Nevada jurisdiction cannot be premised on the home state
grounds as provided in NRS 125A.050(1)(a). The children have not been abandoned, threatened with mistreatment or abuse or otherwise
neglected. Thus, Nevada jurisdiction cannot be premised on any emergency as provided under NRS 125A.050(1)(c). As the majority
concedes, the children have significant connections to the State of California. Indeed, it appears that California clearly has jurisdiction
under NRS 125A.050(1)(a) or (b). Thus, jurisdiction cannot be premised on the ground that no other state would have jurisdiction as
provided in NRS 125A.050(1)(d).
He was unable, however, to interview the daughter personally because of school activities,
sports, and a medical appointment. Instead, his only contact with the daughter has been a
single telephone conversation. During this conversation, the young girl appeared very
articulate, quite aware of the purpose of the conversation, and very clear in her wish that
she and the boys not have to see or talk to their father.
Hall's one personal interview with the boys took place in the neutral environment of the
boys' school in the presence of a trusted school counselor. During the interview, the older
boy became quite tearful and asked the school counselor if [Hall] was going to make us go
to my father?' The younger boy expressed mixed feelings about seeing his father again.
As Kelly argues, the psychologists, teachers, doctors, friends, and relatives who are most
familiar with the children all reside in California. Kelly's contention is clearly and
convincingly supported by Hall's report. For more than one-half of their lives, the children
have had little or no contact with Nevada or with their father. They have no friends or
school-mates in Nevada, nor do they attend school in Nevada. Rather, they attend school in
California where they participate in sports activities. California is where their mother, their
other siblings, and the relatives with whom they have closest relationships all reside. All of
their teachers, trusted school counselors, doctors, and friends reside in California, not
Nevada.
In stark contrast to these extremely significant California contacts and the abundant
evidence in California concerning the children's present and future situation, the majority is
only able to say: (1) that the children previously resided in Nevada; (2) that the children's
father has been and plans to remain a Nevada resident; (3) that the children were all born in
Nevada; (4) that the parents previously litigated custody issues in Nevada; and (5) that the
parents are presently subject to the 1988 Nevada district court custody order. The majority
also concludes that the district court's keen understanding of the issues and Hall's presence
in Nevada support a finding that there is substantial evidence in this state concerning the
children's present and future care, protection, training and personal relationships. I cannot
agree that jurisdiction can be tied to Nevada with such slender threads.
In contrast to the abundant and substantial evidence in California, there is little or no
evidence available in this state concerning the children's present or future situation. The
factors cited by the majority primarily relate to the children's distant past. The district court
last revised the custody decree in August 1988. At the time Mark filed his motion for a
change in custody, the district court had no recent knowledge respecting the children's present
or future situation.
or future situation. Any knowledge or evidence before the district court regarding the
children's present or future situation was acquired after the district court assumed jurisdiction.
Most of that knowledge and evidence was gathered by Hall, who visited one time with the
boys in California and had one telephone conversation with the daughter after he was
appointed by the district court to prepare a report.
The UCCJA seeks to promote cooperation with the courts of other states to the end that a
custody decree is rendered in that state which can best decide the case in the interest of the
child, and to assure that child custody matters are ordinarily litigated in the state with which
the child and his family have the closest connection and where significant evidence
concerning his care, protection, training and personal relationships is most readily
available. See NRS 125A.020(3) (emphasis added). The courts of this state should decline
the exercise of jurisdiction when the child and his family have a closer connection with
another state. Id. Pursuant to these policies, California is clearly the jurisdiction that can
better decide this dispute in the best interests of the children. The majority's contrary finding
completely fails to acknowledge or promote any of these general policies.
The case of Sholty v. Carruth, 616 P.2d 918 (Ariz. Ct. App. 1980) is virtually on point.
There, the parents of three minor children lived and were divorced in Ohio in 1976. The
mother, who was awarded custody, moved to Arizona in 1977 where she lived with the
children. In 1980 the father sought visitation rights in Ohio that resulted in an order (the
mother was represented by counsel) granting the father visitation that included a seven-week
period with the children in Ohio. Insetting aside the Arizona superior court's full faith and
credit deference to the Ohio order, the Court of Appeals noted that Arizona, like Ohio, had
adopted the UCCJA, and that the Act provides two major bases for jurisdiction: (1) the
child's home state or (2) the state having a significant connection with the child and his
family. Id. at 919. The Sholty court observed that Ohio was not the home state of the
children, and that although the father had a significant connection to Ohio, the children did
not. The only family tie the children had in Ohio was the father, with whom they had no
contact. The father had filed the motion in Ohio in an effort to reestablish a relationship with
his children. The Sholty court concluded that:
The uniform act generally concerns subject matter jurisdiction and not jurisdiction over
the parties. Consequently petitioner, by stipulation, could not confer upon the Ohio
court jurisdiction which it did not have over the subject matter of visitation. Arizona is
the children's home state and the Ohio order was not binding upon the respondent court.
It therefore should not have declined to exercise jurisdiction over the visitation
issue.
therefore should not have declined to exercise jurisdiction over the visitation issue.
Id. (citation omitted).
The instant case is far more compelling than Sholty. The three children here have had
minimal contact with their father for eight years, and, like the Sholty children, have expressed
substantial anxiety over the prospect of having to spend lengthy periods of time with their
father. California is the home state of the Lewis children, and the state where the children
have extended family, friends and feelings of security. In contrast, it appears that Nevada has
no meaningful relationships for the children with the exception of the father and perhaps
eventually, the stepmother. And, as previously noted, the father has had only minimal contact
with the children over the past eight years. There is simply no basis for the district court in
Nevada to assume jurisdiction over the children, and to do so contravenes both the letter and
the spirit of the UCCJA.
Although I view a finding of jurisdiction in Nevada to be wholly insupportable, I note that
even if jurisdiction could be found to reside in this state, the district court should have
declined to exercise that jurisdiction pursuant to the provisions of NRS 125A.070. Where it
appears that a court of another state would be a more appropriate forum, that provision
permits a court of this state to decline to exercise jurisdiction. See NRS 125A.070(1) and (2).
In making such a decision, the court may consider whether another state has home state
jurisdiction, whether another state has a closer connection with the children, whether
substantial evidence concerning the children's present or future situation is more readily
available in another state, and whether the exercise of jurisdiction by a court of this state
would contravene any of the policies I have noted above that are set forth in NRS 125A.020.
See NRS 125A.070(3).
Moreover, NRS 125A.070 also provides:
4. Before determining whether to decline or retain jurisdiction the court may
communicate with a court of another state and exchange information pertinent to the
assumption of jurisdiction by either court with a view to assuring that jurisdiction will
be exercised by the more appropriate court and that a forum will be available to the
parties.
5. If the court finds that it is an inappropriate forum and that a court of another state
is a more appropriate forum, it may dismiss the proceedings, or it may stay the
proceedings upon condition that a custody proceeding be promptly commenced in
another named state or upon any other conditions which may be just and proper,
including the condition that a moving party stipulate his consent and submission to
the jurisdiction of the other forum.
moving party stipulate his consent and submission to the jurisdiction of the other
forum.
I remain hopeful that the district court may yet utilize these provisions to effectuate an
appropriate transfer of this matter to the jurisdiction of the California courtsthe courts that
are clearly in the better position to decide this matter in the best interests of the children.
CONCLUSION
I do not wish to convey an impression that I oppose a gradual reunification of the children
with their father. From my understanding of the facts, it appears that reunification will be in
the best interests of all concerned. My position is simply that it is clearly not in the best
interests of the children for the Nevada district court to retain jurisdiction over this matter, or
to proceed with the reunification plan that is apparently now in place. Under no
circumstances could I condone placing the children in foster care. I would grant Kelly's
petition and issue a writ commanding the district court to dismiss the action on the condition
that an appropriate proceeding be promptly commenced in California. Therefore, I
respectfully dissent.
____________
113 Nev. 124, 124 (1997) Matter of Parental Rights as to Deck
In the Matter as to the Parental Rights as to CHRISTY AMBER DECK, MICHELE JEAN
DECK and WILLIAM DUPREE, Appellants, v. THE STATE DEPARTMENT OF
HUMAN RESOURCES, DIVISION OF CHILD AND FAMILY SERVICES,
Respondent.
No. 27260
January 4, 1997 930 P.2d 760
Appeal from judgment terminating parental rights. Eighth Judicial District Court, Clark
County; Gloria S. Sanchez, Judge.
Mother and putative father appealed from judgment of the district court terminating their
parental rights. The supreme court, Steffen, C. J., held that: (1) mother's procedural due
process rights were not violated; (2) procedural due process did not require Division of Child
and Family Services to enter into case plan for putative father's reunification with child prior
to seeking termination of his parental rights; and (3) evidence provided jurisdictional and
dispositional grounds to terminate parental rights.
Affirmed.
Springer, J., dissented.
Vincent Ochoa, Las Vegas, for Appellant Deck.
Ronald W. Rovacchi, Las Vegas, for Appellant Dupree.
Frankie Sue Del Papa, Attorney General, Carson City, and Linda C. Anderson, Deputy
Attorney General, Las Vegas, for Respondent.
1. Constitutional Law; Infants.
Procedural due process was satisfied when parental rights of mentally ill mother were terminated because of her failure to make
necessary parental adjustments. Although mother was never given opportunity to care for child, her rights were not terminated on
grounds of neglect, and mother was afforded notice and provided counsel, both at initial proceeding shortly after child's birth and at
subsequent termination hearing held after she demonstrated unwillingness to comply with reunification plan. U.S. Const. amend. 14.
Procedural due process did not require Division of Child and Family Services to enter into case plan for putative father's
reunification with child prior to seeking termination of putative father's parental rights, where putative father did not clearly
acknowledge his paternity, took no steps to establish his paternity after State informed him of how he could do so, and demonstrated
no interest in child. U.S. Const. amend. 14; NRS 128.107.
3. Infants.
Before parent's rights can be terminated, both jurisdictional and dispositional grounds must be proven by clear and convincing
evidence. Jurisdictional grounds relate to specific fault or condition of parents, while dispositional grounds relate to best interests
of child. NRS 128.105.
4. Infants.
Evidence that mother suffered from permanent mental condition, believed that medication had no effect on her, made only token
efforts to develop relationship with her child over the years, and failed to provide support established that mother failed to make
necessary parental adjustments, and gave district court jurisdictional grounds to terminate her parental rights. NRS 128.0126, 128.105.
5. Infants.
Evidence that father provided no support, gave no gifts, and had little or no significant contact with child during five and one-half
years of her life was sufficient to establish abandonment and provided district court with jurisdictional grounds to terminate father's
parental rights. NRS 128.105.
6. Infants.
Evidence that mother's mental illness made her unable to care for child on long-term basis, that long periods of separation without
any visits estranged child from her natural parents, that any reunion would likely be unduly traumatic to child, and that child had
integrated and bonded with maternal aunt and uncle, who were only family child had ever known established there were no
reasonable circumstances where child's best interests could be served by sustaining parental ties with her
natural parents, and provided dispositional grounds for terminating parental rights.
ever known established there were no reasonable circumstances where child's best interests could be served by sustaining parental ties
with her natural parents, and provided dispositional grounds for terminating parental rights. NRS 128.105.
OPINION
By the Court, Steffen, C. J.:
This appeal challenges the district court's judgment terminating the parental rights of
Michele Jean Deck, the mother of Christy Amber Deck (Amber), and William Dupree,
putative father of Amber. Although this is one of the more troubling of these heart-wrenching
cases, we conclude that the district court did not err in its judgment and therefore affirm.
FACTS
Christy Amber Deck was born to appellant Michele Jean Deck on September 5, 1989; no
father's name appeared on the birth certificate. Less than three months prior to Amber's birth,
thirty-five-year-old Michele, who had been declared unable to manage her own affairs, was
placed under the guardianship of the Public Administrator. She was diagnosed as suffering
from paranoid schizophrenia.
1
A protective service agency officer filed a petition alleging that
Michele's mental condition and capabilities are impaired to the degree that she is unable to
provide properly for the needs of the minor. Within three days of her birth, the infant was
placed in the care of her maternal aunt and uncle, Susan and David Nelson. On September 29,
1989, Michele, appearing with her counsel, admitted that her mental condition and
capabilities did not enable her to provide properly for Amber's needs.
A reunification case plan was adopted by the Juvenile Court on January 6, 1990, requiring
Michele to: (1) receive counseling through Las Vegas Mental Health; (2) take prescribed
medication; (3) pay child support in the amount of $10 per month; (4) maintain monthly
contact with her social worker; and (5) maintain monthly supervised visits with Amber.
2
The
goals of the case plan were:
__________

1
Michele had experienced periodic auditory and visual hallucinations and violent mood shifts.

2
The report recognized that Michele was unhappy without her daughter, and Michele notes that the report also stated that Michele was
functioning at her peak level and is able to function on a level that will enable her to provide adequately for herself or the child.
(Emphasis added.) Unfortunately, it is most likely that the report intended to declare Michele unable to function at such a level, as the
previous page of the report indicated that
A. Proper care and placement of [Amber] during the time she is in the custody of the
Division [Division of Child and Family Services].
B. Strengthening the family unit.
C. Reuniting the family, if possible.
D. If reuniting is not possible, choosing other alternatives.
The plan also characterized Michele's behavior as having been disoriented, hostile, and
belligerent towards family members and the Juvenile Court Services. Annette Simmons,
Michele's caseworker throughout the six-year period of her case, filed case reports
approximately every six months with the Juvenile Court.
FIRST CASE REPORT
The first case report, in contrast to the initial case plan hearing where Michele appeared in
court wild looking, very hostile and agitated, reflected Michele's behavior as cooperative
and controlled. Michele was receiving counseling, taking her medication daily, meeting with
her mental health caseworker and maintaining monthly contact with her social worker.
Unfortunately, she had requested only three visits with Amber, who was ten months old at the
time of this report. The report, noting the importance of contact between mother and child,
stated that Amber was adjusting well in the Nelson home and responded happily to the
Nelsons and Michele during visits.
3
The report outlined a new Long-Term/Permanency Plan prompted by an evaluation of
Michele by the Division's contracting psychiatrist, Dr. Forbes. The new plan contemplated
Amber's permanent placement in the Nelson home, under a legal guardianship, based upon
Dr. Forbes' determination that Michele's mental instability was a permanent condition.
4
However, the report also stated that Michele did not consider her condition permanent, and
felt that in time her health would improve and she would be able to secure a full-time job to
support Amber.
__________
Michele Deck is incapable of caring for herself adequately . . . [and that] Michele is, at this time, completely unable to provide [Amber]
with a healthy, safe, secure and stable home environment, which is what [Amber] desperately needs. (Emphasis added.)

3
The report noted that Michele frequently expressed frustration over her sister Susan's role as Amber's provider. Also, Michele's
indication that Susan suffered from chronic alcoholism proved to have a non-problematic foundation.

4
The possibility that Michele might never be able to regain custody of Amber was recognized in the first dispositional report filed on
October 24, 1989, wherein the Protective Service Officer observed that the subject minor cannot be placed with her natural mother and
may never be able to be placed with her mother unless some medication can be found to stabilize her. (Emphasis added.)
improve and she would be able to secure a full-time job to support Amber.
THE SECOND REPORT
The second case report, filed on February 27, 1991, indicated that Michele was still
receiving counseling and meeting with her mental health caseworker. She also appeared to be
taking her medication and continued to be very cooperative with the Division. However,
the report expressed concern that Michele was not progressing; she was not paying any
support, had not made monthly contact with her social caseworker, and had requested only
three visits with Amber despite her awareness that she could visit her daughter more often
than once per month. The Division maintained that such visits were essential to Michele and
Amber's emotional support.
THE THIRD REPORT
Much like the second report, this report, filed on August 28, 1991, reflected that Michele
continued to receive counseling and was meeting with her mental health caseworker and that
it appeared that she was taking her medication. Notably, however, Michele had again
requested only three visits with Amber, had paid no support, and had only made minimal
contact with her social caseworker. The Division expressed concern that more contact
between the mother and her daughter was necessary to preserve a parent/child relationship.
THE FOURTH REPORT
This report, filed February 26, 1992, revealed that on December 25, 1991, Michele gave
birth to a son, Joseph Dupree. Although officials expressed concern over Michele's ability to
care for her new baby, she was allowed to keep her son with weekly monitoring from Child
Protective Services and a public health nurse. Michele regularly informed the social worker
of Joseph's progress and also paid $120 in support for Amber, leaving an arrearage of the
same amount. The report failed to indicate the number of visits Michele requested with her
daughter, but did note that Susan Nelson and Amber visited Michele and her new son Joseph
on a regular basis at Michele's home. The report also indicated that Amber had adjusted well
to the Nelson family.
THE FIFTH REPORT
Filed on September 24, 1992, the fifth report indicated that in April of the same year,
Michele and Susan had a consultation with Dr.
with Dr. Forbes. The doctor determined that Michele was in advanced stages of schizophrenia
and could not take care of Joseph or Amber on a long-term basis.
5
An unannounced visit to
Michele's home was positive, and Michele was pleasant and cooperative. Joseph appeared to
be in no distress. Notably, however, Michele's contact with Amber was described as
minimal and the mother had paid no support. At the Nelson home, Amber appeared
happy, healthy, and content.
THE SIXTH REPORT
This report, filed March 14, 1993, again described Michele's contact with Amber as
minimal. The last visit occurred in December of 1992 and was of relatively short duration. No
support payments were made. The report reiterated the Division's position that it did not
intend to place Amber in Michele's home due to the latter's psychosis. Joseph continued to be
monitored weekly by a public health nurse with periodic visits from Child Protective
Services.
THE SEVENTH REPORT
This report, filed September 23, 1993, stated that on March 11, 1993, Joseph was removed
from Michele's home by the Child Protective Services for two weeks on charges of physical
neglect, emotional instability and a filthy home environment. The home was confirmed to be
filthy and unkempt, but the other charges were found to be unsubstantiated.
6
The Division
later discovered that Michele had not refilled her medication for a while and that her behavior
had deteriorated. The report also revealed that there were reports of domestic violence
between Michele and William, and that there had been concern and reports made regarding
Joseph's safety and health during the previous year. Most significantly, the report indicated
that Michele had not requested any visits with Amber and had not paid any support. Amber
reportedly had formed a strong bond with the Nelsons.
__________

5
Dr. Forbes also observed that Susan continued to have problems with alcoholism, but facts concerning this problem, which included
hospitalization and the joining of Alcoholics Anonymous, are not developed in this opinion as they were resolved and do not have a
position of relevance in the disposition of this appeal.

6
At trial, however, there was testimony concerning domestic violence in Michele and William's home. Michele, in an interview,
claimed that William had thrown objects at her, that the day before he had thrown a plate at her and hit her in the shin, and that he threw a
fork at her face, narrowly missing her eye. William testified that he had never thrown anything at Michele. Michele also testified that
William tried to strangle her once.
THE CASA REPORTS
In 1992, a year prior to the seventh Division report, the Juvenile Court had appointed a
Court Appointed Special Advocate (CASA) to advocate on behalf of Amber's permanency
planning needs. The CASA, Connie Olgespy, filed a report on March 17, 1994, indicating
that Michele had made no contact with Amber since the December 1992 visit. The report
stated that during Olgespy's home visit with Michele on March 3, 1994, Michele's breath
smelled of alcohol. Moreover, despite an obvious effort by Michele to immaculatize the
house, the floors were quite dirty and the couch on which the visit took place smelled faintly
of vomit. During the visit, Michele became visibly upset when asked why she had not visited
Amber. She gave various reasons, one being that the State would not let her because she
owed support money. Michele reportedly often became very angry and almost out of
control. Significantly, when informed that she was entitled to visits with Amber, she stated
I don't want to see her, let them have her, the f
-----
g State took her and that lying bitch, my
baby sister took her. Moreover, Michele declared that she had Joseph because they took
Amber away, stating I showed them. She also said, and then denied, that she just might
overdose on my medication and show everyone.
7
The CASA's report stated that Amber had totally bonded with the Nelsons and with their
nine-year-old daughter, Annie, calling the Nelsons Mommy and Daddy, and referring to
Annie as her sister.
In a CASA report filed September 21, 1994, the CASA described a supervised visit
between Michele and Amber at Michele's home on August 31, 1994. Michele had had no
contact with Amber prior to this visit since December 1992. At this time Amber was almost
five years old. During the visit, Michele became extremely agitated with Susan, prompting
Susan to leave.
__________

7
Also during this visit, Michele described some visual hallucinations she had experienced. She said that a green lizard had come out
of a mole under her left eye, explaining, I heard this crackling noise and there was a green lizard poking his head out of my face. She also
said she had made medical history when a three inch baby with black hair and fins started coming out. She stated that the doctor asked
her if she wanted him to pull it out, and she answered yes, but my f
-----
g doctor pushed it back inside me. She described one time when
she felt a severe burning from her throat down to her pelvis, vomited, and then saw an Indian woman. Finally, she reported that the day
before the visit she had been going to the bathroom, and a head started to come out through her vagina, but she pushed it back in and
crossed her legs. When asked if she had taken her medication that day, Michele responded that she had, but stated the pills are just like
aspirin, they don't do anything.
Although Susan's absence had a calming effect on Michele, the mother had to be encouraged
several times to sit next to Amber. Reportedly, Amber, who was usually an animated, happy,
and somewhat verbal child, was very quiet and withdrawn, and hid behind a coloring book
for ten minutes. The only time Amber spoke was when Susan returned, saying, it's my
Mom. Once in the car with Susan and the CASA, Amber became talkative and happy.
8
The
report stated that the following day, Amber was very clingy and seemed somewhat
confused, going from Susan, to David, and to Annie saying, Mommy, Daddy, sister, and
hugging each of them over and over again. Amber did not want to discuss the visit with
Michele. The report described other incidents indicating Amber's aversion to visiting Michele
and Joseph. Finally, the CASA reported that it would be in Amber's best interest for the
Nelsons to adopt her, as they wanted to do, as it would continue to give Amber the stable
and loving environment which she has come to depend upon.
WILLIAM DUPREE
Appellant William Dupree, who has lived with Michele since before Amber's birth, claims
to be Amber's father. His name was never placed on the child's birth certificate and when
Amber was born, he made no effort to come forward or establish his relationship with Amber.
Michele originally had expressed uncertainty as to the identity of the father, naming William
and another man as possible candidates. In 1990, William spoke with the social worker,
questioned whether he was the father, and inquired as to how he could establish paternity.
The social worker directed William to the Clark County Health Department for DNA testing,
but William never pursued the matter and never again contacted the social worker.
Although the first three case reports listed William Dupree as Amber's father, all reports
after March 1992 were corrected to list him as the putative father. In William's only
affirmative step to establish paternity, he completed an affidavit of paternity. The affidavit
was signed February 21, 1995, five months after he was served with the petition for the
termination of parental rights.
The district court considered William's testimony that he went with Michele to visit
Amber four or five times in five years as lacking in credibility. The social worker testified
that William made approximately three visits, but had experienced close contact with Amber
only on one occasion. The other times he waited in the car while Michele visited. The social
worker also testified that William showed virtually no interest in Amber, had paid no
support and given her no gifts.
__________

8
Because of the extreme anger Michele exhibited towards Susan during the visit, on September 29, 1994, the Juvenile Court ordered
that all visits between Michele and Amber be discontinued.
that William showed virtually no interest in Amber, had paid no support and given her no
gifts. William explained at trial that he had failed to meet his parental obligations because
Amber was living with Michele's relatives and that he felt a little out of place.
9
On March 1 and April 14, 1995, the district court conducted the trial and received
evidence and heard testimony from all interested persons, including the CASA, the social
caseworker, and the recently-appointed mental health caseworker. The court found that there
was no known legally presumed father for Amber, and that William and any other man
claiming that status had abandoned her. The court also found that Michele had failed to make
necessary parental adjustments. The district court also determined that it was in Amber's best
interest to terminate the parental rights of Michele and William and to place Amber with
Susan and David Nelson. This appeal followed.
DISCUSSION
[Headnote 1]
Michele contends that her procedural due process rights were violated because she was never given the opportunity to care for Amber,
and thus there was no evidence of neglect on her part. In support, Michele cites Lassiter v. Department of Social Services, 452 U.S. 18
(1981), and Mathews v. Eldridge, 424 U.S. 319 (1985).
The issue before the Supreme Court in Lassiter was whether counsel was required to represent parents in termination proceedings. The
Lassiter court cites to Mathews in asserting that three elements must be balanced against each other in deciding the requirements of due
process.
10
Lassiter, 452 U.S. at 27. Those three elements are the private interests at stake, the government's interest, and the risk that the
procedures used will lead to erroneous decisions. Id.
Here, Michele was afforded notice and provided counsel at the initial proceeding shortly after Amber's birth. At this proceeding,
Michele acknowledged that she was unable to care for Amber because of her mental condition. Pursuant to the district court's order
removing Amber from Michele's custody, Michele was presented with a reunification plan. Updated reports were submitted to the court
every six months to allow for adjustments. After five years, during which Michele had demonstrated an unwillingness to
comply with the plan through her meager visits with Amber and by paying only nominal support, the State
brought an action to terminate Michele's parental rights.
__________

9
William was diagnosed as having cirrhosis of the liver and was told that the only way he could live was to stop drinking. However,
he admitted at trial to having had a beer a week earlier.

10
Mathews involved termination of social security disability payments, not termination of parental rights.
five years, during which Michele had demonstrated an unwillingness to comply with the plan
through her meager visits with Amber and by paying only nominal support, the State brought
an action to terminate Michele's parental rights. Michele was given notice of the hearing and
was represented by counsel.
Although Michele insisted that there was no evidence of her neglect, and it is true that
Amber never had been in Michele's care, the district court did not terminate Michele's
parental rights because of neglect. The court's decision was based upon Michele's failure to
make necessary parental adjustments. Thus, evidence of neglect was not a necessary predicate
to termination.
Throughout the entire reunification program, continual efforts were made by the State to
reduce the risk that the procedures used would lead to erroneous results, and that the
requirements of due process were met with respect to Michele.
[Headnote 2]
William maintains that his procedural due process rights were violated by the Division's failure to enter into a case plan for his
reunification with Amber. He contends that the Division intentionally kept him in the dark regarding his responsibilities to the court in
order to ensure that Michele never regained custody. However, William never did clearly acknowledge his paternity. He approached the
Division on one occasion, but his concern at that time was whether he was even the father and how he could confirm paternity. William
was told how to establish paternity, but never took the steps necessary to do so, nor did he contact the Division again.
William cites no authority for the proposition that the State is required to provide a case plan in such a situation. However, NRS
128.107 states, in relevant part,
If a child is not in the physical custody of the parent or parents, the court, in determining whether parental rights should be
terminated, shall consider, without limitation:
1. The services provided or offered to the parent or parents to facilitate a reunion with the child.
We conclude that the Division fulfilled its statutory obligation when it informed William of DNA testing and referred him to the Clark
County Health Department. William's failure to otherwise establish his paternity, or show any meaningful or substantial interest in Amber
was a greater cause for the lack of a reunification plan than any conduct by the Division. Moreover, William, as a known putative father,
was provided notice and counsel for the termination proceedings.
The State provided William with due process by informing him of a means by which he could establish paternity and by appointing
counsel at the termination hearing.
ing counsel at the termination hearing. Without further contact from William, and with
virtually no demonstrated interest in Amber, the State was under no obligation to provide
William with a case plan.
JURISDICTIONAL AND DISPOSITIONAL GROUNDS
[Headnote 3]
This court has recognized that the termination of parental rights is an exercise of awesome power. Smith v. Smith, 102 Nev. 263,
266, 720 P.2d 1219, 1220 (1986). Termination of parental rights is tantamount to imposition of a civil death penalty. Drury v. Lang, 105
Nev. 430, 433, 776 P.2d 843, 845 (1989). Before a parent's rights can be terminated, both jurisdictional and dispositional grounds must be
proven by clear and convincing evidence. Smith at 266, 720 P.2d at 1221. Jurisdictional grounds relate to a specific fault or condition of the
parents, while dispositional grounds relate to the best interests of the child. Id.
1. Jurisdictional Grounds
[Headnote 4]
NRS 128.105 sets forth the statutory grounds for termination of parental rights.
11
The district court terminated Michele's parental
rights because of failure of parental adjustment, stating:
MICHELE JEAN DECK has been unable or unwilling within a reasonable time to correct substantially the circumstances,
conduct or condition which led to the placement of her child outside of her home, notwithstanding reasonable
efforts made by the state or a private person or agency to return the child home.
__________

11
NRS 128.105 (amended 1995) provides:
An order of the court for termination of parental rights must be made in light of the considerations set forth in this section and
NRS 128.106, 128.107, and 128.108, with the initial and primary consideration being whether the best interests of the child would
be served by the termination, but requiring a finding that the conduct of the parent or parents demonstrated at least one of the
following:
1. Abandonment of the child;
2. Neglect of the child;
3. Unfitness of the parent;
4. Failure of parental adjustment;
5. Risk of serious physical, mental or emotional injury to the child if he were returned to, or remains in, the home of his
parent or parents;
6. Only token efforts by the parent or parents:
(a) To support or communicate with the child;
(b) To prevent neglect of the child;
(c) To avoid being an unfit parent;
(d) To eliminate the risk of serious physical, mental or emotional injury to the child; or
7. With respect to termination of the parental rights of one parent, the abandonment by that parent.
her child outside of her home, notwithstanding reasonable efforts made by the state or a
private person or agency to return the child home. The inability of the mother to
complete her case plan is not based solely on her mental condition. The mother has
failed to keep in contact with CHRISTY AMBER DECK. The mother instead appears
to have focused her abilities toward caring for her son Joseph and has failed to maintain
a relationship with her daughter. The Court finds that the relations between MICHELE
JEAN DECK and her sister Sue Nelson did not prevent visitation. The mother has not
provided any support for CHRISTY AMBER DECK and has not been consistent in her
contact with the Division regarding her mental health treatment.
The language in the first sentence of the above quote tracks the statutory definition of failure
of parental adjustment found in NRS 128.0126.
12
Michele contends that she met every condition that was written into her case plan.
However, the evidence demonstrates to the contrary.
13
Michele also maintains that, while there is no cure for her disease, she is willing to correct
the problem and has taken the medication since Amber was taken away. The evidence refutes
Michele's assertion. Because Michele's medication is self-administered, it is difficult to verify
whether or not she faithfully takes it.
14
However, the evidence clearly showed that on at least
one occasion, Michele had failed to renew her prescription and did not take the medicine for a
time, which resulted in her son, Joseph, being removed from the home for two weeks.
Further, Michele testified at trial that she believes that when she stops taking the medicine, it
does not affect her. Yet, the evidence at trial clearly indicated that when she fails to take
the medicine, her condition deteriorates.
__________

12
Failure of parental adjustment occurs when a parent or parents are unable or unwilling within a reasonable time to correct
substantially the circumstances, conduct or conditions which led to the placement of their child outside of their home,
notwithstanding reasonable and appropriate efforts made by the state or a private person or agency to return the child to his home.

13
The reunification plan required Michele to: (1) receive counseling through Las Vegas Mental Health; (2) take prescribed
medication; (3) pay child support in the amount of $10 per month; (4) maintain monthly contact with her social worker; and (5) maintain
monthly supervised visits with Amber.

14
Christy Munun, Michele's mental health case manager from September 1994 until trial, testified that Michele had been consistent in
taking her medication. However, she explained that her determination as to whether Michele was taking medication was simply based on
whether Michele showed up at the clinic.
trial clearly indicated that when she fails to take the medicine, her condition deteriorates.
Michele's attitude reflects an unwillingness or inability to recognize the nature of her illness
and the importance of faithfully taking the medicine in order to manage her condition.
Importantly, however, the district court indicated in its findings that Michele's inability to
complete her case plan was not based solely on her mental condition. The district court also
found that Michele had only made token efforts to visit Amber or provide any financial
support. The plan required Michele to pay a nominal amount of child support. Michele failed
to meet this condition. Michele maintains that a guardian at the Public Administrator's office
had control over her funds, and therefore she should not be held responsible for any failure to
provide the $10 monthly support payment. However, Michele failed to explain why she did
not approach her guardian and request that the support payments be made, nor does Michele
explain how a $120 support payment was made in late 1991. Michele reasonably could have
advised her guardian to make the payments, but failed to do so.
Michele further argues that she utilize[d] every opportunity granted to her by the Nevada
State Welfare Division to visit her daughter. However, the evidence clearly showed that the
Division did not prohibit contact between Michele and Amber. To the contrary, the Division
initially allowed Michele supervised visits with Amber once a month, and after 1991, as
frequently as Michele pleased. Michele's failure to visit Amber consistently was a concern to
the Division, expressed in almost every case report. As the trial court noted, Michele's
relationship with her sister Susan, with whom Amber stayed, was not so terrible that Michele
could not have maintained contact with Amber. Michele was free to arrange visitation
through a caseworker, and thus avoid contact with Susan.
Michele's permanent mental condition, her belief that the medication has no effect on her,
her token efforts to visit and develop a relationship with Amber over the years, and her failure
to provide support, all provide clear and convincing evidence of Michele's failure to make the
necessary parental adjustments. Therefore, the district court had jurisdictional grounds to
terminate Michele's parental rights.
[Headnote 5]
William contends that the district court erred in finding that he abandoned Amber. NRS 128.012 defines abandonment of a child as
any conduct of one or both parents of a child which evinces a settled purpose on the part of one or both parents to forego all parental
custody and relinquish all claims to the child. The statute states that the intent to abandon is presumed when the
parent leaves the child in the care of another without provision for support and without communication for six
months.
statute states that the intent to abandon is presumed when the parent leaves the child in the
care of another without provision for support and without communication for six months.
This court stated in Sernaker v. Ehrlich, 86 Nev. 277, 280, 468 P.2d 5, 7 (1970):
Abandonment is conduct. The typical kinds of conduct which constitute
abandonment are the withholding of parental presence, love, care, filial affection and
support and maintenance. The conduct must be intentional and must show a settled
purpose to relinquish all parental rights in the child. Nonsupport is not synonymous
with abandonment but it is a factor in determining whether a parent has abandoned his
child. Lack of support plus other conduct such as a failure to communicate by letter or
telephone, or absence of sending gifts is sufficient to uphold the trial court's conclusion
that the child has been abandoned.
(Citations omitted.)
William contends that he had a continuous relationship with Michele and maintained
stable housing throughout Amber's life, that he went to court appearances with Michele and
was never asked to participate in the court proceedings. However, these facts do little to
overcome his lack of involvement in Amber's life. The evidence clearly established that at the
outset, it was unclear who Amber's father was, and that William and Michele both questioned
paternity. William made no effort to establish himself as the natural father, even though he
had information regarding where to go for testing. An affidavit of paternity was signed only
after the commencement of litigation to terminate William's parental rights. William provided
no support, gave no gifts, and had little or no significant contact with Amber in her
five-and-one-half years of life. Such lack of involvement afforded clear and convincing
evidence of abandonment and provided the district court with jurisdictional grounds to
terminate William's parental rights.
2. Dispositional Grounds
[Headnote 6]
Dispositional grounds exist [i]f under no reasonable circumstances the child's best interest can be served by sustaining the parental
tie. Champagne v. Welfare Division, 100 Nev. 640, 652, 691 P.2d 849, 858 (1984). In Champagne, this court stated that in determining
dispositional grounds, the court may consider
whether additional services would be likely to bring about a lasting parental adjustment . . . within a predictable period of time,
NRS 128.107(4); it may consider the physical, mental, or emotional conditions and needs of the child, including
the child's desires, NRS 12S.107{2); or it may conclude that the natural parents are so depraved or so
disinterested that it appears that even having no parents is better than having this kind of parent.
mental, or emotional conditions and needs of the child, including the child's desires,
NRS 128.107(2); or it may conclude that the natural parents are so depraved or so
disinterested that it appears that even having no parents is better than having this kind
of parent. The overlying dispositional issue is that of the welfare of the child.
Id. at 652-653, 691 P.2d at 858.
In the present case, Amber has lived with Susan and David Nelson her entire life and is
flourishing in their household. She considers them her parents and is treated as a daughter.
Amber has had so little contact with Michele and William that she considers them strangers.
Michele points to Ms. Munun's testimony, wherein Ms. Munun stated that Michele
appeared to adequately take care of her other child, Joseph. However, Ms. Munun also
admitted that her expertise did not include Michele's ability to care for Amber. On the other
hand, Dr. Forbes concluded that Michele's mental condition prevented her from providing for
a child on a long-term basis.
The district court found the CASA's testimony very credible in concluding that the best
interest of Amber would be served by placement with Susan and David Nelson. Michele
contends that the CASA's testimony was biased because between March and September of
1994, the CASA had no contact with Michele or William, but had eighteen contacts with the
Nelsons. Michele further points out that the CASA's testimony is based on only one interview
with Michele and one visit with Michele and Amber. However, the CASA explained that she
made more contacts with the Nelsons because that's where Amber is and I needI need to
make sure that everything is being maintained as it should be.
The CASA testified that in all her visits with the Nelsons, she had always observed Susan
sober and had never detected alcohol abuse. She testified that the Nelsons are loving and
responsive to Amber.
We conclude that there are no reasonable circumstances where Amber's best interests can
be served by sustaining a parental tie to Michele and William for the following reasons: (1)
psychiatric evaluations have concluded that Michele is not able to care for Amber on a
long-term basis; (2) long periods of separation without any visits from Michele or William
have estranged Amber from her natural parents, and any reunion would likely prove unduly
traumatic to Amber; (3) Amber has integrated and bonded with the Nelsons and enjoys a
loving and nurturing environment in their home; and (4) the Nelsons are the only family
Amber has ever known.
CONCLUSION
For the reasons discussed above, we conclude that the district court did not err in
terminating the parental rights of Michele and William and ordering the placement of Amber
with Susan and David Nelson. We therefore affirm the judgment entered by the district court.
Young, Shearing, and Rose, JJ., concur.
This case is similar to Bush v. State, Dep't Hum. Res., 112 Nev. 1298, 929 P.2d 940
(1996), in which I dissented because I objected to this court's affirming the termination of
parental rights of parents because they were mentally handicapped. In the Bush case, the
parents whose parental rights were terminated were mentally deficient, having IQ's in the
60's. In the present case, the child's mother, Michele Deck, is disabled by chronic paranoid
schizophrenia that manifests itself in the form of intermittent auditory and visual
hallucinations. The State claims that this mother's mental disability renders her incapable of
continuing to be the mother of her daughter, Amber. The difference between this case and the
Bush case is the difference between the handicap of mental deficiency and the handicap of
mental disorder.
I dissent with respect to the termination of parental rights of the mother, Michele Deck,
only. Ms. Deck suffers from paranoid schizophrenia, a chronic mental disorder that is
treatable chemically. Although the trial court ruled that the inability of the mother to
complete her case plan is not based solely on her mental condition, it is quite apparent that
this mother's schizophrenia was the main reason (as was mental deficiency in the Bush case)
for (as put by the majority) Michele's failure to make necessary parental adjustments.
As pointed out by the majority, although Ms. Deck has suffered from periodic auditory
and visual hallucinations and violent mood shifts, she does have extended periods of
remission and, at present, has custody of her other, younger child, Joseph, born December 25,
1991. The terminated child, Amber, has been living with her aunt and uncle and apparently
is doing well in their home; and, I am not saying, of course, that Amber should be snatched
out of her present environment and placed now, full-time, in her mother's custody. All I am
saying is that it is not necessary under the circumstances of this case to sever permanently the
parental relationship of this child with her mother. [A] parent does not deserve to forfeit the
sacred liberty right of parenthood unless such unfitness is shown to be severe and persistent
and such as to render the parent unsuitable to maintain the parental relationship."
persistent and such as to render the parent unsuitable to maintain the parental relationship.
Champagne v. Welfare Division, 100 Nev. 640, 648, 691 P.2d 849, 855 (1984) (emphasis
added). Ms. Deck does not deserve to have her daughter taken permanently away from her;
and, although Ms. Deck may be sick, she is raising her son Joseph in her home, and it appears
to me that her treatable mental illness has not created the irremediable inability to function
as a parent that was referred to in Champagne. Id. at 648 n.5, 691 P.2d at 855.
I complained in Bush about this courts failing to deal with the principles that should be
applied to handicapped parents who have difficulties in raising their children. I complain
again here. As the law now stands, welfare officials do not have to be concerned about
faultless disabilities and handicaps. I would like to see the court define what circumstances, if
any, would justify permanent severance of the parental ties of mentally deficient, mentally
disordered, or, for that matter, physically disabled parents. It continues to refuse to do so. The
attitude of welfare officials and this court appears to me to be: We'll try to help you for a
while, but after that if your handicap prevents you from conforming to our case plan,' we are
going to take your children away permanently. This is not right.
As recognized by the majority, dispositional grounds for permanently severing the parental
relationship are present only when under no reasonable circumstances the child's best interest
can be served by sustaining the parental tie. There are many ways in which the child's interest
can be served in this case without taking her mother away from her. Apparently, she has been
living with her aunt and uncle for some time and will continue to live with them in the same
fashion whether her mother is permanently taken away from her or not. About the only,
remote circumstance that I can see that could possibly justify a termination in this case would
be if the aunt and uncle were to take the unreasonable position that they would not continue
to serve as foster parents unless the State effected a termination of the natural mother's
parental rights. Even under such a hypothetical circumstance, I would still have to be
convinced that there were no reasonable circumstances under which the child could keep her
mother.
As I have indicated in my dissents to other termination cases, the State seems to be
running amok, spouting pop psychology and terminating parental rights in cases where it is
clearly not necessary to do, particularly in cases of poor and otherwise handicapped parents.
See Bush, supra; In the Matter of Parental Rights as to Bow, 113 Nev. 141, 930 P.2d 1128
(1997).
____________
113 Nev. 141, 141 (1997) Matter of Parental Rights as to Bow
In the Matter of Parental Rights as to
MICHAEL WILLIAM BOW
ADRINA FRANCIS DECESPEDES RECODO, Appellant, v. THE STATE OF NEVADA,
DEPARTMENT OF HUMAN RESOURCES, DIVISION OF CHILD AND FAMILY
SERVICES, Respondent.
No. 27315
January 4, 1997 930 P.2d 1128
Appeal from an order terminating parental rights. Eighth Judicial District Court, Clark
County; Gerald W. Hardcastle, Judge.
State Division of Child and Family Services (DCFS) brought proceeding to terminate
parental rights of indigent Native American mother, whose voluntary foster placement of
child so she could attend school and find employment off reservation had resulted in neglect
adjudication. The district court ordered termination. Mother appealed. The supreme court,
Rose, J., held that: (1) mother's inability to comply with case plan requiring her to maintain
steady employment, housing, and visitation was clear and convincing evidence of unfitness
and failure of parental adjustment; (2) testimony that child was thriving in foster home and
that foster parents wished to adopt him was clear and convincing evidence that termination
was in child's best interests; and (3) failure to appoint counsel for mother until final
termination proceeding did not violate due process.
Affirmed.
Potter Law Office and Michael Vaclav Stuhff, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and Linda C. Anderson, Deputy Attorney
General, Carson City, for Respondent.
1. Infants.
Termination of parental rights is akin to civil death penalty and thus must be scrutinized closely on appeal.
2. Infants.
In proceeding to terminate parental rights, both jurisdictional grounds, found in some specific fault or condition directly related to
parents, and dispositional grounds, found by general evaluation of child's best interest, must be established by clear and convincing
evidence.
3. Infants.
Supreme court will uphold order of termination of parental rights if it is based on substantial evidence and will not
substitute its judgment for that of trial judge who heard and observed witnesses.
it is based on substantial evidence and will not substitute its judgment for that of trial judge who heard and observed witnesses.
4. Infants.
Test of severe and persistent parental unfitness, rendering parent unsuitable to maintain parental relationship and so warranting
termination of parental rights, describes parent who deserves to have rights terminated by reason of persistent fault or state of
incapacity or must sacrifice rights, in interest of child, by reason of irremedial inability to function as proper and acceptable parent.
NRS 128.018, 128.105(2)(c).
5. Infants.
Mother's failure to find housing and employment and establish stability needed to care for child, even after Division of Children
and Family Services (DCFS) found substitute care relieving mother of obligation to care for child, constituted clear and convincing
evidence of irremedial inability to function as proper and acceptable parent and thus of parental unfitness. NRS 128.018,
128.105(2)(c).
6. Infants.
Mother's failure to correct chronic instability in employment, housing, and contacts with child within 18 months after adjudication
of neglect and formulation of case plan constituted sufficient jurisdictional grounds to allow evaluation of dispositional grounds to
terminate parental rights, as there was no indication that additional services would bring about lasting parental adjustment, where
mother went through three jobs, two of which ended for cause, frequently changed her living arrangements, and maintained sporadic
contact with Division of Child and Family Services (DCFS) and with child. NRS 128.105(2)(d), 128.109(1)(b).
7. Infants.
Clear and convincing evidence existed that child's best interests would be served by terminating mother's parental rights where
foster parents wished to adopt child, who had lived in their home for 18 months and was thriving, in contrast with instability child
experienced with indigent mother who lacked adequate child care and regular transportation and was unable to maintain stable living
arrangement while attending school and seeking employment off reservation.
Failure to appoint counsel for indigent mother until final proceeding to terminate parental rights did not violate due process, as
mother's liberty interest was properly protected at actual termination hearing. U.S. Const. amend. 14.
OPINION
On May 31, 1995, the district court terminated the parental rights of appellant Adrina
Francis Decespedes Recodo (Recodo) after concluding that Recodo was an unfit parent and
had failed to adjust to become a suitable parent within a reasonable period of time. Recodo
challenges the district court's conclusion, arguing that no clear and convincing evidence
existed to support such a conclusion.
conclusion. Recodo also argues that her due process rights were violated because she was not
appointed counsel at all stages of the termination proceedings.
We conclude that clear and convincing evidence existed to support the district judge's
conclusion and that Recodo's due process rights were not violated.
FACTS
Michael William Bow (Michael) was born to Recodo on February 21, 1992.
1
Recodo is an
American Indian enrolled with the Goshute/Shoshone tribe who at the time of the termination
hearing was twenty-six years old. Until she was approximately three years old, Recodo lived
on a reservation in Arizona, and in 1981, Recodo moved with her grandparents, her
guardians, to rural Southern Nevada. In addition to Michael, Recodo has four other children.
At the time of the termination proceeding, Michael was living in a prospective adoptive foster
home. Three of her other children, Maria, Victor, and Fernando, were in the custody of Victor
and Fernando's father, Recodo's ex-husband Fernando Decespedes. Recodo's marriage to
Decespedes ended because he beat her. Her daughter Lupita was living with her at her
grandmother's house.
Michael came to the attention of Debra McEwan, the social worker for the Moapa Band of
Paiutes. According to McEwan, on approximately April 1, 1993, Recodo voluntarily placed
Michael in foster care due to her financial inability to meet his needs. At the time of the
placement, Recodo was living with her grandmother who could not adequately care for
Michael due to her health and age and Michael's special medical needs at birth. As a result,
McEwan agreed to place Michael in courtesy foster care for a short period of time so that
Recodo could obtain her GED at the Indian Center and look for employment in Las Vegas on
weekdays and still care for Michael on the weekends. This arrangement was scheduled to last
for six months. Recodo testified that during this period, she drove her grandfather's car into
Las Vegas but that after a while she was unable to afford gas for the daily trips between Las
Vegas and her grandmother's house on the reservation. As a result, she would stay with
friends in Las Vegas, or when that was not possible she would study and sleep in the car.
__________

1
Recodo was unmarried at the time of Michael's birth, and no father is listed on Michael's birth certificate. Recodo named Steven
Michael Bourgoise as the putative father, but the actual identity of Michael's father is unknown. The putative father was deemed, pursuant
to NRS 128.012, to have abandoned Michael by conducting himself in a manner evincing an intent to relinquish all claims to Michael for a
period of six months.
in the car. Recodo also testified that at this point her financial situation was so bad that often
she would not eat for days just so she could afford to drive to Las Vegas to attend school and
to try to find a job. Around May 1993, Recodo's car broke down, and her grandparents sold it
to her aunt and uncle. Recodo stated that she would either ride her bike or try to get rides with
friends into Las Vegas to look for work, to appear in court, and to visit Michael at
Childhaven, the state facility where Michael was eventually placed.
Michael was initially placed temporarily with Native American foster parents. McEwan
testified that because Michael was not a large enough percentage of Native American, he did
not fall under the Indian Child Welfare Act and was not eligible for enrollment in any tribe.
Technically, McEwan should not have been funding his placement, but she placed Michael
because Recodo was Native American, because Michael needed help, and because it was for
the purpose of family reunification. Michael's placement with the foster family was supposed
to allow Recodo to maintain contact with Michael while she obtained her GED and sought
employment and also to allow Michael to be in a safe environment in which he would be
taken care of. According to McEwan, during Michael's stay in foster care, Recodo did not
maintain regular contact with Michael, take Michael back on weekends, look for a job, or go
to counseling. Cynthia Blaya, Recodo's DCFS caseworker, stated that she believed that
Recodo had received her GED despite being involved in an altercation with another student
and the teacher and being asked to leave the class, but McEwan testified that she did not
believe that Recodo obtained a GED.
In the middle of June 1993, Michael's stay with the foster family ended because of
problems in the foster home. Because, as noted above, McEwan could not fund Michael's
placement in a foster home, McEwan contacted Roger Thiriat of Clark County Child
Protective Services (CCCPS) on June 21, 1993, regarding placing Michael under state care.
Michael stayed at his great-grandmother's house for a week before CCCPS picked him up and
placed him in Childhaven. During that week, Michael's great-grandmother was unable to
properly care for him because of her health problems, and most of Michael's care was being
provided by his fifteen-year-old aunt. Recodo's grandmother told McEwan that Recodo had
threatened to kill McEwan if she tried to move Michael from the home.
On June 25, 1993, Thiriat contacted Recodo about Michael's impending placement in
Childhaven. Recodo told him that she was living with a male friend in Las Vegas and was
unable to care for Michael. Accordingly, Thiriat filed a petition pursuant to NRS Chapter
432B alleging that Michael was a neglected child.
NRS Chapter 432B alleging that Michael was a neglected child. Recodo admitted the petition
on July 8, 1993.
On August 4, 1993, Michael was adjudicated a neglected child and made a ward of the
Eighth Judicial District Court, Juvenile Division. He was placed into legal custody of the
Division of Child and Family Services (DCFS) on August 4, 1993. On August 31, 1993, a
case plan was established for Recodo. The plan required that Recodo: (1) maintain steady
employment; (2) maintain steady, suitable, and appropriate housing; (3) complete a parent
effectiveness training program; (4) maintain regular visits with Michael; (5) undergo
individual and family therapy; (6) at least monthly, keep DCFS apprised of her address and
telephone number; and (7) pay child support of $100 a month.
In September 1993, Michael was removed from Childhaven and placed with a second
foster family. Recodo saw Michael in February 1994 on his second birthday, one time in
October 1994, one time in December 1994, and one other unspecified time at the CCCPS
office.
The initial judicial review of Recodo's case was held on October 5, 1993. The district
judge found that Recodo had made regular visits to see Michael during his time at Childhaven
but that she had not made any great progress toward reunification.
In October 1993, Recodo married Joachim Recodo (Joachim), a native of the Philippines,
but Joachim was in this country illegally.
2
In February 1994, Recodo told Cynthia Blaya that
Joachim was being deported to the Philippines and that she was now ready to work towards
reuniting with Michael.
Between February and April of 1994, Recodo apparently had two different jobs. First, she
was working as an unarmed security guard at Wells Fargo. That employment lasted only
about three months because Recodo was terminated when she allegedly made threatening
remarks to a fellow employee. For a brief period, Recodo also worked at the Santrop
Convenience Market as a clerk and cashier. This employment ended because Recodo was
allegedly rude to a customer. According to Recodo, she remained unemployed for the next six
to eight months.
In April 1994, DCFS had a second hearing in district court regarding Recodo's progress.
The DCFS report indicated that Recodo had not contacted it for five of the six months in the
reporting period. During this hearing, the court warned Recodo that if she did not make
progress between that time and the next hearing, DCFS would begin the termination of
Recodo's parental rights.
__________

2
Recodo testified that the marriage was null and void because she had never obtained a legal divorce from Decespedes.
In September 1994, Recodo was indicted for the non-probationary offense of bank fraud
along with her ex-husband, Fernando Decespedes, and another man. At the time of the
termination proceeding, another hearing on the bank fraud charges was scheduled for May 22,
1995. According to Recodo, Decespedes coerced her into participating in the crime by
holding a gun to her head and telling her that she was a lousy mother who would never
amount to anything. Then he pulled the trigger on an empty chamber. He then persuaded
Recodo to assist him in the crime by confronting her with her inability to fulfill the case plan
by obtaining transportation and insinuating that after the crime was committed she would be
able to afford to obtain transportation.
On November 30, 1994, the State filed a petition to terminate Recodo's parental rights.
The State claimed that under NRS 128.014 Recodo had neglected Michael by failing to
provide him with such things as proper parental care, necessary subsistence, education, and
medical care. The State also charged that Recodo was an unfit parent for failing to provide
Michael with proper care, guidance, and support. The State noted in its petition that Recodo
had been given a substantial amount of time to remedy the conditions that led Michael to
being placed in foster care.
At the time of the petition, Michael had been residing in a prospective adoptive foster
home since September of 1993. Ruth, the foster mother, testified at the termination hearing
that she and her husband wished to adopt Michael.
The termination proceedings commenced on April 21, 1995. McEwan testified that after
Michael had been placed in state custody in 1993, she did not hear from Recodo for many,
many months. Then Recodo contacted her in late 1994, and from November 1994 through
February 1995, McEwan had very heavy contact with Recodo. McEwan testified that since
November 1994, she had seen more of an effort on Recodo's part to turn her life around: with
the financial help of her grandmother, Recodo had bought a car; she had been seeing a
psychologist; she had made a more concerted effort to maintain employment; and between
November 1994 and April 1995 she only lost contact with DCFS one or two times. McEwan
also testified that she worked with Recodo to help reunite her with Michael by helping
Recodo budget her money so that she could get her own place to live and a regular means of
transportation, setting up a specific schedule to visit Michael while he was in the custody of
the state, and referring Recodo to Dr. Waldmeyer, a psychologist for the tribe. Recodo also
saw another therapist fairly regularly from November 1994 until February 1995. In March
1995, Recodo applied and was accepted for unemployment benefits, and McEwan stated
that a day care facility suitable for Michael's needs had opened on the reservation and
that social services, such as Indian general assistance and McEwan's service section,
were available to help both Recodo and Michael.
ment benefits, and McEwan stated that a day care facility suitable for Michael's needs had
opened on the reservation and that social services, such as Indian general assistance and
McEwan's service section, were available to help both Recodo and Michael. As far as
terminating Recodo's rights to Michael, McEwan testified that although Recodo had been
unreliable in the past in following through on required adjustments, she would like to see her
have another chance.
Veronica Jean Amiano, a social work supervisor with DCFS, testified at the termination
hearing as follows. On June 3, 1994, Recodo came to the division office and was agitated,
upset, and used quite a bit of profanity. She requested to talk to Amiano privately, and in
Amiano's office Recodo expressed her annoyance with the termination proceedings and her
frustration that she did not seem to have a way to actually get Michael back. She told Amiano
that she had a good mind to blow up the division office and take her son. She told Amiano
that she was out of her anti-anxiety prescription and that the Indian Affairs Office had not
helped her to renew it. Recodo told Amiano that she felt like she was giving up on her son
and that the DCFS should draw up the relinquishment papers and let her know when to come
in and sign them, and on September 24, 1994, Recodo called Amiano again and repeated this
request.
Cynthia Blaya, Recodo's DCFS caseworker, testified that the biggest impediment to
Recodo's possible reunion with Michael was her inconsistencies. These included her inability
to maintain steady employment, find appropriate housing, and maintain a regular visitation
schedule with Michael. Blaya stated that from August 1993, when the State obtained custody
over Michael, to April 1995, the time of the termination hearing, she saw very little progress
from Recodo. She also stated that since the initial October 5, 1993 court review, Recodo had
not provided verification of progress on her case plan, although Recodo had completed
parenting classes in February 1994. Additionally, by the time of the termination proceeding,
Recodo had only paid $160 in child support.
On May 31, 1995, the district court granted the State's petition to terminate Recodo's
parental rights to Michael. The district court concluded that Recodo was an unfit parent as
defined by NRS 128.018 (defining unfit parent as one who has by his or her own fault failed
to provide the child with proper care) and NRS 128.106 (listing specific considerations in
determining neglect by unfit parents). Additionally, the district court found that Recodo had
failed to adjust to become a reasonable parent within a reasonable period of time as defined
by NRS 128.0126.
Recodo now argues that no clear and convincing evidence existed to support the district
judge's conclusion and further that her due process rights were violated because she was
not afforded counsel throughout the entire termination process.
existed to support the district judge's conclusion and further that her due process rights were
violated because she was not afforded counsel throughout the entire termination process.
DISCUSSION
[Headnote 1]
The power to terminate parental rights is an awesome power. Champagne v. Welfare Division, 100 Nev. 640, 645, 691 P.2d 849, 853
(1984). This court has characterized the termination of parental rights as a civil death penalty. Drury v. Lang, 105 Nev. 430, 433, 776 P.2d
843, 845 (1989). Consequently, a termination of parental rights must be scrutinized closely on appeal. Kobinski v. State, 103 Nev. 293,
296, 738 P.2d 895, 897 (1987).
[Headnotes 2, 3]
Two kinds of grounds must be considered in termination proceedings. Champagne, 100 Nev. at 646-47, 691 P.2d at 854. [T]here
must be jurisdictional grounds for terminationto be found in some specific fault or condition directly related to the parentsand
dispositional groundsto be found by a general evaluation of the child's best interest. Id. at 647, 691 P.2d at 854. Both grounds must be
established by clear and convincing evidence. Id. at 648, 691 P.2d at 854. However, this court will uphold an order of termination if it is
based on substantial evidence and will not substitute its judgment for that of the trial judge who heard and observed the witnesses.
Kobinski, 103 Nev. at 296, 738 P.2d at 897.
[Headnote 4]
The district court found that jurisdictional grounds existed pursuant to two factors listed in NRS 128.105. The first was Recodo's
parental unfitness. See NRS 128.105(2)(c). The term unfit parent as used in NRS 128.105 is defined as any parent of a child who, by
reason of his fault or habit or conduct toward the child or other persons, fails to provide such child with proper care, guidance and support.
NRS 128.018. This court has explained that
all parents are guilty of failure to provide proper care on occasion; and a parent does not deserve to forfeit the sacred liberty right
of parenthood unless such unfitness is shown to be severe and persistent and such as to render the parent unsuitable to maintain
the parental relationship.
Champagne, 100 Nev. at 648, 691 P.2d at 855 (footnote omitted). The term unsuitable is used to describe a parent who by reason of
persistent fault or state of incapacity deserves to have his or her parental rights terminated or who must sacrifice such
parental rights in the interest of the child, by reason of irremedial inability to function as a proper and
acceptable parent."
his or her parental rights terminated or who must sacrifice such parental rights in the interest
of the child, by reason of irremedial inability to function as a proper and acceptable parent.
Id. at 648 n.5, 691 P.2d at 855 n.5.
Pursuant to NRS 128.106(8), a condition which diminishes the suitability of a parent is the
Inability of appropriate public or private agencies to reunite the family despite
reasonable efforts on the part of the agencies.
[Headnote 5]
After reviewing the record in the present case, we conclude that clear and convincing evidence of Recodo's unfitness existed. The
district judge concluded that the efforts of DCFS were reasonable and that they even found substitute care for Michael so that Recodo could
find housing and employment and could establish stability in her life. The district judge also concluded that testimony proved that even
after Recodo was relieved of the obligations of caring for Michael she did nothing to help establish stability in her life which she needed to
care for Michael. This constitutes clear and convincing evidence of Recodo's irremedial inability to function as a proper and acceptable
parent.
[Headnote 6]
The second jurisdictional ground was a failure of parental adjustment. NRS 128.105(2)(d). The district court concluded that Recodo
was unable or unwilling within a reasonable time to substantially correct the conditions which led Michael to be placed outside her home.
In August 1993, Michael was adjudicated to be a neglected child and was placed in the custody of DCFS. A case plan for Recodo to follow
in order to achieve reunification with Michael was formulated at that time. Termination proceedings were commenced in November 1994.
NRS 128.109(1)(b) allows a finding of failure of parental adjustment if a parent fails to substantially comply with the terms and conditions
of a plan to reunite the family within 6 months after the date on which the child was placed or the plan was commenced, whichever occurs
later.
Recodo was given well over a year to adjust and provide a suitable and stable environment for Michael. The evidence indicates that
Recodo's overarching and uncorrected problem was chronic instability in her employment, housing, and contacts with Michael. From the
time the case plan was formulated in August 1993 until the final termination hearing in April 1995, Recodo did not maintain steady
employment or stable housing, and she went through at least three jobs, two of which ended because of her volatility. She frequently
changed her living arrangements and was unable to maintain a stable living arrangement to bring Michael back into.
and was unable to maintain a stable living arrangement to bring Michael back into.
Throughout these two years, her contact with DCFS and with Michael was sporadic; between
approximately October 1993 and April 1994, it was non-existent.
We conclude that over one and one-half years was a substantial amount of time to keep
Michael in suspense while his mother tried to adjust. Champagne v. Welfare Division, 100
Nev. 640, 651, 691 P.2d 849, 857 (1984). Nothing indicates with any certainty that additional
services would bring about a lasting parental adjustment on the part of Recodo. Id. at 652,
691 P.2d at 858. Therefore, we conclude that the evidence constituted sufficient jurisdictional
grounds to allow an evaluation of the dispositional grounds.
[Headnote 7]
We have also considered the district court's analysis of the dispositional grounds. Testimony was presented that Michael is thriving in
his foster home, where he has been since 1993, and that the foster parents wish to adopt Michael. Additionally, testimony indicated that
Michael's present living situation is in stark contrast to the instability he experienced prior to being placed in the foster home. Veronica
Amiano explained why she felt the termination and subsequent adoption of Michael by his foster parents was in the child's best interest.
Michael is a very bright little boy. When he first was placed in foster care, he didn't have a lot of structure. He needed
someone with strong parenting skills to keep him in control. He's very assertive and to take that energy from being aggressive to
assertive. This family has been able to work with him along that line.
. . . .
. . . I feel that these foster parents have strong parenting skills. They certainly have incorporated him into their family. He calls
them Mom and Dad, which is typical of any foster child, so that's not unusual. And, he's just feeling very a part of them.
We therefore conclude that clear and convincing evidence existed to support the district judge's conclusion that Michael's best interests
would be served by terminating Recodo's parental rights.
[Headnote 8]
Finally, Recodo argues that her due process rights were violated because she did not have counsel appointed at all stages of the
proceedings. This court has stated that 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."
ment 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. Matter of Parental Rights of Weinper, 112 Nev.
710, 713, 918 P.2d. 325, 328 (1996).
Recodo did not have an attorney until the final termination proceeding, but she did have an
attorney present at that hearing to protect her interests. Therefore, we conclude that Recodo's
due process rights were not violated and that her liberty interest was properly protected at the
actual termination hearing.
CONCLUSION
The district judge's determination that both jurisdictional and dispositional grounds existed
was supported by clear and convincing evidence. Furthermore, Recodo's due process rights
were not violated because she was represented by counsel at the final termination hearing.
Accordingly, we affirm the district court's order.
Steffen, C. J., and Young, J., concur.
Shearing, J., concurring:
I agree with the reasoning and result in the majority opinion. However, I feel compelled to
write a concurring opinion to respond to Justice Springer's dissent.
Justice Springer states, I do not understand fully what public policy or political agenda
has brought about the plethora of parental terminations or why the State appears to these
parted parents and their attorneys to be so intent on dissolving the families of the poor,
powerless and handicapped. In each case affirmed by this court, the parental rights were
terminated because the parent or parents irrefutably demonstrated their inability to care for
their children.
There is nothing arbitrary about a standard for termination that incorporates consideration
of a parent's acts and failures to act. Where a mother refuses to care for her son, voluntarily
gives him to foster care, and then does not even bother to see the child for months on end
even though she is in the same town, these acts should count against her. In the case of
Recodo, she obviously displayed mixed feelings about her son by stating at various times that
she wanted to relinquish her parental rights. Recodo took advantage of some of the assistance
offered to her, such as parenting classes and therapy, but did not follow through on other
assistance. It is true that Recodo was poor at the time of termination, but it appears she
squandered several opportunities given to her to escape poverty. She was asked to leave
school and three different jobs because she fought and/or made threats on the job. Recodo
also threatened to blow up state offices and was indicted for bank fraud.
Recodo also threatened to blow up state offices and was indicted for bank fraud.
One may sympathize with Recodo for her personal problems, but the fact remains that, at
the time of the hearing, she had left her son in the care of others for two years with only
sporadic contact. Her three-year-old son also deserves some sympathy for the instability in his
life due to his mother's actions. He deserves a stable loving home and parents who are willing
to provide him with care and guidance, which his mother is apparently unable or unwilling to
supply.
Justice Springer accuses the State of taking children away from their parents just because
the parents are handicapped. It may be true that some of the parents who have had their
parental rights taken away were handicapped. However, it is not their handicap that is
relevant to the decision to terminate their parental rights; it is their inability to care for their
children. There are many thousands of parents with a variety of handicaps who are perfectly
capable of taking care of their children and do so.
The State only intervenes when toddlers are discovered wandering the streets alone, or are
repeatedly found with bruises and broken bones due to child abuse, or are abandoned without
supervision and/or food. Even then, the parents have an opportunity to show that they are
capable of caring for their children, and the State provides many types of assistance to the
parents to enable them to do so. The State will pursue termination of parental rights only after
the parents have demonstrated, during a period that is seldom less than two years, that they
are unwilling or incapable of keeping their children safe and secure. There is not one iota of
evidence that the State is simply plucking children out of poor homes and placing them in
more affluent homes, which are more pleasing to social service agents. Rather, the
evidence shows that the State attempts to place children with foster parents who are
responsible, loving and caring, and my observation is that those who are willing and eager to
adopt these already-troubled children demonstrate that they are indeed loving and caring. I
have never observed that affluence is involved in any way!
Justice Springer seems to imply that in terminating parental rights, the State is passing
moral judgment on the parents. That is not true. The State is only determining that the parents
are incapable of keeping their children safe and secure. It may not be the parents' fault that
they are incapable of caring for their children, but fault is not the important or even relevant
consideration.
Justice Springer perceives an epidemic of terminations. The negative term epidemic is
inappropriate and connotes a sinister motive on behalf of the State. That the need for
termination may arise more frequently than we would wish is indeed a misfortune, but the
State is responding to the needs of the children, not creating the situations which place
the children at risk.
tion may arise more frequently than we would wish is indeed a misfortune, but the State is
responding to the needs of the children, not creating the situations which place the children at
risk. In reality, termination shows compassion to children by not condemning them to live
with abusive and neglectful parents and thereby preventing their growing up to repeat the
cycle of violence and neglect with their own children. The overwhelming majority of
defendants who have appeared before me for sentencing were subject to abuse and neglect as
children. By terminating parental rights in appropriate cases, I hope that we are in the process
of breaking the pattern by providing safe, loving homes to the children who are tomorrow's
parents.
I dissent in this case for essentially the same reasons that I dissented in Bush v. State, Dep't
Hum. Res., 112 Nev. 1298, 929 P.2d 940 (1996). Bush was a case in which the State
permanently terminated the parental rights of two parents because the court believed the
parents were not smart enough to raise their two children. The case now before us is in many
respects more tragic than Bush because this mother's children were taken away from her just
because she was poor.
As I pointed out in Bush, the State's modus operandi appears to be to go into the homes of
handicapped, powerless and usually very poor parents, remove their children (almost always
without the parents' having counsel) and put the children into the home of substitute parents
who are more affluent than the natural parents and more pleasing to social service agents than
the natural parents. After the children are taken out of the home of their natural parents, the
State imposes upon the natural parents a reunification plan that is frequently beyond the
capacity of the parents to deal with. After the natural parents flunk the reunification test, the
State files a petition to cut the natural parents off from their children permanently, and to
free them for adoption by the Welfare-qualified, substitute parentsall under the
shibboleth of the best interest of the child.
Concurring Justice Shearing believes that the State shows compassion when it deprived
this mother of her son. I say, The helping hand strikes again. I have no reason to doubt that,
as put in the majority opinion, the child is thriving in his foster home; but, in my opinion,
this does not justify permanently depriving an American Indian mother of her natural son and
depriving the child of his priceless heritage.
1
__________

1
I would note that this case is the exception to the rule because there is an indication of an intention on the part of the foster parents to
adopt the child. Most of the cases that I have seen of late simply terminate the parental rights
This case is only one of an ever-increasing number of cases in which destitute parents
come before this court desperately pleading that their children not be taken away from them
forever. There can be no doubt that over the past year the number of these cases has
dramatically increased. The reason for the apparent exponential growth in parental
terminations is not clear to me. Concurring Justice Shearing suggests that the rash of
termination cases has been brought about because the parent or parents irrefutably
demonstrated their inability to care for their children. It does not make sense to me,
however, that the number of incompetent parents in this state has all of a sudden grown to the
point that this court sees two or three of these cases during each monthly oral argument
session, whereas not too long ago we had this number in a year's time. It seems much more
likely to me that the State's recent rush to terminate natural parental rights, particularly the
rights of destitute and handicapped parents, is the result not of an overnight increase in the
number of incompetent parents but rather of a conscious, executive decision on the part of
welfare officials.
2
I do not understand fully what public policy or political agenda has brought about the
plethora of parental terminations or why the State appears to these parted parents and their
attorneys to be so intent on dissolving the families of the poor, powerless and
handicapped.
__________
of the poor or handicapped parents and leave the child adrift with no parents at all. I understand the current permanency fad and the
perceived need to place children in more stable homes; but this, in my view, does not necessitate permanent severance of natural parental
ties, except in the direst of cases. I do not see why terminating this child's heritage by removing his Native American mother from his life
can be said to be in his best interests, especially when there is no evidence that by keeping the natural parental ties intact he would lose
the permanency and stability that he apparently enjoys in foster placement.

2
I wish to note, as I have in previous, similar dissents, that I do not impute bad motives to the state welfare officials. I believe that the
explosion of parental rights cases arises out of good faith decisions by officials which are largely based upon a misreading of the child
protection statutes and upon misperceptions as to what is in the best interests of children. Long-term child custody arrangements outside
of the home are often necessary and in the best interest of a child; however, it is in relatively rare instances that the only way in which a
child's best interest can be served is to take his or her natural parents away permanently. I do not propose, as suggested by the Shearing
concurrence, that the State is willy-nilly plucking children out of poor homes and placing them in more affluent' homes; all I am pointing
to is a pattern, frequently called to our attention by attorneys appointed to represent destitute and handicapped parents (attorneys for the
appeal and when it is too late to do much good for parents who have already lost their children), a pattern in which the children are taken
away in a proceeding in which the parents are not represented and which result in the parents being placed in a position from which it is
virtually impossible for them to get their children back.
so intent on dissolving the families of the poor, powerless and handicapped. One possible
explanation for it all can be found in the change in the law in 1987, when NRS 128.105 was
amended to provide that the primary consideration in any proceeding to terminate parental
rights must be whether the best interests of the child will be served by termination. This
amendment provides no justification for the run-away parental terminations that we are now
experiencing. The best interests of the child has always been the primary consideration in
judging the dispositional grounds for termination. See, e.g., Champagne v. Welfare Division,
100 Nev. 640, 691 P.2d 849 (1984); Chapman v. Chapman, 96 Nev. 290, 607 P. 2d 1141
(1980). As I noted in my dissent in Bush, it appears likely that the statutory amendment has
been misread to say that the best interests of the child is the only consideration necessary in
order to terminate the parental rights of poor and handicapped parents.
In Bush, the State took the Bushes' children out of the home of their handicapped parents
and placed them for adoption in a better home. In the present case, the State took a child
away from a poor mother because she was without independent housing, employment and
appropriate finances, and unable to provide adequately for the physical, emotional and
financial needs of her son,
3
and then terminated her parental rights because the mother was
found to have chronically failed to complete the [reunification] case plan. I see the present
case as being very similar to the Bush case, except that the child's mother, Ms. Recodo, was
not mentally handicapped, as were the Bushes.
The mother in this case, Adrina Recodo, is enrolled with the Goshute/Shoshone Indian
Tribe. She asserts herself, as put by the trial judge, very strenuously about her
American-Indian heritage and asserts that there is a long tradition of welfare agencies
taking Indian children from parents and allowing adoption by other families. The trial court
took the position that permanency was more important than the boy's Indian heritage,
stating that [r]egardless of his heritage, Michael is entitled to a permanent, stable, and loving
home and that even if adopted by non-Indian parents, his heritage can still be preserved.
I see the State's permanent exclusion of this American Indian boy's natural mother from his
life as an example of the pattern outlined in the Bush dissent. The child's mother was
destitute, and it may have been necessary and advisable that the child be placed for a limited
time in temporary foster care; however, as in so many cases, temporary really means
permanent. Once the child was taken away from the mother, the usual disastrous problems
ensued.
__________

3
Petition filed July 2, 1993.
child was taken away from the mother, the usual disastrous problems ensued. Let me now
recount from the record how this tragedy took place.
Adrina Recodo was the victim of an abusive domestic relationship, and she sought the
help of a social worker on the Paiute Reservation, stating that she was having problems
taking care of her son after she got out of the relationship. She told her caseworker that she
had no income, no place to live and no transportation. In need of money, food and a place to
live, the State's response was to send Ms. Recodo to a psychologist. The State also decided to
take her son away from her and to place him in foster care. Ms. Recodo was destitute; and on
many occasions she was faced with the choice of eating or spending the money on
transportation that would take her to school or to try and find a job. She received no State
assistance in obtaining housing, although obtaining adequate housing was made a condition
of the reunification plan. My reading of the record tells me that it was unfair for the court to
hold, under these circumstances, that Ms. Recodo flunked the reunification test.
The trial judge stated in his written Decision that the [Welfare] Division cannot be
expected to get Recodo a job, a home, and to provide financial stability. Such a statement, to
my way of thinking, wrongly justifies the position apparently taken by the State in this case:
Get a job; get a home; and get financial securityor lose your son permanently. Certainly
Ms. Recodo tried to do something about her destitution. Deborah McEwan, Director of Social
Services for the Moapa Band of Paiutes, testified that it was a [p]retty fair assessment when
counsel asked if Ms. Recodo tries so hard to improve herself [that] she bites off more than
she [can] chew . . . and sometimes fail[s] when she over shoots what she believes she's going
to be able to accomplish. Ms. Recodo tried to keep the State from taking her child away
from her, but did not quite make it.
Ms. Recodo's social worker recognized that, among many problems, transportation was a
major problem for Ms. Recodo:
The reservation is in a very rural area and commuting to Las Vegas is fifty plus miles.
And, we had at that time no suitable day care at the reservation. He was an infant. We
had Head Start, but there was no way for her to leave him.
The record is replete with descriptions of the almost insurmountable obstacles put in the
way of Ms. Recodo by the State. I do not undertake in this dissent to present a complete
account of the tragic conditions that resulted in Ms. Recodo's son being placed in a
non-Indian home and taken away from his mother forever; but I do want to say that my
reading of the record tells me that Ms.
me that Ms. Recodo did not, under Champagne, deserve to lose her child permanently. 100
Nev. at 648, 691 P.2d at 855 (footnote omitted).
With regard to dispositional grounds, I certainly do not believe that under no reasonable
circumstances [will] the child's best interest be served by sustaining the parental tie. Id. at
652, 691 P.2d at 858. There are many reasons for not severing the parental tie in this case. We
recognized in Champagne that there does come a time when society must give up on a
parent. A child cannot be kept in suspense indefinitely. Id. at 651, 691 P.2d at 857. In my
opinion, much of the suspense caused in this case was caused by the State itself in not
giving more assistance to a woman who was living under extremely trying circumstances.
The time had not come to give up on this mother.
The trial court made the sad observation that [t]he difficult aspect of this case is the
realization that one day Recodo may determine that Michael is a priority and make the
progress necessary to reunify with Michael. The trial court recognized the possibility that
Ms. Recodo was going to make the progress necessary to place this child back with its
mother. In my view, termination of this mother's parental rights was premature and unseemly.
I would reverse the termination order.
____________
113 Nev. 157, 157 (1997) Greene v. State
TRAVERS ARTHUR GREENE, and LEONARD ARTHUR WINFREY, Appellants, v. THE
No. 27988
January 4, 1997 931 P.2d 54
Consolidated appeal from judgments of conviction for two counts of murder with use of a
deadly weapon, conspiracy to commit murder, and possession of a stolen vehicle. Appellant
Greene was sentenced to death for each murder and appellant Winfrey was sentenced to life
without the possibility of parole for each murder. Eighth Judicial District Court, Clark
County; Gene T. Porter and Nancy A. Becker, Judges.
On consolidated appeal, the supreme court, Shearing, J., held that: (1) prosecutor did not
elicit improper bad act evidence; (2) there was no improper witness intimidation evidence; (3)
there was no abuse of discretion in precluding questioning of prosecution witness concerning
drug use testimony in prior unrelated case; (4) there was no error in admitting victim
photographs; (5) terms premeditated, deliberate and willful are a single phrase, and
instruction was not required to define them separately;
and instruction was not required to define them separately; (6) prosecutor's ignoring court's
repeated admonitions to confine opening remarks to the evidence was harmless beyond a
reasonable doubt, but warranted fining the prosecutor; (7) prosecutor's statement that victims'
families were not laughing, as defendant did after the crimes, was not victim impact evidence;
(8) statutory aggravating factors of more than one murder in the immediate proceeding, and
of acting at random and without apparent motive, were not unconstitutionally vague or
ambiguous; (9) sufficient evidence supported finding that second murder was committed at
random and without apparent motive; (10) prosecution witness was not coconspirator; (11)
prosecutor did not misstate law of intent in closing by giving examples relating to robbery
and burglary; (12) prosecutor did not improperly refer to punishment; (13) victim impact
evidence was not error; and (14) it was error to argue future dangerousness based on
characterization by doctor, but error was harmless since defendant in question did not receive
death sentence.
Affirmed.
David M. Schieck, Las Vegas, for Appellant Greene.
Nathaniel J. Reed and Norman Reed, Las Vegas, for Appellant Winfrey.
and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Determination of whether to admit or exclude evidence of separate and independent criminal acts rests within sound discretion of
trial court, and it is court's duty to strike balance between probative value and prejudicial dangers. NRS 48.045(2).
2. Conspiracy; Criminal Law.
Testimony of co-defendant's roommate that defendant was not finished killing was admissible as evidence of defendant's
conspiracy with co-defendant to commit murder, which was one of the charges against him, and was not improper bad act evidence
and, in any event, there was no error where defendant received benefit of jury admonishment.
3. Criminal Law.
Prosecutor's references to or implications of witness intimidation by defendant are reversible error unless prosecutor also produces
substantial credible evidence that defendant was source of the intimidation.
4. Criminal Law.
Testimony in murder prosecution that witness' parents were scared, even if it qualified as improper witness intimidation
evidence, was harmless beyond a reasonable doubt, where there was no implication that witness was reluctant to testify because of fear
of retaliation by defendant and one might even reach conclusion from testimony that parents of witness were
scared of the witness himself.
defendant and one might even reach conclusion from testimony that parents of witness were scared of the witness himself.
5. Witnesses.
Any testimony regarding whether prosecution witness had lied about using drugs or actually had drugs in her system at prior
unrelated trial was collateral and there was no abuse of discretion, in murder prosecution, in prohibiting defense counsel from
impeaching witness regarding that matter. It was sufficient that defense counsel was permitted to question witness concerning drug use
on the night of the murders and prior to testifying in the instant case. NRS 50.085(3).
6. Criminal Law.
Decision to admit evidence is within the sound discretion of the trial court.
7. Criminal Law.
Victim photographs were more probative than prejudicial in murder prosecution, despite contention that trial court had advance
notice of their inflammatory nature because the same photographs had made juror ill at co-defendant's trial, where two photographs
were aerial views of crime scene, only photograph of the two dead bodies showed them from a considerable distance, and third
photograph appeared to be of victim when she was alive.
8. Criminal Law.
It is within court's discretion to admit photographs where the probative value outweighs any prejudicial effect photographs might
have on jury.
9. Homicide.
For purposes of murder conviction, terms premeditated, deliberate and willful are a single phrase, meaning that actor intended to
commit act and intended death as result of the act, and thus instruction was not improper in failing to define the terms separately.
10. Criminal Law.
Jury instructions relating to intent must be read together, not disconnectedly, and single instruction to jury may not be judged in
isolation, but must be viewed in context of overall charge.
11. Attorney and Client; Criminal Law.
The only remark in prosecutor's opening statement in murder prosecution that was patently improper as argument was reference to
selfishness and cold-bloodedness of defendant. Remarks that murders were committed without any apparent motive and that
defendant committed the ultimate evil, not once, but twice, were proved at trial, and jury admonishment removed any prejudice, but
prosecutor's ignoring judge's repeated admonitions to refrain from injecting personal beliefs into statement warranted fine of $250.
SCR 99, 102.
12. Criminal Law.
It is not enough, to require reversal of conviction, that prosecutor's remarks are undesirable. Relevant inquiry is whether
prosecutor's statements so infected proceedings with unfairness as to make the results a denial of due process. U.S. Const. amend. 14.
13. Criminal Law.
Prosecutor has duty to refrain from stating facts in opening statement that he cannot prove at trial.
14. Criminal Law.
Even if statements of prosecutor in opening statement constituted prosecutorial misconduct as being argument rather than going to
what evidence would show, such misconduct was harmless beyond reasonable doubt in light of
overwhelming evidence of guilt against murder defendant.
evidence would show, such misconduct was harmless beyond reasonable doubt in light of overwhelming evidence of guilt against
murder defendant.
All attorneys who make presentations before courts of law have solemn duty to respect admonitions issued by members of the
bench and may be disciplined for ignoring such rulings. SCR 39, 99.
16. Criminal Law.
As representatives of the state, prosecutors have special, heightened duty of fairness and responsibility, particularly in capital
cases.
17. Criminal Law.
Prosecutor's closing statement referring to evidence that defendant laughed at result of impact of gunshot wounds on victims, and
remarking that the families of the victims were not laughing, did not constitute victim impact evidence but was rhetorical comparison
relating to defendant's complete lack of remorse and lack of value for human life, and even if statement amounted to prosecutorial
misconduct, it was harmless beyond a reasonable doubt.
18. Homicide.
Homicide death penalty aggravator that defendant has been convicted of more than one murder in the immediate proceeding is not
unconstitutionally vague and ambiguous on theory that it cannot be differentiated from aggravator that defendant was previously
convicted of another murder; latter relates to convictions in previous proceedings as opposed to the instant proceeding. NRS
200.033(2), (12).
19. Homicide.
Death penalty aggravating factor for murder, that murder was committed at random and without apparent motive, is not
unconstitutionally vague or ambiguous. U.S. Const. amends. 5, 8; NRS 200.033(9).
20. Homicide.
Jury's findings at co-defendant's trial that death penalty aggravating factor that murder was at random and without apparent motive
was proved as to second victim but not as to first victim were not necessarily inconsistent where defendant had already shot first victim
at time co-defendant jumped out of car. Even if findings were inconsistent, this did not negate finding of randomness for the second
victim's murder either at co-defendant's trial or at defendant's trial.
21. Criminal Law.
Inconsistent verdicts are permitted.
22. Homicide.
There was sufficient evidence in murder prosecution to support death penalty aggravating factor that murder was committed at
random and without any apparent motive, where defendant had decided to see how big a hole an assault rifle would make in
something, and other than that interest, facts did not evidence any apparent motive for killing of two innocent victims. NRS
200.033(9).
23. Criminal Law.
Where accumulation of error is more serious than isolated breach, it may result in denial of constitutional right to fair trial. U.S.
Const. amend. 6.
24. Homicide.
Death sentence for two murders was not imposed under influence of passion, prejudice, or any arbitrary factor, nor was it
excessive considering the senseless and violent nature of the crime and the defendant.
ering the senseless and violent nature of the crime and the defendant. NRS 177.055(2).
25. Witnesses.
Prosecution witness in murder prosecution was not a co-conspirator for purposes of contention that she should not have been
allowed to testify without advice of attorney or grant of immunity, though she did not immediately go to police after witnessing
murders, knew that defendants possessed weapons, took temporary possession of handgun after shooting, knew one of the victims and
that car defendants used was stolen, and provided one defendant with rag he used to clean weapon after the murder. Evidence showed
that witness had no idea, when she asked for a ride from defendants, that she would be witness to two murders and that she was
frightened by the crimes, did as she was told, and kept quiet out of fear.
26. Criminal Law.
Defendant waived any right to challenge testimony of prosecution witness on theory that she was co-conspirator, where he failed to
raise timely objection prior to or during her testimony.
27. Constitutional Law.
Murder defendant had no standing to assert that constitutional rights of prosecution witness were violated on theory that she was a
co-conspirator who was allowed to testify without advice of attorney or grant of immunity. U.S. Const. amend. 6.
Constitutional rights are personal and may not be asserted vicariously.
29. Criminal Law.
Prosecutor's argument in murder prosecution, using robbery and burglary examples, to explain how aider and abettor may be liable
for murder even when he did not pull the trigger was not argument of facts not in evidence, though instant case was not a
felony-murder case, and was not prosecutorial misconduct.
30. Criminal Law.
Prosecutor's closing argument in murder prosecution, asserting that fact that co-defendant pleaded guilty to possession of stolen
vehicle did not bolster his credibility and that we don't execute people for being in possession of stolen vehicles was not
prosecutorial misconduct, as it was provoked by defense counsel, and remark as to punishment for possession of stolen vehicle was
simply a statement of fact and not improper.
31. Homicide.
Victim impact evidence is relevant to jury's decision as to whether death penalty should be imposed for murder.
32. Homicide.
There was no error in murder prosecution when mother of one victim, in giving victim impact testimony, read letter that mother of
other victim had written regarding impact of his murder on his family, and referred to it during her own testimony.
33. Criminal Law.
It was error for prosecutor to argue in murder prosecution that, because doctor had characterized defendant as thrill seeker,
defendant would pose future threat by breaking out of prison, but error was harmless beyond a reasonable doubt in light of fact that
defendant did not receive death sentences, but life sentences without possibility of parole.
OPINION
In the early morning hours of September 23, 1994, appellants Travers Arthur Greene and
Leonard Arthur Winfrey drove to Sunrise Mountain in a stolen blue Camaro, armed with
stolen weapons, an M-14 assault rifle and a handgun. They intended to experiment with the
rifle to see how big a hole it would make when fired at something. Upon reaching the top of
Sunrise Mountain, they spotted a powder blue Volkswagen with Deborah Farris and
Christopher Payton sleeping beside it. Winfrey drove the Camaro up to the Volkswagen and
stopped, shining the headlights on Farris and Payton. Armed with the assault rifle, Greene
immediately exited the Camaro and shot Payton in the head. Greene then attempted to shoot
Farris, but the assault rifle jammed. While Greene tried to unjam the rifle, Farris began
pleading for her life, crying please don't do this. Meanwhile, Winfrey, who was monitoring
the situation from the car, exited the vehicle, pointed the handgun at Farris and pulled the
trigger. However, the handgun also malfunctioned and no bullet discharged. At this point,
Farris continued to plead with Greene and Winfrey not to kill her. Shortly thereafter, Greene
succeeded in fixing the assault rifle, pointed it at her head and shot her in the neck, saying
shut up, bitch.
Heather Barker witnessed these killings while seated in the Camaro. Barker had been at
Winfrey's apartment earlier that evening, and Greene and Winfrey had promised to give her a
ride home. After the first shot was fired, Barker said to Winfrey, oh, my God, did he shoot
somebody, I want to go home. Barker also heard a female voice saying, please don't do this,
you could take anything, you could take my car, just please don't do this. Barker was a friend
of Winfrey's but had not met Greene until that evening.
After the killings, Green and Winfrey got back into the Camaro. As they were driving
away, Greene laughed about how it looked when the eyeballs popped out of Payton's head. He
also derisively talked about how the blood bubbled out of Farris's neck when he shot her.
After leaving Sunrise Mountain, Winfrey drove to Barker's house and Greene cleaned the
assault rifle in her bathroom. The three then went to Winfrey's apartment where they had met
earlier that evening. Greene left in the car, Winfrey went up to his bedroom to sleep, and
Barker walked home.
The next day, Phil Souza, Winfrey's roommate, noticed that Winfrey acted as if something
was bothering him. When the eleven o'clock news showed a story about two people being
killed on Sunrise Mountain, Winfrey became upset and began banging his head on the
ground. Approximately 45 minutes later, Greene arrived and Souza overheard Greene say,
they found the bodies, and we are not through yet. Winfrey made no statement regarding
what had happened. The following day Souza approached a policeman on the street and told
him what he had observed.
This information led to the investigation of both Greene and Winfrey and their subsequent
arrest for the murders of Farris and Payton. On September 25, 1994, Greene and Winfrey
were each charged by way of Information with: one count of conspiracy to commit murder;
two counts of murder with use of a deadly weapon; and one count of possession of a stolen
vehicle.
The State filed notice to seek the death penalty against both defendants, alleging the
following circumstances: (1) the murder was committed to avoid or prevent a lawful arrest or
to effect an escape from custody, NRS 200.033(5); (2) the murder was committed upon one
or more persons at random and without apparent motive, NRS 200.033(9); (3) the defendant
has, in the immediate proceeding, been convicted of more than one offense of murder in the
first or second degree, NRS 200.033(12).
1
The first jury trial was conducted jointly with Greene and Winfrey as co-defendants.
However, due to incurable Bruton issues, the district court granted a mistrial to Greene.
Thereafter, the first jury trial continued against Winfrey alone, and a second separate jury trial
commenced against Greene. Both Greene and Winfrey were convicted of all charges.
Greene and Winfrey each had separate penalty hearings. Against Greene, the jury found
the following aggravators for both killings: (1) the murder was committed upon one or more
persons at random and without apparent motive, NRS 200.033(9); and (2) the defendant has,
in the immediate proceeding, been convicted of more than one offense of murder in the first
degree, NRS 200.033(12). Against Greene, the special verdicts reflect that the jury also found
the following mitigating circumstances: (1) youth of the defendant at the time of the crime;
and (2) any other mitigating circumstances to exist in this case. The jury determined that the
aggravators outweighed the mitigators and conse-
__________

1
Effective October 1, 1995, the more than one offense aggravating circumstance was renumbered from NRS 200.033(10) to NRS
200.033(12). All further references to this statutory section will be to NRS 200.033(12).
quently returned a death verdict against Greene. Greene was sentenced to death for both
murder counts, six years for conspiracy to commit murder, a consecutive ten years and
restitution of $1,000 for possession of a stolen vehicle.
Against Winfrey, the jury found the aggravating factor in Payton's murder to be that the
defendant had, in the immediate proceeding, been convicted of more than one offense of
murder in the first degree under NRS 200.033(12). The jury found the aggravating factor in
Farris's murder to be that the murder was committed upon one or more persons at random and
without apparent motive under NRS 200.033(9). However, the jury did not return a death
verdict against Winfrey. Instead, Winfrey was sentenced to two consecutive life sentences
without the possibility of parole for both counts of murder, six years for conspiracy to commit
murder, a consecutive ten years and restitution of $1,000 jointly and severally with Greene for
possession of a stolen vehicle.
Greene and Winfrey filed timely notices of appeal from the judgments of conviction.
2
Greene's appeal
Improper testimony
[Headnote 1]
Greene asserts that the prosecutor improperly elicited testimony from witness Phil Souza, appellant Winfrey's roommate at the time of
the murders, which constituted prior bad act evidence not falling under any exception enumerated in NRS 48.045(2).
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. 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.
Although evidence may be admissible under the exceptions cited in NRS 48.045(2), the determination whether to admit or exclude
evidence of separate and independent criminal acts rests within the sound discretion of the trial court, and it is the court's
duty to strike a balance between probative value and its prejudicial dangers.
__________

2
By way of a motion granted by this court prior to oral argument, appellant Greene incorporated into his appeal several arguments
originally raised in appellant Winfrey's brief; namely, whether NRS 200.033(9) and (12) are unconstitutional and whether sufficient
evidence existed to prove that the killing of victim Farris was at random and without apparent motive. These issues are addressed and
resolved by the court in the section of this opinion pertaining to appellant Greene.
the sound discretion of the trial court, and it is the court's duty to strike a balance between
probative value and its prejudicial dangers. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503,
508 (1985).
[Headnote 2]
We conclude that Souza's testimony does not constitute improper prior bad act evidence as Greene contends. The prosecutor's
elicitation of Souza's testimony that Greene was not finished killing is admissible as evidence of Greene's conspiracy with Winfrey to
commit murder, one of the charges against him. If this evidence was improper for any reason, Greene received the benefit of a jury
admonishment and therefore, there is no error.
Greene also contends that other testimony given by Souza was improper witness intimidation evidence because the prosecutor
obviously intended to imply to the jury that Greene was the source of the threat to Souza's parents. Greene asserts that there is no evidence
to corroborate such an implication.
[Headnote 3]
A prosecutor's references to or implications of witness intimidation by a defendant is reversible error unless the prosecutor also
produces substantial credible evidence that the defendant was the source of the intimidation. Lay v. State, 110 Nev. 1189, 1193-94, 886
P.2d 448, 450-51 (1994).
[Headnote 4]
Greene's argument that Souza's testimony that his parents were scared qualifies as evidence of witness intimidation by Greene is
tenuous. At worst, this constitutes a single, indirect reference to witness intimidation by Greene. Moreover, there is no implication that
Souza was reluctant to testify because of fear of retaliation by Greene. After listening to Souza's testimony, one might even reach the
conclusion that Souza's parents are scared of Souza himself. Accordingly, we conclude that even if this qualifies as improper witness
intimidation evidence, it is harmless beyond a reasonable doubt. Id., 886 P.2d at 450-51.
Impeachment of witness Heather Barker
[Headnote 5]
Greene contends that the district court erred in prohibiting defense counsel from questioning witness Heather Barker concerning her
testimony in a prior unrelated case. Greene asserts that Barker's drug usage and lying under oath about drug usage are both highly relevant
to the truthfulness of a witness. Greene argues that the evidence is admissible pursuant to NRS 50.0S5{3).
argues that the evidence is admissible pursuant to NRS 50.085(3).
3
In the prior unrelated case, Barker had been asked whether she had taken any drugs before
giving testimony, to which she answered no. She subsequently consented to a urine test. The
positive results of that test revealed some level of controlled substance in her system. The
district court in the prior case sealed Barker's test results, and the type and amount of
controlled substance in her system was never revealed. In the instant case, Greene wanted to
impeach Barker with her testimony in that prior case. The district court ruled that defense
counsel could question Barker about her drug use as it related to her current testimony, but
not to her testimony in the prior case.
[Headnote 6]
The decision to admit evidence is within the sound discretion of the court. Daly v. State, 99 Nev. 564, 567, 665 P.2d 798, 801 (1983).
In Rembert v. State, 104 Nev. 680, 683, 766 P.2d 890, 892 (1988), this court held that it was error to allow the State to attempt to impeach
a defendant's credibility with extrinsic evidence relating to a collateral matter. Accord Rowbottom v. State, 105 Nev. 472, 485, 779 P.2d
934, 942 (1989). Further, [e]ven where relevancy . . . may be found, fair trial demands that the evidence not be admitted in cases where,
by virtue of its prejudicial nature, it is more likely to distract from the essential issue than bear upon it. State v. Nystedt, 79 Nev. 24, 27,
377 P.2d 929, 931 (1963) (quoting Nester v. State, 75 Nev. 41,54, 534, 531 (1959)).
We conclude that, under the circumstances of this case, the district court properly determined that any testimony regarding whether
Heather Barker lied about using drugs or actually had drugs in her system at the prior unrelated trial was collateral. It was sufficient that
defense counsel was permitted to question Barker concerning her drug use on the night of the murders and prior to testifying in the instant
case. The district court did not abuse its discretion in prohibiting defense counsel from impeaching Barker regarding a collateral matter.
__________

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 a witness who testifies to an opinion of his character for truthfulness or untruthfulness, subject to the general
limitations upon relevant evidence.
Admission of victim photographs
[Headnote 7]
Greene contends that the district court erred by admitting victim photographs because they were more prejudicial than probative.
Greene asserts that because the same photographs had made a juror ill at Winfrey's trial, the district court had advance notice of the
photographs' inflammatory nature and therefore, it should not have permitted their introduction.
[Headnote 8]
The admissibility of photographs is within the sound discretion of the trial court, whose decision will not be disturbed in the absence of
a clear abuse of that discretion. Paine v. State, 110 Nev. 609, 617, 877 P.2d 1025, 1029 (1994), cert. denied, 115 S. Ct. 1405 (1995). It is
within the court's discretion to admit photographs where the probative value outweighs any prejudicial effect the photographs might have
on the jury. Ybarra v. State, 100 Nev. 167, 172, 679 P.2d 797, 800 (1984), cert. denied, 470 U.S. 1009 (1985).
After reviewing the photographs, we conclude that the district court did not abuse its discretion by admitting them. The three
photographs submitted to this court with the record on appeal are far from graphic. Two photographs are aerial views of the crime scene;
the only photo of the two dead bodies shows them from a considerable distance. The third photograph is a picture of a young woman,
presumably Deborah Farris, when she was alive. These photographs are more probative than prejudicial and there was no error.
Jury instructions regarding homicide
[Headnote 9]
Greene contends that the jury instructions regarding homicide were improper because the terms premeditated, deliberate and willful
were not clarified for the jury. Greene asserts that these three terms constitute necessary and distinct elements to the crime of First Degree
Murder. The use of the conjunctive and' crystallizes that the elements are separate and each one is required to support a verdict of murder
in the first degree. Greene claims that because these terms were not defined separately, the distinction between first and second degree
murder was not clear to the jury.
[Headnote 10]
Jury instructions relating to intent must be read together, not disconnectedly, and a single instruction to the jury may not be judged
in isolation, but must be viewed in context of the overall charge.
judged in isolation, but must be viewed in context of the overall charge. Rose v. State, 86
Nev. 555, 558, 471 P.2d 262, 264 (1970).
In Powell v. State, 108 Nev. 700, 838 P.2d 921 (1992), overruled on other grounds, 511
U.S. 79 (1994), this court reiterated that premeditation and deliberation constitute a single
term and not separate elements requiring separate thought processes. Id. at 708, 838 P.2d at
926-27 (citing Briano v. State, 94 Nev. 422, 581 P.2d 5 (1978)). After reviewing the law in
other jurisdictions, this court further concluded that the terms premeditated, deliberate and
willful are a single phrase, meaning simply that the actor intended to commit the act and
intended death as the result of the act. Id. at 709, 838 P.2d at 927.
In the instant case, we conclude that the jury instructions regarding homicide comport with
the law. The requirements for first-degree murder were clearly outlined, and the distinction
between first- and second-degree murder was explicit. Thus, Greene's contention that the jury
instructions were improper lacks merit.
Prosecutorial misconduct during the state's opening statement at the guilt phase
[Headnote 11]
Greene contends that the prosecutor committed misconduct during the opening statement by making the following remarks:
Prior to going to Leonard Winfrey's apartment and after the killing of this young couple this defendant laughed while in that
Camaro. He laughed about how the man looked when his eye popped out after he was shot and killed, and he laughed about how
Deborah Farris looked with the blood gushing from her neck. This defendant thought what he had done on Sunrise Mountain was
funny. He laughed about it. He laughed about it with Leonard Winfrey. He was so excited, he was having so much fun shooting
that mini-14 assault rifle. This was fun for this defendant.
MR. SCHIECK [defense counsel]: Your Honor, I'm going to object. This is argument, not opening statement.
THE COURT: Overruled.
. . .
And what Heather had seen was horrible, it was brutal, and it was done for no reason.
MR. SCHIECK: Going to object, Your Honor. This is argument, Your Honor.
MR. SCHWARTZ [prosecutor]: This defendant killed two innocent people for absolutely no reason, just for the
hell of it.
two innocent people for absolutely no reason, just for the hell of it.
MR. SCHIECK: Your Honor, again I'm going to object. This is argument.
THE COURT: Keep it to what the evidence will show, Mr. Schwartz.
. . .
Their lives came to an abrupt end because of the selfishness and cold-bloodedness of
that individual.
MR. SCHIECK: Going to object, Your Honor. Again, this is argument. And ask the
jury be admonished.
MR. SCHWARTZ: . . . Two innocent people were killed on September 23, 1994. And
someone said that the killing of an innocent person is the ultimate evil. The evidence in
this case will show that on September 23, 1994, this defendant committed the ultimate
evil, not once, but twice.
MR. SCHIECK: Going to object again, Your Honor.
This is improper opening statement.
THE COURT: Sustained. Ladies and gentlemen, arguments of counsel are not
evidence, as I've told you earlier, and neither are the personal beliefs of counsel as
toas to the implications of that evidence.
Greene asserts that the prosecutor engaged in prejudicial, passionate and improper
argument to the jury under the guise of an opening statement. The impact of this argument
infected the entire proceeding and violated Greene's right to due process and a fair trial.
[Headnote 12]
[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. United States v. Young, 470 U.S. 1, 11 (1985). In addition, should this court determine
that improper comments were made by the prosecutor, it must be . . . determined whether the errors were harmless beyond a
reasonable doubt. Witherow v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1155 (1988). The Constitution guarantees a fair
trial, not necessarily a perfect trial. Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1105 (1990). It is not enough that the
prosecutor's remarks are undesirable. Darden v. Wainwright, 477 U.S. 168, 181 (1986). Thus, the relevant inquiry is whether
the prosecutor's statements so infected the proceedings with unfairness as to make the results a denial of due process.
Darden, 477 U.S. at 181.
[Headnotes 13, 14]
We conclude that the prosecuting attorney's remarks did not rise to the level of improper argument that would justify
overturning the conviction. The only patently improper statement is the reference to the selfishness and cold-bloodedness
of Greene. A prosecutor has the duty to refrain from stating facts in opening statement that he cannot prove at trial. Lord v.
State, 107 Nev. 28, 32, 806 P.2d 548, 551 (1991). None of the other statements are manifestly improper or constituted
misconduct. As to the first set of remarks, the prosecutor did show that the murders were committed for no reason, i.e.,
without any apparent motive. As to the last remark, the prosecutor did later prove that Greene committed murder, the
ultimate evil, not once, but twice. Further, the defense received the benefit of a jury admonishment, which, in this instance,
is sufficient to remove any prejudice. Moreover, even if this court concluded that the above-referenced statements
constituted prosecutorial misconduct, such misconduct was harmless beyond a reasonable doubt in light of the
overwhelming evidence of guilt against Greene. See Lay, 110 Nev. at 1193-94, 886 P.2d at 450-51.
[Headnotes 15, 16]
However, this court cannot condone the prosecutor's behavior during his opening statement. He ignored the district
judge's repeated admonitions to confine the State's opening remarks to what the evidence would show and to refrain from
injecting personal beliefs into his statement. All attorneys making presentations before the courts of law of this state have a
solemn duty to respect admonitions issued by members of the bench and may be disciplined for ignoring such rulings. See
SCR 39; SCR 99. As representatives of the state, prosecutors have a special, heightened duty of fairness and responsibility,
particularly in capital cases. See Emerson v. State, 98 Nev. 158, 164, 643 P.2d 1212, 1215-16 (1982) (citing Berger v. U.S.,
295 U.S. 78, 88 (1935)); SCR 173; SCR 250. We issue a stern warning to trial attorneys that improper opening statements
and failure to observe the admonitions of the trial judge will not be tolerated and that this court will act whenever
appropriate to deter such breaches of conduct. We fine the prosecutor $250 for his improper behavior. See SCR 39; SCR 99;
SCR 102; Young v. District Court, 107 Nev. 642, 818 P.2d 844 (1991).
Prosecution misconduct during the closing statement of the guilt phase
[Headnote 17]
Greene contends that the prosecutor committed misconduct during the closing statement at the guilt phase of Greene's
trial by stating:
during the closing statement at the guilt phase of Greene's trial by stating:
What is shown in these photographs that I showed you a moment ago caused this
defendant to laugh and to drive away from the crime scene; this is what caused the
defendant to laugh and joke about the condition of the poor man's eye and the condition
of Deborah Farris. Defendant found this funny. The family of Deborah Farris isn't
laughing, and the family of Christopher Payton isn't laughing.
MR. SCHIECK: I'm going to object, Your Honor, to
Greene argues that the prosecutor improperly referred to victim impact evidence with this
statement.
These statements do not constitute victim impact evidence. The prosecutor did not refer to
the effects of the murders on the victims' families and how much they are grieving their
losses. Here, the prosecutor's statement is a rhetorical comparison relating to Greene's
complete lack of remorse and lack of value for human life. It does not rise to the level of
improper argument as Greene contends. Further, even if the statement amounted to
prosecutorial misconduct, it is harmless beyond a reasonable doubt. Young, 470 U.S. at 11;
Lay, 110 Nev. at 1194, 886 P.2d at 451.
Whether NRS 200.033(12) is facially constitutional and constitutional as applied in
Greene's case
[Headnote 18]
Greene contends that NRS 200.033(12) is unconstitutionally vague and ambiguous because it cannot be differentiated from NRS
200.033(2).
NRS 200.033 states in pertinent part:
The only circumstances by which murder of the first degree may be aggravated are:
2. The murder was committed by a person who was previously convicted of another murder or of a felony involving the use or
threat of violence to the person of another.
. . .
12. The defendant has, in the immediate proceeding, been convicted of more than one offense of murder in the first or second
degree. For the purposes of this subsection, a person shall be deemed to have been convicted of a murder at the time the jury
verdict of guilt is rendered or upon pronouncement of guilty by a judge or judges sitting without a jury.
In fact, the difference between NRS 200.033 subsections 2 and 12 is readily apparent.
Under subsection 2, any convictions for murders or crimes of violence in previous
proceedings can be properly admitted to aggravate first degree murder. Hogan v. Ely State
Prison, 109 Nev. 952, 956-57, 860 P.2d 710, 714 (1993), cert. denied,
--------
U.S.
------
,
117 S. Ct. 334 (1996); Riley v. State, 107 Nev. 205, 217, 808 P.2d 551, 558 (1991), cert.
denied, 514 U.S. 1052, 115 S. Ct. 1431 (1995). On the other hand, subsection 12 aggravates
first degree murder where the accused is convicted of more than one murder in the instant
proceeding. Thus, we conclude that Greene's claim that NRS 200.033(12) is unconstitutional
is meritless.
Further, we also conclude that NRS 200.033(12) was constitutional as applied in this case.
Greene was convicted of the murders of both Farris and Payton and therefore, in the
immediate proceeding, [he has] been convicted of more than one offense of murder in the
first or second degree. Thus, there is sufficient evidence to support this aggravator.
4
The constitutionality of the at random and without apparent motive aggravator of
NRS 200.033(9)
[Headnote 19]
Greene contends that NRS 200.033(9), the at random and without apparent motive aggravating factor for murder, is unconstitutional.
He argues that it is vague and ambiguous, and that it violates the Fifth and Eighth Amendments.
NRS 200.033(9) provides that one of the circumstances by which a first degree murder may be aggravated is that the murder was
committed upon one or more persons at random and without apparent motive. A state authorizing capital punishment has a constitutional
duty to tailor its law to avoid the arbitrary and capricious infliction of the death penalty. Godfrey v. Georgia, 446 U.S. 420, 428 (1980). We
have examined the constitutionality of the death penalty statute as a whole:
Nevada's capital punishment law was amended in 1977 with inconsequential revision from the death penalty statutes in Georgia
and Florida. Georgia and Florida statutes survived constitutional scrutiny by the United States Supreme Court and satisfied the
constitutional deficiencies enunciated in Furman. Gregg v. Georgia, 428 U.S. 153, 196-207 (1976); Profitt v. Florida, 428 U.S.
242, 251-53 (1976).
__________

4
For the same reasons, we also conclude that NRS 200.033(12) was constitutional as applied to Winfrey.
Deutscher v. State, 95 Nev. 669, 676, 601 P.2d 407, 412 (1979), vacated on other grounds,
500 U.S. 901 (1991). This court has also upheld the constitutionality of NRS 200.033(9), as
applied, on numerous occasions. See, e.g., Lane v. State, 110 Nev. 1156, 881 P.2d 1358
(1994); Paine v. State, 110 Nev. 609, 877 P.2d 1025 (1994), cert. denied, 514 U.S. 1038, 115
S. Ct. 1405 (1995); Moran v. State, 103 Nev. 138, 734 P.2d 712 (1987); Ford v. State, 102
Nev. 126, 717 P.2d 27 (1986). Because Nevada's death penalty scheme as a whole is facially
constitutional, and NRS 200.033(9) is not arbitrary and capricious as applied in the instant
case, we conclude that Greene's argument is without merit.
Sufficient evidence to support the jury's finding that Farris's murder was committed at
random and without apparent motive pursuant to NRS 200.033(9)
[Headnote 20]
Greene contends that there was insufficient evidence for the jury to find that the killing of Deborah Farris was at random and without
apparent motive in light of the Winfrey jury's finding that the same aggravator did not exist for the killing of Christopher Payton.
In Bollinger v. State, 111 Nev. 1110, 901 P.2d 671 (1995), this court affirmed inconsistent verdicts as valid. In Bollinger, the jury had
found Bollinger guilty of committing two simultaneous murders, but then determined that the aggravating circumstance that Bollinger was
under sentence of imprisonment at the time he committed the murders only existed as to one of the murders. Id. at 1116-17, 901 P.2d at
675-76. This court held, the jury could have properly concluded as it did to extend a form of clemency. We conclude that the rationale . . .
should apply in sentencing as well. Id. at 1117, 901 P.2d at 676; see also Dunn v. United States, 284 U.S. 390 (1932) (holding that
consistent verdicts on separate counts are not required); Brinkman v. State, 95 Nev. 220, 592 P.2d 163 (1979).
[Headnote 21]
Although inconsistent verdicts are permitted, the Winfrey jury's finding of the at random and without apparent motive aggravator as to
Farris's murder, but not Payton's murder, is not necessarily inconsistent. Here, Greene had already shot Payton at the time Winfrey jumped
out of the car. Winfrey did not try to shoot Payton, but then did attempt to kill Farris. Perhaps, the jury extended clemency to Winfrey by
failing to find this aggravator because Winfrey did not attempt to kill Payton. Nevertheless, even if the Winfrey jury's findings are
inconsistent, the inconsistency does not negate the finding of randomness for Farris's murder by either the
Winfrey jury or the Greene jury.
even if the Winfrey jury's findings are inconsistent, the inconsistency does not negate the
finding of randomness for Farris's murder by either the Winfrey jury or the Greene jury.
[Headnote 22]
We conclude that sufficient evidence exists to support both the Greene and the Winfrey juries' findings that Farris's murder was
committed at random and without any apparent motive. In this case, Greene decided to see how big a hole the M-14 assault rifle would
make in something. Winfrey accompanied Greene as they embarked on a course of conduct that resulted in the killing of Christopher
Payton and Deborah Farris. Other than Greene's interest in seeing how big a hole the M-14 assault rifle would make in something, the facts
do not evidence any apparent motive for the killing of these two innocent victims.
5
Cumulative error requiring a new trial
Relying upon Sipsas v. State, 102 Nev. 119, 716 P.2d 231 (1986), Greene asserts that cumulative error requires reversal and remand
for a new trial.
[Headnote 23]
Where the accumulation of error is more serious than an isolated breach, it may result in the denial of the constitutional right to a fair
trial. Id. at 125, 716 P.2d at 234. There was no accumulated error resulting in the denial of a fair trial in the proceedings below. Greene
received a fair and unprejudiced trial by his peers comporting with constitutional requirements. Thus, Greene's contention lacks merit.
[Headnote 24]
In cases in which the death penalty is imposed, this court is also statutorily required to consider whether the death sentence was
imposed under the influence of passion, prejudice, or any arbitrary factor and whether the sentence of death is excessive considering both
the crime and the defendant. NRS 177.055(2). We conclude that the death sentence of Greene was not imposed under the influence of
passion, prejudice, or any arbitrary factor, nor was it excessive in this case considering the senseless and violent nature of the crime and the
defendant.
Winfrey's appeal
Witness Barker as a co-conspirator
[Headnote 25]
On appeal, Winfrey contends that Heather Barker was a co-conspirator.
__________

5
We reject Winfrey's argument on the same issue based upon the same grounds.
co-conspirator. Based upon this premise, Winfrey argues that Barker should not have been
allowed to testify without the advice of an attorney or a grant of immunity. Because of these
alleged constitutional violations, Winfrey asserts that Barker's testimony should have been
stricken from the record.
An accomplice is one who is liable to prosecution for the identical offense charged
against the defendant, NRS 175.291(2), or who is culpably implicated in, or unlawfully
cooperates, aids or abets in the commission of the crime charged. Orfield v. State, 105 Nev.
107, 109, 771 P.2d 148, 149 (1989) (citation omitted). Moreover, it is hornbook law that
conduct, to be criminal, must consist of something more than mere action (or non-action
where there is a legal duty to act); some sort of bad state of mind is required as well.' Id.,
771 P.2d at 149 (quoting W. LaFave & A. Scott, Criminal Law 176 (1972)).
Winfrey cites to the following facts to support his position that Barker was a
co-conspirator: (1) she did not immediately go to police after witnessing the murders; (2) she
knew that Greene and Winfrey possessed weapons at the time of the offense since the guns
had been discharged before they drove to the crime scene; (3) she took temporary possession
of the handgun after the shooting; (4) she knew one of the victims; (5) she knew the car was
stolen; and (6) she provided Greene with a rag which he used to clean the weapon after the
murder.
After reviewing Barker's testimony, this court concludes that Winfrey's contention clearly
lacks merit. Despite Winfrey's colorful analysis of Barker's involvement in the crime, none of
the aforementioned facts are convincing evidence of her participation in the conspiracy. Our
review indicates that Barker was an innocent bystander to the whole chain of events. Barker
had no idea when she asked for a ride home from Greene and Winfrey that she would be a
witness to two murders. The facts that Barker failed to go to the police, took temporary
possession of the handgun while seated in the car after the murders, and provided a rag to
clean the handgun do not make her an accomplice. Barker's testimony demonstrates that she
was frightened by the crimes, she did as she was told, and she kept quiet out of fear. Further,
Barker later learned the identity of the two victims and indeed, Farris and Payton were her
friends. Our review of the record evinces that Winfrey and Greene came upon Farris and
Payton by chance, and Barker is in no way responsible for this tragic coincidence. Moreover,
we point out that Barker was never charged with any involvement in the crime.
[Headnote 26]
Further, Winfrey has waived any right to challenge Barker's testimony because he failed to raise a timely objection prior to or during
her testimony.
during her testimony. When an appellant fails to specifically object to questions asked or
testimony elicited during trial, but complains about them, in retrospect upon appeal, we do
not consider his contention a proper assignment of error. Wilson v. State, 86 Nev. 320, 326,
468 P.2d 346, 350 (1970).
[Headnotes 27, 28]
Moreover, the thrust of Winfrey's argument on appeal is that Barker's constitutional rights were violated. Winfrey has no standing to
assert this challenge. Constitutional rights are personal and may not be asserted vicariously. Broadrick v. Oklahoma, 413 U.S. 601, 610
(1973). Thus, we conclude that Winfrey's contention lacks merit.
Prosecution misconduct during the State's closing argument at the guilt phase
Winfrey contends that the prosecutor committed misconduct during the State's closing argument at the guilt phase of his trial. Winfrey
alleges that there were four separate episodes of prosecutorial misconduct; however, his brief on appeal is not explicit as to which
statements he found objectionable.
[Headnote 29]
First, Winfrey contends that the prosecutor misstated the law of intent. His complete analysis is as follows: The prosecutor in the
instant case made analogies with this case to a robbery. This is not a felony murder case. Based on the aforementioned statement, the
prosecutor committed misconduct.
In a quite long-winded fashion, the prosecutor explained the instructions to the jury by giving an appropriate example of when an aider
or abettor may be liable for murder, even when that aider or abettor did not pull the trigger himself. Although the prosecutor used a robbery
as an example, he did not misstate the law of intent. For these reasons, we conclude that the prosecutor's statements were not confusing to
the jury and they in no way constitute misconduct. Second, Winfrey asserts, The prosecutor in the case at bar argued facts not in evidence.
He mentioned Winfrey as an accomplice in a burglary which the trial court ruled was only admissible as to Greene. This is the type of abuse
from the State's attorney which warrants a new trial.
The prosecutor summarized the testimony of two witnesses regarding the stealing of the guns:
Chris Girlie and Lance Strickland, they testified, and they talked about the burglary of Mr. Izzard's house and how they stole those
weapons there. And no doubt counsel for defense is going to talk about a deal that was made with regard to these two
individuals that they weren't prosecuted for that burglary.
regard to these two individuals that they weren't prosecuted for that burglary. Now
what's interesting is both Girlie and Strickland were involved in the burglary of Mr.
Izzard's trailer, but only Girlie actually entered the trailer with Greene. But, Strickland
is equally accountable for what went on inside that trailer, because he was a aider and
abettor and he was a co-conspirator.
The prosecutor did not imply that Winfrey was involved in the stealing of the guns;
therefore, he did not argue facts not in evidence. Rather, he was presenting another example
of how an aider and abettor may be held fully accountable for a crime even though he did not
personally commit any of the acts constituting the crime. We conclude that this statement did
not constitute prosecutorial misconduct.
Third, Winfrey contends that the prosecutor improperly referred to victim impact evidence
during the guilt phase of the trial:
This is how Winfrey and Greene got their excitement on September 23, 1994. This is
what Defendant Leonard Winfrey couldn't wait to do again. These photographs are
what caused Greene and Winfrey to laugh, joke, to laugh about how Deborah Farris
looked after she was killed and how Chris Payton looked when he was shot in the head.
His head was blown off. His eyeball was blown off. They laughed about it, they joked
about it while they were in the car. This defendant and Travers Greene thought this was
funny. Chris Payton's family isn't laughing, Deborah Farris's family isn't laughing; but
both Winfrey and Greene were laughing about what they did to that poor couple.
These references to the victims' families do not constitute victim impact evidence. There
was undisputed testimonial evidence that Greene and Winfrey were laughing about the crime
and the victims as they drove away from the crime scene. During closing argument, trial
counsel enjoys wide latitude in arguing facts and drawing inferences from the evidence. Jain
v. McFarland, 109 Nev. 465, 476, 851 P.2d 450, 457 (1993). Here, the prosecutor was simply
comparing the effect of the crime on Greene and Winfrey, who laughed, with the victims'
families, who presumably are not laughing. Accordingly, we conclude that the prosecutor did
not exceed the scope of proper argument and there is no misconduct.
[Headnote 30]
Fourth, Winfrey contends that the prosecutor made improper reference to punishment during closing argument:
You heard for the first time during this trial that Defendant Winfrey pled guilty to
possession of stolen vehicle. And for some reason that bolsters his credibility before
you as he sat there and looked at you and testified. And somehow just because a person
pleads guilty, then we are to assume that he is an honorable person he'd plead guilty to
everything that he was guilty of. I suggest to you that that's a ruse.
But we don't execute people for being in possession of stolen vehicles. The
consequences aren't nearly as severe that he waited one year before he entered this plea.
Is it a tactic? Is it a ploy? I suggest to you that his credibility is not bolstered by the fact
that he pled guilty to possession of a stolen vehicle.
We point out that the prosecutor made these statements during the State's rebuttal
argument and therefore, they were in response to issues raised by the defense in its closing
argument. The strongest factor against reversal on the grounds that the prosecutor made an
objectionable remark is that it was provoked by defense counsel. Pacheco v. State, 82 Nev.
172, 179, 414 P.2d 100, 104 (1966). Thus, the reference to Winfrey's guilty plea for the
possession of stolen vehicle charge is not misconduct.
Further, the prosecutor's remark that death is not a possible punishment for possession of a
stolen vehicle is simply a statement of fact and not improper. This court has held that it is
proper to discuss general theories of penology during closing argument. Jimenez v. State, 106
Nev. 769, 772, 801 P.2d 1366, 1368 (1990).
In sum, we conclude that the prosecutor did not engage in any misconduct during closing
argument of the guilt phase of Winfrey's trial.
Admission of victim impact testimony
Winfrey contends that the district court erred in allowing Mrs. Hancock, Deborah Farris's
mother, to testify at the penalty phase regarding the impact of Christopher Payton's murder on
his family.
After describing the impact her daughter Deborah's death has had on her and her family,
Hancock stated:
I'd kind of like to talk a little bit about Christopher. And his mother had written a letter
and I've reviewed it a bit. She experiences the same aspects of not being able to find
ambition or any joy in life. To see a funeral go by, she cries; to see children playing, she
gets lost. SheChristopher lost herhis sister almost a year ago from the date that he
was killed.
killed. So not only has she lost one child, but she now has lost two; and there are no
children in that family anymore. She was the only mother, so Christopher's grandma has
no grandchildren anymore, they're all gone.
During Hancock's victim impact statement, the defense did not raise any objection. Later,
the defense made a motion to strike her testimony and in the alternative motioned for a
mistrial or a new penalty hearing after the statement and the relevant photographs had been
properly admitted into evidence. Defense counsel stated that it did not raise a
contemporaneous objection, because it was a situation where I couldn't just jump up and
make the objection at the time. The district court denied the motion.
[Headnotes 31, 32]
Victim impact evidence is relevant to the jury's decision as to whether or not the death penalty should be imposed. Homick v. State,
108 Nev. 127, 136, 825 P.2d 600, 606 (1991), petition for cert. filed, (U.S. July, 3, 1996) (No. 96-5714). Here, Hancock read the letter
Christopher Payton's mother had written regarding the impact of his murder on that family and referred to it during her own testimony. We
conclude that admission of Hancock's testimony regarding the impact of Payton's murder on his family does not constitute error. Id. at 136,
825 P.2d at 606; see also Payne v. Tennessee, 501 U.S. 808 (1991).
Prosecution misconduct during the State's closing argument at the penalty phase of Winfrey's trial
Winfrey contends that the prosecutor improperly referred to Winfrey's future dangerousness to assert that the death penalty is an
appropriate punishment for the crimes at issue.
[Headnote 33]
This court has held that the prosecutor may argue the future dangerousness of a defendant even when there is no evidence of violence
independent of the murder in question. Redmen v. State, 108 Nev. 227, 235, 828 P.2d 395, 400 (1992), overruled on other grounds by,
Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995). However, psychiatric evidence purporting to predict the future dangerousness of a
defendant is highly unreliable and, therefore, inadmissible at death penalty sentencing hearings. Id. at 234, 828 P.2d at 400. It was error
for the prosecutor to argue that because Dr. Kinsora characterized Winfrey as a thrill seeker, Winfrey would pose a future threat by breaking
out of prison. Nevertheless, in light of the fact that Winfrey did not receive death sentences for the murders, but life sentences without the
possibility of parole, we conclude that this error was harmless beyond a reasonable doubt.
possibility of parole, we conclude that this error was harmless beyond a reasonable doubt.
Accordingly, the conviction and sentence of appellant Winfrey are also affirmed.
Steffen, C. J., and Young and Rose, JJ., concur.
Springer, J., concurring:
I concur in the result reached in the majority opinion, but I disagree with the majority's
sanction of Mr. Schwartz in the measly sum of $250.00.
First, I want to say that it was clearly incumbent upon the trial judge to put a stop to Mr.
Schwartz' contemptuous refusal to abide by the court's rulings relative to his impermissible
rhetorical argument during his opening statement. Had the trial judge declared a mistrial and
sanctioned Mr. Schwartz at the time of his misconduct this court would not be faced with
having to decide whether this clearly guilty murderer is entitled to a new trial by reason of the
most blatant prosecutorial misconduct that I have seen in a long time. Given the unfortunate
place that Mr. Schwartz has placed this court in, the assessment of $250.00 is laughable. I
think $2,500.00 is more like it, or perhaps even more.
____________
113 Nev. 180, 180 (1997) Cohen v. State of Nevada
ROBERT COHEN, Appellant, v. THE STATE OF NEVADA; NEVADA GAMING
COMMISSION; and the STATE GAMING CONTROL BOARD, Respondents.
No. 26905
January 5, 1997 930 P.2d 125
Appeal from an order of the district court granting respondents' motion to dismiss
appellant's complaint. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
After state and individual entered into stipulation in which state agreed that it would not
consider individual's criminal record as grounds for denying any application for restricted
gaming license, individual sought and Gaming Control Board denied his application for
gaming license. Applicant sought judicial review of this decision. The district court dismissed
complaint. The supreme court, Springer, J., held that: (1) court had jurisdiction to review
applicant's claim that Gaming Control Board had breached stipulation, and (2) stipulation was
enforceable against State, Gaming Commission and Gaming Control Board.
[Rehearing denied June 10, 1997]
Shearing, J., and Steffen, C. J., dissented.
Lionel Sawyer & Collins and David N. Frederick, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General and Paul S. Lychuk, Deputy Attorney General,
Carson City, for Respondents.
1. Gaming.
Although decision to grant privileged gaming license is discretionary act not subject to judicial review, court had jurisdiction to
review applicant's claim that Gaming Control Board had breached stipulation between State and defendant in which State agreed that it
would not consider individual's criminal record as grounds for denying any application for restricted gaming license. NRS 463.220(7).
2. Gaming.
Stipulation between State and individual in which State agreed that it would not consider individual's criminal record as grounds
for denying any application for restricted gaming license was enforceable against State, Gaming Commission and Gaming Control
Board.
3. Gaming.
Although, generally speaking, granting of privileged gaming license is discretionary act not subject to judicial review, ultra vires
actions going beyond powers granted to administrative agencies and personnel regarding such licensure are not immune from collateral
review by courts.
OPINION
The State of Nevada entered into an agreement with appellant Robert Cohen that it would
not consider Cohen's past criminal record as grounds for denying any application for a
restricted gaming license. The State repudiates its agreement and, contrary to its agreement,
has denied Cohen's application based upon his prior bad acts. The State does not argue that
it has not violated its agreement; it merely says that Cohen cannot do anything about it and
that its violation of the agreement is not subject to judicial review. We reverse the trial
court's dismissal of Cohen's complaint for judicial review and hold that the State is morally
and legally bound to honor its agreement.
We take the facts of this case from the State's answering brief. The agreement between the
State and Cohen takes the form of a formal, written stipulation executed by Cohen and the
Gaming Control Board and accepted by the [Gaming] Commission. The intent and purpose
of the stipulation was to resolve a complaint that the State had filed against Cohen to revoke
his gaming license at the Downtowner Hotel in Las Vegas, based on Cohen's felony
conviction.
license at the Downtowner Hotel in Las Vegas, based on Cohen's felony conviction. Cohen
stipulated that he would relinquish his gaming license and pay a $2,000.00 fine; and the State
stipulated that Cohen's felony conviction would not be used as the sole grounds to deny
any subsequent applications that he might make for a restricted gaming license. (Emphasis
added.)
According to the State's brief, Cohen, in 1990, applied for a new license at the
Downtowner; and
[p]ursuant to the terms of the Stipulation [], since COHEN had not had any further
problems and the location remained suitable, the Board [in accordance with its
stipulation] did not consider COHEN's prior bad acts, and recommended that COHEN
be granted a new restricted license to conduct gaming at the Downtowner Hotel. []. The
COMMISSION considered the matter . . . and . . . granted COHEN a new restricted
license to conduct gaming at the Downtowner Hotel.
In 1994, Cohen filed another, subsequent application[], relying on the stipulation, which
specifically provided for Cohen's applying for a gaming license at a location(s) other than
[the Downtowner]. (Emphasis added.) When Cohen applied in 1994 for a license at the other
location, namely, the Center Strip Inn, the Board, despite its previously having recommended
licensing on Cohen's 1990 application, decided to repudiate its agreement, and, as put in the
State's brief,
After considering COHEN's arguments for licensure, the BOARD recommended that
the application be denied based upon COHEN's prior bad acts.
The COMMISSION considered COHEN's Center Strip Inn application and the terms
of the Stipulation in its May 1994 meeting. []. COHEN then argued that the Stipulation
did apply to license applications for new locations. []. The COMMISSION disagreed
and voted unanimously to follow the recommendation of the BOARD and deny
COHEN's application based upon his prior bad acts.
In response to the State's actions, Cohen filed a civil complaint urging that the State's
agreement was legally enforceable against the State and that the stipulation barred the State
from denying his application based upon his prior bad acts. As said above, the State does
not deny that it violated the stipulation; it merely argues that Cohen cannot do anything about
it. According to the State's brief, the State's contractual obligation under the stipulation has
no bearing on whether or not the District Court had jurisdiction to consider COHEN's civil
action appealing the denial of a gaming license application"; and, also according to the
State's brief, the district court did not even "consider the terms of the Stipulation."
denial of a gaming license application; and, also according to the State's brief, the district
court did not even consider the terms of the Stipulation.
[Headnotes 1, 2]
The State misapprehends the issue raised by Cohen on appeal. Cohen is not, as claimed by the State, appealing the denial of a gaming
license; rather, Cohen is collaterally attacking the improper and oppressive manner in which his gaming application was treated by the
State. In his opening brief, Cohen expresses his understanding that [o]rdinarily [there is no] judicial review of the denial of a gaming
license. Cohen's only claim in this appeal is that
an agreement made with an existing licensee, and the prior conduct of the Board and the Commission gave plaintiff judicially
recognized rights not otherwise possessed by previously unlicensed applicants. Consequently, the dismissal of plaintiff's claims
should be reversed and plaintiff's action remanded for further proceedings.
We agree.
At first blush, it might appear that the district court was correct in denying judicial review. NRS 463.220(7) provides that the
commission has full and absolute power and authority to deny any application for any cause it deems reasonable. In addition, [j]udicial
review is not available for actions, decision and orders of the commission relating to the denial of a license . . . . NRS 463.318(2). In the
face of such clear statutory language one might wonder if judicial intervention is ever warranted in cases involving denial of a gaming
license; still, there are cases in which judicial intervention in gaming matters is called for. For example, if an applicant were to make a
claim that the administrative action denying an application was tainted by reason of corruption or coercion of public officials in the form of
gaming control administrators' being bribed or coerced into denying the license, judicial cognizance would have to be given to such a
claim. In such an instance the legislature must be assumed not to have had either the power or the intention to deprive a judicial forum to
one making claims of this nature.
[Headnote 3]
Although, generally speaking, the granting of a privileged gaming license is a discretionary act not subject to judicial review, this does
not mean that ultra vires actions which go beyond the powers granted to administrative agencies and personnel are immune from collateral
review by the courts. The case now before us does not involve such extremes as official corruption, but it does involve improper
and unlawful repudiation of a stipulated agreement between the State and a license applicant.
tion, but it does involve improper and unlawful repudiation of a stipulated agreement between
the State and a license applicant. There appears to be no doubt here that the State entered into
a contract with Cohen, that the State legally obligated itself to refrain from doing certain
things and that it later refused to honor that agreement. The courts cannot countenance such a
cavalier trodding upon its citizens' legal rights. As put in Williams v. City of North Las
Vegas, 91 Nev. 622, 626, 541 P.2d 652, 655 (1975): [W]hether to enter into the contract in
the first instance was within the discretion of the city, but once the contractual relationship
was established, the contract became an operational function imposing upon the city the duty
[to perform under the contract]. In the case before us, the State had wide discretion as to
whether to enter into the contract, but once the contractual relationship was established,
performance of the contract, in the language of Williams, became an operational function
imposing upon the State the moral and legal duty to abide by its agreement.
Cohen is not asking the court to order that he be granted a license; all he asks is that the
State act rightly and in accordance with its contractual obligation. He is certainly entitled to
this much.
The district court's order dismissing Cohen's complaint is reversed, and the matter is
remanded to the district court with instructions that it enter an order commanding the Gaming
Board and the Gaming Commission to reconsider Cohen's application for a gaming license
and that these agencies consider Cohen's application in the light of the binding 1990
stipulation that they not consider Cohen's criminal conviction as the sole grounds for
denying his license application for the Center Strip Inn.
Chairez, D. J., and Sullivan, D. J., concur.
1, 2
Shearing, J., dissenting with whom Steffen, C. J., agrees:
In 1978, Robert Cohen was indicted and accused of an infamous crime against nature and
statutory rape. He fled to Israel, and a bench warrant for his arrest was issued. He was
eventually found, arrested and extradited from Israel. In 1982, Cohen was convicted of
statutory rape. In 1989, the State Gaming Control Board (the Board) filed a disciplinary
complaint against Cohen to revoke his gaming license for the Downtowner Hotel based upon
his conviction. Concerned about the timeliness of its action, in 1990 the Board entered into
an agreement {"the stipulation") with Cohen to dismiss the complaint in consideration of
Cohen's payment of a $2,000 fine.
__________

1
The Honorable Don P. Chairez, Judge of the Eighth Judicial District Court, was designated by the Governor to sit in place of The
Honorable Cliff Young, Justice. Nev. Const. art. 6, 4.

2
The Honorable Jerry V. Sullivan, Judge of the Sixth Judicial District Court, was designated by the Governor to sit in place of The
Honorable Robert Rose, Justice. Nev. Const. art. 6, 4.
in 1990 the Board entered into an agreement (the stipulation) with Cohen to dismiss the
complaint in consideration of Cohen's payment of a $2,000 fine. The stipulation also provided
that Cohen's gaming license for the Downtowner Hotel would expire in March 1994 and that
the dismissed disciplinary complaint would not be used as the sole basis for the Board's
recommendation to deny any subsequent applications. The Nevada Gaming Commission
(the Commission) approved the stipulation.
Cohen applied for another license for the Downtowner Hotel to be effective after the
March 1994 expiration. Based on the stipulation and the fact that there had been no additional
problems since 1990, the Board recommended Cohen's application for approval. The
Commission followed the Board's recommendation and granted Cohen another gaming
license for the Downtowner Hotel.
In May 1994, Cohen applied for a gaming license for a new location, the Center Strip Inn,
for which he had never held a license. At the hearing before the Board, the Board made clear
that the stipulation was for the Downtowner Hotel only and did not cover any other locations.
The Board recommended denial of Cohen's gaming license application for the Center Strip
Inn. The Commission agreed with the Board and denied Cohen's application.
Cohen filed a petition for judicial review and a complaint in district court alleging breach
of contract and equitable estoppel and seeking declaratory relief and damages. The district
court held that under Nevada law there is no appeal from a denial of a gaming license
application and granted the motion to dismiss. I agree with the district court.
The Nevada Legislature has made it crystal clear that the Nevada Gaming Commission has
the absolute power and authority to deny any application for a gaming license. NRS
463.220(7) provides: The commission has full and absolute power and authority to deny any
application for any cause it deems reasonable. In NRS 463.0129 the legislature has declared
the public policy of this state regarding gaming and has stated [n]o applicant for a license or
other affirmative commission approval has any right to a license or to the granting of the
approval sought. Furthermore, [j]udicial review is not available for actions, decisions and
orders of the commission relating to the denial of a license or to limited or conditional
licenses. NRS 463.318(2). In Parks v. Watson, 716 F.2d 646, 657 (9th Cir. 1983), the court
said of the statutory language regarding the Commission's responsibility that [i]t is difficult
to conceive of language which could more forcefully leave a decision to the unbridled
discretion of an agency.
In State of Nevada v. Rosenthal, 93 Nev 36, 559 P.2d 830, 434 U.S. 803 (1977), this court
upheld the constitutionality of the licensing procedures of the Gaming Control Act. This court
stated:
The licensing and control of gaming requires special knowledge and experience.
Nev. Tax Com. v. Hicks, 73 Nev. 115, 119, 310 P.2d 852 (1957); Dunn v. Tax
Commission, supra. In Hicks, this court observed the risks to which the public is
subjected by the legalizing of this otherwise unlawful activity are met solely by the
manner in which licensing and control are carried out. The administrative responsibility
is great. Id. at 120.
The legislature has been sensitive to these basic concepts. Members of the Gaming
Control Board and Gaming Commission must have special qualifications suited to the
important duties with which they are charged. NRS 463.023; 463.040. Their powers are
comprehensive. NRS 463.130-144. Court intrusion is limited. As we noted in Gaming
Control Bd. v. Dist. Ct., 82 Nev 38, 409 P.2d 974 (1966): Any effort to obstruct the
orderly administrative process provided by the Gaming Control Act casts serious doubt
upon the ability of Nevada to control the privileged enterprise of gaming. Control does
not exist if regulatory procedures are not allowed to operate. Courts owe fidelity to the
legislative purpose. . . Id. at 40. Indeed, judicial review is confined to a final decision
or order of the Commission and then only in specified instances.
Id. at 41, 559 P.2d at 833-34.
In Rosenthal, this court went on to point out that the statutes distinguish between
disciplinary action against existing licensees where court review is available and the granting
of a new license which is not reviewable. Id. at 42, 559 P.2d at 834. Judicial review is
afforded under the provisions of NRS 463.310 and 463.315 regarding review of disciplinary
matters and NRS 463.343(1) regarding interpretation of statutes and regulations, but not
under NRS 463.318(2) which provides [j]udicial review is not available for actions,
decisions and orders of the commission relating to the denial of a license or to limited or
conditional licenses.
Despite the clear mandate of the Nevada Legislature that no judicial review is available for
denial of a new gaming license, Cohen has sought this judicial review. He has also couched
his complaint in terms of a claim for declaratory relief, a claim for breach of contract and
damages, as well as a claim that the Board and Commission are equitably estopped from
denying him a license.
license. However, all the claims essentially ask the court to review a decision of the Nevada
Gaming Commission to deny a gaming license. Neither this court, nor the district court, is
authorized to do that. NRS 463.318(2).
This court has held that parties cannot circumvent the dictates of NRS Chapter 463 by
petitioning the court under the Uniform Declaratory Act, NRS Chapter 30. State of Nevada v.
Glusman, 98 Nev. 412, 418, 651 P.2d 639, 643. In Glusman, the issue was the availability of
injunctive relief, but the same principle is applicable here. Allowing relief under Chapter 30,
where Chapter 463 forbids such relief, would render Chapter 463 nugatory and allow
effective avoidance of the provisions specifically designed to regulate gaming in Nevada.
Cohen has asked the court to order the Commission to grant him a license. There is no
jurisdiction for the court to do so. NRS 463.343(5) prohibits the court from granting any
injunctive relief to any applicant for licensing. Furthermore, Cohen's request is based on the
stipulation signed by the Board under which the Board agreed not to use Cohen's prior
conviction as the sole basis for recommending a denial of his application. Even if the
stipulation had been meant to apply to a new license and not just to the existing license at the
Downtowner, the Commission has the sole authority to grant a license. Subsumed within that
authority is the authority to decide how much weight to afford the stipulation. The
Commission is not a party to the stipulation and cannot, consistent with its statutory duties,
be bound by it.
Cohen's action seeking damages is also without merit. Even if NRS Chapter 463 were not
abundantly clear in giving absolute, exclusive jurisdiction over the granting or denial of
gaming licenses to the Commission, the state agencies would remain immune from liability.
NRS 41.032 provides, in relevant part:
[No] action may be brought under NRS 41.031 or . . . against . . . an officer or
employee of the state or any of its agencies or political subdivisions which is:
. . . .
2. Based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of the state or any of its agencies or political
subdivisions or of any officer [or] employee . . . of any of these, whether or not the
discretion involved is abused.
This court has defined discretionary acts as those which require the exercise of personal
deliberation, decision and judgment. Travelers Hotel v. City of Reno, 103 Nev. 343, 345-6,
741 P.2d 1353, 1354 (1987). This court has consistently held that the granting, withholding or
revoking of a privileged license is a discretionary act.
discretionary act. County of Esmeralda v. Grogan, 94 Nev. 723, 725, 587 P.2d 34, 35 (1978).
Clearly the denial of a license is a discretionary decision which renders the decisionmaker
immune from suit. The federal district court in Rosenthal v. State of Nevada, 514 F. Supp.
907, 914 (D. Nev. 1981), explained the underlying policy reasons as follows:
The members of the State Gaming Control Board and the Nevada Gaming
Commission are charged with the awesome responsibility of regulating the gaming
industry in Nevada and keeping undesirable elements out of the gaming industry. In this
important area of public interest where the decisions made by these individuals often
involve millions of dollars and the reputation of a whole state, there is a danger that a
person who receives an adverse decision will retaliate and seek vengeance in the courts.
The discretion and judgment of these officials in initiating administrative proceedings
and in deciding matters of great public importance might be affected if their immunity
from damages arising from those decisions was less than complete.
(Citations omitted.)
For the foregoing reasons, I would affirm the order of the district court dismissing Cohen's
complaint.
____________
113 Nev. 188, 188 (1997) Simpson v. Mars Inc.
RUTH M. SIMPSON, Appellant, v. MARS INC.; ETHEL M. CHOCOLATES INC.; and
KELLY TEMPORARY SERVICES INC., Respondents.
No. 26068
January 5, 1997 929 P.2d 966
Appeal from an order of the district court dismissing a complaint pursuant to NRCP
12(b)(5) for failure to state a claim upon which relief can be granted. Eighth Judicial District
Court, Clark County; Gerard J. Bongiovanni, Judge.
Former employee brought action against former employer and others for defamation. The
district court dismissed complaint for failure to state claim. Former employee appealed. The
supreme court, Shearing, J., held that publication of defamatory material to anyone other than
the person defamed, even to agents, is publication for purpose of making prima facie case of
defamation.
Affirmed in part, reversed in part.
Springer, J., and Steffen, C. J., dissented.
Robert G. Giunta & Frederick Santacroce, Las Vegas, for Appellant.
Moran & Weinstock and Glenn Schepps, Las Vegas, for Respondents Mars Inc. and Ethel
M. Chocolates Inc.
Lionel, Sawyer & Collins, Las Vegas, for Respondent Kelly Temporary Services Inc.
Standard of review for dismissal for failure to state claim is rigorous, as reviewing court must construe pleading liberally and draw
every fair inference in favor of nonmoving party. NRCP 12(b)(5).
In review of dismissal for failure to state claim all factual allegations of complaint must be accepted as true. NRCP 12(b)(5).
3. Pretrial Procedure.
Complaint will not be dismissed for failure to state claim unless it appears beyond doubt that plaintiff could prove no set of facts
which, if accepted by trier of fact, would entitle him or her to relief. NRCP 12(b)(5).
4. Libel and Slander.
To establish prima facie case of defamation, plaintiff must prove: (1) false and defamatory statement by defendant concerning
plaintiff; (2) unprivileged publication to third person; (3) fault, amounting at least to negligence; and (4) actual or presumed damages.
5. Libel and Slander.
Publication of defamatory material to anyone other than the person defamed, even to agents, is publication for purposes of
making prima facie case of defamation, and, although privileges exist for certain intracorporate communications, such privileges are
defenses, not part of prima facie case, overruling Jones v. Golden Spike Corp., 97 Nev. 24, 623 P.2d 970 (1981).
OPINION
This is an appeal from an order of the district court dismissing a complaint pursuant to
NRCP 12(b)(5) for failure to state a claim upon which relief can be granted.
Appellant Ruth Simpson (Simpson) was employed by respondent Kelly Temporary
Services, Inc. (Kelly Services) from January 14, 1994, until February 25, 1994. Simpson was
assigned by Kelly Services to work at the Ethel M. Chocolates Inc. candy factory (Ethel M.).
Ethel M. is a subsidiary of Mars Inc. (Mars), a corporation incorporated in Delaware and
doing business in Nevada. Shortly after her assignment, Simpson was contacted by
De-Andrea Arcenaux {Arcenaux), Senior Supervisor of Kelly Services, and informed that
her assignment at Ethel M. had been terminated.
De-Andrea Arcenaux (Arcenaux), Senior Supervisor of Kelly Services, and informed that her
assignment at Ethel M. had been terminated. The next day, Simpson met with Arcenaux and
was told that she was being terminated as a Kelly Services employee because she had
sexually harassed a female co-worker at Ethel M. Arcenaux told Simpson that a co-worker at
Ethel M. had alleged that she had been chased around the parking lot by Simpson.
On May 13, 1994, Simpson filed a complaint against Kelly Services, Ethel M. and Mars,
raising the following causes of action: (1) wrongful discharge in violation of public policy;
(2) breach of implied covenant of good faith and fair dealing; (3) intentional infliction of
emotional distress; (4) defamation; (5) negligence; and (6) respondeat superior. Mars, Ethel
M. and Kelly Services filed motions to dismiss pursuant to NRCP 12(b)(5).
1
A hearing was
held in the district court, and the district court subsequently entered an order dismissing all
causes of action for failure to state a claim upon which relief could be granted. Simpson
appeals, arguing that the district court erred as a matter of law by granting the motion to
dismiss.
We conclude that the district court properly dismissed all the causes of action except the
cause of action for defamation.
[Headnotes 1-3]
The standard of review for a dismissal under NRCP 12(b)(5) is rigorous as this court must construe the pleading liberally and draw
every fair inference in favor of the non-moving party. Vacation Village v. Hitachi America, 110 Nev. 481, 484, 874 P.2d 744, 746 (1994).
All factual allegations of the complaint must be accepted as true. Id. A complaint will not be dismissed for failure to state a claim unless it
appears beyond a doubt that the plaintiff could prove no set of facts which, if accepted by the trier of fact, would entitle him or her to relief.
Id.
[Headnote 4]
Simpson's cause of action for defamation alleges that the defendants published to Simpson's co-workers that she sexually harassed
co-workers and was dismissed for sexual harassment. In order to establish a prima facie case of defamation, a plaintiff must prove: (1) a
false and defamatory statement by 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. Chowdhry v. NLVH, Inc., 109 Nev. 478, 483, 851 P.2d 459, 462 (1993).
__________

1
NRCP 12(b)(5) provides that a claim may be dismissed for failure to state a claim upon which relief can be granted.
[Headnote 5]
The defendants claim that Simpson has not alleged the essential element of publication because the alleged defamatory statements were
made to agents and employees of the defendant corporations who are not third persons for defamation purposes. In Jones v. Golden Spike
Corp., 97 Nev. 24, 623 P.2d 970 (1981), this court adopted the rule that agents and employees of a corporate defendant in a libel action are
not third persons for the purposes of publication of a libel. This court quoted Prins v. Holland-North American Mortgage Co., 181 P. 680
(Wash. 1919) with approval as follows:
Publication of a libel is the communication of the defamatory matter to some third person or persons. Here the communication
was sent from the main office of the company to its branch office. . . . Agents and employes [sic] of this character are not third
persons in their relations to the corporation, within the meaning of the laws pertaining to publication of libels. For the time being,
they are a part and parcel of the corporation itself, so much so, indeed, that their acts within the limits of their employment are the
acts of the corporation. For a corporation, therefore, acting through one of its agents or representatives, to send a libelous
communication to another of its agents or representatives, cannot be a publication of the libel on the part of the corporation. It is
but communicating with itself.
97 Nev. at 26, 623 P.2d at 971, quoting Prins v. Holland-North American Mortgage Co., 181 P. at 680-81.
In adopting this rule this court rejected the position of the Restatement (Second) of Torts 577(1) that publication of defamatory
material to anyone other than the person defamed, even to agents, is publication for the purpose of making a prima facie case of
defamation. See Restatement 577(1) cmt. e.; see also W. Page Keeton, et al., Prosser and Keeton on Torts, 113 at 797-802 (5th ed.
1984). The Restatement recognizes that there are privileges for certain intracorporate communications, but such privileges are defenses, not
part of the prima facie case. See Restatement (Second) of Torts 593-96 (1977).
The instant case exemplifies why the Restatement provides a better rule when dealing with corporations. The circumstances of the
communication of the allegedly defamatory material are uniquely within the knowledge of the corporation and its agents. It is unfair to put
the burden on the plaintiff to determine and allege the circumstances of communication within the corporation before she can make a prima
facie case. Therefore, the circumstances of communication are more appropriately an element of the defense to an action of
defamation rather than an element of the plaintiff's prima facie case.
ment of the defense to an action of defamation rather than an element of the plaintiff's prima
facie case. See also W. Page Keeton, et al., Prosser and Keeton on Torts, (5th ed. 1984,
113, 797-802.
Another practical problem with the approach this court took in Jones is that the law of
defamation is meant to provide an incentive for people not to spread lies that can injure
others. Since most people spend a good part of their time, effort and lives at their work, and
have many colleagues, friends and acquaintances there, to allow an employer to circulate lies
around the workplace with impunity is particularly damaging.
Even cases like Prins v. Holland-North American Mortgage Co., and Mims v.
Metropolitan Life Ins. Co., 200 F.2d 800 (5th Cir. 1952), on which this court relied in Jones,
recognize the limitation that the communication of the alleged defamatory material is only
privileged if covered in the regular course of the corporation's business. It is unfair to require
the plaintiff to plead and prove facts which are peculiarly within the knowledge of the
corporate defendant, such as the circumstances of intracorporate communications.
This court adopts the position of the Restatement (Second) of Torts 577(1), and
overrules the position taken by this court on the issue of publication of defamatory
communications within corporations in Jones v. Golden Spike Corp., 97 Nev. 24, 27, 623
P.2d 970, 971 (1981). Corporations may have the defense of privilege to allegations of
defamation, but the burden of alleging and proving the privilege are on the defendant
corporation, not the plaintiff.
For the reasons set forth above, we reverse that part of the district court's order dismissing
Simpson's cause of action for defamation. The order is affirmed in all other respects.
Rose, J., and Adams, D. J., concur.
2
Springer, J., with whom Steffen, C. J., agrees, dissenting:
The majority would permit Ms. Simpson to proceed on the defamation portion of her
fourth cause of action, which is entitled Invasion of Privacy/Defamation. The fourth
cause of action (claim for relief) attempts to plead torts of invasion of privacy, defamation,
slander and false light. It does not properly state a claim for any of these torts.
With respect to the defamation or slander claim upheld by the majority, the pleader fails to
charge that the publication in questions was either malicious or false; and in making
"damage allegations," the pleader leaves out slander and restricts the plaintiff's damage
claims only to "those acts which constitute invasion of privacy."
__________

2
The Honorable Brent T. Adams, District Judge, was appointed to sit in place of The Honorable Cliff Young, Justice, who voluntarily
recused himself from participation in this case.
questions was either malicious or false; and in making damage allegations, the pleader
leaves out slander and restricts the plaintiff's damage claims only to those acts which
constitute invasion of privacy.
The language of the fourth cause of action in question is to me completely unintelligible;
and I do not see how the trial court could possibly have let it stand. Although the pleader of
this cause of action claims damages only for the tort of invasion of privacy, the pleading
fails to mention this tort or any of its elements. Since the majority is only interested in
salvaging the slander tort claims, I will limit my discussion to this claim and will ignore
invasion of privacy and false light charges.
The gist of the defamation or slander claim is that the Defendants (necessarily the
individual, unnamed, Doe, defendants) published to co-workers that the Plaintiff sexually
harassed them and was dismissed for sexual harassment. Incomprehensively, the complaint
fails to charge that the publication was either malicious or false. It does, however, say that the
defendants knew of the falsity and makes the conclusory allegation that by publishing the
statements . . . to co-workers the individual defendants slandered and placed the Plaintiff in
false light before her co-workers.
It is very difficult to determine whether the pleader is trying to state a claim for invasion of
privacy, defamation or false light; but the pleader's intention becomes clearer when we reach
the last paragraph in this cause of action, paragraph 48, in which the pleader incorporates
previously averred damage allegations and specifies that these allegations for the purpose
of this [fourth] count shall refer to acts which constitute invasion of privacy. From this
paragraph we are able to learn that the damage allegations refer to the invasion of privacy
claim alone and not to the defamation or false light claims that are referred to or touched
upon throughout the fourth cause of action.
In sum, then, the pleader has attempted to charge defamation in a complaint in which there
are no allegation of malice, no allegation of falsity and no allegation of damages with respect
to the slander. It might, of course, be argued that the allegation that the defendants knew of
the falsity fills in for the failure to allege that the statements themselves were false; but I do
not think that the trial judge could be faulted in this case for dismissing slander charges
because of this missing element, even if the other elements had been properly pleaded.
Malice and damages are necessary elements of the tort. Chowdhry v. NLVH, Inc., 109
Nev. 478, 483, 851 P.2d 459, 462 (1993). There is no mention of malice in the pleading, and
the claim for damages is restricted to the invasion of privacy claim.
The invasion of privacy/defamation cause of action was properly dismissed for failure to
state a claim upon which relief can be granted.
In addition to its failure to plead the essential elements of malice, falsity and damages, Ms.
Simpson has failed to plead the only other necessary element of defamation, publication.
Ms. Simpson has alleged that some unnamed workers published to co-workers that the
Plaintiff sexually harassed them and was dismissed for sexual harassment and that the
publication was done within the course and scope of their employment, in other words,
statements made among co-workers in pursuance of and as a part of their job.
The first thing that we must examine in determining whether Ms. Simpson failed to plead
properly the element of publication (in addition to her failing to plead the other elements of
the tort) is to separate the individual from the corporate defendants.
With regard to the corporate defendants, who are sued under respondeat superior, we must
keep in mind that the tort in question is an intentional tort and that the corporations cannot be
held liable unless there was some form of corporate malice (that is to say, some form of
malice on the part of corporate management) or false and malicious statements issued by
managerial personnel or the corporation. Cerminara v. California Hotel and Casino, 104 Nev.
372, 378, 760 P.2d 108, 111 (1975). There is no point in discussing this point at any length
because it is clear that the statements alleged to have been made here are attributed to mere
employees who were communicating with co-workers in the course of their employment. I
see absolutely no basis for corporate liability for statements, true or false, that are made
among co-workers about a fellow employee, whether these statements were job-connected
or not. Generally speaking a corporation is not liable for the intentional torts of its line
employees, absent special circumstances that are clearly not present here.
With regard to the question of whether Ms. Simpson has pleaded an actionable
publication by and to co-workers, it is necessary to define what a publication is. Under
Jones and Chowdhry, cited in the majority opinion, intracorporate communications made
among agents and employees of a corporation acting within the limits of their employment
are not publications for the purposes of slander claims. Under Chowdhry, a slander
claimant must allege an unprivileged communication as part of a prima facie case for
defamation. Had Ms. Simpson wanted to plead a proper defamation case with regard to the
publication element, she would have had to have pleaded, under Jones and Chowdhry, an
unprivileged communication, that is to say a communication that was not protected by the
conditional privilege afforded to intracorporate communications.
say a communication that was not protected by the conditional privilege afforded to
intracorporate communications. She chose not to do this and, rather, to plead that these
communications were made as part of the employees' job.
To salvage Ms. Simpson's slander claim, the majority wants to upset Nevada precedent
that has been in effect for the past fifteen years. This is unwise and unnecessary. All Ms.
Simpson had to do to avert dismissal for failure to plead publication in this case was merely
to allege that certain malicious, false and unprivileged communications (that is to say,
communications that were not legitimately made as part of the co-workers employment
were made about her. She is presumed to have known what Nevada law was on the subject,
and I see no reason to change Nevada law to fit her purpose and to try to protect her from
dismissal of an improperly pleaded element of her tort claim.
It seems to me that the majority is unnecessarily engaged in pin-head dancing in its
discussion of publication as part of the prima facie case versus privilege as an affirmative
defense; but even if I were to agree with the majority's drastic alteration of Nevada precedent,
and even if the essential elements of malice, falsity, damages and publication had been
properly pleaded, the effect of this opinion would clearly bear only upon Mr., Ms. and Mrs.
Doe. Under the majority ruling, if Ms. Simpson had pleaded the stated elements properly, she
could then proceed on the intentional tort of slander only against the individual
fictitiously-named defendants.
Ms. Simpson did not properly plead any of the elements of slander; consequently, the
proper ruling of the trial court should stand.
____________
113 Nev. 195, 195 (1997) Anes v. Crown Partnership, Inc.
EILEEN ANES, Appellant, v. THE CROWN PARTNERSHIP, INC., a Nevada Corporation;
FLAMINGO/BRUCE PARTNERSHIP, aka FLAMINGO/BRUCE LIMITED
PARTNERSHIP, a Nevada Limited Partnership; BRUCE DEVELOPMENT
COMPANY LIMITED PARTNERSHIP, a Nevada Limited Partnership; and
AMERICAN BONDING COMPANY, Respondents.
No. 26851
January 30, 1997 932 P.2d 1067
Appeal from a final order granting summary judgment in favor of respondents. Eighth
Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
Lessee filed complaint against receiver for leased property, partnership that owned
property, and bonding company from which receiver obtained security bond, alleging breach
of contract, breach of covenant of quiet enjoyment, and breach of duty of good faith and fair
dealing, and seeking declaratory relief, and enforcement of liability of surety. Lessee
subsequently filed motion for preliminary injunction. Defendants opposed motion, and filed
countermotion for summary judgment. The district court denied lessee's motion, and granted
defendants' countermotion. Lessee appealed. The supreme court held that: (1) fact question as
to whether receiver impliedly adopted lessee's lease precluded summary judgment; (2) lessee
could sue receiver without leave of court; (3) if receiver adopted lease, it was bound to meet
all terms of lease; and (4) fact question as to whether receiver exceeded its district court
mandate precluded summary judgment.
Brian K. Berman, Las Vegas, for Appellant.
Gordon, Silver & Beesley and Thomas H. Fell, Las Vegas, for Respondents.
1. Receivers.
Customarily, receiver is neutral party appointed by court to take possession of property and preserve its value for benefit of person
or entity subsequently determined to be entitled to property.
2. Receivers.
State law generally allows receivers to reject, within reasonable time, outstanding executory contracts of owner of estate which is
being administered; however, adoption of existing executory contracts may be inferred by actions of receiver or acceptance of contract
benefits.
3. Receivers.
Receiver, stepping into shoes of lessor, which fails to use its court-authorized powers to cancel or modify existing executory lease
within reasonable time, and accepts performance from lessee, impliedly adopts that lease.
4. Judgment.
Fact question as to whether receiver for property, acting as lessor, impliedly adopted lessee's lease for executive suite, precluded
summary judgment for receiver in lessee's action for breach of contract, breach of covenant of quiet enjoyment, and breach of duty of
good faith and fair dealing.
5. Receivers.
Receivers generally cannot be sued without leave of appointing court.
6. Receivers.
Purpose of rule prohibiting receiver from being sued without leave of appointing court is to accommodate all claims possible in
receivership action under supervision of appointing court, and to render receiver answerable solely to that court.
7. Receivers.
When receiver acts beyond scope of its court-derived authority such that it may be sued as individual, leave of court to sue is
unnecessary.
8. Receivers.
Express authorization granted by appointing court permitting receiver to appear in and defend suit in another court is equivalent to
granting leave of court to sue receiver.
9. Receivers.
Lessee could sue receiver for leased property, who acted as lessor, for breach of contract, breach of covenant of quiet enjoyment,
and breach of duty of good faith and fair dealing, without leave of court, given that order appointing receiver granted receiver right to
defend all legal proceedings and claims involving the property, and lessee's claims concerned receiver's liability for actions performed
outside scope of its authority.
10. Receivers.
Lessee's failure to object to receiver's appointment did not bar her right to object to receiver's subsequent conduct when acting as
lessor. No evidence showed that lessee had knowledge of appointment proceedings, that she had right to be involved in proceedings, or
that she was in fact involved in them.
Supreme court was not required to address proposition for which propounding party gave no legal authority.
12. Receivers.
After receiver's adoption of lease, lessee qualifies as party with some interest in property.
13. Receivers.
Receiver, acting in stead of lessor, which adopts executory lease without modifying terms of that lease within reasonable time, may
not later deny lessee full benefits of that lease.
14. Receivers.
If receiver acting as lessor adopted lessee's lease for executive suite, as alleged, receiver was bound to meet all terms of lessee's
lease, notwithstanding lack of privity of contract.
15. Receivers.
Receiver appointed by court acts as officer of court.
16. Receivers.
Receiver who faithfully and carefully carries out orders of appointing judge shares judge's judicial immunity.
17. Receivers.
Receiver authorized by court to continue business operation, or which is performing duties authorized by court, is not personally
liable for any losses incurred when it acts in good faith and its own misconduct or negligence did not cause loss; rather, any judgments
rendered in such cases are payable from funds in receiver's hands, if receiver was acting in its official capacity.
18. Receivers.
Receiver must not exceed limits of authority granted by court and must act for benefit of all persons interested in property.
19. Receivers.
Receiver may be personally liable if he acts outside authority granted by court.
20. Judgment.
Fact questions as to whether receiver acting as lessor exceeded its court mandate by allegedly harassing lessee, or whether it
faithfully and carefully carried out court's orders, so as to entitle receiver to quasi-judicial immunity status, precluded summary
judgment for receiver, in lessee's action for breach of contract, breach of covenant of quiet enjoyment, and breach of duty of good faith
and fair dealing.
OPINION
Per Curiam:
Appellant Eileen Anes (Anes) works as a marriage and family therapist and leases an
executive suite in the Magna Executive Center (the Center) in Las Vegas. Her lease, a
renewal entered into with the bankruptcy trustee for the Center's owner Flamingo/Bruce
Partnership (Flamingo), commenced on May 1, 1993, and was slated to end on April 30,
1996. The executive suite lease arrangement provides Anes with various services including
access to a receptionist, a janitor, a fax machine, a postage meter, and a conference room. For
these services, Anes pays significantly more than the market rate for such premises.
After a primary partner of Flamingo filed for bankruptcy in October 1993, the two deed
holders on the Center petitioned the district court to appoint a receiver for the property. The
receivership order issued by the district court required the appointed receiver, respondent
Crown Partnership, Inc., to increase occupancy rates at the Center, and authorized Crown to
take such steps as Crown believes necessary or desirable to cause the Property to be
occupied by tenants; . . . and to modify or cancel leases as Crown may deem appropriate in its
sole and absolute discretion. The order also provided that any obligation incurred by Crown
as authorized by this Order shall be paid solely from the cash flow derived from the
property. The district court also required Crown to obtain a security bond. Crown acquired
this bond from respondent American Bonding Company.
Within six months, the majority of the other leaseholders in the building, including all
others in Anes' suite, had vacated the premises. After Anes refused to move to another suite
in the Center, Crown allegedly began to withhold many of the services required by the lease
and harassed and intimidated Anes in order to force her to relocate to another suite.
On July 15, 1994, Anes filed a complaint against respondents (collectively Crown)
alleging breach of contract, breach of the covenant of quiet enjoyment, breach of the duty of
good faith and fair dealing, declaratory relief, and for enforcement of liability of the surety.
the surety. Anes did not obtain leave of the court to proceed against Crown. On October 12,
1994, Anes filed a motion for preliminary injunction requiring Crown to restore all services
under the lease, and prohibiting Crown from engaging in any further harassment. Crown
opposed the motion and filed a countermotion for summary judgment. The district court
denied Anes' motion and granted Crown's countermotion for summary judgment.
DISCUSSION
Summary judgment is only appropriate when, after a review of the record viewed in the
light most favorable to the nonmoving party, there remain no issues of material fact. Butler v.
Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). A party opposing summary
judgment may not rely on his allegations to raise a material issue of fact where the moving
party supports his motion with competent evidence. Garvey v. Clark County, 91 Nev. 127,
130, 532 P.2d 269, 271 (1975). The court's review of a summary judgment order is de novo.
Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).
Anes asserts that although Crown had the power under the district court's receivership
order to modify or cancel leases on the premises, Crown accepted the whole of Anes' lease by
not rejecting it. Crown contends that it has no fiduciary duty to Anes and that its actions did
not exceed the scope of its order of appointment.
[Headnotes 1-3]
Customarily, a receiver is a neutral party appointed by the court to take possession of property and preserve its value for the benefit of
the person or entity subsequently determined to be entitled to the property. Lynn v. Ingalls, 100 Nev. 115, 120, 676 P.2d 797, 800-01
(1984). As a general rule, state law allows receivers to reject, within a reasonable time, outstanding executory contracts of the owner of the
estate which is being administered. 66 Am. Jur. 2d Receivers 223 (1973). However, adoption of existing executory contracts may be
inferred by the actions of the receiver or acceptance of the benefits of the contract. Id.; 2 R.E. Clark, Clark on Receivers 428-428(c)
(1959) [hereinafter Clark]. We find this line of law equitable and now hold that a receiver, stepping into the shoes of a lessor, which fails
to use its court-authorized powers to cancel or modify an existing executory lease within a reasonable time, and accepts performance from
the lessee, impliedly adopts that lease.
[Headnote 4]
In the instant matter, Crown had the power, at its sole discretion, to modify or cancel Anes' lease. From our review of the record, it
does not appear that Crown exercised its power to modify or reject Anes' leasehold interest within a
reasonable time, or that it notified Anes of its intention to do so.
record, it does not appear that Crown exercised its power to modify or reject Anes' leasehold
interest within a reasonable time, or that it notified Anes of its intention to do so. Crown
accepted rental payments from Anes and allowed her to remain in possession. Crown also
continued to provide Anes with some of the professional services outlined in the lease.
Accordingly, we conclude that a substantial issue of material fact exists as to whether Crown
impliedly adopted Anes' lease.
Crown also contends that receivers are insulated from liability where the party suing fails
to obtain leave of court prior to bringing the cause of action.
[Headnotes 5-8]
Generally, a receiver cannot be sued without leave of the appointing court. See, e.g., Barnette v. Wells Fargo Nevada Nat. Bank, 270
U.S. 438, 439 (1926). The purpose of the rule is to accommodate all claims possible in the receivership action under the supervision of the
appointing court, and to render the receiver answerable solely to that court. Vitug v. Griffin, 262 Cal. Rptr. 588, 591 (Ct. App. 1989).
However, where the receiver acts beyond the scope of its court-derived authority such that it may be sued as an individual, leave of the
court is unnecessary. 66 Am. Jur. 2d Receivers 465. Moreover, express authorization granted by the appointing court permitting the
receiver to appear in and defend a suit in another court is equivalent to granting leave of the court. See Barnette, 270 U.S. at 441-42.
[Headnotes 9-11]
Here, the district court, in its order appointing receiver, granted Crown the right to defend all legal proceedings and claims involving
the property. Crown asserted that right by defending Anes' claim in the district court. In addition, the claims raised by Anes concern
Crown's liability for actions performed outside the scope of its authority. Accordingly, we conclude that leave of the court was unnecessary
in the instant matter.
1
Crown contends that Anes is precluded from recovering on her breach of contract claim from Crown because the two parties are not in
privity of contract, but are only in privity of estate. Crown also contends that it has met its obligations under the lease by providing Anes
with possession and quiet enjoyment (i.e., the covenants running with the land required where privity of contract is
absent).
__________

1
Crown also asserts that Anes' failure to object to Crown's appointment as the property's receiver bars her right to object to Crown's
subsequent conduct. Crown points to no evidence showing that Anes had knowledge of the proceedings related to Crown's appointment,
that she had a right to be involved, or that she was in fact involved in them in any way. Thus, we conclude that the issue is without merit.
Furthermore, Crown gave no legal authority for this proposition and thus this court need not address it. See Watson v. Watson, 95 Nev.
495, 497, 596 P.2d 507, 508 (1979).
covenants running with the land required where privity of contract is absent). Anes contends
that by leasing an executive suite for which she pays a premium, she is entitled to receive the
full services guaranteed under the lease.
This court has recognized the privity of contract/privity of estate distinction. See, e.g.,
Hornwood v. Smith's Food King No. 1, 107 Nev. 80, 85, 807 P.2d 208, 212 (1991). However,
Nevada law does not address this distinction as it pertains to lessor-receivers and the adoption
of executory leases.
Several federal cases hold that a receiver adopting a lease holds the lease by privity of
estate only. 66 Am. Jur. 2d Receivers 234 (citing United States Trust Co. of New York v.
Wabash R.R. Co., 150 U.S. 287, 299-300 (1893); Madden v. La Cofske, 72 F.2d 602, 605
(9th Cir. 1934)); see also In re Wil-Low Cafeterias, 111 F.2d 83, 84-85 (2d. Cir. 1940).
However, these cases are not dispositive of the instant matter. The receivers in United States
Trust, Madden, and In re Wil-Low Cafeterias stepped into the shoes of tenants and vacated
the premises, but did not incur liability for their failure to pay the remaining rent (i.e., their
breach of the covenant to pay rent).
[Headnotes 12-14]
It would be unjust to allow a receiver which has adopted a lease to disregard material portions of the lease on the basis that the parties
lack privity of contract. After the receiver's adoption of the lease, the lessee qualifies as a party with some interest in the property. See
Fullerton v. District Court, 111 Nev. 391, 400, 400 n.8, 892 P.2d 935, 941, 941 n.8 (1995). Therefore, we hold that a receiver, acting in the
stead of a lessor, which adopts an executory lease without modifying the terms of that lease within a reasonable time, may not later deny the
lessee the full benefits of that lease. See Johnson v. California-Washington Timber Co., 296 P. 159, 162 (Wash. 1931); see also Greif Bros.
Cooperage Co. v. Mullinix et al., 264 F. 391 (8th Cir. 1920). In the instant matter, we conclude that if Crown adopted Anes' lease, a
question of fact that has not yet been resolved, Crown was bound to meet all of the terms of Anes' lease.
Crown also argues that the cancellation provision in the district court's order appointing receiver precludes Crown's liability for breach
of contract under a theory of quasi-judicial immunity. Anes asserts that even if quasi-judicial immunity exists, it is unavailable to Crown
due to its intentional misconduct.
[Headnotes 15-17]
A receiver appointed by the court acts as an officer of the court. Bowler v. Leonard, 70 Nev. 370, 383, 269 P.2d 833, 839 (1954). A
receiver who faithfully and carefully carries out the orders of the appointing judge shares the judge's judicial immunity.
Kermit Const. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1, 3 (1st Cir. 1976). Thus, a
receiver authorized by the court to continue a business operation, or which is performing
duties authorized by the court, is not personally liable for any losses incurred when it acts in
good faith and its own misconduct or negligence did not cause the loss. 66 Am. Jur. 2d
Receivers 442. Any judgments rendered in such cases are payable from funds in the
receiver's hands (i.e., stemming from the receivership estate) if the receiver was acting in its
official capacity. Id. 442; accord Norman v. Trison Development Corp., 832 P.2d 6, 9 n.11
(Okla. 1992).
[Headnotes 18, 19]
However, the receiver must not exceed the limits of the authority granted by the court and must act for the benefit of all persons
interested in the property. Fullerton, 111 Nev. at 400, 892 P.2d at 941. Indeed, a receiver may be personally liable if he or she acts outside
the authority granted by the court. Interlake Co. v. Van Hake, 697 P.2d 238, 240 (Ut. 1985); Krist v. Aetna Cas. & Sur., 667 P.2d 665, 671
(Wyo. 1983); accord 2 Clark, 428; 66 Am. Jur. 2d Receivers 367.
[Headnote 20]
Here, the district court authorized Crown to cancel or modify any lease in the Center and to take such steps as Crown believes
necessary or desirable to cause the Property to be occupied by tenants; . . . . While this language admittedly gives Crown broad powers, it
was not intended to give Crown the right to harass or intimidate tenants as Anes alleges. In fact, the district court noted in its order that
[f]rankly, if the only issue were Anes being harassed I would find she is. Accordingly, we conclude that there are remaining factual
disputes as to whether Crown exceeded its district court mandate by allegedly harassing Anes, and, consequently, whether it faithfully and
carefully carried out the district court's orders. See Kermit, 547 F.2d at 3. Until that determination is made, Crown's quasi-judicial
immunity status remains unresolved.
The district court has not yet had the opportunity to make findings as to all the factual matters presented in this case. Thus, we deem it
premature to address issues raised by the parties concerning the funds from which Anes may satisfy any judgment she might receive.
Accordingly, we reverse the order of the district court and remand this case for proceedings consistent with this opinion.
2
__________

2
The Honorable Miriam Shearing, Chief Justice, and The Honorable A. William Maupin, Justice, did not participate in the decision
of this appeal.
____________
113 Nev. 203, 203 (1997) Tri-Pacific Commercial Brokerage v. Boreta
TRI-PACIFIC COMMERCIAL BROKERAGE, INC., Appellant, v. VOSS BORETA, an
Individual; and ST. ANDREWS GOLF CORPORATION, a Nevada Corporation dba
LAS VEGAS DISCOUNT GOLF AND TENNIS, Respondents.
No. 27092
January 30, 1997 931 P.2d 726
Appeal from an order of the district court entering judgment in favor of respondents,
pursuant to a bench trial, in an action against an alleged guarantor, arising out of the alleged
principal's default on a promissory note. Eighth Judicial District Court, Clark County; Joseph
T. Bonaventure, Judge.
Lender sued alleged guarantor after alleged principal defaulted on promissory note. The
district court entered judgment for lender. Alleged guarantor appealed. The supreme court
held that promissory note was unenforceable as guarantee agreement pursuant to statute of
frauds.
Reversed.
Nitz, Walton & Heaton, Las Vegas, for Appellant.
Deaner, Deaner, Scann, Curtas & Malan, Las Vegas; Steven J. Mack, Las Vegas, for
Respondents.
1. Frauds, Statute of.
Promissory note was unenforceable as guarantee agreement pursuant to statute of frauds, where loan instrument stated that the
undersigned jointly and severally promise to pay agreed amount, but note contained only two signature lines, with top line signed by
individual borrower, and borrower's name printed next to that of alleged guarantor, and second signature line showing lender's
signature and printed name. Note lacked any words indicative of guaranty agreement, and borrower did not indicate that he was
separately signing on alleged guarantor's behalf. NRS 111.220.
Contracts of guarantee are subject to statute of frauds. NRS 111.220.
Under statute of frauds, substantial parts of contract must be embodied in writing with such degree of certainty so as to make clear
and definite the intention of parties without resorting to oral evidence. NRS 111.220.
OPINION
Per Curiam:
Chip Parker, a salesman and independent contractor for appellant, Tri-Pacific Commercial
Brokerage, Inc. (Tri-Pacific), obtained a $60,000 personal loan from respondent Voss Boreta.
The terms of the note stated that the principal would be repaid within four days with an
additional $15,000 fee.
The terms of the note stated that the principal would be repaid within four days with an
additional $15,000 fee. Chip told Voss that Tri-Pacific would guarantee the loan. Chip signed
the promissory note with the printed words Chip Parker, Tri-Pacific below his signature.
Chip defaulted and Voss sought payment first from Chip and then from Tri-Pacific. Chip's
brother, Dan Parker, is the exclusive owner, office holder, and director of Tri-Pacific, and he
maintained that he had no knowledge that Tri-Pacific was the alleged guarantor of Chip's loan
until Voss filed the lawsuit at issue.
The district court found that the promissory note satisfied the statute of frauds and that
Chip had apparent authority to bind Tri-Pacific as guarantor of the loan. The district court
then ordered Tri-Pacific to pay Voss the $75,000 owed on the loan, plus interest, attorney
fees, and costs as provided for in the promissory note. We conclude that the district court
erred in finding Tri-Pacific liable because the promissory note was unenforceable as a
guarantee agreement pursuant to the statute of frauds.
FACTS
Voss and his son, Ron Boreta, own retail stores as majority stockholders in the publicly
traded St. Andrews Golf Corporation d/b/a Las Vegas Discount Golf and Tennis (St.
Andrews). Tri-Pacific, a California corporation, is a commercial real estate company that
specializes in leasing spaces to retailers in shopping centers. In 1990, Tri-Pacific solicited St.
Andrews about finding commercial locations for the expansion of St. Andrews' stores in
California, and eventually nationwide. Tri-Pacific and St. Andrews subsequently entered into
a business relationship.
In early 1992, Ron lent $35,000 to Chip for a personal venture unrelated to Tri-Pacific's
real estate business. Chip signed this note without any reference to Tri-Pacific; Chip paid Ron
$45,000 approximately one month later. Then, in March of 1992, Chip asked Ron to lend him
another $60,000 for the same personal business venture, offering to pay Ron $75,000 within
four days. Ron declined, but Voss agreed to loan Chip the money on March 12, 1992, on the
same terms discussed with Ron.
Voss testified that he agreed to loan Chip the money even though Voss knew that the
money was to be used by Chip individually, and not by Tri-Pacific. Voss told Chip that he
wanted some collateral for the loan; Chip replied that he had no personal collateral but stated
that Tri-Pacific would guarantee the loan. Chip signed the note with the words Chip Parker,
Tri-Pacific beneath his signature, and Voss signed below. The note contained language that
the undersigned jointly and severally agreed to pay the debt owed to Voss.
Chip defaulted on the $75,000 loan. On August 9, 1993, the district court entered a default
judgment against Chip, individually, in favor of Voss for $75,000 plus interest, costs, and
attorney fees. However, Chip did not satisfy the judgment on the $75,000 note, and on
February 6, 1995, the trial between Voss and Tri-Pacific commenced, with Voss claiming that
Tri-Pacific was liable on the $75,000 judgment as a guarantor. At trial, Voss maintained that
the alleged guaranty agreement was valid and enforceable against Tri-Pacific because the
writing satisfied the statute of frauds (pursuant to NRS 111.220), and because Chip had
apparent authority to bind Tri-Pacific as a guarantor of the note.
With regard to the March 12, 1992, $75,000 time note, the district court found that the
writing satisfied the statute of frauds. The court also found that Chip and Tri-Pacific were
jointly and severally liable on the obligation, pursuant to the language in the note.
Subsequently, the lower court entered judgment in favor of Voss, ordering Tri-Pacific to pay
the $75,000 note signed by Chip, in addition to interest, costs, and attorney fees.
Tri-Pacific appeals the district court's Findings of Fact and Conclusions of Law and
subsequent judgment. Tri-Pacific asserts that Chip did not have apparent authority to bind
Tri-Pacific as a guarantor of the loan, that the law required express authority to bind a
principal on a guaranty, and that the writing was not sufficient to satisfy the statute of frauds
and was thus unenforceable.
We conclude that the note was unenforceable against the alleged guarantor pursuant to the
statute of frauds and, therefore, we do not need to address the other issues raised on appeal.
DISCUSSION
The note was not enforceable pursuant to the writing requirements of the statute of frauds
[Headnotes 1, 2]
Under . . . Nevada law, contracts of guarantee are subject to the statute of frauds. Pentax Corp. v. Boyd, 111 Nev. 1296, 1299, 904
P.2d 1024, 1026 (1995). The district court concluded that the $75,000 promissory note satisfied the statute of frauds requirements,
delineated in NRS 111.220.
1
We disagree. In reviewing the writing at issue, we note that the loan instrument states
that "the undersigned jointly and severally promise to pay" the agreed amount.
__________

1
NRS 111.220 states, in pertinent part, that:
In the following cases every agreement is void, unless the agreement, or some note or memorandum thereof expressing the
consideration, is in writing, and subscribed by the person charged therewith:
. . . .
2. Every special promise to answer for the debt, default or miscarriage of another.
reviewing the writing at issue, we note that the loan instrument states that the undersigned
jointly and severally promise to pay the agreed amount. However the note contains only two
signature lines; the top line is signed by Chip, with the printed words Chip Parker, Tri
Pacific, and the signature line below shows the signature of Voss Boreta with the printed
words Voss Boreta. We conclude that the note, as written, was fully enforceable against
Chip, individually, but did not constitute an enforceable contract between Voss and
Tri-Pacific.
[Headnote 3]
Pursuant to NRS 111.220, the substantial parts of the contract must be embodied in writing with such a degree of certainty so as to
make clear and definite the intention of the parties without resorting to oral evidence. Stanley v. Levy & Zentner Co., 60 Nev. 432, 446,
112 P.2d 1047, 1053 (1941). The Stanley court quoted Restatement of Contracts 207 (1932), in noting that the terms and conditions of
all the promises constituting the contract and by whom and to whom the promises are made' must be stated in the writing with certainty.
Id.
We conclude that the promissory note at issue lacks any words indicative of a guaranty agreement between the parties. Cf. Glen Falls
Ins. v. First Nat'l Bank, 83 Nev. 196, 200, 427 P.2d 1, 3 (1967) (The original contract of the principal is not [the guarantor's] contract.).
We further conclude that the jointly and severally language is irrelevant, as the undersigned consisted of Chip and Voss. The only
reference to Tri-Pacific was in a single typed signature line, Chip Parker, Tri Pacific, above which Chip signed his name without any
indication that he was separately signing on Tri-Pacific's behalf. The document is simply not a clear and definite indication that the parties'
intent was to have the personal debt of Chip guaranteed by Tri-Pacific. As other jurisdictions have noted, A guarantor is the favorite of the
law, and as such, a writing deficient in essential elements is void and unenforceable. Kutilek v. Union Nat'l Bank of Wichita, 516 P.2d
979, 984 (Kan. 1973).
CONCLUSION
We conclude that the promissory note at issue was unenforceable against Tri-Pacific under the statute of frauds. Therefore, Tri-Pacific
was not liable on the $75,000 instrument, and accordingly, we reverse the district court's judgment.
2
__________

2
The Honorable A. William Maupin, Justice, did not participate in the decision of this matter.
____________
113 Nev. 207, 207 (1997) Dermody v. City of Reno
JOHN A. DERMODY and MARTHA SUE DERMODY, E.W. McKENZIE and
GENEVIEVE McKENZIE, Appellants, v. THE CITY OF RENO, Respondent.
No. 27164
January 30, 1997 931 P.2d 1354
Appeal from order granting respondent's motion for summary judgment. Second Judicial
District Court, Washoe County; Mark Handelsman, Judge.
Landowners sued city to quiet title in water rights, or alternatively, seeking just
compensation for appurtenant water rights, following condemnation of portion of their land.
The district court granted city's motion for summary judgment. Landowners appealed. The
supreme court held that: (1) landowners waived alleged factual disputes of knowledge and
intent; (2) fee simple title obtained in condemnation transfers, as matter of law, appurtenant
water rights; (3) water rights were included in final damages award paid in condemnation
action, and those rights passed to city; and (4) res judicata barred second raising of inverse
condemnation claim.
Affirmed.
Osborne Law Office, Chartered, and Kevin P. Ryan and Stephen H. Osborne, Reno, for
Appellants.
Patricia Lynch, City Attorney, Victoria M. Thimmesch, Deputy, and Donald L.
Christensen, Deputy, Reno, for Respondent.
1. Easements; Waters and Water Courses.
A thing is deemed to be incidental or appurtenant when it is by right used with the land for its benefit, as in case of a way, or
water-course.
Supreme court's review of summary judgment orders is de novo.
3. Judgment.
Summary judgment should only be entered when there are no genuine issues of material fact and moving party is entitled to
judgment as matter of law.
4. Judgment.
Genuine issue of material fact is one where evidence is such that reasonable jury could return verdict for nonmoving party.
5. Judgment.
On motion for summary judgment, pleadings and proof offered in district court are construed in light most favorable to
nonmovant.
Parties may not raise new theory for first time on appeal, which is inconsistent with or different from one raised below.
Landowners' claims allegedly raising factual disputes of knowledge and intent were waived, on appeal of summary judgment for
city in action to quiet title in appurtenant water rights or for just compensation, as those arguments were not raised until trial court
entered summary judgment for city.
8. Judgment.
Landowners' assertions that they did not know appurtenant water rights were at issue at time land was condemned and that they
never intended to transfer water rights to city did not create issue of fact for purposes of summary judgment motion, where landowners
did not claim that misrepresentation or confusion was present at time property was condemned, but rather, issues arose only after
condemnation.
9. Judgment.
Party cannot manufacture genuine issue of material fact for purposes of summary judgment by making assertions in its legal
memorandum, nor can party build case on gossamer threads of speculation and surmise.
10. Eminent Domain.
Title to property was transferred to city in condemnation action in fee simple absolute, and thus water rights were included in final
damages award paid to landowners and those rights in property passed to city, where nowhere in condemnation instruments did
landowners expressly reserve appurtenant water rights, and judgment stated that payment was in full payment for the interests in the
land and for all damage of every kind suffered because of the taking. NRS 37.020(1), 533.040.
11. Eminent Domain.
Fee simpled title obtained in condemnation transfers, as matter of law, appurtenant water rights. NRS 37.020(1), 533.040.
12. Waters and Water Courses.
Water rights are appurtenant to benefitted land, whether water rights are acquired by statue or common law. NRS 533.040.
13. Eminent Domain.
Appurtenant water rights are separate stick in bundle of rights attended to real property, and thus may be condemned separately.
NRS 37.020(1), 533.040.
14. Eminent Domain.
Property owners were barred by res judicata from raising inverse condemnation claim for second time, as parties were identical,
claim and issue of whether property owner received just compensation for property condemned in fee simple was adjudicated and final
order was entered, and property owner sought to raise same claim again.
15. Judgment.
Res judicata precludes parties or those in privity with them from relitigating cause of action or issue which has been finally
determined by court of competent jurisdiction.
16. Judgment.
Res judicata applies when: issue decided in prior litigation is identical to issue presented in current action; initial ruling was on the
merits and became final; and party against whom judgment is asserted was party or in privity with party in prior litigation.
OPINION
Per Curiam:
[Headnote 1]
Prior to 1978, appellants John A. and Martha Sue Dermody, husband and wife, and E.W. and Genevieve McKenzie, husband and wife,
(hereinafter collectively referred to as Appellants) owned 126.727 acres of land bordering what is commonly known as Reno-Tahoe
International Airport. Appurtenant to this parcel of land were water rights consisting of a portion of Truckee River Claim No. 524 of the Orr
Ditch Decree in the amount of approximately 229.25 acre-feet of water.
1
The respondent City of Reno (hereinafter City) prohibited
development on Appellants' property in anticipation of airport expansion. Accordingly, on August 10, 1976, Appellants filed a complaint
against City for inverse condemnation (hereinafter the first action). The parties to the first action are identical to those in the instant
matter.
The parties in the first action stipulated that the City had indeed inversely condemned a portion of Appellants' land, 77.25 acres, and
the issues to be resolved . . . consist solely of: (a) Valuation of the property to be acquired; and (b) Severance damages, if any. A bench
trial commenced on October 17, 1977. Both sides presented expert testimony on the value of the condemned property. On January 12,
1978, the trial court entered its decision, adopting Appellants' expert testimony which valued the property at $4,635,000.00, or $60,000.00
per acre.
On January 23, 1978, the final order of condemnation, vesting fee simple title of the subject property in the City was filed with the
Washoe County Recorder's Office. No condemnation documents expressly conferred the appurtenant water rights upon the City nor
reserved interest in Appellants.
On June 25, 1979, the City quitclaimed the property to the Washoe County Airport Authority. In that conveyance, the City excepted
and reserved unto [itself] all surface water rights of whatsoever nature. Nevertheless, Appellants, based on the belief that they retained the
appurtenant water rights in the condemned property, conveyed 34.87 acre-feet of water to Sierra Pacific Power Company on September 20,
1984, and 10.38 acre-feet to the City of Sparks on January 13, 1986.
On April 18, 1994, Appellants filed suit seeking to quiet title in the 229.25 acre-feet of water or, alternatively, just
compensation for the appurtenant water rights.
__________

1
A thing is deemed to be incidental or appurtenant when it is by right used with the land for its benefit, as in the case of a way, or
water-course . . . . Mattix v. Swepston, 155 S.W. 928, 930 (Tenn. 1913).
the 229.25 acre-feet of water or, alternatively, just compensation for the appurtenant water
rights. After the City filed its answer asserting all right, title, and interest in the condemned
property, both parties moved for summary judgment.
On March 22, 1995, the trial court granted the City's summary judgment motion while
denying Appellants' summary judgment motion. The court found that as a matter of law the
appurtenant water rights automatically vested in [the City] when fee simple title in the subject
property passed to [the City] under the condemnation proceedings in 1978. The district court
further found that Appellants' alternative arguments regarding the City's authority to condemn
the water rights for an award of additional compensation were barred by res judicata.
Appellants now appeal the trial court's March 22, 1995 ruling to this court. Appellants
allege the same issues on appeal and also attempt to raise two new claims concerning issues
of material fact.
[Headnotes 2-5]
This court's review of summary judgment orders is de novo. Joynt v. California Hotel & Casino, 108 Nev. 539, 541, 835 P.2d 799,
800 (1992). Further, summary judgment should only be entered when there are no genuine issues of material fact and the moving party is
entitled to a judgment as a matter of law. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 665 (1985). A genuine issue of material
fact is one where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Valley Bank v. Marble, 105
Nev. 366, 367, 775 P.2d 1278, 1282 (1989). The pleadings and proof offered at the district court are construed in a light most favorable to
the nonmovant. Hoopes v. Hammargren, 102 Nev. 425, 429, 725 P.2d 238, 241 (1986).
Appellants argue, for the first time, that genuine issues of material fact are present in the instant matter because Appellants (1) had no
knowledge that the subject water rights were even an issue at the time of condemnation, and (2) never intended to transfer any water
rights to [the] City. Despite Appellants' original summary judgment motion claiming that there is no issue as to any material fact and that
[Appellants are] entitled to judgment as a matter of law, Appellants now contend that their lack of knowledge and intent creates genuine
issues of material fact.
[Headnotes 6, 7]
Parties may not raise a new theory for the first time on appeal, which is inconsistent with or different from the one raised below.
Powers v. Powers, 105 Nev. 514, 516, 779 P.2d 91, 92 (1989). Appellants never argued below that genuine issues of fact precluded
summary judgment.
precluded summary judgment. Even in Appellants' reply memorandum opposing the City's
summary judgment motion, no reference to factual disputes was made. Rather, Appellants
only argued questions of law. In fact, it was not until the trial court entered summary
judgment for the City that factual disputes arose which supposedly now defeat summary
judgment. Arguments raised for the first time on appeal need not be considered by this court.
Montesano v. Donrey Media Group, 99 Nev. 644, 650 n.5, 668 P.2d 1081, 1085 n.5 (1983);
Tupper v. Kroc, 88 Nev. 146, 149, 494 P.2d 1275, 1278 (1972). Accordingly, Appellants'
claims allegedly raising factual disputes of knowledge and intent were waived.
[Headnote 8]
However, even if this court considered Appellants' assertions regarding knowledge and intent, they are still without merit. Appellants'
reliance on Thompson v. City of North Las Vegas, 108 Nev. 435, 833 P.2d 1132 (1992), and Hubert v. Werner, 101 Nev. 193, 698 P.2d
426 (1985), to support their contentions is baseless. In Thompson, respondent's affirmative misrepresentations of a boundary line
stipulation raised a genuine issue of material fact about appellant's knowledge during execution. Thompson, 108 Nev. at 440, 833 P.2d at
1135. In Hubert, conflicting descriptions in the deeds created a genuine issue of material fact about appellant's intent to purchase a certain
amount of commercial acreage. Hubert, 101 Nev. at 195, 698 P.2d at 427.
[Headnote 9]
Here, Appellants do not claim, nor is there any evidence, that misrepresentation or confusion was present at the time the property was
condemned in fee simple by the City. On the contrary, up until this appeal, Appellants maintained that they were entitled to the appurtenant
water rights as a matter of law and not because of a factual dispute involving knowledge, intent, misrepresentation, or confusion. Indeed,
these facts only arose after condemnation was consummated. A party cannot manufacture a genuine issue of material fact by making
assertions in its legal memorandum, S.A. Empressa DeVaiacao Aerea Ril Grandense v. Walter Kidde & Co., 690 F.2d 1235 (9th Cir. 1980),
nor can a party build a case on gossamer threads of speculation and surmise. Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 825 P.2d 588
(1992).
[Headnotes 10, 11]
Thus, the first issue of arguable merit is one never before addressed in this jurisdiction: whether fee simple title obtained in
condemnation transfers, as a matter of law, appurtenant water rights.
rights. The City asserts that since appurtenant water rights not expressly mentioned in a
conveyance automatically transfer to the buyer, no rationale exists to support a different result
in condemnation. Appellants claim that condemnation involves an element of compulsion,
and therefore, the opposite result is warranted.
[Headnotes 12, 13]
To begin, water rights are appurtenant to benefitted land. NRS 533.040. This is so whether water rights are acquired by statute or
common law. Zolezzi v. Jackson, 72 Nev. 150, 154, 297 P.2d 1081, 1082 (1956). With respect to condemnation of appurtenant water
rights, NRS 37.020(1) states, The fee simple or lesser estate in real property, and any other property, are subject to be taken for public use
from the owners thereof. In Carson City v. Estate of Lompa, 88 Nev. 541, 501 P.2d 662 (1972), this court held that water rights can be
subject to eminent domain as a separate interest in real property. See NRS 37.010(3). Therefore, Nevada law is clear that appurtenant water
rights are a separate stick in the bundle of rights attendant to real property. As such, they may be condemned separately.
What is not so well settled, however, is the disposition of appurtenant water rights not expressly reserved in condemnation. Although
this court in Margrave v. Dermody Properties, 110 Nev. 824, 878 P.2d 291 (1994), held that appurtenant water rights not expressly reserved
in a fee simple conveyance pass as a matter of law, the court expressed no opinion about water rights transferred by condemnation.
However, other authorities and jurisdictions have addressed this issue.
In an advisory opinion, the Nevada Attorney General found that when a condemnor acquires fee simple title to property, appurtenances,
including water rights, pass with condemnation unless the appurtenant water rights are specifically reserved. Nev. Op. Atty. Gen. No. 92-9
(10-6-92). The United States Court of Appeals for the Ninth Circuit held in Richland Irrigation Dist. v. United States, 222 F.2d 112 (9th
Cir. 1955), that acquisition by condemnation of a fee interest in land included all appurtenances despite the failure to expressly mention
them in the condemnation declaration. The court reasoned that a taking by condemnation in fee simple passed all appurtenances by
implication. Id. at 114. In fact, a survey of other jurisdictions indicates that an overwhelming majority concur with the reasoning and result
of the Ninth Circuit.
These cases all follow the long-standing rule that [w]here the fee simple absolute title to land has been acquired, the condemnor
acquires all appurtenances thereto, buildings thereon, minerals lying beneath the surface, waters thereon, and easements as to which such
land constitutes the dominant estate. 3 Julius L. Sackman & Patrick J.
Sackman & Patrick J. Rohan, Nichols' The Law of Eminent Domain, 9.03(7) (1994)
(emphasis added).
In the instant matter, the finding of facts, conclusions of law, and judgment unambiguously
stated that payment . . . of the sum of money specified above is in full payment for the
interests in the land so taken together with all improvements on the land, and for all damage
of every kind suffered because of the taking of the property. (Emphasis added.) Since
appurtenant water rights are considered a separate property interest, we find that the word
interests encompasses appurtenant water rights. Additionally, the phrase all damage of
every kind includes the separate value of the water rights. Accordingly, the water rights were
included in the final damages award paid to Appellants and that interest passed to the City.
Finally, the condemnation order concluded with the following phrase: [F]ee simple title
to the real property described above shall vest in Defendant City of Reno its successors and
its assigns. Nowhere within the four corners of the condemnation instruments do Appellants
expressly reserve the appurtenant water rights. Thus, in light of these uncontroverted facts,
we conclude that title to the real property transferred to the City in fee simple absolute.
[Headnote 14]
Appellants claim that they are still entitled to a separate damage award for the appurtenant water rights, even if this court holds that all
interest in the condemned property passed to the City, because [l]and was the concern then [in the first action,] . . . [w]ater is the new issue
here. The basis of this claim rests on Appellants' averment that they never intended to sell the appurtenant water so the original
condemnation award could not have included its value.
2
This argument is without merit.
[Headnotes 15, 16]
[R]es judicata precludes parties or those in privity with them from relitigating a cause of action or an issue which has been finally
determined by a court of competent jurisdiction. University of Nevada v. Tarkanian, 110 Nev. 581, 598, 879 P.2d 1180, 1191 (1994). Res
judicata applies when the following requirements are met:
(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 or in privity with a party to the prior litigation.
__________

2
Appellants claim the value of the disputed appurtenant water rights is $500,000.00.
must have been a party or in privity with a party to the prior litigation.
Id.
In 1978, Appellants brought a claim for inverse condemnation against the City. A trial was
held, and the value of the property condemned in fee simple was found to be $4,635,000.00.
A final judgment was entered. Now, Appellants bring another claim for inverse condemnation
against the City involving that same piece of property. The essence of Appellants' latest claim
is the very issue litigated almost twenty years ago: damages.
All the elements of res judicata are present here. The parties are identical. The claim and
issue of whether Appellants received just compensation for the property condemned in fee
simple was adjudicated and a final order was entered in 1978. Appellants now raise the same
claim of inverse condemnation on the same issue, damages. Therefore, the elements of res
judicata are fulfilled, and Appellants are barred from raising, a second time, an inverse
condemnation claim.
3
Accordingly, we affirm the order of the trial court.
4
__________

3
Appellants' argument that the City lacked proper authority to condemn the water rights is similarly barred by res judicata because that
issue could have been challenged by Appellants during the original condemnation proceedings. Tarkanian, 110 Nev. at 600, 879 P.2d at
1191 (stating that res judicata embraces all grounds of recovery that were asserted in a suit, as well as those that could have been
asserted); see also City of Caldwell v. Roark, 575 P.2d 495 (Idaho 1978).

4
The Honorable A. William Maupin, Justice, did not participate in the decision of this appeal.
____________
113 Nev. 214, 214 (1997) State v. Harnisch
THE STATE OF NEVADA, Appellant, v. THOMAS
JACOB HARNISCH, Respondent.
No. 27347
January 30, 1997 931 P.2d 1359
Appeal from an order of the district court granting respondent's motion to suppress
evidence. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge.
Defendant moved to suppress evidence seized from trunk of automobile. The district court
granted motion to suppress. State appealed. The supreme court held that: (1) automobile was
not within curtilage of apartment so as to be covered by search warrant for apartment; (2)
plain view exception to warrant requirement did not apply; (3) exigent circumstances
exception did not apply; {4) evanescent evidence exception did not apply; {5) automobile
exception did not apply; and {6) search incident to arrest exception did not apply.
did not apply; (4) evanescent evidence exception did not apply; (5) automobile exception did
not apply; and (6) search incident to arrest exception did not apply.
Affirmed.
Rehearing denied. State v. Harnisch, 114 Nev. ___, 954 P.2d 1180 (1998).
and James Tufteland, Chief Deputy District Attorney, Clark County, for Appellant.
Kirk Kennedy, Las Vegas, for Respondent.
1. Searches and Seizures.
Parking space was not within curtilage of suspect's apartment unit, so as to be covered by search warrant for apartment unit, as
parking space was not in direct proximity to apartment unit, parking space was not within enclosure surrounding apartment unit, space
was apparently open to public view, and suspect did little or nothing to protect space from observation of those walking past. U.S.
Const. amend. 4.
2. Criminal Law.
When considering motion to suppress evidence pursuant to Fourth Amendment, issues concerning exigent circumstances, consent,
and whether individual is acting as agent for police present mixed questions of law and fact. U.S. Const. amend. 4.
3. Criminal Law.
District court's determination of whether area is within protected curtilage of home presents solely question of fact. U.S. Const.
amend. 4.
4. Criminal Law.
Findings of fact in suppression hearing will not be disturbed on appeal if supported by substantial evidence. U.S. Const. amend. 4.
5. Criminal Law.
District court's findings of fact in suppression hearing will be upheld unless supreme court is left with definite and firm conviction
that mistake has been committed. U.S. Const. amend. 4.
Separate areas under exclusive control of apartment tenant may be considered part of tenant's curtilage for purposes of Fourth
Amendment's protection from unreasonable searches and seizures. U.S. Const. amend. 4.
Police needed warrant to search trunk of suspect's automobile, as suspect had reasonable expectation of privacy in contents of
trunk, which was closed and locked. U.S. Const. amend. 4.
Plain view exception to search warrant requirement did not apply to search of closed and locked automobile trunk; contents of
trunk were not in plain view. U.S. Const. amend. 4.
No exigent circumstances excused warrant requirement for searching automobile trunk, as there was no emergency and owner of
automobile was apparently in police custody at time search was conducted. U.S. Const. amend. 4.
Evanescent evidence exception to warrant requirement did not apply to search of automobile's trunk, as evidence at issue, a
telephone book with the names and addresses of other suspects, was not likely to disappear before warrant could be obtained. U.S.
Const. amend. 4.
Automobile exception to warrant requirement did not apply to search of automobile's trunk, as opportunity to search automobile
was not fleeting; automobile was parked in apartment parking space, and was not readily movable by suspect. U.S. Const. amend. 4.
For automobile exception to search warrant requirement to apply, two conditions must be present: there must be probable cause to
believe that criminal evidence is located in vehicle, and there must be exigent circumstances sufficient to dispense with need for
warrant. U.S. Const. amend. 4.
13. Arrest.
Search incident to arrest exception to warrant requirement did not provide basis for search of automobile's trunk, rather than
passenger compartment, and there was no need to disarm suspect or prevent him from concealing or destroying evidence, as he was
already in custody. U.S. Const. amend. 4.
14. Arrest.
Search incident to arrest is limited to passenger compartment of automobile, and does not extend to trunk. U.S. Const. amend. 4.
OPINION
Per Curiam:
On September 12, 1994, respondent Thomas Harnisch and an accomplice allegedly
kidnapped Stephanie Prather and stole from her, among other things, several uncashed sports
betting tickets. The two men cashed Prather's sports betting tickets and kept the money for
themselves. Fingerprint analysis of those betting tickets led the police to Harnisch. Police
obtained and executed a warrant to search Harnisch's apartment. While police were
conducting the search, Harnisch arrived at the apartment and parked his car in his designated
space; the police then searched Harnisch's car and discovered in the trunk of the car a
telephone book with the names and addresses of the other suspects in the kidnapping and
robbery of Prather. Harnisch filed a motion to suppress the evidence found in the trunk on
grounds that the search warrant did not extend to a search of his car and that no exception to
the warrant requirement existed to permit the search of the car. The district judge granted the
motion to suppress and the State filed this appeal.
We conclude that the district court properly decided that the search of Harnisch's car was
illegal and suppressed the evidence found in the car.
FACTS
On September 12, 1994, at approximately 10:45 a.m., Prather drove her brown Oldsmobile
Cutlass into the Tropicana parking lot and parked. Prather was going to the MGM Hotel,
which was across the street, to place a bet on a sporting event. The parking lot was monitored
by video, and the videotape showed that at 10:55 a.m., a brown Chevrolet Caprice with a
driver and a passenger pulled right next to Prather's car and the passenger got out of the car.
Larry Rose, a Las Vegas police officer, testified that the passenger appeared to be using a
slim jim, a device used to open a locked car door, on Prather's driver's side door.
1
Rose also
stated that the driver of the car, who was wearing a horizontally striped shirt, appeared to be
Harnisch. Harnisch eventually did get out of the Chevrolet Caprice and acted as a lookout
while the passenger attempted to open Prather's door.
Prather testified that when she returned to her car at approximately 12:00 p.m. and entered
the driver's side of her car, the man with the horizontally striped shirt, presumably Harnisch,
opened the passenger side door, stuck a gun into the car and pointed it at her, and said Move
over, he's driving. At that time, the other man, who had been the passenger trying to pry
open Prather's door, appeared at the driver's side door and forced Prather into the middle of
the seat. Harnisch then told Prather to put her head down, take off her purse, and put all of her
belongings on the floor. Prather had $650.00 in cash, as well as five uncashed winning sports
betting tickets from the Vacation Village Hotel worth $812.50. Prather also had four sports
betting tickets that she had just purchased from the MGM Hotel and two sports betting tickets
that she had earlier purchased at the Excalibur Hotel.
The two men and Prather drove in her car for a short while, and then the driver stopped the
car at an apartment complex and told Prather to get out of the car. The men drove off in
Prather's car, and Prather contacted the police. At approximately 1:00 p.m., within an hour of
the robbery, the police contacted the Vacation Village Hotel and discovered that Prather's
sports betting tickets had been cashed. Prather went to the Vacation Village Hotel with police
officers, viewed surveillance videotape of several parts of the casino, and identified Harnisch
on the videotape. Several days after the crime, Harnisch also attempted to cash the sports
betting tickets from the Excalibur Hotel; but because the supervisor of the Excalibur sports
book had placed a lock on the ticket, meaning that the hotel would not pay the wager if it
was a winner, Harnisch was not paid.
__________

1
All of the testimony referred to occurred either at the preliminary hearing or the hearing on the motion to suppress.
Police recovered the Vacation Village Hotel and the Excalibur Hotel sports betting tickets,
and found that Harnisch's fingerprints were on some of the tickets. Detective Rose was
informed of this fingerprint information, and then went to Harnisch's apartment. Rose first
checked the area for a car matching the one seen in the Tropicana videotape (a brown
Chevrolet Caprice), and he eventually found such a car. Based on the fingerprint information
and on seeing the matching car, Rose obtained a search warrant for Harnisch's apartment. The
warrant stated that the police were looking for a horizontally striped pullover shirt, sports
book betting tickets, and any identification or documentation in the name of Stephanie
Prather. The warrant stated that these items were presently located at:
6530 Annie Oakley, Apartment No. 2114, Henderson, Clark County, Nevada, more
particularly described as that certain apartment unit contained within the apartment
complex at 6530 Annie Oakley, and marked as No. 2114.
Rose executed the search warrant on September 30, 1994. Rose and other officers entered
the apartment and found a horizontally striped pullover shirt that matched the one in the
videotape. As Rose was conducting the search, Harnisch arrived at the apartment and parked
his car in his designated space. The police then took Harnisch into custody and read him the
Miranda warnings while the search of his apartment was still in progress. After the search of
the apartment had been concluded, Rose or another officer searched Harnisch's vehicle,
including the trunk. In the trunk was a suitcase which contained a telephone book with the
names and addresses of other individuals who later became suspects in Prather's
robbery/kidnapping.
On July 20, 1995, Harnisch filed a motion to suppress the evidence retrieved from his car.
He alleged that the search warrant was limited to a search of his apartment and did not
encompass the car, and that no exceptions to the search warrant requirement were present.
The State argued that the car was included within the ambit of the search warrant because the
car was within the curtilage of Harnisch's apartment. The district judge ruled in favor of
Harnisch and suppressed the evidence. The State now appeals the district judge's decision.
DISCUSSION
The district court did not err in granting respondent's motion to suppress evidence
[Headnote 1]
The State argues that the district judge improperly suppressed the evidence found in the trunk of Harnisch's car because the car was
located within the curtilage of Harnisch's apartment and was, therefore, covered by the search warrant.
was located within the curtilage of Harnisch's apartment and was, therefore, covered by the
search warrant. We disagree.
[Headnotes 2-5]
When considering a motion to suppress evidence pursuant to the Fourth Amendment, [i]ssues concerning exigent circumstances,
consent, and whether an individual is acting as an agent for the police present mixed questions of law and fact. State v. Miller, 110 Nev.
690, 694, 877 P.2d 1044, 1047 (1994). However, a district court's determination of whether an area is within the protected curtilage of the
home presents solely a question of fact. See U.S. v. Traynor, 990 F.2d 1153, 1156-57 (9th Cir. 1993) ([A] district court's determination
whether an area is within the protected curtilage of the home should be classified as one of fact.' ) (quoting United States v. McConney,
728 F.2d 1195, 1202 (9th Cir. 1984)). [F]indings of fact in a suppression hearing will not be disturbed on appeal if supported by
substantial evidence. Miller, 110 Nev. at 694, 877 P.2d at 1047. Therefore, the district court's findings will be upheld unless this court is
left with the definite and firm conviction that a mistake has been committed.;' Traynor, 990 F.2d at 1157 (quoting United States v.
Gypsum Co., 333 U.S. 364, 395 (1948)).
The Fourth Amendment to the United States Constitution guarantees the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures. U.S. Const. amend. IV. This protection also extends to the curtilage of a
house. United States v. Dunn, 480 U.S. 294, 300 (1987); Oliver v. United States, 466 U.S. 170, 180 (1984). It is an established rule that
[a] search warrant authorizing a search of a certain premises generally includes any vehicles located within its curtilage if the objects of
the search might be located therein. U.S. v. Gottschalk, 915 F.2d 1459, 1461 (10th Cir. 1990); see also U.S. v. Griffin, 827 F.2d 1108 (7th
Cir. 1987), cert. denied, 485 U.S. 909 (1988); United States v. Asselin, 775 F.2d 445 (1st Cir. 1985); United States v. Bulgatz, 693 F.2d
728 (8th Cir. 1982), cert. denied, 459 U.S. 1210 (1983); United States v. Napoli, 530 F.2d 1198 (5th Cir.), cert. denied, 429 U.S. 920
(1976). Therefore, the important determination is whether Harnisch's car was within the curtilage of his apartment while it was parked in
his assigned parking space at his apartment complex.
The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection
under the law of burglary as was afforded the house itself. Dunn, 480 U.S. at 300. [T]he Fourth Amendment protects the curtilage of a
house and . . . the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that
the area in question should be treated as the home itself."
individual reasonably may expect that the area in question should be treated as the home
itself. Id. In Dunn, the Court stated:
[W]e believe that curtilage questions should be resolved with particular reference to
four factors: the proximity of the area claimed to be curtilage to the home, whether the
area is included within an enclosure surrounding the home, the nature of the uses to
which the area is put, and the steps taken by the resident to protect the area from
observation by people passing by.
Id. at 301. The Court also stated that analysis pursuant to these four factors will not provide a
definitive answer to all extent-of-curtilage questions, but will be useful in the analysis of
the centrally relevant consideration, which is whether the area in question is so intimately
tied to the home itself that it should be placed under the home's umbrella' of Fourth
Amendment protection. Id. Applying these factors to Harnisch's parking space, we have little
difficulty in concluding that Harnisch's parking space (and his car parked in that space) lay
outside the curtilage of his house and, therefore, was not covered by the search warrant.
First, while no testimony was given regarding how far away from the apartment the
parking space was located, Harnisch's motion to suppress stated that the parking area was
totally separate and distinct from the apartment units and was not connected to the apartment
unit. Therefore, the parking space was not in direct proximity to the apartment unit and was
not an adjunct of the house. Dunn, 480 U.S. at 302.
[Headnote 6]
Second, given Harnisch's description of the parking area, we conclude that it was not included within an enclosure surrounding the
apartment unit. The United States Supreme Court has noted that for most homes, the boundaries of the curtilage will be clearly marked;
and the conception defining the curtilageas the area around the home to which the activity of home life extendsis a familiar one easily
understood from our daily experience.
2
Oliver, 466 U.S. at 182 n.12. Applying Oliver, an apartment has little, if any, curtilage because an
apartment unit is generally not enclosed by a fence or other boundary,
3
and this parking area separated from the apartment unit
itself appears to be outside of the clearly marked boundaries of the curtilage.
__________

2
We are cognizant of the fact that while the boundaries of the curtilage are clearly marked for most homes, the analysis becomes
more complicated when the residence is an apartment in a multi-family dwelling in an urban area. Espinoza v. State, 454 S.E.2d 765, 768
(Ga. 1995) (citations omitted).

3
In Commonwealth v. Thomas, 267 N.E.2d 489 (Mass. 1971), the Massachusetts Supreme Court stated:
separated from the apartment unit itself appears to be outside of the clearly marked
boundaries of the curtilage.
Third, because Harnisch only parked his car in the designated parking space and the space
was apparently open to the public view, the parking space was not being used for intimate
activities of the home or the privacies of domestic life. Dunn, 480 U.S. at 302-03; see
Cuero v. State, 845 S.W.2d 387, 391 (Tex. Ct. App. 1992) (stating that a common area
parking lot available to owners and guests cannot be considered an area which harbors the
intimate activity associated with the sanctity of a man's home and the privacies of life' ).
Fourth, based on the testimony given, it appears that Harnisch did little or nothing to
protect the parking space from the observation of those walking past the space. No testimony
was given regarding what the area surrounding the parking space looked like; however, the
police could see Harnisch approaching and parking in the parking space so we conclude that
the parking space was in plain view of the general public.
Based on this analysis, we conclude that the parking space in question was not so
intimately tied to the apartment itself that it should be placed under the apartment's
umbrella of Fourth Amendment protection. United States v. Cruz Pagan, 537 F.2d 554, 558
(1st Cir. 1976) (concluding that the appellant's well-travelled underground parking garage at
his apartment complex was not part of the curtilage of his apartment unit because the
appellant could not possibly have had an expectation of privacy in that area); see U.S. v.
Walker, 922 F. Supp. 732 (N.D.N.Y. 1996) (concluding that a driveway, which was a
common area open to the public, was not within the curtilage of the defendant's apartment
unit because the defendant did not possess a legitimate expectation of privacy in that area).
Because we have concluded that the parking space was not within the curtilage of
Harnisch's apartment unit, we must determine whether the police needed a warrant to search
Harnisch's car; and if they did need a warrant but did not have one, whether any
exceptions to the warrant requirement existed which permitted the police to search
Harnisch's trunk.4
__________
In a modern urban multi-family apartment house, the area within the curtilage is necessarily much more limited than in the case
of a rural dwelling subject to one owner's control. In such an apartment house, a tenant's dwelling cannot reasonably be said to
extend beyond his own apartment and perhaps any separate areas subject to his exclusive control.
Id. at 491 (citations omitted) (concluding that an area in an apartment complex used for washing clothes was a common area not under the
appellant's control, and therefore the area was not part of the curtilage of the appellant's apartment unit). We agree with the Thomas
decision that separate areas under the exclusive control of the tenant may be considered part of the tenant's curtilage, but conclude that the
parking area at issue in the instant case was not subject to Harnisch's exclusive control.
Harnisch's car; and if they did need a warrant but did not have one, whether any exceptions to
the warrant requirement existed which permitted the police to search Harnisch's trunk.
4
We
conclude that the police needed a warrant to search Harnisch's car and did not have one, and
furthermore that no exceptions to the warrant requirements existed which permitted the
warrantless search.
[Headnote 7]
The police need a warrant to search a place where a person has a reasonable expectation of privacy. Katz v. United States, 389 U.S.
347, 360-61 (1967) (Harlan, J. concurring). Harnisch had a reasonable expectation of privacy in the contents in the trunk of his car because
the trunk was closed and locked. Therefore, the search of Harnisch's trunk violated the Fourth Amendment unless an exception to the
warrant requirement existed.
[Headnotes 8-10]
Initially, we note that the plain view exception does not apply because the contents of the trunk were not in plain view because the
trunk was closed and locked. Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971). Additionally, there was no compelling need for
official action, i.e., exigent circumstances, which would have authorized a warrantless search because there was no emergency and
Harnisch was apparently in police custody at the time the search was conducted. Michigan v. Tyler, 436 U.S. 499, 509 (1978); see Warden
v. Hayden, 387 U.S. 294 (1967) (holding a warrantless entry of a house by police in hot pursuit of armed robber constitutional); Ker v.
California, 374 U.S. 23 (1963) (holding a warrantless entry of a house by police to prevent imminent destruction of evidence
constitutional); Doleman v. State, 107 Nev. 409, 812 P.2d 1287 (1991) (holding that where police entered into a hotel room to prevent
possible danger as a result of defendant still being in possession of a gun, such warrantless entry was constitutional). Furthermore, the
evidence at issue was not evanescent evidence, i.e., likely to disappear before a warrant could be obtained. Schmerber v. California, 384
U.S. 757, 770-71 (1966).
[Headnotes 11, 12]
Additionally, the automobile exception to the warrant requirement does not apply in this case. For the automobile exception to apply,
two conditions must be present: first, there must be probable cause to believe that criminal evidence was located in the
vehicle; and second, there must be exigent circumstances sufficient to dispense with the need for a warrant.
__________

4
In this appeal, the State only raised the curtilage issue and did not raise the warrant exception issue. However, we may consider
constitutional issues sua sponte. McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983).
must be probable cause to believe that criminal evidence was located in the vehicle; and
second, there must be exigent circumstances sufficient to dispense with the need for a
warrant. Carroll v. United States, 267 U.S. 132, 153-54 (1925). In the instant case, the first
factor may have been satisfied but the second, as stated above, was not; the opportunity to
search the car was not fleeting because the car was not readily movable by the defendant.
See Chambers v. Maroney, 399 U.S. 42, 51-52 (1970).
[Headnotes 13, 14]
Finally, assuming that the search incident to arrest exception to the warrant requirement, which extends to vehicle searches when the
driver is subjected to custodial arrest, applies here, it did not provide a constitutional basis for the search. New York v. Belton, 453 U.S.
454, 457 (1981). A search incident to an arrest is limited to the passenger compartment of the vehicle and does not extend to the trunk.
Belton, 453 U.S. at 460. Because the police searched Harnisch's trunk, this was not a valid search incident to arrest. Furthermore, a search
incident to arrest derives from the need to disarm and prevent any evidence from being concealed or destroyed. State v. Greenwald, 109
Nev. 808, 810, 858 P.2d 36, 37 (1993) (citing Chimel v. California, 395 U.S. 752 (1969)). Because Harnisch was in custody at the time of
the search of the car, there was no need to disarm him or prevent him from concealing or destroying evidence. Id.
CONCLUSION
Harnisch's parking space was not part of the curtilage of his apartment unit and therefore was not covered by the search warrant.
Therefore, the police needed a warrant to search Harnisch's car, but they did not have one, and no exceptions to the warrant requirement
applied. For these reasons, we affirm the district court's order suppressing the evidence found in Harnisch's trunk.
5
__________

5
____________
113 Nev. 224, 224 (1997) McIntosh v. State
MICHAEL RAY McINTOSH, Appellant, v.
No. 24390
January 30, 1997 932 P.2d 1072
Appeal from a judgment of conviction entered pursuant to a jury verdict of one count of
possession of a controlled substance and one count of being under the influence of a
controlled substance. Second Judicial District Court, Washoe County; James A. Stone, Judge.
The supreme court held that: (1) conviction for both counts violated double jeopardy
clauses, thus requiring reversal of possession conviction, and (2) any error in admission of
handgun evidence was harmless.
Affirmed in part; reversed in part.
Michael R. Specchio, Public Defender and Janet Cobb Schmuck, Deputy Public Defender,
Washoe County, for Appellant.
Attorney and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Double Jeopardy.
General test for determining existence of lesser-included offense for double jeopardy purposes is whether offense in question
cannot be committed without committing lesser offense. Const. art. 1, 8; U.S. Const. amend. 5.
2. Double Jeopardy.
Conviction for both possession of controlled substance and being under influence of controlled substance violated double jeopardy
clauses of State and Federal Constitutions, thus requiring reversal of possession conviction, where defendant only possessed amount of
controlled substance he consumed; concomitant acts of handling controlled substance while using substance provided predicate facts
for only one crime. Const. art. 1, 8; U.S. Const. amend. 5; NRS 453.336, 453.411.
3. Criminal Law.
Crime of possession of controlled substance merged with crime of being under influence of controlled substance where defendant
only possessed amount of controlled substance he consumed. NRS 453.336, 453.411.
4. Criminal Law.
Any error in admission of evidence of handgun in prosecution for being under influence of controlled substance was harmless
where there was overwhelming evidence that defendant unlawfully used controlled substance on night in question. Confidential
informant's testimony was largely uncontroverted, and evidence demonstrated that defendant was under influence of controlled
substance when he was arrested. NRS 178.598, 453.411.
OPINION
Per Curiam:
On December 11, 1991, Michael Ray McIntosh was charged with one count each of
possession of a controlled substance, in violation of NRS 453.336, and being under the
influence of a controlled substance, in violation of NRS 453.411. McIntosh was eventually
convicted of both counts and sentenced to concurrent terms of three years in the Nevada State
Prison.
The facts underlying this appeal are not in dispute. On November 15, 1991, McIntosh and
Frank Scarpa, a confidential informant, were at McIntosh's home/office with another man by
the name of Kevin Orman. According to Scarpa, Orman produced an unknown amount of
methamphetamine for immediate consumption. The evidence indicates Orman placed the
methamphetamine on a strip of tin foil, which he then ignited in order to inhale its smoke.
The evidence also indicates McIntosh only possessed the tin foil and methamphetamine when
it was his turn to inhale the smoke. McIntosh did not have physical or constructive possession
of any controlled substance at any other relevant time. Law enforcement officers entered the
premises shortly thereafter and arrested McIntosh. At the time of his arrest, McIntosh
demonstrated symptoms consistent with a central nervous system stimulant: watery and
dilated eyes, restlessness, agitation, and nervousness. A subsequent urinalysis revealed the
presence of methamphetamine in McIntosh's body.
During trial the district court admitted evidence that McIntosh owned a 45-caliber
automatic pistol, which he normally kept in a holster near his bed. Scarpa further testified he
feared the pistol was a danger to law enforcement officers.
Although McIntosh's appellate counsel filed an affidavit of no merit, and failed to brief the
salient issues on appeal, we conclude McIntosh's conviction for possessing a controlled
substance must be reversed because it violates the Double Jeopardy Clauses of the United
States and Nevada Constitutions. Nevada has long followed the double jeopardy test set forth
in Blockburger v. United States, 284 U.S. 299 (1932), in which the Court held that where the
same act or transaction constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not. Id. In Givens v. State, 99 Nev. 50, 56, 657
P.2d 97, 101 (1983), we held that under Blockburger it will always be impermissible for a
defendant to be convicted of both a greater and lesser included offense.
[Headnote 1]
The general test for determining the existence of a lesser included offense is whether the offense in question cannot be committed
without committing the lesser offense. Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 594 (1966); see also Walker v. State, 110 Nev.
571, 574, 876 P.2d 646, 648 (1994). However, we have also held that the Lisby test should not always be applied in a strict manner;
instead, it is permissible to look at the facts of a particular case to determine if one crime is a lesser included offense of another crime. See,
e.g., Owens v. State, 100 Nev. 286, 288, 680 P.2d 593, 595 (1984).
[Headnote 2]
Turning to the particular facts of this case, we find ample support for our conclusion that the concomitant acts of handling a controlled
substance while using the substance provide the predicate facts for only one crime. In Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967),
the appellant was convicted of both possessing and selling a controlled substance. We reversed the conviction and affirmed the rule
established in State v. Carter, 79 Nev. 146, 379 P.2d 945 (1963):
[M]ore than one conviction of the offense charged and of those necessarily included within the offense charged, is precluded. . . .
Possession of the marijuana is a necessarily included offense when incident to the sale as shown by the facts of this case and only
one conviction can be had for either the sale or possession, but not both. Conviction for the sale would bar further prosecution for
possession.
Fairman, 83 Nev. at 142-43, 425 P.2d at 345. See also Love v. State, 111 Nev. 545, 546, 893 P.2d 376, 377 (1995) (noting that possession
of a controlled substance pursuant to NRS 453.336 is a lesser included offense of trafficking in a controlled substance pursuant to NRS
453.3385).
[Headnote 3]
McIntosh only possessed the amount of controlled substance he consumed; therefore, the crime of possession merged with the crime of
being under the influence of a controlled substance. Cf. Talancon v. State, 97 Nev. 12, 14, 621 P.2d 1111, 1112 (1981). While a person can
possess a controlled substance without being under the influence, there is no practical way a person under the influence did not possess the
very substance causing his condition. Because McIntosh did not possess any controlled substance which he did not immediately consume,
his conviction for possessing a controlled substance must be reversed. Otherwise, every unlawful use of a controlled substance would be
accompanied by the separate crime of unlawful possession.
nied by the separate crime of unlawful possession. We doubt the legislature intended this
result when it enacted NRS Chapter 453. See Vidal v. State, 105 Nev. 98, 101, 769 P.2d
1292, 1294 (1989) (requiring statutes to be construed in a manner that avoids unreasonable
results).
McIntosh contends the evidence about his handgun was irrelevant and prejudicial because
it is unrelated to whether he possessed a controlled substance or was under the influence of a
controlled substance. In contrast, the State cites United States v. Payne, 805 F.2d 1062,
1065-66 (D.C. Cir. 1986), to argue the evidence of McIntosh's gun is relevant because
weapons are often tools of the [drug] trade. The State's reliance on Payne and the cases
cited therein is misplaced. McIntosh was not charged with trafficking in a controlled
substance; he was merely charged with possessing and being under the influence of a
controlled substance. The fact McIntosh owned a gun and kept it in his bedroom is of
doubtful relevance to the charged crimes.
[Headnote 4]
Although it appears that the district court may have abused its discretion in admitting this evidence, the admission of Scarpa's
testimony was harmless. NRS 178.598 provides that any error which does not affect the defendant's substantial rights shall be disregarded.
We have held on numerous occasions that errors may be harmless when the evidence of guilt is overwhelming. See, e.g., Kelly v. State,
108 Nev. 545, 552, 837 P.2d 416, 420 (1992).
There is overwhelming evidence that McIntosh unlawfully used a controlled substance on the night in question. Not only was Scarpa's
testimony largely uncontroverted, evidence adduced at trial demonstrated that McIntosh was under the influence of a controlled substance
at the time he was arrested. Even if the district court erred in admitting the handgun evidence, such error was harmless.
For the reasons discussed above, we reverse the judgment of conviction for possession of a controlled substance. We affirm the
conviction for being under the influence of a controlled substance.
1
__________

1
____________
113 Nev. 228, 228 (1997) Ross v. Reno Hilton
RAYMOND ROSS, Appellant, v. RENO HILTON; DEPARTMENT OF
ADMINISTRATION, HEARINGS DIVISION, and Appeals Officer, NANCY FONG
WONG, Respondents.
No. 27712
January 30, 1997 931 P.2d 1366
Appeal from an order denying petition for judicial review of appeals officer's decision.
First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Workers' compensation claimant filed petition for judicial review of appeals officer's
decision denying workers' compensation benefits. The district court denied petition. Claimant
appealed. The supreme court, Springer, J., held that: (1) statute allowing compensation for a
claimant who has preexisting ailment or disability if claimed disability was primarily caused
by injury rather than preexisting condition did not apply, and (2) claimant was entitled to
benefits on ground that his work-related fall caused his eye enjury.
David R. Ford, North Las Vegas, for Appellant.
Piscevich & Fenner, Reno, for Respondents.
1. Workers' Compensation.
Workers' compensation claimant who has a preexisting ailment or disability is not entitled to compensation for industrial accident
that merely worsens or aggravates already-present ailment or illness, unless claimed disability was primarily caused by injury rather
than by preexisting condition. NRS 616C.175.
In determining whether workers' compensation claimant who has preexisting condition is entitled to compensation for industrial
accident that worsens or aggravates already-present ailment or illness, it must first be determined whether preexisting condition has
been aggravated, precipitated or accelerated by industrial accident, and if that is found to be the case, then second question arises,
namely, which of the two, the aggravated preexisting condition or subsequent work-connected injury, is primary cause of disability.
NRS 616C.175.
Workers' compensation claimant's work-connected fall on his face did not aggravate, precipitate, or accelerate preexisting eye
condition, and thus, claimant was not entitled to benefits under statute allowing recovery for aggravation of preexisting condition if
claimed disability was primarily caused by injury rather than by preexisting condition. Blow to eye during fall did not worsen a
weakened eye condition but, rather, caused claimant's eye injury and necessitated surgical reattachment of retina. NRS 616.50185(1).
Physician's statement that damaged workers' compensation claimant's eye was related to previous cataract surgery, and that
absent previous cataract surgery, work-related fall probably would not have created a retinal detachment, did not support a conclusion
that the trauma aggravated surgically weakened condition of claimant's eye so as to be compensable. NRS 616.50185(1).
If workers' compensation claimant did in fact have a preexisting weakened right eye condition, injuries to his eye resulting from
work-related fall were caused exclusively by the trauma and not by an aggravation of previous condition, and therefore, claimant was
not entitled to benefits, work-related fall did not aggravate eye condition but instead caused new and serious damage to eye required
reattachment of retina.
OPINION
[Headnote 1]
Disposition of this workers' compensation controversy turns on an interpretation of NRS 616.50185(1).
1
This statute provides that a
claimant is not entitled to compensation if (1) the claimant suffers from a preexisting condition that is not connected to employment and
(2) the worker's compensation claim under consideration is one which aggravates, precipitates or accelerates the preexisting condition.
Additionally, the statute provides an exception to the stated rule of non-coverage which allows coverage (even when there is aggravation,
precipitation or acceleration of a preexisting condition) when the industrial accident out of which the claim arose is the primary cause of
the resulting disability. Stated another way: a worker's compensation claimant who has a preexisting ailment or disability is not entitled to
compensation for an industrial accident that merely worsens or aggravates an already-present ailment or illness, unless the claimed
disability was primarily caused by the injury rather than by the preexisting condition.
__________

1
NRS 616.50185(1), now codified as NRS 616C.175, provided:
1. An employee is not entitled to compensation pursuant to the provisions of this chapter if:
(a) He has a preexisting condition from a cause or origin that did not arise out of or in the course of his current or past
employment; and
(b) He subsequently sustains an injury by accident arising out of and in the course of his employment which aggravates,
precipitates or accelerates his preexisting condition, unless the subsequent injury is the primary cause of the resulting disability.
[Headnote 2]
Application of the cited statutory rule of ineligibility for compensation and its primary cause exception raises two issues. First it must
be determined whether a preexisting condition has been aggravated, precipitated or accelerated by an industrial injury. If that is found to be
the case, then a second question arises, namely, which of the two, the aggravated preexisting condition or the subsequent work-connected
injury, is the primary cause of the disability. In the present case, it is really not necessary to consider the primary cause exception because
it is clear that when the claimant fell at work he sustained a completely new injury and a trauma that cannot possibly be called an
aggravation, precipitation or acceleration of a preexisting condition.
[Headnote 3]
The claimant suffered a fall at the workplace, falling forward on the right side of his face, injuring his right eye, his knee and back. The
specific injury to his eye was the displacement of a previously implanted intraocular lens and a detached retina. The eye injury suffered in
the fall was repaired surgically. Although the self-insurer allowed compensation for the other injuries, it refused to compensate the claimant
for the eye injury. The hearing officer granted the claim; however, an appeals officer reversed the holding of the hearing officer, ruling that
the self-insured employer properly denied coverage of the right eye condition as a part of the claim. The district court denied judicial
review, and the claimant appeals. We now order the judgment of the district court reversed and the matter remanded with instructions that
the claim relating to the eye injury be granted.
In applying the statute to the present case, the threshold consideration is whether the claimant's work-connected fall on his face can
properly be said to have aggravate[d], precipitate[d] or accelerate[d] some preexisting condition. If it were concluded that there was no
such aggravation, precipitation or acceleration of a preexisting condition, there would, of course, be no call for us to consider the exception
and inquire into whether the injury or the preexisting condition was the primary cause of the present disability. We do conclude that the fall
did not aggravate, precipitate or accelerate a preexisting condition; but, nevertheless, we do discuss briefly the primary cause exception.
The employer contends that the claimant, by reason of his previous cataract surgery, had a weakened condition of his right eye.
All of the medical evidence in this case shows that the claimant's lens dislocation and retinal detachment were caused by and were
"secondary to" the fall.
were secondary to the fall. According to Jarl C. Nielsen, M.D.: It is most probable that this
patient's unfortunate fall caused the dislocation to the intraocular lens and prolapse of vitreous
into the anterior chamber. This in turn caused vitreoretinal traction, creating the retinal tear
which led to his retinal detachment. (Letter dated August 25, 1994.)
Even the Hilton's physician, R. T. Moore, M.D., noted: It is evident to me that there has
been trauma to the right eye associated with the findings (i.e., lens dislocation, vitreous
prolapse and lens detachment). The claimant experienced a trauma that caused objectively
verifiable injuries to his right eye, requiring surgical repair. Even if we were to accept Dr.
Moore's opinion that the damage to the claimant's injured eye was related to two factors,
both the fall and the somewhat weakened condition [of] the eye attendant to the previous
cataract surgery, one certainly cannot conclude the blow to the claimant's right eye
aggravate[d], precipitate[d] or accelerate[d] the somewhat weakened condition [of] the
eye.
Common dictionary definitions of the three terms are as follows:
aggravate: to make worse, more serious, or more severe; to produce inflammation in
Webster's 3rd New International Dictionary 41 (1976);
precipitate: to cause to move or act very rapidly; to cause to happen or come to a crisis
suddenly, unexpectedly or too soon; to fall or come suddenly into some condition Id. at
1784;
accelerate: to bring about at an earlier point in time; to hasten the ordinary progression
or development of Id. at 10.
The only part of the statutory definition that is remotely relevant to this case is that of
aggravat[ion]. It is easy to see, however, that the trauma to the claimant's eye here did not
worsen a weakened condition; the blow to the eye was an independent trauma to the eye
that caused rather than aggravated the claimant's eye injuries and necessitated the surgical
reattachment of the claimant's retina. The damage caused by the blow may, as Dr. Moore tells
us, have been in some way related to the weakened condition; but this is not the same as
saying that the injuries the claimant suffered worsened any condition that was created by his
having had a previous cataract surgery. The cataract surgery did not, obviously, cause the
detached retina, even if it might be related in some way to the detachment. To say that a
weakened eye caused the trauma to the claimant's eye would be much like saying that
lacerations to an eye resulting from a punch were caused by the victim's wearing eye-glasses.
Dr. Moore opined that had the patient not had cataract surgery with an implant, the fall
would probably not have created a retinal detachment."
gery with an implant, the fall would probably not have created a retinal detachment. Taking
the foregoing example of eye lacerations further, one could just as readily say that the
lacerations were related to the wearing of eye-glasses but that the injuries were caused by
the trauma, the blow to the face. One could also say, of course, that if the hypothetical victim
had not been wearing eyeglasses, the punch would probably not have resulted in lacerations.
Dr. Moore's statement that were it not for the surgery, the eye injuries suffered in the fall
would probably not have resulted falls far short of saying that the cataract surgery caused the
eye injuries suffered by this claimant.
[Headnote 4]
Dr. Moore's statement that the damage to the eye was related to the previous cataract surgery, and that absent the previous cataract
surgery the fall probably would not have created a retinal detachment, certainly does not support a conclusion that the trauma
aggravated the surgically weakened condition of the claimant's eye. If, for example, one person punches another person's
previously-broken nose, no one would say that the assailant was aggravating the condition of the victim's nose. Even if it could be
determined that the blow would not have broken the nose but-for the somewhat weakened condition of the nose, certainly no one could
argue that the previous break caused the broken nose, or, even more strangely, that the punch in the nose aggravated a previous nose
injury.
[Headnote 5]
No aggravation, precipitation or acceleration exists here. Plainly and simply, this is a work-connected trauma to the right eye. If this
claimant did in fact have a preexisting condition,
2
the injuries to his eye resulting from the fall were caused exclusively by the trauma
and not by an aggravation of the previous condition; and, therefore, NRS 616.50185 is not applicable to the facts of this case.
Even the appeals officer found that [a]ll physicians agree that the June 1994 fall caused the retinal detachment. This should be
enough to rule in the claimant's favor. Further, it is important to note that the appeals officer did not make any findings or conclusions
relative to the aggravation, precipitation or acceleration requirement of NRS 616.50185. As a matter of fact, no medical expert was
ever even asked if the blow to the eye aggravated or precipitated or accelerated a preexisting condition of the
claimant's right eye.
__________

2
Evidence that the claimant had a contributory preexisting condition is indeed sparse. The only evidence in the record on this point is
Dr. Moore's opinion that the retina probably would not have detached had it not been for the previous cataract surgery. None of the other
physicians suggested that the cataract surgery was in any way related to the claimant's eye damage caused by the trauma.
expert was ever even asked if the blow to the eye aggravated or precipitated or accelerated a
preexisting condition of the claimant's right eye. The only issue considered by the appeals
officer was the second, primary cause issue; and the only ruling made by the appeals officer
was the totally unsupportable conclusion that the primary cause of the resulting disability
was the weakened condition of the eye that resulted from the prior cataract surgery. As
discussed above, the weakened condition of the eye could not possibly be a cause of the
damage to the claimant's eye, much less be the primary cause. This should end the matter;
but, we will discuss briefly the primary cause factor as it relates to this case.
As stated the appeals officer neglected to consider the main issue in this case, namely,
whether the blow to the claimant's eye could possibly be characterized as aggravating,
precipitating or accelerating a weakened condition of the eye. As explained above, the blow
did not aggravate the eye; it caused new and serious damage to the eye.
The appeals officer's decision and the Hilton's arguments focused exclusively on the
primary cause exception to the statute. Why they ignored the
aggravates-precipitates-accelerates portion of the statute is unknown, but clearly the Hilton's
reliance on the notion that the weakened eye was the primary cause of the injury is
misplaced.
The Hilton attempted to have its doctor, Dr. Moore, support its case by asking him the
following question: [I]n your professional opinion do you feel that the industrial injury was
the primary cause for the resulting condition and the need for surgery? Dr. Moore, to his
credit, refused to answer, stating that he had a difficult problem philosophically answering
your question. Dr. Moore's difficulty was with the answer that the Hilton obviously wanted
him to give to the question. The Hilton wanted Dr. Moore to say what he could not possibly
say, namely, that the primary cause of the claimant's detached retina was not that the
claimant fell on the right side of his face but, rather, that the primary cause was the
somewhat weakened condition of the eye. Obviously, Dr. Moore could not have answered
the question in the way that the Hilton wanted him to answer it. No doctor, including Dr.
Moore, could honestly provide such an answer. If Dr. Moore had given an opinion that the
weakened eye condition was the primary cause of the detached retina, we would have to
reject it as facially unsupportable by the facts.
Because the trauma occasioned by this claimant's work-connected fall is obviously the
cause of the damage to his eye and not a mere aggravation of a preexisting condition, and
because the blow to the claimant's eye was clearly the primary cause of the damage to his
eye, we reverse the judgment of the trial court and remand the matter with instructions
that the trial court grant judicial review, and order that the Hilton honor all claims
relating to the trauma to claimant's right eye occasioned by his June 17, 1994 fall.
the damage to his eye, we reverse the judgment of the trial court and remand the matter with
instructions that the trial court grant judicial review, and order that the Hilton honor all claims
relating to the trauma to claimant's right eye occasioned by his June 17, 1994 fall.
Shearing, C. J., and Rose, Young, and Maupin, JJ., concur.
____________
113 Nev. 234, 234 (1997) Scott E., a Minor v. State
SCOTT E., A MINOR, Appellant, v. THE
No. 25475
January 30, 1997 931 P.2d 1370
Appeal from an order of adjudication of delinquency. Eighth Judicial District Court, Clark
County; Gerald W. Hardcastle, Judge.
Juvenile was adjudicated delinquent in the district court, upon court's determination that
juvenile had committed three acts of lewd behavior with minor under age of 14. Juvenile
appealed. The supreme court, Young, J., held that state failed to file affidavit in support of
request for continuance, as required to obtain continuance in juvenile proceeding.
Reversed.
Morgan D. Harris, Public Defender, and Sharon G. Dickinson, Deputy, Clark County, for
Appellant.
James Tufteland, Chief Deputy, and Pandora Rider Johnson, Deputy, Clark County, for
Respondent.
1. Infants.
Requirements for obtaining continuance of preliminary examination upon ground of absence of witnesses apply to continuance of
proceeding in juvenile court.
Children standing accused in juvenile court must be accorded due process considerations. U.S. Const. amend. 14.
3. Infants.
State failed to file affidavit in support of request for continuance in delinquency proceeding, as required to obtain continuance in
juvenile proceeding, and thus dismissal was warranted.
OPINION
FACTS
On May 6, 1993, the State charged Scott E. (Scott) with three counts of lewdness with a
minor under the age of fourteen. The charges stemmed from accusations made by Tristain S.
(Tristain) alleging, among other things, that Scott touched her between [her] legs.
On August 19, 1993, the court attempted to conduct a contested hearing. Defense counsel,
along with Scott's family and witnesses, arrived prepared to proceed. The State, however,
arrived with no witnesses. The State claimed that it did not subpoena its witnesses because it
had agreed with defense counsel to make a joint request for a continuance. In addition, the
State claimed that after it failed to subpoena its witnesses, defense counsel reneged and said
that she would oppose any request by the State for a continuance. Defense counsel, however,
subsequently informed the State that Scott and his family did not want a continuance. The
State claimed that because the victim and her mother could not be found, this was not enough
time to have them subpoenaed.
Defense counsel moved to dismiss the case against Scott and objected to a continuance
because the State had not filed a motion in accordance with Hill v. Sheriff, 85 Nev. 234, 452
P.2d 918 (1969). The district court, however, responded that a continuance is a discretionary
call and granted a continuance.
On September 9 and 16, 1993 a hearing was finally conducted. Robin S. (Robin),
Tristain's mother, testified that she and Tristain lived in Las Vegas between December 1988
and December 1992. During that time, Scott lived in Las Vegas with his father, Chris E.
(Chris), and step-mother, Lyndia E. (Lyndia). Robin knows Scott because she is engaged
to Jonathan E. (John)Scott's uncle and Chris's brother.
Robin testified that once while at Scott's house, when Tristain was either seven or eight
years of age, Robin saw Scotty and Tristain on the top bunk. Tristain had her hands
underneath him. The instant I opened the door, they'd bothlike nothing happened. They
both moved instantly. Before that incident, Robin noticed that Tristain engaged in odd
behavior. Robin described this behavior as rebellious. Tristain did not want to take care of
her room or take care of anything. Robin also testified that twice Tristain acted out sexually
with her sister, Rebecca. They got on top of each other like they were having sex.
top of each other like they were having sex. Tristain explained that she did this because her
best friend, Destiny, told her to.
Robin also testified that when she first moved to Las Vegas, she and John took John's
daughter, Alicia, from Colorado without permission. The court in Colorado eventually
compelled Robin and John to return Alicia. There is evidence in the record that Alicia's
step-grandfather (i.e., Robin's father)
1
molested Alicia while she was in Las Vegas with John
and Robin.
At the time of the hearing, Tristain was nine years old. Tristain testified that Scott did bad
things to her beginning when she was six years of age. Tristain testified that Scott played with
the spot between [her] legs with his finger. Tristain could not testify how often Scott
touched her between the legs. Tristain testified that three or four times Scott pulled down
his pants and showed her his private part. In addition, Tristain testified that Scott made her
touch his private part. Tristain did not tell Robin about Scott's behavior until Robin spanked
Tristain for acting out sexually with Rebecca.
William B. (William), Scott's uncle and Lyndia's brother, testified that he lived with his
wife, Lisa B. (Lisa), and his son, Brian B. (Brian), at the home of Chris, Lyndia and Scott
between July 1990 and October 1990. William witnessed Tristain get on top of Brian, then
two years of age, and start humping him. Lisa testified that she also witnessed the incident
where Tristain humped Brian. Lisa testified that when Robin reprimanded Tristain, she said
that she did it because she saw mom and dad doing it.
Scott emphatically denied that he ever did anything sexually inappropriate with Tristain.
Scott also testified that there were no bunk beds in his house. A few weeks after Robin and
Tristain moved to Las Vegas, Scott and his family gave them the bunk beds. In addition, Scott
testified that Robin would always try to get him in trouble. Scott stated, She'd say I said
something or do something when I actually didn't. Scott was grounded seven times because
of disagreements with Robin. Once Robin asked Scott to fix her kids something to eat and he
responded that he was not going to do it. Robin then told Scott, I'll have your uncle [John]
beat your ass. Scott testified that everyone in the family said Robin was going to get him.
Chris testified as to many other causes of friction between his family and Robin. First,
Robin was arrested at a funeral in Colorado and Chris advised Greg (another brother of Chris
and John) not to bail Robin out of jail because he would lose the money.
__________

1
Although Robin's father is referred to as Alicia's step-grandfather, Robin and John are not actually married.
money. Second, John and Robin borrowed the car of Chris's and John's mother to get from
Colorado to Nevada; and when the car broke down, John and Robin did not attempt to fix it.
Third, Chris needed John to stay overnight at their mother's trailer after the trailer had been
vandalized and because the back window was broken. John and Robin, however, refused to
help. Because of this feuding, the families did not have any contact with each other from
October 1989 to May 1991.
After the families began talking again, John and Robin asked Chris for money to pay their
rent. When Chris said he did not have enough money, John and Robin were kind of hateful
toward Chris. Subsequently, Chris did not hear from John or Robin until Detective Tina
Sweeney (Detective Sweeney) called Chris and informed him of the allegations against
Scott.
In addition, Chris testified that Robin had told him in early 1989 that Tristain had been
molested by either her father or father-in-law. Debra D. (Debra), Scott's aunt, confirmed
Chris's story by testifying that in August 1991 Robin told her that Tristain had been molested.
Lyndia also testified that even before Robin and Tristain moved to Las Vegas, Robin told her
that Tristain had been molested by either Robin's father or father-in-law. This story may also
be supported by the fact that Alicia alleged that when she was in Las Vegas she was molested
by Robin's father.
The district court concluded that Scott committed the three acts of lewdness, adjudicated
Scott a delinquent because he was between eleven and thirteen years of age when the acts
occurred, and placed him on three years' probation. Scott appealed, arguing that the district
court erred by (1) granting the State a continuance when the State had not filed a motion in
accordance with Hill; (2) excluding the result of his first polygraph test, but admitting the
result of his second polygraph test; (3) adjudicating him a delinquent when there was
insufficient evidence to support his conviction; and (4) allowing Robin to remain in the
courtroom during Tristain's testimony.
We conclude that Scott's first argument has merit. Because we find that the district court
should not have continued Scott's hearing, it is unnecessary for us to reach Scott's remaining
arguments. Accordingly, we reverse the district court's judgment and vacate Scott's
adjudication as a delinquent.
DISCUSSION
[Headnote 1]
Scott first argues that because the State did not follow the proper procedure in requesting a continuance as required by Hill, the case
against Scott should have been dismissed.
the case against Scott should have been dismissed. The preliminary question, however, is if
the protections afforded in Hill extend to juvenile proceedings. We conclude that they do. In
Hill, this court stated:
[T]he party seeking a continuance of a preliminary examination upon the ground of the
absence of witnesses must prepare and submit to the magistrate an affidavit stating: (a)
the names of the absent witnesses and their present residences, if known; (b) the
diligence used to procure their attendance; (c) a brief summary of the expected
testimony of such witnesses and whether the same facts can be proven by other
witnesses; (d) when the affiant first learned that the attendance of such witnesses could
not be obtained; and (e) that the motion is made in good faith and not for delay.
Hill, 85 Nev. at 235-36, 452 P.2d at 919. We conclude that the reasons underlying these
requirements are equally appropriate to the continuance of a proceeding in juvenile court. The
granting of continuances without a showing of good cause will frustrate the judicial process.
See Bustos v. Sheriff, 87 Nev. 622, 624, 491 P.2d 1279, 1280 (1971). In McNair v. Sheriff,
89 Nev. 434, 514 P.2d 1175 (1973), this court stated that one of the reasons underlying the
Hill requirements is that our criminal justice system can ill afford to bestow on prosecutors,
or on defense counsel, largesse through continuances for which no cause is shown. Id. at
436-37, 514 P.2d at 1176.
[Headnote 2]
In addition, not only do we apply the Hill requirements to juvenile proceedings for the pragmatic reason of judicial economy, but
because a failure to do so may infringe on the due process rights of juveniles. Children standing accused in a juvenile court must be
accorded due process protections. See In re Two Minor Children, 95 Nev. 225, 229, 592 P.2d 166, 169 (1979).
[Headnote 3]
Because we conclude that the requirements enunciated in Hill apply to juvenile proceedings, we conclude that in the case at bar, the
district court erred by not requiring the State to meet those requirements. The State's only explanation for not filing an affidavit in
accordance with Hill was that it thought defense counsel would seek a continuance. The State admitted, however, that at least fourteen days
before the hearing, it was aware that the defense did not want a continuance. The State made no effort to inform the court or the defense
counsel of its willful failure to subpoena witnesses until the day of the hearing.
subpoena witnesses until the day of the hearing. An oral motion the day of the hearing would
have been inappropriate.
2
In the words of Justice Cardozo,
Every system of law has within it artificial devices which are deemed to promote . . .
forms of public good. These devices take the shape of rules or standards to which the
individual though he be careless or ignorant, must at his peril conform. If they were to
be abandoned by the law whenever they had been disregarded by the litigant affected,
there would be no sense in making them.
Benjamin N. Cardozo, The Paradoxes of Legal Science 68 (1928). The district court should
have upheld the requirements mandated in Hill and therefore should have dismissed the case
against Scott.
Because we find that the district court should not have continued Scott's hearing, it is
unnecessary for us to reach Scott's remaining arguments.
In view of the foregoing, we conclude that Scott's appeal has merit. Accordingly, we
reverse the decision of the district court and vacate Scott's adjudication as a delinquent.
3
Rose, J., concurs in result only.
Shearing, C. J., concurring:
I concur separately, as it is necessary to respond to the concurrence of Justice Springer.
Justice Springer states: I am unwilling to sign the majority opinion because I believe that
formal criminal prosecution of prepubescent children who engaged in childish sexual
experimentation approaches the ridiculous. I quote this sentence because of its many
implications with which I cannot agree and to which I must respond.
First, I do not agree that this court is in a position to dismiss the conduct as merely
childish sexual experimentation. This court heard none of the testimony.
__________

2
In Bustos, this court concluded that when a party seeking a continuance does not learn until the hearing that his subpoenas were not
obeyed, then he could be sworn in and orally testify that he attempted to have his witnesses appear. This procedure was allowed because the
party seeking a continuance simply would not have had time to submit a written affidavit as required in Hill. Bustos, 87 Nev. at 624, 491
P.2d at 1280. Bustos, however, is inapplicable to the case at bar because the prosecutor had at least fourteen days to prepare an affidavit as
required by Hill.

3
court heard none of the testimony. The district court, as the trier of fact, is the tribunal which
has, or can have, a clear picture of what occurred. To suggest that the district court lacks the
ability to discriminate between children who are expressing their natural curiosity in a
harmless way, and children who are engaging in behavior that would be criminal if they were
adults, is an insult. I have no dispute with the statement quoted from California Juvenile
Court Practice: Delinquent Minors to the effect that sexual discovery and experimentation is
part of the normal process of growing up and that courts should use discretion in invoking
juvenile court jurisdiction. However, that discretion is lodged in the juvenile court, which
hears the testimony, and not in this court which sees only a cold record.
Second, I do not agree that a six-, seven- or eight-year-old is capable of consenting to
sexual acts with an eleven- or twelve-year-old. There is a major difference in power between
the two. The testimony was that Scott started sexual activity when the girl was six years old
and continued for two years. The disparity in the level of maturity, and especially sexual
maturity, between those ages is very great. Moreover, our legislature has determined that even
a fifteen-year-old is incapable of consenting to sexual activities with someone three years
older for the purpose of our criminal statutes. NRS 200.364. It defies logic to suggest that a
six-year-old's sexual activities with an eleven-or-twelve-year-old are consensual.
Third, the record provides no basis whatsoever for characterizing the sexual activity found
here as harmless. Even though he never heard the witnesses, Justice Springer does not
believe that the sexual activity found by the trial judge actually occurred. One of Justice
Springer's reasons for contesting the conclusions of the trial judge, is that there was evidence
that the little girl had engaged in other simulated sexual activity with her sister and brother.
The testimony was that this activity took place after Scott started molesting the little girl.
Even though the district attorney's office used its discretion in only charging on Scott's
activity after December 1990, there was evidence of earlier molestation. Instead of serving as
evidence of Scott's innocence, the little girl's later simulation of sexual activity more likely
indicates that she had already been indoctrinated, presumably by Scott, in sexual activity.
Justice Springer has chosen to describe only the evidence which supports his position.
The fact that the little girl later engaged in simulated sexual activity with other smaller
children belies Justice Springer's characterization of the activity as harmless children's
sexual play. The repetition of this inappropriate sexual behavior by this victim upon others
is precisely what our juvenile justice system aims to curtail.
victim upon others is precisely what our juvenile justice system aims to curtail.
Justice Springer also regards it as telling that no one else witnessed the acts to which the
little girl testified. It should be apparent that forbidden sexual acts are seldom performed in
public. It has long been established that one person's testimony found credible by the trier of
fact can support a judgment. See Hutchins v. State, 110 Nev. 103, 107, 867 P.2d 1136, 1139
(1994). Justice Springer has no basis for disputing the finding of the trier of fact.
There are other statements in Justice Springer's concurrence with which I disagree. It
should be apparent that juvenile court is not criminal court. Neither the purposes nor the
potential consequences are the same. It is not difficult to understand the difference between a
non-probational felony with a life prison sentence and an adjudication of delinquency with
three years of probation during which the perpetrator is to participate in family therapy and a
counseling group. Juvenile court is supposed to teach juveniles the difference between
appropriate and inappropriate behavior with the hope of preventing their getting into the adult
criminal system. This purpose cannot be accomplished if all sexual activity between children
is dismissed as mere games or a waste of time.
I submit that this type of proceeding is a waste of time only if the perpetrator did not get
the help that is needed to teach him the difference between appropriate and inappropriate
sexual conduct.
I concur in the judgment reversing the trial court's judgment but write separately because I
see a number of other reasons to reverse in addition to those stated in the majority opinion
and because I think that my writing this opinion might in some way assuage the great, if
unintended, harm that was inflicted by the State upon Scott E., who, if it were not for the
present ruling of this court, would be tragically branded for life as a sex offender.
The State charged Scott with three sex crimes. These crimes, violations of our statutory
criminal law, namely, NRS 201.230, are commonly known as lewdness with a minor. This
crime is designed to punish and deter adults from engaging in sexual activities with minors
and ordinarily involves an adult offender's engaging in pederastic activities with the intent of
arousing, appealing to, or gratifying the lust passions, or sexual desires of the molested
child.
1
The charge here is that eleven-year-old Scott engaged in three lewd acts with his
eight-year-old female step-cousin.
__________

1
One of the incidents of the sex offender charges against Scott that brings this case to the brink of absurdity is the charge that Scott
had the intent to gratif[y] the lust of his cousin. It is senseless, if not silly, to speak of
engaged in three lewd acts with his eight-year-old female step-cousin. One of the charges is
that Scott touched his cousin on top of her clothes on her personal spot. The other two
charges are that on two occasions Scott exposed his penis and had his cousin touch his penis.
The formal charges of violation of NRS 201.230 do not state the times or places that these
acts were alleged to have occurred, except that they took place on or about/between [sic]
December 1, 1990 and December 31, 1992. The complaining witness, Scott's cousin, was
unable to testify as to when these events took place, except to say that she was eight years old
at the time. His cousin's mother was, however, able to narrow the event down to the latter
part of 92. It was at this time that she caught her daughter with Scott on the top bunk of a
bed in Scott's bedroom.
2
The mother's version of the episode was that when she opened the
door of an adjoining bedroom, she was able to see four children in the room, Scott, Scott's
cousin (the complaining witness) and her other daughter and son. She saw that Scott was
on his stomach and that her daughter had her hands underneath [Scott]. Asked to explain
further, the mother testified that her daughter's hand was "down in the lower half" of
Scott's body.
__________
children of his age in these terms. The intent requirement has, however, a serious aspect to it. Absent proof of Scott's lascivious intent to
arous[e] the passions of his cousin, Scott cannot be convicted (adjudicated, in juvenile court terms) of this sex crime. There is
absolutely no evidence in this record that Scott had any such intention. I would note in passing that if he had had such an intention, he was
very unsuccessful in carrying out such evil schemes in light of the girl's statement to police officers. When asked to describe Scott's penis,
she replied, I didn't really pay any attention.
In addition to there being no evidence of Scott's lascivious intentions to gratify his cousin's lust, there is a complete failure on the
part of the State to rebut the presumption of Scott's incapacity as a minor to commit these sex crimes. Winnerford Frank H. v. State, 112
Nev. 520, 915 P.2d 291 (1996).
If the State is going to bring criminal charges against pre-adolescent children charged with engaging in consensual sex games, it should
at least attempt to prove the essential elements of the crime. Great mischief was done by making this into a criminal case; and, in my
opinion, it was irresponsible for the prosecution not to attempt to prove these essential elements of the crime.

2
Several witnesses testified that there were no bunk beds in the house during the latter part of 92, but for the purposes of this
concurring opinion, I will accept the testimony of Scott's cousin's mother that she observed Scott and her daughter on the top bunk with her
daughter's hand on Scott's lower abdomen area. I would note that this record is filled throughout with evidence of domestic dispute and
that one of the theories of the defense was that the charges were made by vindictive parents in order to hurt Scott and his family. I mention
this not with any mind to re-try the case, but this fact does explain such things as the conflict between the mother's story and the story of
her daughter and to explain the fact that Scott passed a lie detector test on the charges made against him.
her daughter's hand was down in the lower half of Scott's body. Pressed further, she
described the position of her daughter's hand as being on Scott's lower abdomen. According
to the mother, when the children saw her, they acted surprised and her daughter's hand
came out from under Scotty.
Scott's cousin saw the event as happening in a manner different from that testified to by
the mother.
3
Scott's cousin does not mention that her brother and sister were in the room; and
she claims that it was Scott that put his hand on her rather than that it was she who touched
Scott. Scott's cousin makes it very clear that, at most, Scott touched her on her personal
spot on top of her clothes.
4
The mother did not witness any event relating to Scott's supposed exposing himself to his
cousin. The questioning of the girl at trial does not give any time that these events took place
but does show that she believed that one event took place before the touching episode and
one took place afterwards. The girl testified that one exposure took place in the kitchen, the
other in a bedroom.
Let me assume, for the purposes of this concurring opinion, that Scott's cousin is telling
the truth and that he touched her between the legs rather than that she was the one who
touched him, on his lower abdomen. Let me also assume (lie-detector results aside) that
Scott exposed himself in front of his cousin. I ask rhetorically: Is this really the kind of case
that calls for the filing of formal criminal charges against this little boy relating to the
commission of sex crimes? What good can possibly come out of forcing these two young
children to testify against each other and to testify formally in a court of law concerning
childish sex games?
__________

3
The record in this case gives me reason to believe that this child was told by someone that her testimony and the resultant
adjudication of Scott's commission of sex crimes would be beneficial to Scott because it would then permit Scott to get the help he
needed.
It was argued by Scott's counsel that when the girl was being examined about whether she knew the consequences of not telling the
truth in Scott's trial, she responded by saying that Scott would get help. This is pretty scary to me.

4
The formal charges accuse Scott of touching his cousin's vagina. It is clear from the girl's testimony that she does not accuse
Scott of touching her vagina but, rather, that he touched her between the legs and on top of her clothes. I, of course, make no judgment
as to whether the testimony of the mother or her daughter is correct and whether Scott touched his cousin or his cousin touched Scott. In
this connection, I do not find it out of place to note that Scott passed two lie-detector tests. The polygraph examiner asked Scott Did you
ever touch [his cousin's] vagina? and Has [the girl] ever touched your penis?. He answered No to each of these questions. The
examiner explained that to pass, a score of +5 is needed. Scott scored +9. It is the opinion of this examiner that Scott is telling the truth.
games? Why make Scotty into an adjudicated sex criminal even if these charges had been
true?
5
The answer to these questions lies, of course, in prosecutorial discretion. If formal
charges were to be prosecuted because of sexual activities that are charged here, it would
seem to me that, at worst, some kind of civil petition might have been filed rather than
the filing of criminal charges.
__________

5
I suppose in today's world, where children are often unsupervised and where explicit sex is a matter of common fare on our television
sets, that cases could arise in which an eleven year old might properly be subjected to criminal charges of being lewd with another child.
For example, if Scott's cousin had not been a sexually active eight year old and had, instead, been, say, five or six years old, I might be able
to see some justification for bringing criminal charges in a case of exposure and consensual, on top-of-clothes touching, even though I
think civil proceedings would in almost all cases like this one best serve the interests of prepubescent children involved in sexual exposure
and the kind of sexual experimentation that was charged in the present case. A publication of the California Continuing Education of the
Bar, California Juvenile Court Practice: Delinquent Minors, discusses the legal problems associated with young children's playing
doctor and other sexually-oriented children's games such as the one that may have been involved here. I quote at some length from the
text:
Courts and practitioners should bear in mind that the juvenile court exists primarily to intervene in children's lives when
necessary to protect the public and to satisfy the minor's rehabilitative needs. Although a discussion of youthful sexuality is far
beyond the scope of this work, it is generally conceded that a certain amount of sexual discovery and experimentation is part of the
normal process of growing up. The adults involved in juvenile proceedings should be sensitive to this and the fact that such cases,
by their nature, involve very young children who might be easily damaged. There are limitations to both what the juvenile court
process is intended to do and what it can do. The Paul C. [In re Paul C., 221 CA3d 43, 270 CR 369 (1990)] court's call for
restraint and the use of judgment reflects the proper approach to the initiation of quasi-criminal legal actions in this area.
There are two better approaches to use if the sexual conduct between like-aged minors is clearly consensual. First, although
that conduct might constitute a technical violation of [the California Penal Code], it may not be the type of conduct that warrants
the exercise of the juvenile court's jurisdiction. Instead, application of the supervision programs of Welf & I C 654 [informal
probationary supervision without court intervention or adjudication] or 725(a) [court-approved informal probation, without
formal delinquency adjudication], or dismissal of the petition under Welf & I C 782 might be warranted if the action is actually
filed. Standards 2.2 and 3.3 of the ABA Juvenile Standards . . . may provide authority to support the court's refusal to impose
[delinquency] wardship in this situation.
Second, experience shows that these types of charges are most often filed against boys, and filing a motion to dismiss for
discriminatory prosecution with the attendant discovery proceedings (see Murgia v Municipal Court (1975) 15 C3d 286, 124 CR
204), might resolve the issue.
Henry J. Hall, I California Juvenile Court Practice: Delinquent Minors 3-4 (February 1995 update).
The quoted text is an appeal to common sense and reason. It is simply not necessary to adjudicate sexual experimentation of
prepubescent children as a crime, even when the crime is euphemistically called delinquency.
would seem to me that, at worst, some kind of civil petition might have been filed rather than
the filing of criminal charges. If either Scott or his cousin were in need of some kind of
juvenile court services by reason of supposed sexual aberrations (which seems clearly not to
be the case), then some kind of child protection proceedings might have been justified, but
not sex offender charges against one of the participants only.
6
I file this concurring opinion in the hope that it might prevent some other young child from
suffering the indignity, embarrassment and shame that was unnecessarily suffered by Scott in
the present case. This is truly a no-win case. At its worst, Scott would have been permanently
and totally unjustifiably branded as a sex offender. At best, Scott and his cousin would have
to have undergone the trauma of participating in a formal criminal trial in which cousin was
pitted against cousin and in which no outcome could have been of the slightest benefit to
either one of them. The heedless filing of criminal sex offender charges has resulted in great
and probably irreparable harm to Scott and in all likelihood to his cousin too. I truly hope that
we will not be seeing any more of the kind of uncalled-for damage to children and the kind of
waste of legal and judicial resources that is so undeniably present in this case.
__________

6
It is clear from the record that Scott's cousin had some very serious sexual problems that dated back to far before the latter part of
1992. The girl's own mother traces her daughter's precocious and habitual sexual pre-occupation to age six. The mother testified that she
noticed these activities [a]bout two years . . .[t]wo and a half years maybe before the time of trial. This would relate to a period between
March 1991 and September 1991, when the little girl was only six years old. The mother testified that she found her daughters, one on top
of the other, doing what a man and a woman would normally do in their own bedroom or in a motel room or something. She caught them
twice. Scott's cousin, at trial, admitted to having in the past engaged in sexual activities with a girl named Destiny and with Destiny's
brother, in which one or another of the children would be on top of her with your pants down. Two other witnesses observed some rather
troubling sexual activity by this girl. When she was [p]robably four, four and a half, she was seen to g[e]t on top of Brian and started
humping on him. Brian was the witness's son and was [p]robably two and a half at the time. I relate this child's sexual history not
because it portrays the likelihood that the mother's version of her daughter's touching Scott's lower abdomen is more likely the case than her
daughter's conflicting version, but to suggest that if formal proceedings (civil not criminal) were to be brought in this case, perhaps this
little girl is a more suitable subject for a juvenile court petition than the little boy.
____________
113 Nev. 246, 246 (1997) Harrington v. Syufy Enters.
NORMA HARRINGTON, Appellant, v. SYUFY ENTERPRISES, a Limited Partnership,
Respondent.
No. 27312
January 30, 1997 931 P.2d 1378
Appeal from an order of the district court entering summary judgment in favor of
defendant in a slip-and-fall tort case. Second Judicial District Court, Washoe County; Steven
R. Kosach, Judge.
Patron at flea market held on grounds of drive-in theater brought negligence action against
grounds owner to recover for injuries she suffered when she tripped over protruding tire
spikes. The district court granted summary judgment in favor of defendant. Plaintiff appealed.
The supreme court held that fact questions as to whether danger at grounds from spikes was
obvious, and whether owner was negligent in directing pedestrian traffic at market over or
adjacent to spikes, precluded summary judgment.
David Allen & Associates and Daniel L. O'Brien, Reno, for Appellant.
Robison, Belaustegui, Robb & Sharp and Gabrielle Carr, Reno, for Respondent.
1. Judgment.
Summary judgment is only appropriate when, after review of record viewed in light most favorable to non-moving party, there
remain no genuine issues of material fact and moving party is entitled to judgment as matter of law.
2. Judgment.
In ruling on motion for summary judgment, all of non-movant's statements must be accepted as true, and trial court may not pass
on credibility of affidavits.
State supreme court's review of order granting summary judgment is de novo.
4. Judgment.
In negligence actions, courts are generally reluctant to grant summary judgment.
5. Judgment.
When plaintiff cannot recover in negligence action as matter of law, defendant is entitled to summary judgment.
6. Judgment.
To establish entitlement to judgment as matter of law, defendant need only negate one element of plaintiff's case.
7. Negligence.
Obvious danger rule survives adoption of comparative negligence statutes. NRS 41.141(1).
8. Judgment.
Fact questions as to whether danger at grounds of drive-in theater from tire spikes was obvious, and whether theater owner was
negligent in directing pedestrian traffic at flea market on grounds over or adjacent to spikes, precluded summary judgment in action
against owner by pedestrian who suffered injury in trip over spikes and fall.
9. Negligence.
Obvious danger rule is inapplicable where liability is predicated upon acts other than failure to provide adequate warning of
dangerous condition.
10. Negligence.
Even where danger is obvious, defendant may be negligent in having created peril or in subjecting plaintiff to peril.
OPINION
Per Curiam:
Appellant Norma Harrington suffered an injury to her wrist when she tripped over tire
spikes (a device employed to encourage the uni-directional flow of automobile traffic by
causing severe tire damage to offending vehicles) while attending a weekend flea market at
the El Rancho Drive-in Movie Theater. Harrington sued respondent Syufy Enterprises, owner
of El Rancho, in negligence. Syufy Enterprises moved for summary judgment arguing that the
alleged dangerous condition, the grate with tire spikes, was open and obvious, and therefore,
Syufy Enterprises had no duty to warn of the danger.
In support of the motion for summary judgment, Syufy Enterprises attached portions of the
deposition of Louis Chacon, who arrived at the flea market at about 8:00 or 8:30 a.m. to meet
Harrington. Chacon recounted that the weather was very clear. Harrington saw Chacon and
called to him. The grate with the tire spikes was between them, with the spikes pointed
toward Harrington. No one else appeared between Harrington and Chacon, and nothing
obscured Harrington's view of the grate. Harrington walked toward Chacon, looking at him,
and tripped on the grate and fell.
Harrington opposed the motion for summary judgment, and argued that issues concerning
her fault in contributing to the accident should be submitted to the jury under the comparative
negligence statute, NRS 41.141. In her affidavit, Harrington stated that the flea market was
getting crowded and that she was forced to walk over or adjacent to the grate with the tire
spikes to exit the flea market and reach her friend. She stated that the bright sun was shining
directly in her eyes, and she specifically denied seeing the spikes prior to her fall: [I] was
aware that the grate was there, but the spikes in the grate were aimed directly at me and were
difficult to see until after I had fallen.
On May 26, 1995, the district court ordered summary judgment in favor of Syufy
Enterprises, concluding from Harrington's affidavit that no facts gave rise to a claim of
negligence. The district court denied Harrington's motion for reconsideration, concluding: In
its earlier Order, the Court found after reviewing Plaintiff's Affidavit that she conceded that
she was aware of the existence of the grate and spikes in question. Based on these
uncontested facts, the Court can find no facts which give rise to a claim of negligence. This
appeal followed.
[Headnotes 1-3]
Summary judgment is only appropriate when, after a review of the record viewed in a light most favorable to the non-moving party,
there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Butler v. Bogdanovich, 101
Nev. 449, 451, 705 P.2d 662, 663 (1985). All of the non-movant's statements must be accepted as true, and a district court may not pass on
the credibility of the affidavits. Sawyer v. Sugarless Shops, 106 Nev. 265, 267, 792 P.2d 14, 15 (1990). This court's review of an order
granting summary judgment is de novo. Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).
[Headnotes 4-6]
In negligence actions, courts are generally reluctant to grant summary judgment. Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414,
633 P.2d 1220 (1991). Nevertheless, when plaintiff cannot recover as a matter of law, defendant is entitled to summary judgment. Id. To
establish entitlement to judgment as a matter of law, defendant need only negate one element of plaintiff's case (i.e., duty, breach,
causation, or damages). Perez v. Las Vegas Medical Center, 107 Nev. 1, 4, 805 P.2d 589, 590-91 (1991).
Syufy Enterprises contends that it was entitled to summary judgment because the tire spikes presented an obvious danger as a matter
of law. See Worth v. Reed, 79 Nev. 351, 354, 384 P.2d 1017, 1018 (1963) (If the danger is obvious, ordinary care does not require a
warning from the owner because the obviousness of the danger is itself an adequate warning.). In response, Harrington contends that the
obvious danger doctrine was abrogated by Nevada's adoption of statutory comparative negligence rules. Harrington also contends that, in
any case, a question of fact exists as to whether the danger was obvious and whether the tire spikes may have presented an unreasonable
safety risk despite their obviousness.
In Gunlock v. New Frontier Hotel, 78 Nev. 182, 370 P.2d 682 (1962), plaintiff sued the defendant hotel to recover injuries she
sustained after falling over a planter in defendant's lobby.
sustained after falling over a planter in defendant's lobby. The planter was two feet wide and
ran along a plate-glass window for approximately thirty feet. The planter was in a box, the
border of which was three or four inches above the level of the floor and was concealed by
artificial foliage which was a foot and a half or two feet high. Plaintiff conceded that she fell
because she did not see the planter, and it was apparent the reason she did not see the planter
was that she was moving backwards in the act of turning around. After presentation of
plaintiff's evidence, the district court granted defendant's motion for involuntary dismissal
under NRCP 41(b). This court, after noting no evidence existed that the planter was hidden or
concealed, deemed the peril obvious as a matter of law. This court thus affirmed on the
ground that an owner's liability does not extend to an invitee who incurs injury from an
obvious danger.
In Worth, this court affirmed a judgment in favor of the slip-and-fall plaintiff. 79 Nev. 351,
384 P.2d 1017. Plaintiff injured herself after slipping on a wet tile floor in a hotel-room
bathroom. The accident occurred shortly after a maintenance worker left the bathroom to get
a mop and bucket (unbeknownst to the plaintiff) and without warning her that the peril still
existed. This court distinguished Gunlock on the ground that the particular peril (water on a
tile floor) could not, in good sense, be deemed obvious as a matter of law. This court
reasoned that water is a transparent substance, that the record did not reveal the quantity of
water, and that one easily may fail to notice water on a tiled floor. This court concluded that
the issue was one of fact best left to the jury.
[Headnote 7]
NRS 41.141(1) provides that the comparative negligence of the plaintiff does not bar recovery if that negligence was not greater than
the negligence of the defendant. Harrington contends that the obvious danger rule bars recovery to a negligent plaintiff regardless of her
degree of comparative fault, in effect preserving the contributory negligence rule that NRS 41.141 was clearly intended to eliminate. We
disagree.
Recovery is barred when the danger is obvious, not because the negligence of the plaintiff is greater than that of the defendant, but
because the defendant is not negligent at all. The defendant has no duty to warn against an obvious danger and cannot, therefore, be
negligent in failing to give such a warning. Thus, the defendant in Gunlock did not escape liability for its negligence; the defendant escaped
liability because it was not negligent at all. See Gunlock, 78 Nev. at 185-86, 370 P.2d at 684. Obviously, where there is no negligence on
the part of the defendant, there can be no comparative negligence. See id. at 1S5-S6, 370 P.2d at 6S4-S5 {"In the absence of
negligence on the part of [defendant], a determination of whether Mrs.
185-86, 370 P.2d at 684-85 (In the absence of negligence on the part of [defendant], a
determination of whether Mrs. Gunlock is chargeable with contributory negligence is
unnecessary.). We conclude, therefore, that the obvious danger rule survives the adoption of
comparative negligence statutes.
[Headnote 8]
In the present case, Harrington did aver in her affidavit that the sun in her eyes and the angle of the spikes made the danger difficult to
see. Having reviewed Harrington's testimony and the photographs of the accident scene, we hold that a reasonable juror could conclude that
the tire spikes were not an obvious danger. Accordingly, we conclude that the obviousness of the danger posed by the tire spikes cannot
properly be decided as a matter of law and that summary judgment was, therefore, inappropriately entered in favor of Syufy Enterprises.
[Headnotes 9, 10]
Moreover, we emphasize that the obvious danger rule only obviates a duty to warn. It is inapplicable where liability is predicated upon
acts other than a failure to provide adequate warning of a dangerous condition.
1
Consequently, even where a danger is obvious, a defendant
may be negligent in having created the peril or in subjecting the plaintiff to the peril. See Moody v. Manny's Auto Repair, 110 Nev. 320,
333, 871 P.2d 935, 943 (1994) (An owner or occupier of land is held to the duty of reasonable care when another is injured on that land.) In
the present case, Harrington averred she was forced into the area of the tire spikes as a result of the way Syufy Enterprises had arranged
the premises. Although it may not be negligence to supply a hotel with toilets that occasionally overflow, or to decorate a lobby with a
planter along one wall, we believe that a reasonable juror could conclude that Syufy Enterprises breached its duty of reasonable care by
directing pedestrian traffic over a grate containing unretracted tire spikes. We conclude that Harrington has presented a material question of
fact as to whether Syufy Enterprises was negligent in creating and exposing Harrington to the danger presented by the tire spikes.
We conclude that Harrington presented material questions of fact regarding whether the danger posed by the tire spikes was
"obvious" and as to whether Syufy Enterprises was negligent in directing pedestrian traffic over or adjacent to
the unretracted tire spikes.
__________

1
Thus, in Gunlock, this court reached the obvious danger issue only after concluding that there was no evidence that the planter was
improperly constructed or located. 78 Nev. at 184, 370 P.2d at 684. Similarly, in Worth, this court reached the obvious danger doctrine
analysis only after concluding that the defendant hotel had not been negligent in allowing the bathroom toilet to overflow or in responding
to the flooding. 79 Nev. at 353, 384 P.2d at 1018.
obvious and as to whether Syufy Enterprises was negligent in directing pedestrian traffic
over or adjacent to the unretracted tire spikes. We, accordingly, vacate the judgment of the
district court and remand for further proceedings.
2
__________

2
____________
113 Nev. 251, 251 (1997) Libby v. State
ROGER A. LIBBY, Appellant, v. THE
No. 21271
February 26, 1997 934 P.2d 220
On remand from the United States Supreme Court.
Defendant was convicted in the district court of murder and defendant appealed. The
supreme court, Rose, C. J., affirmed and defendant appealed. Libby v. State, 109 Nev. 905,
859 P.2d 1050 (1993). Upon granting certiorari, the United States Supreme Court vacated
judgment and remanded for further consideration. Libby v. Nevada, 516 U.S. 1037, 116 S. Ct.
691 (1996). On remand, the supreme court held that: (1) defendant established prima facie
case of intentional discrimination in state's use of peremptory challenges against women
venire members, and (2) remand for evidentiary hearing to permit prosecution to defend its
actions was necessary.
Remanded.
Steven G. McGuire, State Public Defender, Timothy P. O'Toole, Deputy, Janet S.
Bessemer, Deputy, and James P. Logan, Deputy, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Stuart J. Newman, Deputy, and Robert E.
Wieland, Deputy, Carson City, for Respondent.
Michael Pescetta, Las Vegas, for Amicus Curiae Nevada Appellate and Postconviction
Project.
Laura Wightman FitzSimmons, Las Vegas, for Amicus Curiae Nevada Trial Lawyers
Association.
Kenneth C. Cory, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.
113 Nev. 251, 252 (1997) Libby v. State
1. Jury.
Batson inquiry is triggered when movant establishes prima facie case of intentional discrimination in opponent's use of peremptory
challenges. U.S. Const. amend. 14.
2. Jury.
While totality of relevant circumstances standard determines if defendant has shown prima facie case of discrimination in
prosecution's use of peremptory challenges, courts may specifically consider whether pattern of strikes against women jurors included
in venire might give rise to inference of discrimination. Prosecutor's questions and statements during voir dire examination and in
exercising his challenges may support or refute inference of discriminatory purpose. U.S. Const. amend. 14.
3. Jury.
Defendant established prima facie case of intentional discrimination in State's use of peremptory challenges in death penalty
murder prosecution, where State used seven out of nine peremptory strikes against female jurors and prosecutor questioned only female
members, not male members, of venire as to whether they had intestinal fortitude or internal makeup to impose death penalty
indicating that prosecutor assumed that women were less capable of returning death sentence. U.S. Const. amend. 14.
4. Jury.
Defendant could rely on prosecution's first five peremptory strikes against women to establish pattern of strikes for purposes of
showing prima facie case of discrimination, even though defendant did not object to first five strikes. U.S. Const. amend. 14.
5. Jury.
Once movant establishes prima facie case of discrimination in State's use of peremptory strikes, burden shifts to State to explain
basis for strike and court must enter finding of whether intentional discrimination existed. U.S. Const. amend. 14.
6. Jury.
Prosecution satisfies its burden of showing that its use of peremptory strikes did not have discriminatory purpose if offer of proof
is grounded in factors other than gender, but proffered explanation cannot serve as pretext to invidious basis for removal. U.S. Const.
amend. 14.
7. Criminal Law; Jury.
Remand for evidentiary hearing to permit prosecution to respond and defend its actions regarding its use of peremptory strikes
against women venire members was required, where defendant established prima facie case of discrimination and trial court failed to
require prosecution to submit explanation for striking only women from venire. U.S. Const. amend. 14.
OPINION
Per Curiam:
On September 22, 1988, the bodies of Charles Beatty (Beatty) and James Robertson
(Robertson) were found in the desert. Beatty's body was discovered in a trash can, while
Robertson's decomposing corpse lay in a ravine wrapped in a blanket.
113 Nev. 251, 253 (1997) Libby v. State
blanket. Both victims were shot in the back of the head. Libby v. State, 109 Nev. 905, 908,
859 P.2d 1050, 1052 (1993) vacated, Libby v. Nevada, 516 U.S. 1037, 116 S. Ct. 691 (1996).
On September 24, 1988, in Higbee, Missouri, appellant Roger A. Libby (Libby) was
arrested approaching Beatty's Chevrolet Blazer. A search of the Blazer and Libby's person
uncovered Beatty's driver's license, wallet, checkbook, and credit cards. Additionally,
blood-stained swatches taken from the carpet in the Blazer were consistent with Beatty's
blood type. Libby was later charged with two counts of first degree murder with the use of a
deadly weapon and five counts of grand larceny. Id. at 909, 859 P.2d at 1053.
Jury selection commenced January 29, 1990. Both counsel individually questioned
twenty-three members of the venire before twelve passed for cause. At that point, the judge
permitted the prosecution to exercise its first peremptory challenge against a female. Another
eight members of the venire were individually examined until the prosecution excused
another female with its second peremptory. Three more females followed as the third, fourth,
and fifth members struck from the venire. The prosecution waived its sixth peremptory
challenge.
When the time arrived for the prosecution to exercise its seventh strike, the following
dialogue occurred:
MR. BULLOCK [Prosecutor]: Your Honor, the State would like to thank and excuse
[another female juror].
MR. McCARTHY [Defense Counsel]: The defendant objects to that peremptory,
Batson type objection. State exercised six and waived one. All six have been women
and I think there ought to be some type of explanation.
THE COURT: I'll cite to you the case I cited previously, State versus Terry, 391
Northwest 2nd 569, 1986.
It is not unusual for a person to dismiss peremptorily a juror he's not sure can return
a death sentence.
In all fairness I want to tell you about that case. I don't know what his reason is
but
MR. BULLOCK: Your honor, I don't think I have to give a reason, and I would like the
Court's ruling first on the application of Batson versus Kirk [sic].
It is my understanding that Batson versus Kirk [sic] that the only time that the
prosecution has to give an explanation, if there's a minority being excused and the
defendant is a member of that minority group.
In this case it is clearly shown and I think the Court can take judicial notice that
women are a majority of the population of the society and the defendant is a man and
there's absolutely no minority conflicts nor members of the group that's excused.
113 Nev. 251, 254 (1997) Libby v. State
tion of the society and the defendant is a man and there's absolutely no minority
conflicts nor members of the group that's excused. If anything, they are the ones that
exert the Batson problem because they are excusing all men.
THE COURT: Well, I don't make the ruling, Batson versus Kirk [sic], I won't take
judicial notice of those things because I don't think I can accept what's occurred, the
race of the defendantthis doesn't come up. Batson versus Kirk [sic] dealt with a racial
issue. I know of no case that says anything about excluding men or women. I don't
think it's forthcoming. That would be the Court's ruling for now.
The prosecution waived its eighth and final peremptory challenge.
1
On February 6, 1988, a
jury consisting of seven men and five women was empaneled to decide the matter.
The trial concluded April 17, 1990, with the jury returning guilty verdicts on all counts.
Libby, 109 Nev. at 910, 859 P.2d at 1053. Libby received a death sentence for each murder.
Libby appealed and on September 9, 1993, this court affirmed the convictions and
sentences. Libby filed a petition for rehearing, claiming the court failed to consider certain
assignments of error. During the pendency of this petition, Libby filed a motion for
supplemental briefing addressing J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127 (1994). In
J.E.B., the United States Supreme Court extended the protections of Batson v. Kentucky, 476
U.S. 79 (1986), by holding that gender, like race, could not serve as a basis for juror
competence and impartiality. J.E.B., 511 U.S. at 129.
On June 27, 1995, this court summarily denied the petition for rehearing and motion to file
supplemental authorities. Thereafter, on September 22, 1995, Libby filed a petition for writ of
certiorari to the United States Supreme Court. In a January 8, 1996 order, the Supreme Court
vacated this court's opinion in Libby and remanded to the Supreme Court of Nevada, for
further consideration in light of J.E.B. v. T.B., 511 U.S.
------
(1994). Libby v. Nevada, 516
U.S. 1037, 116 S. Ct. 691 (1996).
We begin with the proposition enunciated by the United States Supreme Court in J.E.B.:
Today we reaffirm what, by now, should be axiomatic: Intentional discrimination on the
basis of gender by state actors violates the Equal Protection Clause, particularly where . . . the
discrimination serves to ratify and perpetuate invidious, archaic, and overbroad
stereotypes about the relative abilities of men and women."
__________

1
In a capital murder trial, pursuant to NRS 175.061(4), the prosecution and defense are entitled to one peremptory challenge during
the selection of alternate jurors. The prosecution struck a female from the alternate juror venire. Accordingly, two males sat as alternate
jurors.
113 Nev. 251, 255 (1997) Libby v. State
perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men
and women. J.E.B., 511 U.S. at 130-31. Libby contends that the State violated his equal
protection rights when it set about eliminating as many women as possible from the jury,
apparently based on the stereotypical view that women are somehow less capable of returning
death sentences than men.
In support of this assertion, Libby points to three factors. First, petitioner directs the court's
attention to the numerical disparity between the number of women peremptorily dismissed
versus the number of men. Second, Libby charges that the nature and tone of the prosecutor's
voir dire questioning demonstrated gender bias. Third, appellant notes that during jury
selection the court stated that [i]t is not unusual for a person to dismiss peremptorily a juror
he's not sure can return a death sentence. Libby contends that this shows the trial court's
approval of the prosecution's actions. Taken in their totality, Libby argues that these factors
establish purposeful discrimination in the voir dire process.
[Headnotes 1, 2]
Although J.E.B. controls the ultimate disposition of the instant matter, Batson and its progeny still provide the framework for
evaluating the constitutionality of peremptory challenges. See J.E.B., 511 U.S. at 144-45. A Batson inquiry is triggered when the movant
establishes a prima facie case of intentional discrimination. Batson, 476 U.S. at 96. While a totality of the relevant circumstances
standard determines if the requisite showing is made, courts may specifically consider whether a pattern of strikes against [women] jurors
included in the venire might give rise to an inference of discrimination. Id. at 97. See also J.E.B., 511 U.S. at 129; Turner v. Marshall, 63
F.3d 807, 811-814 (9th Cir. 1995). Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his
challenges may support or refute an inference of discriminatory purpose. Batson, 476 U.S. at 97.
[Headnote 3]
We conclude that Libby established a prima facie case of intentional discrimination. When a significant proportion of peremptories
exercised by the State is used to remove members of a cognizable group, it tends to support a finding of purposeful discrimination. The
State's use of seven out of nine peremptories against female jurors not only established a prima facie case of discrimination, but was a
violation of the Equal Protection Clause. J.E.B., 511 U.S. at 146. In Doyle v. State, 112 Nev. 879, 888, 921 P.2d 901, 907 (1996), this
court concluded, "Presumably the exclusion of three-out-of-four black prospective jurors is sufficient to make out
a prima facie Batson violation."
113 Nev. 251, 256 (1997) Libby v. State
Presumably the exclusion of three-out-of-four black prospective jurors is sufficient to make
out a prima facie Batson violation. In Haynes v. State, 103 Nev. 309, 316, 739 P.2d 497, 502
(1987), this court held that the use of peremptories to exclude the only two black veniremen
established a prima facie case of discrimination. Finally, the United States Court of Appeals
for the Ninth Circuit found that a defendant's use of all seven peremptory challenges to strike
men from the venire established a prima facie case of gender bias. United States v. De Gross,
913 F.2d 1417, 1419 (9th Cir. 1990).
Libby bolsters his position by pointing to voir dire questioning which illustrates the
prosecutor's assumption that women are somehow less capable of returning a death sentence.
For example, women who were ultimately struck from the venire were asked if they had the
intestinal fortitude or internal makeup to impose the death penalty. Some were asked if
deep inside or emotionally, could you bring yourself to do it and say I vote for death.
Similar questions were not propounded to male members of the venire. We conclude that a
reasonable inference from the tenor of these questions is that the prosecutor appeared to
accept the premise that women are somehow less qualified jurors in capital cases.
Ironically, almost every woman thoroughly questioned and excused by the State claimed
she could follow the court's instructions and impose the death penalty. By comparison, those
men who stated they too could impose the death penalty did not receive the same type of
extensive questioning regarding their emotions, intestinal fortitude, and internal makeup. For
example, the closest the State came to asking an empaneled male jury member about his
ability to return a death verdict was the following:
Q My question to you is, should you as a juror get to that point where you in your
own mind feel that the law has been satisfied and that you believe the death penalty
could be imposed, the question I have to you is, would you do it?
A Yes.
Furthermore, even the female members retained for service received the more intrusive and
longer line of examination. We conclude that the apparent disparate treatment during voir
dire questioning further supports a prima facie case of discrimination.
Finally, Libby offers the remarks of the trial court during voir dire which he asserts show
an atmosphere of discrimination. The district court stated, It is not unusual for a person to
dismiss peremptorily a juror he is not sure can return a death sentence. For the claim to have
merit, the judge's statement must be imputed to the State, but the prosecutor never
adopted the judge's statement.
113 Nev. 251, 257 (1997) Libby v. State
imputed to the State, but the prosecutor never adopted the judge's statement. The record
clearly reflects that the prosecutor interrupted the judge and stated, It's my understanding
that . . . the only time that the prosecution has to give an explanation [is] if there is a minority
being excused and the defendant is a member of that minority group. Although Libby's final
argument does nothing to advance a prima facie showing, we conclude that the use of
peremptories to strike only women jurors from the jury pool and the prosecutor's contrasting
examination of males and females in the venire are sufficient to establish a prima facie case
of gender discrimination in the State's use of peremptory challenges.
[Headnote 4]
The State argues that defense counsel's failure to object to the first five peremptory strikes constituted a waiver, and therefore, Libby
could not rely on those removals to establish a pattern. This assertion is without merit. To suggest that a pattern of strikes cannot be
established without preserving each one with an objection is untenable.
2
Neither Batson nor any case following it imposes such a
requirement, and the State cites to none in its brief. Indeed, Batson states that a judge may consider all relevant circumstances, including a
pattern of strikes. Batson, 476 U.S. at 96-97. Therefore, the State fails to rebut Libby's prima facie case.
[Headnotes 5, 6]
Once the movant makes a prima facie showing, the burden shifts to the State to explain the basis for the strike. J.E.B., 511 U.S. at 145.
The prosecution satisfies its burden if the offer of proof is grounded in factors other than gender. Id. However, the proffered explanation
cannot serve as a pretext to an invidious basis of removal. Id. The trial court must then enter a finding of whether intentional discrimination
existed. Batson, 476 U.S. at 98.
[Headnote 7]
At this juncture in the Batson analysis, the instant matter presents a case of first impression in this state. An exhaustive search of this
court's jurisprudence reveals an absence of case law where an objector made out a prima facie case, but the trial court did not require a race
or gender neutral explanation. When Libby lodged his objection, the district court refused to require the State's explanation and
stated, "I don't make the ruling . . . Batson versus Kirk [sic] dealt with a racial issue.
__________

2
To illustrate the faulty logic of the State's position, consider the absurd result reached with the first peremptory exercised. Unless an
attorney were clairvoyant or the party exercising the peremptory volunteered a discriminatory basis, the first juror struck could never be part
of a series establishing a Batson violation. That juror's removal would always be waived.
113 Nev. 251, 258 (1997) Libby v. State
the State's explanation and stated, I don't make the ruling . . . Batson versus Kirk [sic] dealt
with a racial issue. I know of no case that says anything about excluding men or women. I
don't think it's forthcoming. As a result, this court is left with a prima facie case of gender
discrimination, and there is nothing in the record to determine the prosecution's reasons for
striking only women from the venire.
Libby argues that the only fair and equitable remedy is a new trial. The State contends that
if further information is necessary to resolve the question of discrimination in jury selection,
the case should be remanded for a Batson hearing. While the lapse of time may present more
difficulties than the usual Batson hearing, we remand this matter for an evidentiary hearing.
If the district court finds that the passage of time has rendered such a hearing
meaningless, it shall vacate defendant's convictions and schedule a new trial. United States
v. Thompson, 827 F.2d 1254, 1262 (9th Cir. 1987). However, the prosecution must be given
the opportunity to respond and defend its actions. Batson, 476 U.S. at 97.
3
__________

3
____________
NORMAN TYRONE POWELL, Appellant, v.
No. 27686
February 26, 1997 934 P.2d 224
Appeal from a conviction of three counts of assault with a deadly weapon, being an
ex-felon in possession of a firearm, discharge of a firearm from a motor vehicle, adjudication
as a habitual criminal, and a sentence of life in prison without the possibility of parole.
Second Judicial District Court; Steven R. Kosach, Judge.
The supreme court held that: (1) defendant could not be convicted on three counts of
assault with deadly weapon, when he had fired only one shot at group of three people, and (2)
case would be remanded for reconsideration of sentence.
Michael Specchio, Public Defender and Mary Lou Wilson, Deputy Public Defender,
Attorney and Gary H. Hatlestad, Chief Appellate Deputy District Attorney, Washoe County,
for Respondent.
1. Assault and Battery.
Trial court gave adequate instruction on intent, as element of crime of assault with deadly weapon, even though court did not
require that jury find defendant had specific intent. NRS 200.471.
2. Criminal Law.
Defendant could not be convicted of three counts of assault with a deadly weapon when he fired one shot at group of three persons.
NRS 200.471.
3. Criminal Law.
Sentence of life without possibility of parole, given to defendant who had fired one shot from rifle at group of three persons, would
be remanded for reconsideration. Supreme court had determined that defendant could not be convicted on three counts of assault,
based upon firing one shot, and trial court might have sentenced defendant differently if he had been convicted of only one assault
charge.
OPINION
Per Curiam:
Appellant Norman Tyrone Powell (Powell) drove by a group of people standing around
their cars and fired one shot from a rifle out his car window. He was convicted of three counts
of assault with a deadly weapon, being an ex-felon in possession of a firearm, and discharge
of a firearm from a motor vehicle. In addition, he was adjudicated a habitual criminal based
on his prior criminal history. Accordingly, the district court sentenced him to life in prison
without the possibility of parole.
Powell appeals, alleging that no specific intent instruction was given with respect to the
assault charges. Additionally, he asserts that respondent State of Nevada (the State) failed
to prove he had the specific intent to commit bodily harm on each of the three victims. He
also argues that the district court abused its discretion in sentencing him to life without
parole.
We conclude that sufficient specific intent instructions were given to the jury. However,
we conclude that since Powell fired only one shot at the group of people, he could not be
convicted of three separate counts of assault with a deadly weapon upon three different
individuals. Therefore, we reverse two of the assault convictions. Further, we remand this
matter for resentencing, in light of our decision to reverse those two convictions.
FACTS
On August 13, 1994, Gailyn Richardson (Richardson), Deborah Cole (Cole), Patty
Shepard (Shepard), her fifteenyear-old son, DeShawn Terry, and his friends, Damien
Lambert and Thomas Segura, {collectively referred to as "the group") were socializing
near their parked cars across the street from Pat Baker Park in Sparks after attending a
church function.
year-old son, DeShawn Terry, and his friends, Damien Lambert and Thomas Segura,
(collectively referred to as the group) were socializing near their parked cars across the
street from Pat Baker Park in Sparks after attending a church function. At some point, a
brown van containing a male driver and a female passenger pulled up across the street.
Powell got out of the driver's side of the van and approached the three teenage boys who were
standing near, but separately from, the women. Powell asked the boys for some D, also
known as drugs. The boys laughed at him and told him to get away because they did not do
drugs. Powell was somewhat persistent and the boys repeatedly told him to leave. Powell got
back into his van and sped off.
Approximately five to ten minutes later, the group heard a car screeching down the street
and looked up. They saw the same brown van rounding the corner, speeding toward them. As
the van got a little closer, the group saw Powell in the driver's seat, holding a black rifle out
the window. Specifically, they saw Powell's arm and the barrel of the gun aimed straight
toward them.
1
Cole yelled, He's got a gun! and within a split-second everyone ducked down
behind the cars. Richardson, who was holding her two-month-old daughter, ducked down
behind the rear driver's side tire of her car, which was parked on the wrong side of the street.
Cole and Shepard ducked down behind the front tire of Richardson's car. The boys all ducked
down behind Shepard's car, which was parked a few feet in front of Richardson's car. Powell
fired one shot.
2
No one was injured; however, Richardson's rear windshield was shattered.
Although the police conducted an exhaustive search, the bullet was never found.
After assessing that no one was injured, Shepard jumped into her car and drove a few
blocks away until she found police officers. She explained the incident and described the van.
They followed her back to the scene. While the officers were collecting information, the
group saw the van traveling about a block away. The police followed it and signaled for the
driver to stop; the driver did not stop the van until it proceeded a few more blocks. The
officers instructed the occupants to exit the vehicle; Powell got out of the passenger side
door, while his wife, Cassandra Pleasants Powell {"Cassandra"), got out of the driver's
side.
__________

1
Shepard testified that the rifle was pointed straight out the window, aimed at any one of them because a bullet don't have nobody's
name. She stated that if the group did not duck down, the bullet could have hit anyone who was standing there.

2
Everyone in the group who testified at trial stated that Powell was the person who fired the shot. Shepard, Richardson, and Cole
specifically stated that they had no doubt that it was Powell. However, they all ducked before the shot was fired; therefore, no one actually
saw the shot itself.
Pleasants Powell (Cassandra), got out of the driver's side. Cassandra immediately told the
officers that Powell made her change seats.
The police retrieved a rifle wrapped in a blanket from the back of the van. Meanwhile, the
group arrived at the arrest scene and the women identified Powell as the man who approached
the boys for drugs, the driver of the van, and the shooter. The officers determined Cassandra
was the registered owner of both the rifle and the van. However, based upon the women's
statements, they believed that Powell was the shooter, not Cassandra. Therefore, the police
arrested Powell for assault with a deadly weapon, being an ex-felon in possession of a
firearm, discharging a firearm from a motor vehicle, and discharging a firearm at or into a
vehicle.
3
On October 27, 1994, after a September 29, 1994 preliminary hearing, an information was
filed in the district court, charging Powell with three counts of assault with a deadly weapon
upon Richardson, Cole, and Shepard, being an ex-felon in possession of a firearm,
discharging a firearm from a motor vehicle, and discharging a firearm at or into a vehicle.
On November 7, 1994, the State amended the information to include a new count of
Powell being a habitual criminal.
4
On June 26, 1995, the trial commenced. After the State put on its case-in-chief, Powell
testified on his own behalf. He stated that on August 13, 1994, Cassandra drove the van the
entire day because Powell did not have his glasses. He testified that it is physically
impossible for him to drive without his glasses because his right eye is a glass eye and he is
legally blind in his left eye.
5
Powell testified that Cassandra owned a rifle which she put in the back of the van near the
driver's side. When they drove near Pat Baker Park, Cassandra hit the brakes and the gun
discharged accidentally. Afterward, Cassandra wrapped the rifle in a blanket. Powell testified
that he never touched the rifle, nor fired it at anyone.
On June 27, 1995, the jury returned a verdict of guilty on all counts. On August 10, 1995,
the judge adjudicated Powell a habitual criminal and sentenced him to life without the
possibility of parole.
__________

3
Cassandra was also arrested because she was with Powell at the time. However, all charges against her were eventually dropped.

4
In addition, on June 16, 1995, the State dismissed the count of discharging a firearm at or into a vehicle. The second amended
information reflecting this change was filed on June 26, 1995.

5
At one time Powell received disability benefits for being legally blind. However, Dr. Paul Speakman, an optometrist who examined
Powell, testified that the vision in Powell's left eye can be corrected with glasses; therefore, Powell was not legally blind in that eye.
habitual criminal and sentenced him to life without the possibility of parole. On August 21,
1995, Powell filed his notice of appeal and request for appointed counsel.
DISCUSSION
Specific intent jury instructions
[Headnote 1]
Powell argues that the district court failed to give the requisite specific intent jury instruction for the assault with a deadly weapon
counts. However, at trial, Powell's attorney did not offer a specific intent instruction different from the ones already agreed upon. The only
instruction he offered instructed the jury not to confuse motive with intent. The court believed this was not necessary and denied it.
We conclude the requisite specific intent instructions were given in the instant matter, even though the word specific was not used.
6
In Wilkerson v. State, 87 Nev. 123, 126, 482 P.2d 314, 316 (1971), the jury instruction on intent stated that to convict Wilkerson, the
jury must find that he committed an assault with a deadly weapon with the intent to inflict upon the person of another a bodily injury.
This court held that although the instruction did not use the word specific, the instruction was sufficient to direct the jury to consider the
issue of specific intent. Id. at 126-27, 482 P.2d at 316.
__________

6
The jury instructions presented regarding intent were:
No. 12: In every crime there must exist a union or joint operation of act and intent.
The burden is always upon the prosecution to prove both act and intent beyond a reasonable doubt.
No. 13: Intent may be proven by circumstantial evidence. It rarely can be established by any other means. While witnesses may
see and hear and thus be able to give direct evidence of what a defendant does or fails to do, there can be no eyewitness account of
a state of mind with which the acts were done or omitted, but what a defendant does or fails to do may indicate intent or lack of
intent to commit the offense charged.
In determining the issue as to intent, the jury is entitled to consider any statements made and acts done or omitted by the
accused, and all facts and circumstances in evidence which may aid determination of state of mind.
No. 14: Assault with a deadly weapon is an unlawful attempt, coupled with the present ability, to commit a violent injury on the
person of another, with the use of a deadly weapon.
No. 15: An attempt means an act done with the intent to inflict a violent injury on the person of another and tending but failing
to accomplish it.
(Emphasis added.)
Likewise, here, the jury instructions, when taken as a whole, sufficiently direct the jury to
consider whether Powell had the intent to inflict bodily harm. Therefore, we conclude
Powell's argument is without merit.
Specific intent to commit three counts of assault with a deadly weapon
[Headnote 2]
Powell argues that the State failed to prove sufficient evidence of specific intent for each and every assault count. Powell only shot the
rifle once, at a group of people, and not at any one specific person, let alone three specific people. We agree that under these circumstances,
Powell cannot be convicted of three counts of assault with a deadly weapon when he only fired one shot at a group of people.
NRS 200.471 defines assault as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of
another. NRS 193.330 defines attempt as [a]n act done with the intent to commit a crime, and tending but failing to accomplish it. See
also Crawford v. State, 107 Nev. 345, 351, 811 P.2d 67, 71 (1991) (stating the elements of attempt are: (1) the intent to commit the crime;
(2) performance of some act toward the commission of the crime; and (3) the failure to consummate its commission). Therefore, the State
had the burden to prove that Powell had the specific intent to commit a violent injury on each of Richardson, Cole, and Shepard.
The State cites Ewell v. State, 105 Nev. 897, 785 P.2d 1028 (1989), for the proposition that the intent to commit the crimes upon
specific individuals in the group may be inferred where the intent is directed at the group. In Ewell, the defendant fired two shots at two
police officers who were standing in a group of people. He was charged with two counts of attempted murder, one count upon each officer.
The challenged jury instruction at trial read, During an attack upon a group, a defendant's intent to kill need not be directed at any one
individual. It is enough if the intent to kill is directed at the group. Id. at 899, 785 P.2d at 1029. This court held that the instructions in
their entirety
accurately and fairly state the law in Nevada. Appellants were guilty of attempting to kill the two police officers if they fired at the
group of people immediately near the officers. The [challenged] instruction merely informs the jury that the state did not have to
prove that the appellants intended to kill a specific person in the group.
Id.
We find that in light of Ewell, Powell could have formed the requisite intent to commit assault with a deadly weapon.
requisite intent to commit assault with a deadly weapon. However, we conclude that Ewell is
distinguishable from the instant matter. Here, Powell fired only one shot but was charged and
convicted of three separate counts of assault upon three different individuals. Therefore, as
Powell discharged the rifle only one time, we hold that he may be convicted once for assault
with a deadly weapon. Accordingly, we reverse two convictions of assault with a deadly
weapon and affirm one conviction of assault with a deadly weapon.
The sentence of life without the possibility of parole
[Headnote 3]
The district court adjudicated Powell a habitual criminal pursuant to NRS 207.010,
7
based upon his criminal history.
8
Powell argues
that although [t]he state met its procedural burden for establishing Mr. Powell as an [sic] habitual criminal, the district court abused its
discretion by sentencing Powell to life in prison without the possibility of parole.
We do not reach the issue as to whether the district court abused its discretion in adjudicating Powell as a habitual criminal. Rather, we
conclude the district court may have sentenced Powell differently if Powell had been convicted of only one assault with a deadly weapon
charge. Accordingly, in light of our decision to reverse two of Powell's assault convictions, we remand this matter for resentencing.
9
__________

7
The purpose of the habitual criminal statute is to increase sanctions for the recidivist and to discourage repeat offenders. Odoms v.
State, 102 Nev. 27, 32, 714 P.2d 568, 571 (1986).

8
Powell's criminal history reflects the following convictions:
(1) Felonies: November 15, 1991, attempted robbery; March 28, 1984, burglary; and June 2, 1978, pimping and pandering.
(2) Gross misdemeanors: November 1, 1989, conspiracy to possess stolen property; March 10, 1989, conspiracy to commit
grand larceny; and January 19, 1989, carrying a concealed weapon.
(3) Misdemeanors: September 25, 1991, driving under the influence; November 6, 1990, possession of drug paraphernalia;
August 5, 1985, possession of a hypodermic device; January 22, 1985, disturbing the peace; July 28, 1983, battery; August 9,
1981, petty theft; June 18, 1981, petty theft; May 14, 1981, petty theft; February 28, 1980, trespassing; May 21, 1979, driving
under the influence; March 19, 1975, battery; and December 18, 1974, possession of marijuana. In addition, Powell has a number
of probation violations and revocations.

9
We also note that the sentence imposed by the district court provided for only one definite term, that of life in prison without the
possibility of parole. However, in addition to assault with a deadly weapon, Powell was convicted of being an ex-felon in possession of a
firearm and of discharging a firearm from a motor vehicle. Therefore, it appears that Powell was not sentenced to definite terms on each
conviction. Accordingly, upon resentencing, we direct the lower court to clarify the specific sentences for each of Powell's convictions. See
NRS 176.033(1); NRS 176.035.
In a supplemental brief to this court, Powell asserts other procedural violations of his
rights. Upon a review of the record, we find that these contentions lack merit.
CONCLUSION
We conclude that the jury received adequate instructions with respect to specific intent.
We further conclude that as Powell discharged the rifle only once, he could only have the
specific intent to harm one person; therefore, we reverse two of the assault convictions. We
also remand this matter for resentencing in light of our decision to reverse those convictions.
I concur in result only.
____________
113 Nev. 265, 265 (1997) G and H Assocs. v. Ernest W. Hahn, Inc.
G AND H ASSOCIATES, a Partnership; ALBERT G. GLICKMAN, JERRY CRUMPLER,
MALCOLM REILLY AND IRIS CALLIE, PARTNERS, Appellants, v. ERNEST W.
HAHN, INC., LEROY MILLER ASSOCIATES, ARCHITECTS; QUALITY
CONSTRUCTION CO., INC., and DAVIDSON SALES, INC., a Utah Corporation,
Respondents.
No. 27101
February 26, 1997 934 P.2d 229
Appeal from an order granting summary judgment in an action concerning construction
defects. Second Judicial District Court, Washoe County; Jerry Carr Whitehead, Judge.
Building owner brought action against contractor, architect and subcontractors, alleging
roof on its commercial building was defective. The district court granted summary judgment
on grounds claims were barred by statute of repose, and owner appealed. The supreme court
held that: (1) claims arising from defects in roof of commercial building accrued at date of
substantial completion for purpose of statute of repose and date of discovery of injury for
purpose of statute of limitations, but (2) eight-year statute of repose for construction defects
claims did not apply to claims for willful misconduct and fraudulent or intentional
concealment of construction defects.
[Rehearing denied July 22, 1998]
Anderson, Pearl, Hardesty, Lyle, Murphy and Bennett, Reno, for Appellants.
Erickson, Thorpe & Swainston, and William G. Cobb, Reno, for Respondent Hahn.
Georgeson, McQuaid, Thompson and Angaran, Reno, for Respondent Leroy Miller
Associates.
Kent J. Dawson,
1
Las Vegas, for Respondent Quality Construction.
1. Limitation of Actions.
Claims arising from defects in roof of commercial building accrued at date of substantial completion for purposes of statute of
repose and date of discovery of injury for purpose of statute of limitations. NRS 11.203-11.205.
Statutes of repose set outside time limit, generally running from date of substantial completion of project and with no regard to
date of injury, after which causes of action for personal injury or property damage allegedly caused by deficiencies in improvements to
real property may not be brought; therefore, in addition to proving elements of cause of action, one must also prove that cause of action
was brought within time frame set forth by statute of repose. NRS 11.203-11.205.
Statute of limitations are procedural bars to plaintiff's action, and in tort action, time limits do not commence and cause of
action does not accrue until aggrieved party knew, or reasonably should have known, of facts giving rise to damage or injury.
Cause of action could simultaneously accrue for purposes of statute of repose and statute of limitations; however, cause of action
will usually accrue for statute of limitations purposes after it has accrued for statute of repose purposes.
Under statute applying statute of repose retroactively to construction projects which were substantially completed prior to 1983
and which had accrued prior to April 10, 1991, word accrued referred to statute of limitations.
6. Fraud; Limitation of Actions.
Eight-year statute of repose for construction defects claims did not apply to claims of willful misconduct and fraudulent or
intentional concealment of construction defects. NRS 11.202.
7. Fraud; Limitation of Actions.
Statute authorizing bringing claim for willful misconduct and fraudulent or intentional concealment of construction defects at any
time after substantial completion of improvement to real property is not statute of repose. NRS 11.202.
__________

1
On October 21, 1996, Kent J. Dawson filed an ex parte application to withdraw as counsel for respondent Quality Construction Co.,
Inc. because he was appointed to the bench and is no longer permitted to engage in the private practice of law. Cause appearing, we grant
the application to withdraw.
8. Judgment.
Property owner that alleged claims for willful misconduct and fraudulent or intentional concealment of construction defects
against general contractor and architect was not required to cite statute permitting such claims to be brought at any time after the
substantial completion of improvements to real property or produce evidence in form of affidavits or depositions which set forth
specific facts showing that genuine issues of material fact existed on those claims in response to motion for summary judgment. NRS
11.202.
OPINION
Per Curiam:
Respondents were granted summary judgment based on the fact that the statute of repose
had barred all of appellants' claims in a construction defect case. We conclude that the district
court properly granted summary judgment as to all of appellants' causes of action except
those for willful misconduct/fraudulent concealment of construction defects and intentional
concealment of construction defects.
FACTS
The facts of this case are undisputed. On January 20, 1993, a roof section of a commercial
building in Reno, owned by appellants and occupied by Mervyn's Department Store,
collapsed. The building had been collectively built by respondents and was completed in
October 1976. After the collapse, appellants hired an engineer to inspect the roof, and the
engineer discovered that the glue-laminated beams supporting the roof had virtually no glue
holding them together. The glue-laminated beams are constructed by gluing successive layers
of planks one on top of the other to form the final height of the load-bearing beam. In
addition to the inadequacy of the glue beams, the engineer also discovered that hardware used
to make the roof safe during seismic activity was either missing or improperly installed.
Appellants repaired the deficiencies at a cost of over $500,000.
Based on the engineer's information, appellants filed a complaint on April 13, 1993,
2
alleging claims for negligence, willful misconduct and fraudulent concealment, breach of
warranty, and breach of fiduciary duty against the general contractor (Hahn), the architect
{Miller), and various subcontractors responsible for the construction of the roof.3
__________

2
The first complaint, filed on April 13, 1993, was amended after appellants learned that two of the named defendants had not been
involved in the construction of the roof. Those parties were dismissed from the lawsuit and the amended complaint, filed on July 1, 1994,
named the parties mentioned in this appeal.
the architect (Miller), and various subcontractors responsible for the construction of the roof.
3
After some discovery had occurred, respondents Hahn and Miller filed motions for
summary judgment based upon NRS 11.204, Nevada's statute of repose, which states in
pertinent part:
[N]o action may be commenced against the owner, occupier or any person performing
or furnishing the design, planning, supervision or observation of construction, or the
construction, of an improvement to real property more than 8 years after the substantial
completion of such an improvement.
The motions argued that appellants' claims were barred because more than eight years had
passed since the substantial completion of the building. Oral argument was held on the
motions on February 24, 1995. At the conclusion of the hearing, the district judge suspended
all further discovery pending the order of the court. Prior to a decision being rendered,
respondent Quality Construction Company also filed a motion for summary judgment based
on NRS 11.204. Appellants filed an opposition to Quality's motion, but before Quality could
file a reply brief, the district court issued its order granting the motions for summary
judgment based on the fact that the statute of repose barred appellants' claims, and dismissing
all of appellants' claims without prejudice.
DISCUSSION
Summary judgment was properly entered pursuant to NRS 11.204
Before reaching the issue of the propriety of the summary judgment order, a brief history
of Nevada's statute of repose is warranted.
__________

3
The claims in the complaint were as follows:
Count 1: Negligence against subcontractor Davidson Lumber Supplies, Inc. (Davidson);
Count 2: Defective product against Davidson;
Count 3: Willful misconduct/fraudulent concealment against Davidson;
Count 4: Negligence against Hahn;
Count 5: Defective product against Hahn;
Count 6: Breach of warranty against Hahn;
Count 7: Breach of implied warranty against Hahn;
Count 8: Breach of fiduciary duty against Hahn;
Count 9: Negligence against subcontractor Quality Construction Company (Quality);
Count 10: Defective product against Quality;
Count 11: Willful misconduct/fraudulent concealment against Quality;
Count 12: Negligent design, supervision, and testing by Miller;
Count 13: Intentional concealment of construction defects by Hahn.
warranted. Nevada's original statute of repose, codified at NRS 11.205, was adopted by the
Nevada Legislature in 1965. However, in State Farm v. All Electric, Inc., 99 Nev. 222,
228-29, 660 P.2d 995, 1000 (1983), this court declared the 1965 statute of repose
unconstitutional as violative of the equal protection clauses of the state and federal
constitutions because it arbitrarily excluded owners and tenants from the scope of protection.
In 1983, the Legislature enacted a new statute of repose to correct the constitutional defect
identified in State Farm and also separated the statute of repose into three different sections:
NRS 11.203 provides that actions regarding defects known to the defendant, or which should
have been known through the exercise of reasonable diligence, must be brought within ten
years of substantial completion of the improvement to real property; NRS 11.204 provides
that actions regarding latent deficiencies must be brought within eight years from substantial
completion of the improvement to real property; and NRS 11.205 provides that actions
regarding patent deficiencies must be brought within six years from substantial completion of
the improvement to real property.
In Nevada Power v. Metropolitan Dev. Co., 104 Nev. 684, 765 P.2d 1162 (1988), this
court addressed the retroactive application of NRS 11.203-.205 and concluded that the
statutes of repose could not be applied retroactively prior to May 23, 1983 (the date of
passage of the new statutes of repose), because there was no clear legislative intent to have
them do so. Id. at 686, 765 P.2d at 1163. The court also concluded that the State Farm
decision had rendered the 1965 statute of repose null and void ab initio. Id., 765 P.2d at
1163-64.
As a result of the Nevada Power decision, a disparity existed in that the statute of repose
would not apply to projects substantially completed before May 23, 1983, but the statute of
repose would apply to projects completed after May 23, 1983. On April 10, 1991, the
Legislature passed Senate Bill 105 (S.B. 105), which explicitly provided that the 1983
statutes of repose applied retroactively to pre-1983 improvements to real property. S.B. 105
stated in pertinent part:
Section 1. 1. Except as otherwise provided in subsection 2, the periods of
limitation on actions set forth in NRS 11.203, 11.204 and 11.205 apply retroactively to
actions in which the substantial completion of the improvement to the real property
occurred before July 1, 1983.
2. The provisions of subsection 1 do not limit an action:
(a) That was commenced before the effective date of this act [April 10, 1991]; or
(b) If so doing would constitute an impairment of the obligation of contracts under
the Constitution of the United States or the constitution of the State of Nevada.
1991 Nev. Stat., ch. 70, 1 at 132.
In 1992, this court considered the constitutionality of S.B. 105 in Alsenz v. Twin Lakes
Village, Inc., 108 Nev. 1117, 843 P.2d 834 (1992). We concluded that S.B. 105 was
unconstitutional because it did not contain a grace period which permitted parties whose
claims had accrued prior to passage of S.B. 105 to file their actions after the passage of S.B.
105. Id. at 1122, 843 P.2d at 838. This court concluded that it was unfair to enact a new
provision which cut off a claimant's right to file suit for an accrued cause of action without
affording that claimant a grace period after passage of the statute within which to file his or
her cause of action. Id. at 1123, 843 P.2d at 838.
In response to the Alsenz decision, the Legislature passed Senate Bill 554 (S.B. 554) on
July 9, 1993, which amended S.B. 105. S.B. 554 stated in pertinent part:
Section 1. Section 1 of chapter 70, Statutes of Nevada 1991, at page 132, is
hereby amended to read as follows:
Section 1. 1. Except as otherwise provided in subsection 2, the periods of limitation
on actions set forth in NRS 11.203, 11.204 and 11.205 apply retroactively to actions in
which the substantial completion of the improvement to the real property occurred
before July 1, 1983.
2. The provisions of subsection 1 do not limit an action:
(a) That accrued before April 10, 1991, and was commenced before . . . July 1,
1994; or
(b) If so doing would constitute an impairment of the obligation of contracts under
the Constitution of the United States or the constitution of the State of Nevada.
1995 Nev. Stat., ch. 449, 1 at 1439-40.
Appellants now contend that summary judgment was improperly granted because (1) S.B.
105 was rendered unconstitutional in its entirety by virtue of this court's decision in Alsenz,
and therefore no statute of repose existed when appellants filed their complaint in 1993; and
(2) even if S.B. 105 was only rendered unconstitutional as applied by Alsenz, it was
unconstitutional as applied to them because their claim accrued prior to April 10, 1991, and
they were not afforded a grace period within which to file their claim. They also contend that
their claim fell within the grace period prescribed in S.B. 554 because it was filed before July
1, 1994. For these reasons, appellants argue that their claim was not time barred.
We conclude that both of appellants' arguments lack merit, and we therefore reject those
arguments without reaching the issue of whether Alsenz declared S.B. 105
unconstitutional in whole or in part.
we therefore reject those arguments without reaching the issue of whether Alsenz declared
S.B. 105 unconstitutional in whole or in part. Regardless of the effect of the Alsenz decision,
the main question is when did appellants' claims accrue for purposes of S.B. 105 and S.B.
554. The answer to this question will conclusively determine whether appellants' claims are
barred pursuant to either senate bill.
4
[Headnote 1]
We conclude that appellants' claims accrued at the date of substantial completion, October 1976, for purposes of the statute of repose
and at the date of discovery of the injury, January 1993, for the purpose of the statute of limitations. As the remainder of this opinion will
explain, such a conclusion mandates that appellants' claims were barred pursuant to either S.B. 105 or S.B. 554.
[Headnote 2]
In discussing the difference between statutes of repose and statutes of limitation, this court has stated:
Statutes of repose bar causes of action after a certain period of time, regardless of whether damage or an injury has been
discovered. In contrast, statutes of limitation foreclose suits after a fixed period of time following occurrence or discovery of an
injury.
Allstate Ins. Co. v. Furgerson, 104 Nev. 772, 775 n.2, 766 P.2d 904, 906 n.2 (1988). Statutes of repose set an outside time limit, generally
running from the date of substantial completion of the project and with no regard to the date of the injury, after which causes of action for
personal injury or property damage allegedly caused by deficiencies in the improvements to real property may not be brought. Lamb v.
Wedgewood South Corp., 302 S.E.2d 868, 873 (N.C. 1983). Therefore, in addition to proving the elements of the cause of action, one must
also prove that the cause of action was brought within the time frame set forth by the statute of repose. Colony Hill Condo. I Ass'n v.
Colony Co., 320 S.E.2d 273, 276 (N.C. Ct. App. 1984).
In determining when a cause of action accrues for the purposes of the statute of repose, most jurisdictions, including Nevada, have
concluded that the time limits set forth in a statute of repose commence at the time of substantial completion of the building and not at the
time of discovery of the injury. Alsenz v. Twin Lakes Village, Inc.,
__________

4
Initially, it must be mentioned that the word accrual has separate meanings depending on whether the statute of repose or the
statute of limitations is being discussed, and furthermore, that this court and the Legislature have often used the word accrual without
regard to this distinction. We hope to correct any confusion with this opinion.
Twin Lakes Village, Inc., 108 Nev. 1117, 1121, 843 P.2d 834, 863 (1992); see also Lamb,
302 S.E.2d at 873; Texas Gas Exploration v. Fluor Corp., 828 S.W.2d 28, 32, (Tex. Ct. App.
1991). Therefore, appellants' claims accrued for purposes of the statute of repose in October
1976.
[Headnotes 3, 4]
Statutes of limitation are procedural bars to a plaintiff's action, and in a tort action such as this, the time limits do not commence and
the cause of action does not accrue until the aggrieved party knew, or reasonably should have known, of the facts giving rise to the
damage or injury.
5
Nevada State Bank v. Jamison Partnership, 106 Nev. 792, 800, 801 P.2d 1377, 1382 (1990). Therefore, appellants'
claims accrued for purposes of the statute of limitations in January 1993. Given these definitions, a cause of action can simultaneously
accrue for purposes of the statute of repose and statute of limitations; however, the cause of action will usually accrue for statute of
limitation purposes after it has accrued for statute of repose purposes.
6
Given these two defined usages of the word accrued, it is clear that the Alsenz court, in evaluating S.B. 105, and the Legislature, in
drafting S.B. 554, used the word accrued to mean accrued for the purpose of the statute of limitations and not for the purpose of the
statute of repose. Where alternative interpretations of a statute are possible, the one producing a reasonable result should be favored.
Colello v. Administrator, Real Est. Div., 100 Nev. 344, 347, 683 P.2d 15, 17 (1984). We conclude that this interpretation is the only
reasonable one.
__________

5
This court has also stated:
The general rule concerning statutes of limitation is that a cause of action accrues when the wrong occurs and a party sustains
injuries for which relief could be sought. An exception to the general rule has been recognized by this court and many others in the
form of the so-called discovery rule. Under the discovery rule, the statutory period of limitations is tolled until the injured party
discovers or reasonably should have discovered facts supporting a cause of action.
Petersen v. Bruen, 106 Nev. 271, 274, 792 P.2d 18, 20 (1990) (citations omitted).

6
Furthermore, in an action regarding the statute of repose, the statute of repose should be read in conjunction with the statute of
limitations. Therefore, to be actionable, a claim must be brought within the time limit set forth in the statute of repose, which commences at
the time of substantial completion of the building, and must also be brought within the time limit set forth in the statute of limitation for the
particular cause of action, which commences at the time the party knew or should have known of the damage. See Smith v. American
Radiator & Standard Sanitary Corp., 248 S.E.2d 462, 465-67 (N.C. 1978), overruled on other grounds by Love v. Moore, 291 S.E.2d 141
(N.C. 1982); O'Connor v. Altus, 335 A.2d 545, 553 (N.J. 1975); Comptroller of Virginia ex. rel. Virginia Military Institute v. King, 232
S.E.2d 895, 899 (Va. 1977).
In Alsenz, this court stated that S.B. 105 was unconstitutional because it
cut off a claimant's right to file suit for a cause of action which has accrued. Therefore,
the legislature must allow a grace period for a claimant to file an existing cause of
action.
Alsenz, 108 Nev. at 1123, 843 P.2d at 838 (emphasis added). Based on this language, when
the Alsenz court used the word accrued, it meant accrued for the purposes of the statute of
limitations and not the statute of repose because a cause of action does not exist until the
injury has been or should have been discovered. Therefore, if S.B. 105 was unconstitutional
only as applied to those parties whose claims had accrued for the purposes of the statute of
limitations prior to April 10, 1991 (the date of passage of S.B. 105), but who had not filed
their action prior to that date, it was not unconstitutional as applied to appellants because they
did not discover their injury and their claim did not accrue until some time in January 1993.
[Headnote 5]
In drafting S.B. 554, the Legislature attempted to apply the statute of repose retroactively to projects which were substantially
completed prior to 1983 and which had accrued prior to April 10, 1991. The word accrued, as used in this statute, can only reasonably
be interpreted to mean for purposes of the statute of limitations. If accrued as used in S.B. 554 referred to the statute of repose, then no
cases would be exempted from NRS 11.203-.205 because only pre-1983 claims are at issue, and by definition, all pre-1983 claims would
have accrued for statute of repose purposes prior to 1991. Therefore, if S.B. 105 was unconstitutional in its entirety, appellants claim was
still barred by S.B. 554 because their claim did not accrue for statute of limitations purposes prior to April 10, 1991.
For these reasons, we conclude that the district judge properly determined that the statute of repose applied and properly granted
summary judgment on all claims governed by the statute of repose.
The district court erred in dismissing all of appellants' claims
[Headnote 6]
The district court's order granted respondents' motion for summary judgment and dismissed all of appellants' claims without prejudice.
Appellants argue that even if the statute of repose applies, it would not bar their claims for willful misconduct and fraudulent or intentional
concealment of construction defects (Claims 11 and 13).
7
__________

7
See footnote 2.
NRS 11.202(1) states:
1. An action may be commenced against the owner, occupier or any person
performing or furnishing the design, planning, supervision or observation of
construction, or the construction of an improvement to real property at any time after
the substantial completion of such an improvement, for the recovery of damages for:
(a) Any deficiency in the design, planning, supervision or observation of
construction or the construction of such an improvement which is the result of his
willful misconduct or which he fraudulently concealed.
[Headnote 7]
Unlike NRS 11.203-.205, NRS 11.202 is not a statute of repose and it authorizes bringing a claim for willful misconduct and
fraudulent or intentional concealment of defects at any time after the substantial completion of the improvement to real property.
Therefore, the judge's order regarding the effect of the application of the statutes of repose had no effect on appellants' Claims 11 and 13.
[Headnote 8]
Respondents argue that it was the understanding of all involved that the motions for summary judgment applied to all of appellants'
claims and that appellants had the burden to cite NRS 11.202 as a defense to the motion but failed to do so. We disagree. Respondents
Hahn and Miller's motions for summary judgment were addressed exclusively to the statute of repose issues, and at no point did either
address the issue of willful misconduct and fraudulent or intentional concealment. As such, we conclude that appellants were not required
to cite NRS 11.202 in their opposition motion or to produce evidence in the form of affidavits or depositions which set forth specific facts
showing that genuine issues of material fact existed on Claims 11 and 13. See Posadas v. City of Reno, 109 Nev. 448, 452, 851 P.2d 438,
442 (1993). Therefore, we conclude that the district court improperly granted summary judgment on appellants' Claims 11 and 13.
CONCLUSION
Pursuant to either S.B. 105 or S.B. 554, all of appellants' claims except those for willful misconduct and fraudulent or intentional
concealment were barred, and the district court properly granted summary judgment on those claims. However, the district court erred in
dismissing appellants' Claims 11 and 13 because those claims were not challenged in respondents' motions for summary judgment.
For the foregoing reasons, we affirm the district court's grant of summary judgment on all
of appellants' causes of action except for Claims 11 and 13, and we remand this case to the
district court for proceedings consistent with this opinion.
8
__________

8
____________
113 Nev. 275, 275 (1997) Brown v. State
TROY DON BROWN, Appellant, v. THE
No. 27426
February 26, 1997 934 P.2d 235
Appeal from a judgment of conviction entered pursuant to a jury verdict of two counts of
sexual assault of a child under the age of fourteen and one count of child abuse by sexual
abuse causing substantial mental harm. Fourth Judicial District Court, Elko County; Thomas
L. Stringfield, Judge.
The supreme court held that: (1) error by justice of peace in failing to set bail did not
warrant reversal of defendant's convictions; (2) sufficient evidence supported convictions; (3)
convictions violated double jeopardy; (4) trial court's use at sentencing of statements in
psychiatric report prepared to determine whether defendant was competent to stand trial
violated Fifth Amendment; (5) trial court's directive at sentencing, that if defendant did not
admit his guilt, he would receive harsher sentence, violated defendant's Fifth Amendment
privilege against self-incrimination; and (6) results of second DNA test conducted after trial
but prior to sentencing at defendant's request were admissible for consideration at sentencing,
even though results of second test were considered without any evidentiary scrutiny, laying of
foundation, or establishment of methods of reliability.
Dennis E. Widdis, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Gary D. Woodbury, District
Attorney, and John S. McGimsey and Robert J. Lowe, Deputy District Attorneys, Elko
County, for Respondent.
1. Criminal Law.
Error by justice of peace in failing to set bail did not substantially affect judgment, and thus did not warrant reversal of defendant's
convictions.
113 Nev. 275, 276 (1997) Brown v. State
tions. For most of defendant's pretrial confinement, defendant was confined at facility for psychiatric evaluation where he would have
been confined even without failure to set bail, confinement did not cause substantial interference with preparation of defendant's
defense, and fact that defendant was held without bail was not published, and so did not infiltrate jurors' consciousness.
2. Criminal Law.
Failure to conduct pretrial evidentiary hearing in sexual assault prosecution to determine whether deoxyribonucleic acid (DNA)
results were trustworthy and reliable was not plain error. NRS 200.366.
3. Criminal Law; Rape.
Convictions of defendant, who claimed no recollection of crimes due to substantial alcohol intake, for sexual assault of child under
age of fourteen and child abuse by sexual abuse causing substantial mental harm, were supported by evidence that defendant left bar
with time to assault victim, that victim's description of assailant's clothes was similar to clothes worn by defendant, that defendant
lived near victim, testimony of witnesses that they saw someone resembling defendant stumbling near victim's residence at
approximate time of crimes, evidence that defendant's deoxyribonucleic acid (DNA) matched that in semen collected from victim's
underwear, and that chance of match was either one in 10,000, or one in three million, depending on which test was relied on. NRS
200.366, 200.508, 432B.100.
4. Double Jeopardy.
Convictions for sexual assault of child under age of 14 and child abuse by sexual abuse causing substantial mental harm violated
double jeopardy as charged. Child abuse conviction required sexual assault as statutorily defined plus resultant physical pain or
suffering, and sexual assault conviction required merely sexual assault as statutorily defined, and thus sexual assault conviction did not
require proof of fact other than those necessary to prove child abuse by sexual abuse. NRS 200.366, 200.508, 432B.100.
5. Criminal Law.
Trial court's use at sentencing of statements in psychiatric report prepared to determine whether defendant is competent to stand
trial violates Fifth Amendment. U.S. Const. amend. 5.
6. Criminal Law.
Trial court's directive at sentencing to defendant who maintained his innocence at trial, that if defendant did not admit his guilt, he
would receive harsher sentence, violated defendant's Fifth Amendment privilege against self-incrimination. U.S. Const. amend. 5.
7. Criminal Law.
Results of second deoxyribonucleic acid (DNA) test conducted after sexual assault trial but prior to sentencing, which indicated
that defendant's deoxyribonucleic acid (DNA) matched that in semen collected from victim's underwear, and that chance of match was
one in 10,000, were admissible for consideration at sentencing in addition to results of first test admitted at trial, which indicated that
defendant matched, and that chance of match was one in three million, even though results of second test were considered without any
evidentiary scrutiny, laying of foundation, or establishment of methods of reliability. Results were submitted by defendant, who had
opportunity to make all such arguments, but failed to do so, and trial court did not give results much weight as they only confirmed
results of first test. NRS 200.366.
113 Nev. 275, 277 (1997) Brown v. State
OPINION
Per Curiam:
Appellant Troy Brown was tried and convicted of sexually assaulting Jane Doe, a
nine-year-old girl.
1
Troy was convicted of two counts of sexual assault of a child under
fourteen years of age, and one count of child abuse by sexual abuse. He was acquitted of one
count of attempted murder. Troy claims on appeal that (1) he was improperly denied bail; (2)
the DNA evidence was improperly admitted because no evidentiary hearing was held; (3)
sufficient evidence did not exist to support his conviction; (4) double jeopardy barred his
convictions for both sexual assault and child abuse by sexual abuse; and (5) the district judge
abused his discretion during the sentencing phase of the trial.
We conclude that the district judge properly denied bail for Troy, that the DNA evidence
was properly admitted at trial, and that sufficient evidence existed to support Troy's
conviction. However, we conclude that Troy's conviction for both sexual assault and child
abuse by sexual abuse violated the double jeopardy provision of the Constitution and that the
conviction for child abuse must be vacated. Finally, we conclude that the district judge
abused his discretion during the sentencing phase of the trial and the case must be remanded
to the district court for a new sentencing hearing on the remaining sexual assault conviction.
FACTS
In the early morning hours of January 29, 1994, Jane Doe was sexually assaulted in the
bedroom of her trailer home at 1637 Pruett Street in Carlin. Jane Doe and her four-year-old
sister were home alone while their mother, Pam, was drinking at a bar, and their step-father,
Wayne, was working the night shift at his job. Troy was arrested, tried, and convicted for the
crime.
On January 28, 1994, before Wayne went to work, Pam received a telephone call from
Raquel Brown. Raquel was married to Trent Brown, Troy's brother. Raquel wanted to know
if Pam would like to join Raquel and Trent at a local bar named CG's for a drink and also to
know if Jane Doe could babysit her children for the approximately one-half hour they
expected to stay at the bar. Pam agreed that Jane Doe could babysit the children for that short
amount of time and at approximately 6:30 p.m. Pam took Jane Doe and her sister over to
Raquel's house located across the street at 1709 Pruett Street.
__________

1
The victim's real name has been changed to protect her identity.
113 Nev. 275, 278 (1997) Brown v. State
located across the street at 1709 Pruett Street. Pam and Raquel then went to CG's to meet
Trent.
Raquel and Trent stayed at CG's for a very short time and returned home at approximately
7:30 p.m. Pam, however, remained at the bar. When Raquel and Trent returned home, all of
the children were watching a movie; when the movie ended at approximately 9:30 p.m.,
Raquel took Jane Doe and her sister back to their trailer. When Jane Doe got back to the
trailer, she attempted to call her mother at CG's to tell her that she and her sister were home,
but the telephone line at CG's was busy. Jane Doe then called the Peacock Bar to see if Pam
was there; Troy, who was drinking at the Peacock Bar, answered the phone. Jane Doe asked
Troy if Pam was there, and Troy stated that he thought that she was at CG's. Jane Doe said
that she was trying to find Pam in order to tell her that she and her sister were home safely,
and Troy said that he would go to CG's to deliver Jane Doe's message. Troy then went to
CG's, but when he arrived, Pam was already talking to Jane Doe on the telephone. Jane Doe
had already informed Pam that she and her sister were home safely.
Pam stated that after she finished talking to Jane Doe, she and Troy went to the Peacock
Bar where they had a drink and played a game of pool. Pam stated that Troy was drunk but
that he behaved like a gentleman and made no sexual advances toward her. Pam stated that
the last time she saw Troy was sometime between 11:00 p.m. and midnight. Pam stated that
at approximately midnight or 12:30 a.m. she received a call at the Peacock Bar from Jane
Doe
2
who told Pam that some man was at the trailer looking for Pam and that the man had
hurt her. Pam immediately left the bar and drove home, which was a short distance away,
where she found Jane Doe covered in blood from the waist down.
Pam called 911, and police officer Michael Terry and the paramedics responded to the
scene at approximately 1:15 a.m. Michael Skinner, an emergency medical technician,
assessed Jane Doe's injuries, and Jane Doe told Skinner that she felt pain in her vaginal area.
While the police and the paramedics were present, Pam stated that her ex-husband had done
this because he had threatened to f
------
[Pam's] daughter in order to get back at [Pam].
Trial testimony indicated that the police attempted to locate Pam's ex-husband, but the results
of their efforts were not admissible at trial because of the hearsay rules.
3
__________

2
The bartender on duty stated that the call actually came just before 1:00 a.m.

3
The implication from the permitted testimony was that the police had determined that the ex-husband had a credible alibi and was
not involved in the assault.
113 Nev. 275, 279 (1997) Brown v. State
Jane Doe was taken to the hospital where it was confirmed that she had been penetrated
both vaginally and anally. Jane Doe had lost about fifteen percent of her blood and required a
vaginal reconstruction. She also had bruises on her neck and had scratches on her face. A
sexual assault kit was taken at the hospital, which included a vaginal smear (because sperm
was present) and a blood sample. Debris was also collected from Jane Doe's teeth because she
stated that she had bitten her assailant.
Jane Doe described to Connie Walker, a police officer specialized in questioning child
victims, what had happened in the trailer. The interview took place in the early morning hours
of January 29, 1994, shortly after the sexual assault had occurred, and a second interview
took place on February 1, 1994. Jane Doe stated that she fell asleep with a night light on, but
that the man who assaulted her must have turned it off because it was off when the man left.
Jane Doe said that the man touched her butt and then put his thingy into her vagina. She
also stated that the man placed his fingers into the front and back of her. Jane Doe
described the assailant as follows: he did not wear a hat and had blonde or sandy-colored hair
which was curly at the bottom and thinning on top; she thought he had a small moustache; he
was wearing dark jeans, a black jacket with a zipper for sure, a western type shirt, boots,
and a watch which scraped her face. At the trial, Jane Doe had difficulty remembering the
details of what had happened and stated that what she had told Walker at the interviews was
probably correct.
When pressed by police to tell who the assailant reminded her of, Jane Doe stated Troy,
and when the police said, Who?, Jane Doe said, Trent. Yes, Trent. Jane Doe stated that
Trent was Raquel's husband, Trent Brown. Jane Doe also stated that the assailant's hair
looked like Troy's but then changed her mind and said that the hair looked like Trent's hair.
Finally, Jane Doe stated that the assailant smelled like cologne but that it was an awful
smell, and that it was gross smelling . . . [like] beer or puke or something. Jane Doe was
shortly thereafter admitted to a hospital where she stayed for twelve days and was diagnosed
with post-traumatic stress disorder.
By the late hours of January 28, 1994, Troy was very intoxicated. He testified that he had
been drinking steadily at several different bars and had consumed ten shots of hard liquor,
each followed by a beer chasera total of twenty drinks. Testimony indicated that on the
night in question, Troy was wearing dark jeans, a cowboy hat, a black satin jacket with a CG's
logo on the back, and boots. Troy stated that he did not wear a watch and therefore did not
know what time he had left the Peacock Bar. The bartender on duty stated that Troy left the
bar no later than 12:20 a.m.
113 Nev. 275, 280 (1997) Brown v. State
12:20 a.m. However, another bartender, whose shift had ended but who was still at the
Peacock Bar, stated that she believed that she had seen Troy at the bar at approximately 1:30
a.m.
Troy stated that he had left the bar and walked to his trailer on 1717 Pruett Street,
approximately ten trailers away from Jane Doe's. Troy stated that because he was so
intoxicated, he vomited several times on his way home and some of the vomit got on his
pants and shirt. He also stated that because he was going on a one week trip to Utah later in
the day on January 29, 1994, he needed all of his clothes which, other than the ones he was
wearing, were packed. He washed the pants and shirt he was wearing when he got home
because he had vomited on them. Travis Brown, Troy's younger brother, testified that he was
sleeping on the couch at Troy's trailer and woke up when Troy got home. Travis stated that he
then looked at his digital clock, and it read 1:32 a.m. Travis stated that he saw no traces of
blood anywhere in the house.
At 5:00 a.m. on January 29, 1994, Officer Terry went to Troy's home to question him
about the sexual assault. Terry awoke and questioned Troy, who was wearing only boxer
shorts. Officer Terry stated that he saw no blood on Troy. He also stated that he checked
Troy's hands because Jane Doe had told him that she had bitten her assailant's hand, but he
found no evidence of any bite marks. Terry also stated that he looked at Troy's boots and saw
no blood. After Troy left to go to Utah, the police went back with a search warrant and took
Troy's bedding. Troy called the Carlin police to see if he was wanted for arrest, and he was
told that he was not. While in Utah, Troy went to a nurse to get a full body examination
because Jane Doe had stated that she had bitten and scratched her assailant, and Troy wanted
a record of his condition.
Dave Prescott, another of Troy's friends living in Troy's trailer, testified that he had asked
Troy on January 29, 1994, whether Troy was involved with the crime and that Troy had
answered that he wished that he could remember what had happened. Troy testified that he
had told Prescott that he wished that he could remember what time he got home.
Because rumors persisted about Troy's involvement in Jane Doe's assault, Troy voluntarily
went in for questioning at the Carlin Police Department on February 3, 1994. Troy gave the
police the black satin coat and black cowboy hat that he was wearing on the night of the
crime. Troy repeatedly denied involvement in the crime, even though the interrogating
officers implied that they had found Troy's fingerprints in Jane Doe's bedroom. In actuality,
Troy's fingerprints were not found anywhere in Jane Doe's trailer, and the one fingerprint that
was located on the night light in Jane Doe's room did not match Troy's.
113 Nev. 275, 281 (1997) Brown v. State
located on the night light in Jane Doe's room did not match Troy's.
While in a foster home several days after the assault, Jane Doe saw a television report of
Troy's arrest and stated that she knew that the man on television was her assailant. Walker
and police officer Roy Ladd went to the foster home; Jane Doe told Walker that the man on
television had attacked her and had also sent her flowers. However, the card attached to the
flowers was signed by Trent and Raquel, not Troy. Additionally, Ladd showed Jane Doe a
photo lineup which included Troy's picture and several other people Jane Doe did not know;
Jane Doe was unable to identify her assailant from the pictures Ladd showed her.
At trial, the defense called Madonna and Jay Doke as witnesses. They testified that at 1:05
a.m. on January 29, 1994, they were picking up their children from the babysitter's house on
Pruett street near Jane Doe's trailer. Madonna stated that as they neared the babysitter's house,
she saw a man wearing a black cowboy hat, a black satin jacket, and dark jeans staggering
down the middle of the road. She also stated that the man's jacket had a fluorescent green
emblem on the back that looked like a skull or bandit. Jay testified that the man wore the
same clothes that Madonna had described and also stated that the emblem on the back of the
man's jacket was bright green. Testimony indicated that Troy's CG's jacket had an orange and
yellow emblem on the back.
Troy voluntarily surrendered to the police and was arrested on or about February 7, 1994.
On February 28, 1994, Troy stipulated to his commitment to the Lakes Crossing facility for a
psychiatric evaluation. After approximately two months, Troy was found competent to stand
trial and was returned for trial. Bail had not been set prior to Troy being sent to Lakes
Crossing, and after he returned from Lakes Crossing, bail was set at $200,000. Troy's bail was
later reduced to $100,000. Troy was charged with one count of sexual assault on a child under
the age of fourteen resulting in substantial bodily harm by placing his penis into Jane Doe's
vagina (Count I), one count of sexual assault on a child under the age of fourteen by placing
his penis into Jane Doe's rectum (Count II), one count of attempted murder for trying to
strangle or choke Jane Doe (Count III), and one count of abuse or neglect of a child less than
eighteen years old resulting in substantial bodily harm by forcibly penetrating Jane Doe's
vagina and/or rectum (Count IV). Troy's trial commenced on September 27, 1994.
Marie Fassett, a criminalist in the Washoe County Sheriff's Office, examined evidence
collected by the police for the presence of bodily fluids, including blood and semen, and
stated that she found semen on Jane Doe's underwear and in the contents of the sexual
assault kit.
113 Nev. 275, 282 (1997) Brown v. State
she found semen on Jane Doe's underwear and in the contents of the sexual assault kit. She
also examined Troy's boots and found no blood on the boots. However, Fassett stated that she
did not examine pubic hairs found in a fleece jacket recovered from Jane Doe's room because
her laboratory conducted hair exams only if there was an absence of biological evidence,
which she said was not the situation in this case. She also stated that she did not examine
Troy's bedding for the presence of hair, fiber, or bodily fluids because she was informed that
Troy never went to bed the night of the assault; however, Terry stated that Troy was still in
bed when he woke Troy at 5:00 a.m. on January 29, 1994. Fassett stated that she did not
examine the bedding and other evidence because the DNA evidence against Troy was
overwhelming.
At trial, Renee Romero testified that she had conducted a DNA test on stains found on
Jane Doe's underwear. Romero explained in detail what DNA is and how it is tested. Romero
testified that the DNA sample tested from Jane Doe's underwear matched Troy's and that only
1 in 3,000,000 people had the same DNA code as the one tested. Troy's counsel
cross-examined Romero regarding how she conducted the tests, the amount of DNA required
to run the tests, and the databases against which the DNA tests were compared to determine
the statistical probability that others would have the same DNA code. However, Troy's
counsel did not call his own expert DNA witness even though the court provided funds for
such a witness.
At the conclusion of trial, Troy was found guilty of Counts I, II, and IV and was acquitted
of Count III, the attempted murder charge. The jury sentenced Troy to life in prison with the
possibility of parole (after serving ten years) for Count I. The district judge imposed
sentences for Counts II and IV.
4
At the sentencing hearing, the district judge stated that he was going to make a record of
the events so that everyone would know exactly what transpired during the proceeding. While
making the record, the district judge specifically stated that he was going to consider Troy's
psychiatric reports from Lakes Crossing. The district judge stated that he was reviewing the
reports because Troy and his family felt that Troy was wrongfully convicted and that they
were the victims in the case.
__________

4
In 1994, NRS 200.366(3) stated:
The trier of fact in a trial for sexual assault shall determine whether substantial bodily harm has been inflicted on the victim in
connection with or as part of the sexual assault, and if so, the sentence to be imposed upon the perpetrator.
Because the jury determined that Brown was guilty of Count Isexual abuse resulting in substantial bodily harmit was authorized to
impose a sentence for that count. However, the district judge retained the authority to sentence Brown for Counts II and IV.
113 Nev. 275, 283 (1997) Brown v. State
Troy and his family felt that Troy was wrongfully convicted and that they were the victims in
the case. The district judge then mentioned certain portions of the report which highlighted
the dysfunctionality of Troy and his family.
Before sentencing Troy on Counts II and IV, the district judge informed Troy that it was
going to make a big difference in the length of the sentence whether Troy was finally going
to admit his guilt or if he was going to maintain his innocence. Furthermore, the district judge
considered additional DNA testing performed after Troy was found guilty; apparently, Troy's
family was not convinced of Troy's guilt and had more DNA tests performed with the district
judge's permission. The results of the second DNA test showed that the semen taken from
Jane Doe's vaginal swab matched Troy's and that only 1 in 10,000 people had similar DNA.
The district judge stated that the additional results confirmed what he already knew from the
trialthat Troy was guilty. After Troy again maintained his innocence, the district judge
sentenced Troy to the maximum penalty, which was life in prison with the possibility of
parole after ten years for Count II and twenty years in prison for Count IV. All of Troy's
sentences were imposed consecutively.
Troy now appeals his conviction and sentence.
DISCUSSION
The district court's denial of Troy's bail did not warrant reversal of the convictions
[Headnote 1]
Troy was held without bail from February 7, 1994, until May 2, 1994, because the justice of the peace, following the district attorney's
recommendation, refused to set bail. The State has acknowledged that the justice of the peace erred by not setting bail immediately.
In State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948), this court addressed the issue of erroneously holding a defendant without bail. In
Teeter, the defendant was held without bail for the entire proceedings, and this court concluded that the denial of bail substantially affected
the validity of the judgment because:
1. It operated to curtail and restrict, as counsel for defendant has urged, the opportunity of defendant to prepare properly for
trial.
2. A defendant, if he appears for trial as a prisoner in the custody of officers, is in a less favorable position than a defendant
on bail. He is not only handicapped by embarrassment and humiliation, but there is some probability, at least, that that sort of
appearance may make an unfavorable impression upon the jurors, to which risk one clearly entitled to bail, as
was defendant here, should not be required to be subjected, until his guilt has been proved.
113 Nev. 275, 284 (1997) Brown v. State
impression upon the jurors, to which risk one clearly entitled to bail, as was defendant
here, should not be required to be subjected, until his guilt has been proved.
3. There is also the probability that denial of bail, published in the newspapers as
was done in the instant case, may make upon the public mind generally an impression
that the state's case against defendant is strong, or bail would have been allowedthat
is, that the proof must be evident and the presumption great of his guiltand that such
impression may infiltrate into the mental consciousness of jurors.
Id. at 609, 200 P.2d at 670.
Applying the Teeter factors, we conclude that Troy's being held without bail did not
substantially affect the judgment such that reversal of the convictions is warranted. First,
from February 28 to May 2, which comprised most of the time that Troy was held without
bail, Troy was confined to Lakes Crossing for a psychiatric evaluation. Therefore, if bail had
been granted, Troy still would have had to stay in Lakes Crossing; Troy even admits that
during his time at Lakes Crossing he was not prejudiced by his lack of bail setting.
Furthermore, Troy did not allege any substantial interference with the preparation of his
defense while he was being held without bail, other than the fact that his attorney did not
engage in trial preparation during Troy's stay at Lakes Crossing. However, this lack of
preparation cannot be attributed to Troy's being held without bail. Second, Troy was granted
bail before the trial began and therefore did not appear before the jury while in custody.
Finally, Troy presented no evidence that his being held without bail was published in the
media such that it may have infiltrated into the consciousness of the jurors.
Therefore, we conclude that the district judge's denial of bail did not substantially affect
the judgment such that reversal of the convictions is warranted.
The district court did not err in admitting DNA evidence
[Headnote 2]
Troy argues that the district judge erred in not conducting a pretrial hearing to determine whether the DNA results were trustworthy
and reliable. However, Troy made no objection to either the lack of a pretrial evidentiary hearing or to qualifying Romero as an expert
witness on DNA evidence. Failure to object in the district court precludes consideration of the issues on appeal; however, this court may
address plain error sua sponte. Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992). Because we conclude that the failure to
conduct an evidentiary hearing was not plain error, we will not consider this issue.
113 Nev. 275, 285 (1997) Brown v. State
Sufficient evidence existed to convict Troy
[Headnote 3]
The standard of review for sufficiency of the evidence upon appeal is whether the jury, acting reasonably, could have been convinced
of the defendant's guilt beyond a reasonable doubt. Kazalyn v. State, 108 Nev. 67, 71, 825 P.2d 578, 581 (1992). We conclude that a jury,
acting reasonably, could have been convinced of Troy's guilt beyond a reasonable doubt.
Testimony indicated that Troy left the bar around 12:15 a.m., that Troy lived relatively close to the bar, and that Troy lived very close
to Jane Doe. Troy had enough time to get from the bar to Jane Doe's house and to assault Jane Doe before she made the telephone call to
her mother at approximately 1:00 a.m. While Jane Doe could not identify her assailant, her description of his clothing was similar to what
Troy was wearing; she also said that her assailant smelled like beer or vomit and testimony indicated that Troy had been drinking beer and
had vomited several times that night. Furthermore, testimony indicated that Troy got home at approximately 1:30 a.m., which gave him
enough time to assault Jane Doe. Additionally, the Dokes testified that they saw someone resembling Troy in a black jacket and black hat
stumbling in the road near Jane Doe's house at 1:05 a.m. Troy also washed his pants and shirt when he got home, arguably to remove the
blood evidence from his clothes. Finally, the DNA evidence indicated that semen collected from Jane Doe's underwear matched Troy's and
that only 1 in 3,000,000 other people had matching DNA (the second DNA test indicated that 1 in 10,000 people had matching DNA).
The district court erred in separately sentencing Troy for sexual assault of a child and child abuse by sexual abuse because such
sentences violate the constitution's double jeopardy clause
[Headnote 4]
Troy was convicted of Counts I and II, which were for sexual assault on a child under fourteen years of age, pursuant to NRS 200.366.
According to NRS 200.366, sexual assault on a child under fourteen years of age is defined as follows:
A person who subjects another person [under the age of fourteen] to sexual penetration . . . against the victim's will or under
conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or
understanding the nature of his conduct, is guilty of sexual assault.
NRS 200.366(1). Separate penalty enhancements exist dependent upon whether the sexual assault causes substantial bodily harm or not.
NRS 200.366(2)(a) and (b).
113 Nev. 275, 286 (1997) Brown v. State
Child abuse is defined as follows in NRS 200.508:
1. A person who:
(a) Willfully causes a child who is less than 18 years of age to suffer unjustifiable
physical pain or mental suffering as a result of abuse or neglect . . .
is guilty of a gross misdemeanor unless a more severe penalty is prescribed by law
for an act or omission which brings about the abuse, neglect or danger.
. . . .
3. As used in this section:
(a) Abuse or neglect means physical or mental injury of a non-accidental nature,
sexual abuse, sexual exploitation
. . . .
NRS 432B.100 states that sexual abuse includes acts upon a child constituting:
1. Incest under NRS 201.180;
2. Lewdness with a child under NRS 201.230;
3. Annoyance or molestation of a child under NRS 207.260;
4. Sado-masochistic abuse under NRS 201.262;
5. Sexual assault under NRS 200.366;
6. Statutory sexual seduction under NRS 200.368; and
7. Open or gross lewdness under NRS 201.210.
(Emphasis added.)
The prosecution's charging document claimed that Troy had committed child abuse in that
he had caused Jane Doe to suffer mental and physical pain by virtue of his sexual abuse, to
wit: he forcibly penetrated Jane Doe's vagina and/or anus. Therefore, the prosecution actually
charged Troy with child abuse pursuant to NRS 200.508 by virtue of his sexual assault as
defined by NRS 200.366. Given the definition of sexual abuse in NRS 432B.100, this is the
only reasonable interpretation of what the prosecutor claimed constituted the sexual abuse.
To determine whether Troy's convictions for sexual assault and child abuse by sexual
abuse/sexual assault are barred by the double jeopardy provisions of the state and federal
constitutions, this court must apply the test from Blockburger v. United States, 284 U.S. 299,
304 (1932), which states: [W]here the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the other does
not.
5
__________

5
We have earlier stated that we must also consider the statute's legislative history to see if the legislature intended for the defendant to
receive separate
113 Nev. 275, 287 (1997) Brown v. State
Applying the Blockburger test, we conclude that Troy's conviction for both sexual assault
and child abuse by sexual abuse/sexual assault was improper. As charged in this case, child
abuse by sexual abuse requires a sexual assault pursuant to NRS 200.366, plus resultant
physical pain or mental suffering; sexual assault requires only those elements present in NRS
200.366. Therefore, a conviction for sexual assault does not require proof of a fact other than
or additional to any facts necessary to prove child abuse by sexual abuse/sexual assault. In
every case such as this one, the child abuse by sexual abuse/sexual assault cannot occur
without the sexual assault, and therefore, the sexual assault becomes an element of child
abuse by sexual assault. Given this analysis, Blockburger mandates that Troy cannot be
convicted of both child abuse by sexual abuse/sexual assault and sexual assault. See also
Meador v. State, 101 Nev. 765, 771, 711 P.2d 852, 856 (1985) (applying Blockburger and
concluding that double jeopardy barred appellant's convictions for both lewd acts with a child
and sexual assault because proof of a lewd act did not require proof of a fact distinct from the
elements of sexual assault since a lewd act necessarily occurred during the sexual assault).
Double jeopardy bars one of the convictions, and we therefore vacate the conviction for
child abuse and maintain the convictions for sexual assault. The underlying crime at issue
was the sexual assault, and while the child abuse count required proof of an extra element,
i.e., that the sexual assault caused physical pain and mental suffering, the extra element did
not transform the child abuse charge into the greater crime at issue.
The district court abused its discretion in sentencing appellant
We conclude that the district court abused its discretion in sentencing Troy by (1) using
the Lakes Crossing psychological reports as a basis for the sentence and (2) imposing a
harsher sentence because Troy maintained his innocence and refused to admit his guilt.
However, we conclude that the district court did not abuse its discretion in referring to the
post-guilt-phase DNA testing and results.
A sentencing judge is allowed wide discretion in imposing a sentence; absent an abuse of
discretion, the district court's determination will not be disturbed on appeal. Randell v. State,
109 Nev. 5, 8, 846 P.2d 278, 280 (1993). [I]f the judge relies upon prejudicial matters, such
reliance constitutes an abuse of discretion that necessitates a resentencing hearing before a
different judge."
__________
sentences for the same conduct. Talancon v. State, 102 Nev. 294, 298-99, 721 P.2d 764, 767 (1986) (citing Missouri v. Hunter, 459 U.S.
359 (1983)). The legislative history of the statutes at issue gives no indication of whether the legislature authorized separate sentences for
sexual assault and child abuse by sexual abuse arising from the same conduct.
113 Nev. 275, 288 (1997) Brown v. State
tion that necessitates a resentencing hearing before a different judge. Castillo v. State, 110
Nev. 535, 545, 874 P.2d 1252, 1259 (1994).
The district court's consideration of the Lakes Crossing psychological report was an abuse of
discretion
[Headnote 5]
On February 28, 1994, Troy stipulated to his commitment to Lakes Crossing for psychological evaluation. The court ordered Troy
committed to Lakes Crossing to determine whether he was competent to stand trial, was of sufficient mentality to be able to aid and assist
in his defense, and was legally sane at the time of the alleged crime.
At the sentencing hearing, the district judge reviewed Troy's psychological reports generated at Lakes Crossing and stated that he was
going to consider those reports during sentencing. Based on the Lakes Crossing psychological reports, the district judge stated the
following: he believed that Troy was a victim, not because he was falsely accused, but because his parents subjected him to abuse and
neglect all of his life; Troy had been convicted of driving under the influence of alcohol two times, and Troy believed the sheriff was trying
to pick on him and make an example out of him; Troy was taken for psychological evaluations years earlier because his parents were
concerned about his violent behavior when he was intoxicated; according to the psychological test administered at Lakes Crossing, Troy
was defensive and unwilling to acknowledge psychological problems, was immature, egocentric, moody, and insecure, had a poor
self-concept and a lack of self-confidence, and was likely to act out sexually; Troy grew up in a dysfunctional family in which
alcoholism, domestic violence, and child abuse were present.
We conclude that the district court's consideration of the Lakes Crossing psychological reports was an abuse of discretion. In Estelle v.
Smith, 451 U.S. 454 (1981), the United States Supreme Court concluded that the testimony of a psychiatrist who evaluated a criminal
defendant for purposes of competency was improperly used during the penalty phase of a trial. During the penalty phase, the psychiatrist
testified regarding information he learned through the psychological examination, stating among other things that the defendant was a
sociopath whose condition would only get worse, that the defendant would continue his behavior, and that the defendant had no regard for
other human beings' lives. Id. at 459.
The jury imposed the death penalty, but the United States Supreme Court reversed the sentence on the grounds that the defendant was
entitled to the protection of the Fifth Amendment at the court ordered psychiatric interview and was not apprised of his
right to remain silent.
113 Nev. 275, 289 (1997) Brown v. State
at the court ordered psychiatric interview and was not apprised of his right to remain silent.
Id. at 462. This protection existed even though the psychiatrist's testimony was used only for
purposes of punishment and not guilt, because
[a]ny effort by the State to compel respondent to testify against his will at the
sentencing hearing clearly would contravene the Fifth Amendment. Yet the State's
attempt to establish respondent's future dangerousness by relying on the unwarned
statements he made to [the psychiatrist] similarly infringes Fifth Amendment values.
Id. at 463 (footnote omitted).
Nevada cases have utilized a similar analysis. In Esquivel v. State, 96 Nev. 777, 617 P.2d
587 (1980), this court stated that it was improper for the prosecution to impeach a defendant
with statements the defendant made during a court ordered mental examination. Id. at 778,
617 P.2d at 587. A defendant should feel free in a clinical climate to discuss all relevant facts
without fear that those statements may be used against him later; [f]air play dictates nothing
less. Id.
In McKenna v. State, 98 Nev. 38, 639 P.2d 557 (1982), this court reversed McKenna's
sentence when the prosecutor presented substantive evidence from a psychiatrist who testified
that McKenna had admitted during a court ordered psychological examination that he had
murdered the victim. This court, citing Esquivel, reversed the conviction, stating that it was
unfair for the State to appoint a psychiatrist to examine an accused and then employ the
confidential contents of that psychiatric interview to obtain a conviction. Id. at 39, 639 P.2d at
558; see also Winiarz v. State, 104 Nev. 43, 752 P.2d 761 (1988).
Even though these Nevada cases only address the use of a court ordered psychiatrist's
testimony in the guilt phase, the United States Supreme Court has stated that it could discern
no basis to distinguish between the guilt and penalty phases of . . . trial so far as the protection
of the Fifth Amendment privilege is concerned and that it is improper to use such psychiatric
testimony at either the guilt phase or the penalty phase. Estelle, 451 U.S. at 462-63. We
realize that Estelle, Esquivel, and McKenna all concerned the use of the psychological reports
in the penalty phase of a first degree murder case and that the instant case concerns the use of
such reports in the sentencing hearing of a non-first-degree-murder case; however, the
rationale from those cases applies here. See Pens v. Bail, 902 F.2d 1464, 1466 (9th Cir. 1990)
(in a rape case, unwarned statements given in a psychiatric evaluation about other offenses
could not be used to enhance a sentence); State v. Valera, 848 P.2d 376, 382 (Hawaii 1993)
{"the use at sentencing of statements previously obtained in violation of a defendant's
privilege against self-incrimination violates that defendant's privilege against
self-incrimination").
113 Nev. 275, 290 (1997) Brown v. State
1993) (the use at sentencing of statements previously obtained in violation of a defendant's
privilege against self-incrimination violates that defendant's privilege against
self-incrimination). Pursuant to this case law, we conclude that the district judge abused his
discretion and that Troy is entitled to a new sentencing hearing. The district judge ordered the
psychological examination of Troy and then relied on the conclusions of that exam, including
his unwarned statements to the psychiatrist, to determine that Troy was likely to act out
sexually and that he was not falsely convicted. Such consideration of the reports violates the
fair play rules set forth in Esquivel and McKenna and the Fifth Amendment concerns set
forth in Estelle, and constitutes reversible error.
The district court's imposition of a harsher sentence because Troy maintained his innocence
and refused to admit his guilt was an abuse of discretion
[Headnote 6]
During the sentencing hearing, the district judge informed Troy that he was convinced of his guilt and that he believed that Troy's
continual declaration of innocence merely enabled Troy to face his parents. The district judge stated that he could show Troy no mercy if
Troy continued to profess his innocence and also implied that he was going to give Troy consecutive sentences if Troy did not state that he
was guilty and explain his involvement in the events on January 29, 1994. The district judge stated that he was going to take a thirty minute
recess so that Troy's counsel could explain [to Troy] the significance of what the district judge was trying to convey, and concluded by
stating:
If you are going to continue this status as a victim, if you are not man enough now, and this is not just going to hurt you, it's
going to hurt the lives of your brothers, your two brothers' families, your other siblings, and your parents, particularly your mother,
who I think has been a victim of a lot of things, like you have, too. . . .
I'm offering you the opportunity to be a man, and to explain exactly what happened that night, and to get it off your shoulders
morally, spiritually, and every other way, and to take the burden off your parents' shoulders. I will show you pity if you do that.
But if you're going to beif you show no remorse, if you are unable to be reformed because of your attitude, then I cannot show
you any pity.
The court then took a thirty minute recess. When the court reconvened, the district judge asked Troy if he was guilty of the crime,
and Troy stated, "No sir, I'm not."
113 Nev. 275, 291 (1997) Brown v. State
crime, and Troy stated, No sir, I'm not. After hearing testimony from Troy's mother, the
district judge asked Troy if he had anything to say to the court, and Troy responded:
Just that I know that I'm not guilty. I know there was evidence presented thatthat
convinced 12 honest people of this community that I was, and all I'd like to say is
II'm not guilty.
The district judge then sentenced Troy to the maximum penalty on Counts II and IV and
ordered those sentences to run consecutively.
In Bushnell v. State, 97 Nev. 591, 637 P.2d 529 (1981), the district judge based his
sentence on the fact that the appellant maintained his innocence. In overturning appellant's
sentence, this court stated:
[Appellant] had not waived his right to remain silent. A defendant retains his Fifth
Amendment rights after a jury verdict because the appellate process is still open to him.
Imposition of a harsher sentence based upon the defendant's exercise of his
constitutional rights is an abuse of discretion and the sentence cannot stand.
Id. at 593, 637 P.2d at 531 (citations omitted); see also Thomas v. State, 99 Nev. 757, 758,
670 P.2d 111, 112 (1983) (citing Bushnell and concluding that in relying on the fact that the
appellant had refused to admit his guilt, the district court abused its discretion in determining
a sentence).
The Fifth Amendment states that no person shall be compelled in any criminal case to be
a witness against himself. The district court violated Troy's Fifth Amendment rights by
considering his lack of remorse when he still had a constitutional right to maintain his
innocence and by threatening to impose a harsher sentence if Troy refused to admit his guilt.
Troy was unable to express remorse sufficient to satisfy the judge without foregoing his right
to not incriminate himself, and the fact that he took the stand at trial does not change this
analysis because Troy maintained his innocence. As such, requiring Troy to either express
remorse or receive a harsher sentence violated Troy's Fifth Amendment rights and constituted
an abuse of discretion. See Bushnell, 97 Nev. at 593, 637 P.2d at 531 (stating that
[i]mposition of a harsher sentence based on the defendant's exercise of his constitutional
rights is an abuse of discretion).
Therefore, we conclude that the district judge abused his discretion in relying on the fact
that Troy refused to admit his guilt when it imposed Troy's sentence, and that Troy should
receive a new sentencing hearing.
113 Nev. 275, 292 (1997) Brown v. State
The district court's reference to the post-trial DNA testing was not an abuse of discretion
[Headnote 7]
After the trial but before the sentencing hearing, defense counsel approached the court with a request to allow additional independent
DNA testing to give Troy's parents peace of mind about the results of the trial. After discussing the matter with the prosecution and the
defense, the district judge appropriated funds for the additional testing. The additional DNA test confirmed that the fluids taken from Jane
Doe's underwear matched Troy's DNA and further showed that only 1 in 10,000 people had DNA matching that present in the tested fluids
(the DNA test at trial indicated that only 1 in 3,000,000 people had matching DNA). The district judge stated that the result of this
additional test was simply just further proof of what we already knew from the first DNA testing, that this vicious crime was committed by
Troy Don Brown.
In Goodson v. State, 98 Nev. 493, 495-96, 654 P.2d 1006, 1007 (1982), this court stated that an abuse of discretion will be found
when the defendant's sentence is prejudiced from consideration of information or accusations founded on impalpable or highly suspect
evidence. We conclude that the district court did not abuse its discretion in considering the additional DNA tests. Troy's counsel requested
the DNA tests and even picked the laboratory which performed the test. Troy now contends that the tests were considered without any
evidentiary scrutiny, laying of foundation, or establishment of methods of reliability. However, Troy placed the evidence before the court,
had an opportunity to make all of the above-mentioned arguments, and failed to do so. Furthermore, it does not appear that the district
judge gave much weight to the test results because he stated that the results only confirmed what he already knew, i.e., that Troy was guilty.
Based on these reasons, we conclude that it was not an abuse of discretion for the district judge to consider the additional DNA test results
at the sentencing hearing.
CONCLUSION
The district court's failure to set bail immediately was not so prejudicial to Troy that it constituted reversible error. Furthermore, the
DNA evidence was properly admitted at trial, and sufficient evidence existed to convict Troy. However, the double jeopardy clause
precluded Troy from being convicted of both sexual assault and child abuse by sexual abuse/sexual assault, and Troy's conviction for child
abuse must be vacated. Finally, we conclude that the district judge abused his discretion during the sentencing phase of the trial
and the case must be remanded to the district court for a new sentencing hearing on the remaining sexual
assault conviction {Count II).
113 Nev. 275, 293 (1997) Brown v. State
sentencing phase of the trial and the case must be remanded to the district court for a new
sentencing hearing on the remaining sexual assault conviction (Count II).
6
__________

6
____________
113 Nev. 293, 293 (1997) Crump v. Warden
THOMAS WAYNE CRUMP, Appellant, v. WARDEN, NEVADA STATE PRISON,
PETER DEMOSTHENES, Respondent.
No. 27937
February 26, 1997 934 P.2d 247
Appeal from an order of the district court denying petition for writ of habeas corpus. First
Judicial District Court, Carson City; Michael R. Griffin, Judge.
Defendant was convicted in the district court of first-degree murder and robbery and
sentenced to death. Defendant appealed. The supreme court affirmed. Crump v. State, 102
Nev. 958, 716 P.2d 1387 (1986). Defendant petitioned for writ of certiorari in the United
States Supreme Court which was denied. Crump v. Nevada, 479 U.S. 871 (1986). Defendant
filed petition for post-conviction relief which was dismissed. Defendant appealed, and appeal
was dismissed. Defendant then sought writ of habeas corpus. The district court denied
petition. Defendant appealed. The supreme court held that: (1) post-conviction petitioner who
has counsel appointed by statutory mandate is entitled to effective assistance of that counsel;
(2) defendant could allege that ineffectiveness of his post-conviction counsel established
cause for his failure to raise certain issues in earlier proceedings; and (3) remand was
necessary so that district court could hold evidentiary hearing to determine whether
post-conviction counsel's failure to raise certain claims in defendant's first post-conviction
petition constituted ineffective assistance.
[Rehearing denied December 17, 1997]
Steven G. McGuire, State Public Defender, and James P. Logan, Deputy, Carson City, for
Appellant.
Frankie Sue Del Papa, Attorney General, and Keith G. Munro, Deputy, Carson City, for
Respondent.
1. Habeas Corpus.
In order to show cause for failure to raise issues in earlier proceedings, habeas corpus petitioner must show
impediment external to the defense which prevented him from complying with state procedural default
rules.
proceedings, habeas corpus petitioner must show impediment external to the defense which prevented him from complying with state
procedural default rules. NRS 34.810(1)(b)(3).
2. Habeas Corpus.
In order to establish prejudice from court's refusal to consider alleged trial errors that could have been raised in earlier
proceedings, habeas corpus petitioner must show not merely that errors created possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting state proceedings with error of constitutional dimensions. NRS 34.810(1)(b)(3).
3. Habeas Corpus.
Once allegation of procedural default or abuse of writ of habeas corpus is made by state, burden than falls upon petitioner to show
that good cause exists for his failure to raise any grounds in earlier petition and that he will suffer actual prejudice if grounds are not
considered. NRS 34.810(1)(b)(3).
4. Criminal Law; Habeas Corpus.
Habeas corpus petitioner, who had counsel appointed to represent him at his first post-conviction proceeding pursuant to statute
mandating appointment of counsel upon proof of indigency, was entitled to effective assistance of that counsel, and thus, petitioner
could allege that ineffectiveness of that counsel established cause for his failure to raise certain issues in earlier proceedings so as to
preclude application of any procedural bar to his habeas petition. U.S. Const. amend. 6; NRS 34.810(1)(b)(3).
5. Criminal Law.
Post-conviction petitioner who has counsel appointed by statutory mandate is entitled to effective assistance of that counsel; this
right does not arise if counsel was appointed pursuant to court's discretion. U.S. Const. amend. 6.
6. Habeas Corpus.
Mere attorney error, not rising to level of ineffective assistance of counsel, such as attorney ignorance or inadvertence, is not
cause for habeas petitioner's procedural default in failing to raise certain issues in earlier proceedings, since attorney is petitioner's
agent when acting, or failing to act, in furtherance of litigation, and petitioner must bear risk of attorney error. U.S. Const. amend. 6;
NRS 34.810(1)(b)(3).
7. Habeas Corpus.
Remand was necessary so that district court could hold evidentiary hearing to determine whether post-conviction counsel's failure
to raise certain claims in habeas petitioner's first post-conviction petition constituted ineffective assistance of counsel, so as to excuse
habeas petitioner's procedural default in failing to raise certain issues in earlier proceedings. U.S. Const. amend. 6; NRS
34.810(1)(b)(3).
OPINION
Per Curiam:
On April 25, 1984, pursuant to a jury verdict, appellant Thomas Wayne Crump (Crump)
was convicted of one count for each of murder in the first degree with use of a deadly weapon
and robbery with use of a deadly weapon. In the penalty phase, the jury found three
aggravating factors and no mitigating circumstances.
the jury found three aggravating factors and no mitigating circumstances. Crump was
sentenced to death.
On direct appeal, we affirmed Crump's conviction and the sentences. Crump v. State, 102
Nev. 158, 716 P.2d 1387 (1986). Crump's petition for a writ of certiorari in the United States
Supreme Court was denied. Crump v. Nevada, 479 U.S. 871 (1986).
On October 28, 1986, Crump filed a proper person petition for post-conviction relief in the
Eighth Judicial District Court. Pursuant to NRS 177.345(1), he was appointed counsel on
November 4, 1986. On April 14, 1987, after an evidentiary hearing, the district court
dismissed Crump's petition. Crump's appeal from the denial of his petition was dismissed.
Crump v. State, Docket No. 18226 (Order Dismissing Appeal, August 31, 1988).
On October 26, 1988, Crump petitioned for a writ of habeas corpus in the United States
District Court, District of Nevada, against respondent Warden, Nevada State Prison, Peter
Demosthenes (the State). That petition was voluntarily dismissed on August 14, 1989.
On August 31, 1989, Crump filed the present petition for a writ of habeas corpus in the
First Judicial District Court. On November 7, 1995, after Crump was afforded numerous
opportunities to amend and supplement his petition, the district court denied it. On December
6, 1995, Crump appealed, arguing that the district court erred by dismissing his petition on
procedural grounds.
We conclude that Crump was entitled to effective assistance of counsel for his first
petition for post-conviction relief. Therefore, we conclude that Crump should have been
permitted to prove whether his post-conviction counsel was ineffective in order to satisfy the
cause element necessary to defeat procedural default of the claims in the present petition
pursuant to NRS 34.810(1)(b)(3). Accordingly, we remand this matter to the district court for
an evidentiary hearing on this issue.
PROCEDURAL FACTS
Background facts
1
On October 4, 1980, the body of Jodie Jameson (Jameson) was discovered in a motel
room bathtub in Las Vegas. Her arms and legs were tightly bound with pantyhose. A loosely
fitting ligature made from thin knotted strips of torn pillowcase fabric was found around
Jameson's neck. An autopsy revealed the cause of death to be ligature strangulation.
__________

1
The background facts are taken from our earlier opinion in Crump v. State, 102 Nev. 158, 716 P.2d 1387 (1986), cert. denied, 479
U.S. 871 (1986).
In a videotaped confession received into evidence during the guilt phase of the trial,
Crump confessed that he killed and robbed Jameson because he believed that she had robbed
him. In his videotaped confession, Crump stated:
I snapped. . . . I didn't have nothin' . . . . I told her she could take [the money] to hell
with her. . . . No crime of murder, of violence is justifiable, but in my estimation it was.
. . . She deserved what she got, I don't feel no remorse over it. . . . I could have obtained
my money without killing her. I just wanted to kill her. . . . It's an eye for an eye. . . . I
premeditated. I knew I was going to kill her and I did.
In a second videotaped confession received into evidence during the penalty phase of his
trial, Crump spoke at length about the multiple crimes he had committed during his life.
Crump confessed he had committed (1) seven murders; (2) seven attempted murders; and (3)
innumerable robberies, assaults and kidnappings. Crump additionally confessed he had
participated in a prison uprising in which a prison guard had been taken hostage and killed.
He had also escaped from a New Mexico jail. In this videotaped confession, Crump stated:
I would escape if you give me the opportunity; time is nothing. . . . Penitentiary time
doesn't affect me at all; If I was to get out of here today, I'd hurt somebody today; and I
would like the death penalty because I deserve it. . . . I don't want to hurt nobody else.
On April 24, 1984, the jury convicted Crump of first degree murder and robbery, both with
use of a deadly weapon. At the penalty phase of Crump's murder conviction, the jury found
three aggravating circumstances: (1) the murder was committed by a person who had a
previous conviction for another murder or felony involving use or threat of violence to
another person; (2) the murder was committed while the person was engaged in the
commission of or flight after committing a robbery; and (3) the murder involved depravity of
mind. The jury found no mitigating circumstances and sentenced Crump to death.
Procedural facts
On May 8, 1984, the district court formally sentenced Crump to death for his first degree
murder conviction. For his robbery with use of a deadly weapon conviction, the court
sentenced Crump to two consecutive fifteen-year prison terms.
Crump appealed his convictions and sentences to this court. On April 9, 1986, this court
affirmed Crump's convictions and sentences.
sentences. Crump, 102 Nev. 158, 716 P.2d 1387. Remittitur issued on May 7, 1986.
On June 6, 1986, Crump filed a petition for writ of certiorari in the United States Supreme
Court. On October 6, 1986, the Court denied the petition. Crump, 479 U.S. 871. On October
16, 1986, the State obtained an execution warrant to be carried out on November 14, 1986.
On October 28, 1986, Crump filed a proper person petition for post-conviction relief in the
Eighth Judicial District Court. Pursuant to NRS 177.345(1),
2
the district court was required to
appoint counsel to represent Crump upon a showing that Crump was indigent. Therefore, on
November 4, 1986, the judge appointed Barbara Schubel (Schubel) to represent Crump.
The court ordered Schubel to file a supplement to the post-conviction petition no later than
November 10, 1986. The court also denied Schubel's motion to stay Crump's execution.
On November 8, 1986, in response to the district court's denial of the motion to stay
execution, Crump filed with this court a petition for a writ of mandamus against Judge
Thompson. At the same time, Crump also filed a writ of habeas corpus in the United States
Federal District Court for the District of Nevada. Prior to this court's disposition of the
mandamus action, the federal district court granted Crump a stay of execution. Consequently,
this court concluded that the mandamus action was moot and denied Crump's petition.
On February 6, 1987, the federal district court dismissed Crump's habeas corpus petition.
The court stated, It is ordered that the above-entitled actions are hereby dismissed without
prejudice to permit the parties to exhaust state remedies.
On April 14, 1987, after conducting an evidentiary hearing on Crump's petition for
post-conviction relief, the Eighth Judicial District Court dismissed Crump's petition. Crump
appealed that decision to this court. On August 31, 1988, this court dismissed Crump's
appeal.
On October 26, 1988, Crump filed another petition for writ of habeas corpus in the
United States District Court for the District of Nevada.
__________

2
In 1986, NRS 177.345(1) provided:
The petition may allege that the petitioner is unable to pay the costs of the proceeding or to employ counsel. If the court is satisfied
that the allegation is true, it shall appoint counsel for him within 10 days of the filing of the petition.
(Emphasis added.) In other words, if the petitioner was indigent, he was entitled to counsel, and the court was required to appoint him
representation.
This statute was amended in 1987 to allow for discretionary appointment of counsel if the petitioner was indigent. In 1993, this statute
was repealed. However, NRS 34.750, which also allows discretionary appointment of counsel to indigent petitioners, is still in effect.
habeas corpus in the United States District Court for the District of Nevada. On October 26,
1988, the federal district court directed Crump to include all grounds for relief of which
Petitioner is aware. The court advised Crump that failure to raise all possible grounds for
habeas corpus relief may result in loss of the omitted grounds under the rules regarding
abuse of the writ. The court further stated that [i]f Petitioner knows of grounds of relief
which have not been exhausted in the state system, the present petition should be voluntarily
dismissed by Petitioner so that Petitioner may exhaust all possible grounds for relief in the
state court before proceeding in federal court. On August 14, 1989, Crump filed a motion to
dismiss his federal petition. On August 31, 1989, the federal district court entered an order
dismissing the petition.
On August 31, 1989, Crump filed a petition for writ of habeas corpus in the First Judicial
District Court. Crump raised two claims of error:
I. Nevada's Statute Aggravating Factor that the offense was committed in an
especially [c]ruel, heinous, or depraved manner is unconstitutionally vague.
II. The Nevada Statute violated [Petitioner's] Sixth Amendment right to a Jury
determination of the elements of an offense by requiring the Judge to make factual
findings regarding aggravating circumstances.
On September 1, 1989, the district court appointed the State Public Defender's Office to
represent Crump. The September 1, 1989 order also stated that [Crump] shall have forty-five
(45) days from the date of this Order to supplement the Petition in accordance with NRS
34.750.
On March 26, 1990, Crump filed a supplement to his petition alleging the following
seventeen grounds of error:
A. [Prior to trial,] Crump did not waive his right to an attorney or a stand-by attorney.
B. The trial court's refusal to grant Crump's motion to continue his capital murder trial
was error.
C. It was error [for the trial court] to require that Crump state reasons for the necessity
of his out of state witnesses.
D. The [trial counsel's] failure to ask the court to remand the proceedings to justice
court for a preliminary hearing was error.
E. The [trial counsel's] failure to seek the recusal of Judge Thompson prior to trial was
error.
F. The [trial counsel's] failure to demand prior notice of the alleged aggravating factors
was error.
G. The [trial counsel's] failure to proffer a jury instruction on the voluntariness issue
was error.
H. The [trial counsel's] failure to raise the issue of the presentation of the Rithchie and
Strickland testimony during the state's guilt phase case-in-chief was error.
I. It was error for [the trial counsel] to fail to request a continuance prior to the penalty
phase of Crump's trial.
J. The [trial counsel's] failure to object to the three aggravating factors presented to the
jury during the penalty phase was error.
1. The depravity of mind and murder during a robbery instructions.
2. The prior murder or violent felony conviction aggravator.
K. Crump did not knowingly waive his right to present evidence in mitigation of the
death penalty.
L. [Appellate and post-conviction] counsel's failure to interview the trial jurors was
error.
M. The [district] court's refusal to appoint an investigator at post-conviction was error.
N. The failure to revolve [sic] the initial conflict of interest was error.
O. The [post-conviction counsel's] failure to move to recuse Judge Thompson from the
post-conviction proceedings was error.
P. Crump did not waive his right to appear at his post-conviction proceedings.
Q. The [trial counsel's] failure to move for a mistrial after Crump was excluded from
the courtroom was error.
On May 17, 1990, Crump filed an addendum to supplement to petition for writ of habeas
corpus, which added an additional claim, stating:
R. The [trial] court's instruction regarding burden of proof at penalty phase shifted the
burden of proof to the defense in violation of the Constitution.
On May 21, 1990, the district court entered an order permitting Crump to file a second
supplement. The order stated that the deadline for this supplement was June 12, 1990.
On July 6, 1994, more than four years after the district court's deadline expired, Crump
filed his second addendum to supplement for writ of habeas corpus. Crump raised the
following five additional claims of error:
S. Trial counsel failed to object to the jury instructions given which improperly defined
reasonable doubt, failed to propose a proper instruction on the subject, and appellate
and post-conviction counsel neglected to pursue this issue.
1. Guilt phase.
2. Penalty phase.
T. Trial counsel failed to object to impermissible instances of prosecutorial misconduct
and was ineffective. In addition, appellate and post-conviction counsel were ineffective
for failing to raise these issues.
1. Guilt phase.
2. Penalty phase.
U. Appellate and post-conviction counsel were ineffective for failing to raise the issue
of whether Crump validly waived his constitutional right to testify during the guilt and
penalty phases of the trial.
V. Nevada's death penalty scheme suffers from numerous constitutional infirmities.
1. Nevada's death penalty statute is unconstitutional as it fails to truly narrow the
categories of eligible defendants.
2. Nevada's death penalty scheme is unconstitutionally vague since it allows the use
of unspecified non-statutory aggravating circumstances.
3. NRS 200.033 plainly states that only the aggravating circumstances set forth in
the statute may be used as aggravating circumstances and evidence at trial should be
restricted to the circumstances.
4. The death penalty is cruel and unusual punishment in all circumstances and is
prohibited by the Eighth Amendment to the United States Constitution.
5. The death penalty is unconstitutional under Article 1, sec. 6 of the Nevada State
Constitution which prohibits cruel and unusual punishment.
W. The petitioner's right to due process was violated by the failure to require the jury
to specify which mitigating circumstances set forth in penalty phase jury instruction no.
11 were considered and rejected since this deprived the defendant of effective appellate
review.
On July 21, 1994, the State filed a motion to dismiss the petition for writ of habeas corpus.
petition for writ of habeas corpus. On August 30, 1994, Crump filed an opposition, to which
the State filed a response. One year later, on August 22, 1995, the district court conducted an
oral argument on the State's motion to dismiss.
On November 7, 1995, the district court ordered dismissal of Crump's petition on
procedural grounds. Specifically, the order stated that
Crump is engaging in endless, needless, piecemeal litigation with his petition for writ
of habeas corpus. Pursuant to NRS 34.810, all of the claims of the instant petition for
writ of habeas corpus are procedurally barred because [the] issues either 1) could have
been raised on direct appeal or in the prior post-conviction proceeding in the Eighth
Judicial District Court or 2) the issues have been raised and decided in the prior
post-conviction relief proceeding.
In this appeal, Crump challenges the district court's denial of his second petition for
post-conviction relief.
DISCUSSION
In dismissing Crump's present petition for a writ of habeas corpus, the district court relied
extensively upon NRS 34.810. In pertinent part, NRS 34.810 states:
1. The court shall dismiss a petition if the court determines that:
. . . .
(b) The petitioner's conviction was the result of a trial and the grounds for the
petition could have been:
(1) Presented to the trial court;
(2) Raised in a direct appeal or a prior petition for a writ of habeas corpus or
post-conviction relief; or
(3) Raised in any other proceeding that the petitioner has taken to secure relief
from his conviction and sentence, unless the court finds both cause for the failure to
present the grounds and actual prejudice to the petitioner.
2. A second or successive petition must be dismissed if the judge or justice
determines that it fails to allege new or different grounds for relief and that the prior
determination was on the merits or, if new and different grounds are alleged, the judge
or justice finds that the failure of the petitioner to assert those grounds in a prior
petition constituted an abuse of the writ.
3. Pursuant to subsections 1 and 2, the petitioner has the burden of pleading and
proving specific facts that demonstrate:
(a) Good cause for the petitioner's failure to present the claim or for presenting the
claim again; and
(b) Actual prejudice to the petitioner. The petitioner shall include in the petition all
prior proceedings in which he challenged the same conviction or sentence.
4. The court may dismiss a petition that fails to include any prior proceedings of
which the court has knowledge through the record of the court or through the pleadings
submitted by the respondent.
(Emphasis added.)
[Headnotes 1, 2]
In order to show cause, a petitioner must show an impediment external to the defense which prevented him from complying with the
state procedural default rules. Passanisi v. Director, Dep't Prisons, 105 Nev. 63, 66, 769 P.2d 72, 74 (1989). In order to establish
prejudice, a petitioner must show not merely that the errors of trial created a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, in affecting the state proceedings with error of constitutional dimensions.' Hogan v. Warden, 109 Nev. 952,
960, 860 P.2d 710, 716 (1993) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
[Headnote 3]
In the motion to dismiss the present petition, the State raised procedural default and abuse of the writ as grounds for dismissal. Once
such an allegation is made by the state, the burden then falls upon the petitioner to show . . . that good cause exists for his failure to raise
any grounds in an earlier petition and that he will suffer actual prejudice if the grounds are not considered. Phelps v. Director, Prisons, 104
Nev. 656, 659, 764 P.2d 1303, 1305 (1988). Accordingly, Crump had the burden of establishing good cause for failing to raise the present
grounds for post-conviction relief in his earlier petition and that he will suffer actual prejudice if the grounds are not considered.
[Headnote 4]
Crump argues that ineffectiveness of his post-conviction counsel, Schubel, establishes cause to preclude the application of any
procedural bar. Crump maintains that Schubel failed to raise all available issues in his first petition and that this constitutes ineffective
assistance of counsel.
At the hearing for the present petition, the district court stated that it did not believe that Crump had a right to effective assistance of
post-conviction counsel. Therefore, the court determined that ineffective assistance could not constitute the cause necessary to prevent
procedural default in this case. We disagree and conclude that Crump was entitled to effective assistance of counsel for
his October 26, 19S6 petition for post-conviction relief.
conclude that Crump was entitled to effective assistance of counsel for his October 26, 1986
petition for post-conviction relief.
In McKague v. Warden, 112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996), we held:
As a matter of statutory interpretation, we note that where state law entitles one to the
appointment of counsel to assist with an initial collateral attack after judgment and
sentence, [i]t is axiomatic that the right to counsel includes the concomitant right to
effective assistance of counsel. [Commonwealth v. Alfred, 561 A.2d 736, 738 (Pa.
1989)]. Thus, a petitioner may make an ineffective assistance of counsel claim if that
post-conviction counsel was appointed pursuant to NRS 34.820(1)(a).

[
3
]
We then concluded that since McKague filed his first post-conviction petition prior to the
enactment of NRS 34.820, that statute and its concomitant right to effective assistance of
counsel did not apply to him.
Here, in 1986, pursuant to NRS 177.345, Schubel was appointed as Crump's counsel for
his prior post-conviction proceeding. At that time, NRS 177.345 mandated appointment of
counsel upon proof that the petitioner was indigent. Crump successfully alleged his
indigence; therefore, the lower court was required to appoint counsel.
4
This is the very
counsel he now alleges was ineffective.
[Headnote 5]
We now hold that footnote 5 in McKague requires that a petitioner who has counsel appointed by statutory mandate is entitled to
effective assistance of that counsel.
5
See also Bejarano v. Warden, 112 Nev. 1466, 929 P.2d 922 (1996). Accordingly, we conclude that
Crump may allege that Schubel, his counsel, provided ineffective assistance because Crump was entitled by state law to be represented by
counsel. Consequently, the district court erred when it determined that Crump did not have a right to effective assistance of counsel.
__________

3
NRS 34.820(1)(a), effective as of January 1, 1993, provides:
1. If a petitioner has been sentenced to death and the petition is the first one challenging the validity of the petitioner's
conviction or sentence, the court shall:
(a) Appoint counsel to represent the petitioner . . . .
(Emphasis added.)

4
See, supra, note 2.

5
This right to effective assistance of counsel arises only if that counsel was appointed pursuant to a statutory mandate. This right does
not arise if the counsel was appointed pursuant to the court's discretion.
[Headnote 6]
The United States Supreme Court held that ineffective assistance of counsel, violative of the Sixth Amendment, constitutes the cause
portion of the test to defeat procedural default. Coleman v. Thompson, 501 U.S. 722, 753-54 (1990); see also Pertgen v. State, 110 Nev.
554, 560, 875 P.2d 361, 364 (1994). However, mere attorney error, not rising to the level of ineffective assistance of counsel, such as
attorney ignorance or inadvertence, is not cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance
of the litigation, and the petitioner must bear the risk of attorney error.' Coleman, 501 U.S. at 753 (quoting Murray v. Carrier, 477 U.S.
478, 488 (1986)).
In Stewart v. Warden, 92 Nev. 588, 589, 555 P.2d 218, 219 (1976), appellant had requested that his attorney raise certain claims of
error for his direct appeal. The attorney, however, neither presented those claims nor offered any reason or explanation for his failure to do
so. This court held that under these circumstances, cause existed for appellant's failure to raise those claims previously. Id.
[Headnote 7]
In the instant matter, Crump merely states that Schubel failed to raise all the present claims in Crump's first petition and that this
constituted ineffective assistance. He does not allege that he specifically told Schubel to raise these claims and she neglected his request,
such as what happened in Stewart. However, after a review of the record, we are unable to determine whether Schubel's failure to raise
these claims earlier amounts to more than attorney ignorance or inadvertence. See Coleman, 501 U.S. at 753. Therefore, we must remand
this matter to the district court for an evidentiary hearing to determine whether Schubel's omissions constitute ineffective assistance of
counsel as set forth in Strickland v. Washington, 466 U.S. 688 (1984), and Warden v. Lyons, 100 Nev. 430, 432, 683 P.2d 504, 505
(1984), cert. denied, 471 U.S. 1004 (1985).
6
If Crump can prove that Schubel committed an error which rises to the level of ineffective assistance, then Crump will have established
cause and prejudice under NRS 34.S10 {1){b){3) to overcome procedural default.
__________

6
To prove a claim of ineffective assistance of counsel, the petitioner must pass a two-prong test. First, he must show that counsel's
performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 690. Second, he must demonstrate actual prejudice;
that is, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. Id. at 694.
34.810(1)(b)(3) to overcome procedural default. See Coleman, 501 U.S. at 753-54.
Because we conclude that an evidentiary hearing is necessary to determine whether
cause and prejudice exists to defeat procedural default, we need not specifically address
Crump's other contentions that the current petition for post-conviction relief is not
procedurally barred. We further hold that Crump's remaining arguments are without merit.
CONCLUSION
For the reasons articulated in this opinion, we remand this case for an evidentiary hearing.
Crump must be given the opportunity to prove that the potential ineffective assistance of his
prior post-conviction petition counsel constitutes the cause and prejudice necessary to
defeat the application of a procedural bar.
7
__________

7
____________
113 Nev. 305, 305 (1997) Browne v. State
JASON EVAN BROWNE, Appellant, v. THE
No. 28378
February 26, 1997 933 P.2d 187
Appeal from a judgment of conviction and sentence of death, pursuant to a jury verdict.
Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
Defendant was convicted in the district court of first-degree murder for beating his wife to
death with baseball bat, and was sentenced to death due to aggravating factor of mutilation.
Defendant appealed. The supreme court, Young, J., held that: (1) opinion of victim's father,
that victim had a bad marriage, was admissible; (2) erroneous admission of victim's
out-of-court statements was harmless; (3) probative value of autopsy photographs was not
substantially outweighed by danger of unfair prejudice; (4) evidence was sufficient to support
first-degree murder conviction; (5) instructions regarding mutilation aggravating factor were
not unconstitutionally vague or overbroad; and (6) evidence was sufficient to support finding
that defendant mutilated victim.
Affirmed.
David M. Schieck, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney
and James Tufteland, Chief Deputy District Attorney and David Schwartz, Deputy District
1. Criminal Law.
Prosecutor did not make improper comments during opening statement in first-degree murder trial when he stated that what
happened to victim was plain and simply a cold-blooded, premeditated murder, murder in the first degree, that victim's home was
turned into a living hell that night, and that the evidence would show that defendant made a decision to take a human life.
2. Criminal Law.
Even if prosecutor made improper comment during opening statement in first-degree murder trial when he referred to defendant as
a selfish and cruel man, such comment did not rise to the level of misconduct requiring reversal.
3. Criminal Law.
Present sense impression exception to hearsay rule did not apply to murder victim's statements to her father concerning prior
physical abuse by her husband, where record did not indicate that victim's statements to father occurred at same time as abuse. NRS
51.085.
4. Criminal Law.
The policy for admitting statements under present sense impression exception to hearsay rule is that the statement is more
trustworthy if made contemporaneously with event described. NRS 51.085.
5. Criminal Law.
Even if district court gives wrong reason for admitting evidence, no reversible error occurs if the evidence is still admissible for
another reason.
6. Criminal Law.
Opinion of murder victim's father, that victim had a bad marriage, was admissible despite fact that it was based on hearsay
statements which victim had made to father, where such statements were used solely as foundation for father's opinion that victim had
bad marriage, father did not reveal substance of such statements, and defense counsel had ample opportunity to cross-examine father
about conversations with victim.
7. Criminal Law.
Murder victim's out-of-court statements that she planned to leave defendant, and that she was afraid defendant was going to kill
her, did not fall under excited utterance exception to hearsay rule, where, although victim was upset, excited, and frightened when she
made statements, record did not indicate how soon statements were made after events which precipitated such reactions. NRS 51.095.
8. Criminal Law.
Trial court's erroneous admission, under excited utterance exception to hearsay rule, of murder victim's out-of-court statements
that she planned to leave defendant and that she was afraid defendant was going to kill her, was harmless, NRS 51.095.
9. Criminal Law.
Probative value of autopsy photographs of murder victim was not substantially outweighed by danger of unfair prejudice, so as to
render photographs inadmissible. NRS 48.035(1).
10. Criminal Law.
Gruesome photographs will be admitted if they aid in ascertaining the truth. NRS 48.035(1).
11. Criminal Law.
Admission of photographs lies within sound discretion of district court, and such admission will not be reversed absent abuse of
discretion.
12. Homicide.
Evidence, including testimony that defendant stopped beating victim, stated that it was now time to call the police, and then
resumed beating, was sufficient to support finding that defendant acted with premeditation, so as to support first-degree murder
conviction.
13. Criminal Law.
Test for sufficiency of evidence upon appellate review is not whether supreme court is convinced of defendant's guilt beyond
reasonable doubt, but whether a jury, acting reasonably, could be convinced to that certitude by evidence it had a right to accept. Court
must determine whether jury acted unreasonably in assessing evidence before it.
14. Homicide.
Trial court's jury instructions in capital murder trial, regarding mutilation aggravating factor, were not unconstitutionally vague or
overbroad, where court instructed that mutilate meant to cut off or permanently destroy limb or essential part of body or to cut off or
alter radically so as to make imperfect, and that mutilation of victim beyond the act of killing was required. U.S. Const. amend. 14;
NRS 200.033(8).
15. Homicide.
Evidence was sufficient to support finding that defendant mutilated murder victim, for purposes of mutilation aggravator
applicable during penalty phase, where defendant struck victim well over 15 severe blows with baseball bat, and physician testified
that any one of those blows could have caused victim's death. NRS 200.033(8).
OPINION
Appellant Jason Evan Browne (Jason) was convicted of first degree murder for beating
his wife, Chantelle Betty Elaine Browne (Chantelle), to death with a baseball bat. He was
sentenced to death due to the aggravating factor of mutilation.
On appeal, Jason contends that certain statements made by the prosecutor during opening
arguments constitute reversible error. He also alleges that certain hearsay statements were
improperly admitted. In addition, he argues that the jury instructions on mutilation were
constitutionally infirm. Lastly, he alleges that the evidence was insufficient to support his
conviction of first degree murder and the death sentence.
evidence was insufficient to support his conviction of first degree murder and the death
sentence.
We conclude that Jason's contentions are without merit and, accordingly, affirm the
conviction and sentence.
FACTS
Jason and Chantelle were married in 1991. They each had children from prior
relationships, and they had a baby together. All together, six children lived with the couple.
On November 5, 1993, the Browne family was visiting their next door neighbors, the
Paynes. There, Jason had two to three bottles of beer. Around 6 p.m., the Browne family and
the Payne children, Jeremy, Nichole, and Scottie, returned to the Browne residence where all
the children were to spend the night. Around 9 p.m., Jason and Chantelle started arguing and
fighting in their bedroom. At this time most of the children were in the living room, either
sleeping or watching television. Shaun, Chantelle's nine-year-old son, heard his mother
scream, He's choking me! She also yelled to Shaun to get Jason out of the house. Shaun
opened the front door and told Jason to leave. Jason refused and Chantelle tried to run out the
door. Jason blocked her way, slamming and locking the door to prevent her from leaving the
house. Jason then dragged Chantelle by her arm along the hallway floor back into their
bedroom. Shaun and Jeremy, the ten-year-old neighbor, attempted to intervene by pulling
Jason and Chantelle apart.
Shaun went into his bedroom and got a baseball bat for himself and then retrieved another
bat from the backyard for Jeremy. The boys returned to the living room to watch television.
At some point in the evening, Jason tried to hug Chantelle and urged her to go out with him.
Chantelle refused and started hitting and screaming at Jason. Jason then suggested they go
into the kitchen to talk; Chantelle agreed.
Shortly thereafter, at around midnight, Shaun heard his mother screaming from the
kitchen, Shaun, get him off of me. He's going to kill me. Shaun ran into the kitchen,
bringing his bat, and saw Jason punching Chantelle in the stomach six or seven times with his
fist. In order to protect his mother, Shaun swung the bat at Jason, but missed. Jason grabbed
the bat and pushed Shaun in the chest until Shaun was forced to release it. Chantelle was
sitting in a kitchen chair when Jason kicked her down to the floor and began hitting her about
the face and head with the bat. Shaun yelled and Jeremy entered the kitchen.
Chantelle attempted to defend herself with her arms until Jason hit her with the bat in the
ribs, and Chantelle's arms fell helplessly to her sides. Jason paused and stated, Now it's time
to call the police."
call the police. Jason then continued to hit Chantelle with the bat as she lay limp on the
floor. Jeremy's, Nichole's, and Scottie's testimony was consistent. Specifically, Jeremy
testified that during the small portion of the beating that he observed, Jason hit Chantelle at
least fifteen times. It is undetermined exactly how many times Jason hit Chantelle throughout
the entire beating.
Jeremy unlocked the front door for Nichole, and most of the children ran out of the house
to the Payne residence next door screaming, He's killing her, he's killing her. Scottie
testified that while observing the beating, at one point he noticed that Jason paused, looked at
Chantelle, and then continued to beat her although she was not moving. Scottie was the last
child to run out of the house.
As Shaun left the house, he looked behind and saw Jason leave the house, get into his car,
and drive away. After the children arrived at the Payne house, Ms. Payne's boyfriend went to
the Browne residence and saw a body lying in the kitchen. He recognized who the body was
only by hair color. Otherwise, Chantelle was unrecognizable.
Officer Robert Tanner was dispatched to the crime scene. Upon arriving at the Browne
house, he went to the kitchen to check Chantelle for any signs of life, but did not find any. He
noticed blood splattered on the floor, ceiling, and walls of the kitchen. He also observed a
baseball bat lying across Chantelle's body.
Officer Robert Mercer found Jason's parked car the next morning. However, Jason was not
present. Approximately an hour later, Jason approached Officer Mercer and indicated that he
was the individual the police were looking for. Jason had dried blood on his clothes and
shoes.
Jason was arrested and indicted by the grand jury for first degree murder. The prosecutor
sought the death penalty based on the aggravating circumstance of mutilation. Jason moved to
strike this aggravator, and an evidentiary hearing was conducted. The district court upheld the
aggravator.
At trial, Chantelle's father, Claude Goode (Goode), testified that within a few days
before her death, Chantelle told him she planned on leaving Jason because she feared he was
going to kill her. Goode also testified that in his opinion, they did not have a good marriage.
Dr. Robert Jordan, the medical examiner, performed the autopsy on Chantelle's body. He
testified that Chantelle suffered significant trauma to her head. Her face was unrecognizable
and had numerous lacerations and facial fractures. He stated the head was one large bruise
due to the swelling and hemorrhaging into the underlying skin. In addition to the numerous
defensive wounds on her arms, Chantelle had a hinge fracture. This type of fracture is the
result of tremendous force applied to the top of the head, transmitting force down the
sides of the skull along the thinner bones to the base of the skull.
of fracture is the result of tremendous force applied to the top of the head, transmitting force
down the sides of the skull along the thinner bones to the base of the skull. The fracture
occurs at the base of the skull, rather than the top. She also had a severe laceration at the top
of her head, exposing her skull, which is consistent with a hinge fracture.
Dr. Jordan testified that there were no real life-like contours to the head. He could not
state which particular blow actually caused death because Chantelle died of multiple blunt
trauma due to an accumulation of blows to her head and face. Dr. Jordan further testified that
Chantelle may have lived for three to five minutes after the trauma began. He stated that
although he could not be certain, it was possible that post mortem injuries existed.
The jury found Jason guilty of first degree murder.
At the penalty hearing, the State presented evidence of Jason's prior acts of violence and
domestic violence. Eight police officers testified to Jason's violent nature. Jason had cut a
prior girlfriend's throat, held a loaded gun to Chantelle's head, beat up Chantelle on several
occasions, attempted to run over Chantelle while her children were in the car, and violently
resisted arrest.
Dr. Jordan further testified at the penalty hearing, explaining Chantelle's injuries and cause
of death. He testified that the brain and face are essential parts of the human body. Chantelle's
head and face suffered considerable destruction and extensive mutilation. He defined
mutilation as something which cannot be recognized for what it is supposed to be. Dr. Jordan
testified that her injuries were a result of overkill; that is, Jason inflicted more trauma than
necessary to cause death.
Jason's sister and brother also testified at the penalty hearing. The sister was not aware of
any violence perpetrated by Jason on his prior girlfriends, other than when Jason once cut a
girlfriend's throat. She was, however, aware of the violence to Chantelle. She stated that
Chantelle was very erratic and jealous, but the couple had attended counseling to work out
their problems. The sister believed they had a good marriage, despite the abuse. However, she
was unaware that Chantelle filed for divorce and obtained restraining orders against Jason.
Jason's brother testified he was unaware that Jason was violent with Chantelle. However,
he was aware of six or seven restraining orders that she had against Jason. He testified that
Chantelle had a bad attitude, was argumentative, and was often the instigator of arguments.
The jury found that Chantelle was mutilated and recommended a sentence of death. The
district court sentenced Jason to death, but granted a stay of execution pending this appeal.
DISCUSSION
1. Prosecutorial misconduct
Jason argues that his conviction should be reversed because the prosecutor made allegedly
improper comments during opening statements. Defense counsel objected to each comment,
and the district judge sustained them. The judge and defense counsel admonished the jury that
the prosecutor's opening statements are not evidence.
[Headnote 1]
The allegedly improper comments were: (1) What happened to Chantelle Browne in 1993, on November 5, 1993 was plain and simply
a cold-blooded, premeditated murder, murder in the first degree; (2) [T]his trial is about a selfish and cruel man; (3) Chantelle's home
was turned into a living hell that night; and (4) The evidence will show that this defendant made a decision to take a human life on
November 6.
In Garner v. State, 78 Nev. 366, 371, 374 P.2d 525, 528 (1962), we held that during opening statements, a prosecutor can outline the
theory of the case and propose facts he intends to prove, as long as he states the facts fairly.
[Headnote 2]
We reviewed the statements Jason opposes and conclude that they do not amount to prosecutorial misconduct. To the contrary, the
prosecutor was merely informing the jury that he intended to prove that the murder was premeditated. The only statement that could
conceivably be considered improper was referring to Jason as a selfish and cruel man; however, we find that this comment did not rise to
a level of misconduct requiring reversal. See Runningeagle v. State, 859 P.2d 169, 173-74 (Ariz. 1993) (holding the prosecutor's comment
about the evil and unspeakable horror perpetrated by the defendant was merely characterizing the evidence); Benson v. State, 802 P.2d
330, 353-54 (Cal. 1990) (holding that the prosecutor's comment, This crime is perhaps the most brutal, atrocious, heinous crime, was
merely a comment on the nature of the offense and was permissible).
2. Hearsay statements
Jason argues that the district court committed reversible error by admitting two sets of hearsay statements. The first concerned Goode's
opinion that his daughter had a bad marriage. Defense counsel objected to Goode's opinion of the marriage, because it was based on his
conversations with Chantelle, rather than on his personal knowledge. The judge overruled the objection, ruling that the present sense
impression exception applied.
that the present sense impression exception applied. See NRS 51.085.
The second set of hearsay statements concern a conversation Goode had with his daughter
a few days prior to her death. Goode testified that Chantelle's voice was quivering and she
sounded upset and despondent. She told him she planned on leaving Jason because she was
afraid he was going to kill her. The judge overruled defense counsel's hearsay objection,
ruling that the excited utterance exception applied. See NRS 51.095.
Goode's opinion about the marriage
[Headnotes 3, 4]
Jason contends that the present sense impression exception is inapplicable because Chantelle told her father about the physical abuse
on the phone, after any domestic violence incidents actually took place. The policy for admitting statements under this exception is that the
statement is more trustworthy if made contemporaneously with the event described. Narciso v. State, 446 F. Supp. 252, 285 (E.D. Mich.
1977).
[Headnote 5]
We agree with Jason that the present sense impression exception does not apply. The record does not indicate that Chantelle's
statements to her father regarding the physical abuse occurred at the same time as the abuse itself. However, even if the district court gave
the wrong reason for admission, no reversible error occurred if the statements were still admissible for another reason. Dearing v. State, 100
Nev. 590, 592, 691 P.2d 419, 421 (1984).
In Shults v. State, 96 Nev. 742, 747-48, 616 P.2d 388, 392 (1980), we held that out-of-court statements may be used as foundation for
a non-hearsay purpose so long as the substance of those statements is not revealed to the jury. We also noted that the witnesses were subject
to cross-examination as to the existence of the statements. Therefore, in Shults, we held the hearsay rule was not violated. Id.
[Headnote 6]
In the present case, we note that the alleged hearsay statements were not offered to prove the truth of the matter asserted. Rather, the
fact that Chantelle revealed certain information to her father was used solely as foundation for Goode's opinion regarding Chantelle's and
Jason's marriage. We further conclude that Goode did not reveal the substance of Chantelle's statements and that defense counsel had ample
opportunity to cross-examine him about these conversations. Accordingly, his opinion about Chantelle's marriage was not improperly
admitted at trial.
Regardless, we conclude Goode's opinion, standing alone, did little to convince the jury that
Jason committed first degree murder; therefore, any potential error was harmless. See Franco
v. State, 109 Nev. 1229, 1237, 866 P.2d 247, 252 (1993) (holding that hearsay errors are
subject to harmless error analysis).
Chantelle's statements to Goode prior to her death
[Headnote 7]
The statements that Chantelle planned to leave Jason and that she was afraid Jason was going to kill her were admitted as an excited
utterance. In Hogan v. State, 103 Nev. 21, 23, 732 P.2d 422, 423 (1987), we held that the victim's hearsay statements to two witnesses that
her husband had threatened to kill her were admissible as an excited utterance. The victim made these statements right after the threat and
an hour after the threat. Both times, the victim was frightened, shaky, nervous, and crying. We decided that since the victim was still
excited even one hour later (and not only contemporaneously), both statements were admissible as an excited utterance.
Similarly, when Chantelle spoke with her father, she was upset, excited, and frightened. According to Hogan, even if Chantelle's
statements were made an hour after a startling event, they may still be considered an excited utterance. However, the record here does not
indicate the timing of the event precipitating her fear. Accordingly, as timing is often the determining factor for an excited utterance, these
statements cannot fall into this exception.
[Headnote 8]
Therefore, the district court improperly admitted the statements as an excited utterance. However, after a harmless error analysis, we
conclude reversal of Jason's conviction is unnecessary. See Franco, 109 Nev. at 1237, 866 P.2d at 252.
3. Admission of the photographs
[Headnote 9]
Jason argues that gruesome autopsy pictures of Chantelle were erroneously admitted at trial and at the penalty hearing because the
prejudicial effect of the photographs outweighed any possible probative value.
1
__________

1
The standard for excluding evidence based on prejudice is: Although relevant, evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice . . . . NRS 48.035(1) (emphasis added). Jason never contends the probative
value is substantially outweighed, merely that it is outweighed. Consequently, even if Jason were correct, these pictures do not meet the
statutory requirement for exclusion.
The State responds that the pictures were admitted to (1) show Chantelle's defensive
wounds, (2) demonstrate the extent of her injuries, (3) prove mutilation at the penalty hearing,
and (4) aid in Dr. Jordan's testimony.
[Headnote 10]
We have repeatedly held that [d]espite gruesomeness, photographic evidence has been held admissible when . . . utilized to show the
cause of death and when it reflects the severity of wounds and the manner of their infliction. Theriault v. State, 92 Nev. 185, 193, 547
P.2d 668, 674 (1976) (citations omitted). Thus, gruesome photos will be admitted if they aid in ascertaining the truth. Scott v. State, 92
Nev. 552, 556, 554 P.2d 735, 738 (1976); Allen v. State, 91 Nev. 78, 82, 530 P.2d 1195, 1197-98 (1975).
[Headnote 11]
In addition, the admission of photographs lies within the sound discretion of the district court. Absent an abuse of discretion, we will
not reverse that admission. Domingues v. State, 112 Nev. 683, 695, 917 P.2d 1364, 1367 (1996); Redmen v. State, 108 Nev. 227, 231, 828
P.2d 395, 398 (1992); Benson, 802 P.2d at 348.
In Jason's case, the district court observed all the photographs that the prosecution wanted admitted as evidence and decided that the
prejudice of some pictures substantially outweighed their probative value. Therefore, those photographs were excluded. However, the court
found that the particular photographs at issue, which were admitted, were extremely probative, and the probative value was not
substantially outweighed by prejudice. Consequently, we conclude that the judge did not abuse his discretion by admitting these
photographs.
4. Sufficiency of the evidence in the guilt phase
[Headnote 12]
Jason contends that the evidence presented at trial was enough to constitute only second degree murder because the events happened
upon a quick rage and [Jason] demonstrated remorse and confusion thereafter.
[Headnote 13]
The test for sufficiency of the evidence upon appellate review is not whether this court is convinced of the defendant's guilt beyond a
reasonable doubt, but whether a jury, acting reasonably, could be convinced to that certitude by evidence it had a right to accept. Edwards
v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974); see also Jackson v. Virginia, 443 U.S. 307, 318-19 {1979); Sanders v.
State, 90 Nev. 433, 434
(1979); Sanders v. State, 90 Nev. 433, 434, 529 P.2d 206, 207 (1974). Therefore, we must
determine whether the jury acted unreasonably in assessing the evidence before them.
Edwards, 90 Nev. at 258-59, 524 P.2d at 331.
Here, evidence which a jury could reasonably conclude amounted to premeditation
consists of (1) Shaun's and Scottie's testimony that Jason stopped beating Chantelle, stated
Now it's time to call the police, and resumed the beating; (2) Shaun's and Nichole's
testimony that shortly before the beating Chantelle screamed, He's choking me and He's
going to kill me; (3) Scottie's testimony that during the beating, Jason paused, looked at
Chantelle, and continued beating her despite the fact that she was not moving; and (4) Dr.
Jordan's testimony regarding the extent of Chantelle's injuries.
2
Accordingly, we conclude that the evidence is sufficient for any rational trier of fact [to
find] the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at
319 (emphasis in original).
5. Constitutionality of the mutilation aggravating factor
[Headnote 14]
Jason argues that the mutilation aggravating circumstance in NRS 200.033(8) is unconstitutionally vague and overbroad. He contends
every murder involves mutilation under the definition that the district court gave to the jury.
3
In Deutscher v. State, 95 Nev. 669, 677, 601 P.2d 407, 412 (1979), we held the mutilation aggravating factor is not vague because this
court found the legislative enactment [NRS 200.033(8)] to be plain and intelligible. See also Rogers v. State, 101 Nev. 457, 467, 705
P.2d 664, 671 (1985). We further held that since the district court defined the term mutilate for the jury, the aggravator passed
constitutional muster. Deutscher, 95 Nev. at 677, 601 P.2d at 412.
Furthermore, the United States District Court for the District of Nevada and United States Court of Appeals for the Ninth Circuit
have already specifically upheld as constitutional the same mutilation instruction, defining mutilation, used in
Jason's case.
__________

2
DePasquale v. State, 106 Nev. 843, 848, 803 P.2d 218, 221 (1990), held that [p]remeditation and deliberation can be inferred from
the nature and extent of the injuries, coupled with repeated blows.

3
Instruction 11 reads: You are instructed that the term mutilate' means to cut off or permanently destroy a limb or essential part of
the body or to cut off or alter radically so as to make imperfect.
Instruction 12 reads: In order for mutilation to be found as an aggravating circumstance there must be mutilation of the victim beyond
the act of killing.
Circuit have already specifically upheld as constitutional the same mutilation instruction,
defining mutilation, used in Jason's case. Deutscher v. Whitley, 884 F.2d 1152, 1162 (9th Cir.
1989); Deutscher v. Whitley, 682 F. Supp. 1098, 1106 (D. Nev. 1988). Accordingly, we
conclude that the instructions for the mutilation aggravator were not constitutionally infirm.
6. Sufficiency of the evidence in the penalty phase
[Headnote 15]
Jason alleges that the State's evidence did not prove mutilation beyond a reasonable doubt. Mutilation requires an act beyond the act of
killing itself. Jason states that since the cause of death was multiple blunt trauma, he did no act beyond that; therefore, no mutilation could
exist. He further contends that if this court rules that multiple blows is sufficient to constitute mutilation, the consequences will be great.
Jason alleges the ramifications of upholding his death sentence will be that a mutilation aggravator can be created for
1. Any case where there is more than one gunshot wound;
2. Any case where there is more than one stab wound;
3. Any blunt trauma case where there is more than the number of blows sufficient to cause death (irrespective of the
knowledge, belief or intent of the perpetrator); and
4. Any case where there is injury to any part of the body other than the injury that caused death, i.e., make a limb imperfect.
We conclude that Jason exaggerates the State's position and the consequences of upholding Jason's sentence. This is not a case where
there was simply more than one blow to the head. This case involves well over fifteen severe blows. Therefore, although Dr. Jordan could
not ascertain exactly which blow killed Chantelle, he testified that any one of those blows could have caused Chantelle's death.
Accordingly, due to the severity of the beating in its entirety, we hold that a jury could conclude that Jason committed acts beyond the
killing itself.
Moreover, in Parker v. State, 109 Nev. 383, 394-95, 849 P.2d 1062, 1069-70 (1993), we affirmed a death sentence, holding that
enough evidence existed for the jury to find, beyond a reasonable doubt, that the victim was mutilated. In Parker, the victim's brain and
skull were crushed and destroyed when the defendant repeatedly hit the victim's head with a rock. The medical examiner testified to the
extensive damage to the victim's head and that her brain was an essential part of [the victim's] body. We noted that even after the
victim lost consciousness, the defendant continued to strike her with the rock, splattering blood on the walls,
stove and countertops of the kitchen.
that even after the victim lost consciousness, the defendant continued to strike her with the
rock, splattering blood on the walls, stove and countertops of the kitchen. Id.
Likewise, Dr. Jordan testified that Chantelle's brain was an essential part of her body, that
her brain was completely destroyed, and that in his opinion this was extensive mutilation
and overkill. There was also evidence that even after Chantelle lost consciousness, Jason
continued to hit her in the head with the bat. In addition, blood was splattered on the kitchen
ceiling, walls, floor, cupboards, and door; one drop even made its way into the next room.
Jason contends Parker is distinguishable because the Parker victim's body was found with
a knife plunged into her chest, ligatures around her neck, and evidence of sexual penetration
after death. Jason argues these extra facts, taken together, constituted the mutilation in
Parker. He contends since these extra facts are not present here, no mutilation was proven.
However, we determined in Parker that these extra facts contributed to the depravity of mind
aspect of the aggravator and not to the mutilation portion of the aggravator. Parker, 109 Nev.
at 394-95, 849 P.2d at 1069-70.
We stated that [t]he evidence presented at trial supports the jury's finding of mutilation, in
that Parker permanently destroy[ed]' an essential part of [the victim's] body, her brain. Id. at
394, 849 P.2d at 1069 (emphasis added). We then explained the extent of damage to the
victim's brain inflicted by the beating. As an additional factor, but not as a determining one,
we noted the existence of the knife. Subsequently, as a separate issue, we discussed the other
facts in the context of depravity of mind. Id. at 395, 849 P.2d at 1070.
Therefore, according to Parker, multiple blunt trauma which destroys the brain is
sufficient for mutilation. After a thorough review of the record, we conclude that the evidence
presented in Jason's case was sufficient for the jury to find mutilation based on the overkill
nature of the baseball bat beating.
In cases in which the death penalty is imposed, this court is also statutorily required to
consider whether the death sentence was imposed under the influence of passion, prejudice,
or any arbitrary factor and whether the sentence of death is excessive considering both the
crime and the defendant. NRS 177.055(2). We conclude that the death sentence was not
imposed under the influence of passion, prejudice, or any arbitrary factor, nor was it
excessive in this case considering the senseless and violent nature of the crime and the
defendant.
CONCLUSION
We conclude that Jason's contentions do not present enough error, if any at all, to overturn
his conviction or his death sentence. Consequently, we affirm the conviction and sentence.
4
Shearing, C. J., and Rose, J., concur.
I dissent to the penalty judgment because the aggravating circumstance mutilation is not
defined in a manner that is constitutionally acceptable and because the incomplete and
erroneous definition given by the trial court, even if correct, would not apply to the facts of
this case.
The aggravating circumstance mutilation of the victim, NRS 200.033(8), is not defined
in the statute. The trial court defined this aggravating circumstance by giving two
instructions. The first instruction defined mutilate in a manner approved by this court in
Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979), thus:
[T]he term mutilate means to cut off or permanently destroy a limb or essential part
of the body, or to cut off or alter radically so as to make imperfect.
Id. at 677 n.5, 601 P.2d at 413 n.5.
The trial court did not stop with this definition, however, and went on to give this second,
qualifying instruction to the jury:
In order for mutilation to be found as an aggravating circumstance there must be
mutilation of the victim beyond the act of killing.
The first instruction defines what is meant by mutilation; the second instruction imposes a
qualifying limitation on the aggravating circumstance by requiring that the act of mutilating
must be . . . beyond the act of killing. I conclude that in this case the first, defining
instruction is constitutionally insufficient and that the second, limiting or qualifying
instruction, the beyond-the-act-of-killing instruction, is confusing, is unsupported by case
authority, and creates an unreasonable and unnecessary impediment to the prosecution in
proving this aggravating circumstance.
With respect to the defining instruction, the only part of the definition that is applicable to
the present case is the following: permanently destroy a[n] essential part of the body, or to . .
. alter radically so as to make imperfect. (I have deleted the part of the definition referring to
the cutting off or destroying of a limb, because this part of the definition does not apply in
this case.)
__________

4
limb, because this part of the definition does not apply in this case.) In the case at hand, it is
certainly arguable that there is evidence to support a jury finding that Browne permanently
destroyed, made imperfect or radically altered an essential part of the body of his victim.
(Although, I suppose, it could be argued that the face is not an essential part of the body
and that one could live with an imperfect or radically altered face.) Defense counsel takes the
position that even if it were conceded that Browne destroyed or altered an essential part of
the victim's body, destruction or radical alteration of an essential part of the body
accompanies every killing and every death. Consequently, argues the defense, the definition
of mutilation as applied to this case fails entirely because it describes a condition that is
present in every murder and does not, therefore, constitute an aggravating circumstance.
I agree with the defense argument. If we can agree on the meaning of essential part of the
body (that is, I think, indispensable to the body, that which makes the body what it is), we
can probably agree that a destroying, radically altering or making imperfect some essential
part of the body was present in this case. If this, then, is to be our definition of mutilation, it
has no narrowing effect and does not create a more culpable class of death-deserving
murderers. I would submit that even if the jury concluded that Browne did destroy, radically
alter or make imperfect an essential part of his victim's body, this would not, of itself, justify
from a constitutional standard, the imposition of the death penalty.
With regard to the second, limiting or qualifying instruction, the beyond-the-act-of-killing
instruction, I find a number of logical and legal defects. The first problem that I see with this
limiting instruction is that it is incoherent. There is no relationship that I can see between
mutilation and the phrase beyond the act of killing. If as part of a killing the murderer also
intentionally defaces, disfigures, dismembers or maims his victim, there is no point in making
the unnecessary and disconnected inquiry as to whether the mutilation did or did not go
beyond the act of killing. The closest that I can come to understanding what it means for a
murderer to go beyond the act of killing is that it means continuing to inflict injury upon the
victim after he or she is dead. This is the way that defense counsel interpreted the phrase.
I see no reason for restricting mutilation to post mortem inquiry.
1
There is no logical basis
for distinguishing between beyond-the-act-of-killing mutilation and
included-in-the-act-of-killing mutilation.
__________

1
Defense counsel, during oral argument, expressed his belief that mutilation beyond the act of killing had to involve some
post-mortem harm to the
beyond-the-act-of-killing mutilation and included-in-the-act-of-killing mutilation. Mutilation
is mutilation and, in my view, is committed whenever a person kills intentionally with the
added and accompanying intention of mutilating his victim irrespective of whether the
mutilation was committed before or after the death of the victim.
To help in understanding the unnecessary narrowness of the beyond-the-act-of-killing
limiting instruction, I would offer the example of a killing by a murderer who shot his victim
with the intention of mutilating and obliterating his victim's face. The gun shot would kill the
victim and would not be an act that went beyond the killing, thus, under the present
instruction, freeing such a murderer from being found guilty of mutilation as an aggravator.
2
It seems rather obvious that there is a pressing need for formulating a new instruction on
mutilation, an instruction that is not dependent upon the commission of an act which goes
beyond the killing.
I would note further that the second, limiting instruction is unsupported by case law. The
phrase, beyond the act of killing was first mentioned by this court in the case of Robins v.
State, 106 Nev. 611, 629, 798 P.2d 558, 570 (1990), in a discussion of the need to eliminate
depravity of mind as an aggravating circumstance. In connection with depravity of mind
this court in Robins remarked that the United States Supreme Court in Maynard v.
Cartwright, 486 U.S. 356 (1988), had implied that torture or serious physical abuse could be
a limiting and saving construction of an otherwise vague aggravating circumstance [e.g.,
depravity of mind]. Robins, 106 Nev. at 629, 798 P.2d at 570. This court went on to
construe NRS 200.033(8) as requiring torture, mutilation or other serious and depraved
physical abuse beyond the killing itself, as a qualifying requirement to an aggravating
circumstance based in part upon depravity of mind."
__________
victim's body. I think it was reasonable for defense counsel to think that mutilation that was beyond the act of killing meant mutilation
performed after the killing had been accomplished. In this case defense counsel argued that there was no evidence of post-mortem injury
and that, therefore, the second, limiting instruction was not applicable in this case. There is no reason to limit mutilation to acts that are
either after or beyond the killing. This problem is addressed in the definition of mutilation which I offer in this dissenting opinion.

2
During the dialogue between the court and counsel for both prosecution and defense, during oral argument, the importance of intent
to this aggravating circumstance became more and more apparent; and it appeared to me, and, I believe, to counsel that specific intent was
an essential element of mutilation and must be included in any instruction relating to mutilation. I have included the element of intent in the
instruction which I have offered in this dissenting opinion.
mind. Robins, 106 Nev. at 629, 798 P.2d at 570. All this language says to me is that NRS
200.033 is to survive constitutional challenge merely by deleting depravity of mind and
leaving in effect torture and mutilation. It does not say that either torture or mutilation must
be performed as an act that goes beyond the act of killing; and, as discussed above, such an
added requirement makes no sense. There is no reason why torture and mutilation cannot be
present in a murder without muddying up the definition with the phrase beyond the act of
killing. Torture is torture and mutilation is mutilation and can be performed either as part of
the act of killing or beyond (whatever that means) the act of killing.
Unnecessarily and illogically adding the limiting beyond-the-act-of-killing factor to either
torture or mutilation creates a nightmare for both prosecution and defense. The prosecution is
faced with having to prove an almost impossible-to-prove and virtually unintelligible
additional element when proving either torture or mutilation as an aggravating factor. The
defense is faced with having to defend by bringing in evidence that certain acts were or were
not beyond the act of killing, without having the vaguest idea of what it means to torture or
mutilate beyond the act of killing. Understandably, there is no explanation and no
discussion of any kind in Robins as to the meaning of the phrase depraved physical abuse
beyond the act of killing itself; and it is clear to me that this language arose only in the
context of our trying to save NRS 200.033(8) from the otherwise vague depravity element
of that statute and that it was not intended to create an added, limiting and qualifying
definition of the mutilation or torture aggravator.
In Domingues v. State, 112 Nev. 683, 917 P.2d 1364 (1996), we considered the phrase
beyond the act of killing in the context of the torture aggravator. In Domingues, we
explained that in torture cases the murderer must have intended to inflict pain beyond the
killing itself. Id. at 702, 917 P.2d at 1377 (emphasis added). Thus, what distinguishes torture
killings from other killings is the murderer's intention to do something more than to kill, an
intention to do something beyond the killing itself, namely, an intention to inflict pain upon
the victim. In Domingues, we held that torture could not be present because the evidence
does not indicate that Domingues's intent was anything other than to kill the child. Id.
(emphasis added). There is no evidence that the specific intent behind the attempted
electrocution or the stabbing was to inflict pain for pain's sake or for punishment or sadistic
pleasure. Id. (emphasis added).
It is pretty clear to me that torture and mutilation fall into the same category and that, for a
mutilation aggravator to stand, there must be a "specific intent" to mutilate.
must be a specific intent to mutilate. The principal defect in the instruction given in this
case is that the element of specific intent is missing. Rather than requiring the act of
mutilation plus the intent to mutilate, the given instruction required the act of mutilation plus
an act that could be described as going beyond the act of killing. Domingues requires both
act and intent for a finding of torture, actus reus and mens rea. The same principle should be
applied to mutilation. In order for the aggravating factors of torture or mutilation to be present
there must be the act of torture or mutilation and there must be the specific intent . . . to
inflict pain (in the case of torture) or the specific intent to mutilate (in the case of
mutilation). Id.
Once the necessity for dealing with specific intent as an element of torture and mutilation
is understood, it is not difficult to come up with a working definition of the aggravating
circumstance mutilation of the victim.
The word mutilation comes from the Latin word mutilus, which means maimed. The
aggravating circumstance, mutilation, is closely related to maiming and to the crime,
mayhem. Mayhem consists of unlawfully depriving a human being of a member of his body,
or disfiguring it or rendering it useless. NRS 200.280.
3
Mutilation as an aggravating
circumstance amounts to murder plus mayhem, murder accompanied by intentionally
depriving a human being of a member of his body, or disfiguring it or rendering it useless.
If, as I propose, aggravating mutilation equals murder plus mayhem, it is not difficult to
derive appropriate definitions to be provided to juries in mutilation cases. Consider the
following:
Mutilation means intentionally depriving a human being of a member of his body, or
disfiguring or rendering it useless. Mutilation of the victim, as used in NRS 200.033(8),
means mutilation of a murder victim. This aggravating circumstance is present when, at
the time of the killing, in addition to having the intention to kill, the murderer has the
added specific intention to mutilate and does in fact mutilate the murder victim.
4
__________

3
The statute gives an inexhaustive list of examples of what it means to maim, viz., cuts out or disables the tongue, puts out an eye,
slits the nose, ear or lip, or disables any limb or member.

4
We noted in Domingues that torture involved a calculated intent to inflict pain and that prosecutors ought to be more
discriminating in charging torture unless they were able to provide proof of a calculated intent to inflict pain. In my judgment, prosecutors
should not charge mutilation unless they are prepared to prove, in accordance with the instruction proposed in the text, that the murderer
had a specific (calculated) intent to mutilate.
If the jury in this case had been instructed along the lines suggested in the above working
definition of this aggravating circumstance, none of the issues raised by Browne would have
their present force. Under the proposed definition of mutilation, or one like it, the jury would
be faced with a decision as to whether it was Browne's intention during this beating to
mutilate his victim's face. If the jury found (as well it could have) that Browne intended to
disfigure the victim's face and that he carried out this intention in addition to his intention
to kill her, then Browne would be guilty of mutilation, whether the wounds were inflicted
post mortem or not and whether one of the successive multiple blunt trauma[s] was or was
not beyond the act of killing. The jury would have necessarily focused on Browne's intent
and not on which blows were lethal and which were not.
5
In sum, then:
1. This case must be reversed because (a) the definition of mutilation given to the
jury describes acts that are present in every murder and therefore do not have the
distinguishing characteristics that must accompany the definition of aggravating
circumstances, and (b) the beyond-the-act-of-killing element of mutilation given to
the jury was not proved beyond a reasonable doubt.
2. Any definition of mutilation as an aggravating factor must include the intent to
mutilate as an essential element. The beyond-the-act-of-killing element that was given
to the jury in this case must be abandoned as being unnecessary, illogical, unsupported
by case authority and virtually impossible to prove.
3. The court should provide for use by the trial court a definition of mutilation that
will be clear, understandable and constitutionally unobjectionable.
__________

5
Defense counsel pointed out during oral argument that under the definition of mutilation given by the court in this case Browne could
have accomplished the same end (defacing his victim) merely by shooting her with a shotgun, point blank, in the face. Under these
circumstances, the killing and the maiming would be accomplished in the performance of a single lethal act, and there could, therefore, be
nothing beyond the act of killing upon which a finding of mutilation could be based. Under the definition which I propose, this would not
be the case because the hypothetical shotgun assailant could very well be found to have had intentions beyond those of just killing his
victim. If a murderer shoots a victim in the face with the intent to deface his victim and has this intention in addition to the intention of just
killing the victim, the murderer could be found guilty of mutilation.
____________
113 Nev. 324, 324 (1997) Matter of Parental Rights as to Gonzales
In the Matter of the Parental Rights as to DESTINY MONET GONZALES and BRITTANY
DOMINIQUE GONZALES.
GLORIA ANN GONZALES, Appellant, v. DEPARTMENT OF HUMAN RESOURCES OF
THE STATE OF NEVADA, DIVISION OF CHILD AND FAMILY SERVICES,
Respondent.
No. 28637
February 26, 1997 933 P.2d 198
Appeal from an order terminating appellant's parental rights. Eighth Judicial District
Court, Clark County; Gerald W. Hardcastle, Judge.
State sought to terminate mother's parental rights. The district court terminated parental
rights, and mother appealed. The supreme court, Rose, J., held that clear and convincing
evidence supported termination of mother's parental rights, notwithstanding trauma mother
suffered following murder of children's father.
Affirmed.
Rovacchi, Kent & Cordes, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and Linda C. Anderson, Deputy Attorney
1. Infants.
Both jurisdictional grounds for termination, to be found in some specific fault or condition directly related to parents, and
dispositional grounds, to be found by general evaluation of child's best interests, must be established by clear and convincing
evidence. NRS 128.105.
2. Infants.
Order terminating parental rights will be upheld if it is based on substantial evidence, and reviewing court will not substitute its
judgment for that of trial court that heard and observed the witnesses.
3. Infants.
Mother's admission that she dropped out of sight for a year without contacting or providing support to her children supported
determination that mother had abandoned her children, thereby establishing jurisdictional grounds for termination of her parental
rights, notwithstanding testimony showing that mother underwent extreme emotional trauma following death of children's father and,
thus, arguably was unable to formulate settled purpose to abandon her children. NRS 128.012.
4. Infants.
Purpose in applying failure of parental adjustment grounds for terminating parental rights is to evaluate parent's efforts to adjust
circumstances, conduct, or conditions within a reasonable time in order to justify child's return to home.
cumstances, conduct, or conditions within a reasonable time in order to justify child's return to home. Main concern is permanency,
and child should not be held in limbo indefinitely. NRS 128.0126.
5. Infants.
Evidence that mother disappeared for one year, during which she failed to visit children, to maintain contact with Division of
Child and Family Services (DCFS), to provide support for children, or to comply with her case plan to any other extent, clearly and
convincingly established failure of parental adjustment, thus supporting termination of her parental rights, notwithstanding her anguish
and vulnerability following her husband's brutal killing. NRS 128.0126, 128.109(1)(b).
6. Infants.
Best interests of children required termination of mother's parental rights, where mother was no more than friendly stranger to
children at time of termination hearing and children had been in stable foster home for four years. NRS 128.105.
OPINION
FACTS
Gloria Gonzales (Gloria) and Benjamin Gonzales (Benjamin) met as teenagers growing up
in a neighborhood in Indio, California. Gloria ran away from home and started living with
Benjamin when they were fifteen years old, and she became pregnant with their first of six
children,
1
Vanessa Andrea Gonzales (Vanessa), who was born January 1, 1979. At some
point, Gloria and Benjamin married and had a second child, Crystal Monique Gonzales
(Crystal), on July 25, 1982. Gloria and Benjamin later moved to Las Vegas where Gloria gave
birth to the two children at issue in this appealDestiny Monet Gonzales (Destiny), born
September 26, 1990, and Brittany Dominique Gonzales (Brittany), born August 9, 1991.
Vanessa and Crystal were removed from Gloria and Benjamin's care and made wards of
the State of California in 1985. At that time, both Gloria and Benjamin had heroin and
cocaine addictions, and Benjamin was incarcerated in California for a drug-related offense.
Vanessa and Crystal were returned to the Gonzaleses in 1987, but were subsequently
removed after Gloria tested positive for opiates in 1988. After several more years in foster
care, Vanessa and Crystal were returned to their parents, who had since moved to Las Vegas
in September, 1992, with Interstate Compact in Nevada monitoring the placement.
__________

1
Two of the Gonzales' children were taken from the home and relinquished to adoptive families due to the Gonzales' problems with
drug use.
By 1993, Vanessa, Crystal, Destiny, and Brittany were living with their parents in a Las
Vegas apartment. Gloria was working at a convenience store and Benjamin was unemployed
due to a job-related injury. On March 19, 1993, the Gonzaleses were evicted from their
apartment. Gloria and Benjamin told the four girls to wait on the sidewalk outside of the
apartment building while they went to seek alternate housing for the family.
The landlord called the police about the unattended children, the North Las Vegas Police
came and talked with the girls, ascertained that they had not eaten in almost eight hours, and
then transported the four children to Clark County Juvenile Court, where they were placed in
protective custody. Vanessa and Crystal, who were still wards of the State of California, were
sent to live with Benjamin's mother in California, while two-year-old Destiny and
one-year-old Brittany were placed in Child Haven and later in the custody of the Division of
Child and Family Services (DCFS) which placed them in the foster home where they
currently reside.
Because of Gloria and Benjamin's documented history of drug abuse, Child Protective
Services (CPS) listed abstinence and random drug-testing as a condition to be met before
Destiny and Brittany would be returned. Vanessa and Crystal's social worker tried to find a
place for the family to live and transported Gloria to court proceedings and to drug test
appointments. Gloria missed some appointments and tested positive for drugs at another.
Shortly after Destiny and Brittany had been removed, Gloria and Benjamin got into a fight,
and Benjamin was arrested for assault with a deadly weapon. Benjamin remained incarcerated
for about a month. Meanwhile, Gloria had been arrested and jailed for outstanding traffic
warrants, and on April 2, 1993, she tested positive for cocaine usage.
CPS filed a petition alleging that Destiny and Brittany were in need of protection due to
Gloria's drug abuse and the inability of the Gonzaleses to provide for the children. On April
15, 1993, Gloria and Benjamin admitted to the petition, and DCFS took custody of Destiny
and Brittany on May 6, 1993. The juvenile court and DCFS developed a case plan for
reunification, ordering the parents to do the following: (1) maintain stable housing and
employment; (2) complete parenting classes; (3) attend Narcotics Anonymous meetings; (4)
submit to random drug testing; (5) maintain regular visitation; (6) notify the social worker of
any changed circumstances; and (7) pay child support.
By the first six month court review, in November of 1993, Gloria had enrolled in a
methadone program at Nevada Treatment Center and had passed random drug tests
administered at the Center. She and Benjamin were attending Alcoholics Anonymous and
Narcotics Anonymous meetings and had partially completed parenting classes.
and Narcotics Anonymous meetings and had partially completed parenting classes. Benjamin
was receiving SIIS benefits, and he and Gloria had found a small studio apartment. They had
been visiting Brittany and Destiny on a monthly basis, and increased visitation was
recommended as reunification appeared to be a viable goal.
However, Gloria and Benjamin separated in December of 1993, and Gloria moved in with
a boyfriend. She worked at a convenience store, kept house for an elderly couple, continued
her methadone maintenance treatments, and visited Destiny and Brittany every six to eight
weeks. On April 29, 1994, Benjamin was murdered while visiting Gloria at the residence she
shared with her then boyfriend. Gloria had fought with her boyfriend earlier that day and
acknowledged at the termination hearing that the police considered her boyfriend a suspect in
Benjamin's murder.
On May 3, 1994, several days after Benjamin's murder, and just a few days before the
second scheduled status check, Destiny and Brittany's social worker, Carol Denley (Denley),
called Gloria at her housekeeping position and encouraged Gloria to maintain contact with
her; Denley testified that she had wanted Gloria to help her break the news of Benjamin's
death to Destiny and Brittany.
2
However, neither the children nor DCFS heard from Gloria
again until April of 1995. Gloria testified that after speaking with Denley in May, 1994, she
fled to California where she abused drugs for approximately six months. Gloria stated that
she then entered a religious-based drug rehabilitation program, Victory Outreach, where
she stayed for eight months.
On April 11, 1995, Gloria finally contacted Denley and told Denley of her whereabouts
and activities over the past year. Gloria temporarily left the Victory program to attend a May,
1995 status check, where she asserted that the judge encouraged her to leave the inpatient
program before completing the full year of treatment and to attempt to locate adequate
housing. On July 1, 1995, Gloria withdrew from the Victory program and moved in with
Benjamin's mother and sister in California, where her older daughters, Vanessa and Crystal,
had been living. She enrolled in an outpatient drug abuse program. Upon satisfactory
completion of that program, her two older daughters, Vanessa and Crystal, were returned to
Gloria's physical custody.
Gloria then entered into a relationship with Richard Weber (Weber), and moved into his
home with Vanessa and Crystal in September, 1995, after Gloria's sister-in-law would no
longer allow Gloria and the girls to stay in her home.
__________

2
Contrary to the facts recounted in the dissent, the record does not indicate that Brittany or Destiny witnessed the murder of Benjamin.
allow Gloria and the girls to stay in her home. At this time, sixteen-year-old Vanessa had a
one-month-old child of her own and thirteen-year-old Crystal had had some delinquency
problems (e.g., she ran away for three weeks). Gloria did not obtain employment following
her return until two weeks before the termination hearing, and she continued to receive
welfare benefits for her older girls.
3
According to DCFS, following her year long absence from Destiny and Brittany's lives,
Gloria had seen the younger girls only once, in May of 1995. Gloria has not provided any
financial support or given any cards or gifts to the girls since they were removed from her
custody in 1993. Furthermore, the girls celebrated birthdays in August and September, 1995,
following Gloria's July 1, 1995 release from rehabilitation, yet they received no
acknowledgment from their mother.
Denley testified that one of the biggest problems barring reunification was the fact that
the girls do not know who [Gloria] is. DCFS contends that Destiny and Brittany have
become bonded to their foster family (who seeks to adopt them) and that they no longer
inquire about their natural mother. The foster family is also of hispanic background; the foster
parents have been married for twenty years; the father has stable employment; and the mother
stays at home with Destiny and Brittany and her other children (two other foster children, an
eight-year-old adopted son, and a fifteen-year-old biological daughter). Denley testified that
Destiny and Brittany appeared to be thriving in this environment. Due to Destiny and
Brittany's young age, in November, 1994, DCFS first considered initiating termination
proceedings after six months had passed without any contact from Gloria. Denley testified
that she would not have pursued such action had the girls been older. On July 17, 1995,
DCFS filed a petition to terminate Gloria's parental rights as to Destiny and Brittany,
notwithstanding Gloria's reappearance in April of 1995, and her apparent new-found stability.
As grounds for termination, the petition asserted abandonment, neglect, unfitness of the
parent, failure of parental adjustment, risk of harm to the girls, and token efforts as
elaborated upon in NRS 128.105.
On September 28, 1995, the district court appointed counsel for Gloria. A contested
hearing was held on December 29, 1995, wherein the district court found that Gloria had
intentionally abandoned Destiny and Brittany for almost a year, as evidenced by the fact
that she failed to contact DCFS and to support or contact the children "for at least six
months concerning the children's health, welfare or well-being."
__________

3
Notwithstanding the dissent's contention that Weber was acting as a father to Gloria's older children, it should be emphasized that
Weber was not financially supporting Gloria or her children, who continued to receive government benefits. Moreover, at the time this case
was argued before this court, Gloria could not be found and Weber did not have knowledge of her whereabouts.
abandoned Destiny and Brittany for almost a year, as evidenced by the fact that she failed to
contact DCFS and to support or contact the children for at least six months concerning the
children's health, welfare or well-being.
The district court also found a failure of parental adjustment, noting that:
[Gloria] has been unable or unwilling within a reasonable time to correct substantially
the circumstances, conduct or conditions which led to the placement of [her children]
outside of [her] home, notwithstanding reasonable and appropriate efforts made by the
state or a private person or agency to return the [children] home. Although the mother
had made recent efforts to remain free of drugs, she did not change her circumstances in
a reasonable period of time and instead abandoned these children.
(quoting NRS 128.0126, which defines failure of parental adjustment). The district court
concluded that the best interests of Destiny and Brittany would be served by terminating
Gloria's parental rights and entered an order so stating.
Gloria now challenges the district court's termination of her parental rights. We conclude
that Gloria's contentions are without merit, and affirm the holding below.
DISCUSSION
Clear and convincing evidence established jurisdictional and dispositional grounds for the
termination of appellant's parental rights
[Headnotes 1, 2]
NRS 128.105 sets forth the basic considerations relevant in determining whether to terminate parental rights.
4
This court, in
applying NRS 12S.105, has stated that two kinds of grounds must be considered in termination proceedings.
__________

4
NRS 128.105 states:
The primary consideration in any proceeding to terminate parental rights must be whether the best interests of the child will be
served by the termination. An order of the court for termination of parental rights must be made in light of the considerations set
forth in this section and NRS 128.106 to 128.109, inclusive, and based on evidence and include a finding that:
1. The best interests of the child would be served by the termination of parental rights; and
2. The conduct of the parent or parents demonstrated at least one of the following:
(a) Abandonment of the child;
(b) Neglect of the child;
(c) Unfitness of the parent;
(d) Failure of parental adjustment;
applying NRS 128.105, has stated that two kinds of grounds must be considered in
termination proceedings. Champagne v. Welfare Division, 100 Nev. 640, 646-47, 691 P.2d
849, 854 (1984). [T]here must be jurisdictional grounds for terminationto be found in
some specific fault or condition directly related to the parentsand dispositional groundsto
be found by a general evaluation of the child's best interest. Id. at 647, 691 P.2d at 854. Both
grounds must be established by clear and convincing evidence. Id. at 648, 691 P.2d at 854.
NRS 128.105, as amended in June 1995, keeps intact the jurisdictional and dispositional
categories, but places primary importance on the dispositional grounds, that is, the best
interests of the child. This court will uphold an order of termination if it is based on
substantial evidence and will not substitute its judgment for that of the trial judge who heard
and observed the witnesses. Kobinski v. State, 103 Nev. 293, 296, 738 P.2d 895, 897 (1987).
We conclude that DCFS presented substantial evidence upon which the termination of
Gloria's parental rights was based.
Jurisdictional grounds
In her Pre-Trial Memorandum, Gloria stated that, If the Court applies a strict
interpretation of the grounds set forth in the petition [abandonment, failure of parental
adjustment, etc.] to the facts relating to Mrs. Gonzales' compliance . . ., then Mrs. Gonzales is
prepared to concede that [DCFS] will be able to establish jurisdictional grounds for
termination. (Emphasis added.) Gloria's brief continued, there is no denying that during a
nearly one (1) year period in 1994-95, Mrs. Gonzales dropped out of sight, did not keep in
contact with the case worker and did not attempt to comply with the court-ordered case
plan. (Emphasis added.) Gloria urged the district court to, nonetheless, give her a second
chance to parent Destiny and Brittany.
At the December 29, 1995 termination hearing, after hearing testimony and following the
presentation of evidence, the district court concluded that:
Relative to the first grounds, the issue of jurisdictional grounds, I think it's even
conceded by everyone, I don't think there's really a dispute here that under the law,
the ground of abandonment has been met.
__________
(e) Risk of serious physical, mental or emotional injury to the child if he were returned to, or remains in, the home of his
parent or parents;
(f) Only token efforts by the parent or parents:
(1) To support or communicate with the child;
(2) To prevent neglect of the child;
(3) To avoid being an unfit parent; or
(4) To eliminate the risk of serious physical, mental or emotional injury to the child; or
(g) With respect to termination of the parental rights of one parent, the abandonment by that parent.
think there's really a dispute here that under the law, the ground of abandonment has
been met. The statute does presume that if there is six months of no contact, failure to
support, and failure to maintain any communication, that there is a presumption of
abandonment under NRS 128.012.
Equally under NRS 128.109, there is a presumption that . . . within six months if the
child is in the custody of [DCFS] and the parent fails to make the appropriate
adjustment after being placed, that the ground of failure of parental adjustment . . . is
presumed, and the Court does make those findings.
(Emphasis added.) We conclude that the district court did not err in its conclusions.
Abandonment
NRS 128.012 defines abandonment as follows:
1. Abandonment of a child means any conduct of one or both parents of a child
which evinces a settled purpose on the part of one or both parents to forego all parental
custody and relinquish all claims to the child.
2. If a parent or parents of a child leave the child in the care and custody of another
without provision for his support and without communication for a period of 6 months,
. . . the parent or parents are presumed to have intended to abandon the child.
In Sernaker v. Ehrlich, 86 Nev. 277, 280, 468 P.2d 5, 7 (1970), this court held that
abandonment of a child is conduct on the part of the parent that is intentional and shows a
settled purpose to relinquish all parental rights in the child.
On appeal, Gloria argues that while her one year disappearance from the children's lives
satisfied the presumption of abandonment and failure of parental adjustment, as enunciated in
NRS 128.012 and 128.0126, DCFS failed to prove that Gloria had ever intended to abandon
Destiny and Brittany. We conclude that Gloria's conduct clearly and convincingly satisfied
the definition of abandonment and that she did not rebut the presumption of NRS
128.012(2).
5
In Pyborn v. Quathamer, 96 Nev. 145, 147, 605 P.2d 1147, 1148 (1980), this
court upheld a district court finding of abandonment where the father made no attempt to
communicate with his son for a period of ten months, coupled with token efforts, to pay
support for the child. Additional evidence of abandonment has been recognized in a
parent's lack of support, failure to communicate, and failure to send gifts to his children.
__________

5
We are perplexed by the dissent's chastisement of the district court for applying this statutory presumption. The language of NRS
128.012 is not discretionary.
evidence of abandonment has been recognized in a parent's lack of support, failure to
communicate, and failure to send gifts to his children. Sernaker, 86 Nev. at 280, 468 P.2d at
7.
Recently, in Greeson v. Barnes, 111 Nev. 1198, 1204, 900 P.2d 943, 947 (1995), this court
terminated a father's parental rights where the father failed to pay child support, exercised
visitation rights for only six months during a five-year period, and gave his son only one
Christmas gift. Although the court acknowledged that the father's appeal was an indication
that he did not have a settled purpose . . . to forego all parental custody and relinquish all
claims to the child,' this court upheld the district court's termination of his parental rights,
stating that, there is no better illustration of the adage actions speak louder than words.'
Greeson, 111 Nev. at 1204, 900 P.2d at 947 (quoting NRS 128.012(1)).
[Headnote 3]
On the facts at bar, we conclude that Gloria's admission that she dropped out of sight for a year, without contacting or providing
support to Destiny and Brittany, supports the district court's determination that Gloria had abandoned her children. The testimony shows
that Gloria underwent extreme emotional trauma following the death of Benjamin, and thus was arguably unable to formulate a settled
purpose to abandon her little girls. At the hearing below, the judge commended Gloria on her phenomenal progress. Nonetheless, while she
may now lack the intent to abandon Brittany and Destiny, we conclude that her actions between May of 1994 and April of 1995 showed a
clear intent to relinquish any and all parental rights. Even if Gloria was now prepared to parent Destiny and Brittany competently, we
conclude that Gloria's progress comes too late in the lives of these two children.
Failure of parental adjustment
[Headnote 4]
NRS 128.0126 defines failure of parental adjustment as follows:
Failure of parental adjustment occurs when a parent or parents are unable or unwilling within a reasonable time to correct
substantially the circumstances, conduct or conditions which led to the placement of their child outside of their home,
notwithstanding reasonable and appropriate efforts made by the state or a private person or agency to return the child to his home.
This court has recognized that failure of parental adjustment may provide jurisdictional grounds for termination; however, it is
fraught with difficulties and must be applied with caution."
fraught with difficulties and must be applied with caution. Champagne v. Welfare Division,
100 Nev. 640, 652, 691 P.2d 849, 857 (1984). We have noted that the failure of parental
adjustment comes into play in situations like the one at issue wherein a child has been placed
in a foster home. Id. at 650, 691 P.2d at 856-57. The purpose is to evaluate the parent's efforts
to adjust circumstances, conduct or conditions' within a reasonable amount of time in
order to justify the child's return to the home. Id. at 651, 691 P.2d at 857. The main concern is
permanencya child should not be held in limbo indefinitely. Id.; see also Matter of Parental
Rights of Montgomery, 112 Nev. 719, 917 P.2d 949 (1996).
[Headnote 5]
In 1995, the Nevada Legislature amended NRS 128.109 to add certain new considerations of parental conduct. NRS 128.109(1)(b)
states that:
If the parent or parents fail to comply substantially with the terms and conditions of a plan to reunite the family within 6
months after the date on which the child was placed or the plan was commenced, whichever occurs later, that failure to comply is
evidence of failure of parental adjustment as set forth in paragraph (d) of subsection 2 of NRS 128.105.
Destiny and Brittany were taken from Gloria on March 19, 1993, and a case plan was developed that May. The testimony shows that Gloria
understood the major provisions of her case plan and the consequences of failure to satisfy its mandates in a reasonable time. Gloria also
acknowledged that having had substantial interaction with the foster care system and social workers, she knew that there were resources
available to help her implement the case plan. Notwithstanding those resources, the terms of that case plan had yet to be satisfied, more
than two years after its inception.
We conclude that clear and convincing evidence supports a finding of failure of parental adjustment. Gloria failed to comply with the
case plan in that she disappeared for one year, during which time she failed to visit Destiny and Brittany, failed to maintain contact with
DCFS, and failed to provide support for her children or comply with the case plan to any other extent. While it is true that just prior to
Benjamin's murder, Gloria was progressing and reunification seemed viable, part of parental adjustment is demonstrating the ability to put
the welfare of one's children above oneself during times of crisis. While we recognize Gloria's anguish and vulnerability following her
husband's brutal killing, the fact is that Gloria would not or could not recognize that two little girls, who had just lost their father, were also
vulnerable and suffering an emotional crisis at the simultaneous disappearance of both of their biological
parents.
vulnerable and suffering an emotional crisis at the simultaneous disappearance of both of
their biological parents.
We conclude that the evidence clearly and convincingly proved the jurisdictional grounds
of abandonment and failure of parental adjustment.
6
Dispositional grounds
[Headnote 6]
Dispositional grounds are present [i]f under no reasonable circumstances the child's best interest can be served by sustaining the
parental tie. Champagne v. Welfare Division, 100 Nev. 640, 652, 691 P.2d 849, 858 (1984). In 1995, the Nevada Legislature amended
NRS 128.105 to state that [t]he primary consideration in any proceeding to terminate parental rights must be whether the best interests of
the child will be served by the termination.
At the hearing, when asked whether she thought additional efforts from DCFS would make reunification with Gloria feasible, Denley
replied it could go in either direction. In discussing the inevitable trauma that would occur should Destiny and Brittany be separated from
their foster family, Denley explained that therapeutic intervention (i.e., counseling) could lead to a successful reunification with Gloria, but
removal was just as likely to cause reactive detachment disorders in the girls because they could not remember that Gloria was their
mother. Denley concluded, I think that their removal would be very traumatic for them because of the fact that they're now cognizant
human beings . . . . She also expressed concern over the potential for a return to drug dependence given Gloria's long history of drug
abuse.
At the conclusion of the termination hearing, the district judge stated that
[R]elative to the dispositional grounds, and frankly this is the issue of the case that is . . . very difficult. It's very difficult only if
you review this case from the perspective of Mrs. Gonzales.
It would be very nice to award Mrs. Gonzales these children as an expression of what she has done with her life. I agree with
[Gloria's counsel] that as such an expression, you know maybe Mrs. Gonzales at this point has earned the right to have these
children back.
__________

6
The dissent contends that there can be no failure of parental adjustment in this case because Gloria did not willfully [have] a
purpose' to relinquish her parental rights nor to flout the authority of [DCFS]. However, there is no willfulness requirement in our
defining statute; NRS 128.0126 provides that this jurisdictional ground exists where a parent is unwilling or unable to adjust.
right to have these children back. That, however is not the test. The test is what is in the
best interest of these children. These children, while Mrs. Gonzales, and Mr. Gonzales
during the time that he was alive, failed to make the adjustment that apparently now has
been made. These children continue to grow.
They were placed in foster care, they got on with their lives. And frankly at this
point there's another family to consider and that is the potential adoptive family. They
have bonded to that family and this Court was very impressed with the abilities of the
foster parents and what they have done. And for all those days and mornings and weeks
when these children had problems, it was the foster family that has been there for them
and not the mother.
The Court does not find that it is in the best interests of the children to place them
back with Mrs. Gonzales. The Court does find by clear and convincing evidence that
the dispositional ground has been met by the State and that the best interests of these
children is clearly served by ordering the termination in this case and allowing them to
continue that life they have had without concern and without future worry from what
may or may not happen in the very unstable life of Mrs. Gonzales.
We agree with the district court's determination that it would be in the girls' best interests
to sever Gloria's parental rights. During the first few months after Benjamin had died and
Gloria had disappeared in May of 1994, Destiny and Brittany often asked their foster mother,
when will [we] see my Mommy and Daddy Gonzales? Eventually, the girls stopped asking,
and by the time Gloria reappeared in their lives (in May of 1995), Gloria was no more than a
friendly stranger to the girls.
Destiny and Brittany have received nothing but support and affection from the foster
family they have resided with these past few years. In the words of the social worker, Denley:
[Destiny and Brittany] are intelligent girls and they love these people [the foster family].
And do you take children away from a loving, happy family who have supported them for
over two years?
Gloria asked the lower court to show compassion and understanding by giving her a
second chance to parent Destiny and Brittany, notwithstanding her year-long absence, where
she admittedly dropped out of her children's young lives. We note that the district court
went out of its way to acknowledge the tragic circumstances that enveloped the Gonzales
family. However, the district court ultimately followed the mandates of this state's law in
giving primary consideration to the best interest of Destiny and Brittany. Destiny and Brittany
have been in a stable and loving home for four yearsmore than half of their young
lifetimesand they no longer know their biological mother.
and loving home for four yearsmore than half of their young lifetimesand they no longer
know their biological mother.
7
We conclude that the district court did not err in its
determination that it would be patently against their best interests to reinstate Gloria's parental
rights.
8
CONCLUSION
We conclude that clear and convincing evidence existed to support the district court's
conclusion that jurisdictional and dispositional grounds existed to support the termination of
Gloria's parental rights. Therefore, we affirm the judgment rendered below.
9
Shearing, C. J., and Young, J., concur.
This case represents another in a growing series of unlawful and unnecessary judicial
terminations of the parental relationship. The termination here was unlawful because
jurisdictional grounds for termination have not been established and unnecessary because it
certainly cannot be said in this case that under no reasonable circumstances [can] the
[children's] best interest . . . be served by sustaining the parental tie.' Greeson v. Barnes, 111
Nev. 1198, 1205, 900 P.2d 943, 948 (1995) (Springer, J., dissenting) (quoting Champagne v.
Welfare Division, 100 Nev. 640, 652, 691 P.2d 849, 858 (1984)).
Two jurisdictional grounds have been asserted by the State in this case, abandonment and
failure of parental adjustment. According to the applicable statute, before children can be
adjudicated as abandoned, the parent must be shown to have had a "settled purpose . . .
to forego all parental custody and relinquish all claims to the child."
__________

7
The dissent accuses the court of terminating Gloria's parental rights just because [Destiny and Brittany] have bonded' to their
foster family. We agree with our colleague's conclusion that it would be grave error to terminate this fundamental right merely because
[Destiny and Brittany] have bonded' with someone other than their natural parents. However, the dissent trivializes the relationship
between these little girls and the family they have lived with for four years by pejoratively referring to these ties as pop psychology
bonding.
Destiny and Brittany consider their foster family to be their true and only family, as they have no memory of their short time (one and
two years, respectively) with the Gonzaleses. The facts of this case clearly show that something more than pop psychology bonding has
grown between the girls and their foster family.

8
In response to the dissent's unsupported rhetoric accusing this court of an overweening desire to snatch children away from the poor
and handicapped, we note that this decision is neither based upon Gloria's financial status nor her physical capabilities, or any lack
thereof.

9
cated as abandoned, the parent must be shown to have had a settled purpose . . . to forego all
parental custody and relinquish all claims to the child. NRS 128.012(1). The settled
purpose of the mother in this case has not been to relinquish all claims to her children but,
rather, steadfastly to maintain her maternal relationship at all costs. There is nothing in this
record that would lead one to believe that this mother had the slightest intention, ever, to give
up or to relinquish all claims to her children. There is no way in which a factfinder could
have concluded that this mother abandoned her childrenunless one were to misapply the
presum[ption] of abandonment contained in NRS 128.012(2).
A presumption is created by NRS 128.012(2) whereby the parental rights of disappearing
parents can be terminated without the State's being put to the proof of the parents' intention
and purpose to relinquish all claims to the child.
1
Under NRS 128.012(2), if a wayward
parent absconds and leaves a child in the care and custody of another without provision for
his support and without communication for a period of 6 months, such a parent is presumed
to have intended to abandon the child. (My emphasis.)
2
Although the presumption might on
rare occasions be employed to shift the burden of going forward on the abandonment issue to
a respondent parent, to my way of thinking, the statutory presumption of abandonment was
created principally to facilitate the termination process in cases where a parent disappears,
incommunicado, leaving a child to be cared for by others and without providing any means
for the child's support. The presumption is not intended to effectuate parental severance in
cases, like this one, in which a parent who has been temporarily indisposed and unable to
attend to parental duties returns, claiming the right to restoration of parental custody.
__________

1
The phrase relinquish all claims to the child is part of the definition of abandonment contained in NRS 128.012(1).

2
First, I would note that the statute does not create a presumption of abandonment but, rather, a presumption to abandonment. The
provision relating to the act of leaving a child without support and the provision relating to the intention to abandon, evidenced by a failure
to communicate, are in the disjunctive. Although during the period that this mother was in residential treatment, she admits to her failure to
communicate with welfare authorities, she has certainly rebutted any claim that she intended. I find neither proof nor court finding to
support the act of abandonment, to leave the child in the care and custody of another without provision for his support. Although it
appears that there was a period during which this mother did not actually pay child support, it would not appear that she just left, leaving
the children with no provision for support. The children were certainly being provided for at the time of the disruption in this mother's life,
and she did not simply take off and leav[e] [her children] without provision for [their] support.
We have seen a palpable disposition on the part of the family courts, largely endorsed by
the decisions of this court, to interpret NRS 128.012(2) as virtually a conclusive presumption
of abandonment, by which a six-months absence is equated by the family court to the
jurisdictional ground of abandonment, notwithstanding a showing that the parent had a
justification for the failure to communicate and demonstrated clearly that there was at no time
even the slightest intention or settled purpose . . . to forego all parental custody and
relinquish all claims to the child.
This mother explained to the court (and it would appear from the transcript of the
proceedings (see footnote 6) that the court believed her) that her failure to communicate was
the direct result of the trauma that she suffered by reason of her having witnessed, in the
presence of her children, the brutal murder of her husband of twenty years and the father of
the children. She told the court that her life became a blur after this experience and that she
fled to California in confusion and in the fear that the murderer of her husband was going to
kill her too. Part of her reaction to her husband's murder was to return to a drug habit that had
developed earlier in her life; and part of the period in which she remained incommunicado
was spent in an eight-month residential drug rehabilitation program in which she was able to
break her drug habit, rediscover her religious faith and restore her self confidence. When she
left the drug rehabilitation center, she contacted Nevada welfare officials, telling them that
she was ready and able to resume her parental duties. Nevada welfare officials told her, in
effect, that she was too late, that termination proceedings had been commenced and that they
intended to carry these proceedings through to completion.
Before coming to Nevada to get Destiny and Brittany, the mother's other two children,
Vanessa and Crystal, were returned to the mother by California welfare authorities, after her
successful completion of the drug rehabilitation program. At this time it cannot be denied that
she was leading a happy and productive life, residing with her other two daughters and with a
dependable and caring man who was providing a father for her children. She begged the
Nevada family court to allow her to keep her family together and not to separate her
permanently from two of her four children and not to separate the sisters from each other. In
response to her plea, the court ruled in favor of the State's petition and decided that rather
than permit the family to be united it would terminate her parental rights, split the family in
two and order that two of Mrs. Gonzales' daughters, Destiny and Brittany, should remain in
foster care.
In this dissent I do not find it necessary to catalogue all of the travails of this unhappy
mother, but a number of things remain clear throughout: Gloria Gonzales is not an
unsuitable parent3; Gloria Gonzales did not abandon Destiny and Brittany; and Gloria
Gonzales did not "fail to adjust" to programs imposed upon her by welfare authorities.4
Gloria Gonzales became temporarily incapacitated and then, as readily seen by the trial
judge did "a lot of things that very few people are capable of doing" and successfully got
her "life straightened back out."
clear throughout: Gloria Gonzales is not an unsuitable parent
3
; Gloria Gonzales did not
abandon Destiny and Brittany; and Gloria Gonzales did not fail to adjust to programs
imposed upon her by welfare authorities.
4
Gloria Gonzales became temporarily incapacitated
and then, as readily seen by the trial judge did a lot of things that very few people are
capable of doing and successfully got her life straightened back out. What any reader of
this record will readily see is a mother who got temporarily off track, a mother who did a
remarkable job of getting back on track and a mother who deserves to have her family put
back together again.
In this case the district court made it very clear that in concluding that there were
jurisdictional grounds for termination it relied on the presumption of abandonment under
NRS 128.012 and the presumption in NRS 128.109 that if parental adjustment is not
completed within six months there is presumption of a failure to adjust. If the trial court had
not (incorrectly, I believe) invoked these presumptions, there would be no basis at all for the
action taken by the family court in this case.
The mother in this case creditably overcame almost overwhelming obstacles. She was able
to put her life together and to persuade California officials to place her other two daughters
back into her home, only to be told when she came to Nevada that it was too late and that, as
put by the trial judge, Destiny and Brittany have bonded to [a new] family. I suggested in
another dissent to another unlawful and unnecessary severance of natural parental rights, that
the State seems to be running amok, spouting pop psychology and terminating parental
rights in cases where it is clearly not necessary to do, particularly in cases of poor and
otherwise handicapped parents. Matter of Parental Rights as to Deck, 113 Nev. 124, 930
P.2d 760 (1997). I see the same pattern in the present case. I see emerging in this state a new,
unconstitutional standard for termination of parental rights: If children in foster care
"bond"5 with their foster parents, it's "goodbye forever" to the natural parents.
__________

3
[W]e must remember that poverty, sickness, and other such eventualities may result in the separation of children of a loving and
quite suitable parent. There is always the risk that passage of time might result in a situation in which a child develops new
relationshipsbecomes integrated into a foster family or otherwise becomes estranged from natural parents. Caution must be exercised
not to allow termination proceedings to be carried out absent a showing of unsuitability on the part of the parent by reason of the parent's
fault or incapacitation. Champagne, 100 Nev. at 651, 691 P.2d at 857.

4
As discussed in the text any supposed abandonment or failure to adjust in the case is attributable to the stormy period in her life
during which she was admittedly out of contact with her children and unable to attend to the specific duties to adjust, which were
imposed upon her by welfare authorities. Mrs. Gonzales never willfully had a purpose to relinquish her parental rights nor to flout the
authority of the Division of Child and Family Services.
new, unconstitutional standard for termination of parental rights: If children in foster care
bond
5
with their foster parents, it's goodbye forever to the natural parents. It is regrettable
indeed that this court, now to be followed by the trial courts, have abandoned the
constitutional mandates of Champagne and Santosky and are apparently willing to permit
parental rights to be terminated in virtually any case in which children are found to be
agreeably ensconced and bonded in a foster home.
As I see the present case, the family court judge reasoned as follows: The children were
doing well in their foster home; it was not in their best interests at the time for them to leave
that home and, therefore, the parental rights of the children's mother must be terminated. This
reasoning, of course, is legally and constitutionally unacceptable. Even if there had been an
abandonment or a failure to adjust in this case (I do not see how there could possibly have
been either, under the circumstances of this case), the district court would not have been
empowered to terminate parental rights unless it were able to conclude that under no
reasonable circumstances was the child's welfare and best interest served by sustaining
parental ties. Champagne v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984). It is
inconceivable that any court could find in this case that there was no way in which the
children's best interests could be served only by taking them permanently away from this
mother. In my view, just the opposite is true. The children's best interests would be served by
preserving the natural parental rights and keeping this mother and her four children together
in one home. All that the trial court found with regard to the necessary element that the
children's interests could not be served by leaving the maternal ties intact was:
The Court does not find that it is in the best interests of the children to place them back
with Mrs. Gonzales. The Court does find by clear and convincing evidence that the
dispositional ground has been met by the State and that the best interest of these
children is clearly served by ordering the termination in this case and allowing them
to continue that life they have had without concern and without future worry from
what may or may not happen in the very unstable life of Mrs. Gonzales.[6]
__________

5
Bond and bonding are pop psychology terms taken from the pop psychology best-seller, Beyond the Best Interests of the Child, a
somewhat antiquated paperback that proposes an unproved psychological theory that the best interests of children are served by terminating
natural parents' parental rights and permanently investing parental rights in the children's foster parents, in cases in which children have
bonded with these surrogate parents. Joseph Goldstein, Anna Freud, and Albert Solnit, Beyond the Best Interests of the Child (1973).
Whatever may be the validity of this psychological theory, its direct application to permanently depriving natural parents of their children
just because they have bonded (whatever that means) to someone else is contrary to our law and violative of our federal Constitution. See,
for example, Santosky v. Kramer, 455 U.S. 745 (1978), which recognizes a fundamental property right in parenthood and, in my opinion,
prohibits the permanent severance of parental relationships merely because children have bonded with some one other than their natural
parents.
does find by clear and convincing evidence that the dispositional ground has been met
by the State and that the best interest of these children is clearly served by ordering the
termination in this case and allowing them to continue that life they have had without
concern and without future worry from what may or may not happen in the very
unstable life of Mrs. Gonzales.

[
6
]
The foregoing recital, far from holding that there is no way to serve the children's best
interest short of legal severance of the maternal relationship, merely holds that in the court's
opinion it is not in the best interest of the children at that time that they be removed from the
foster home. Such a finding is immaterial in a termination case and is, as stated, a far cry
from concluding that this mother's parental rights must be forever severed because under no
circumstances could allowing her to continue her maternal relationship with Destiny and
Brittany be in their best interest.
In the recent epidemic of terminations of parental rights of poor and handicapped parents,
this is one of the best examples of when parental rights should not be terminated; therefore,
again, I dissent.
__________

6
The quoted recital by the court seems to me to be very much at odds with the court's appraisal of Mrs. Gonzales as a person. The
court addressed Mrs. Gonzales in this manner:
I am in awe to some degree of yourof the steps that you have taken to get your life straightened back out. You have done a lot of
things very few people are capable of doing. . . . I was impressed with your testimony. I was impressed with your efforts. In all
candor, I believe that you're very sincere. I don't think you're putting me on, nor do I think you're at some point going to relapse.
(My emphasis.)
____________
113 Nev. 341, 341 (1997) Kidder v. State
RICHARD ALDEN KIDDER, Appellant, v. THE
No. 29086
February 26, 1997 934 P.2d 254
This is an appeal from an amended order of the district court denying a post-conviction
petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Michael L.
Douglas, Judge.
Petition for writ of habeas corpus was brought to challenge voluntariness of guilty plea.
The district court denied petition, and petitioner appealed.
and petitioner appealed. The supreme court held that district court's plea canvass was
inadequate to show that petitioner's plea was knowing and voluntary.
Maupin, J., dissented.
Theodore J. Manos & Associates and Thomas C. Michaelides, Las Vegas, for Appellant.
Frankie Sue Del Papa, Carson City; Stewart L. Bell, District Attorney and Vicki J.
Monroe, Deputy, Clark County, for Respondent.
1. Criminal Law.
Plea canvass conducted by district court was inadequate to show that defendant's guilty plea was knowing and voluntary, though
district court made sure that defendant understood elements of attempted sexual assault charged against him, where it did not
determine that defendant was aware of rights he was waiving by pleading guilty, possible range of sentences he faced, or that plea was
not product of any coercion or improper promises. NRS 174.035(1).
2. Criminal Law.
Although district court should always conduct sufficient and thorough plea canvass, technical sufficiency of canvass is not only
consideration in determining if plea is valid. Supreme court reviews entire record and looks to totality of facts and circumstances of
case to determine validity of guilty plea. NRS 174.035(1).
3. Criminal Law.
Supreme court will not invalidate guilty plea simply because plea canvass is technically deficient as long as record shows that plea
was knowing and voluntary.
4. Criminal Law.
Written plea agreement supplements, but does not supplant, personal plea canvass. NRS 174.035(1).
OPINION
Per Curiam:
Appellant Richard Alden Kidder
1
pleaded guilty to one count of attempted sexual assault,
and a judgment of conviction was entered accordingly in February 1995. In January 1996,
Kidder filed a petition for a writ of habeas corpus with the district court, challenging the
voluntariness of his plea. The court denied the petition on September 6, 1996. We conclude
that the plea canvass conducted by the district court at Kidder's arraignment was inadequate
and reverse.
__________

1
The clerk of the court shall amend the caption on this court's docket sheet to correspond to the caption on this order.
FACTS
At Kidder's arraignment, the district court asked Kidder his age, the extent of his formal
education, and whether he read and wrote English. Kidder answered that he was 41 years old,
had obtained a GED, and did read and write English. The following colloquy then occurred.
The Court: Do you understand the nature of the charges contained against you in the
information wherein you . . .
The Defendant: Yes, sir.
The Court: Do you understand that if you went to trial the State would have to prove
beyond a reasonable [doubt] that between April 1994 and May 1994, in Clark County,
Nevada, that you did then and there wilfully, unlawfully, and feloniously, attempt to
sexually assault and subject [the victim] to sexual penetration to wit: sexual intercourse
by you attempting to plac[e] your penis in her vagina and against her will; do you
understand that, sir?
The Court: I have been given what purports to be a guilty plea memorandum; did
you see it?
The Court: Did you read it?
The Court: Did you understand it?
The Court: Did you sign it?
The Court: Did your attorney answer any question about it that you wanted to ask?
The Defendant: Yes.
The Court: Are there any questions about it that you want to ask me?
The Defendant: No, sir.
The Court: And do you understand that the court will read and consider everything
in your pre-sentence report in order to arrive at a fair and just sentence?
The district court then accepted Kidder's plea of guilty.
At his sentencing hearing, Kidder asked the district court to place him on probation. The
state argued that Kidder should go away for as long as he possibly could. The court
sentenced Kidder to nine years in prison, the term recommended in his presentence report.
Kidder petitioned the district court for habeas relief in January 1996, contending that his
plea canvass had been inadequate. He alleged that his trial counsel had informed him that
his sentence would be probation and that the state would stand silent at his sentencing.
alleged that his trial counsel had informed him that his sentence would be probation and that
the state would stand silent at his sentencing. The district court denied the petition, noting
that during the plea canvass Kidder said he understood and had signed the plea memorandum.
The court also noted that the memorandum enumerated the constitutional rights being waived
by Kidder and stated the plea was voluntary.
DISCUSSION
[Headnote 1]
On appeal, Kidder maintains that the plea canvass conducted by the district court was inadequate to show that his plea was knowing
and voluntary.
[Headnote 2]
When Kidder and the state entered into their plea agreement in October 1994, NRS 174.035(1) provided that a court shall not accept
[a guilty] plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made
voluntarily with understanding of the nature of the charge and consequences of the plea.
2
Although a district court should always conduct
a sufficient and thorough plea canvass, this court does not consider only the technical sufficiency of the canvass to determine if a plea is
valid. Bryant v. State, 102 Nev. 268, 271, 721 P.2d 364, 367 (1986). We review the entire record and look to the totality of the facts and
circumstances of a case to determine the validity of a guilty plea. Id.
[Headnotes 3, 4]
In Bryant, we did not intimate that the district court may dispense with a personal canvass of the defendant. Koerschner v. State, 111
Nev. 384, 387, 892 P.2d 942, 944 (1995). Bryant stands for the proposition that this court will not invalidate a plea simply because the plea
canvass is technically deficient as long as the record shows that the plea was knowing and voluntary. Id. In Koerschner, the district court
asked the defendant if he had read the criminal information and the written plea agreement and if his signature was
on the agreement.
__________

2
In 1995 the Legislature amended NRS 174.035. It now provides in pertinent part:
2. If a plea of guilty is made in a written agreement, the agreement must be in substantially the form prescribed in NRS
174.063. If a plea of guilty or guilty but mentally ill is made orally, the court shall not accept such a plea or a plea of nolo
contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding
of the nature of the charge and consequences of the plea.
(Emphasis added.) We need not determine the effect of this amendment because it does not apply to plea agreements entered into before
July 1, 1995. 1995 Nev. Stat., ch. 480, 6 at 1536.
the criminal information and the written plea agreement and if his signature was on the
agreement. The defendant answered affirmatively. The court asked if there was anything the
defendant did not understand about either document and if he had any questions about either
one. The defendant answered these questions negatively. The court accepted his plea. Id. at
385-86, 892 P.2d 943. This court deemed the plea canvass wholly inadequate because it
completely failed to determine whether the defendant understood the nature of the charges
and was pleading voluntarily. Id. at 387, 892 P.2d at 944. The written plea agreement did not
remedy the inadequate canvass because a written agreement supplements, but does not
supplant, a personal plea canvass. Id.
Here, in personally addressing Kidder, the district court made sure that Kidder understood
the elements of the attempted sexual assault that he was charged with. However, the court did
not determine that Kidder was aware of the rights he was waiving by pleading guilty or the
possible range of sentences he faced. The court also failed to determine that the plea was not
the product of any coercion or improper promises. Thus, the plea canvass completely failed to
determine that Kidder understood the consequences of his plea or that the plea was
voluntary.
3
Accordingly, after reviewing the entire record and considering the totality of the facts and
circumstances in this case, we conclude that the district court's plea canvass did not satisfy the
requirements of former NRS 174.035(1).
CONCLUSION
We therefore reverse the district court's order denying the petition for a writ of habeas
corpus. We remand this case and instruct the district court to allow Kidder to withdraw his
guilty plea.
Maupin, J., dissenting:
I dissent.
__________

3
Although Kidder has not raised this point on appeal, Kidder was not informed either by the written plea agreement or during the plea
canvass that a requirement to pay restitution was a direct consequence of his guilty plea. Thus, the district court erred in requiring
restitution. Cruzado v. State, 110 Nev. 745, 747, 879 P.2d 1195, 1196 (1994). The court further erred in ordering Kidder to pay restitution
in an amount to be determined. NRS 176.033(1)(c); Botts v. State, 109 Nev. 567, 568-69, 854 P.2d 856, 857 (1993). Given our
disposition of this appeal, we do not need to remedy these errors separately.
____________
113 Nev. 346, 346 (1997) Great American Ins. v. General Builders
GREAT AMERICAN INSURANCE COMPANY, an Ohio Corporation, Appellant, v.
GENERAL BUILDERS, INC., a Nevada Corporation dba AMERICAN GENERAL
DEVELOPMENT, Respondent.
No. 27352
GREAT AMERICAN INSURANCE COMPANY, an Ohio Corporation,
Appellant/Cross-Respondent, v. GENERAL BUILDERS, INC., a Nevada Corporation
dba AMERICAN GENERAL DEVELOPMENT, Respondent/Cross-Appellant.
No. 27578
March 6, 1997 934 P.2d 257
Appeals and cross-appeal from a judgment of the district court in respondent's favor and
post-trial orders awarding respondent attorney's fees, prejudgment interest, and costs. Sixth
Judicial District Court, Humboldt County; Richard Wagner, Judge.
Contractor sued surety seeking compensatory and punitive damages after surety revoked
payment and performance bonds as issued without actual authority, resulting in hospital
declining to award public works contract to contractor. The district court granted contractor's
motion for directed verdict on breach of contract claim at close of evidence at trial and sua
sponte directed verdict on contractor's claim of tortious breach of covenant of good faith and
fair dealing, and jury awarded compensatory and punitive damages. Surety appealed. The
supreme court held that: (1) issuing agent had apparent authority to issue surety contract; (2)
cancellation of bonds before their effective date did not render contract unenforceable; (3)
surety did not plead affirmative defense of rescission; and (4) punitive damages were not
warranted as there was no special relationship to support bad faith tort action.
Affirmed in part, reversed in part and remanded.
Lionel, Sawyer & Collins and Richard W. Horton and Madelene C. Amendola, Reno, for
Great American Insurance Company.
Bible, Hoy, Trachok & Wadhams and Michael Hoy, Reno, for General Builders, Inc.
1. Principal and Surety.
In contract for surety, one party, the surety, binds itself to answer for debt, default or miscarriage of another, the principal obligor.
Surety contract is formed at time surety's offer is accepted by principal.
Case involving would-be surety and principal was not bond claims case, and thus, statutory restriction on surety's ability to contest
validity of surety bond was inapplicable. In case of performance and payment bonds, bonds are not for protection of principal and so
principal has no standing to make claim against bonds themselves. NRS 339.025(1)(a), (b), 691B.030.
4. Principal and Agent.
Party claiming apparent authority of an agent as basis for contract formation must prove that he subjectively believed that agent
had authority to act for principal and that his subjective belief in agent's authority was objectively reasonable.
Apparent authority is application of equitable estoppel, and reasonable reliance is necessary element. Party who claims reliance
must not have closed his eyes to warnings or inconsistent circumstances.
Apparent authority, including third party's reasonable reliance on such authority, is a question of fact.
7. Judgment.
Issue of fact concerning agent's apparent authority to enter into surety contract on surety's behalf was not sufficient to defeat
summary judgment, where surety provided power of attorney to agent that represented agent as agent-in-fact with authority to enter
into surety contract such as one at issue.
Cancellation of surety bonds before effective date and before they were accepted by contracting body did not render surety's
contract with principal obligor unenforceable.
Surety's obligation under bonds to answer for default or misconduct of principal is distinct from surety's obligation to principal to
issue bonds.
Surety's obligation to principal to issue bonds arises at time surety agreement is executed by surety and principal, even though
surety's obligation to intended obligee does not arise until intended obligee has accepted offer of surety.
11. Contracts.
Rescission is equitable remedy that allows aggrieved party to contract to abrogate totally, or cancel, contract with final result that
parties are returned to position they occupied prior to formation of contract.
12. Cancellation of Instruments; Contracts.
Rescission may be accomplished in one of two ways: in legal rescission, party unilaterally cancels contract in response to material
breach on part of other party or for other valid reasons; in equitable rescission, party brings action to court with equitable jurisdiction
asking court to nullify contract.
13. Contracts.
Where there has been valid rescission of contract there is no longer contract to enforce and, therefore, no longer cause of action for
breach.
Rescission was not pleaded as affirmative defense in answer to breach of contract claim based on revocation of performance and
payment bonds under surety contract, and therefore surety was barred from submitting rescission evidence, even though surety used
term rescinded in affirmative defense in reference to bonds at issue, as import of affirmative defenses claimed was right to avoid any
obligation under surety contract based on surety's power to cancel bonds, rather than right to cancel contract itself in response to some
material breach by principal.
15. Torts.
Tort action for breach of implied covenant of good faith and fair dealing requires special element of reliance or fiduciary duty and
is limited to rare and exceptional cases.
16. Contracts; Fraud.
Plaintiff can assert contractual claim and also one for fraud based on facts surrounding contract's execution and performance.
17. Torts.
Tort liability for breach of good faith covenant is appropriate where party in superior or entrusted position has engaged in grievous
and perfidious misconduct, and awards beyond ordinary contract damages are sanctioned where necessary to make aggrieved, weaker,
trusting party whole and to fully punish tortfeasor for misdeeds.
18. Torts.
Bad faith tort actions are limited to those cases involving special relationships characterized by elements of public interest,
adhesion, and fiduciary responsibility.
19. Damages; Torts.
There was no special relationship to support tort liability, and thus award of punitive damages was error, in claim by principal
against surety for cancellation of performance and payment bonds, where both parties were commercial entities represented by
professional experienced agents and were never in inherently unequal bargaining positions, and public policy concerns were not
implicated; further, award of expected profits was adequate because it required surety to account for its failure to provide bonds as
promised and made principal whole.
OPINION
Per Curiam:
General Builders, Inc. is a Nevada building contractor specializing in the construction of
commercial and public works projects. John Sieben is the president and a principal
shareholder of General Builders. On May 10, 1994, General Builders was awarded a public
works contract to enlarge and remodel the Humboldt General Hospital (the Hospital) in
Winnemucca, Nevada. However, after the Hospital determined that the payment and
performance bonds submitted by General Builders as a part of its bid were inadequate, the
Hospital gave General Builders ten days from the date of the Notice of Award to furnish
acceptable payment and performance bonds for the project, or forfeit the contract.
able payment and performance bonds for the project, or forfeit the contract.
Sieben, knowing that he had to obtain the required surety bonds by May 20, 1994,
contacted a number of surety bond brokers including Surety Underwriters, Ltd. Surety
Underwriters in turn contacted Pac Coast Bond and Insurance Services (Pac Coast), a
California agent of Great American Insurance Company (Great American) authorized to
sell Great American bonds. Pac Coast issued the requested bonds as attorney-in-fact for Great
American and delivered them to Surety Underwriters who, in turn, notified Sieben that the
bonds were ready. Sieben then flew to the southern California office of Surety Underwriters,
inspected the bonds, the power of attorney form attached to the bonds, and the Great
American corporate seal, paid the $125,000.00 premium, and returned to Nevada with the
bonds.
At trial, Great American offered evidence that, under the agency agreement between Pac
Coast and Great American, Pac Coast was only authorized to issue bonds with the express
prior approval of Great American. In this instance, however, due to confusion at Pac Coast,
Pac Coast issued the bonds without seeking approval from Great American. Nevertheless, it
is undisputed that Pac Coast's agent, Kim Smith, executed the bonds as attorney-in-fact for
Great American, embossed the bonds with Great American's corporate seal, and attached a
power of attorney to the bonds executed by Great American which purported to confer on
Smith the authority to execute in behalf of [Great American], as surety, any and all bonds,
undertakings and contracts of suretyship, or other written obligations in the nature thereof.
1
The fact that the bonds were issued without actual authority came to the attention of Bill
Jarvis, a senior bond claim lawyer in Great American's Seattle, Washington office. On May
19, 1994, Jarvis informed Sieben and the Hospital that the unauthorized bonds would be
revoked by Great American. By telephone and in a confirming letter to Sieben, Jarvis
emphasized that the bonds were being revoked because the issuing agent lacked authority to
issue the bonds and not due to any fault or misconduct of General Builders.
On the same day, May 19, 1994, Jarvis received an internal memorandum from one of the
lawyers under his supervision. The letter advised Jarvis that the surety contract between Great
American and General Builders was binding because of the apparent authority of Kim
Smith.
__________

1
According to the Great American form upon which Pac Coast applied for power of attorney as a Great American agent: A power of
attorney is the written evidence to the public of the individual attorney-in-fact being able to sign, seal, and deliver a bond. It gives no
authority to the attorney in fact.
ican and General Builders was binding because of the apparent authority of Kim Smith. The
letter also advised Jarvis that Great American would be liable under the contract unless the
contract could be rescinded or unless some other legal basis for avoiding enforcement of the
contract could be found.
Great American's revocation of the payment and performance bonds resulted in the
Hospital declining to award the construction contract to General Builders. This litigation
followed.
General Builders asserted claims for, inter alia, breach of contract and tortious breach of
the covenant of good faith and fair dealing. General Builders sought compensatory and
punitive damages, as well as attorney's fees and costs. In response to cross-motions for
summary judgment, the district court ruled: (1) that a valid contract of surety was formed
between Great American and General Builders based on the apparent authority of Great
American's agent, Pac Coast; and (2) that a material issue of fact remained as to whether
Great American breached the contract of surety when it revoked the bonds.
The district court rejected Great American's pre-trial motion to preclude jury instructions
on punitive damages. Great American brought the motion on the premise that, as a matter of
law, General Builders was not entitled to punitive damages for tortious breach of the
covenant of good faith and fair dealing as no special relationship existed between General
Builders and Great American. The district court also ruled that Great American was not
entitled to argue rescission of the contract of surety because Great American had not pleaded
rescission as an affirmative defense to breach of contract.
At the close of the evidence at trial, the district court granted General Builders' motion for
a directed verdict on its breach of contract claim, and sua sponte, directed a verdict in favor
of General Builders' claim of tortious breach of the covenant of good faith and fair dealing.
The case was submitted to the jury for a determination of damages. The jury returned a
verdict awarding General Builders $947,566.00 in compensatory damages and $2.5 million in
punitive damages. Following entry of the judgment, Great American timely appealed to this
court.
2
General Builder's motion for partial summary judgment on the issue of contract formation
Summary judgment is only appropriate when, after a review of the record viewed in a light
most favorable to the non-moving party, there remain no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law.
__________

2
Also, in a series of post-trial orders the district court awarded General Builders attorney's fees in the amount of $150,971.68,
prejudgment interest in the amount of $99,221.84, and costs in the amount of $22,523.76. These orders are the subject of the appeal and
cross-appeal in Case No. 27578.
party, there remain no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663
(1985). All of the nonmovant's statements must be accepted as true, and a district court may
not pass on the credibility of affidavits. Sawyer v. Sugarless Shops, 106 Nev. 265, 267, 792
P.2d 14, 15 (1990). This court's review of an order granting summary judgment is de novo.
Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).
[Headnotes 1-3]
In a contract of surety, one party, the surety, binds itself to answer for the debt, default or miscarriage of another, the principal obligor.
First Virginia BankColonial v. Baker, 301 S.E.2d 8, 10 (Va. 1983). The surety contract is formed at the time the surety's offer is
accepted by the principal. Trident Corp. v. Reliance Ins. Co., 504 A.2d 285, 290 (Pa. Super. Ct. 1986). In Nevada, the surety's obligation
to the obligee may take the form of a surety bond. See NRS 691B.020 (authorizing issuance of corporate bonds).
3
In the present case, it is undisputed that Kim Smith of Pac Coast did not have actual authority to enter into the surety contract with
General Builders on behalf of Great American. It is also undisputed that Great American had provided Smith and Pac Coast with Great
American's corporate seal and unconditional Power of Attorney representing their authority to enter into surety contracts on behalf of Great
American and to issue Great American bonds. The district court, therefore, granted General Builders' motion for partial summary judgment
on the issue of contract formation on the ground that Great American had clothed Smith and Pac Coast with apparent authority to execute
the surety contract as Great American's agent-in-fact.
4
Great American contends that the district court erred in concluding
that the parties had formed a contract of surety as a matter of law because a question of fact exists as to
whether General Builders' reliance on Pac Coast's apparent authority was reasonable.
__________

3
In the case of performance and payment bonds, the bonds are not for the protection of the principal; they are solely for the protection
of, respectively, the contracting body (i.e., the Hospital) and claimants supplying labor and materials to the contractor to whom the contract
was awarded (i.e., those making claims against General Builders). See NRS 339.024(1)(a) (performance bonds); NRS 339.025(1)(b)
(payment bonds). Thus, the principal has no standing to make a claim against the bonds themselves. It follows that the present case,
involving only a would-be surety and principal, is not a bond claims case. Consequently, NRS 691B.030, which greatly restricts a surety's
ability to contest the validity of a surety bond, is inapplicable. NRS 691B.030 provides: Any insurer which executes any surety contract as
surety shall be estopped, in any proceeding to enforce the liability which it has assumed to incur, to deny its power to execute such contract
or assume such liability.

4
Great American appealed the district court's finding that Smith and Pac Coast had apparent authority to bind it in a contract of
suretyship; however, Great American failed to raise another potentially viable argument. In Nevis
tends that the district court erred in concluding that the parties had formed a contract of surety
as a matter of law because a question of fact exists as to whether General Builders' reliance
on Pac Coast's apparent authority was reasonable.
[Headnotes 4-6]
A party claiming apparent authority of an agent as a basis for contract formation must prove (1) that he subjectively believed that the
agent had authority to act for the principal and (2) that his subjective belief in the agent's authority was objectively reasonable. Smith v.
Hansen, Hansen & Johnson, 818 P.2d 1127, 1135 (Wash. Ct. App. 1991). Apparent authority is, in essence, an application of equitable
estoppel, of which reasonable reliance is a necessary element. Ellis v. Nelson, 68 Nev. 410, 418, 233 P.2d 1072, 1076 (1951); see also
Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 614, 655 P.2d 996, 998-99 (1982) (elements of estoppel). As previously noted by this
court, the party who claims reliance must not have closed his eyes to warnings or inconsistent circumstances. Tsouras v. Southwest
Plumbing & Heating, 94 Nev. 748, 751, 587 P.2d 1321, 1322 (1978). Apparent authority, including a third party's reasonable reliance on
such authority, is a question of fact. Smith, 818 P.2d at 1133.
[Headnote 7]
Great American enumerates a number of facts that it contends makes General Builders' reliance on Pac Coast's apparent authority
unreasonable.
5
According to Great American, these facts were sufficient to put General Builders on inquiry notice, requiring
General Builders to contact Great American directly to verify the validity of the surety contract rather than
relying on Pac Coast's power of attorney and other indicia of authority.
__________
v. Fidelity New York, 104 Nev. 576, 578, 763 P.2d 345, 346 (1988), this court stated that, Courts recognize the serious obligation
imposed upon a guarantor, and generally require evidence of specific authorization before finding that an agent has authority to bind his
principal in a guaranty agreement.
In Nevis, we cited to Chicago Title Ins. Co. v. Progressive Housing, 453 F. Supp. 1103, 1106 (D. Colo. 1978), in support of our
holding. The Chicago Title opinion reasoned:
Authority to bind the principal by a contract of guaranty or suretyship is not ordinarily to be implied from the existence of a
general agency. Such a contract is extraordinary and unusual and not normally within the powers accruing to an agent by
implication . . . ; ordinarily the power exists only if expressly given.'
Chicago Title, 453 F. Supp. at 1106-07 (citations omitted); (emphasis added); see also Williston on Contracts 277A, at 230 (3d ed. 1959
& Supp. 1996) (However general the character of the agency may be, a contract of guaranty or suretyship is not normally to be inferred
from such an agency.).
Arguably Great American had clothed Pac Coast with something more than a general agency, considering the language of the power
of attorney attached to the bonds.

5
For example: General Builders had a great deal of experience obtaining bonding and therefore knew, or should have known, that
surety brokers do not have the authority to issue bonds without the prior approval of the surety;
sufficient to put General Builders on inquiry notice, requiring General Builders to contact
Great American directly to verify the validity of the surety contract rather than relying on Pac
Coast's power of attorney and other indicia of authority. We conclude that in light of Pac
Coast's power of attorney, provided by Great American, which represented Smith and Pac
Coast as agents-in-fact with authority to enter into precisely the type of surety contract at
issue in this case, the facts cited by Great American are not sufficient to raise a question of
fact as to Pac Coast's apparent authority.
[Headnotes 8-10]
Great American also contends that no enforceable contract with General Builders exists because Great American cancelled the bonds
before their effective date and before the Hospital accepted them. We disagree. A surety's obligation under the bonds to answer for the
default or misconduct of the principal is distinct from the surety's obligation to the principal to issue the bonds. Moreover, although a
surety's obligation to the intended obligee (in this case the Hospital) does not arise until the intended obligee has accepted the offer of
surety (i.e., the bonds), the surety's obligation to the principal to issue the bonds arises at the time the surety agreement is executed by the
surety and the principal. Trident Corp. v. Reliance Ins. Co., 504 A.2d 285, 290 (Pa. Super. Ct. 1986).
We hold that the district court did not err in concluding that Great American and General Builders had formed a surety contract as a
matter of law; the district court, therefore, did not abuse its discretion in granting General Builders' motion for partial summary judgment
on the issue of contract formation.
General Builders' motion in limine to exclude evidence relevant to Great American's affirmative defense of rescission
[Headnotes 11-13]
At the hearing on General Builders' motion in limine, the district court ruled that Great American was not entitled to introduce
evidence of facts that would justify rescission of the surety contract because Great American had not pleaded rescission as an affirmative
defense.
6
Nevada is a notice-pleading jurisdiction and pleading should be liberally construed to allow issues that are
fairly noticed to the adverse party."
__________
the bonds were obtained through Surety Underwriters who had previously provided unacceptable bonds to General Builders; Great
American had refused to write an $800,000.00 bond for General Builders nine months previously; the $125,000.00 premium charged for
the Great American bonds was much higher than the price for bonds provided by Surety Underwriters that the Hospital rejected; the only
other surety that offered General Builders bonding for the project required collateral.

6
Rescission is a remedy, equitable in nature, that allows an aggrieved party to a contract to abrogate totally, or cancel, the contract,
with the final result
jurisdiction and pleading should be liberally construed to allow issues that are fairly noticed
to the adverse party. Nevada State Bank v. Jamison Partnership, 106 Nev. 792, 801, 801
P.2d 1377, 1383 (1990). Great American contends that two of its affirmative defenses were
sufficient, when construed liberally, to provide General Builders fair notice that rescission
was being claimed as a defense to Great American's failure to perform under the surety
contract. Affirmative defense No. 15 states: The alleged bonds were withdrawn, revoked,
rescinded or declared invalid by Defendant before the effective date of the alleged bonds and
thus before the bonds could become effective. (Emphasis added.) Affirmative defense No.
18 states: The alleged bonds were withdrawn before the alleged bonds were accepted by the
Humboldt Hospital Board of Trustees.
[Headnote 14]
We conclude that Great American did not plead rescission as an affirmative defense in its answer. Although affirmative defense No. 15
does use the word rescinded in reference to the bonds, the obvious import of both this defense and affirmative defense No. 18 is that
Great American was claiming the right to avoid any obligation under the surety contract simply because it had the power to cancel the
bonds, rather than the right to cancel the contract in response to a material breach by General Builders. We conclude, therefore, that the
district court did not err in barring Great American's rescission evidence on the ground that Great American did not properly plead the
defense.
The punitive damages award
Great American contends that this is an ordinary breach of contract case and that the award of punitive damages was therefore
improper. See NRS 42.005(1). We agree.
[Headnotes 15-16]
The tort action for breach of the implied covenant of good faith and fair dealing requires a special element of reliance or fiduciary duty,
A.C. Shaw v. Washoe County, 105 Nev. 913, 915, 784 P.2d 9, 10 (1989), and is limited to rare and exceptional cases, K Mart Corp. v.
__________
that the parties are returned to the position they occupied prior to formation of the contract. Bergstrom v. Estate of DeVoe, 109 Nev. 575,
577, 854 P.2d 860, 861 (1993). Rescission may be accomplished in one of two ways: In what is called legal rescission, a party, in
response to a material breach on the part of the other party or for other valid reasons, unilaterally cancels the contract; alternatively, in what
is known as equitable rescission, the aggrieved party brings an action in a court with equitable jurisdiction asking the court to nullify the
contract. A priori, where there has been a valid rescission of the contract, there is no longer any contract to enforce and, therefore, no longer
a cause of action for breach.
Mart Corp. v. Ponsock, 103 Nev. 39, 49, 732 P.2d 1364, 1370 (1987). We have recognized
this type of reliance in various relationships, including those formed by employment,
bailment, insurance, partnership, and franchise agreements, id. at 49-51, 732 P.2d at 1370-72;
and that a plaintiff can assert a contractual claim and also one for fraud based on the facts
surrounding the contract's execution and performance. See Amoroso Constr. v. Lazovich and
Lazovich, 107 Nev. 294, 810 P.2d 775 (1991).
[Headnote 17]
Tort liability for breach of the good faith covenant is appropriate where the party in the superior or entrusted position has engaged in
grievous and perfidious misconduct. Id. at 49, 732 P.2d at 1371. Awards beyond ordinary contract damages are sanctioned where
necessary to make the aggrieved, weaker, trusting' party whole' and to fully punish the tortfeasor for his misdeeds. Id. Accordingly, we
have denied tort liability in certain relationships where agreements have been heavily negotiated and the aggrieved party was a
sophisticated businessman. See Aluevich v. Harrah's, 99 Nev. 215, 660 P.2d 986 (1983).
[Headnotes 18, 19]
In Ponsock, we limited bad faith tort actions to those cases involving special relationships characterized by elements of public interest,
adhesion, and fiduciary responsibility. Ponsock, 103 Nev. at 39, 732 P.2d at 1364. Although General Builders understandably devotes a
considerable portion of its brief to the proposition that a special relationship existed between the parties, clearly the elements of a
relationship which would support tort liability are not present in this case. The facts of this case do not raise the same public policy
concerns implicated where an insurance company refuses to compensate a policyholder for losses covered by the policy. See, e.g., United
States Fidelity v. Peterson, 91 Nev. 617, 540 P.2d 1070 (1975). General Builders did not take out an insurance policy with Great American
in order to be protected against potential property damage or other losses. Rather, the Hospital required bonds to be posted for its own
security.
Moreover, the parties, both experienced commercial entities represented in the present transaction by professional and experienced
agents, were never in inherently unequal bargaining positions. Furthermore, an award of expected profits is adequate because it requires
Great American to account for its failure to provide the bonds as promised and because it makes General Builders whole. The only harm
General Builders has suffered is loss of the Hospital contract, a harm easily compensated with money damages. There is no insurance or
other special relationship in this case; therefore, we conclude that the district court erred in finding tortious
conduct in this case and in allowing an award of punitive damages.
ship in this case; therefore, we conclude that the district court erred in finding tortious
conduct in this case and in allowing an award of punitive damages.
We conclude that (1) the district court did not err in entering summary judgment in favor
of General Builders on the issue of contract formation; (2) the district court did not err in
barring the admission of Great American's evidence on the affirmative defense of lawful
rescission in response to material breach, as Great American had not adequately pleaded the
defense; (3) the district court erred in directing a verdict in favor of General Builders on the
issue of tortious breach of contract and in awarding punitive damages.
7
We, therefore, affirm the judgment of the district court as it relates to the award of
compensatory damages, vacate the award of punitive damages, vacate the post-trial orders
awarding attorneys fees, costs, and prejudgment interest, and remand to the district court for
recalculation of the amounts of reasonable attorney's fees, costs, and prejudgment interest, if
any, in light of this opinion.
8
Shearing, C. J., Springer and Rose, JJ., and Zenoff, Sr. J.,
9
concur.
__________

7
Great American also contends that the district court erred by instructing the jury to award a double recovery. This contention is
without merit.

8

9
The Honorable Thomas L. Steffen, then-Chief Justice, appointed The Honorable David Zenoff, Senior Justice, to sit in the place of
The Honorable Cliff Young, Justice. Nev. Const. art. 6, 19; SCR 10.
____________
113 Nev. 356, 356 (1997) State, Dep't Hum. Res. v. Jimenez
THE STATE OF NEVADA, DEPARTMENT OF HUMAN RESOURCES, DIVISION OF
MENTAL HYGIENE AND MENTAL RETARDATION, Appellant, v. JULIE
JIMENEZ, as Guardian Ad Litem for John Doe, a Minor, Respondent.
No. 26021
March 27, 1997 935 P.2d 274
Appeal from a judgment entered pursuant to a bench trial in a civil action for negligent
supervision and sexual assault. Second Judicial District Court, Washoe County; Peter I.
Breen, Judge.
Juvenile brought action against state to recover damages for sexual assaults committed
against him while he was in group home for adolescent sex offenders.
home for adolescent sex offenders. The district court awarded damages to juvenile, and state
appealed. The supreme court held that: (1) state waived its sovereign immunity for intentional
torts committed by employees in scope of their employment; (2) group home leader's sexual
assaults of juvenile were committed within scope of group home leader's employment; (3)
evidence supported damage awards on nine counts of sexual assault; and (4) allowing
juvenile damages for negligent supervision amounted to impermissible double recovery.
Opinion Withdrawn, State, Dep't Hum. Res. v. Jimenez, 113 Nev. 735, 941 P.2d 969
(1997).
[Rehearing dismissed.]
Frankie Sue Del Papa, Attorney General, and Cynthia A. Pyzel, Senior Deputy Attorney
General, Carson City, for Appellant.
Durney and Brennan, Reno; Calvin R.X. Dunlap, Reno, for Respondent.
1. States.
State has waived its sovereign immunity for intentional torts committed by employees acting within scope of their employment.
NRS 41.0334(1), (2)(a), 41.03475.
2. States.
State can be held liable for injuries resulting from sexual assaults that occur during course and scope of state worker's employment.
NRS 41.031(1), 41.0334(1), 41.03475.
3. States.
Group home leader acted within course and scope of his employment when he sexually assaulted mentally retarded juvenile in
custody of adolescent sex offender program, and, therefore, state was vicariously liable for sexual assaults. Requiring state to pay for
sexual assaults would encourage state to take preventive measures against such egregious behavior, supervisor's conduct was not so
unusual or startling that it would be unfair to hold state liable for it, and holding state liable would give greater assurance of
compensation for victim and ensure that victim's losses would be borne by those who benefited from enterprise that gave rise to the
injury. NRS 41.031(1), 41.0334(1), 41.03475.
4. Master and Servant.
Employer may be held vicariously liable for employee's torts, regardless of employee's motivation, if actual occurrence was
generally foreseeable consequence of the activity, and, for these purposes foreseeable means merely that, in context of the
particular enterprise, employee's conduct was not so unusual or startling that it would seem unfair to include loss resulting from it
among other costs of employer's business; however, employer is not liable if employee substantially departs from his duties for purely
personal reasons.
Policy objectives underlying respondeat superior are to prevent occurrence of tortious conduct, to give greater assurance of
compensation for the victim, and to ensure that victim's losses will be equitably borne by those who benefit from the enterprise that
gave rise to the injury.
In respondeat superior cases concerning course and scope of employment, no single factor is necessarily controlling, and each case
must be determined on its own particular facts and circumstances.
7. States.
State's supervision of group home leader for adolescent sex offenders was operational act, for purposes of determining whether
state had waived its sovereign immunity, even though establishment of program for adolescent sex offenders was a discretionary act.
NRS 41.032.
8. States.
Discretionary act for which state retains its sovereign immunity is an act which requires exercise of personal deliberation,
decision, and judgment. NRS 41.032.
9. States.
In close case, court favors determination that state's act is operational, rather than discretionary, for purposes of determining
whether sovereign immunity has been waived. NRS 41.032.
10. Infants; States.
Group home leader's sexual assaults of juvenile were separate and distinct torts, each of which entitled juvenile to $50,000
maximum liability against state.
11. States.
Causal approach, which asks whether single, uninterrupted cause results in all injuries and damage, determines whether state
employee's conduct amounts to single tort or to series of separate and distinct torts, for purposes of determining extent to which victim
is entitled.
12. States.
State's negligent supervision of group home leader stemmed from single, ongoing cause such that state could be held liable for
only one count of negligent supervision, even though group home leader sexually assaulted adolescent in his care nine times.
Under theory of respondeat superior, act of servant within scope of his employment must be considered act of master, for which
master is liable to same extent as though he had performed the act in person.
Reviewing court will not substitute its judgment for that of fact finder on issue of damages and will not reverse allegedly excessive
award unless it is flagrantly improper, indicating passion, prejudice, or corruption.
15. Damages.
Extreme emotional distress must be manifested by physical injury or illness, that is, something more than just embarrassment, to
sustain damage award.
16. Damages.
Award of $50,000 for each sexual assault committed against juvenile in state custody was supported by evidence that child
suffered sexual trauma and emotional distress from being subjected to anal intercourse; however, additional award of
$50,000 for state's negligent supervision of perpetrator amounted to impermissible double recovery.
however, additional award of $50,000 for state's negligent supervision of perpetrator amounted to impermissible double recovery.
By failing to pursue trial ruling on issue, state waived its claim that it was entitled to setoff, against damages awarded to juvenile
who was sexually assaulted by group home leader while juvenile was in state's custody, for the cost of treatment juvenile received at
group home. NRS 42.020.
OPINION
Per Curiam:
The instant appeal arises from allegations of sexual assaults of a minor involuntarily
placed in a State agency for adolescent sex offenders. After the program's supervisor, Mike
Peters, had been relieved of his duties for reasons unrelated to the allegations in this lawsuit,
the minor revealed that he had been repeatedly sexually assaulted by Peters. Julie Jimenez,
mother and guardian ad litem of the minor (hereinafter referred to as John Doe), sued the
State for negligent supervision of Peters and for the resulting false imprisonment, battery, and
sexual assault of her son.
The district court found the State liable for nine counts of sexual assault and one count of
negligent supervision and awarded Jimenez the statutory maximum allowed for each count,
$50,000. We conclude that the district court properly found liability and assessed damages on
the counts for sexual assault. We also conclude that the district court properly found liability
on the count for negligent supervision but that the award of damages for that count amounted
to a double recovery for a single injury and must be reversed.
FACTS
In 1990, the State of Nevada Department of Human Resources, Division of Mental
Hygiene and Mental Retardation (the State), operated the Northern Nevada Child and
Adolescent Services (NNCAS). NNCAS ran a variety of programs ranging from residential to
outpatient programs and programs for very young children to adolescents. Two of the
programs, including the one in which John Doe was enrolled, were based on a nationally
recognized behavioral program, the Family Learning Home Model. The State had been
running family learning home programs since 1975.
As an agency of the State of Nevada, NNCAS's hiring and employment practices are
required to meet the State's laws and regulations. These include reference and fingerprint
checks and a probationary evaluation period for new employees. If an employee successfully
completes probation, he or she is considered a permanent employee.
ered a permanent employee. As employees of a state agency, individuals are also subject to an
annual review.
In 1987, Michael Peters was hired as a Mental Health Technician by the Nevada Mental
Health Institute (NMHI), an agency also under the control of the State's Division of Mental
Hygiene and Mental Retardation. After three months of reviews indicating quality work
performance, Peters laterally transferred to a position in the NNCAS with the Adolescent
Treatment Center, a twenty-four hour awake supervision facility for the treatment of
adolescents with mental disorders. For this position, Peters filled out another employment
application, provided references from his supervisor at NMHI, and was fingerprinted so that
the FBI could do a background check for any criminal history.
In late 1989, NNCAS was reviving its sexual offender treatment home at Desert Hills and
was looking for a professional teaching partner. Until 1989, the Desert Hills program had
operated with a teaching couple living at the home. After the last couple left the program, the
State could not find replacements and was forced to terminate the program. The State then
chose to use teaching partners instead of the teaching couple in order to facilitate the hiring
of better qualified individuals and to enable continuation of the program if one of the teaching
partners were to leave.
In December of 1989, Peters commenced work at the Desert Hills program as the
administrator. He received training from nationally recognized experts in the treatment of
adolescent sexual offenders and spent time with the former supervisor of the program. At that
time, no problems or concerns were identified regarding Peters' ability to perform the job or
about his ability to work with adolescents. Peters was initially brought over to the Children
Behavioral Services program to learn the Family Learning Home Model upon which Desert
Hills was based.
Around April of 1990, two other professional teaching partners, Noel Cullen and Deborah
Henson, joined Peters at Desert Hills. Desert Hills reopened in June of 1990 with Peters
designated the home supervisor of the program. Peters' coworkers began to have problems
with the manner in which Peters was supervising them. The State claims that the complaints
did not address how Peters dealt with the children, but only how he treated his co-workers.
Henson and Cullen felt Peters was belittling them and was not letting them share equally in
the duties and responsibilities.
The complaints culminated in two meetings between Peters and his supervisor, Les
Gruner. At the second meeting on July 24, 1990, it became clear to Gruner that Peters had not
listened to him and had not implemented any changes in his supervisory methods.
methods. That afternoon, Peters was relieved of his duties at Desert Hills and placed on
administrative leave. The State contends that up to this point there had been no indication that
Peters might be sexually assaulting any of the children. However, evidence was presented at
trial that, prior to his removal, Peters had demonstrated inappropriate behavior at Desert
Hills, specifically that he had sexually suggestive magazines at the group house and that
complaints had been lodged with Gruner regarding this behavior.
John Doe was the third child brought into the program. He was brought in on June 25,
1990, when he was fourteen. He had been diagnosed since birth as learning disabled and
mildly retarded. For the preceding four years, John Doe had been subjected to sexual assaults
by a maternal uncle and his cousins. Around 1988 or 1989, John Doe began to sexually
assault his younger brother. In February of 1990, his mother caught him having anal
intercourse with his younger brother. He was put on juvenile probation; however, he
continued to sexually assault his brother, and the court ultimately put him in the Desert Hills
program for treatment.
On July 28, 1990, approximately one month after John Doe's admission to the program
and four days after Peters was relieved of his duties, allegations of Peters' sexual assaults of
John Doe were made by John Doe. The staff decided to question John Doe in response to his
behavior after Peters had left the program. John Doe stated that Peters would come into his
room, talk to him, and then subject him to anal intercourse. John Doe said that to the best of
his recollection, the number of times Peters sexually assaulted him was in the double
figures. John Doe testified at trial that he did not report the assaults because Peters
threatened him and because Peters' assaults on him made him feel like trash. He also
testified he had looked up to Peters like a father.
Following these allegations, Cullen and Henson notified law enforcement, child protective
services, and their supervisors. The State claims this was the first time any allegation of
impropriety toward clients was made about Peters. Law enforcement officials interviewed the
other children in the program who had been around Peters and uncovered no other allegations
of impropriety. However, at trial, a minor client of Children's Behavior Services, the agency
Peters had worked for prior to going to Desert Hills, testified that Peters had also sexually
assaulted him and subjected him to anal intercourse over one-hundred times during a
six-month period.
A medical examination of John Doe revealed that he had sustained sexual trauma, but the
State claimed that due to John Doe's extensive history of prior abuse, no conclusions could be
reached regarding the allegations against Peters.
reached regarding the allegations against Peters. Peters was placed on administrative leave for
the duration of the investigation and then laterally transferred back to the NMHI.
Julie Jimenez, John Doe's mother, was appointed as his guardian ad litem. She sued the
State for negligent supervision of Peters and for the resulting false imprisonment, battery, and
sexual assault of her son. The district court found that Peters scheduled the employee
rotations so that he would be the sole staff member on the premises during the nighttime
shifts. His duties on the night shift included checking the boys' rooms when they were
sleeping. The district court also found that on nine separate and distinct occasions, when
Mike Peters entered [John Doe's] room while performing his assigned employment duties, he
sodomized [John Doe] without the consent and against the will of [John Doe].
The district court concluded by finding the State liable for nine counts of sexual assault
and one count of negligent supervision. The court found that John Doe suffered physical and
emotional injuries and would continue to suffer such injuries. Accordingly, the district court
awarded $50,000 for each of the nine separate acts of sexual assault, along with the additional
sum of $50,000 for the State's failure to reasonably supervise the program and its staff, for a
total of $500,000 in damages. We conclude that the district court properly awarded damages
for the nine counts of sexual assault but that the award of damages for the negligent
supervision is tantamount to a double recovery for the same injury and must be reversed.
DISCUSSION
The State waived immunity from liability for Peters' sexual assaults
The State claims that sovereign immunity is not waived for intentional torts and therefore
the district court improperly found the State liable for Peters' actions of sexual assault.
1
The
State has not challenged the district court's finding of liability on the claim of negligent
supervision.
The State of Nevada hereby waives its immunity from liability and action and hereby
consents to have its liability determined in accordance with the same rules of law as are
applied to civil actions against natural persons and corporations, except as
otherwise provided in NRS 41.032 to 41.03S, inclusive, 4S5.31S, subsection 4 and
any statute which expressly provides for governmental immunity . . . .
__________

1
We find this argument puzzling because in its opening brief to this court, the State conceded that it had waived its immunity for the
tortious acts of its employees who acted within the course and scope of employment. Despite this concession, we will still reach this issue.
applied to civil actions against natural persons and corporations, except as otherwise
provided in NRS 41.032 to 41.038, inclusive, 485.318, subsection 4 and any statute
which expressly provides for governmental immunity . . . .
In State v. Silva, 86 Nev. 911, 914, 478 P.2d 591, 593 (1970), this court discussed the
statutory codification and the interpretation of sovereign immunity in this state. We stated:
Before the enactment of the statutory waiver of immunity, Nevada case law on the
viability of the doctrine of sovereign immunity was uncertain and in flux. The trend
was toward the judicial abolition of that doctrine. It is only fair to assume that the 1965
Legislature reacted to that trend, and elected to waive immunity within limits and
impose a ceiling upon the recovery allowable to a claimant, rather than await further
judicial action upon the subject. The apparent legislative thrust was to waive immunity
and, correlatively, to strictly construe limitations upon that waiver.
Id. (citations omitted; emphasis added). Strict construction of NRS Chapter 41 indicates that
the Legislature intended to waive the State's sovereign immunity generally and then reinstate
that immunity in certain limited circumstances.
[Headnote 1]
NRS 41.0334(2)(a) states that the immunity granted to the State in NRS 41.0334(1)
2
will not apply to any action for injury
intentionally caused by a State employee. We construe this provision to mean that the State can be held liable for the intentional torts of
its employees. However, this liability is subject to the restrictions of NRS 41.03475, which states:
No judgment may be entered against the State of Nevada or any agency of the state or against any political subdivision of the
state for any act or omission of any present or former officer, employee, immune contractor, member of a board or commission, or
legislator which was outside the course and scope of his public duties or employment.
__________

2
Except as otherwise provided in subsection 2, no action may be brought under NRS 41.031 or against an officer or employee
of the state or any of its agencies or political subdivisions for injury, wrongful death or other damage sustained in or on a public
building or public vehicle by a person who was engaged in any criminal act proscribed in NRS 202.810, 205.005 to 205.080,
inclusive, 205.220, 205.225, 205.235, 205.240, 205.245, 205.271 to 205.2741, inclusive, 206.310, 206.330, 207.210, 331.200 or
393.410, at the time the injury, wrongful death or damage was caused.
Based on this language, and employing the Silva standard of strictly construing any
limitation on the waiver of immunity, we conclude that the State can be held liable for the
intentional torts of its employees provided that those torts are committed within the course
and scope of employment.
[Headnote 2]
The rule of law in Nevada permits civil actions to be filed to collect damages for injuries resulting from sexual assaults. Therefore,
based on NRS 41.031(1), 41.0334(1), and 41.03475, the State can be held liable for injuries resulting from sexual assaults which occurred
during the course and scope of employment. We conclude that the district court did not err in finding that the State waived its immunity for
Peters' intentional actions provided that those actions were within the course and scope of Peters' employment.
The State was properly found liable for both the sexual assaults and the negligent supervision
1. Peters acted within the scope of his employment
[Headnote 3]
The State argues that Peters' actions were not within the course and scope of his employment and therefore it is not liable for Peters'
actions. The district court, however, found that Peters' duties and the unconditional discretion vested in him by the State gave him
unfettered control of and access to John Doe, making the State liable under the doctrine of respondeat superior.
NRS 41.031(1) provides that when the State has waived immunity, the State will have its liability determined in accordance with the
same rules of law as are applied to civil actions against natural persons and corporations. This court has held that in order for an employer
to be liable for the intentional tort of an employee, that tort must occur within the scope of the task assigned to that employee. Prell Hotel
Corp. v. Antonacci, 86 Nev. 390, 391, 469 P.2d 399, 400 (1970). [I]f 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, the employer is not liable. Id. at 391, 469 P.2d at 400.
[Headnote 4]
We take this opportunity to further refine our explanation of course and scope of employment from Prell because that explanation
gives no substantial guidance as to what is included within the scope of employment. In Prell, we declined to follow the motivation test
which states generally that there will be no cause of action for respondeat superior if the employee's actions were not primarily
motivated by the desire to serve his or her employer.
were not primarily motivated by the desire to serve his or her employer. We are mindful of
the fact that many jurisdictions follow the motivation test. See Andrews v. United States,
732 F.2d 366, 370 (4th Cir. 1984) (applying South Carolina law); Hoover v. University of
Chicago Hospitals, 366 N.E.2d 925, 929 (Ill. App. Ct. 1977); Cosgrove v. Lawrence, 520
A.2d 844, 846-848 (N.J. Super. Ct. Law Div. 1986). However, we will continue not to require
that the employee's actions be motivated by a desire to serve the employer, and in doing so,
we join several other jurisdictions. See Doe v. Samaritan Counseling Center, 791 P.2d 344,
346-47 (Alaska 1990) (reversing and remanding a grant of summary judgment in favor of the
employer on the issue of vicarious liability for a sexual assault committed on a patient by an
employee counselor); Mary M. v. City of Los Angeles, 814 P.2d 1341, 1344 (Cal. 1991)
(reversing and remanding a court of appeals decision reversing a jury verdict imposing
liability on the city of Los Angeles for a police officer's rape of a woman in custody);
Samuels v. Southern Baptist Hospitals, 594 So. 2d 571, 573 (La. Ct. App. 1992) (affirming a
district court decision finding a hospital vicariously liable for an employee nurse's sexual
assault of a patient); Marston v. Minneapolis Clinic of Psychiatry, 329 N.W.2d 306, 309-10
(Minn. 1982) (reversing and remanding a lower court decision that the employer was not
vicariously liable for a sexual assault committed on a patient by an employee doctor).
We now adopt a new test which maintains Prell's basic tenet of not following the
motivation test and which employs a rationale that the employer's liability should extend
beyond his actual or possible control over the employees to include risks inherent in or
created by the enterprise because [the employer], rather than the innocent injured party, is
best able to spread the risk through prices, rates or liability insurance. Rodgers v. Kemper
Construction Co., 124 Cal. Rptr. 143, 148 (Ct. App. 1975). The test we now adopt was first
employed by the California Court of Appeals, and states:
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.
Id. at 148-49 (emphasis added). This test was later used by the California Supreme Court in
Mary M. v. City of Los Angeles, 814 P.2d 1341, 1344 (Cal. 1991), and Perez v. Van
Groningen & Sons, Inc., 719 P.2d 676, 678 (Cal. 1986).
[Headnote 5]
The policy objectives underlying respondeat superior are (1) to prevent recurrence of the tortious conduct; (2) to give greater
assurance of compensation for the victim; and (3) to ensure that the victim's losses will be equitably borne by those who benefit from the
enterprise that gave rise to the injury. Mary M., 814 P.2d at 1343. We believe that these three policy objectives underlying respondeat
superior would be achieved by applying the doctrine in this case.
First, requiring the State to pay for Peters' sexual assaults would encourage the State to take preventative measures to ensure that such
egregious behavior does not occur again. Second, requiring the State to pay would give greater assurance of compensation to the Jimenez
family. As was stated earlier, the Legislature has recognized that the imposition of vicarious liability on the State is an appropriate method
to ensure that victims are compensated for State actions committed within the course and scope of employment. See NRS 41.03475; Mary
M., 814 P.2d at 1348. Finally, the appropriateness of spreading the risk of loss among the beneficiaries of the enterprise favors imposition
of vicarious liability against the State. Because the community derived a substantial benefit from the lawful exercise of Peters' authority,
i.e., the sex offenders were separated from society while they were being rehabilitated and the rehabilitated sex offenders would no longer
pose a threat to society, the community should bear the cost of Peters' misuse of power. See Mary M., 814 P.2d at 1349 (stating that the
cost resulting from misuse of police power should be borne by the community because of the substantial benefit that the community derived
from the lawful exercise of police power).
[Headnote 6]
In cases concerning course and scope of employment, no single factor is necessarily controlling, and each case must be determined on
its own particular facts and circumstances. Chapin v. United States, 258 F.2d 465, 467 (9th Cir. 1958). In each case involving scope of
employment all of the relevant circumstances must be considered and weighed in relation to one another. Loper v. Morrison, 145 P.2d 1, 3
(Cal. 1944).
Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a
question of law, however, when the facts are undisputed and no conflicting inferences are possible.'"
puted and no conflicting inferences are possible.' Mary M., 814 P.2d at 1347 (quoting
Perez, 719 P.2d at 679). We conclude that in light of the new test adopted today, the factual
circumstances of this case did not present a question of law. Therefore, because the judge's
conclusion that Peters acted within the scope of his employment was not clearly erroneous,
we will not set it aside. Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796
P.2d 590, 592 (1990).
In employing this new test, this court must first determine whether, given the context of
Peters' employment, his conduct was so unusual or startling that it would seem unfair to
include the loss resulting from it in the costs of the employer's business. On this issue, we
find the analysis from Mary M. persuasive. Mary M. involved a police officer who raped a
woman in custody, and the court in Mary M. stated that because of the great control that
police officers have over criminal suspects, it is neither startling nor unexpected that on
occasion an officer will misuse that authority by engaging in assaultive conduct.
3
Mary M.,
814 P.2d at 1350.
In the case at bar, Peters had extensive control over the children he supervised, although it
was a different type of control than that which a police officer has over a detainee. As the
group home supervisor, Peters had control over almost every aspect of the children's lives. As
their counselor, the children looked to him for guidance; John Doe even stated that he looked
up to Peters as a father. Furthermore, the children Peters supervised were often the products
of troubled backgrounds, vulnerable, and in the case of John Doe, mentally retarded. We
therefore conclude that given this type of control, it is extremely unfortunate, but not
"startling or unexpected," that Peters, or someone in his position, would misuse his
authority by engaging in such behavior.
__________

3
The Mary M. court was careful to note that its decision flowed from the unique authority vested in police officers and that employees
who do not have such authority and who commit sexual assaults may be acting outside of the scope of employment as a matter of law.
Mary M. v. City of Los Angeles, 814 P.2d 1341, 1350 n.5 (Cal. 1991).
An example of conduct that a court found startling and unusual was presented in Alma W. v. Oakland Unified School District, 176
Cal. Rptr. 287 (Ct. App. 1981). In Alma W., a janitor at an elementary school sexually assaulted a young female student. The student's
mother filed a lawsuit against the school district on a theory of respondeat superior, and the complaint was dismissed by the trial court. In
affirming the trial court's action, the Court of Appeal stated that the plaintiff's case stretched the Rodgers foreseeability standard far
beyond its logical limits. Id. at 291. The court stated:
Thus, while it might be foreseeable for a school custodian to become involved in a dispute over the manner in which he swept the
floors or cleaned a classroom and for the dispute to end in someone being hit with a mop, the same statement cannot be made with
reference to rape. There is no aspect of a janitor's duties that would make sexual assault anything other than highly unusual and
very startling.
Id. at 291-92.
but not startling or unexpected, that Peters, or someone in his position, would misuse his
authority by engaging in such behavior.
However, there are exceptions to this new test, and in evaluating such exceptions, this
court must consider whether this was a situation where an employee substantially depart[ed]
from his duties for purely personal reasons such that liability will not attach. John R. v.
Oakland Unified School Dist., 769 P.2d 948, 953 (Cal. 1989). When considering this issue,
the proper inquiry is not whether the wrongful act itself was authorized but whether it was
committed in the course of a series of acts of the agent which were authorized by the
principal.' Perez, 719 P.2d at 680 (quoting Fields v. Sanders, 180 P.2d 684, 688 (Cal.
1947)). In Mary M., the court concluded that the police officer was acting within the scope of
his employment when he detained the victim, performed a field sobriety test on the victim,
and ordered the victim into his car. The court then stated that the officer misused his authority
when he sexually assaulted the victim, but viewed as a whole, it could not be said as a matter
of law that the officer had substantially departed from his duties for purely personal reasons
when he sexually assaulted the victim. Mary M., 814 P.2d at 1351.
In the case at bar, we conclude that when viewing the incidents as a whole, it cannot be
said as a matter of law that Peters had substantially departed from his duties for purely
personal reasons when he sexually assaulted John Doe because the sexual assaults were
committed during a series of acts authorized by the State. Peters was acting in the scope of his
employment when he counseled the children and conducted bedchecks. During the bedchecks
and the discussions that sometimes occurred during the bedchecks, Peters misused his
authority as a counselor and sexually assaulted John Doe. As such, a conclusion that Peters
did not substantially depart from his duties for purely personal reasons is supported by
substantial evidence.
We therefore conclude that the judge's determination that Peters' conduct was within the
course and scope of Peters' duties was not clearly erroneous and, therefore, that determination
will not be overturned.
2. The supervising of the employee was an operational act
[Headnote 7]
Under NRS 41.032, the State can only be held liable for operational and not discretionary acts. NRS 41.032(2) states:
Except as provided in NRS 278.0233 no action may be brought under NRS 41.031 or against an . . . employee of the state . . .
which is:
. . . .
2. Based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of the state or any of its agencies or political
subdivisions or of any officer, employee or immune contractor of any of these, whether
or not the discretion involved is abused.
In Hagblom v. State Dir. of Motor Vehicles, 93 Nev. 599, 604, 571 P.2d 1172, 1176 (1977),
this court stated:
When the State qualifiedly waived its immunity from liability and consented to civil
actions, it did so to provide relief for persons injured through negligence in performing
or failing to perform non-discretionary or operational actions. It did not intend to give
rise to a cause of action sounding in tort whenever a state official or employee made a
discretionary decision injurious to some persons.
[Headnotes 8, 9]
A discretionary act is an act which requires the exercise of personal deliberation, decision and judgment. Travelers Hotel v. City of
Reno, 103 Nev. 343, 345-46, 741 P.2d 1353, 1354 (1987). In a close case between whether an act is discretionary or operational, this court
will favor a waiver of immunity and accommodate the legislative scheme, and only when the court concludes that discretion alone is
involved may [it] find immunity from suit. State v. Silva, 86 Nev. 911, 914, 478 P.2d 591, 593 (1970).
In Silva, this court subjected the State to liability for negligent supervision after a prisoner at an honor camp escaped and sexually
assaulted a woman. In subjecting the State to liability, the court stated:
Although the selection of inmates for honor camp service may primarily be a discretionary act, the manner in which the camp is
supervised and controlled is mainly operational in nature. Indeed, the very fact that such inmates are not released from prison to
roam at will, but remain under state control for work assignment and honor camp living, establishes state recognition that control
and supervision is essential.
Id.
As in Silva, we conclude that while the creation of Desert Hills may have been a discretionary function, the State's supervision of
Peters was an operational function. Therefore, even if the daily operation of the program and supervision of Peters are not clearly
operational functions, it is a very close case between discretionary and operational and warrants our favoring a waiver of
immunity.
ary and operational and warrants our favoring a waiver of immunity. Accordingly, the district
court properly found that the supervision of Peters was an operational act and that the State
was liable for negligent supervision.
3. The district court did not err in finding the State liable on nine separate counts of
sexual assault in addition to one count of negligent supervision
[Headnote 10]
In its findings of fact, the district court stated:
As the entity operating the Desert Hills program, [the State] had the obligation and the opportunity to structure the program
and supervise the staff to protect the vulnerable clients from physical, mental, and emotional harm while they were enrolled in the
program.
The district court concluded that [a]s a direct and proximate result of the negligence of the [State] and the sexual molestation and false
imprisonment by [Peters], [John Doe] suffered severe physical and emotional injuries, and will continue to suffer consequent injuries in the
future. Although the district court acknowledged John Doe could not recover damages exceeding $50,000 for a single action sounding in
tort, he could recover for each separate and distinct tort. The district court stated that each act of sodomy, in addition to the one instance of
ongoing negligent supervision, constituted a separate and distinct tort, thus allowing ten recoveries of the maximum amount allowed under
the statute.
[Headnote 11]
This court has stated that when determining whether a particular situation constitutes a single occurrence or multiple occurrences for
the purpose of an insurance contract, it will use the causal approach employed by the majority of the jurisdictions. Bish v. Guaranty Nat'l
Ins., 109 Nev. 133, 135, 848 P.2d 1057, 1058 (1993). While this case does not involve an insurance contract, the discussion from Bish is
instructive to determine whether Peters' actions resulted in one or nine occurrences of negligent supervision and sexual assault for which
the State is liable. Under the causal approach, the inquiry is focused on whether there was one or more than one cause which resulted in
all of the injuries or damages. Id.; see also Welter v. Singer, 376 N.W.2d 84, 87 (Wis. Ct. App. 1985) (stating that the proper inquiry
when employing the causal approach analysis is whether a single, uninterrupted cause results in all of the injuries and damage).
This case involves two separate and distinct theories of liabilitynegligent supervision
and respondeat superior. The analysis of each theory of liability under the causal approach
is very different, and we take special care not to combine that analysis. We will apply the
causal approach analysis to the negligent supervision claims first.
[Headnote 12]
The district court determined that as a direct and proximate result of the State's negligent supervision, John Doe suffered damages. This
court recently addressed the issue of whether negligent supervision which results in multiple child sexual assaults constitutes one
occurrence or multiple occurrences of negligent supervision. Washoe County v. Transcontinental Ins., 110 Nev. 798, 878 P.2d 306 (1994).
In that case, parents of children who were sexually assaulted at a county licensed day care center sued Washoe County for negligently
investigating and monitoring the day care center in conjunction with its licensing process. Employing the causal approach, this court held
Washoe County liable for only one count of negligence, stating that Washoe County's liability stemmed from its failure to adequately
perform an ongoing duty to investigate and monitor the day care center.
Similarly, in the instant case, the State breached its duty to properly supervise Peters; the only issue is whether the State was liable for
nine counts of negligent supervision (one count for each sexual assault) or only one count. We conclude that based on Washoe County, the
district judge properly found that the State was liable for only one count of negligent supervision because its liability on that theory
stemmed from a single, ongoing causethe continuous failure to supervise Peters. See State Farm Fire & Cas. v. Elizabeth N., 12 Cal.
Rptr. 2d 327 (Ct. App. 1992).
[Headnote 13]
However, just because the State was liable for only one count of negligent supervision does not mean that it was also liable for only one
count of sexual assault on the respondeat superior theory. Under a theory of respondeat superior, the act of the servant within the scope of
his employment must be considered the act of the master, for which he is liable to the same extent as though he had performed the act in
person. 30 C.J.S. Employer-Employee 216 (1992); see also Chaney Bldg. Co. v. City of Tucson, 716 P.2d 28, 30-31 (Ariz. 1986).
Therefore, it is proper to determine which torts Peters would have been liable for had he been sued directly and then impute any of Peters'
liability to the State.
Initially, we note that the issue of negligent supervision is irrelevant to the discussion of the State's liability for Peters' intentional
torts.
intentional torts. See Samuels v. Southern Baptist Hosp., 594 So. 2d 571, 574 (La. Ct. App.
1992) (stating that vicarious liability is imposed upon the employer without regard to his
own negligence or fault). Had Peters been sued directly, he would have been liable for nine
separate counts of sexual assault regardless of whether he had been negligently supervised or
not. Peters could not have successfully employed the causal approach to prove that the nine
instances of sexual assault stemmed from one proximate cause of negligent supervision, and
therefore, that he was liable for only one count of sexual assault.
4
Furthermore, the situation presented in this case is not similar to that presented in Bish v.
Guaranty National Insurance Company, 109 Nev. 133, 848 P.2d 1057 (1993), a negligence
case involving a woman who accidently twice ran over a child, first by backing over the child,
then after realizing what she had done and panicking, by putting the car in forward gear and
driving over the child again. In Bish, this court concluded that there was only one
occurrence for purposes of liability because the injuries were the result of one proximate,
uninterrupted and continuing cause: the driver's negligence. Id. at 136-37, 848 P.2d at 1059.
In the case at bar, John Doe was subject to nine separate and distinct sexual assaults over a
period of approximately one month, and these assaults cannot be considered to be so
closely linked in time and space as to be considered by the average person as one event.' Id.
at 139, 848 P.2d at 1058 (quoting Welter v. Singer, 376 N.W.2d 84, 87 (Wis. Ct. App.
1985)). Therefore, Peters was liable for nine counts of sexual assault, and pursuant to the
rules of respondeat superior, the State was also liable for nine counts of sexual assault.
The respondent presented sufficient evidence of damages, but the award of damages for
negligent supervision must be reversed because it is tantamount to an improper double
recovery
[Headnote 14]
The State argues that Jimenez failed to prove the fact of damages and the amount thereof, and as a result, the damages granted to
Jimenez were necessarily excessive. In assessing allegedly excessive damage awards, this court will not substitute its judgment on the issue
of damages for the decision of the fact finder. Automatic Merchandisers, Inc. v. Ward, 98 Nev. 282, 284-85, 646 P.2d 553, 555 (1982).
This court will only reverse a verdict when the award is flagrantly improper, indicating passion, prejudice, or corruption. Id. at 285, 646
P.2d at 555.
__________

4
In any criminal action on these same charges, Peters could have been charged with nine separate counts of sexual assault.
[Headnote 15]
In cases where the damages are for extreme emotional distress, such distress must be manifested by physical injury or illness,
something more than just embarrassment. In Branda v. Sanford, 97 Nev. 643, 648, 637 P.2d 1223, 1227 (1981), this court intimated that
severe emotional distress could be manifested through such symptoms as hysteria and nervousness, nightmares, great nervousness, and
bodily illness and injury.
[Headnote 16]
Initially, evidence of physical injury was presented at trial in the form of medical testimony which proved that John Doe had suffered
sexual trauma as a result of being subjected to anal intercourse. Furthermore, John Doe testified that Peters' assaults made him feel like
trash. John Doe also stated: Sometimes I couldn't even go to sleep at night because I was afraid he would come to my room or do
something. Wilford W. Beck, the former agency director for NNCAS, testified that with each rape, John Doe could become more and
more ashamed of himself, and that it was his impression that when John Doe testified, he seemed ashamed. Beck also stated: [I] will say
that [sexual assault is] a terrible thing that happens. Whether it . . . makes [improvement] less possible, I don't know.
This medical evidence and the testimony of emotional distress, along with the multiple criminal acts committed upon John Doe,
support a $50,000 award to John Doe for each of the nine acts of sexual assault. However, despite the fact that the district court properly
concluded that the State was liable for one count of negligent supervision, we believe that it was improper to award damages to John Doe
on that count. John Doe was properly compensated for the nine acts of sexual assault, and the damages proven by John Doe were all caused
by these sexual assaults. To permit further recovery on the basis of negligent supervision is tantamount to awarding the victim an improper
double recovery for a single injury. See General Electric Co. v. Bush, 88 Nev. 360, 367-68, 498 P.2d 366, 371 (1972) (explaining that an
award of damages for a wife's claim for loss of consortium after her husband had been injured and compensated was not an improper
double recovery for the same injury to the husband), abrogated on other grounds by Motenko v. MGM Dist., Inc., 112 Nev. 1038, 921
P.2d 933 (1996). Therefore, while the State was liable on the theory of negligent supervision, we conclude that the district court erroneously
awarded damages on that claim when John Doe was fully compensated on the theory of respondeat superior.
The State is not entitled to a setoff for the cost of treatment respondent's son received
[Headnote 17]
The State claims it is entitled to a $130,000 setoff because John Doe was a ward of the court at Colorado Boy's Ranch from September
10, 1992, through March 30, 1994. The State claims that it is entitled to this setoff under NRS 42.020,
5
which states:
1. In any action for damages for personal injury against any provider of health care, the amount of damages, if any, awarded
in the action must be reduced by the amount of any prior payment made by or on behalf of the provider of health care to the
injured person or to the claimant to meet reasonable expenses of medical care, other essential goods or services or reasonable
living expenses.
2. As used in this section, provider of health care means a physician . . . [or] licensed psychologist . . . .
This statute has not been interpreted by this court. However, we need not reach the issue of its construction because the State failed to
pursue a ruling on the issue of the setoff in the district court, thus waiving the issue on appeal. In Cerminara v. District Court, 104 Nev.
663, 765 P.2d 182 (1988), the district court failed to rule on a motion for a new trial after granting a judgment notwithstanding the jury's
verdict. The defendant failed to object to this and failed to take any action to compel a ruling on that motion until after this court had
rendered a decision on appeal. Id. at 665, 765 P.2d at 184. This court concluded the defendant had abandoned its motion for a new trial.
Id.; see also Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52-53, 623 P.2d 981, 983-84 (1981) (refusing to consider issues not precisely
raised below).
We conclude that the State is not entitled to a setoff in this case because it failed to pursue a ruling on this issue from the district court.
CONCLUSION
The district court properly found that the State had waived its immunity for Peters' actions and concluded that the State was liable for
Peters' sexual assaults because Peters was acting within the course and scope of his employment when he sexually assaulted John Doe.
Furthermore, we conclude that the district court properly found the State liable on all nine counts of sexual assault and awarded the
maximum statutory amount of damages allowed on each count for a total of $450,000. Additionally, we conclude that while the district
court also properly found that the State was liable for the one count of negligent supervision of Peters because such
supervision was an operational rather than a discretionary act, the award of damages to John Doe on that
count amounted to a windfall or double recovery and must be reversed.
__________

5
This statute was amended in 1995 and now contains different provisions.
State was liable for the one count of negligent supervision of Peters because such supervision
was an operational rather than a discretionary act, the award of damages to John Doe on that
count amounted to a windfall or double recovery and must be reversed. Finally, the State is
not entitled to a setoff for the amount spent on John Doe while at the Colorado Boy's Camp.
Accordingly, we reverse the district court's award of damages on the count of negligent
supervision and affirm the remainder of the district court's decisions.
6
__________

6
____________
113 Nev. 375, 375 (1997) Rossana v. State
JOSEPH HENRY ROSSANA, Appellant, v. THE
No. 27295
March 27, 1997 934 P.2d 1045
Appeal from a judgment of conviction entered upon a jury verdict of one count each of
aggravated stalking, felony malicious destruction of property, malicious destruction of
property, and discharge of a firearm at or into a structure. Eighth Judicial District Court,
Clark County; Jack Lehman, Judge.
The supreme court held that; (1) lay opinion testimony regarding identity of person
depicted on surveillance videotape was admissible; (2) trial court committed plain error by
failing to instruct jury that defendant must have threatened victim to be convicted of
aggravated stalking; (3) evidence did not support felony malicious destruction of property
conviction; (4) evidence did not support gross misdemeanor malicious destruction conviction;
and (5) evidence supported weapons conviction.
Neil J. Beller, Las Vegas, for Appellant.
and James Tufteland, Chief Deputy District Attorney, and Gary Booker, Deputy District
1. Criminal Law.
State was entitled to present lay opinion testimony regarding identity of person shown in videotape allegedly inserting nails into
tires of victim's car; witnesses claimed to have known defendant at time of crime and testified that defendant had lost
about 30 pounds, had cut his hair, and was now wearing glasses.
crime and testified that defendant had lost about 30 pounds, had cut his hair, and was now wearing glasses. NRS 50.265.
2. Criminal Law.
Generally, lay witness may testify regarding identity of person depicted in surveillance photograph if there is some basis for
concluding that witness is more likely to correctly identify defendant from photograph than is jury. NRS 50.265.
3. Criminal Law.
Defendant was not prejudiced by allegedly erroneous admission of lay opinion testimony identifying him as person shown in
videotape allegedly inserting nails into tires of victim's car, where defendant called his own witnesses to contradict that testimony. NRS
50.265.
4. Criminal Law.
Accurate instruction upon basic elements of offense charged is essential; failure to so instruct constitutes reversible error.
5. Criminal Law; Extortion and Threats.
Trial court committed plain error by failing to instruct jury that a necessary element of aggravated stalking is that defendant must
have threatened victim. NRS 200.575(2)(a).
6. Criminal Law.
Failure to object to instruction in proceedings below generally bars review on appeal.
7. Criminal Law.
When plain error has been viably asserted, supreme court may address any concomitant constitutional issues sua sponte.
8. Criminal Law.
Failing to instruct jury about essential elements of a crime constitutes constitutional error. U.S. Const. amend. 6.
9. Criminal Law.
Standard for reviewing sufficiency of evidence is not whether supreme court is convinced of defendant's guilt beyond reasonable
doubt, but whether jury, acting reasonably, could have been convinced to that certitude by evidence it had a right to consider.
10. Malicious Mischief.
Evidence was insufficient to support conviction of felony malicious destruction of property for spraying corrosives on victim's
automobile. Automobile was damaged on several occasions, and there was evidence that professed to link vandalism to litigation
between defendant and victim, but there were no witnesses presented to place defendant anywhere in vicinity of vehicle on dates of
vandalism, and no caustic substances were found at defendant's residence. NRS 193.155, 206.310.
11. Malicious Mischief.
Evidence was insufficient to support conviction of malicious destruction of property for spraying corrosives on automobile of
ex-wife of defendant's former business partner. There was evidence that professed to link vandalism to litigation between defendant
and former business partner, but there were no witnesses presented to place defendant anywhere in vicinity of vehicle on date of
vandalism, and no caustic substances were found at defendant's residence. NRS 206.310.
12. Weapons.
Conviction of discharging weapon at or into structure was supported by evidence that defendant's vehicle was similar to vehicle
shown on surveillance video of shooting, that casings of two bullets were found at victim's house, that two of six chambers
in gun found at defendant's residence were empty, and that defendant and victim were involved in civil
litigation.
victim's house, that two of six chambers in gun found at defendant's residence were empty, and that defendant and victim were
involved in civil litigation.
OPINION
Per Curiam:
FACTS
Joseph Henry Rossana (Rossana) hired John Momot, Esq. (Momot) to perform legal
services approximately twenty years ago. As their relationship progressed, Rossana and
Momot became business partners in several ventures, including a Las Vegas bar, The
Rumrunner, Inc. In 1985, Momot and Rossana's business relationship faltered, and Momot
filed suit against Rossana to collect on his one-third interest in the Rumrunner after Rossana
had sold the bar. In 1987, Momot hired attorney Jim Jimmerson (Jimmerson) to represent him
in his civil suit against Rossana.
In September, 1992, the district court awarded judgment in favor of Momot in the amount
of $225,779.09. In November, 1992, Momot executed judgment upon some of Rossana's
personal assets and, allegedly, upon those of Rossana's daughter. On November 19, 1992,
Rossana went to Momot's law office in an attempt to talk to Momot and instead spoke with
Momot's brother and office manager, Joseph Momot (Joseph). Joseph testified that he
perceived Rossana's demeanor as being threatening and frightening; Joseph stated that he
asked Rossana if the conversation should be interpreted as a threat, testifying as follows:
[Rossana] told me that [Momot] . . . is going to be sorry if continues [sic] with this
activity and he'd better cease and desist, or words to that affect, otherwise he'll be very
sorry for his activity. At which point I asked him if I should interpret this as a threat?
Are you threatening my brother [Momot]? And at that time [Rossana] replied, well, I
don't have a gun on me now. And then he went on to reiterate his previous statements . .
. he didn't ask me rather he told me that the situation the way it presently stood was
unacceptable . . . .
After Rossana left Momot's office, Joseph told Momot about the incident and filed a police
report. Further attempts to execute on the civil judgment against Rossana were stayed when
Rossana appealed the judgment to this court and concomitantly filed a bankruptcy petition.
The parties presented oral argument in early January, 1994, and this court affirmed the civil
judgment and denied Rossana's appeal in May, 1994.
Meanwhile, between April, 1993 and January, 1994, Momot and Jimmerson's vehicles
were repeatedly vandalized, and on January 20, 1994, shots were fired at Momot's residence
in the early morning hours. Rossana was charged with committing these acts. At Rossana's
trial, the State asserted that the civil judgment against Rossana, Momot's efforts to execute
upon the judgment, and the dismissal of Rossana's appeal motivated Rossana to commit these
criminal acts.
1
The State further asserted that acts of vandalism coincided with major events
in the civil action Rossana was appealing.
On April 6, 1993, Momot filed a motion to dismiss Rossana's appeal; on April 16, 1993, a
re-notice of a creditors meeting was filed in bankruptcy court; and on April 26, 1993, an ex
parte extension of time was granted to Rossana to transmit the record on appeal. On April 15,
1993, Jimmerson's 1992 Mercedes was vandalized with acid at his office. On April 26 and
27, 1993, Momot's 1980 Mercedes was keyed (scratched with a key) and had solvent
poured on it at his law office garage.
On May 3, 1993, Momot filed a second motion to dismiss Rossana's civil appeal, Rossana
filed an opposition, and Momot filed a response, asking for sanctions against Rossana. On
May 24 and 25, 1993, Momot's 1980 Mercedes was keyed at his office parking lot.
In June, 1993, Rossana filed a supplemental opposition to Momot's motion to dismiss,
there was a bankruptcy hearing pertaining to an order to show cause, a notice of approval of
disclosure statement was filed, and on June 23, 1993, Momot filed a third motion to dismiss
Rossana's civil appeal. On June 9, 1993, Momot's Mercedes was once again keyed in his
office parking garage. On June 20, 1993, the top of Momot's wife's (Sandra) 1978 Mercedes
convertible was slashed open, and chemicals and paint were sprayed on that car and on
Momot's son's 1978 BMW, both parked at Momot's residence. On June 18, 1993,
Jimmerson's 1992 Mercedes was keyed while parked in front of a local bar and grill located
in the vicinity of the Rumrunner bar. Momot testified that his 1980 Mercedes was again
keyed at his office garage on July 20, 1993.
2
Following these acts of vandalism, Momot had surveillance video equipment installed at
his home and in his parking garage at work.
__________

1
It should be noted that although both sides make reference to the damage done to Jimmerson's vehicles, and Jimmerson testified to
that damage, the district court, in charging the jury, referred only to damage done to Momot and his wife's vehicles. The information also
fails to mention the damage done to Jimmerson's vehicles.

2
Jimmerson testified that one of his other cars, a 1990 Mercedes, was keyed and molasses was poured on the exterior at his office
building on September 3, 1993; the State does not link this event to any concurrent action in the civil or bankruptcy proceedings.
video equipment installed at his home and in his parking garage at work. On December 13
and 22, 1993, the surveillance camera recorded a man allegedly inserting nails into the tires of
Momot's 1980 Mercedes while it was parked in his office garage; Momot, Joseph, and a
private investigator, Michael Wysocki (Wysocki), hired by Momot to locate the perpetrator,
testified that the man in the video was indeed Rossana.
In early January of 1994, Rossana's civil appeal was argued before this court. Momot's
neighbor testified that on January 20, 1994, at approximately 1:00 a.m., he awoke to a
gunshot, looked out his window, and saw a second gunshot fired at Momot's house from the
open driver's side window of a four door car with tinted windows parked in front of the
Momot house. Sandra testified that she and her daughter (who were sleeping in the house)
heard the two shots fired at their home. A light fixture above the garage had been shattered,
so Sandy swept up the glass and threw the debris into a trash can. Police later found a
deformed bullet fragment in that trash can.
Wysocki reviewed the video of the car from which the shots were fired at Momot's house,
drove to Rossana's house, and concluded that Rossana's car was similar to the car depicted in
the surveillance video. Momot then turned over to the Las Vegas Metro Police the videos
(from December 13 and 22, 1983) allegedly depicting Rossana putting nails into Momot's car
tires along with the video of the shooting incident. Detective Ramos testified that a warrant
was then obtained and Rossana's home was searched on January 21, 1994.
Although no nail guns or caustic chemicals were found at Rossana's home, a .38 caliber
pistol was recovered. The gun was found in Rossana's bedroom, and it had four bullets in its
cylinder and two empty chambers. Police also collected two spent bullet casings from
Rossana's bedroom. Forensic tests on the items retrieved from Rossana's home and the bullet
fragment recovered at Momot's residence were inconclusive.
On July 11, 1994, the State filed an information against Rossana charging him with
aggravated stalking, malicious destruction of property (felony and gross misdemeanor),
discharging a firearm at or into a structure, and discharging a firearm out of a motor vehicle
(this last count was eventually dropped). On February 23, 1995, a jury found Rossana guilty
on all remaining counts.
DISCUSSION
The district court properly admitted lay opinion testimony regarding the identity of a person
depicted on a surveillance videotape
At trial, the State wanted to ask Momot, Joseph, and Wysocki to identify the man in the
videotaped surveillance which allegedly depicted Rossana inserting nails into the tires of
Momot's car while it was parked in the garage of Momot's office.
depicted Rossana inserting nails into the tires of Momot's car while it was parked in the
garage of Momot's office. Rossana objected, arguing that such testimony would be unfairly
prejudicial as it would be impossible for anyone in this universe [to] in good conscience
identify the man in the video as Rossana. After the district judge reviewed the video outside
the presence of the jury, he permitted witnesses to express their opinions as to the identity of
the man in the video.
Momot, Joseph, and Wysocki each watched the video in front of the jury and each
unequivocally testified that the man depicted therein was Rossana. These witnesses claimed
to have known Rossana at the time of the alleged criminal activity and testified that his
appearance at trial differed substantially from the time when the video was taken in that
Rossana had since lost about thirty pounds, cut his hair, and was now wearing glasses.
Rossana then called a witness (a private investigator) who testified as to the poor quality of
the video and the impossibility of identifying anyone from the video. Next, Rossana called a
friend of fifty years to testify that he was unable to identify Rossana in the video.
On appeal, Rossana argues that permitting the subjective testimony of Momot, Joseph, and
Wysocki constituted reversible error, as it is the jury's exclusive responsibility to determine
the ultimate issue of guilt or innocence. See Bennett v. State, 794 P.2d 879, 882 (Wyo. 1990)
(holding that lay witness opinion as to guilt of defendant inadmissible). The relevant Nevada
rule mirrors Federal Rule of Evidence (FRE) 701.
3
Since Nevada has not specifically
discussed the admissibility of opinion by a lay witness as to the identity of an individual in a
surveillance videotape, federal law is instructive.
[Headnotes 1, 2]
There is a plethora of federal jurisprudence holding that lay witnesses' opinion testimony is admissible where it identifies the defendant
as the perpetrator of a crime from a surveillance video. United States v. Saniti, 604 F.2d 603, 604-05 (9th Cir. 1979). Generally, a lay
witness may testify regarding the identity of a person depicted in a surveillance photograph if there is some basis for concluding that the
witness is more likely to correctly identify the defendant from the photograph than is the jury.'
__________

3
NRS 50.265 provides that:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or
inferences which are:
1. Rationally based on the perception of the witness; and
2. Helpful to a clear understanding of his testimony or the determination of a fact in issue.
United States v. Towns, 913 F.2d 434, 445 (7th Cir. 1990) (quoting United States v.
Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984)). In United States v. Barrett, 703 F.2d 1076,
1086 (9th Cir. 1986), the Ninth Circuit concluded that the opinion testimony of a lay witness
would be particularly appropriate where the witness was familiar with the defendant at the
time of the crime and the defendant's appearance had changed by the time of trial.
Additionally, in United States v. Jackman, 48 F.3d 1, 5 (1st Cir. 1995), the court held that
testimony given by the defendant's ex-wife, identifying him in a poor quality bank
surveillance photograph (in which his face was partially obstructed), was permissible. The
Jackman court stated that [h]uman features develop in the mind's eye over time. These [lay]
witnesses had interacted with defendants in a way the jury could not, and in natural settings
that gave them a greater appreciation of defendants' normal appearance. Id. However, the
Jackman court would not allow such testimony where a photograph is deemed so hopelessly
obscure that the witness is no better-suited than the jury to make the identification. Id.
[Headnote 3]
We conclude that federal case law, in conjunction with Nevada's adoption of the federal evidence rules governing opinion testimony of
lay witnesses, mandates that Rossana's claim must fail. Moreover, Rossana effectively diluted any possible prejudice in calling witnesses to
contradict the three witnesses' testimony. The jury could see the quality of the videotape and presumably could judge the credibility of those
witnesses' assertions about the video. Therefore, we conclude that Rossana's arguments on this issue are meritless.
The jury was improperly instructed on the crime of aggravated stalking
At the trial below, the court gave Jury Instruction No. 5, regarding the offense of aggravated stalking, which stated:
Any person who wilfully, unlawfully, and intentionally engages in a course of conduct that would cause a reasonable person to
feel; and the victim actually is caused to feel: terrorized, frightened, intimidated or harassed, and placed in reasonable fear of death
or substantial bodily harm, is guilty of Aggravated Stalking.
Nevada's stalking statute, NRS 200.575, provides, in pertinent part, that:
1. A person who, without lawful authority, willfully or maliciously engages in a course of conduct that would cause a
reasonable person to feel terrorized, frightened, intimidated or harassed, and that actually causes the
victim to feel terrorized, frightened, intimidated or harassed, commits the crime of stalking. . . .
a reasonable person to feel terrorized, frightened, intimidated or harassed, and that
actually causes the victim to feel terrorized, frightened, intimidated or harassed,
commits the crime of stalking. . . .
. . . .
2. A person who:
(a) 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.
(Emphasis added.)
[Headnotes 4, 5]
An accurate instruction upon the basic elements of the offense charged is essential, and the failure to so instruct constitutes reversible
error. Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 212, 213 (1970). We conclude that the district court prejudicially erred in failing to
instruct the jury that a necessary element of aggravated stalking is that the defendant must have threatened the victim.
4
[Headnotes 6, 7]
We note that Rossana failed to object to the instruction in the proceedings below and that generally such an omission bars review on
appeal. McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983). However, in this case, we conclude that a case of plain error has
been viably asserted and thus this court may address any concomitant constitutional issues sua sponte. Id.; see Patterson v. State, 111 Nev.
1525, 1530, 907 P.2d 984, 987 (1995) (error is plain' if the error is so unmistakable that it reveals itself by a casual inspection of the
record.' ) (quoting Torres v. Farmers Insurance Exchange, 106 Nev. 340, 345 n.2, 793 P.2d 839, 842 n.2 (1990)).
The State argues that the given instruction included the statutory elements of aggravated stalking, identifying those elements as a
subjective element (actually causes the victim to feel . . . .); an objective element (cause[s] a reasonable person to feel . . . .); and a
specific intent element. NRS 200.575. The State asserts that the requirement of a threat in conjunction with stalking conduct (i.e., specific
intent) is implicitly found by reading the objective and subjective elements together.
__________

4
The legislative history showing the evolution of Nevada's anti-stalking statute indicates that NRS 200.575 was patterned on other
jurisdictions' statutes that require a credible threat in conjunction with misdemeanor stalking to constitute the felony of aggravated
stalking.
the objective and subjective elements together. We do not agree with this analysis.
The State cites this court's law for the proposition that the district judge had broad
discretion in deciding whether terms within the jury instruction need to be defined. Dawes v.
State, 110 Nev. 1141, 1145-46, 881 P.2d 670, 673 (1994). We conclude that Dawes is
inapposite to the issue at hand; Rossana does not complain that words defining threatening
behavior were omitted; rather, he points out that the specific and necessary element of
threatening conduct was expressly omitted from the instruction.
It is true that the given instruction is not identical to the statutory definition of
misdemeanor stalking (NRS 200.575(1)), in that the word intentionally has been added.
Nonetheless, the way the instruction reads, a defendant need only have the intent to engage
in a course of conduct which would cause a reasonable person to feel and actually causes a
person to feel terrorized, etc., to have committed the offense of aggravated stalking. However,
the crime of aggravated stalking requires something more in that the defendant must not only
engage in intentional (i.e., volitional) conduct that causes a specific result, but that the
defendant must threaten with the intent to cause the victim to be placed in reasonable fear of
death or substantial bodily harm. NRS 200.575(2)(a). The defendant must threaten the
victim.
[Headnote 8]
The Sixth Amendment of the U.S. Constitution mandates that the jury find all elements of a given crime; failing to instruct the jury
about essential elements of a crime constitutes constitutional error in that the jury may convict the defendant without finding the defendant
guilty of a necessary element of a crime. United States v. Caldwell, 989 F.2d 1056, 1061 (9th Cir. 1993). We conclude that in Rossana's
case, an essential element (i.e., defendant must stalk and threaten with intent to cause fear, etc.) was erroneously omitted from the jury
instruction regarding aggravated stalking. Accordingly, we conclude that Rossana's due process rights have been compromised such that
reversal of his conviction on this count is warranted.
Sufficiency of the evidence
[Headnote 9]
The standard for reviewing the sufficiency of the evidence is not whether this Court is convinced of the defendant's guilt beyond a
reasonable doubt, but whether the jury, acting reasonably, could have been convinced to that certitude by the evidence it had a right to
consider. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980).
Count IImalicious destruction of property (felony)
5
On this count, the district judge instructed the jury to determine whether between April,
1993 and January 20, 1994, Rossana willfully, unlawfully and maliciously damaged
Momot's Mercedes 450 SL by spraying corrosives on the car, scratching the paint, and/or
puncturing the tires with nails. Momot testified that it cost approximately $1,250.00 to repair
the tire damage. We conclude that while the evidence was sufficient to convict Rossana of
gross misdemeanor malicious destruction of property, it did not support conviction upon this
felony count.
6
[Headnote 10]
Pursuant to NRS 193.155, a felony conviction for a public offense under NRS 206.310 requires damages to property of $5,000.00 or
more. We conclude that, while there may have been substantial evidence for a reasonable jury to conclude that Rossana damaged Momot's
tires with a nail gun (i.e., the surveillance video), there was not substantial evidence to convict Rossana of damaging the finish of the 450
SL with chemicals or by keying. The State's only evidence was Momot's time line which professed to link events in the Momot-Rossana
civil litigation to Rossana's alleged acts of vandalism; in reviewing the record, we conclude that there was insufficient evidence upon which
a reasonable trier of fact could have concluded that Rossana vandalized Momot's car in this manner.
The 450 SL was vandalized on April 26 and 27, May 24 and 25, June 9, July 20, and December 13 and 22, 1993. But, there were no
witnesses presented to place Rossana anywhere in the vicinity of the 450 SL on the dates of the vandalism, and no caustic substances were
found at Rossana's residence, pursuant to the execution of the January 21, 1994 search warrant. Therefore, we conclude that a
rational trier of fact could not find sufficient evidence to find Rossana guilty of felony malicious destruction of
property beyond a reasonable doubt.
__________

5
We need not address this issue as it pertains to Count Iaggravated stalkingbecause we remand for retrial on this count due to
improper jury instructions.

6
The complete text of NRS 206.310, under which Rossana was charged on this and the third count, provides that:
Every person who shall willfully or maliciously destroy or injure any real or personal property of another, for the destruction
or injury of which no special punishment is otherwise specially prescribed, shall be guilty of a public offense proportionate to the
value of the property affected or the loss resulting from such offense.
NRS 193.155 delineates the [p]enalty for public offense proportionate to value of property affected or loss resulting from offense. On
Count II of malicious destruction of property, the damage was assessed as $5,000.00 or more, and thus the crime constituted a felony. NRS
193.155(1). Count III asserts damages in an amount between $250.00 and less than $5,000.00, a gross misdemeanor. NRS 193.155(2).
we conclude that a rational trier of fact could not find sufficient evidence to find Rossana
guilty of felony malicious destruction of property beyond a reasonable doubt.
Count IIImalicious destruction of property
(gross misdemeanor)
[Headnote 11]
As to this alleged offense, the district court instructed the jury to determine if, on June 20, 1993, Rossana damaged Momot's ex-wife's
car, which was parked in front of the Momot residence. It was alleged that Rossana ripped the convertible roof of this 1978 Mercedes 450
SL and applied caustics and/or spray paint to the interior and exterior. Damages for this incident of vandalism were assessed at greater than
$250.00 and less than $5,000.00.
We reiterate our conclusions in the above section concerning damage to the finish of Momot's car. The events transpiring in the civil
action against Rossana do not constitute substantial evidence upon which to convict Rossana on this count. Moreover, there were no
witnesses presented to place Rossana anywhere in the vicinity of the 450 SL on the dates of vandalism, and no caustic substances were
found at Rossana's residence, pursuant to the execution of the January 21, 1994 search warrant. Therefore, we conclude that a rational trier
of fact could not find substantial evidence to find Rossana guilty of gross misdemeanor malicious destruction of property in regard to
Sandra's car.
Count IVdischarging a firearm at or into a structure
[Headnote 12]
Rossana was accused and convicted of firing two shots at Momot's residence in the early morning of January 20, 1994. We conclude
that the evidence is circumstantial and hardly abundant, however, a rational jury could have been convinced of Rossana's guilt on this
offense beyond a reasonable doubt. Wysocki testified that some time after the shooting he identified a car similar to the car depicted in the
surveillance video of the shooting of Rossana's residence on January 20, 1994.
7
Analyses of the bullet found at Momot's house and the gun
(a .38 caliber) retrieved from Rossana's residence were inconclusive. The .38 had six chambers, four were loaded, two empty, and the
casings of two bullets were found at Rossana's house. The bullet retrieved from Momot's house may or may not have been fired
from the .3S found in Rossana's possession on January 21, and the State's expert testified that there was no
way to determine when the two bullets missing from the chamber might have been fired.S
__________

7
Upon reviewing the tape of the shooting, Wysocki determined that the car involved was a small silver or gray four door Toyota,
Honda, or Nissan, late 1980s or early 1990s, with tinted windows. A silver four door Acura with tinted windows was parked at Rossana's
home on January 20, 1994, and he was the registered owner of that car.
Momot's house may or may not have been fired from the .38 found in Rossana's possession
on January 21, and the State's expert testified that there was no way to determine when the
two bullets missing from the chamber might have been fired.
8
This court has held that [i]dentification of a suspect based solely upon the clothing that
the suspect was wearing at the time of committing the crime may be a sufficient basis for
conviction even where there are no other identifying characteristics. Walker v. State, 111
Nev. 497, 498-99, 893 P.2d 366, 367 (1995). We see no reason not to expand this principle
concerning clothes to cars. Along with Rossana's motive to harm Momot and/or his property,
the matching car and the gun with two missing bullets found at Rossana's house supported the
jury's verdict on this count.
CONCLUSION
We conclude that the jury was improperly instructed as to the elements of the crime of
aggravated stalking, resulting in prejudicial error and, therefore, Rossana's conviction on this
count must be reversed and remanded to the district court for a new trial on this issue. We
further conclude that there was no error in admitting into evidence the testimony of lay
persons identifying Rossana on the surveillance video. Finally, as to the sufficiency of the
evidence, we conclude that there was insufficient evidence to convict Rossana of charges of
felony malicious destruction of property, however, a reasonable jury could have found
Rossana guilty of the charge of discharging a firearm at or into a structure and gross
misdemeanor malicious destruction of property.
We reverse Rossana's conviction on felony malicious destruction of property, and affirm
the convictions for gross misdemeanor malicious destruction of property (for the tire damage
to Momot's car) and discharging a firearm into a structure. We remand the case for a new trial
on the charge of aggravated stalking with instructions to properly apprise the jury of the
necessary threat element of the offense.
9
__________

8
The State's brief erroneously states that forensic testing concluded that Defendant's weapon had recently fired two (2) casings when
the weapon was found . . . .

9
____________
113 Nev. 387, 387 (1997) Hewitt v. State
NIGEL HEWITT, Appellant, v. THE
No. 27214
ZACHARY BURKES, Appellant, v. THE
No. 27222
March 27, 1997 936 P.2d 330
Consolidated appeal from judgments of convictions for battery by a prisoner and battery
on an officer with substantial bodily harm. Eighth Judicial District Court, Clark County; Sally
L. Loehrer, Judge.
Defendant was convicted of battery by prisoner and battery on officer with substantial
bodily harm, second defendant was convicted of battery by prisoner, and they were sentenced,
respectively, to ten years' imprisonment and payment of restitution in amount of $16,386, and
six years' imprisonment and payment of restitution in amount of $9,100. On consolidated
appeal, the supreme court held that: (1) insurance companies are not victims within
meaning of statute providing for restitution to victims of offense; (2) judgment ordered
specific dollar amount representing entire amount of restitution owed; (3) battery by prisoner
was necessarily lesser included offense of battery on officer with substantial bodily harm, and
defendant thus could not be convicted of both offenses; and (4) failure of state's answering
brief to address all of arguments presented by defendant in his proper person supplemental
brief did not result in confession of error.
Affirmed in part; reversed and remanded in part.
Joan Buckley, Las Vegas, for Appellant Hewitt.
Ulrich W. Smith, Las Vegas, for Appellant Burkes.
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Insurance companies are not victims within meaning of statute providing for restitution to victims of offense. NRS 176.033.
2. Criminal Law.
Judgment of conviction ordering defendant to pay $16,386.00 in restitution ordered specific dollar amount representing entire
amount of restitution owed, notwithstanding trial court's statement during sentencing proceeding that it would provide state leave to
seek additional restitution as victim incurred further expenses.
restitution as victim incurred further expenses. State was not entitled to seek future expenses. NRS 176.033.
3. Criminal Law; Indictment and Information.
Battery by prisoner was necessarily lesser included offense of battery on officer with substantial bodily harm, and defendant
convicted of greater offense could not also be convicted of lesser offense.
4. Criminal Law.
Where one offense is necessarily included in another, defendant can be convicted of only one.
5. Criminal Law.
Failure of defendant convicted of battery by prisoner to raise issues in trial court precluded appellate review of his claims that trial
court failed to instruct jury regarding element of lawful custody, that use of word innocence in jury instructions was improper, and
that trial court erred in not instructing jury on lesser included offense of resisting public officer.
6. Criminal Law.
Only where there is finding of plain error or where assigned error is patently prejudicial will appellate court review misconduct in
absence of objection below.
7. Criminal Law.
Failure of state's answering brief to address all of arguments presented by defendant in his proper person supplemental brief did
not result in confession of error. NRAP 31(c).
OPINION
Per Curiam:
On December 28, 1994, a jury convicted Nigel Hewitt of battery by a prisoner and battery
on an officer with substantial bodily harm, and convicted Zachary Clayton Burkes of battery
by a prisoner. Hewitt was sentenced to ten years imprisonment and ordered to pay restitution
in the amount of $16,386.00. Burkes was sentenced to six years imprisonment and ordered to
pay restitution in the amount of $9,100.00.
Appellants Hewitt and Burkes appeal their convictions. We affirm appellant Hewitt's
conviction for battery on an officer with substantial bodily harm and reverse his conviction
for battery by a prisoner. We also affirm appellant Burkes' conviction for battery by a
prisoner. In addition, because we conclude that an insurance company is not a victim within
the meaning of NRS 176.033, we reverse Hewitt's order of restitution to the victim's
insurance company and remand with instructions to order restitution to the victim.
FACTS
On August 11, 1994, brothers Zachary Clayton Burkes and Nigel Hewitt were in custody
at the Clark County Detention Center (CCDC) on charges unrelated to this appeal. That
same morning, Corrections Officer Merle McCracken was on the ground floor of the CCDC,
preparing to transport the brothers, along with a group of other inmates, to the Clark
County Courthouse for appearances.
same morning, Corrections Officer Merle McCracken was on the ground floor of the CCDC,
preparing to transport the brothers, along with a group of other inmates, to the Clark County
Courthouse for appearances.
An officer instructed the inmates to stand along a wall in the hallway. Appellants were at
the end of the hallway, approximately ten to twelve feet away from the other inmates, where
appellant Hewitt was speaking loudly to a female waiting in an Intake Services interview
room. A corrections officer instructed appellants to be quiet and to stand against the wall.
Appellants refused to comply with the request and continued to make noise.
Officer McCracken repeated the corrections officer's order. Officer McCracken then
approached appellant Hewitt, ordered him to turn and face the wall, and prepared to handcuff
him. Officer McCracken and other witnesses testified that appellant Burkes approached
McCracken, threw down court papers he was holding and balled his fist. In response, Officer
McCracken testified that he sprayed appellant Burkes with capstun.
1
Appellant Hewitt then
hit Officer McCracken in the face, causing the officer to black out. At trial, conflicting
testimony was presented as to when appellant Hewitt hit Officer McCracken. Appellant
Hewitt testified that he hit Officer McCracken after McCracken sprayed him with capstun.
Officer McCracken testified that appellant Hewitt threw the punch before McCracken sprayed
the capstun. Officer McCracken testified that, upon regaining consciousness, he saw appellant
Burkes fighting with another officer and sprayed Burkes with capstun again.
When Joseph Evers, Director of the Support Bureau for the CCDC, saw appellant Hewitt
strike Officer McCracken, he ran toward appellant Hewitt and grabbed his hair, intending to
pull him to the ground. During his attempt, Director Evers was either bumped or shoved
against the wall in the hallway. Two witnesses testified that appellant Burkes used a body
block to knock Director Evers into the wall. Appellant Burkes testified that he became
incapacitated from being sprayed with capstun and did not knock Director Evers into the
wall.
Officer McCracken suffered a broken nose, several facial fractures, a broken upper jaw,
and damage to his teeth. Director Evers sustained tissue damage and a broken left shoulder
blade.
An information was filed, charging appellants with repeatedly striking Officer
McCracken. During jury deliberations, the jury asked the court whether a finding of not
guilty was required if they did not find that the appellants repeatedly struck Officer
McCracken. The judge amended the information by removing the word repeatedly from
both counts.
__________

1
Capstun is an oleoresin-type spray with a base of cayenne pepper.
Following a consolidated trial, the jury convicted appellant Hewitt of battery by a prisoner
and battery on a prison official with substantial bodily harm. The judge sentenced him to ten
years imprisonment, and ordered him to pay $16,386.00 restitution. The jury convicted
appellant Burkes of battery by a prisoner, and the judge sentenced him to six years
imprisonment and ordered him to pay $9,100.00 in restitution.
Appellant Hewitt's arguments
[Headnote 1]
Appellant Hewitt argues that the district court erred by ordering him to make restitution to an insurance company as part of his
sentence.
2
The statutory basis for ordering restitution as part of a sentence is found in NRS 176.033, which provides, in relevant part:
1. If a sentence of imprisonment is required or permitted by statute, the court shall:
. . . .
(c) If restitution is appropriate, set an amount of restitution for each victim of the offense and for expenses related to
extradition . . . .
Appellant Hewitt argues that an insurance company is not a victim within the meaning of the statute.
We addressed a similar question in Igbinovia v. State, 111 Nev. 699, 895 P.2d 1304 (1995), and concluded that a police department
that expends buy money to secure evidence against an offender is not a victim entitled to restitution under NRS 176.033. After examining
the policy and legislative intent of the sentencing statute, we were persuaded that the word victim' has commonly-understood notions of
passivity, where the harm or loss suffered is generally unexpected and occurs without the voluntary participation of the person suffering the
harm or loss. 111 Nev. at 707, 895 P.2d at 1308.
We hold that insurance companies are not victims within the meaning of NRS 176.033. When an insurance company pays for a
victim's medical expenses, it does so pursuant to a contractual obligation to its insured and cannot therefore be said to have suffered an
unexpected harm or financial loss. We therefore conclude that the district court's order directing appellant Hewitt to pay restitution to an
insurance company is improper and remand with instructions to enter an order instructing appellant to pay restitution
to the true victim in this case, Officer McCracken.
__________

2
The record on appeal indicated that Officer McCracken's medical expenses had been paid for by his insurance company. The order of
the district court did not make it clear to whom restitution was ordered; however, both the appellant, Mr. Hewitt, and the State suggested in
their briefs that the money would be awarded directly to the insurance company.
remand with instructions to enter an order instructing appellant to pay restitution to the true
victim in this case, Officer McCracken.
3
[Headnote 2]
Appellant Hewitt argues that the district court erred by awarding an uncertain amount of future expenses. We have recognized that
NRS 176.033 contemplates that the district court will set a specific dollar amount of restitution. The statute does not allow the district
court to award restitution in uncertain terms. Botts v. State, 109 Nev. 567, 569, 854 P.2d 856, 857 (1993). Although the trial court stated
during the sentencing proceeding that it would provide the State leave to seek additional restitution as the victim incurred further expenses,
the judgment of conviction ordered Hewitt to pay $16,386.00. We conclude that the judgment entered by the district court, on its face,
orders a specific dollar amount, and that this amount represents the entire amount of restitution owed. Thus, we conclude that the State is
not entitled to seek future expenses.
[Headnote 3]
Appellant Hewitt also argues that the district court erred by convicting him of a lesser included offense. We agree.
The district court entered judgments of convictions against appellant Hewitt for battery by a prisoner (Count I) and battery on an
officer with substantial bodily harm (Count III). At sentencing, the State conceded that the offenses merge and requested the district court
to enter a judgment of conviction only as to Count III. The record reveals, however, that while the district court sentenced Hewitt only as to
Count III, the court entered judgments of conviction for both Counts I and III.
[Headnote 4]
Where one offense is necessarily included in another, a defendant can be convicted of only one. Keefe v. Sheriff, 93 Nev. 109, 560
P.2d 913 (1977). We conclude that battery by a prisoner is necessarily a lesser included offense of battery on an officer with substantial
bodily harm. Therefore, we conclude that the district court erred by convicting Hewitt for battery by a prisoner and reverse the conviction.
4
Having considered all other arguments raised by appellant Hewitt, we conclude that they are meritless.
__________

3
We recognize that Officer McCracken may have been reimbursed by his insurance company and do not preclude the insurance
company from seeking subrogation.

4
The effect of our reversal of appellant Hewitt's conviction for battery by a prisoner will be to remove the conviction from his record.
It will have no effect on his sentence.
Appellant Burkes' arguments
[Headnotes 5, 6]
Appellant Burkes urges this court to reverse his conviction on numerous grounds. Having considered all of Burkes' arguments, we
conclude that they are without merit. In addition, several of Burkes' arguments
5
have been raised for the first time on appeal. We conclude
that appellant's failure to raise these issues below precludes appellate review. See Etcheverry v. State, 107 Nev. 782, 784-85, 821 P.2d 350,
351 (1991). Only where there is a finding of plain error or where the assigned error is patently prejudicial will this court review the
misconduct in the absence of an objection below. Cf. Bonacci v. State, 96 Nev. 894, 620 P.2d 1244 (1980); Rhodes v. State, 91 Nev. 720,
542 P.2d 196 (1975). We conclude that neither of these exceptions apply.
[Headnote 7]
Appellant Burkes also moves the court for confession of error pursuant to NRAP 31(c)
6
on the ground that the State failed to respond
to certain issues set forth in his proper person supplemental brief. The State timely filed an answering brief; however, the brief did not
address all of appellant's arguments. We conclude that the foregoing circumstances do not result in a confession of error.
For the reasons discussed herein, we reverse the conviction against Hewitt for battery by a prisoner. Further, we remand this case to the
district court with instructions to order that Hewitt pay restitution to Officer McCracken. We affirm Burkes' conviction in all respects.
__________

5
Appellant Burkes' argued, inter alia, that the district court failed to instruct the jury regarding the element of lawful custody, that
the use of the word innocence in jury instructions was improper, and that the district court erred by not instructing the jury on a lesser
included offense of resisting a public officer.

6
NRAP 31(c) provides in relevant part:
If a respondent fails to file an answering brief, respondent will not be heard at oral argument, except by permission of the
court. The failure of respondent to file a brief may be treated by the court as a confession of error and appropriate disposition of
the appeal thereafter made.
____________
113 Nev. 393, 393 (1997) Mackintosh v. California Fed. Sav.
RICHARD MACKINTOSH and LYNN MACKINTOSH, Appellants, v. CALIFORNIA
FEDERAL SAVINGS & LOAN ASSOCIATION dba CALIFORNIA FEDERAL
SAVINGS, NEVADA DIVISION, and PRESTON R. CLARK,
Respondents/Cross-Appellants, v. JACK MATTHEWS & CO., PAT HANSEN,
RICHARD MACKINTOSH and LYNN MACKINTOSH, Cross-Respondents.
No. 27199
March 27, 1997 935 P.2d 1154
Appeal from a judgment, ordering recision of a sale of real property, entered following a
bench trial. Second Judicial District Court, Washoe County; Mills Lane, Judge.
Purchasers sued savings and loan association, which acted as both vendor and lender, for
rescission of contract for purchase of residence. The district court granted summary judgment
for savings and loan. Purchasers appealed. The supreme court reversed. 109 Nev. 628, 855
P.2d 549 (1993). On remand, the district court ordered rescission of contract. Savings and
loan appealed. The supreme court held that: (1) special relationship existed between
purchasers and savings and loan obligating savings and loan to reveal residence basement's
tendency to flood; (2) purchasers' success in rescinding contract did not preclude purchasers
from relying on same contract's prevailing party attorney fee provision; but (3) purchasers
were not entitled to recover costs for homeowner's insurance, improvements, or damages for
intentional infliction of emotional distress.
Affirmed in part, reversed in part, and remanded with instructions.
Peter H. Cuttitta, Reno, for Richard Mackintosh and Lynn Mackintosh.
Clark & Dickey, Reno; Beckley, Singleton, Jemison & List, Chtd., and Daniel F.
Polsenberg, Las Vegas, for California Federal Savings and Preston R. Clark.
Jack Matthews, In Proper Person, Las Vegas, for Jack Matthews & Co.
Pat Hansen, In Proper Person, Sparks, for Pat Hansen.
Trier of fact's verdict will not be overturned if it is supported by substantial evidence, unless verdict was clearly erroneous when
viewed in light of all evidence presented. Substantial evidence is that which reasonable mind might accept as adequate to support
conclusion.
2. Fraud.
Whether special relationship exists between vendor and purchaser requiring vendor to reveal information to purchaser is factual
question.
3. Fraud.
If vendor acts as both seller and lender, there is inference that special relationship was created requiring vendor to reveal
information to purchaser, but all facts must be considered to determine if relationship was created.
4. Fraud.
Special relationship existed between purchaser of home and savings and loan association that acted as both vendor and lender, and
thus savings and loan was required to disclose house's susceptibility to flooding, notwithstanding that sale was as is. Savings and
loan required purchaser to obtain financing from savings and loan although savings and loan did not normally require purchasers of its
foreclosed homes to borrow money from savings and loan.
5. Fraud.
Purchasers were not required to show that savings and loan had actual knowledge of purchasers' reliance on savings and loans'
representations to establish that special relationship existed by virtue of savings and loan's acting as both vendor and lender, rather it
was sufficient for purchasers to show that reasonable lender would have known of purchasers' reliance.
6. Contracts.
Party may rescind contract within reasonable time, but what constitutes reasonable time depends on facts of particular case and
must be determined by trier of fact.
7. Contracts.
Delay alone does not necessarily constitute waiver of right to rescind contract.
Statute of limitations applicable to purchasers' rescission of residence purchase agreement began to run when prior owner informed
purchasers that basement of residence had serious flooding problem, rather than earlier time when purchasers discovered small water
problem. NRS 11.190(1)(b), (3)(d).
9. Election of Remedies.
Purchasers' continued house payments and their improvements to property were not conduct inconsistent with intent to rescind
purchase contract, and thus by making payments and improving residence purchasers did not lose right to seek rescission, pursuant to
election of remedies doctrine.
10. Vendor and Purchaser.
Purchasers' success in rescinding contract for purchase of residence did not preclude purchasers from recovering attorney fees
pursuant to same contract's prevailing party attorney fee provision.
11. Building and Loan Associations.
Punitive damages were not recoverable by purchasers in case that first adopted cause of action against savings and loan for failing
to reveal residence's flooding problem, on grounds of special relationship between savings and loan and purchasers created by savings
and loan's insistence that purchasers finance purchase through savings and loan.
Late charge payments resulted from purchasers' own inability to pay their mortgage on time and did not enrich vendor, and thus
purchasers were not entitled to reimbursement for late charge payments after purchase contract was
rescinded.
were not entitled to reimbursement for late charge payments after purchase contract was rescinded.
Purchasers decision to buy homeowner's insurance was discretionary, and purchasers were not compelled to buy insurance, and
thus cost of such insurance was not recoverable by purchasers after purchase contract was rescinded.
If contract is rescinded and restitution is ordered, party should be reimbursed for costs of any improvements made.
Improvements that purchasers made to residence were not recoverable, after purchase contract was rescinded and restitution
ordered, where improvements were eight years old, had limited life use, and had been enjoyed by purchasers during those eight years.
16. Damages.
Elements of intentional infliction of emotional distress are extreme and outrageous conduct with either intention of, or reckless
disregard for, causing emotional distress, plaintiffs having suffered severe or extreme emotional distress, and actual or proximate
causation.
17. Damages.
Savings and loan association's nondisclosure of residence basement's tendency to flood was not clearly proscribed by enunciated
law, and thus nondisclosure was not done intentionally or with reckless disregard for causing emotional distress, as required for
purchasers to recover damages for intentional infliction of emotional distress.
OPINION
Per Curiam:
Appellants/Cross-Respondents Richard and Lynn Mackintosh (the Mackintoshes) bought a
house from Respondent/Cross-Appellant California Federal Savings and Loan (Cal Fed),
which owned the house by way of foreclosure. Cal Fed was aware that the basement of the
house flooded severely during high water times, but because the sale was as-is, Cal Fed did
not disclose this material defect to the Mackintoshes. Richard Mackintosh was told of the
defect after the sale by a worker hired by Cal Fed and confirmed the worker's information
after talking to the prior owner of the house. The Mackintoshes filed a complaint seeking
recision of the contract and/or damages.
Cal Fed and other defendants were awarded summary judgment by the district court on the
ground that the Mackintoshes knew or should have known of the defect. However, in an
earlier opinion, we reversed the grant of summary judgment, stating that because Cal Fed was
both the seller and the lender, a special relationship might have been created between Cal Fed
and the Mackintoshes, which imposed a duty on Cal Fed to disclose the existence of material
defects to the Mackintoshes.
On remand, the district court concluded that a special relationship did exist between the
parties and that Cal Fed had breached its duty to disclose. The district court ordered recision
of the contract and ordered Cal Fed to return the Mackintoshes' down payment and mortgage
payments, minus the fair rental value of the property. The district court refused to award
attorney's fees, punitive, or other damages, including those for emotional distress, and the
Mackintoshes have appealed those decisions. Cal Fed appeals the district court's conclusion
that a special relationship existed and that the Mackintoshes timely filed their complaint for
recision.
We conclude that the district court's judgment was proper, with the exception of its
decision refusing to award attorney's fees to the Mackintoshes. Therefore, we affirm the
district court's judgment with the exception of the attorney's fees issue, and we remand this
case to the district court for a determination of the amount of attorney's fees owed to the
Mackintoshes.
FACTS
This case has previously been before this court in Mackintosh v. Jack Matthews & Co.,
109 Nev. 628, 855 P.2d 549 (1993) (Mackintosh I), wherein this court reversed a grant of
summary judgment in favor of Cal Fed and other defendants. While many of the facts
pertaining to this matter are stated in Mackintosh I, we will restate the facts relevant to the
issues presented in this appeal.
This case involves the sale of a house located at 5600 Old Highway 395 South in the
Washoe Valley. Cal Fed owned the house by way of foreclosure and had placed the property
on the market for sale through Pat Hansen, an agent at the real estate offices of Jack
Matthews & Company.
The Mackintoshes visited the property on their own. Richard stated that the house was in
generally poor condition and that it had filthy carpet, a bad smell, and cracked linoleum
flooring. Additionally, Richard stated that he went into the basement but that the lights did
not work. Richard stated that he could tell that there had been water in the basement at one
time because he saw water stains on the walls, and he also saw a freshly repaired pipe in the
basement and concluded that the broken pipe was the source of the water damage.
Accordingly, Richard never asked his real estate agent or anyone at Cal Fed about the water
damage prior to the sale.
Prior to the sale, Cal Fed had knowledge that the basement had a serious flooding
problem. In October 1985, approximately one year prior to the sale to the Mackintoshes, Cal
Fed had hired Charles McMillan, a real estate appraiser, to conduct an appraisal of the
property in question.
of the property in question. McMillan's appraisal mentioned that the home did not have
proper drainage to funnel water away from the house and that such drainage was needed. At
the time he conducted the appraisal, McMillan saw standing water in the basement and
indicated that a new sump pump was needed. McMillan's appraisal also stated that the
basement would need to be filled in if the drainage problem could not be repaired. This
appraisal was sent to Cal Fed. Additionally, Paul Stuart, a former owner of the house, stated
that he had informed Preston Clark, Cal Fed's person in charge of foreclosed property in the
area, and other Cal Fed employees that the basement had flooded severely while he was in
possession of the house.
While the house was still listed for sale, Cal Fed hired Waynco, a local construction
company, to perform various repairs on the property in question. Waynco sent Mark Kirk to
perform the work. Kirk stated that he was told to repair the bathrooms and kitchen, fix some
electrical problems, install carpet, pump water out of the basement, and clean and repaint the
basement. Kirk was also told to install a new drainage system around the house and a new
sump pump in the basement to prevent future flooding. Kirk stated that this work was largely
cosmetic and was done to make the house more appealing to potential buyers.
Kirk stated that he began his work in the basement, which had about four feet of standing
water in it. Kirk drained all of the water and washed out the basement. About a week after
Kirk began working at the house, David Foote, the owner of Waynco, and Clark went to the
house while water was still in the basement. Kirk told Foote that the basement flooding was
due to a structural flaw in the design of the house and that the water was seeping in through
the walls of the basement.
Foote and Clark later instructed Kirk not to paint the basement, not to install a drainage
system, and not to discuss the job with anyone. Kirk was instructed to finish other cosmetic
work, and was in the process of doing so, when Richard visited the house. Richard did not
introduce himself as a prospective purchaser, and Kirk stated that he told Richard that he
worked for Waynco and was detailing the house for sale.
Cal Fed had listed the house for sale as-is. The Mackintoshes submitted an offer on the
property for the full asking price of $122,400. Cal Fed submitted a counteroffer that required
the Mackintoshes to seek and obtain a loan from Cal Fed for the purchase of the home. The
Mackintoshes accepted the terms of the counteroffer, and escrow closed on the house on
October 29, 1986.
At some point after the Mackintoshes accepted Cal Fed's counteroffer but before the
close of escrow, Richard went to see the house again.
counteroffer but before the close of escrow, Richard went to see the house again. When he
arrived, he saw that all of the carpet had been removed from the house and stacked in the
driveway. Richard visited the house again two or three days before escrow closed, and he
noticed that the house had been painted and that some of the toilets had been replaced.
Richard stated that these repairs were not preconditions to the sale and that because Cal Fed
was undertaking to repair the house, he felt that the as-is provision covered only the defects
that he could see and that Cal Fed was repairing the latent defects.
At the close of escrow, Richard was shown a pest control report which indicated that there
was excessive moisture in the house and the basement. Richard stated that he was
unconcerned by the report because he believed that the excessive moisture had come from the
broken pipe in the basement.
After the close of escrow, Waynco continued to perform work on the house for
approximately two weeks. Richard assumed that Cal Fed was just trying to make the house
livable. Richard was presented with a bill for $800 for some electrical work Waynco had
performed in relation to the installation of a new water heater, and after he refused to pay the
bill, Waynco ceased working on the house. Some time during this two week period, Kirk
informed Richard that water leaked through the basement walls, that the first time he saw the
basement it had four feet of water in it, that he had originally been told to build a drainage
system to prevent the flooding but was later told not to take such preventative measures, and
that Richard could expect major flooding in the basement in high water years.
Richard attempted to confirm Kirk's information by writing a letter to Clark on December
4, 1986. The letter addressed the removal of the carpet, problems associated with Waynco's
painting of the house, problems associated with the sealing of a well, and Richard's concern
regarding the basement flooding. On January 8, 1987, Clark responded to Richard's letter.
Clark's letter stated that the carpet had been removed because it was severely soiled and he
had assumed that the Mackintoshes intended to install new carpet. The letter also stated that
the house was painted because of a lack of prompt communication between Waynco's owner
and workers, the painting was not intended to be part of the sale to the Mackintoshes, and Cal
Fed had paid for the work. The letter did not respond to the inquiry about the well or the
basement even though Clark personally had seen several inches of standing water in the
basement. Clark stated that he did not answer the inquiry regarding the basement flooding
because he believed that the basement water had come from a broken pipe which had already
been fixed.
The Mackintoshes made no further inquiry regarding the flooding and experienced no
problems until October 1987, when a few inches of water entered the basement where their
son was sleeping. Based on Clark's lack of response to his inquiry and the minor 1987
flooding, Richard attempted to locate the prior owner of the house to inquire about the
severity of the flooding problem. Richard stated that locating the prior owner took
considerable time and that he finally located the owner sometime during the spring of 1988.
At that time, Richard talked to Stuart, the prior owner, and was able to verify that the flooding
problem was very serious. Stuart stated in a deposition that while he owned the house he had
informed Clark on numerous occasions about the severity of the basement flooding problem.
On October 26, 1989, the Mackintoshes filed a complaint for damages and/or recision. The
complaint was not served on Cal Fed until January 31, 1990. Cal Fed filed its answer on
February 20, 1990. Cal Fed and the other defendants in the district court action filed a motion
for summary judgment on the ground that the Mackintoshes had known of the water damage
prior to the sale and had accepted the property as-is. Summary judgment was granted in
favor of the defendants, and the case was appealed to this court.
In Mackintosh I, we stated that the grant of summary judgment normally would have been
appropriate given the fact that the Mackintoshes knew or should have known of the water
damage. However, we stated that a special relationship between the Mackintoshes and Cal
Fed may have existed which would have imposed a duty on Cal Fed to disclose the basement
defect, the breach of which would result in Cal Fed's liability for fraud. This court then
adopted a new rule which stated that a duty to disclose defects may exist if one party placed
confidence in the other because of that party's position and the other party knew of that
confidence. Mackintosh v. Jack Matthews & Co., 109 Nev. 628, 635, 855 P.2d 549, 553
(1993) (Mackintosh I). We stated that because Cal Fed acted as both the seller and the lender,
the jury would have to determine whether the Mackintoshes put more confidence in Cal Fed
than they would have in an ordinary seller and whether Cal Fed knew of that extra
confidence. Id. at 636, 855 P.2d at 554. We then reversed summary judgment to let a judge or
jury determine whether a special relationship existed such that Cal Fed had a duty to inform
the Mackintoshes of the basement defect.
1
__________

1
After the case was remanded, the district judge granted summary judgment in favor of Jack Matthews & Co. and Hansen because we
had concluded that those parties had not made any material false representations regarding the house. The grant of summary judgment left
Cal Fed and Clark as the only
At the conclusion of a bench trial, the district court stated that under the general rule, Cal
Fed had no duty to disclose the defect because the sale was as-is. However, the district
court continued by stating that pursuant to Mackintosh I, a special relationship existed
between the Mackintoshes and Cal Fed which imposed a duty on Cal Fed to disclose the
defect and that Cal Fed had breached that duty. The district court stated that the special
relationship existed because Cal Fed was the seller and lender, Cal Fed cleaned, repaired, and
replaced items on the property in question both before and after the sale, and Richard had
placed special confidence in Cal Fed based on those two factors.
The district court also stated that the damage that Richard saw while inspecting the house
would not necessarily have put an ordinary person on inquiry notice and that while it did not
condone the Mackintoshes' failure to investigate the house further, the failure to investigate
did not outweigh Cal Fed's duty to disclose the defect.
The district court found that adequate grounds for recision existed and concluded that the
Mackintoshes had exercised their right to recision in a timely fashion. Additionally, the
district court stated that the Mackintoshes were entitled to recovery of their down payment
and mortgage payments, minus the fair rental value of the house. However, the district judge
concluded that the Mackintoshes were not entitled to recover late charge expenses,
homeowner's insurance payments, or monies spent on improvements to the real property. The
district court also did not award punitive damages or damages based on emotional distress.
Finally, the district court stated that the Mackintoshes were not entitled to attorney's fees
pursuant to the sales contract because the contract had been rescinded and was, therefore, null
and void from its inception.
The Mackintoshes appeal that part of the district judge's decision concerning attorney's
fees and consequential and punitive damages. Cal Fed's cross-appeal challenges the district
court's holdings that a special relationship existed, the Mackintoshes timely filed their
complaint, and the Mackintoshes did not waive their cause of action.
DISCUSSION
The district court properly applied this court's holding in Mackintosh I
In its cross-appeal, Cal Fed argues that the district court improperly applied this court's
decision in Mackintosh I and that no special relationship existed between the Mackintoshes
and Cal Fed such that Cal Fed had a duty to disclose the defect in the basement.
__________
defendants in the district court action. In its order and decision, the district court dismissed Clark from the action, and Clark is named as a
respondent here because the Mackintoshes challenged his dismissal.
no special relationship existed between the Mackintoshes and Cal Fed such that Cal Fed had a
duty to disclose the defect in the basement. We conclude that the district court properly
applied our holding from Mackintosh I.
In Mackintosh I, we stated:
Although a claim of nondisclosure will not overcome an as-is' clause, a claim of
fraudulent concealment will. Nondisclosure will become the equivalent of fraudulent
concealment when it becomes the duty of a person to speak in order that the party with
whom he is dealing may be placed on an equal footing with him. The duty to speak
does not necessarily depend on the existence of a fiduciary relationship. Central States
Stamping Co. v. Terminal Equipment Co., (C.A. 6, 1984), 727 F.2d 1405, 1409 (6th
Cir. 1984).
* * * It may arise in any situation where one party imposes confidence in the other
because of that person's position, and the other party knows of this confidence. * * *'
Id.
. . .
Mackintosh I, 109 Nev. at 634-35, 855 P.2d at 553 (quoting Mancini v. Gorick, 536 N.E.2d 8,
9-10 (Ohio Ct. App. 1987)) (citations omitted). We concluded by stating:
A jury may find that a special relationship existed if the jury determines that
California Federal's status as the lender as well as the seller would have caused a
reasonable person to place more confidence and reliance on California Federal than
would be placed on an ordinary seller. In other words, the jury must ascertain whether
the Mackintoshes, under the circumstances, could reasonably expect California Federal,
as lender and seller, to pay greater attention to its interests than would an ordinary seller
who was not also providing long-term financing on the property.
Mackintosh I, 109 Nev. at 635, 855 P.2d at 554.
[Headnote 1]
The trier of fact's verdict will not be overturned if it is supported by substantial evidence, unless the verdict was clearly erroneous when
viewed in light of all the evidence presented. Bally's Employees' Credit Union v. Wallen, 105 Nev. 553, 555-56, 779 P.2d 956, 957 (1989).
Substantial evidence is 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).
[Headnotes 2-4]
Initially, we take this opportunity to further refine our holding in Mackintosh I by stating that the existence of the special
relationship is a factual question and that while a sellerJlender situation creates an inference that the
relationship was created, all of the facts must be considered in order to determine if the relationship was
created.
relationship is a factual question and that while a seller/lender situation creates an inference
that the relationship was created, all of the facts must be considered in order to determine if
the relationship was created. Using this refined test, we conclude that the district court's
conclusion that Cal Fed and the Mackintoshes shared a special relationship was supported by
substantial evidence.
First, Cal Fed rejected the Mackintoshes' initial offer and issued a counteroffer which
specifically required the Mackintoshes to obtain financing for the house through Cal Fed. The
record indicates that the requirement of financing only through Cal Fed was suspicious
because it was not Cal Fed's policy to require buyers of Cal Fed's foreclosed homes to borrow
money from Cal Fed. We concur with the district court's conclusion that a third party lender
would likely not have lent money on the home unless and until the flooding problem was
corrected and that it was a reasonable inference that Cal Fed required the Mackintoshes to
seek a loan through it for that reason.
Second, Richard testified that he believed that because Cal Fed insisted that the
Mackintoshes obtain a loan through them, Cal Fed knew of the condition of the house and
would tell him if anything was wrong with the house despite its sale as-is. Richard also
stated that he believed that because Cal Fed was the seller and the lender it would not lend
him the money if the property was not acceptable. Third, Cal Fed spent money to repair the
property both before and after escrow closed. This evidence supported the district court's
conclusion that the Mackintoshes had placed more confidence and reliance on Cal Fed than
would be placed on an ordinary seller.
[Headnote 5]
Additionally, evidence supported the conclusion that Cal Fed knew or should have known of the Mackintoshes' special reliance. Cal
Fed apparently had no actual knowledge that the Mackintoshes had placed special reliance on it. Clark testified that he had no
conversations with the Mackintoshes either before or after the sale, he first met the Mackintoshes at a deposition in 1990, and he received
no communications that would lead him to believe that the Mackintoshes were placing any special reliance on either him or Cal Fed.
However, Cal Fed did not need actual knowledge of the reliance to satisfy the second prong of the special relationship test. We stated that
the first prong of the test required that the trier of fact find only that the conditions would cause a reasonable person to impart special
confidence in the seller/lender. Mackintosh I, 109 Nev. at 635, 855 P.2d at 554. Therefore, we conclude that the second prong of the test
also requires only that a reasonable lender would have known of this confidence.
confidence. Based on Cal Fed's actions with regard to the Mackintoshes, we conclude that
sufficient evidence supported the district court's conclusion that a reasonable lender would
have known of the special confidence.
The district court did not abuse its discretion in finding that the Mackintoshes demanded
recision in a timely manner and that their conduct was consistent with an intent to rescind
Cal Fed argues that the Mackintoshes did not demand recision in a timely manner because
they discovered the defect in November 1986 and did not file their complaint for recision
until October 1989. We disagree.
1. Timeliness
The evidence proved that the Mackintoshes were first made aware of the flooding problem
in or around November 1986, when Kirk told them of the problem. Then, in December 1986,
Richard wrote a letter to Clark requesting information on the flooding problem, but received
no response to his inquiry. In October 1987, several inches of water collected in the basement
while the Mackintoshes' son was sleeping there; however, the district court stated that such a
small amount of water was insufficient to put the Mackintoshes on notice of the severity of
the flooding problem. After the October 1987 incident, Richard attempted to locate the prior
owners of the house and eventually did so in the spring of 1988. At that time, Stuart
confirmed that the basement was subject to severe flooding. In October 1989, approximately
eighteen months after talking to Stuart, the Mackintoshes filed their complaint. The district
judge concluded that the filing was timely and that the Mackintoshes had not waived their
right to rescind.
[Headnotes 6, 7]
A party must rescind a contract within a reasonable time, but what constitutes a reasonable time depends upon the facts of a particular
case and must be determined by the trier of fact. Wall v. Foster Petroleum Corp., 791 P.2d 1148, 1151 (Colo. Ct. App. 1989). Therefore,
delay alone does not necessarily constitute a waiver. McDonald v. Shore, 590 P.2d 218, 221 (Or. 1979).
[Headnote 8]
We conclude that substantial evidence supported the district judge's conclusion that the Mackintoshes' complaint was timely filed.
Kirk's statements, coupled with the minor 1987 flooding, were insufficient to place the Mackintoshes on notice of the severity of the
flooding. Only when Stuart informed Richard in the spring of 1988 that the basement had seriously flooded while Stuart was in
possession of the house, was Richard put on notice of the severity of the flooding problem.
Stuart was in possession of the house, was Richard put on notice of the severity of the
flooding problem. Additionally, the Mackintoshes' complaint, filed in October 1989,
approximately eighteen months after the conversation with Stuart, was properly deemed
timely and not subject to dismissal on the ground of laches by the district judge. This court
has stated:
Laches is an equitable doctrine which may be invoked when delay by one party
works to the disadvantage of the other, causing a change of circumstances which would
make the grant of relief to the delaying party inequitable. Especially strong
circumstances must exist, however, to sustain a defense of laches when the statute of
limitations has not run.
Building & Constr. Trades v. Public Works, 108 Nev. 605, 610-11, 836 P.2d 633, 636-37
(1992) (citation omitted).
In the instant case, the statute of limitations on the Mackintoshes' action accrued in the
spring of 1988, and the statute of limitations was either three years if the action was based on
fraud or six years if the action was one based on a written contract. NRS 11.190(1)(b); NRS
11.190(3)(d). In either case, the statute of limitations had not expired when the Mackintoshes
filed their complaint. Cal Fed argues that it was prejudiced by the delay because Stuart was
dead by the time of trial; however, we conclude that no prejudice existed because Cal Fed
participated in Stuart's deposition and had an opportunity at that time to inquire about Stuart's
knowledge of the property.
2. Conduct inconsistent with an intent to rescind
[Headnote 9]
Cal Fed also argues that the Mackintoshes exhibited conduct inconsistent with an intent to rescind. Specifically, Cal Fed argues that
after the Mackintoshes discovered the flooding problem in the spring of 1988, they continued to make payments on the house and even
made improvements to the property. The Mackintoshes argued that because they pled alternative and inconsistent remedies, i.e., damages
and recision, their conduct of making payments and improvements is not evidence of conduct inconsistent with an intent to rescind.
We conclude that substantial evidence existed to support the district court's conclusion that the Mackintoshes did not exhibit conduct
inconsistent with an intent to rescind the contract. If a party has more than one remedy . . ., his manifestation of a choice of one of them by
bringing suit or otherwise is not a bar to another remedy unless the remedies are inconsistent and the other party materially changes his
position in reliance on the manifestation. Restatement (Second) of Contracts 378 (1981).
The Mackintoshes never elected recision as their sole remedy until the time of trial.
until the time of trial. Even though the remedies stated in the complaint were inconsistent, no
evidence was produced at trial that Cal Fed materially changed its position in reliance upon
the fact that the Mackintoshes continued to make payments and some minor improvements to
the house. The Mackintoshes made their last principal payment in July 1994, and no
payments were made after the Mackintoshes chose recision as their sole remedy at trial in
August 1994. The district court concluded that the Mackintoshes continued to make payments
in order to protect their credit rating and prevent foreclosure should they lose at trial and that
the payments were not evidence that they were affirming the contract. We conclude that the
district judge's conclusion was supported by substantial evidence.
The district court improperly denied the Mackintoshes' request for attorney's fees
[Headnote 10]
At the conclusion of trial, the Mackintoshes moved for an award of attorney's fees based on the fact that their sales contract stated the
following:
In the event that legal action is instituted by . . . any party to this agreement . . . arising out of the execution of this agreement or
sale, . . . the prevailing party shall be entitled to receive from the other party a reasonable attorney fee to be determined by the
court in which the action is brought.
The district court refused to award attorney's fees, stating that the rescinded contract was
void from its date of inception, just as if the contract had never existed. Bergstrom v. Estate of DeVoe, [109 Nev. 575, 854 P.2d
860 (1993)]. As recision has been granted in this case, the contract is null and void. Therefore, Plaintiffs may not recover attorneys
fees under the terms of a void contract.
We conclude that the district judge's conclusion that attorney's fees were not available pursuant to Bergstrom was erroneous. In
Bergstrom, this court concluded that because a rescinded contract was void ab initio, the party who rescinded the contract was precluded
from recovering damages for breach because it was as if the contract had never been entered into. Bergstrom, 109 Nev. at 577-78, 854 P.2d
at 862. Allowing both recision and damages for breach of contract would constitute double recovery. Id. at 578, 854 P.2d at 862. However,
in Bergstrom, we did not address the issue of whether an award of attorney's fees authorized by the contract would be permissible if the
contract had been rescinded.
In Katz v. Van Der Noord, 546 So. 2d 1047 (Fla. 1989), the Florida Supreme Court stated:
We hold that when parties enter into a contract and litigation later ensues over that
contract, attorney's fees may be recovered under a prevailing-party attorney's fee
provision contained therein even though the contract is rescinded or held to be
unenforceable. The legal fictions which accompany a judgment of rescission do not
change the fact that a contract did exist. It would be unjust to preclude the prevailing
party to the dispute over the contract which led to its rescission from recovering the
very attorney's fees which were contemplated by that contract.
Id. at 1049.
We agree with this case law. Therefore, we conclude that the district court erred in denying
the Mackintoshes' request for attorney's fees, and we remand this case to the district court for
reconsideration of this issue consistent with this opinion.
The district court properly refused to allow the Mackintoshes to present evidence to support
a claim for punitive damages
[Headnote 11]
NRS 42.005(1) establishes the circumstances under which punitive damages are available:
[I]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that
the defendant has been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the compensatory
damages, may recover damages for the sake of example and by way of punishing the defendant.
Additionally, we have stated that punitive damages must be based on a cause of action sounding in tort and that compensatory damages
must be awarded before the court can award punitive damages. Sprouse v. Wentz, 105 Nev. 597, 602, 781 P.2d 1136, 1138-39 (1989). This
is a tort action.
However, we have stated that punitive damages should not be awarded in the case which initially adopts this new cause of action.
Hansen v. Harrah's, 100 Nev. 60, 65, 675 P.2d 394, 397 (1984). This rule precludes an award of punitive damages in this case because the
cause of action underlying any award of punitive damages was first adopted by this court in Mackintosh I. Therefore, the district court's
conclusion that punitive damages were not available in this case was proper.
The district court properly refused to allow recovery for consequential damages, including damages for emotional distress
The Mackintoshes argue that the district court erred by refusing to allow them to recover all sums expended in regard to the real
property at issue, including improvements, insurance, and late charges on the principal.
real property at issue, including improvements, insurance, and late charges on the principal.
The Mackintoshes also argue that the district court erred in failing to award damages for
emotional distress. We conclude that the district court did not err.
At the conclusion of trial, the district court awarded the Mackintoshes the amount of their
down payment and their principal payments, minus the fair rental value of the house. The
Mackintoshes were also reimbursed for the tax expenses they had incurred. However, the
Mackintoshes were not reimbursed for late charge expenses or for the costs of homeowner's
insurance because such insurance was a discretionary expense. The Mackintoshes also were
not reimbursed for improvements made to the property because (1) the improvements added
no value to the property and (2) the improvements were added in 1986, and the Mackintoshes
had enjoyed the improvements for eight years. The district court stated that equitable
considerations required that the Mackintoshes not be reimbursed for the improvements. We
agree.
A recision of a contract demands as a general rule the restoration of the status quo of
the parties. . . .
To place a party in status quo means to place such party in the same position as he
was situated in at the time of the execution of the contract; but absolute and literal
restoration of the parties to their former position is not required, and such restoration as
is reasonably possible and demanded by the equities of the case is sufficient. Thus,
where acts of the other party render a restoration of the status quo impossible,
restoration need be made only as nearly as circumstances will permit.
17A C.J.S. Contracts 438 (1963) (footnotes omitted).
1. Damages excluding those for emotional distress
[Headnotes 12, 13]
First, we conclude that the district judge properly concluded that the Mackintoshes were not entitled to reimbursement for homeowner's
insurance payments and late charge payments. The Mackintoshes argue that they were fraudulently induced into buying the house and,
therefore, that they should be reimbursed for these house-related expenditures. However, the purchase of homeowner's insurance was
discretionary, and the Mackintoshes were not compelled to buy the insurance. Furthermore, the late charge payments resulted from the
Mackintoshes' own inability to pay their mortgage on time. Cal Fed was not enriched by these two expenditures, and the district court
properly refused to award reimbursement to the Mackintoshes for these costs.
[Headnotes 14, 15]
With regard to the improvements, in a recision and restitution situation, a party should be reimbursed for the costs of any
improvements made. See Garbark v. Newman, 51 N.W.2d 315, 325 (Neb. 1952). See generally 66 Am. Jur. 2d Restitution and Implied
Contracts 166 (1973). However, the improvements were eight years old, had a limited life use, and had been enjoyed by the
Mackintoshes during those eight years. Therefore, we conclude that substantial evidence supported the district court's conclusion that the
equities of the case demanded that no damages would be awarded to the Mackintoshes for the improvements.
2. Damages for emotional distress
At the conclusion of the trial, the district court stated that while it believed that the Mackintoshes had proven that they had experienced
emotional distress, it would not award damages for emotional distress because it did not think that Cal Fed could be liable for causing
emotional distress when Cal Fed had believed that its actions were legitimate and proper.
[Headnote 16]
The Mackintoshes sought recovery for the intentional infliction of emotional distress, the elements of which are: (1) extreme and
outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff's having suffered
severe or extreme emotional distress and (3) actual or proximate causation. Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90, 91-92 (1981).
[Headnote 17]
We have stated that damages for intentional infliction of emotional distress can arise from a tort action. See Shoen v. Amerco, Inc., 111
Nev. 735, 896 P.2d 469 (1995) (stating that intentional infliction of emotional distress could arise from a tortious discharge). Therefore,
because the underlying action is a tort, damages for emotional distress are available. However, because at the time of the sale Cal Fed's
nondisclosure was not clearly proscribed by enunciated law, such behavior did not constitute intent or reckless disregard for causing
emotional distress. Star, 97 Nev. at 125, 625 P.2d at 91-92. Therefore, we conclude that the district court's decision to not award damages
for emotional distress was supported by substantial evidence.
CONCLUSION
The district court properly applied our holding in Mackintosh I and concluded that a special relationship existed between the
Mackintoshes and Cal Fed.
Mackintoshes and Cal Fed. Additionally, the district court properly refused to award
compensatory and punitive damages. However, the district court erred in failing to award
attorney's fees to the Mackintoshes. Therefore, we affirm the district court's judgment with
the exception of the issue regarding attorney's fees. We remand the case to the district court
for imposition of attorney's fees in favor of the Mackintoshes consistent with this opinion.
____________
113 Nev. 409, 409 (1997) Carson City v. Price
CARSON CITY, a Consolidated Municipality and a Political Subdivision of the State of
Nevada; and CITIZENS FOR AFFORDABLE HOMES, Appellants, v. GREGORY
PRICE and CHERYL PRICE, Husband and Wife; and MIKE WATERS and JULIE
WATERS, Husband and Wife, Respondents.
No. 27425
March 27, 1997 934 P.2d 1042
Appeal from a district court order granting a preliminary injunction. First Judicial District
Court, Carson City; Michael E. Fondi, Judge.
Neighboring landowners opposing affordable housing construction project brought action
against developer and city, seeking injunctive relief and monetary damages on variety of
theories. The district court granted preliminary injunction restraining developer from
continuing construction, and developer and city appealed. The supreme court, Shearing, C. J.,
held that laches barred claim for injunctive relief.
Noel S. Waters, District Attorney, Paul A. Lipparelli, Deputy District Attorney; Allison,
MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, for Appellants.
Arthur J. Bayer, Carson City, for Respondents.
1. Injunction.
Despite neighboring landowners' early opposition to affordable housing construction project, laches barred their claim for
injunctive relief where they did not threaten to institute legal proceedings until more than six months after public hearing regarding
project, and did not file complaint for two more months, during which time developer spent thousands of dollars preparing lots, gaining
government approvals, and completing large portion of construction.
2. Equity.
Laches is equitable doctrine which may be invoked when delay by one party works to disadvantage of other, causing change of
circumstances which would make grant of relief to delaying party inequitable; thus, laches is more than mere delay in seeking to
enforce one's rights, but rather, it is delay that works to disadvantage of another.
3. Equity.
Condition of party asserting laches must become so changed that party cannot be restored to its former state.
4. Equity.
Applicability of laches doctrine depends upon particular facts of each case.
OPINION
By the Court, Shearing, C. J.:
In 1992, Stanton Park Development, Inc. (Stanton Park) developed the Mountain Park
subdivision in Carson City. As a condition of approval of the subdivision, the Board of
Supervisors of appellant Carson City (Carson City) required construction of a storm
drainage detention facility. Rather than build and maintain such a facility itself, Stanton Park
dedicated the easterly sixty feet of [subdivision] lots 96 and 127 (the detention pond) to
the city of Carson City to satisfy the condition. Carson City accepted and recorded the
dedication in December 1993.
In June 1994, appellant Citizens for Affordable Homes, Inc. (CAHI) proposed to Carson
City that the detention pond property be conveyed to CAHI for use in its affordable housing
program. In exchange, CAHI agreed to reengineer and reconstruct certain drainage structures
within the subdivision. A draft agreement for the project was formulated and a public hearing
scheduled. On August 5, 1994, written notices of the date, time, and subject of the hearing
were mailed to all lot owners whose property lay within three hundred feet of the detention
pond. A few days later, Cheryl Blomstrom (Blomstrom), CAHI's executive director,
apparently sent out a separate, more detailed notice concerning the proposal to the same
group of property owners.
At the August 18, 1994 public hearing, the Carson City Board of Supervisors heard from
city officials, CAHI representatives, and proponents and opponents of the proposal. The
board voted unanimously to approve the project. It appears that respondents Gregory and
Cheryl Price (the Prices) and respondents Mike and Julie Waters (the Waters)
(collectively respondents), all of whom owned property abutting the detention pond, did not
attend the meeting. However, in early September 1994, the Prices informed Blomstrom and
Carson City Mayor Marv Teixeira of their opposition to the project.
informed Blomstrom and Carson City Mayor Marv Teixeira of their opposition to the project.
On November 21, 1994, after CAHI had satisfied all material portions of the agreement for
reengineering and reconstruction of the subdivision storm drainage system, Mayor Teixeira
executed a quitclaim deed conveying title of the detention pond property to CAHI. On
November 30, 1994, CAHI recorded the deed. On February 17, 1995, the Carson City Public
Works Department issued building permits for construction of single family homes on the
detention pond property. Millard Construction, the same builder that had erected the other
Mountain Park subdivision homes, began construction shortly thereafter. Millard employed
the same building plans and specifications as were utilized to build the other subdivision
homes.
On April 11, 1995, respondents filed a complaint against CAHI and Carson City
(collectively appellants) claiming inverse condemnation, breach of the subdivision's
CC&Rs, breach of respondents' contractual rights as third-party beneficiaries of the Carson
City-Stanton Park contract, estoppel by appellants' failure to observe the dedicated-use
drainage easement of the detention pond property, and property damage. Respondents sought
injunctive relief and monetary damages.
On May 2, 1995, the district court granted respondents' application for a temporary
restraining order prohibiting any further construction of the CAHI homes pending a full
hearing on the matter. By that time, the two CAHI homes were approximately 75% complete.
On May 26, 1995, the district court issued an order granting a preliminary injunction
restraining CAHI from continuing construction. The district court found, inter alia, that the
conveyance of the property from Carson City to CAHI, as well as construction of the CAHI
homes on the site, violated the subdivision's CC&Rs and provisions of NRS Chapter 278.
[Headnote 1]
Appellants contend that the equitable doctrine of laches precludes issuance of the preliminary injunction because respondents waited
more than eight months after receiving notice of the project before filing their complaint. Respondents contend that appellants' actual notice
of respondents' opposition to the project as of September 1994, well before the filing of the complaint, precludes application of the doctrine
of laches.
1
__________

1
In their answering brief, respondents contend that this appeal should be dismissed because appellants filed their opening brief one
day late. See N.R.A.P. 31(c). We deny respondents' motion and elect to hear this appeal because respondents have not alleged or shown
that they suffered any prejudice as a result of this delay.
[Headnotes 2-4]
Laches is an equitable doctrine which may be invoked when delay by one party works to the disadvantage of the other, causing a
change of circumstances which would make the grant of relief to the delaying party inequitable. Building & Constr. Trades v. Public
Works, 108 Nev. 605, 610-11, 836 P.2d 633, 636-37 (1992). Thus, laches is more than a mere delay in seeking to enforce one's rights; it is
a delay that works to the disadvantage of another. Home Savings v. Bigelow, 105 Nev. 494, 496, 779 P.2d 85, 86 (1989). The condition of
the party asserting laches must become so changed that the party cannot be restored to its former state. Id., 779 P.2d at 86. Applicability of
the laches doctrine depends upon the particular facts of each case. Id.
The record shows that the Carson City Board of Supervisors held a public hearing about the proposed CAHI project in August 1994.
Prior to the hearing, Carson City and CAHI mailed notices concerning the subject and date of the hearing to residences neighboring the
detention pond property. Apparently, respondents did not attend the meeting. In early September 1994, respondent Gregory Price left a
telephone message with Blomstrom and sent a letter to Mayor Teixeira voicing his objection to the project. On November 21, 1994, Carson
City conveyed the detention pond property to CAHI. Thereafter, CAHI endeavored to obtain construction and other approvals to begin
work on the houses. On December 7, 1994, Blomstrom sent a notice to the Waters notifying them that construction of the CAHI homes
would begin in short order. Construction began in late February 1995. On February 1, 1995, the Prices' attorney notified Stanton Park
representatives that the Prices intended to file suit to enjoin construction. Respondents' complaint was filed on April 11, 1995.
Despite respondents' early opposition to the project, we conclude that their claim for injunctive relief is barred under the doctrine of
laches. Respondents did not threaten to institute legal proceedings against Carson City and CAHI until more than six months after the
public hearing, and did not actually file their complaint for two more months. Thus, unlike the property owners in Dickstein v. Williams, 93
Nev. 605, 571 P.2d 1169 (1977), and Gladstone v. Gregory, 95 Nev. 474, 596 P.2d 491 (1979), respondents did not promptly pursue legal
action. See Building & Constr. Trades, 108 Nev. at 610-12, 836 P.2d at 636-37 (writ of mandamus barred by laches where party seeking
injunction delayed one month before instituting legal proceedings). During respondents' period of inaction, CAHI spent thousands of
dollars preparing the lots, gaining government approvals, and actually completing a large portion of the construction. Respondents' delay
caused a material disadvantage to CAHI so altering CAHI's position that it cannot be restored to its pre-project
condition.
delay caused a material disadvantage to CAHI so altering CAHI's position that it cannot be
restored to its pre-project condition. Accordingly, we conclude that the district court abused
its discretion by issuing the preliminary injunction.
However, respondents are not foreclosed from pursuing their claims for monetary
damages.
We reverse the order of the district court and remand this case for further proceedings.
Rose and Young, JJ., concur.
2
The district court saw a need to preserve the status quo during the pendency of this
litigation. The trial judge made detailed findings of fact before issuing the preliminary
injunction, all of which appear to support the trial judge's conclusion that this is a proper
instance for the issuance of a Preliminary Injunction, in that irreparable loss or damage will
result to the Plaintiffs unless Defendants are prohibited from continuing with the construction
of the two residences in question. I see no cause for this court's interfering with the district
court's judgment in this regard.
The majority appears to base its dissolution of the preliminary injunction on its own
factual determination that respondents caused a material disadvantage to CAHI. I do not
believe that this court is presently in a position, while the litigation is still pending before the
trial court, to make an appellate judgment on the degree to which CAHI might have been
disadvantaged. The question of whether CAHI has suffered such a material disadvantage as
to warrant denial of preliminary injunctive relief is a factual question that is fairly answerable
only at the conclusion of the evidence in the district court case. I would leave the district
court alone and permit this matter to go its course at the trial level before we stick our
appellate noses into the case. I dissent.
__________

2
____________
113 Nev. 414, 414 (1997) Estate of Delmue v. Allstate Ins. Co.
THE ESTATE OF BRIAN J. DELMUE, AL L. DELMUE and THE ESTATE OF JEANIE
DELMUE, Appellants, v. ALLSTATE INSURANCE COMPANY and DAVID A.
BARKMAN, Respondents.
No. 27625
March 27, 1997 936 P.2d 326
Appeal from an order granting respondents' motion for summary judgment. Second
Judicial District Court, Washoe County; Deborah A. Agosti, Judge.
Insured brought action to recover underinsured motorist (UIM) benefits under umbrella
liability insurance policy sold without offer of UIM coverage. The district court entered
summary judgment in favor of insurer. Insured appealed. The supreme court held that insurer
was required to offer UIM coverage when selling umbrella policy.
Reversed and remanded with instructions.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks, Reno, for Appellants.
Burton, Bartlett and Glogovac, Reno; and Jones & Dyer, Sacramento, CA, for
Respondents.
Leverty & Associates Law Chtd. and Matthew L. Sharp, Reno, for Amicus Curiae Nevada
Trial Lawyers Association.
Since supreme court's review of summary judgment orders is de novo, entire record below is reviewed anew and without deference
to findings of district court.
2. Judgment.
Summary judgment should only be entered when there are no genuine issues of material fact and moving party is entitled to
expedited judgment as matter of law.
3. Insurance.
Any ambiguities in insurance contract must be construed against insurer and in favor of insured.
4. Insurance.
Insurer was required to offer uninsured motorist (UM) and underinsured motorist (UIM) coverage when selling umbrella liability
insurance policy covering use of automobiles; policy was policy of insurance covering the use of a passenger car requiring insurance
company transacting motor vehicle insurance in state to offer UM and UIM coverage to insured under policy of insurance covering use
of passenger car. NRS 485.055, 687B.145(2).
5. Insurance.
Insurance companies must offer uninsured motorist (UM) and underinsured motorist (UIM) coverage when policy sold to insured
covers use of passenger car. NRS 687B.145(2).
OPINION
Per Curiam:
Appellant Al L. Delmue (Mr. Delmue) had two teenage sons; one was sixteen years old
and the other fifteen. In 1989, he was concerned that his existing automobile insurance was
inadequate to cover any potential loss that his sons might incur while operating an
automobile.
1
Accordingly, Mr. Delmue approached respondent Allstate Insurance Company
(Allstate) through its agent, Gene Gardella (Gardella), to increase his automobile
insurance coverage. Although Mr. Delmue currently had a policy with liability limits of
$100,000 per person/$300,000 per occurrence and uninsured/underinsured (UM/UIM)
motor vehicle insurance coverage with a maximum limitation of $100,000 per
person/$300,000 per occurrence, Gardella recommended that Mr. Delmue purchase a
$1,000,000 personal umbrella policy. At no time during the acquisition of the umbrella policy
did Gardella or Allstate offer Mr. Delmue UM/UIM motorist coverage.
The language of the umbrella policy relevant to the coverage of automobiles stated:
CoverageWhen We Pay
Allstate will pay when an insured becomes legally obligated to pay for personal
injury or property damage caused by an occurrence.
Personal Activities
Coverage applies to an occurrence arising only out of:
. . .
3. the occupancy of a land vehicle, aircraft or watercraft by an insured for personal
transportation. Occupancy of any such conveyance while being used in any way
directly related to an insured's business or business property is not covered.
(Emphasis added.) The policy covered Mr. Delmue's three automobiles and two teenage sons.
On February 14, 1992, fifteen-year-old Brian J. Delmue (Brian) was a passenger in the
automobile of sixteen-year-old David A. Barkman (Barkman). As Barkman was driving
east on McCarran Boulevard, he lost control of his vehicle, swerved off the road, and rolled
his Ford Bronco several times.
__________

1
In his deposition testimony, Mr. Delmue explained his reasons for increasing his policy limits as follows:
My concern was [my son] Jason was 16 and driving, and I was just concerned that the coverage I had on my existing insurance
was not sufficient, and just worried that he could get in some type of an accident, and that my investments and home and property
and everything just weren't covered.
on McCarran Boulevard, he lost control of his vehicle, swerved off the road, and rolled his
Ford Bronco several times. As a result, Brian was ejected from the car and killed. At the time
of Brian's demise, Mr. Delmue's primary automobile insurance policy and the umbrella policy
were in effect.
A complaint was filed by appellants the Estate of Brian J. Delmue, Al L. Delmue, and the
Estate of Jeanie Delmue (Delmue) against Barkman and Allstate. In September 1993,
Barkman entered into a settlement agreement with Delmue. Delmue received $285,000 of
Barkman's $300,000 single limit bodily injury liability coverage.
2
Delmue also received a
$100,000 payment from Allstate under its existing UIM automobile insurance policy. Thus,
Delmue received a total of $385,000 for the wrongful death of Brian. However, Delmue
claims that it suffered damages in excess of Barkman's coverage and Delmue's own UIM
automobile coverage. Accordingly, Delmue seeks an additional $1,000,000 in damages from
Allstate by virtue of the umbrella policy.
Delmue alleges that NRS 687B.145(2)
3
required Allstate to offer UM/UIM coverage equal
to its $1,000,000 umbrella policy limit. Delmue argued to the district court that the failure of
Allstate to comply with this mandate necessitates reformation of the umbrella policy to
include $1,000,000 in UM/UIM motorist coverage. The district court, however, held that the
umbrella policy is not motor vehicle insurance coverage within the meaning of Nevada's
uninsured motorist statute, specifically, NRS 687B.145(2). Accordingly, the district court
granted Allstate's summary judgment motion and denied Delmue's motion for summary
judgment. Delmue appeals, contending that the district court erred in its interpretation of NRS
687B.145(2).
[Headnotes 1, 2]
Since this court's review of summary judgment orders is de novo, the entire record below is reviewed anew and without deference to
the findings of the district court. Serret v. Kimber, 110 Nev. 486, 488, 874 P.2d 747, 749 (1994); Joynt v. California Hotel & Casino, 108
Nev. 539, 541, 835 P.2d 799, 800 (1992).
__________

2
The other $15,000 of Barkman's $300,000 policy went to another passenger in the vehicle.

3
In relevant part, NRS 687B.145(2) provides:
Insurance companies transacting motor vehicle insurance in this state must offer, on a form approved by the commissioner,
uninsured and underinsured vehicle coverage in an amount equal to the limits of coverage for bodily injury sold to an insured
under a policy of insurance covering the use of a passenger car.
(Emphasis added.)
Further, summary judgment should only be entered when there are no genuine issues of
material fact and the moving party is entitled to an expedited judgment as a matter of law.
Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 665 (1985).
[Headnote 3]
Where, as here, neither party disputes any material fact, the construction of an insurance policy is reviewed solely as a question of
law. Serret, 110 Nev. at 488-89, 874 P.2d at 749. Any ambiguities in the insurance contract must be construed against the insurer and in
favor of the insured. Id. Similarly, this court has previously held that it will strictly construe provisions of an uninsured motorist statute in
favor of recovery by the insured. Ippolito v. Liberty Mutual, 101 Nev. 376, 378-79, 705 P.2d 134, 136 (1985).
[Headnote 4]
Delmue argues that the language of NRS 687B.145(2) is clear and unambiguous. As such, this court must not go beyond the plain
language of the statute to determine its intent. See Cirac v. Lander County, 95 Nev. 723, 729, 602 P.2d 1012, 1015 (1979). For the
purposes of the instant matter, Delmue further asserts that the plain language of NRS 687B.145(2) contains five separate elements: [1]
Insurance companies [2] transacting motor vehicle insurance in this state [3] must offer . . . [4] uninsured and underinsured vehicle
coverage . . . [5] to an insured under a policy of insurance covering the use of a passenger car. Through Allstate's own admissions and the
plain meaning of NRS 687B.145(2), Delmue maintains that all five requirements are satisfied in this case. We agree.
Allstate admits that it is an insurance company which was transacting motor vehicle insurance in Nevada at the time this lawsuit arose.
Allstate further admits that it did not offer UM/UIM coverage at the time it sold the umbrella policy to Delmue. Finally, the umbrella policy
states that [c]overage applies to an occurrence arising only out of . . . (3) the occupancy of a land vehicle. In other words, the phrase land
vehicle speaks euphemistically for an automobile.
The plain language of NRS 687B.145(2), specifically the phrase, a policy of insurance covering the use of a passenger car, does not
distinguish between primary automobile coverage policies and umbrella policies, as Allstate asserts. Here, the umbrella policy sold to
Delmue which protects against loss arising out of the occupancy of a land vehicle, certainly cover[s] the use of a passenger car.
4
Accordingly, we conclude that automobile liability insurers writing umbrella policies covering motor vehicles in this
state must offer UMJUIM motorist coverage in compliance with NRS 6S7B.145{2).
__________

4
There can be little doubt that the umbrella policy provided a type of coverage for the use of a passenger vehicle. For example, the
umbrella policy
automobile liability insurers writing umbrella policies covering motor vehicles in this state
must offer UM/UIM motorist coverage in compliance with NRS 687B.145(2). This is
consistent with our prior pronouncements in Serret and Ippolito.
Thus, as in Ippolito, when an insurance company fails to comply with NRS 687B.145(2),
this court will imply into the policy's provisions the increased protection afforded . . . by
NRS 687B.145(2). Ippolito, 101 Nev. at 379, 705 P.2d at 136. Despite its plain language,
Allstate contends that NRS 687B.145(2) must be read in conjunction with Nevada's Motor
Vehicle Safety Responsibility Act (Act), NRS 485.010 et seq., because the Act first
mandated the acquisition of UM/UIM coverage. Allstate notes that section 485.055 of the Act
defines motor vehicle insurance while expressly excluding excess insurance: With respect
to a policy which grants excess or additional coverage over that required by NRS 485.3091,
the term motor vehicle liability policy' applies only to that part of the coverage which is
required by NRS 485.3091. (Emphasis added.) Therefore, Allstate claims that since NRS
485.010 et seq. is so closely related to NRS 687B.145(2), they must be construed in pari
materia and the exclusionary language in NRS 485.055 applied to NRS 687B.145(2).
5
See
Walker v. Reynolds Elec. & Eng'r Co., 86 Nev. 228, 233, 468 P.2d 1, 4 (1970) (holding that
statutes in pari materia must be considered together).
Ironically, Allstate's argument favors Delmue. If the legislature had the foresight to
provide an express exception to excess insurance coverage in NRS 485.055, then it is only
logical that the same would be provided in NRS 687B.145(2) if the legislature so intended.
City of Boulder, 101 Nev. at 118-19, 694 P.2d at 500 (holding that legislature is presumed to
have full knowledge of existing statutes relating to the same topic). Moreover, neither NRS
485.055 nor NRS 687B.145(2) expressly incorporates the other by reference. As this court
stated in McKay v. Board of Cty. Comm'r, 103 Nev. 490, 492, 746 P.2d 124, 125 (1987):
[I]t is important to note with respect to the first proposition, the implied exception
argument, that 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. . . .
__________
invoice sent by Allstate to Delmue specifically noted under the $285 premium balance column that:
PREMIUM INCLUDES A CHARGE FOR 3 AUTOMOBILES
PREMIUM INCLUDES A CHARGE FOR A YOUNG DRIVER

5
Allstate also cites persuasive authority to support its contentions. See Jalas v. State Farm Fire & Casualty Co., 505 N.W.2d 811 (Iowa
1993). However, we are reluctant to rely on other jurisdictions' treatment of this issue. Many of those decisions turn on the discrete wording
of the relevant statutes and insurance policies.
conjecture as to what the legislature would or should have done. . . . To imply an
exception in the face of this straightforward language would be in direct opposition to
the expressed legislative intent.
(Emphasis added.)
[Headnote 5]
Accordingly, we conclude that the rules of statutory construction and legislative intent, when applied to NRS 687B.145(2), require
insurance companies to offer UM/UIM coverage when the policy sold to the insured cover[s] the use of a passenger car.
Finally, Allstate requests that this court exercise its powers to abrogate the plain meaning of the statute and honor the true intent of the
legislature. A court may look beyond the plain meaning of a statute only if it violates the intent of the act or defeats the legislative policy
behind the statute. Department of Motor Vehicles & Public Safety v. Lovett, 110 Nev. 473, 477, 874 P.2d 1247, 1250 (1994); McKay v.
Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). Thus, this court may not hold that NRS 687B.145(2) has a meaning
contrary to its plain language unless the court is effectuating its true intent. Lovett, 110 Nev. at 477, 874 P.2d at 1250. However, we
conclude that the plain meaning of NRS 687B.145(2) is in harmony with the legislature's intent.
There are compelling public policy arguments which favor umbrella policies being subject to the requirements of NRS 687B.145(2).
The first is to give effect to the desires of the insured. Ippolito, 101 Nev. 378-79, 705 P.2d at 136-37. Additionally, while Mr. Delmue may
only have been concerned with protection of his estate from increased exposure to liability arising from his adolescent sons' use of the
family motor vehicles, the statute articulates a well established policy requiring that automobile insurers offer coinciding UM/UIM motorist
protection when liability coverages are created or raised. Without the offer, the insured may never become aware of the option to buy
additional coverage, an option that the legislature has determined to be of vital importance to the insurance consumer. Further, there would
seem to be no purpose in exempting umbrella policies from NRS 687B.145(2) when a simple increase in coverage of the basic underlying
limits would have implicated this statutory requirement.
Accordingly, we reverse the district court's order and remand this matter with instructions that judgment be entered in favor of Delmue.
____________
113 Nev. 420, 420 (1997) Browning v. Young Elec. Sign Co.
FLOYD BROWNING, Appellant, v. YOUNG
ELECTRIC SIGN CO., Respondent.
No. 28160
March 27, 1997 936 P.2d 322
Appeal from an order of the district court reversing an appeals officer's decision awarding
benefits to appellant. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge.
Employer appealed decision of appeals officer affirming hearing officer's decision that
workers' compensation claimant's alleged use of alcohol was not proximate cause of his
injuries, and that claimant thus was entitled to benefits. The district court reversed. Claimant
appealed. The supreme court held that: (1) grant of benefits from third-party administrator
was equivalent to grant of benefits from State Industrial Insurance System (SIIS), such that
employer was aggrieved party that was under obligation to appeal that decision within 70
days, and (2) claimant did not conceal alleged fact that he was intoxicated at time of injury,
such that third-party benefits administrator could deduct from benefits paid amount obtained
by claimant through such alleged concealment.
Reversed.
R. Paul Sorenson, Las Vegas, for Appellant.
McGroarty, Cartwright & Lane, Las Vegas, for Respondent.
1. Administrative Law and Procedure.
Supreme court's role in reviewing administrative decision is identical to that of district court: to review evidence before agency so
that court may determine whether agency's decision was arbitrary and capricious, and was thus abuse of agency's discretion.
Decision of administrative agency will be affirmed if there is substantial evidence to support it.
Grant of benefits to workers' compensation claimant from third party administrator was equivalent to grant of benefits from State
Industrial Insurance System (SIIS), such that employer was aggrieved party that was under obligation to appeal that decision within 70
days. NRS 616C.315(2).
Workers' compensation claimant did not conceal alleged fact that he was intoxicated at time of injury, such that third party
benefits administrator could deduct from benefits paid the amount obtained by claimant through such alleged concealment, where
administrator could have obtained blood alcohol test administered to claimant if it had exercised reasonable diligence. NRS 616C.225.
OPINION
Per Curiam:
Appellant Floyd Browning was an employee of Respondent Young Electric Sign Company
(YESCO) and was injured on the job when an unsecured sign fell on him. YESCO was a
self-insured company, and its third party administrator, W.R. Gibbens, Inc., accepted
Browning's claim for worker's compensation benefits. However, approximately ninety days
after accepting the claim, W.R. Gibbens informed Browning that it was withdrawing that
acceptance because it had since learned that Browning had been intoxicated at the time of the
accident.
Browning appealed the withdrawal of benefits, and a hearing officer reinstated the
benefits, stating that alcohol was not the proximate cause of Browning's injuries. YESCO
appealed, and the appeals officer affirmed the hearing officer's decision.
YESCO then appealed to the district court, which reversed the appeals officer's decision,
stating that because Browning was intoxicated at the time of the accident and had failed to
rebut the statutory presumption that alcohol was the proximate cause of the injury, benefits
were not available.
We conclude that YESCO failed to timely appeal W.R. Gibbens' grant of benefits to
Browning and, therefore, the only issue properly before the administrative agency was
whether Browning had knowingly concealed his intoxication to obtain the benefits. Because
we conclude that no such concealment occurred, the district court abused its discretion in
reversing the opinion of the appeals officer, and the appeals officer's award of benefits should
be reinstated.
FACTS
Browning was employed by YESCO as a security guard and was called into work early on
August 11, 1993; prior to reporting to work he had consumed alcoholic beverages. During his
shift, Browning was injured when a sign fell on him. In his voluntary statement given to W.R.
Gibbens, YESCO's third party administrator, approximately ten days after the accident,
Browning stated the following. While patrolling the YESCO storage yard at approximately
8:30 p.m., he briefly followed a pregnant cat to see where the cat was going. After losing
sight of the cat, he turned around, caught his foot on a piece of rope or wire, and stumbled
forward. As he stumbled, he grabbed onto an unsecured sign which was leaning against
another sign, and the unsecured sign fell on him. He was lying on his back and the sign was
lying across his chest; he was unable to remove the sign because it was too heavy, but he was
able to call 911 from his cellular phone.
The fire department arrived at the scene and removed the sign from his body.
Browning was transported to the hospital, was diagnosed with a compression fracture of
the first lumbar vertebra and weakness in the lower extremities, and apparently was admitted
to the hospital. Additionally, tests indicated that Browning's blood alcohol level was .126.
YESCO filed an employer incident report on August 12, 1993. On September 23, 1993, the
final day to accept or deny Browning's claim for worker's compensation benefits pursuant to
NRS 616C.060,
1
W.R. Gibbens sent a letter to Browning informing him that a claim had been
filed on his behalf and accepted. The letter also indicated that if Browning or any of the other
directly involved parties disagreed with the acceptance of the claim, those parties had a right
to appeal the decision to a hearing officer within seventy days from the date of notice.
On December 13, 1993, W.R. Gibbens sent Browning a second letter stating that his claim
should never have been accepted because Browning had been intoxicated at the time of the
injury. The letter explained that the Nevada Industrial Insurance Act imposed a statutory
rebuttable presumption that the intoxication was the proximate cause of the injury. The letter
concluded by stating that Browning's claim was denied, he could have to repay all of the
benefits paid to date, and he had seventy days to appeal the denial to a hearing officer.
Browning filed an appeal with a hearing officer on February 17, 1994, and a hearing was
conducted on April 6, 1994. The hearing officer reversed the denial of coverage, stating that
Browning was injured while in the course and scope of his duties and that his intoxication
was not the proximate cause of his injury.
YESCO appealed the hearing officer's decision, and on November 23, 1994, after a
rehearing, the appeals officer issued an amended order affirming the hearing officer's ruling.
The appeals officer stated that because Browning was intoxicated and failed to rebut the
statutory presumption of NRS 616.565,
2
she
__________

1
NRS 616C.060 states: An insurer shall accept or deny responsibility for compensation under chapters 616A to 616D, inclusive, of
NRS within 30 working days after claims for compensation are received pursuant to both NRS 616C.020 and 616C.040.

2
This section was later recodified as NRS 616C.230 and states:
1. Compensation is not payable pursuant to the provisions of chapters 616A to 616D, inclusive, of NRS for an injury:
. . . .
(c) Proximately caused by the employee's intoxication. If the employee was intoxicated at the time of his injury, intoxication
must be presumed to be a proximate cause unless rebutted by evidence to the contrary.
normally would have denied the claim. However, in affirming the hearing officer's
conclusion, the appeals officer stated that Browning's intoxication, which formed the basis of
W.R. Gibbens' revocation of the claim acceptance, was actually known to YESCO through
W.R. Gibbens nearly three months prior to the claim denial and, therefore, YESCO and W.R.
Gibbens were estopped from revoking their acceptance of Browning's claim.
The appeals officer's decision was stayed pending an appeal to the district court. The
district judge reversed the appeals officer's decision based on the fact that the appeals officer
had concluded that Browning had been intoxicated at the time of the injury and had failed to
rebut the presumption that alcohol was the proximate cause of his injury. Therefore, the
district judge concluded that pursuant to NRS 616.565 (now NRS 616C.230), Browning was
not entitled to compensation.
Browning now appeals the district court's decision.
DISCUSSION
[Headnotes 1, 2]
This court's role in reviewing an administrative decision is identical to that of the district court: to review the evidence before the
agency so that we may determine whether the agency's decision was arbitrary and capricious, and was thus an abuse of the agency's
discretion. Titanium Metals Corp. v. Clark County, 99 Nev. 397, 399, 663 P.2d 355, 357 (1983). The decision of an administrative agency
will be affirmed if there is substantial evidence to support the decision. SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987).
NRS 616C.315(2) states:
Except as otherwise provided in NRS 616C.305, a person who is aggrieved by:
(a) A written determination of an insurer . . .
. . . .
may appeal from the determination . . . by filing a request for a hearing before a hearing officer. Such a request must be filed
within 70 days after the date on which the notice of the insurer's determination was mailed by the insurer. . . .
In SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993), we stated that when SIIS grants benefits to an
injured worker, an employer is an aggrieved person under NRS 616C.315 and that this provision is the exclusive avenue of appeal from a
decision to grant benefits. In Falline v. GNLV Corp., 107 Nev. 1004, 1007, 823 P.2d 888, 890 (1991), this court concluded that SIIS and
administrators of self-insured plans perform essentially the same functionsthey process claims and, where warranted, pay
compensation to injured workers.
ess claims and, where warranted, pay compensation to injured workers.
[Headnote 3]
Based on United Exposition and Falline, we conclude that a grant of benefits from a third party administrator, in this case W.R.
Gibbens, is equivalent to a grant of benefits from SIIS such that the employer, YESCO, was an aggrieved party and under an obligation
to appeal that decision within seventy days. YESCO failed to timely appeal the decision of its third party administrator pursuant to NRS
616C.315(2) and, therefore, lost its right to challenge the validity of the award on the ground that Browning had failed to rebut the
presumption from NRS 616C.230.
However, another valid avenue to challenge the award remained to YESCO and W.R Gibbens. NRS 616C.225 states:
[I]f an insurer determines that an employee has knowingly misrepresented or concealed a material fact to obtain any benefit or
payment under the provisions of chapters 616A to 616D, inclusive, of NRS, the insurer may deduct from any benefits or payments
due to the employee, the amount obtained by the employee because of the misrepresentation or concealment of a material fact.
[Headnote 4]
Therefore, YESCO and W.R. Gibbens could have withdrawn their acceptance of Browning's claim if they could have shown that
Browning had knowingly misrepresented or concealed a fact in order to obtain benefits. The issue of Browning's concealment was the only
one properly before the administrative agency and is the only issue before this court.
YESCO argues that Browning concealed the fact that he was intoxicated at the time of the injury and that it and W.R. Gibbens had
discovered evidence of the intoxication only after the claim had been accepted. We conclude that this argument lacks merit. Browning's
blood alcohol level was tested at the hospital immediately after he was injured. The blood alcohol report indicates that the test was
performed on August 11, 1993, and that the report was generated on August 15, 1993. The appeals officer's decision indicated that W.R.
Gibbens had received the report on September 24, 1993, the day after it had accepted Browning's claim; however, the report had been
available since August 15, 1993, and the appeals officer concluded that had W.R Gibbens exercised reasonable diligence, it could have
obtained the report before it accepted Browning's claim.
Therefore, we conclude that substantial evidence supported the appeals officer's conclusion that Browning had not knowingly
concealed his intoxication. The district court abused its discretion in reversing the appeals officer's decision, and W.R.
Gibbens' acceptance of Browning's claim and award of benefits should be reinstated.
in reversing the appeals officer's decision, and W.R. Gibbens' acceptance of Browning's claim
and award of benefits should be reinstated.
CONCLUSION
Because YESCO was an aggrieved party, it had seventy days to appeal W.R. Gibbens'
decision to award benefits to Browning. As a result of YESCO's failure to timely file such an
appeal, the only issue before the administrative agency was whether Browning had knowingly
concealed his intoxication. Because no evidence was presented to prove that Browning had
knowingly concealed his intoxication, W.R. Gibbens was not authorized to withdraw its
acceptance of Browning's claim, and the district court's reversal of the appeals officer's
decision was an abuse of discretion. Therefore, we reverse the district court's order and
reinstate the appeals officer's decision.
____________
113 Nev. 425, 425 (1997) Rice v. State
JORDAN RICE, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 27247
March 27, 1997 936 P.2d 319
Appeal from a judgment of conviction, entered upon a jury trial, of trafficking in a
controlled substance, possession of a controlled substance, and carrying a concealed weapon.
Second Judicial District Court, Washoe County; Deborah Agosti, Judge.
The supreme court held that: (1) police officer had reasonable suspicion that defendant
might attempt assault and, thus, properly detained defendant; (2) length of defendant's
detention was no longer than necessary; (3) officer had probable cause to conduct limited
weapon search of defendant; (4) defendant's backpack was not validly searched incident to
defendant's arrest; and (5) backpack was not searched by officers subject to valid inventory
search.
Affirmed in part; reversed in part and remanded.
Maupin, J., dissented in part.
Michael Specchio, Public Defender, and John Reese Petty, Chief Appellate Public
Defender, Washoe County, for Appellant.
Attorney, and Gary H. Hatlestad, Chief Appellate District Attorney, Washoe County, for
Respondent.
113 Nev. 425, 426 (1997) Rice v. State
1. Criminal Law.
Determinations made in suppression hearing are findings of fact which will not be disturbed on appeal if supported by substantial
evidence.
2. Automobiles.
Police officer had reasonable suspicion that defendant might attempt assault and, thus, properly detained defendant for questioning
after officer stopped defendant for riding bicycle without head lamp, where defendant immediately began to shout upon being stopped,
had been drinking, remained on bicycle, refused to identify himself and fidgeted with straps on backpack which contained noticeably
heavy object. U.S. Const. amend. 4; NRS 171.123(1).
3. Automobiles.
Length of defendant's detention by police officer who had reasonable suspicion that defendant might attempt assault was no longer
than necessary, where entire incident took less than five minutes. U.S. Const. amend. 4; NRS 171.123(1).
4. Automobiles.
Police officer had probable cause to conduct limited weapons search of defendant after officer stopped defendant for riding bicycle
without head lamp, where officer saw outline of gun in defendant's pocket. U.S. Const. amend. 4.
5. Arrest; Automobiles.
Defendant's backpack was not validly searched incident to defendant's arrest for operating bicycle without headlight and carrying
concealed weapon, where defendant was placed in patrol car before officer searched backpack. U.S. Const. amend. 4.
6. Automobiles; Searches and Seizures.
Defendant's backpack was not searched by police officers subject to valid inventory search, where officer admitted that they were
looking for contraband when they searched defendant's backpack and there was no evidence that formal inventory was prepared at time
of search. U.S. Const. amend. 4.
OPINION
Per Curiam:
Jordan Rice was sentenced to five years in the Nevada State Prison and ordered to pay
$50,000 for trafficking in a controlled substance. He was also sentenced to a term of two
years in the Nevada State Prison for possession of a controlled substance, and to a term of one
year in the Washoe County Jail for carrying a concealed weapon. Rice appeals based upon the
district court's denial of a motion to suppress evidence. The district court properly concluded
that there was no Fourth Amendment violation with respect to the search of Rice's person.
However, we hold that Rice's backpack was illegally searched and that the district court judge
improperly denied Rice's motion to suppress its contents.
113 Nev. 425, 427 (1997) Rice v. State
FACTS
At about 1:30 a.m., on September 29, 1994, Rice was riding his bicycle near the University
of Nevada, when University of Nevada Patrol Sergeant Carl Smith stopped him for not
having a headlight or a reflector on his bicycle.
Smith testified that Rice immediately escalated his voice and became hostile. He stated
that Rice was really hyper and refused to give his name. Smith also testified that Rice was
agitated, highly aggressive and demonstrated jerky movements, and that [t]he eyes, the sweat
popping out on his head, all of those kinds of things indicated to me that he may have a
weapon. Smith testified that he felt as though Rice was in a fight or flight mode. In other
words, based on past experience, Smith felt that Rice was either looking for an escape route
or a physical altercation. Because Smith thought Rice might escape, he asked him to step off
of the bicycle and remove his backpack because it appeared to have a heavy object in it.
Just as Smith started to pat the bag, he saw Rice move his right hand down. Smith then
saw a bulk and distinctive outline in his pocket of a Derringer. Smith claims that he
grabbed Rice's hand, pulled his arm around, and pushed him onto the patrol car. Smith
handcuffed Rice, called in the incident on his radio and took the loaded gun. Smith told Rice
that he was under arrest for operating a bicycle without a headlight and for carrying a
concealed weapon. Officer John Cripps soon arrived.
Smith testified that he put Rice in the car, then Cripps walked over, got the backpack,
[and] opened it to check it to make sure there was no further contraband. The officers found
money, two bullets, and what they thought to be drugs and drug paraphernalia. Smith stated
that he and Cripps were attempting to conduct an inventory on the scene.
While Rice was in custody, the officers performed a presumptive test on the items which
they believed to be controlled substances. The tests were positive for methamphetamine,
cocaine and marijuana.
DISCUSSION
[Headnote 1]
Determinations made in a suppression hearing are findings of fact which will not be disturbed on appeal if supported by substantial
evidence. Tomarchio v. State, 99 Nev. 572, 575, 665 P.2d 804, 806 (1983). [R]easonableness necessarily means withstanding objective,
and not subjective, scrutiny. United States v. Ortiz, 835 F. Supp. 824, 830 (E.D. Pa. 1993). Thus, this court must determine whether there
is substantial evidence to support a finding that Smith's actions were objectively reasonable under the
circumstances.
113 Nev. 425, 428 (1997) Rice v. State
support a finding that Smith's actions were objectively reasonable under the circumstances.
Detention
[Headnote 2]
Rice claims that according to NRS 171.123, after Smith either warned or cited him for not having a head lamp, he should have been
released.
1
The State claims that there is substantial evidence upon which to base a finding that Smith acted reasonably in detaining Rice.
At the time of Appellant's arrest, NRS 171.123 (amended 1995), provided:
1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that
the person has committed, is committing or is about to commit a crime.
. . . .
3. No person may be detained longer than is reasonably necessary to effect the purposes of this section, and in no event longer
than 60 minutes . . . unless the person is arrested.
In order to justify a temporary detention for questioning, the officer must . . . have reasonable suspicion of an illegal transaction in . . . any
. . . serious crime. United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988), overruled on other grounds by United States v.
Botero-Ospina, 71 F.3d 783, 786-87 (10th Cir. 1995).
Rice was stopped for a traffic violation. However, testimony indicated that before Smith could express the nature of the stop, Rice
began to shout. Smith testified that he noticed Rice had been drinking. Further, Rice remained on his bicycle. From past experience, Smith
testified that he thought Rice might try to escape. In addition, Smith claims that Rice refused to identify himself, elevated his voice, and
fidgeted with the thumb straps on his backpack which contained a noticeably heavy object.
Based on the foregoing, we hold that Smith could not simply cite Rice and release him because there was evidence that Rice would
neither quiet down nor identify himself. Furthermore, there was substantial evidence upon which the trial court could determine that
Smith was reasonable in his belief that Rice might be dangerous and attempt to use his backpack or whatever
else he could find as a weapon.
__________

1
Rice argues that if the detention was illegal, then it is unlikely that Smith would have noticed the weapon or searched the backpack.
Thus, Rice claims that all of the evidence should be suppressed.
113 Nev. 425, 429 (1997) Rice v. State
determine that Smith was reasonable in his belief that Rice might be dangerous and attempt to
use his backpack or whatever else he could find as a weapon. Thus, it seems that Rice could
be detained for questioning under both NRS 171.123 and Guzman because the evidence
supports the conclusion that Smith had a reasonable suspicion that Rice might attempt an
assault.
[Headnote 3]
However, the officer may only briefly detain the suspect no longer than necessary to verify the officer's reasonable suspicion. Terry v.
Ohio, 392 U.S. 1, 19-20 (1968). In this case, Smith testified that the entire incident took less than five minutes. Thus, the evidence supports
a finding that the detention was no longer than necessary.
Search of Rice's person
[Headnote 4]
A lawful frisk does not always flow from a justified stop and detention for questioning. United States v. Thomas, 863 F.2d 622, 628
(9th Cir. 1988). If, during the detention, probable cause fully matures, the detention can ripen into an arrestthus, a full search incident to
arrest is permissible. Terry, 392 U.S. at 10. In addition, a police officer may conduct
a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an
armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need
not be absolutely certain the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in danger.
Id. at 27.
Because the evidence supports a finding that Smith was reasonable in the belief that his safety was in danger, a limited search for
weapons was in order.
In this case, Smith testified that his intent was to pat search the backpack and then Rice. However, he testified that before he could do
so, he saw the outline of a gun in Rice's pocket. At that point, probable cause fully matured and Smith was authorized to conduct a limited
search for weapons. See United States v. Hill, 545 F.2d 1191, 1193 (9th Cir. 1976) (a bulge in a suspect's clothing that was consistent with
the presence of a weapon was a relevant factor in determining the validity of a frisk).
113 Nev. 425, 430 (1997) Rice v. State
Search of Rice's backpack
2
[Headnote 5]
The authority to search incident to arrest derives from the need to disarm and prevent any evidence from being concealed or
destroyed. State v. Greenwald, 109 Nev. 808, 810, 858 P.2d 36, 37 (1993).
In Greenwald, this court held that the search of Greenwald's motorcycle after Greenwald was safely locked away in a police car was not
a valid search incident to arrest because there was no conceivable need to disarm him or prevent him from concealing or destroying
evidence. Id. The same is true in this case. Smith testified that Rice was placed in the patrol car before Cripps searched the backpack. Thus,
under Greenwald, the backpack was not validly searched incident to arrest.
Next, in Greenwald, the State unsuccessfully argued that the motorcycle search was justified as a valid inventory search.
[A]n inventory search must not be a ruse for general rummaging in order to discover incriminating evidence. The policy or
practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be
allowed so much latitude that inventory searches are turned into a purposeful and general means of discovering evidence of
crime.
United States v. Wells, 495 U.S. 1, 4 (1987) (quoting Colorado v. Bertine, 479 U.S. 367, 376 (1987) (Blackmun, J., concurring)).
This court applied Wells in Greenwald and held that
the officer did not even pretend to prepare a complete inventory of all of the items that were the product of his extensive search of
the motorcycle. . . . It is rather obvious that the officer was not doing what he was doing just for the sake of taking inventory of
Greenwald's valuables. If he had not been searching for contraband, the officer would in all probability simply have inventoried
one zippered toiletry bag and let it go at that. . . . [Thus], the officer was making an unwarranted search under the guise and ruse
of an inventory search. . . . Without an inventory, we can have no inventory search.
Greenwald, 109 Nev. at 810-11, 858 P.2d at 38.
[Headnote 6]
The situation here is even more egregious than that resolved in Greenwald because Smith admitted he and Cripps were looking for
contraband when they searched Rice's backpack.
__________

2
This issue was not addressed by the parties. Both parties agree that the pivotal issue was the reasonableness of Rice's detention.
113 Nev. 425, 431 (1997) Rice v. State
for contraband when they searched Rice's backpack. There is also no indication in this record
that a formal inventory was prepared at the time of arrest. Therefore, we hold that Rice's
backpack was not searched subject to a valid inventory search and that its contents should
have been suppressed at trial.
Accordingly, we affirm Rice's conviction for carrying a concealed weapon, and reverse his
conviction for trafficking in a controlled substance and for possession of a controlled
substance. Therefore, we remand this case to the district court to modify Rice's sentence in
accordance with the opinion expressed herein.
Maupin, J., concurring in part and dissenting in part:
The parties to this appeal did not choose to litigate the issue of whether this search of the
backpack was invalid as an improper inventory search or was an invalid search incident to
arrest. The contentions of the parties were restricted to the reasonableness of the detention
and the searches incident thereto. I would therefore not reach this issue on direct appeal.
____________
113 Nev. 431, 431 (1997) Jefferson v. Goodwin
TERRY LEE JEFFERSON, Appellant, v. CONSTANCE
J. GOODWIN, Respondent.
No. 27938
March 27, 1997 934 P.2d 264
Appeal from an order of the district court reducing child support arrearages to judgment.
Eighth Judicial District Court, Clark County; Terrance P. Marren, Judge.
State brought action on mother's behalf, under Revised Uniform Reciprocal Enforcement
of Support Act (RURESA) to collect child support arrearages that accrued during child's
minority. The district court entered judgment against father, and he appealed. The supreme
court held that: (1) state had authority to bring action on mother's behalf, and (2) mother had
authority to seek arrearages that accrued while she was supporting child.
Affirmed.
Hamilton D. Moore, Las Vegas, for Appellant.
Stewart L. Bell, District Attorney, Edward W. Ewert, Deputy District Attorney, and John
B. Squires, Deputy District Attorney, Clark County, for Respondent.
State was vested with authority, under Revised Uniform Reciprocal Enforcement of Support Act {RURESA), to pursue
child support arrearages on behalf of adult child who never was dependent upon the state.
Enforcement of Support Act (RURESA), to pursue child support arrearages on behalf of adult child who never was dependent upon the
state. NRS 130.010 et seq.
Parent and Child.
Mother who supported child during child's minority had standing, under Revised Uniform Reciprocal Enforcement of Support Act
(RURESA), to seek child support arrearages for adult child. NRS 130.010 et seq.
OPINION
Per Curiam:
This is an appeal from an order of the district court reducing child support arrearages to
judgment. The defendant-appellant claims that the district court should have dismissed the
action because the district attorney had no authority to seek arrearages on behalf of an adult
child who had not been the recipient of welfare benefits. We disagree and affirm the district
court's ruling.
FACTS
Constance J. Goodwin (Goodwin) and Terry Lee Jefferson (Jefferson) were married
for nearly three years. This union produced a daughter, Misty Jo Jefferson (Misty). In their
decree of divorce, Jefferson was ordered to pay $150.00 per month in child support. Goodwin
claims that Jefferson did not make any of the payments.
When Misty was twenty-five years old, Goodwin, through the district attorney's office,
filed a petition pursuant to the Revised Uniform Reciprocal Enforcement of Support Act
(RURESA) in Clark County district court to collect $27,750 in unpaid child support from
Jefferson. That figure represents the amount Jefferson was obligated to pay from the time of
the divorce in 1970 until Misty turned eighteen in 1985.
The district court judge referred the matter to a hearing master. The master concluded that
because the statute of limitations had run on most of Goodwin's claim, she was only entitled
to $7,950.00. Notwithstanding Jefferson's objections, the master recommended that a
judgment be entered against Jefferson for that amount. The district court approved the
master's recommendation.
Soon thereafter, Jefferson filed a motion for relief on the ground that the judgment was
void. The master recommended a denial of Jefferson's motion, and the district court ratified
that recommendation. Jefferson appeals both rulings.
DISCUSSION
[Headnote 1]
Jefferson argues, citing Hedlund v. Hedlund, 111 Nev. 325, 890 P.2d 790 (1995), that Nevada district attorneys are not vested with the
authority to pursue child support arrearages on behalf of an adult child who has never been dependent upon the state. In Hedlund, the sole
issue on appeal was whether a district attorney had the authority to represent a custodial parent in an action to modify an existing child
support order when the obligor parent was current on his or her child support obligations. This court held that RURESA
1
requires district attorneys, upon appropriate request, to take legal action against a nonsupporting parent to establish parentage, to
establish the obligation of support, and to enforce the payment of support. Contrary to Sandra's contention, nothing in the statute
grants a district attorney the authority to represent custodial parents in actions to modify the amount of child support after the
obligation of support has been established.
. . . .
. . . Under her interpretation [of NRS 125B.150], any parent collecting child support would have the district attorney's office
as a personal counsel whenever she or he wanted to litigate an issue involving child support. NRS 125B.130(3) expressly states
that the district attorney renders a public service and represents the state, not the parent or child. It is clear that the public service
to be rendered . . . is to ensure that nonsupported children do not become an economic burden on the state.
__________

1
NRS Chapter 130 embodies Nevada's version of RURESA. NRS 130.110 provides that all duties of support, including the duty to
pay arrearages, are enforceable by a proceeding under this chapter. NRS 130.220 requires that RURESA orders comply with Chapter
125B of NRS.
NRS 125B.150 was amended in 1995. The then-existing version provided, in pertinent part:
Assistance by district attorney to establish parentage and obligation of support and to enforce payment of support; . . . .
1. The district attorney . . . shall take such action as is necessary to establish parentage of the child and locate and take legal
action against a deserting or nonsupporting parent of the child when requested to do so by the custodial parent or a public agency
which provides assistance to the parent of child. . . .
. . . .
3. The district attorney and his deputies do not represent the parent or the child in the performance of their duties pursuant to
this chapter and chapter . . . 130 . . . of NRS, but are rendering a public service as representatives of the state.
Id. at 328, 890 P.2d at 792 (court's emphasis).
2
In that case, the court concluded that the
children were not in need of state aid because their father was current on child support. Id.
Therefore, the court opined that the district attorney's involvement constituted a burden on
state resources rather than, as the legislature intended, a method of relieving the state of such
a burden. Id. This court affirmed the district court's decision to dismiss the case and stated
that Sandra could initiate an action to modify pro se or retain private counsel. Id.
Jefferson claims that this case is similar to Hedlund because Misty is not now and has
never been in need of state assistance. Thus, he claims that just as in Hedlund, the district
attorney's representation in this case would constitute a burden on state resources because the
district attorney does not seek to recover anything for the state.
We disagree with Jefferson's interpretation of Hedlund. Jefferson correctly states that NRS
125B.150(3) states that the district attorney renders a public service and represents the State,
not the parent or child. However, in accord with Hedlund, it is clear that the public service to
be rendered is to ensure that the custodial parent does not become or remain an economic
burden on the State.
Moreover, statutory authority for state representation in the instant action can be found in
NRS 125B.150(1) and in NRS Chapter 130. NRS 125B.150(1) states that a district attorney
shall take necessary legal action against a nonsupporting parent when requested to do so by
the custodial parent. NRS 125B.150(1) (1993) (amended 1995).
NRS 130.030 provides that the purposes of this chapter are to improve and extend by
reciprocal legislation the enforcement of duties of support. NRS 130.110 provides that all
duties of support, including the duty to pay arrearages, are enforceable by a proceeding under
this chapter. (Emphasis added.)
Furthermore, NRS 130.042 provides that it is immaterial if the person to whom a duty of
support is owed is a recipient of public assistance, and NRS 130.160(1) allows the district
attorney to collect fees for services rendered in appropriate cases.
Thus, we conclude that Goodwin has the statutory remedy of pursuing arrears in child
support under RURESA and that the district attorney properly pursued unpaid child support
arrearages on her behalf.
__________

2
In response to Hedlund, the 1995 Legislature amended NRS 125B.150(1) to allow the district attorney to take legal action to adjust
an obligation of support.
[Headnote 2]
Jefferson also argues that Goodwin does not have standing to seek child support arrearages for an adult child. Jefferson cites
Cronebaugh v. Van Dyke, 415 So. 2d 738 (Fla. Ct. App. 1982), and Department of Health v. Holland, 602 So. 2d 652 (Fla. Ct. App. 1992),
in support of his position. In both cases, Florida's Fifth District Court of Appeals held that child support is a right that belongs to the
child, Cronebaugh at 741; Holland at 655, and that one parent does not have the legal right or standing to enforce the child's cause of
action or to collect support money from the other parent after the child is of age. Holland at 655; Cronebaugh at 740. We believe that
reliance on these cases is misplaced because they involved post-majority enforcement of post-majority arrearages. Holland at 654 (court's
emphasis); Cronebaugh at 740.
We choose to adopt the generally accepted rule that where a child has been supported during his or her minority by a single parent, any
right of action for reimbursement from the noncontributing parent after the child attains majority belongs to the parent who provided that
support and not to the child. Stapel v. Stapel, 601 P.2d 1176, 1178 (Kan. Ct. App. 1980) (citations omitted).
We therefore conclude that the district court properly determined Goodwin has standing to sue for arrearages which accrued during
Misty's minority.
Jefferson asks this court for attorney's fees and costs. This request is denied.
Based on the foregoing, we affirm the district court's judgment.
____________
113 Nev. 435, 435 (1997) Sandy v. District Court
VIRGINIA LEE SANDY, Petitioner, v. THE FIFTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Nye, and THE HONORABLE
JOHN P. DAVIS, District Judge, Respondents, and THE STATE OF NEVADA, Real
Party in Interest.
No. 29052
March 27, 1997 935 P.2d 1148
Original petition for writ of mandamus challenging respondent judge's refusal to accept
petitioner's plea bargain. Fifth Judicial District Court, Nye County; John P. Davis, Judge.
Defendant who was charged with first-degree murder petitioned for writ of mandamus
after trial court refused to accept plea bargain.
plea bargain. The supreme court, Shearing, C. J., held that trial court abused its discretion in
rejecting defendant's plea agreement with prosecution in which defendant agreed to plead
guilty to voluntary manslaughter.
Petition granted.
David C. Polley, Las Vegas, for Petitioner.
Frankie Sue Del Papa, Attorney General, and Julie Slabaugh, Deputy Attorney General,
Carson City; Robert S. Beckett, District Attorney, Nye County, for Respondents.
1. Mandamus.
Mandamus is extraordinary remedy, and decision as to whether such writ will be entertained lies within discretion of supreme
court.
2. Mandamus.
Writ of mandamus is available to control arbitrary or capricious exercise of discretion.
3. Mandamus.
Criminal defendant whose plea bargain was rejected by trial court had no adequate remedy in ordinary course of law and, thus,
supreme court considered defendant's petition for writ of mandamus, where defendant would likely proceed to trial if supreme court
did not grant defendant's petition. NRS 34.170.
4. Criminal Law.
Trial court is obligated to consider seriously proffered plea. NRS 174.035.
5. Criminal Law.
Trial court may not reject guilty plea arising out of plea bargain merely because court disagrees with prosecutor's view of public
interest as it pertains to case.
6. Criminal Law.
If trial court rejects plea bargain, court must provide reasoned exercise of discretion and state reasons for disapproval.
7. Criminal Law.
Trial courts are given power to reject plea bargains which invade judicial authority of imposition of penalty.
8. Criminal Law.
Trial courts need not accept sentence bargains.
9. Criminal Law.
Trial court may reject plea arrangements only when there has been abuse of prosecutorial discretion.
10. Criminal Law.
Trial court may not reject plea bargain solely on grounds that plea prevents court from sentencing as harshly as court would like.
11. Criminal Law.
Rejection of plea bargain based upon infringement of judicial sentencing authority is inappropriate absent finding that prosecutor
had no valid prosecutorial interest or other compelling independent consideration for refusing to proceed to trial.
12. Criminal Law.
Trial court must make findings of fact explaining reasoning for rejection of plea agreement with particularity or court must accept
plea bargain.
13. Criminal Law.
Trial court abused its discretion in rejecting defendant's plea agreement with prosecution in which defendant who was charged
with first-degree murder agreed to plead guilty to voluntary manslaughter, even though court noted disparity in sentencing between
manslaughter and murder charges, where court made no inquiry into prosecutor's grounds for offering plea and made no determination
as to whether plea was offered for valid prosecutorial purpose or other compelling reason.
OPINION
On May 10, 1996, the Nye County District Attorney (D.A.) charged petitioner Virginia
Lee Sandy (Sandy), in the Justice Court of Pahrump Township, with first-degree murder
with use of a deadly weapon. Following plea negotiations, Sandy agreed to plead guilty to
voluntary manslaughter and to waive her right to a preliminary hearing. During an appearance
before a justice of the peace on July 2, 1996, Chief Deputy D.A. Thomas Cochrane
(Cochrane) stated that the D.A.'s office had agreed to the plea bargain. Cochrane also stated
that the D.A. had agreed to file an amended information charging Sandy with voluntary
manslaughter and to recommend a sentence of five years plus an enhancement of five years
for use of the deadly weapon.
On July 5, 1996, the D.A. filed an information in the Fifth Judicial District Court charging
Sandy with first-degree murder with use of a deadly weapon. On July 9, 1996, the D.A. filed
an amended information charging Sandy with voluntary manslaughter with use of a deadly
weapon.
On July 9, 1996, Sandy appeared for arraignment before respondent Judge John P. Davis
(Judge Davis). Sandy's counsel, David C. Polley (Polley), informed Judge Davis of the
plea bargain and placed into evidence a guilty plea agreement that had been signed by
Sandy and Polley, but which had not yet been signed by the appropriate member of the D.A.'s
office. At that time, Judge Davis expressed concern that Sandy had apparently been bound
over to the district court on a charge of first-degree murder, yet the plea bargain was for
voluntary manslaughter. The judge continued the proceedings to allow the parties to file
points and authorities on a trial judge's capacity to reject plea bargains.
At the July 23, 1996 hearing on the matter Judge Davis rejected the plea bargain. He
explained that the bargain was made with the "obvious intention of circumscribing a
Judge's discretion in pronouncing a sentence."
with the obvious intention of circumscribing a Judge's discretion in pronouncing a
sentence. He noted that if he sentenced as harshly as possible under the manslaughter charge,
Sandy could be eligible for parole in eight years. Judge Davis compared this potential
sentence with that for second-degree murder because [a]ssuming . . . that the first degree
murder charged in this case is overkill, surely this is a case where a reasonable jury might
return a conviction for second degree murder. Judge Davis determined that under the
second-degree murder charge, Sandy would not be eligible for parole for at least twenty years.
In conclusion, Judge Davis stated
The Court finds this [potential plea bargain] . . . a serious infringement upon the
judiciary's responsibility to sentence.
To do as the lawyers suggest, declares an open season on people aggravated in a
circumstance that would appear to not justify death. This plea bargain clearly sends an
inappropriate message and infringes on this Court's responsibility.
On August 30, 1996, Sandy filed the instant petition. On September 13, 1996, this court
ordered the Attorney General's office to answer on behalf of the respondent district court.
DISCUSSION
[Headnotes 1, 2]
Mandamus is an extraordinary remedy, and the decision as to whether such a writ will be entertained lies within the discretion of this
court. Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982). A writ of mandamus is available to compel the performance
of an act which the law requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an arbitrary or capricious
exercise of discretion. Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). A writ shall be issued in
all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170.
[Headnote 3]
Here, Sandy will likely proceed to trial on a charge of murder in the second degree if this court does not grant her petition for a writ of
mandamus. Thus, she could only appeal the instant plea bargain issue after resolution of the murder charge. We conclude that Sandy has no
adequate remedy in the ordinary course of law, and we elect to entertain her petition.
Sandy contends that a trial judge has only limited authority to reject a valid plea bargain; therefore, a plea agreement must be accepted
if voluntarily and knowingly entered. Thus, she contends that Judge Davis abused his discretion by rejecting her plea
bargain.
tends that Judge Davis abused his discretion by rejecting her plea bargain. Sandy also
contends that allowing a trial judge broad authority to reject plea bargains leads to
impermissible judicial participation in plea negotiations, which violates the principle of
separation of powers. She also seemingly contends that by permitting Judge Davis to reject
the manslaughter plea in the instant case, Judge Davis essentially and improperly dictated that
a second-degree murder charge be filed instead.
The State contends that the district court properly exercised its discretion to reject the plea
bargain on the ground that it infringed upon the court's sentencing authority.
[Headnotes 4-6]
A district judge may, in his or her discretion, refuse to accept guilty pleas, including those arising out of plea bargains. NRS 174.035.
However, the judge is obligated to consider seriously the proffered plea. Sturrock v. State, 95 Nev. 938, 941, 604 P.2d 341, 343 (1979).
The judge may not reject a guilty plea arising out of a plea bargain merely because the court disagrees with the prosecutor's view of the
public interest as it pertains to the subject case. Sparks v. State, 104 Nev. 316, 323, 759 P.2d 180, 184-85 (1988); accord United States
v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973). If the judge rejects a plea bargain, he or she must provide a reasoned exercise of
discretion and must state reasons for the disapproval. Sparks, 104 Nev. at 323, 759 P.2d at 184.
As explained in Sparks:
The authority has been granted to the judge to assure protection of the public interest, and this in turn involves one or more
of the following components: (a) fairness to the defense, such as protection against harassment; (b) fairness to the prosecution
interest, as in avoiding a disposition that does not serve due and legitimate prosecutorial interests; (c) protection of the sentencing
authority reserved to the judge. The judge's statement or opinion must identify the particular interest that leads him to require an
unwilling defendant and prosecution to go to trial.
The judge may withhold approval if he finds that the prosecutor has failed to give consideration to factors that must be given
consideration in the public interest, factors such as the deterrent aspects of the criminal law. However, trial judges are not free to
withhold approval of guilty pleas on this basis merely because their conception of the public interest differs from that of the
prosecuting attorney. The question is not what the judge would do if he were the prosecuting attorney, but whether he can say that
the action of the prosecuting attorney is such a departure from sound prosecutorial principle as to mark it
an abuse of prosecutorial discretion."
of the prosecuting attorney is such a departure from sound prosecutorial principle as to
mark it an abuse of prosecutorial discretion.
Id., 759 P.2d at 184-85 (quoting Ammidown, 497 F.2d at 622). Thus, Sparks holds that a trial
judge considering a plea bargain must determine, in light of the three components listed
above, whether the prosecution's action of offering the plea amounts to an abuse of
prosecutorial discretion. The judge must then elect to accept the plea or reject it. Rejections
may not be made without explanation, but must be accompanied by findings of fact
explaining with particularity the reasons for the rejection.
[Headnotes 7, 8]
Judicial power to reject plea bargains serves to modify and condition the absolute power of the prosecutor, consistent with the doctrine
of separation of powers, by establishing a check on the abuse of prosecutorial (executive) prerogatives. Cf. United States v. Cowan, 524
F.2d 504, 513 (5th Cir. 1975), cert. denied 425 U.S. 971 (1976). Because plea agreements may not invade the traditionally judicial
function of what penalty to impose, judges are given power to reject plea bargains which invade this authority.
1
United States v. Escobar
Noble, 653 F.2d 34, 37 (1st Cir. 1981).
[Headnote 9]
Hence, in Sparks, we recognized the division of executive and judicial authority as well as the judge's power to reject pleas to protect
judicial sentencing authority. Sparks, 104 Nev. at 323, 759 P.2d at 184-85; see NRS 174.035. However, this judicial discretion to reject
is not meant to invade the legitimate function of the prosecutor. See United States v. Robertson, 45 F.3d 1423, 1437-38 (10th Cir.), cert.
denied, 116 S.Ct. 133 (1995); Ammidown, 497 F.2d at 622. For this reason, judges may not exercise this discretion to fulfill their own
opinion of the public interest, but may reject plea arrangements only when there has been an abuse of prosecutorial discretion.
Other jurisdictions reviewing whether a plea arrangement infringes the judicial prerogative to sentence scrutinize the reasons
underlying the prosecutor's decision to offer the plea bargain in the first place. In Escobar Noble, the United States Attorney had proposed
that the defendant plead guilty to misdemeanor possession of marijuana, which carried a maximum prison sentence of one year, in
exchange for dismissal of the felony indictment.
__________

1
Thus, for example, trial judges need not accept sentence bargains, i.e., plea bargains which purport to guarantee defendants a certain
sentence, because they offend the judicial prerogative to sentence. See United States v. Robertson, 45 F.3d 1423, 1439 (10th Cir.), cert.
denied, 116 S.Ct. 133 (1995); United States v. Miller, 722 F.2d 562, 564 (9th Cir. 1983).
tence of one year, in exchange for dismissal of the felony indictment. 653 F.2d at 37. The
district court rejected the plea to leave open the possibility of felony sentencing. Id. at 36. In
the district judge's view, the plea proposal was not sufficiently linked to a prosecutorial
purpose, such as insufficiency of trial evidence, doubt as to the admissibility of certain
evidence, or the need to bring another felon to justice, to justify acceptance of the plea
bargain. Id.
The First Circuit affirmed, noting additionally that the case did not involve the
prosecutorial interests of avoiding a prosecution of uncertain success or conserving
prosecutorial resources, or any other separate factor necessitating acceptance of the plea. The
proposed plea bargain was intended only to control sentencing. Id. at 37. Accordingly, the
First Circuit concluded that [t]his is not a case where acceptance of the plea agreement is
both reasonable and necessary to secure a legitimate and important prosecutorial interest nor
does it involve some other compelling, independent consideration. Id. at 36; accord
Ammidown, 497 F.2d at 622-23 (a judge is free to condemn the prosecutor's agreement as a
trespass on judicial authority only in a blatant and extreme case.).
[Headnote 10]
It follows from Escobar Noble and Ammidown that a trial judge may not reject a plea bargain solely on the grounds that the plea
prevents the judge from sentencing as harshly as he or she would like. Plea bargains generally result in a reduction of charges against the
defendant, and consequently a diminishment of the judge's authority to sentence. Allowing trial judges to reject a plea bargain for
infringing upon judicial sentencing authority because the original indictment charged the defendant with a more serious offense affords
judges too much discretion to inhibit the role of the prosecutor. Such broad judicial authority is inconsistent with Sparks and with the
concept of separation of powers embodied in the Nevada Constitution. See generally Nev. Const. art. 3, 1; Whitehead v. Comm'n on Jud.
Discipline, 110 Nev. 874, 909, 878 P.2d 913, 935 (1994) (Shearing, J., dissenting). Moreover, courts do not know the relative strengths of
any individual cases or charges, which charges are best initiated at which time, and the most efficient allocation of prosecutorial resources.
See Robertson, 45 F.3d at 1438.
[Headnote 11]
Accordingly, we hold that rejection of a plea bargain based upon infringement of judicial sentencing authority is inappropriate absent a
finding that the prosecutor had no valid prosecutorial interest or other compelling independent consideration for refusing to proceed
to trial.
refusing to proceed to trial.
2
In so holding, we by no means imply that the district court
should be satisfied to accept mere conclusory statements by a prosecutor that a particular plea
bargain serves the public interest. See Ammidown, 497 F.2d at 620.
[Headnote 12]
We reiterate that judges have the power to reject plea bargains so long as their decision-making process complies with Sparks. Judges
must provide a reasoned exercise of discretion and state reasons for disapproval of the plea bargain. See Sparks, 104 Nev. at 323, 759 P.2d
at 184. These reasons should neither be cursory indications of the judge's view of public opinion nor merely based upon disagreement with
prosecutorial charging decisions. Judges must make findings of fact explaining their reasons for rejection with particularity, or they must
accept the plea bargain. Findings should be based upon judicial inquiry into the prosecution's reasons for offering the plea. Only when these
reasons amount to an abuse of prosecutorial discretion should the plea be rejected.
[Headnote 13]
In the instant matter, the record shows that Sandy was bound over to the district court on a first-degree murder charge. Prior to
appearing before Judge Davis the parties had agreed to, but had not yet wholly consummated, a plea bargain reducing the charge to
voluntary manslaughter. Judge Davis' order reflected that the disparity in sentencing between a voluntary manslaughter charge and a
murder charge prompted his rejection of the plea bargain. However, this disparity alone is insufficient to reject a plea bargain without
evidence that the prosecution had no valid reason for not proceeding to trial. Judge Davis made no inquiry into the prosecutor's grounds for
offering the plea and made no determination as to whether the plea was offered for a valid prosecutorial purpose or other compelling reason.
Consequently, the court could not have properly determined whether a rejection of the plea bargain was warranted. The district court
improperly applied subdivision (c) of Sparks to reject the plea bargain and thus manifestly abused its discretion.
Accordingly, we grant Sandy's petition and direct the clerk of this court to issue a writ of mandamus compelling the district court to
reconsider the plea bargain in view of the principles announced in this decision.
__________

2
We recognize that certain federal circuits give trial judges broader powers, as compared with those enunciated in Ammidown, to
reject plea bargains. See United States v. Moore, 637 F.2d 1194 (8th Cir. 1981) (applying a broad discretion standard); United States v.
Bean, 564 F.2d 700 (5th Cir. 1977) (reversing trial judges' plea bargain rejections only where arbitrary and capricious and normally only
where the sentencing decision jeopardizes a constitutional right). However, we do not choose to follow those decisions.
court to reconsider the plea bargain in view of the principles announced in this decision.
3
If
the plea bargain is properly rejected and Sandy does not agree to new plea negotiations,
Sandy will be entitled to a preliminary hearing.
In light of this opinion, we decline to address Sandy's remaining contentions.
Rose, Young, and Maupin, JJ., concur.
On July 5, 1996, the district attorney of Nye County charged by information that Ms.
Sandy deliberately murdered Elaine Werstler by cutting her throat and stabbing her in the
chest with an eight-inch serrated-blade. On July 9, 1996, the district attorney filed an
amended information which eliminated the murder charge and, instead, charged voluntary
manslaughter, the new charge being that Ms. Sandy stabbed Ms. Werstler without
premeditation and upon a sudden heat of passion.
1
The district judge did not accede to the State's dismissing the murder charge and refused to
accept a guilty plea to manslaughter as part of a plea bargain. The judge pointed out that
this case involved a violent death result[ing] from the use of a deadly weapon and
expressed his belief that under the circumstances of this case as he knew them a jury might
return a murder verdict. Although the district judge expressed his concern about his
sentencing authority, it is apparent to me from reading this limited record that the judge's
principal concerns related to his belief that a prosecution for manslaughter under the
circumstances of this case "does not serve due and legitimate prosecutorial interest."
__________

3
Apparently, no member of the D.A.'s office ever signed a formal plea agreement memorializing the plea bargain negotiated with
Sandy. Any attempt by that office to rescind its plea offer should be analyzed under this court's decision in State v. Crockett, 110 Nev. 838,
843, 877 P.2d 1077, 1079-80 (1994).

1
I would note that the amended information probably does not state a public offense. The amended information cites a violation of
NRS 200.040/NRS 193.165. The information does not cite NRS 200.050 ( Voluntary manslaughter' defined.) which elaborates on the
definition of the crime of manslaughter. Under NRS 200.040 and NRS 200.050, the elements of voluntary manslaughter are (1) the
unlawful killing of a human being, without malice express or implied, and without any mixture of deliberation, (2) the killing must be
upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, and (3) there must be 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.
In my view, the district judge did not err in refusing to accept a plea to a voluntary manslaughter information that made no mention of
sufficient provocation in the form of a highly provoking injury or an attempt to commit a serious personal injury upon the defendant.
record that the judge's principal concerns related to his belief that a prosecution for
manslaughter under the circumstances of this case does not serve due and legitimate
prosecutorial interest. Sparks v. State, 104 Nev. 316, 323, 759 P.2d 180, 184-85 (1988). It
appears to me that the judge did not think that this was a manslaughter case and that it was, in
his view, a case that called for no less than a murder charge. The judge was clearly of the
opinion that dismissing murder charges in this case would not serve legitimate prosecutorial
interests or the interests of the people of this state. He was entitled to have and to act upon
this opinion.
Unfortunately, the record in this writ proceeding does not furnish any of the facts
surrounding the crime. We know only that Ms. Sandy is accused of killing a woman by
slitting her throat and stabbing her in the chest with a serrated knife. There is nothing in the
record that would divulge what heat of passion or what kind of sufficient provocation
that the district attorney might have had in mind when he decided to reduce the charges from
murder down to voluntary manslaughter; but I assume that the district judge was in a position
to make a judgment on the question of whether the district attorney was grossly
undercharging Ms. Sandycertainly in a better position than this court is. Absent some
showing by Ms. Sandy that the judge abused his discretion in ruling as he did, I would defer
to the judgment of the district judge.
If this case were to turn out to be a proper case of voluntary manslaughter and a case
involving heat of passion and sufficient provocation, as defined in the statute, there is no
reason to suspect that a jury would not recognize the diminished liability and refuse to
convict for murder. Soundness of the district judge's decision to refuse to dismiss murder
charges and permit the district attorney to proceed on manslaughter alone should be presumed
by this court to be correct and to have been supported by the facts of the case that were
known to the judge at the time. We have no way of knowing otherwise. For all we know, the
judge might quite properly have seen this case as a case of cold-blooded murder that was of
such a nature that dismissing murder charges would be unthinkable under the circumstances.
If, for example, the district attorney were to have accepted a bargain in which murder
charges were to be dismissed and this stabbing, throat-slitting defendant was to be permitted
to plead guilty to, say, simple assault, I think no one would argue with the judge's right to
refuse to accept such a bargain. Such a bargain would be clearly seen as not serving the
prosecutorial interests of the executive or of the people. It seems to me that we are rushing to
judgment in this case and interfering with a legitimate function of the trial court.
of the trial court. Whether or not there has been an abuse of prosecutorial discretion is not a
matter that we are presently competent to judge, based on the record before us. Until it is
made to appear, on the record, that the district attorney's dismissing murder charges in this
case would not be an abuse of prosecutorial discretion, I would defer to the judgment of the
trial court in the assumption that there has been in this case such a sufficient deviation from
sound prosecutorial principles as to justify the judge's decision. I would deny Ms. Sandy's
petition and therefore dissent to the order granting the writ.
____________
113 Nev. 445, 445 (1997) Alamo Rent-A-Car, Inc. v. Mendenhall
ALAMO RENT-A-CAR, INC., Appellant, v. TERRY and
VYONNE MENDENHALL, Respondents.
No. 27451
April 24, 1997 937 P.2d 69
Appeal from an order returning an automobile to the respondents. Eighth Judicial District
Court, Clark County; Myron E. Leavitt, Judge.
Purchasers of vehicle that had been stolen from car rental company sued Department of
Motor Vehicles (DMV) for replevin of car. DMV was subsequently dismissed and car rental
company was substituted as defendant. The district court concluded purchasers were bona
fide purchasers entitled to ownership and possession of vehicle. Car rental company appealed,
claiming thief did not have voidable title. The supreme court held that: (1) as a matter of first
impression, thief did not have voidable title to transfer to purchasers, even though he had
fraudulently obtained a facially valid California quick title; but (2) because purchasers were
found to be bona fide purchasers, car rental company had to reimburse purchasers for any
improvements made to vehicle while it was in their possession; and (3) car rental company
was not equitably estopped from contesting purchasers' ownership of vehicle, even if
company delayed in reporting vehicle as stolen, as there was no detrimental reliance on that
conduct.
Fitzgibbons & Anderson, Las Vegas, for Appellant.
Rawlings, Olson, Cannon, Gormley & Desruisseaux, Las Vegas, for Respondents.
1. Sales.
Thief who rented vehicle, obtained California quick title using forged signatures of fictitious parties, and who subsequently sold
vehicle, did not have voidable title to transfer to purchasers. Car rental company had possession of vehicle's title, and thus, even if
purchasers were bona fide, they could not take ownership superior to car rental company. Thief did not get voidable title by
fraudulently obtaining a facially valid California title. NRS 104.2403.
2. Sales.
Individual who steals motor vehicle cannot convey voidable title, even if he fraudulently obtains facially valid title, and subsequent
bona fide purchaser cannot claim voidable title because purchaser took vehicle under spurious chain of title dependent on laundered
title documents. NRS 104.2403.
3. Accession.
Purchasers of stolen vehicle from thief that had facially valid but fraudulently obtained quick title, who did not take ownership
superior to car rental company but who were found to be bona fide purchasers, were entitled to reimbursement from car rental company
for any improvements made to vehicle while it was in their possession. NRS 104.2403.
4. Estoppel.
Car rental company, whose rented vehicle was stolen by thief who subsequently sold vehicle to bona fide purchasers, was not
equitably estopped from contesting purchasers' ownership of vehicle, even though company did not report vehicle as stolen until one
month after suspicions arose and vehicle was purchased within that month. On date vehicle was purchased company did not know it
had been stolen, company did not act in manner as to induce purchasers to buy vehicle, and purchasers did not detrimentally rely on
delay because information from stolen vehicle report would not have been revealed by inquiries they made before purchasing vehicle
and reporting vehicle as stolen earlier would not have stopped purchase.
5. Estoppel.
To invoke doctrine of estoppel, party must prove that party to be estopped must have been aware of facts. Party to be estopped
must have intended its act or omission be acted upon, or act in such manner that party asserting estoppel had right to believe that it so
intended; party asserting estoppel must have been unaware of true facts; and party asserting estoppel must have relied upon other
party's conduct to its detriment.
OPINION
Per Curiam:
John C. Clark, under the alias Thomas Pecora, rented a 1994 Lexus from Alamo
Rent-A-Car on December 21, 1994. Clark failed to return the car to Alamo and obtained a
California quick title using forged signatures of fictitious parties. Clark then advertised the
car in the Las Vegas Review Journal newspaper and subsequently sold the car to Terry and
Vyonne Mendenhall (Terry and Vyonne or the Mendenhalls) for $34,000.00 in cash on
January 9, 1995.
on January 9, 1995. The Mendenhalls then made improvements to the car, had it insured,
smog and safety tested, registered, licensed, and titled in the state of Utah. Subsequently, on
February 24, 1995, Alamo reported the car stolen.
On March 21, 1995, the Nevada Department of Motor Vehicles (DMV) seized the car
from the Mendenhalls' possession. The Mendenhalls then sued the DMV (and the towing
company that took the car from their home) for replevin of the car. The DMV and the towing
company were subsequently dismissed from the lawsuit, and Alamo was substituted as the
defendant. Following a bench trial, the district court concluded that the Mendenhalls had
purchased the car for value and without notice that it was stolen, and were bona fide
purchasers entitled to ownership and possession of the 1994 Lexus. Alamo appeals, claiming
that Terry and Vyonne could not have been bona fide purchasers because the thief, Clark, did
not have voidable title, and thus had no valid title to pass to the Mendenhalls at the time of
sale.
FACTS
On December 21, 1994, Clark, using the name Pecora, rented a 1994 Lexus sedan from
Alamo in San Diego, California; the car was originally due back to Alamo on December 28,
1994. At the time of rental, Clark presented a credit card and driver's license in the name of
Pecora; Alamo did not verify the validity of Clark's driver's license. On January 1, 1995,
Clark asked to extend the rental agreement until January 4, 1995. Alamo agreed; however,
Clark did not return the car on its new due date, and Alamo unsuccessfully attempted to
contact Clark.
On January 14, 1995, an individual claiming to be Pecora's employee called Alamo asking
for another extension and stating that Pecora would return the car over the weekend. Alamo
tried extending the rental contract by using the credit card used by Clark on the initial
agreement, but it was declined by the credit card company. On January 18, 1995, Alamo sent
a non-certified Western Union Mailgram demanding return of the Lexus to the home address
that had been listed by Pecora on the original rental agreement.
On January 26, 1995, the San Diego Alamo rental station received information that
security personnel for the Reno Alamo office had been contacted by FBI Agent Brian Coy
concerning another Lexus rented under the name Pecora; an individual had attempted to sell
this second Lexus to an undercover FBI agent. On that same day, Alamo sent a second,
certified demand letter via Western Union Mailgram to Clark at the same address to which
the non-certified letter had been sent eight days earlier.
On January 27, 1995, Alamo attempted to verify the validity of the driver's license and
credit card used by Clark on the original December rental agreement; Alamo discovered that
there were no records of a Thomas Pecora and that the credit card number was invalid. On
February 6, 1995, both demand letters sent to Clark were returned to Alamo stamped not at
this address. On February 7, 1995, Alamo left a message on the answering machine at the
phone number listed by Clark on the rental agreement, demanding return of the car.
Thomas Kringel, the San Diego Alamo office's security specialist, attempted to contact the
FBI between February 9 and 15, 1995. On February 15, 1995, Kringel spoke with FBI agent
Coy, who allegedly advised Kringel to file a stolen vehicle report with the police. Agent Coy,
who first spoke with security at the Reno Alamo office on January 26, 1995, testified that he
had never told anyone at Alamo to wait any amount of time before filing a theft report with
local law enforcement. On February 24, 1995, Alamo filed a stolen vehicle report with the
San Diego Police Department based on Clark's failure to return the Lexus he had rented on
December 21, 1994.
It was subsequently learned that Clark had fraudulently re-registered the title to the Lexus
in his name. He completed an application for lost title on the Lexus he had rented December
21, 1994, dated December 10, 1994. Apparently, by forging the name of a fictitious person,
Clark had filled in the application so that it appeared that the car's lienholder, Nation's Bank
of Georgia, had approved the transfer of the car. The document showed that another fictitious
person, an alleged agent of Alamo, had also approved the transfer, indicating that the car had
been sold at an auction to a J.C. Clark Enterprises. Clark submitted this application, along
with an inaccurate odometer statement, also signed by the non-existent agent of Alamo, to the
California DMV; seventy-two hours later, the DMV issued a new California title to J.C. Clark
Enterprises. This title was referred to as a quick title. A car dealer (who was the
Mendenhalls' counsel's father-in-law) testified at trial that a quick title is a legal document
capable of transferring ownership, and is indistinguishable from a standard California title.
Meanwhile, between the time Clark had rented the Lexus and the time Alamo reported the
car as stolen, the Mendenhalls had purchased the vehicle. On January 8, 1995, Vyonne had
seen a classified advertisement in the Las Vegas Review Journal for a 1994 Lexus sedan. She
called the listed number which was answered by a voice mail system, and left a message. A
few minutes later Clark (using that name) returned Vyonne's call. Clark said that he lived at a
country club and was watching football play-offs and did not want people coming to his
home to look at the car.
football play-offs and did not want people coming to his home to look at the car. The
Mendenhalls agreed to meet Clark at their home the following morning.
On January 9, 1995, the Mendenhalls test drove the Lexus, and Clark presented his
Nevada driver's license and the car's alleged title, which listed J.C. Clark Enterprises as the
owner, to Terry; the California license plate and the car's vehicle identification number (VIN)
matched the California title. Clark agreed to sell the car to the Mendenhalls for $34,000.00,
which the lower court found to be approximately $2,000.00 below market value. Clark then
left for a brief period of time, and Terry called Toyota and Lexus Financial Services in
Sacramento to inquire as to what a valid California quick title looked like. Satisfied that the
quick title was legitimate, the Mendenhalls decided to purchase the car.
Clark returned, and he and the Mendenhalls drove to the Mendenhalls' bank to get the
$34,000.00. Clark told the Mendenhalls that he did not wish to go into the bank, so Terry got
the $34,000.00 in cash and Vyonne stayed in the car with Clark. Terry returned with the cash,
and Clark offered to re-sign the title. The Mendenhalls said that because the signature on
Clark's driver's license and the title matched, he did not need to sign the title again, the
$34,000.00 in cash was given to Clark and no receipt was necessary. The Mendenhalls then
dropped Clark off at a bar where he said a friend was going to pick him up. Clark gave the
Mendenhalls a whole set of keys, apparently more than the keys to the Lexus; when the
Mendenhalls got home after dropping off Clark, Vyonne went back to the bar to return the
extra keys, but Clark had already left.
Although the Mendenhalls lived in Las Vegas, they had a business in Utah, and two of
their other vehicles were registered in that state (their children's cars, who were attending
school in Utah). In order to get lower insurance premiums, they registered the new Lexus in
Utah on February 9, 1995, after smog and safety testing, insuring, and making $1,628.00
worth of improvements to the vehicle (window tinting, a gold trim package, etc.) through Las
Vegas Lexus dealerships. On April 17, 1995, the Mendenhalls received a Utah certificate of
title (dated April 4, 1995) on the 1994 Lexus.
However, on March 20, 1995, a representative of the Nevada DMV, Jerry Hafen (Hafen),
had run a fifty state check on the Lexus rented by Clark from Alamo in December, 1994, and
discovered that it had been registered to the Mendenhalls in the state of Utah. On March 21,
1995, Hafen went to the Mendenhalls' Las Vegas home and seized the 1994 Lexus,
impounding it at Quality Towing, Inc.
The Mendenhalls subsequently brought an action for replevin against the Nevada DMV
and Quality Towing. The parties were dismissed from the action, and Alamo was added as a
defendant. At a bench trial, the lower court concluded that Clark had voidable title to the
Lexus, and that the Mendenhalls were bona fide purchasers for value without notice of any
outstanding claims. The court further concluded that Alamo was estopped from asserting
ownership over the Mendenhalls, citing Alamo's delay in reporting the vehicle stolen between
January 26, 1995, when it knew that the vehicle had been stolen, and February 24, 1995,
when a police report was filed. Accordingly, the lower court awarded ownership and
possession to the Mendenhalls. Alamo appeals this decision, claiming that the Mendenhalls
were not bona fide purchasers, and that even if they were, because Clark was a thief, he had
no title to pass, voidable or otherwise, even to bona fide purchasers. Alamo further asserts
that the doctrine of equitable estoppel was inapplicable on the facts of this case.
DISCUSSION
The district court erred in awarding ownership and possession of the 1994 Lexus to the
Mendenhalls instead of Alamo
NRS 104.2403(1) provides in pertinent part:
A purchaser of goods acquires all title which his transferor had or had power to
transfer . . . A person with voidable title has power to transfer a good title to a good
faith purchaser for value. When goods have been delivered under a transaction of
purchase the purchaser has such power even though:
. . . .
(c) It was agreed that the transaction was to be a cash sale; or
(d) The delivery was procured through fraud punishable as larcenous under the
criminal law.
(Emphasis added.)
On appeal, the primary questions raised are whether Clark had voidable title to the Lexus
when he sold it to the Mendenhalls, and whether the Mendenhalls were, in fact, good faith or
bona fide purchasers of the car. If either of these questions is answered in the negative, the
transfer was void pursuant to NRS 104.2403. As a fallback position, the Mendenhalls argue
that even if the transfer was void under NRS 104.2403, Alamo should be estopped from
asserting ownership of the Lexus because of its delay in reporting the Lexus as stolen.
We need not reach the issue of the Mendenhalls' status as bona fide purchasers because
we conclude that Clark did not have voidable title.
fide purchasers because we conclude that Clark did not have voidable title. Therefore, even if
we assume that the district court properly found the Mendenhalls to be bona fide purchasers,
the transfer was void.
Clark did not have voidable title to transfer to the Mendenhalls
[Headnote 1]
Upon concluding that the Mendenhalls were bona fide purchasers, the lower court noted that the California quick title furnished by
Clark was accepted by the state of Utah as valid and a new registration and license plates were issued to the Mendenhalls. Both the
Mendenhalls and the lower court seem to equate Clark's fraudulently obtained but facially valid California quick title with voidable title
capable of transferring ownership. The law does not support this conclusion.
Other jurisdictions have considered the effect of a sale by a thief:
The owner of stolen goods is not divested of title therein by the theft, and even though an innocent subsequent purchaser may
be treated as having title as against everyone but the rightful owner, a sale by the thief . . . does not vest title on the purchaser as
against the owner . . . .
. . . .
The true owner may recover a stolen motor vehicle . . . from a good-faith [(bona fide)] purchaser even though the thief had
also stolen, or forged a title certificate, or obtained a title certificate in another state and delivered it to the purchaser.
The fact that the negligence of the owner contributed to or facilitated the theft does not estop the true owner from asserting
title.
67 Am. Jur. 2d Sales 447 (1985) (citations omitted) (emphasis added).
[Headnote 2]
Section 2403 of the California Uniform Commercial Code mirrors NRS 104.2403. In Suburban Motors, Inc., v. State Farm, 268 Cal.
Rptr. 16, 19 (Ct. App. 1990), the court concluded that [a]ny title derived from a thief, despite an authentic certificate of title, is . . .
considered void, not voidable' as the term is used in section 2403. (citing 1 White & Summers, Uniform Commercial Code 3-11 (3d ed.
1988) (emphasis added)). The California court concluded that where a thief stole a car and then obtained a facially valid California title
using an altered VIN, a subsequent bona fide purchaser could not claim voidable title because he took "under a spurious chain of
title dependent on 'laundered' title documents."
under a spurious chain of title dependent on laundered' title documents. Id. at 21. We agree
with this case law.
1
[Headnote 3]
Because Alamo still had possession of the Lexus' title, Clark could not have had voidable title simply by fraudulently obtaining a
facially valid California title. Accordingly, the Mendenhalls, even if found to be bona fide purchasers, could not have taken ownership
superior to Alamo's pursuant to NRS 104.2403. However, because the Mendenhalls were found to be bona fide purchasers, Alamo must be
ordered to reimburse the Mendenhalls for any improvements made to the Lexus while in their possession. Cf. Motors Ins. v. State, 437
S.E.2d 555, 557 (S.C. Ct. App. 1993) (holding that where third parties were not bona fide purchasers, they were not entitled to
reimbursement for improvements, enhancements, or additions made to true owner's vehicle while in their possession).
Alamo is not equitably estopped from contesting the Mendenhalls' ownership of the 1994 Lexus
The Mendenhalls argued and the lower court, quoting Godfrey v. Gilsdorf, 86 Nev. 714, 718, 476 P.2d 3, 5-6 (1970), concluded that
although both parties were innocent, ALAMO, due to its inaction in reporting the car stolen . . . set in motion the chain of events which
led to the sale of the car and should bear the loss incurred' and that the principle of estoppel precludes ALAMO from asserting its title
against MENDENHALL who purchased the vehicle in good faith, for value and without notice of the interest of ALAMO.
[Headnotes 4, 5]
In Gilsdorf, a seller was estopped to assert title as against a bona fide purchaser where the seller had placed his car with a used car
dealer with the intent that the dealer would sell his car to a third party. Gilsdorf, 86 Nev. at 718-19, 476 P.2d at 6. Gilsdorf is inapposite
here because Alamo did not entrust its car to Clark for the express purpose of having it sold to a third party.
__________

1
This issue of whether a thief can convey voidable title is one of first impression in Nevada. Cooper v. Pacific Automobile Insurance,
95 Nev. 798, 603 P.2d 281 (1979), is not on point. In Cooper, an original owner/seller gave title to a buyer who purchased the car with an
invalid cashier's check. Thus, the buyer had fraudulently obtained the vehicle from the owner, as did Clark; however, the owner had
actually transferred the vehicle's title to the buyer. The buyer then sold the car, with its title furnished by the original owner, to a third party.
The third party was found not to be an innocent, bona fide purchaser and, thus, could not prevail over the original owner; however, the
court implicitly found that the original buyer (who had used an invalid check) did have voidable title. Cooper, 95 Nev. at 801, 603 P.2d at
283.
for the express purpose of having it sold to a third party. Moreover, to invoke the doctrine of
estoppel, a party must prove four elements:
[T]he party to be estopped must have been aware of the facts; it must have intended that
its act or omission be acted upon, or act in such a manner that the party asserting
estoppel had a right to believe that it so intended; the party asserting estoppel must have
been unaware of the true facts; and it must have relied upon the other party's conduct to
its detriment.
McKeeman v. General American Life Ins., 111 Nev. 1042, 1050, 899 P.2d 1124, 1129
(1995).
In the instant case, all four elements of estoppel have not been established. First of all, on
January 9, 1995, the date that the Mendenhalls purchased the Lexus from Clark, Alamo did
not know that its property had been stolen. Moreover, even if it did know, the San Diego
police required that Alamo send a certified demand letter to Clark, and wait ten days before
filing a stolen vehicle report. Secondly, Alamo did not, merely by renting a car to Clark, act
in such a manner as to induce the Mendenhalls to buy the car (contra, Gilsdorf, where the
owner gave his car to a dealer to secure a buyer). Finally, assuming that the third element of
estoppel (the Mendenhalls had no knowledge of the true facts) has been satisfied, the
Mendenhalls could not show detrimental reliance on Alamo's conduct (i.e., failing to report
the vehicle stolen before February 24, 1995).
Although the Mendenhalls made some inquiry before purchasing the car (e.g., calling
Lexus Financial Services to inquire as to the appearance of a valid California title, comparing
signatures on Clark's Nevada driver's license with that on the title, verifying that license plate
and VIN were consistent with title), none of these inquiries could have yielded any
information which would have been available from a timely filed stolen vehicle report. Thus,
even if Alamo had filed a stolen vehicle report by January 9, 1995, the Mendenhalls would
not have found out about it, and would have still given $34,000.00 to Clark in exchange for
the Lexus.
On these facts, we conclude that it was error for the trial court to conclude that Alamo was
estopped from asserting its superior ownership in the Lexus.
CONCLUSION
Because the trial court could have, based upon competent evidence, ruled either way on
the issue of whether the Mendenhalls were bona fide purchasers, we defer to its ruling
thereon.
thereon. However, the district court erroneously determined that Clark had voidable title.
Therefore, ownership remained in Alamo, and Alamo was not estopped from asserting its
rightful ownership. Accordingly, we reverse the district court's judgment and remand with
instructions to award ownership and possession to Alamo and order Alamo to reimburse the
Mendenhalls for improvements made to the Lexus while it was in their possession.
____________
113 Nev. 454, 454 (1997) Jones v. State
EDWARD LEE JONES, Appellant, v. THE
No. 28176
April 24, 1997 937 P.2d 55
Appeal from a judgment of conviction, pursuant to a jury trial, on one count of first degree
murder with use of a deadly weapon and from a sentence of death. Eighth Judicial District
Court, Clark County; Gene T. Porter, Judge.
On appeal, the supreme court reversed, vacated and remanded, 110 Nev. 730, 877 P.2d
1052 (1994). Following second trial, defendant was again convicted of first-degree murder
and was sentenced to death. Defendant appealed. The supreme court, Rose, J., held that: (1)
state's misconduct during penalty phase closing argument was harmless and did not prejudice
defendant in light of overwhelming evidence of defendant's guilt; (2) state's alleged failure to
reveal potentially exculpatory statements given to police by defendant's mother and sister
were not Brady violations where jury heard evidence and defense used statements during case
in chief; (3) even if there were Brady violations, error was harmless as substance of
statements reached jury; (4) state's technical error in failing to endorse expert witness did not
prejudice defendant nor was defendant unfairly surprised by expert's testimony; (5) failure to
endorse witness constitutes reversible error only where defendant has been prejudiced by
omission; and (6) death sentence was not excessive considering heinous nature of killing and
defendant's propensity of violence.
Affirmed.
Paul E. Wommer, Las Vegas; Arnold Weinstock, Las Vegas, for Appellant.
113 Nev. 454, 455 (1997) Jones v. State
and Abbi Silver, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Failure to object in district court precludes consideration of issue on appeal. Supreme court may address plain error sua sponte.
2. Criminal Law.
It was not misconduct for prosecutor to pursue line of questioning concerning defendant's alleged suicide attempt prior to offense,
nor was it misconduct to address suicide attempt in closing argument during guilt phase, where it was not manifest error to permit
introduction of evidence regarding suicide attempt and defendant did not object during trial.
3. Criminal Law.
Decision to admit or exclude evidence, after balancing prejudicial effect against probative value, is within discretion of trial judge
and such decision will not be overturned absent manifest error.
4. Criminal Law.
During closing argument, prosecution can argue inferences from evidence and offer conclusions on contested issues.
5. Criminal Law.
Prosecutor acted improperly by disobeying court's directive and asking serologist when he expected police department to have
deoxyribonucleic acid (DNA) capabilities, as judge had explicitly limited questions pertaining to that subject.
6. Criminal Law.
Even though prosecutor acted improperly in asking serologist when he expected police department to have deoxyribonucleic acid
(DNA) capabilities as judge had explicitly limited questions pertaining to that subject, there was no unfair prejudice to defendant based
on overwhelming evidence of defendant's guilt, including defendant's confession to stabbing victim, that victim's blood was splattered
on defendant's legs, and that defendant left bloody palm print above victim's body.
7. Criminal Law.
Criminal conviction is not to be lightly overturned on basis of prosecutor's comments standing alone.
8. Criminal Law.
Supreme court must determine whether any misconduct by prosecutor during trial or guilt phase was so prejudicial as to deny
defendant a fair trial.
9. Criminal Law.
In instances where there is overwhelming evidence of guilt presented to jury, even aggravated misconduct by prosecutor may be
deemed harmless error.
10. Criminal Law.
State's attribution of special death penalty quality to defendant in penalty phase closing argument was not error as it was merely
arguing that defendant's heinous crime was worthy of death penalty, and as prosecutor's principal objective in penalty phase argument
was to convince jury that convicted defendant was deserving of punishment sought.
11. Criminal Law.
State's warning that weapons found in defendant's cell before trial could have been meant for inflicting harm on jurors was clearly
inflammatory and was error.
113 Nev. 454, 456 (1997) Jones v. State
12. Criminal Law.
Even though state's warning that weapons found in defendant's cell could have been meant for inflicting harm on jurors themselves
was inflammatory and erroneous, statement did not unfairly prejudice defendant in light of overwhelming evidence upon which jury
could have found defendant guilty of first-degree murder, including fact that he stabbed victim 36 times. Remainder of statement in
which prosecutor referred to defendant's propensity for violence fell within ambit of permissible future dangerousness argument.
13. Criminal Law.
Prosecutor's argument in penalty phase concerning defendant's future dangerousness was proper where jury had received plethora
of evidence concerning defendant's violent tendencies prior to state's remarks, including that defendant had stabbed victim 36 times
with kitchen knife while victim's children were sleeping in next room, that defendant had been convicted of prior armed robbery, that
defendant had battered corrections officers and detention center workers, threatened his own mother with gun, beaten up previous
girlfriend, and shot and wounded a man one month before victim's murder. Prosecutor was admonished for suggesting that defendant's
violent tendencies could be visited upon individual jurors.
14. Criminal Law.
Prosecutor's likening defendant to a rabid animal during penalty phase of trial was prosecutorial misconduct as such toying with
jurors' imagination was risky and prosecutor had responsibility to avoid use of language that might deprive defendant of fair trial.
15. Criminal Law.
Prosecutor's misconduct in likening defendant to rabid animal during penalty phase was harmless error in light of overwhelming
evidence of defendant's guilt.
16. Criminal Law.
District court's determinations of fact will not be set aside if they are supported by substantial evidence.
17. Criminal Law.
State's alleged failure to make available potentially exculpatory statements, made by defendant's mother and sister to police, until
second day of jury selection was not Brady violation as defense had adequate opportunity to present mother and sister's testimony
during its case in chief and made use of the allegedly withheld statements at that time, so jury was able to hear that potentially
exculpatory evidence contained in the police statements.
18. Criminal Law.
Trial court is vested with broad discretion in fashioning a remedy when, during course of proceedings, a party is made aware that
another party has failed to comply fully with discovery order.
19. Criminal Law.
Supreme court will not find abuse of discretion in trial court's fashioning of remedy where state failed to comply fully with
discover order unless there is showing that state acted in bad faith or that nondisclosure resulted in substantial prejudice to defendant.
20. Criminal Law.
Deoxyribonucleic acid (DNA) results were admissible in murder trial, even though DNA expert's report was not available to either
side until after discovery deadline, where state did not act in bad faith and made all reasonable efforts to procure DNA results before
discovery deadline, delay in receiving results was not attributable to state and state did not withhold
information once it was received, defense counsel knew expert's report was forthcoming, and as defendant
was not prejudiced by delay, even though defense counsel complained he would not have adequate time to
hire expert to attack findings, as defense counsel had earlier told court he would accept expert's results
whether they were exculpatory or inculpatory.
113 Nev. 454, 457 (1997) Jones v. State
deadline, delay in receiving results was not attributable to state and state did not withhold information once it was received, defense
counsel knew expert's report was forthcoming, and as defendant was not prejudiced by delay, even though defense counsel complained
he would not have adequate time to hire expert to attack findings, as defense counsel had earlier told court he would accept expert's
results whether they were exculpatory or inculpatory.
21. Criminal Law.
Failure to endorse witness constitutes reversible error only where defendant has been prejudiced by the omission. NRS 173.045(2).
22. Criminal Law.
Even though state committed procedural error in failing to endorse expert called to testify during state's case in chief, error did not
prejudice defendant because expert was chosen by defense to analyze evidence and thus defense counsel knew expert's name and
address, as defense knew that expert would be presenting evidence and received copy of expert's report before trial began, and as expert
was not called to stand until second week of trial. NRS 173.045(2).
23. Criminal Law.
In determining whether death penalty is excessive, supreme court looks to heinous nature of killing.
24. Homicide.
Death penalty was not excessive in light of heinous nature of killing and defendant's propensity for violence. Defendant stabbed
victim 36 times with kitchen knife in bedroom adjacent to room where victim's children were sleeping and victim's six-year-old
daughter discovered her mother's bloody corpse, defendant had prior armed robbery conviction, and testimony was that defendant had
battered correction officers and detention center workers, threatened his own mother with gun, beat up previous girlfriend, and month
before murder had shot and wounded a man in an altercation.
25. Criminal Law.
Even if defendant does not address issue of sentencing aggravating circumstances on appeal, supreme court is required to examine
record and determine whether evidence supports finding of aggravating circumstances as found by jury. NRS 177.055(2).
26. Homicide.
Evidence of defendant's prior conviction for robbing grocery store at gun point, presented during penalty phase of trial, supported
finding the aggravating circumstance of a prior felony conviction involving threat of violence to another.
27. Homicide.
Finding of aggravating circumstance of mutilation of victim in capital-murder trial was supported by evidence that victim
sustained 36 or more knife wounds, only three or four superficial, with at least one wound that severed victim's windpipe and part of
her neck, that one stab to victim's chest was thrust so hard that knife plunged entirely through her body to her back, that there was a
cluster of wounds to victim's right breast, that victim's lungs and liver were pierced, and that victim had multiple defensive wounds
indicating futile attempt to protect herself from repeated knife blows.
28. Criminal Law.
Supreme court must address issue of whether death sentence was imposed under influence of passion, prejudice, or any arbitrary
factor, even if issue is not raised on appeal. NRS 177.055(2).
113 Nev. 454, 458 (1997) Jones v. State
OPINION
On May 11, 1992, a jury convicted appellant Edward Lee Jones (Jones) of one count of
murder with the use of a deadly weapon for the August 22, 1991 slaying of his girlfriend,
Pamela Williams. Jones was sentenced to death on May 26, 1992. On appeal, this court
reversed Jones' conviction and sentence and remanded the case for a new trial, due to
ineffective assistance of counsel.
On November 8, 1995, following Jones' second trial, a jury found him guilty of one count
of first degree murder with the use of a deadly weapon. At the penalty phase, ending
November 14, 1995, the jury returned a special verdict, finding two aggravating
circumstancesthat the murder was committed by a person previously convicted of a felony
involving use or threat of use of violence, and the murder involved the mutilation of the
victim, and three mitigating circumstancesthat the murder was committed while the
defendant was under the influence of extreme mental or emotional disturbance, the defendant
acted under duress or under the domination of another person, and other unspecified
mitigating circumstances. The jury found that the aggravating circumstances outweighed the
mitigating circumstances and imposed a sentence of death.
Jones filed this direct appeal challenging both his conviction and his sentence of death,
alleging (1) prosecutorial misconduct in the guilt and penalty phases, (2) Brady violations, (3)
violation of a discovery order, and (4) unfair surprise via testimony of an unendorsed witness.
We conclude that Jones' claims are without merit and affirm both the conviction and the
sentence.
FACTS
Facts pertaining to the crime
After a night of drinking and smoking crack cocaine with his brother (Gary), Jones
returned to the trailer on North Nellis where he lived with his girlfriend, Pamela Williams
(Williams), and Williams' two young children, Charlene (age six) and Demetrius (age three).
Somewhere around 8:00 a.m. on August 22, 1991, Jones and Williams got into a fight.
Charlene woke up to find her mother crying and struggling with Jones over what appeared to
be a bank card. Jones told Charlene to go back to bed and led Williams into the master
bedroom.
113 Nev. 454, 459 (1997) Jones v. State
Charlene went back to sleep. At some point, Jones stuck his head into Charlene and
Demetrius' room, and told Charlene that he would get her some cereal. Charlene woke up
several hours later and Jones was gone. She went to the master bedroom to find her mother,
but the door was locked. Charlene went to the kitchen and retrieved a fork, and then a knife,
which she used to pry open her mother's bedroom door. Charlene discovered her mother's
bloody corpse sprawled between the master bedroom and the entrance to the master
bathroom. Charlene retreated to her room, where she cried herself to sleep. Then, at
approximately 1:30 p.m., she woke up and ran to her neighbor's trailer in the adjacent lot. The
neighbor checked on Williams, ascertained that she was dead, and called the police from her
trailer, as the phone in Williams' trailer was not working.
While the police were en route to the Nellis trailer park, three members of the North Las
Vegas Police Department were visiting Jones' brother's apartment complex to teach the
owners how to minimize crime in the area. Two plain-clothed policemen, Herbert Brown
(Brown) and Randy Wohlers (Wohlers), and one uniformed officer, Lester Morton (Morton),
arrived at the complex to perform their security survey at approximately 2:00 p.m. At this
time Jones was with Gary in Gary's apartment.
Officers Brown, Wohlers, and Morton rode the elevator up to the third floor of the
building, where they were greeted by Rosalee Matthews (Matthews), the mother of Jones and
Gary. Matthews testified that Jones had seemed worried about Williams and asked her to
telephone the Nellis trailer to check on Williams. When Matthews told Jones that she could
not get through to Williams, Gary asked Matthews to telephone the police or his probation
officer because he was worried about the fact that he had been taking drugs while on parole.
On her way to the pay telephone she met the three policemen and asked them to come to her
son's apartment, stating my boys would like to talk to you guys. The three men
accompanied Matthews to Gary's apartment. Gary told Brown that he had been using illegal
drugs and did not know what to do about a meeting with his probation officer scheduled for
later that afternoon.
After advising Gary to be honest with his probation officer, Brown began speaking with
Jones. Jones told Brown that he and his girlfriend had had a fight and that he thought that he
had hurt her bad. After Jones gave Brown the address where the fight had occurred, Brown
instructed Morton to radio the communications bureau to notify the Metro police of the
address; Brown recalled having heard over the police radio on his way to survey the Pecos
apartments about a homicide at the Nellis trailer park. When Morton confirmed that there had
been a murder at the address given by Jones, Brown read Jones his Miranda rights, while
Jones began to cry.
113 Nev. 454, 460 (1997) Jones v. State
given by Jones, Brown read Jones his Miranda rights, while Jones began to cry.
Meanwhile, Detectives Norman Ziola (Ziola) and Karen Good (Good) had arrived at the
Nellis crime scene at approximately 2:30 p.m. After performing a cursory inspection of the
interior of the trailer, Ziola was apprised of the information gleaned by the North Las Vegas
policemen at Gary's apartment. Ziola proceeded to the Pecos apartments where he re-advised
Jones of his Miranda rights and took Jones and his brother to the detective bureau. En route
to the bureau, Jones signed a consent form allowing the police to search the Nellis trailer.
Detective Good was in charge of investigating the crime scene. She testified that she
discovered Williams' body lying between the master bedroom and master bathroom, covered
with a green quilt. Coagulated blood surrounded the head and shoulders of the body and
partially dried blood stained the shirt worn by Williams, the quilt, a robe, and a pile of shorts,
underwear, and shoes stacked in the room. After removing the quilt, police noted some thirty
stab wounds to Williams' body and a blood covered butcher knife lying under Williams' right
foot. In the bathroom, Good found blood in the sink and on the countertop, along with a
Band-Aid box and an empty Band-Aid wrapper. A bloody palm print, which would later be
identified as Jones' to the exclusion of all others, marred the bedroom wall by the doorway to
the master bathroom.
The drawers of the bedroom dresser appeared ransacked, and papers were spread about the
bed. Williams' children's birth certificates and Williams' personal identification card were
found beneath her body. There was no sign of forced entry or theft; Williams' body still had
numerous pieces of jewelry on it. There were no signs of disarray in the rest of the trailer;
however, in the kitchen the third drawer down was open, in which the police observed a clean
knife similar to the bloody one found in the master bedroom beneath the victim.
The forensic pathologist, Dr. Green, would later testify that Williams had been stabbed
approximately thirty-five times in her upper torso and neck, front and back. Of the thirty plus
stab wounds, three or four were superficial, the remainder pierced or severed various organs,
including the windpipe, lungs, and liver. Dr. Green also noted the presence of many
defensive wounds on Williams' arms and hands, that is, stab wounds received in an act of
trying to push away or get away from the weapon. Due to the severe injuries to the victim's
neck, Dr. Green could not tell if Williams had been choked prior to her death.
In a recorded statement, Jones admitted to having choked and stabbed Williams at the
trailer and said that he had left the knife in the bedroom.
113 Nev. 454, 461 (1997) Jones v. State
in the bedroom. On the tape, Ziola indicates that he started recording the statement at 3:25
p.m. and stopped the tape at 3:36 p.m. However, at trial the tape was played for the jury, and
it ran for approximately four minutes and twenty seconds. Ziola stated that the times stated on
the tape were approximate
1
and that he did not edit or stop the tape at any time during Jones'
statement.
After giving his statement, Jones was taken to the Clark County Detention Center, where
evidence was collected from Jones' person. Jones had splashes of blood on both of his legs
and feet, from the knees down, and there was a laceration on Jones' right ring finger. Blood
was withdrawn from Jones and tested for drugs and alcohol. The toxicology reports revealed
no alcohol, but did indicate a high level of cocaine metabolite in Jones' blood sample. Jones'
mother, Matthews, testified that she thought he was under the influence of a controlled
substance when she saw him at the Pecos apartment on August 22, 1991. However, the police
who questioned and apprehended JonesBrown, Wohlers, Morton, and Ziolatestified that
Jones appeared withdrawn, yet was lucid and articulate, and that none of them suspected that
Jones was under the influence of a controlled substance. Moreover, Dr. Green testified that
the metabolite found in Jones' blood was merely an inactive byproduct of cocaine and would
not have had any effect on an individual's brain functions.
Williams' sister, Jerrie Williams (Jerrie), testified that she had witnessed Jones in a heated
argument with the victim on the evening before her death. LaVerne Caldwell (Caldwell),
Williams' and Jerrie's mother, stated that the night before Williams' death, Jones came to
Caldwell's house looking for Williams and acting mad and impatient. Caldwell and Jerrie
both testified that Williams was making plans to end her relationship with Jones and move to
Mississippi with her children and Jerrie. Jerrie testified that prior to her sister's murder, Jones
was often away from home, but when he was with Williams, the two would argue. The
prosecution questioned various witnesses about an incident that occurred the May before
Williams' death where Jones argued with Williams and then cut his wrists in front of
Williams and her children. Jones' expert psychologist, Dr. Hess, testified that this alleged
suicide attempt may have been a ploy by Jones to manipulate Williams. The State referred to
this alleged suicide attempt in both its opening and closing arguments.
Jones' mother and sister, Matthews and Debra Jones (Debra), testified that Williams and
Jones had had a loving relationship and that the two never fought.
__________

1
For instance, Ziola testified that he took the 3:25 p.m. time from the time noted on Jones' Miranda waiver, which had actually been
signed one to four minutes before Ziola started the tape.
113 Nev. 454, 462 (1997) Jones v. State
that the two never fought. In the second trial, Debra also testified that two days after Jones'
arrest, she had discovered Gary extracting a blood-smeared photograph of Jones and
Williams from Jones' automobile. At that time, Debra gave a statement to the police and
turned over the bloody photograph, which was later returned at her request.
At the trial below, Matthews testified to having found Williams' necklace hidden behind a
picture in the room occupied by Gary at her home (he moved in with her shortly after Jones'
arrest). She also stated that Gary resented Williams for coming between Gary and Jones and
that Gary had keys to the Nellis trailer. She testified that when she found Jones at Gary's
Pecos apartment, he was wearing shorts and there was no blood on his legs or feet. Matthews
testified at an evidentiary hearing held before the first trial in 1992, and none of these alleged
facts were presented at that time, although Matthews did give a statement and delivered the
necklace to the police after its discovery in Gary's room. Gary testified on Jones' behalf at the
first trial.
Facts pertaining to prosecutorial behavior
In preparation for the first trial (held in 1992), the State's serologist analyzed the blood
found on various pieces of evidence retrieved from the crime scene and compared his results
to samples taken from Jones and Williams. The Las Vegas Metropolitan Police Department
(Metro) crime laboratory did not have DNA testing capabilities at the time so the serologist
performed an ABO blood type comparison.
2
He concluded that both Jones and Williams
shared type O blood and that the blood samples also shared the same subgroup and subtype,
and testified that he could not differentiate between the two parties' blood found on the
evidence.
In preparation for the second trial, Jones' counsel successfully petitioned the court for
funds to perform blood analyses. On June 16, 1995, just days before the originally scheduled
trial date, the parties met before the district judge in an attempt to resolve an apparent
misunderstanding. The prosecution was prepared to hand over vials of blood taken from
Williams and Jones, however Jones' counsel demanded the blood spattered items retrieved
from the Nellis trailer (the shorts, underwear, shoes, quilt, knife, etc.). The State did not want
to relinquish the evidence, which was already marked and in the custody of the district court.
__________

2
In a bench conference, the district judge limited the prosecution's questions regarding Metro's DNA capabilities to two areas, the
state of the lab's DNA technology in 1991-92 and the state of such technology at the time of the second trial. The State exceeded these
restrictions, asking when DNA capabilities would be available, and was admonished by the judge.
113 Nev. 454, 463 (1997) Jones v. State
Jones' counsel argued that the serologist's unusual findings (that the blood of the victim
and Jones' were indistinguishable) warranted retesting by their expert, which would
necessitate comparisons between the blood samples and the bloodied pieces of evidence. The
State maintained that the defense had originally requested blood for alcohol testing and that
[t]here [was] absolutely no indication until a moment ago, that [Jones' counsel] wanted a
murder weapon and he wanted those things taken out of evidence which is crucial to our
case.
Finally, the district judge ended the debate, noting [a]ll I can read is the Court minute.
And the Court minute says blood. And now we're distinguishing between, well, do we want
dry blood or liquid blood or blood on the weapon or blood in a vial or what did we want.
The district judge ordered defense counsel and a member of the prosecution to take the
evidence to the defense's expert, Dan Berkabile (Berkabile), for the express purpose of
finding out what tests could be done, how long the tests would take, and if the results would
likely contradict earlier conclusions.
The following week, the parties agreed to continue the trial date until October 23, 1995,
and that the State would send the blood and all items requested by the defense to Brian
Wraxall of the Serological Research Institute in Northern California. Jones' expert, Berkabile,
recommended this particular laboratory, and its credibility was stipulated to by both sides. At
a June 21, 1995 hearing, the district judge engaged defense counsel in the following
exchange:
THE COURT: Now, gentlemen, in order to avoid this problem in the future, I want
an agreed upon date where everything concerning discovery will be finished in this
case. And I want it far enough in advance of this October 23rd trial date so that we don't
put this gentleman through any more delays. So, right now on this record, you guys pick
it.
[DEFENSE COUNSEL]: I believe we are prepared other than awaiting the results
from this lab in California, which is a stipulated one. So, we're not going to send it out a
second time. Good, back [sic] or indifferent, however their information comes. . . .
THE COURT: So, we're going to deal with the results whatever they are.
. . . .
THE COURT: September 14th . . . is your cut off date. Everything that's going to be
done in this case is going to be done by September 14th at 5:00.
113 Nev. 454, 464 (1997) Jones v. State
(Emphasis added.) By the July 20, 1995 status check, the State had sent the requested
evidence to Wraxall at the California laboratory.
At the September 14, 1995 status check, defense counsel complained about the fact that
the DNA testing had not been completed prior to the court-imposed discovery cut-off date.
The prosecution spoke with Wraxall at the laboratory, who stated that he could not complete
his blood analysis until sometime around October 9, 1995. The defense replied, Whichever
way the information comes back, I don't think there's going to be enough time. And
absolutely we do not want this continued under any circumstances. The State responded:
[T]his was done at the request of the defense. I don't care what we do with that
property there. I did this [sent the evidence to Wraxall] as an accommodation to
[defense counsel].
. . . .
Not only did the defense request this DNA, they supplied us the name of Brian
Wraxall. I did everything because it was what [defense counsel] wanted us to do.
(Emphasis added.)
The district judge asked Jones' counsel, What do you want me to do?, to which the
defense stated:
I don't know what I want the Court to do at this point. I just want the record to reflect
that we are not going to stipulate or agree to a continuation of the discovery cut-off
date. If, in fact, it comes back that there is something exculpatory to the defense, we
would like to know about it obviously; however, we are not going to agree to allow the
State to use this evidence if it is not back by the discovery cut-off date, which was
today.
(Emphasis added.) The district court did not rule on the issue at that time.
On October 18, 1995, the State called the laboratory and Wraxall gave his preliminary
results over the telephone. The next day the State telephoned defense counsel with that
information. On October 20, 1995 (three days before trial), the State received Wraxall's
Preliminary Analytical Report which indicated that a combination of Jones' and Williams'
blood had been found on the tested items. The State then faxed a copy of Wraxall's report to
Jones' counsel.
On October 20, 1995, Jones' counsel filed a motion to dismiss/suppress evidence for the
State's alleged violation of the discovery order. On October 23, 1995, the district court held a
hearing and subsequently denied Jones' motion to suppress the bloodJDNA evidence.
113 Nev. 454, 465 (1997) Jones v. State
and subsequently denied Jones' motion to suppress the blood/DNA evidence. Immediately
preceding Wraxall's taking the stand, Jones' counsel objected to his testimony on the grounds
that the State had failed to endorse Wraxall as a witness. The district court ruled, Well, both
of you [prosecution and defense] agreed to Mr. Wraxall, as far as my notes indicate, so your
objection to him testifying this morning is overruled.
At the conclusion of the State's case in chief, Jones' counsel moved to strike Wraxall's
testimony, once again citing the prosecution's failure to endorse Wraxall as a witness. At the
close of the defense's case in chief, the district judge denied Jones' motion to strike Wraxall's
testimony. The jury rendered a guilty verdict on November 8, 1995. The penalty phase
followed, concluding November 14, 1995, with the imposition of a death sentence.
During closing arguments at the penalty phase, both the defense and the prosecution made
questionable statements to the jury. At one point the prosecution analogized Jones to a rabid
animal, and at another, suggested that weapons found in Jones' cell before the trial could have
been meant for use on members of the jury.
Jones also takes issue with the prosecutor's statement that Jones possessed a special death
penalty quality:
[PROSECUTOR]: Undoubtedly, ladies and gentlemen, as she was getting stabbed
over and over repeatedly she cried out and begged for her life, and she begged to stay
alive on behalf of those children of hers. Can you imagine the special quality of a
person who can do this? That's the special death penalty quality of this defendant, Mr.
Jones.
(Emphasis added.) These statements and various other actions taken by the prosecution
during this trial form the basis for Jones' present appeal.
DISCUSSION
The prosecutorial misconduct did not constitute reversible error
Jones asserts that the following actions taken by the prosecution in the guilt and penalty
phases of his trial constituted reversible error: (1) improper referral to Jones' alleged suicide
attempt during closing argument in the guilt phase; (2) exceeding the scope of questions
approved by the district court regarding Metro's DNA capabilities in the guilt phase; (3)
refusing to release blood evidence to the defense for independent analysis; (4) implying that
Jones behaved like a rabid animal in the presence of the jury during the penalty phase; (5)
intimating during the penalty phase that weapons found in Jones' cell could be used
against jurors, and if the jurors did not return a verdict of death in this case Jones could
kill them; {6) arguing that this case involved a "special death penalty quality" during
closing arguments in the penalty phase.
113 Nev. 454, 466 (1997) Jones v. State
during the penalty phase that weapons found in Jones' cell could be used against jurors, and if
the jurors did not return a verdict of death in this case Jones could kill them; (6) arguing that
this case involved a special death penalty quality during closing arguments in the penalty
phase.
1. Alleged prosecutorial misconduct during the guilt phase
a. Refusal to release blood evidence to the defense for independent analysis
Jones maintains that the prosecution steadfastly refused to release blood evidence to the
defense for independent analysis. The record reflects that the State resisted turning over the
murder weapon and other bloodied evidence to the defense three days before trial was set to
commence; however, the record also shows that despite the misunderstanding as to what
items constituted blood evidence, the State relinquished all requested items to Wraxall, a
DNA expert selected by the defense, for analysis. Therefore, we conclude that this claim is
without merit.
b. References to Jones' alleged suicide attempt
[Headnote 1]
In opening statements of the guilt phase, the State argued:
[A]round May of 1991 things were not so good in their relationship, and Pamela [Williams] wanted to leave . . . [a]nd in order to
stop her from leaving, you will hear testimony from the witnesses, as well as medical documentation that shows that the defendant
attempted to kill himself in front of her. And he got that sympathy, and she came back to him . . . .
Jones failed to object to this statement at trial. Failure to object in the district court precludes consideration of the issue on appeal; however,
this court may address plain error sua sponte. Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992). Because we conclude that the
mention of the suicide attempt was not plain error, we will not consider this issue.
[Headnotes 2, 3]
During the cross-examination of Jones' expert psychologist, Dr. Hess, the prosecutor asked Dr. Hess if he was aware of a suicide
attempt by Jones some months before the murder. Jones' purports that this line of questioning constituted prosecutorial misconduct,
however, we construe his argument as one concerning the admissibility of evidence regarding his suicide attempt. The decision to admit or
exclude evidence, after balancing the prejudicial effect against the probative value, is within the discretion of the trial
judge, and such a decision will not be overturned absent manifest error.
113 Nev. 454, 467 (1997) Jones v. State
prejudicial effect against the probative value, is within the discretion of the trial judge, and
such a decision will not be overturned absent manifest error. Petrocelli v. State, 101 Nev. 46,
52, 692 P.2d 503, 508 (1985). We conclude that it was not manifest error to permit
introduction of evidence regarding Jones' alleged suicide attempt in May of 1991, and that it
was not misconduct for the prosecutor to pursue this line of questioning.
[Headnote 4]
During the guilt phase closing argument, Jones' counsel objected when the State argued that Jones slit his wrists in front of Williams
during an argument, in which she was attempting to leave him. During closing argument, the prosecution can argue inferences from the
evidence and offer conclusions on contested issues. See Domingues v. State, 112 Nev. 683, 696, 917 P.2d 1364, 1373 (1996) (citing
Collins v. State, 87 Nev. 436, 439, 488 P.2d 544, 545 (1971) (holding that the prosecutor's statements in closing argument, when made as a
deduction or conclusion from the evidence introduced in the trial, are permissible). Reviewing the testimony of Williams' family and Jones'
own expert, Dr. Hess, we conclude that the State's argument was not improper, and further conclude that the evidence adduced at trial
supported the State's argued deductions and the conclusions asserted in closing argument.
c. Question regarding Metro's DNA capabilities
[Headnotes 5-8]
The prosecutor disobeyed the court's directive in asking the serologist when he expected the police department to have DNA
capabilities. In light of the judge's explicit limitations on questions pertaining to this subject we conclude that the State acted improperly,
but conclude that no unfair prejudice resulted to Jones. [A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's
comments standing alone . . . . United States v. Young, 470 U.S. 1, 11 (1985). This court must determine whether any misconduct was so
prejudicial as to deny Jones a fair trial. Jones v. State, 101 Nev. 573, 577, 707 P.2d 1128, 1131 (1985). We conclude that to the extent any
prosecutorial misconduct occurred, it was harmless error.
[Headnote 9]
In instances where there is overwhelming evidence of guilt presented to the jury, even aggravated misconduct may be deemed harmless
error. See Riley v. State, 107 Nev. 205, 213, 808 P.2d 551, 556 (1991); Barron v. State, 105 Nev. 767, 777, 783 P.2d 444, 452 (1989). In
the instant case, there was overwhelming evidence of Jones' guilt presented to the jury during his trial.
113 Nev. 454, 468 (1997) Jones v. State
whelming evidence of Jones' guilt presented to the jury during his trial. Among other things,
Jones confessed to stabbing Williams, her blood was splattered on his legs, and he left a
bloody palm print above her body. The conviction should stand when the verdict is free from
doubt. Riley, 107 Nev. at 213, 808 P.2d at 556.
2. Alleged prosecutorial misconduct during the penalty phase
Attributing a special death penalty quality to Jones, inciting fear of Jones' future
dangerousness, and referring to Jones as a rabid animal in the penalty phase
closing argument
[Headnote 10]
Jones offers no specific argument or authority to support his claim that the State's attribution of a special death penalty quality to the
defendant constituted error. We conclude that this unsupported contention should be summarily rejected on appeal. See Bennett v. Fidelity
& Deposit Co., 98 Nev. 449, 453, 652 P.2d 1178, 1181 (refusing to consider merits when authority not cited); McKinney v. Sheriff, 93
Nev. 70, 71, 560 P.2d 151, 151 (1977) (stating that contentions unsupported by authority are to be summarily rejected). Moreover, a
prosecutor's principal objective in penalty phase argument is to convince the jury that the convicted defendant is deserving of the
punishment sought. We conclude that the prosecution was merely arguing that Jones' heinous crime was worthy of the death penalty.
[Headnotes 11, 12]
As to the State's warning that Jones' weapons could have been meant for inflicting harm on the jurors themselves, we conclude that this
portion of the statement was clearly inflammatory; however, the statement did not unfairly prejudice Jones in light of the overwhelming
evidence of his guilt.
3
Moreover, the remainder of the statement in which the prosecutor referred to Jones' propensity for violence falls
within the ambit of a future dangerousness" argument which has been
__________

3
Notwithstanding the dissent's assertion that there was little evidence to support the jury's verdict of first degree murder, we note that
[t]he nature and extent of the injuries, coupled with repeated blows, constitutes substantial evidence of willfulness, premeditation and
deliberation. Jones did not stab Williams once, twice, or even ten times; he plunged the knife into her body thirty-six times. On these facts,
we conclude that there was indeed overwhelming evidence upon which the jury could have found Jones guilty of first-degree murder. Cf.
Payne v. State, 81 Nev. 503, 508-09, 406 P.2d 922, 925-26 (1965) (one may be guilty of murder in the first degree although the intent to
commit such a homicide is formed at the very moment the fatal shot [is] fired' ).
113 Nev. 454, 469 (1997) Jones v. State
ousness argument which has been held permissible on numerous occasions. See Witter v.
State, 112 Nev. 908, 927-28, 921 P.2d 886, 899 (1996) (holding that prosecutor's future
dangerousness argument was proper where shank was found in defendant's cell); Haberstroh
v. State, 105 Nev. 739, 741-42, 782 P.2d 1343, 1344 (1989) (concluding no misconduct
where the prosecutor told the jury that a piece of angle iron had been found in the defendant's
possession while in jail and stated that defendant could pose a future threat to others).
[Headnote 13]
Moreover, in Redmen v. State, 108 Nev. 227, 235, 828 P.2d 395, 400 (1992), overruled on other grounds by Alford v. State, 111 Nev.
1409, 906 P.2d 714 (1995), this court concluded that it would even allow prosecutors to argue the future dangerousness of a defendant . . .
when there is no evidence of violence independent of the murder in question. In the instant case, the jury had received a plethora of
evidence concerning Jones' violent tendencies, prior to the delivery of the State's remarks regarding Jones' propensity for violence. We
conclude that given this evidence, along with the murder itself, there were clear facts to support an argument of future dangerousness.
However, we admonish the prosecutor for suggesting that Jones' violent tendencies could be visited upon individual jurors.
[Headnotes 14, 15]
Finally, we conclude that likening Jones to a rabid animal was misconduct, but that the misconduct was harmless error in light of the
aforementioned overwhelming evidence of guilt. This court has previously warned that such toying with the jurors' imagination is risky
and the responsibility of the prosecutor is to avoid the use of language that might deprive a defendant of a fair trial. Pacheco v. State, 82
Nev. 172, 180, 414 P.2d 100, 104 (1966) (discussing prosecutor's statement calling a defendant a mad dog.). The prosecutor's reference
to Jones as a rabid animal was indeed risky behavior and was wholly unnecessary. Although the State argues that it was simply pointing
out the heinous nature of the defendant's past conduct and his utter disregard for the sanctity of life, we conclude that there was ample
evidence from which the jury could have drawn that very same conclusion in the absence of the prosecution's demeaning and
unprofessional remarks.
Notwithstanding these improper comments made by the prosecutor during the penalty phase, we conclude that in light of the
overwhelming evidence of Jones' guilt, the prosecutor's misconduct constituted harmless error. Because the verdict was free from doubt we
will not reverse, however, we caution the prosecution that with a weaker case, such misconduct might very well
constitute reversible error.
113 Nev. 454, 470 (1997) Jones v. State
tion that with a weaker case, such misconduct might very well constitute reversible error.
The State did not violate Brady requirements
Jones argues that the State violated the holding of Brady v. Maryland, 373 U.S. 83, 87
(1963), and its progeny in that potentially exculpatory statements given to police by his
mother, Matthews, and sister, Debra, several days after Williams' murder were kept from the
defense until the second day of jury selection. The State maintains that these two statements
had been in the prosecution's file since 1991 and the file had been readily available to the
defense under the State's open file policy since that time.
[Headnote 16]
There is no way for this court to determine whether or not these statements were made available to Jones; the State says that they were
in the file, and the defense says that they were not. The district court listened to these facts as presented by both parties and subsequently
denied Jones' motion to dismiss the case and/or sanction the State for alleged Brady violations. A district court's determinations of fact will
not be set aside if they are supported by substantial evidence. Tomarchio v. State, 99 Nev. 572, 575, 665 P.2d 804, 806 (1983). We
conclude that the trial court's determination that these statements were made available to the defense was supported by substantial evidence.
Jones argues that Jimenez v. State, 112 Nev. 610, 618, 918 P.2d 687, 692 (1996), is apposite to his claim on appeal, quoting the
opinion for the principle that [i]t is a violation of due process for the prosecutor to withhold exculpatory evidence, and his motive for
doing so is immaterial. Jones argues that the State fought the disclosure of evidence to the defense, claiming that the State opposed a
subpoena for Jones' police file, served on the first day of trial, and refused to allow defense counsel access to the police file.
[Headnote 17]
These facts are distinguishable from Jimenez in that, as the record reveals, the defense had an adequate opportunity to present the
testimony of Matthews and Debra during its case in chief and made use of the allegedly withheld statements at that time. In Jimenez, the
defense was hindered in presenting certain exculpatory evidence to the jury due to the State's failure to disclose potentially exculpatory
evidence. Jimenez, 112 Nev. at 620, 918 P.2d at 693.
As evidenced by the testimony of Matthews and Debra, in the instant case the jury was able to hear that both women had found
Williams' property in Gary's possession shortly after Williams' death, along with any other potentially
exculpatory evidence contained in Matthews' and Debra's 1991 police statements.
113 Nev. 454, 471 (1997) Jones v. State
Williams' property in Gary's possession shortly after Williams' death, along with any other
potentially exculpatory evidence contained in Matthews' and Debra's 1991 police statements.
Therefore, we conclude that there were no Brady violations in regards to these statements,
and even if there were, the result was harmless error because the substance of the statements
reached the jury for consideration.
The State did not violate the discovery deadline
On appeal, Jones argues that the district court erred in allowing the State to introduce
DNA evidence at trial because the DNA expert's report was not available to either side at the
discovery deadline of September 14, 1995. We conclude that Jones' claim is meritless.
[Headnotes 18-20]
A trial court is vested with broad discretion in fashioning a remedy when, during the course of the proceedings, a party is made aware
that another party has failed to comply fully with a discovery order. Langford v. State, 95 Nev. 631, 635, 600 P.2d 231, 234 (1979). This
court will not find an abuse of discretion in such circumstances unless there is a showing that the State has acted in bad faith, or that the
non-disclosure results in substantial prejudice to appellant . . . . Id. We conclude that the district court did not abuse its discretion in
permitting the DNA results to be admitted into evidence.
First, we note that the State did not act in bad faith. The State made all reasonable efforts to procure the DNA results before the
discovery deadline. The State had sent the materials to Wraxall by July of 1995, approximately two months prior to the deadline. The delay
in receiving the results was attributable to Wraxall, and not to the State.
Furthermore, Jones was not prejudiced by the delay. Prior to the evidence being sent to Wraxall, Jones' counsel explicitly told the trial
judge that the defense would accept the results of Wraxall's analysis, be they exculpatory or inculpatory. Additionally, the State followed up
on the evidence sent to Wraxall, informing the district court and Jones' counsel of its findings. The prosecution at no time withheld the
information received from Wraxall and gave the results to defense counsel shortly after receipt, on October 19, 1995.
In the instant case, Jones knew that the report from Wraxall would be forthcoming and in fact noted in his motion to dismiss, dated
three days before trial (October 20, 1995), that [d]uring its case-in-chief, the State of Nevada will attempt to introduce blood/DNA
evidence. . . . On June 21, 1995, the defense told the district court that it would accept Wraxall's results, good or bad.
113 Nev. 454, 472 (1997) Jones v. State
the district court that it would accept Wraxall's results, good or bad. However, in his October
motion to dismiss, Jones' counsel complained that he would not have adequate time to hire an
expert to attack Wraxall's findings. On these facts, we conclude that the State did not act in
bad faith and that Jones was not prejudiced by any delay.
The district court did not commit reversible error in permitting unendorsed witness Brian
Wraxall to testify
In a related issue, Jones claims that the State's failure to strictly comply with the provisions
of NRS 173.045(2),
4
which requires endorsement of prosecution witnesses, necessitates
reversal of his conviction. In the second week of trial, the State called an unendorsed witness,
DNA expert Wraxall, to testify during its case in chief.
Nevada law clearly allows witnesses to be endorsed even after trial has begun:
[U]nder statutes such as ours the indorsement of names of witnesses upon an
information is largely a matter of discretion with the court; and, in the absence of a
showing of abuse, or that some substantial injury has resulted to the accused, an order
permitting such indorsement, even after the trial has commenced, does not constitute of
itself reversible error.
State v. Monahan, 50 Nev. 27, 35, 249 P. 566, 569 (1926). However, in the instant case, the
State never endorsed Wraxall, neither before, nor during the trial.
In Dalby v. State, 81 Nev. 517, 519, 406 P.2d 916, 917 (1965), this court held that where
the name and address of an unendorsed witness was known to the defendant and an
opportunity was afforded to the defendant to interview the witness during an evening recess,
there was no prejudicial error in permitting the witness to testify. However, there is a
presumption that a witness called to testify whose name is not endorsed on the information is
one who was not before known to the district attorney. Id. at 519, 406 P.2d at 917.
__________

4
NRS 173.045(2) provides, in pertinent part, that:
The district attorney . . . shall endorse thereon the names of such witnesses as are known to him at the
time of filing the information, and shall also endorse upon the information the names of such other
witnesses as may become known to him before the trial at such time as the court may, by rule or
otherwise, prescribe; but this does not preclude the calling of witnesses whose names, or the materiality
of whose testimony, are first learned by the district attorney . . . upon the trial. . . . He shall not endorse
the name of any witness whom he does not reasonably expect to call.
113 Nev. 454, 473 (1997) Jones v. State
[Headnotes 21, 22]
We conclude that Nevada case law establishes that failure to endorse a witness constitutes reversible error only where the defendant has
been prejudiced by the omission. Redmen v. State, 108 Nev. 227, 234, 828 P.2d 395, 400 (1992). While the State did commit procedural
error, we conclude that this error did not prejudice Jones because Wraxall was chosen by the defense to analyze the blood; thus Jones'
counsel knew Wraxall's name and address as early as June of 1995. Moreover, the defense stated in an October 20th motion that the State
would be presenting the DNA evidence, and counsel received a copy of Wraxall's report before the trial began. Finally, Wraxall was not
called to the stand until the second week of Jones' trial.
The death sentence was not excessive considering the crime and the defendant
[Headnotes 23, 24]
In concluding that the death penalty was not excessive, this court has looked to the heinous
nature of the killing. Libby v. State, 109 Nev. 905, 919, 859 P.2d 1050, 1059 (1993), vacated
on other grounds by Libby v. Nevada, 516 U.S. 1037, 116 S. Ct. 691 (1996). In the instant
case, not only did Jones stab Williams at least thirty-five times with a kitchen knife, he
committed this atrocity in the bedroom next to the victim's sleeping children. Although he
locked the bedroom door, it was six-year-old Charlene who discovered her mother's bloody
corpse.
Besides the armed robbery conviction, the jury heard testimony regarding other violent
acts perpetrated by Jones. The evidence indicated that Jones has battered correction officers
and detention center workers, threatened his own mother with a gun, beat up a previous
girlfriend, and roughly a month before Williams' murder, had shot and wounded a man in an
altercation.
In light of the heinous crime and Jones' propensity for violence, we conclude that the death
sentence was not excessive.
1. The evidence presented supported the finding of the aggravating circumstances
[Headnote 25]
Although Jones does not address this issue on appeal, NRS 177.055(2)
5
requires this court to examine the record and determine
whether the evidence supports the finding of the aggravating circumstances.
__________

5
NRS 177.055(2) provides, in pertinent part, that this court shall consider:
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;
(c) Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor; and
113 Nev. 454, 474 (1997) Jones v. State
mine whether the evidence supports the finding of the aggravating circumstances. In the
penalty phase, pursuant to NRS 200.033, the jury found two aggravating circumstances
weighing against Jones: (1) the murder was committed by a person who was previously
convicted of a felony involving the use or threat of violence to the person of another, and (2)
the murder involved mutilation of the victim.
a. Prior conviction of a violent felony
[Headnote 26]
During the penalty phase, the State properly introduced Jones' 1981 conviction for robbing a grocery store at gun point as evidence of
an aggravating factor. We conclude that this earlier conviction clearly supports a finding of the aggravating circumstance of prior
conviction of a felony involving threat of violence to another. See generally Parker v. State, 109 Nev. 383, 393, 849 P.2d 1062, 1068
(1993).
b. Mutilation of the victim
[Headnote 27]
The district court defined mutilation for the jury as to cut off or permanently destroy a limb or essential part of the body or to cut off
or alter radically so as to make imperfect. This court approved the use of this definition in Deutscher v. State, 95 Nev. 669, 677, 601 P.2d
407, 413 (1979), vacated on other grounds by Angelone v. Deutscher, 500 U.S. 901 (1991). We conclude that the evidence adduced during
the guilt and penalty phases of Jones' trial support the finding of this aggravating circumstance. Specifically, the pathologist testified to
thirty-five or more wounds (only three or four of which were deemed superficial), at least one of which severed Williams' windpipe and part
of her neck. One of the stabs to the chest was thrust so hard that the knife plunged entirely through her body to her back. In addition to a
cluster of seven wounds to her right breast, Williams' lungs and liver had been pierced by one of the stabs. Moreover, Dr. Green found
multiple defensive wounds to Williams' hands and arms, indicating a futile attempt to protect herself from the repeated blows of the
knife.
Therefore, we conclude that the evidence supports the findings of the enumerated aggravating factors, and this issue is affirmed on
appeal.
__________
(d) Whether the sentence of death is excessive, considering both the crime and the defendant.
113 Nev. 454, 475 (1997) Jones v. State
The death sentence was not imposed under the influence of passion, prejudice, or any
arbitrary factor
[Headnote 28]
Jones does not raise this issue on appeal, however NRS 177.055(2) compels this court to address the issue. We conclude that the record
contains sufficient evidence upon which the jury could have found that the aggravating circumstances outweighed the mitigating
circumstances and thus rendered a death sentence without passion, prejudice, or any arbitrary factor.
CONCLUSION
We conclude that although Jones may not have received a perfect trial, he did receive a fair trial, which is what the law requires. Ross
v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1105 (1990). The State did engage in misconduct during its penalty phase closing argument;
however, in light of the overwhelming evidence of Jones' guilt, we conclude that reversal on this claim is not warranted. We further
conclude that Jones' claims of Brady and discovery violations, and any other instances of prosecutorial misconduct, are meritless. The State
did commit a technical error in failing to endorse Wraxall as a witness, but we conclude that Jones was not prejudiced or unfairly surprised
by Wraxall's testimony; thus the error was harmless. Having determined that Jones was fairly tried, convicted and sentenced, we affirm in
all respects the judgment of conviction and sentence imposed thereon.
6
I dissent to the judgment of conviction and to the death penalty judgment. With respect to the judgment of conviction I agree with the
majority that the prosecutor was guilty of misconduct and that the language used by the prosecutor was clearly inflammatory. I agree with
the majority that the prosecutor engaged in the use of demeaning and unprofessional remarks and that the prosecutor's references to the
defendant as a rabid animal were wholly unnecessary. Further, I agree with the majority that the improper comments made by the
prosecutor were indeed prosecutor's misconduct.
I would join with the majority in admonish[ing] the prosecutor for suggesting that Jones' violent tendencies could be visited upon
individual jurors"; but I would not, like the majority, sweep all of this misconduct under the rug and let the
prosecutor engage in all of this misconduct without paying any price for it.
__________

6
113 Nev. 454, 476 (1997) Jones v. State
upon individual jurors; but I would not, like the majority, sweep all of this misconduct under
the rug and let the prosecutor engage in all of this misconduct without paying any price for it.
The majority says that there is overwhelming evidence of guilt in this case. What the
majority should have said is that there is overwhelming evidence of homicide committed by
Jones. There is, of course, a big difference between the two. In this case, for example, proof
that Jones is guilty of intentional, deliberated first-degree murder is anything but
overwhelming; in fact, it is quite weak. This is a crime of passion. As stated in the majority
opinion, Jones and Williams (his girlfriend) got into a fight and were struggling . . . over
what appeared to be a bank card. The homicide was committed after a night of drinking and
smoking crack cocaine. There is no question that Jones killed his girlfriend, but there is
certainly a strong argument that the killing was committed in the heat of passion; and there is
certainly ample ground to believe that this may not have been a premeditated murder. The
majority asserts that it might have reversed if this had been a weaker case. This is a
weaker case. Although there is no doubt that Jones killed his girlfriend, there are all kinds
of doubts about his mental state at the time of the stabbing. Even, however, if Jones' defense
were weak, what I find to be weak is the majority's admonition to the prosecutors, telling
them, in effect: Look out prosecutors, because one of these days we might hold you
accountable for such things as telling the jury that the defendant is a rabid animal who, unless
convicted, will come back to kill jurors.
With respect to the death penalty judgment, it is very clear to me that multiple stab wounds
do not, of themselves, constitute mutilation. Mutilation is intentional mayhem that goes
beyond the act of killing. Browne v. State, 113 Nev. 305, 933 P.2d 187 (1997). The
majority's discussion of this aggravating factor is so superficial and incomplete that it is
hardly worth responding to. Under the incomplete definition of mutilation recited in the
majority any fatal gunshot to the head would be sufficient to constitute mutilation because,
clearly, any such wound would alter radically the brain of the victim so as to make [it]
imperfect. There is insufficient evidence of mutilation as an aggravator, and this, at the very
least, should have been recognized by the majority. This case calls for a new penalty hearing.
____________
113 Nev. 477, 477 (1997) State v. Koseck
THE STATE OF NEVADA, Appellant, v.
JOSHUA JAMES KOSECK, Respondent.
No. 27308
April 24, 1997 936 P.2d 836
Appeal from an order of the district court granting a motion to dismiss one count of a
criminal information. Fourth Judicial District Court; Elko County; Jack B. Ames, Judge.
In prosecution charging, in the alternative, sexual assault of a child under the age of 14
years, lewdness with a child under the age of 14 years or statutory sexual seduction, based on
the same alleged act of sexual intercourse, the district court granted motion to dismiss
lewdness count. State appealed. The supreme court held that state could charge sexual assault
and lewdness in the alternative.
Frankie Sue Del Papa, Attorney General, Carson City; Gary D. Woodbury, District
Attorney, Elko County, for Appellant.
Brian D. Green, Elko, for Respondent.
1. Criminal Law; Indictment and Information.
When defendant receives multiple convictions based on single act, supreme court will reverse redundant convictions that do not
comport with legislative intent; however, state is free to bring multiple charges based on single incident.
2. Indictment and Information.
Although lewdness statute expressly excluded from its purview acts constituting the crime of sexual assault, which would
preclude convictions for lewdness and sexual assault based on the same act, state could charge those crimes in the alternative. State
sought first to prove sexual assault, but if state failed to prove that sexual penetration occurred against victim's will or beyond her
ability to resist or understand, it sought to prove lewdness, which was a felony even if the sex was consensual. NRS 201.230(1).
OPINION
Per Curiam:
The district court granted a motion to dismiss one count of a criminal information charging
lewdness with a child under the age of fourteen years. The court concluded that the state
could not charge appellant both with lewdness and with sexual assault based on the same act
of sexual penetration. We conclude that the court erred and therefore reverse and remand.
FACTS
On April 28, 1995, the state charged appellant Joshua James Koseck by information with
three alternative counts: count I, sexual assault of a child under the age of fourteen years, a
felony; count II, lewdness with a child under the age of fourteen years, a felony; or count III,
statutory sexual seduction, a gross misdemeanor. All three counts were based on the same
alleged act of sexual intercourse. Count III was not charged as a felony because Koseck was
between eighteen and twenty-one years of age at the time of the alleged offense. See NRS
200.368.
On June 12, 1995, Koseck moved to dismiss count II. On June 27, 1995, the day that trial
was to begin, a hearing was held outside the presence of the jury. The district court stated:
It appears to me that based upon the language of the lewdness statute concerning the
lewd and lascivious acts other than acts constituting the crime of sexual assault, that
the statutory scheme that we have in Nevada, under this type of scenario, would
require either that sexual assault be proven or if it's not proven, as far as consent, . . .
then it drops down to a gross misdemeanor under statutory sexual seduction and that
lewdness would not beit would not be proper to allege that in the information.
The court then granted the motion to dismiss count II and stayed the proceedings to allow the
state to appeal the matter to this court.
DISCUSSION
A person is guilty of sexual assault if he subjects another person to sexual penetration . . .
against the victim's will or under conditions in which the perpetrator knows or should know
that the victim is mentally or physically incapable of resisting or understanding the nature of
his conduct. NRS 200.366(1). A person who willfully and lewdly commits any lewd or
lascivious act, other than acts constituting the crime of sexual assault, upon or with the body,
or any part or member thereof, of a child under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of
that child, is guilty of a felony. NRS 201.230(1).
The district court concluded that a lewdness count cannot be based on an act of sexual
penetration because NRS 201.230(1) excludes acts constituting the crime of sexual assault
as grounds for the offense of lewdness. The court also cited Townsend v. State, 103 Nev. 113,
734 P.2d 705 (1987), in its written order.
In Townsend, this court stated that the crimes of lewdness with a child under the age of
fourteen and sexual assault are mutually exclusive."
with a child under the age of fourteen and sexual assault are mutually exclusive. Id. at 120,
734 P.2d at 710. This statement is correct in its proper context, but in light of our holdings in
Jenkins v. District Court, 109 Nev. 337, 849 P.2d 1055 (1993), and Albitre v. State, 103 Nev.
281, 738 P.2d 1307 (1987), we conclude that the district court erred in dismissing the
lewdness count in this case.
[Headnotes 1, 2]
When a defendant receives multiple convictions based on a single act, this court will reverse redundant convictions that do not
comport with legislative intent.
1
Albitre, 103 Nev. at 283, 738 P.2d at 1309. However, the state is free to bring multiple charges based
on a single incident. Jenkins, 109 Nev. at 340-41, 849 P.2d at 1057 (emphasis added). The lewdness statute expressly excludes from its
purview acts constituting the crime of sexual assault. NRS 201.230(1). Thus, multiple convictions for lewdness and sexual assault based
on the same act would not comport with legislative intent and would be unlawful under Albitre and Jenkins; however, multiple alternative
charges are not unlawful.
If the alleged victim in this case had been fourteen years of age or older, lewdness could not be charged since it applies only to victims
under fourteen. But the state alleges that the victim was under fourteen. The state is not seeking to convict Koseck of both sexual assault
and lewdness for the same act, which NRS 201.230(1) forbids. It seeks first to prove sexual assault, which requires proof beyond a
reasonable doubt that Koseck sexually penetrated the victim against her will or when he knew or should have known that she was incapable
of resisting or understanding the nature of the conduct. In case the state fails to prove that sexual penetration occurred against the victim's
will or beyond her ability to resist or understand, it seeks to prove lewdness, which is a felony even if the sex was consensual. As a final
alternative, it seeks to prove statutory sexual seduction, a gross misdemeanor due to Koseck's age. We conclude that these alternative
charges are lawful.
Townsend cited Martin v. Sheriff, 88 Nev. 303, 496 P.2d 754 (1972), for the proposition that lewdness and sexual assault are
mutually exclusive crimes. Townsend, 103 Nev. at 120, 734 P.2d at 710. In Martin, the state charged Martin with rape and with
lewdness.
__________

1
On the other hand, where two offenses constitute the same offense for double jeopardy purposes, double jeopardy will not be
violated by separate sentences for those two offenses following a single trial, if it appears that the legislature intended separate
punishments. Talancon v. State, 102 Nev. 294, 301, 721 P.2d 764, 769 (1986).
with lewdness. Martin, 88 Nev. at 304, 496 P.2d at 754. This court concluded that there was
sufficient evidence at the preliminary hearing to establish probable cause for the rape charge
but that the magistrate erred in binding Martin over on the lewdness charge. Id. at 306, 496
P.2d at 755. We stated that rape and lewdness are rendered mutually exclusive by the
language of NRS 201.230(1).
2
Id. It is clear that both charges against Martin were based on a
single act and were not pleaded in the alternative. We conclude therefore that the result in
Martin was correct and that sexual assault and lewdness are mutually exclusive insofar as
they cannot both lead to convictions based on the same act. However, Martin does not apply
to this case, where the charges have been pleaded in the alternative.
We conclude that neither Martin nor Townsend precludes the state from charging sexual
assault and lewdness as alternative counts. NRS 201.230(1) does not exclude acts
constituting sexual penetration from its purview, as Koseck claims and the district court
apparently concluded. It excludes acts constituting the crime of sexual assault. As
discussed, this language prevents the prosecution from obtaining convictions for both
lewdness and sexual assault based on the same act, but not from charging both offenses in the
alternative.
CONCLUSION
We conclude that the district court erred in dismissing count II. We therefore reverse the
district court's order and remand for further proceedings consistent with this opinion.
__________

2
At that time, the pertinent language of NRS 201.230(1) referred to any lewd or lascivious act, other than acts constituting the crime
of rape and the infamous crime against nature. Martin, 88 Nev. at 305 n.1, 496 P.2d at 755 n.1.
____________
113 Nev. 481, 481 (1997) State, Dep't Mtr. Veh. v. Paul
THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC
SAFETY, Appellant, v. JENNIFER JEAN PAUL, Respondent.
No. 26846
SAFETY, Appellant, v. TITO MARTINEZ a/k/a HERMOGENES MARTINEZ-DIAZ,
Respondent.
No. 26960
April 24, 1997 936 P.2d 834
Appeals from orders of the district court granting respondents' petitions for judicial review
and reversing the revocation of respondents' drivers' licenses. Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski and Sally L. Loehrer, Judges.
Drivers petitioned for review of revocation of their drivers' licenses for drunk driving
offenses. The district court granted petitions and reversed. Department of Motor Vehicles and
Public Safety (DMV) appealed. The supreme court held that revocation of driver's license for
multiple drunk driving offenses within seven-year period is based on dates of driver's drunk
driving violations within the seven-year period, not upon dates of resulting convictions.
Frankie Sue Del Papa, Attorney General, Bridget A. Branigan, Laurel A. Duffy, and
Matthew T. Dushoff, Deputy Attorneys General, Carson City, for Appellant.
John G. Watkins, Las Vegas, for Respondent Jennifer Jean Paul.
Eva Garcia-Mendoza and Elena Martinez, Las Vegas, for Respondent Tito Martinez.
Automobiles.
Revocation of driver's license for multiple drunk driving offenses within seven-year period is based on fates of driver's drunk
driving violations within the seven-year period, not upon dates of resulting convictions. NRS 483.460(1).
OPINION
Per Curiam:
Respondents were arrested and convicted for drunk driving on multiple occasions.
Respondent Paul was arrested on June 4, 19S5, March 17, 19SS, and January 1, 1992, and
was convicted of DUI under NRS 4S4.3791 on November 1, 19S5, August 9, 19SS, and
May 6, 1993, respectively.
1985, March 17, 1988, and January 1, 1992, and was convicted of DUI under NRS 484.379
1
on November 1, 1985, August 9, 1988, and May 6, 1993, respectively. Respondent Martinez
was arrested on May 8, 1986, and March 3, 1993, and was convicted of DUI under NRS
484.379 on May 29, 1986, and November 22, 1993. After receiving the record of Paul's third
conviction and Martinez's second conviction, the Department of Motor Vehicles (DMV)
revoked Paul's driver's license for a period of three years pursuant to NRS 483.460(1)(a)(2)
and Martinez's driver's license for a period of one year pursuant to NRS 483.460(1)(b)(5).
2
On appeal, hearing officers upheld the license revocations. The district court subsequently
granted respondents' petitions for judicial review and reversed the revocation of respondents'
licenses. In its orders, the district court concluded that the revocations were improper because
respondents' convictions for their drunk driving offenses (on which their license revocations
were based) did not fall within the seven-year period articulated in NRS 483.460. These
appeals followed.
The DMV contends that the district court erred in concluding that the revocation of a
driver's license for drunk driving incidents within the seven-year period articulated in NRS
483.460(1) is based on the dates of the convictions, not upon the dates of the underlying
violations of NRS 484.379. NRS 483.460(1) provides that upon receiving a record of a
driver's conviction, the DMV must revoke his or her driver's license for a period of one year if
the offense is "[a] second violation within 7 years of NRS 4S4.379," and for a period of
three years if the offense is "[a] third or subsequent violation within 7 years of NRS
4S4.379."
__________

1
NRS 484.379 provides in pertinent part:
1. It is unlawful for any person who:
(a) Is under the influence of intoxicating liquor;
(b) Has 0.10 percent or more by weight of alcohol in his blood; or
(c) Is 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,
to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access.

2
1. Except as otherwise provided by statute, the department shall revoke the license, permit or privilege of any driver upon
receiving a record of his conviction of any of the following offenses, when that conviction has become final, and the driver is not
eligible for a license, permit or privilege to drive for the period indicated:
(a) For a period of 3 years if the offense is:
. . . .
(2) A third or subsequent violation within 7 years of NRS 484.379.
(b) For a period of 1 year if the offense is:
. . . .
(5) A second violation within 7 years of NRS 484.379 and the driver is not eligible for a restricted license during any
of that period.
(Emphasis added.)
the offense is [a] second violation within 7 years of NRS 484.379, and for a period of three
years if the offense is [a] third or subsequent violation within 7 years of NRS 484.379.
(Emphasis added.) Under the plain language of the statute, therefore, the revocation of a
driver's license is based on the number of drunk driving violations within seven years,
regardless of the dates of the convictions for those violations. See Phipps v. State, 111 Nev.
1276, 1280, 903 P.2d 820, 823 (1995) (concluding that state must prove that prior offenses
fall within seven-year period to enhance punishment for DUI under NRS 484.3792);
Pfohlman v. State, 107 Nev. 552, 554, 816 P.2d 450, 450-51 (1991) (ruling that offenses, not
convictions, must occur within seven-year period to enhance punishment under NRS
484.3792).
The purpose of NRS 483.460 is to protect the public from irresponsible drivers, not to
reward drunk drivers for delayed convictions. Yohey v. State, Dep't Motor Vehicles, 103
Nev. 584, 587, 747 P.2d 238, 240 (1987). In Yohey, we stated that one of the factors for
revocation of a driver's license for one year under NRS 483.460(1)(b)(5) was that the records
received by the DMV show that the driver was convicted twice within seven years. Id. at
586, 747 P.2d at 239 (emphasis added). It appears, therefore, that the district court was
understandably misled by our language in that opinion. Although we implicitly recognized in
Yohey that violations of NRS 484.379 do not give rise to license revocation unless they result
in convictions, Yohey did not address the issue presented in these appeals or whether the
seven-year period articulated in NRS 483.460 is measured by the dates of the offenses or the
dates of the subsequent convictions. Instead, Yohey resolved the issue of whether a justice's
court's treatment of a second conviction as a first offense was binding on the DMV in a
subsequent administrative revocation proceeding. Accordingly, our discussion in Yohey was
not intended to prevail over the plain language of NRS 483.460(1) and is not dispositive of
the issue raised in these appeals.
We conclude that the revocation of a driver's license pursuant to NRS 483.460(1) is based
on the dates of a driver's violations of NRS 484.379 within a seven-year period, not upon the
dates of the resulting convictions. Thus, we conclude that the district court erred in granting
respondents' petitions and reversing the revocations of their drivers' licenses. Accordingly, we
reverse the orders granting respondents' petitions and remand these cases to the district court
with instructions to reinstate the administrative revocation of respondents' drivers' licenses
pursuant to NRS 483.460(1)(a)(2) and (1)(b)(5).
____________
113 Nev. 484, 484 (1997) Colon v. State
MICHELLE COLON a/k/a MICHELLE WHITE, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 26617
April 24, 1997 938 P.2d 714
Appeal from a judgment of conviction, pursuant to a jury trial, of two counts of selling
methamphetamine. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
The supreme court, Rose, J., held that: (1) evidence was sufficient to establish that
defendant acted as seller, rather than procuring agent, when she obtained methamphetamine
for undercover police officer; (2) admission of evidence that defendant knew of house where
marijuana was being grown was not plain error; (3) evidence that man in defendant's
apartment attempted to buy marijuana from defendant was relevant to defendant's procuring
agent defense; (4) evidence that defendant bailed person arrested for possession out of jail
was relevant; (5) defense counsel opened door to prosecutor's comment on defendant's failure
to cooperate with police following her arrest; and (6) even if prosecutor's statement during
closing argument that undercover police officer's assertions were uncontroverted was
understood to be referenced to defendant's failure to testify, reversal was not required.
Affirmed.
Steven G. McGuire, State Public Defender, and Timothy O'Toole, Appellate Deputy Public
Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney,
and Melanie L. F. Bruketta and Anne M. Langer, Deputy District Attorneys, Carson City, for
Respondent.
1. Drugs and Narcotics.
Evidence was sufficient to establish that defendant acted as seller, rather than procuring agent, when she twice obtained
methamphetamine for undercover police officer; on both occasions, defendant appeared to have used some of the methamphetamine
she procured for officer.
Procuring agent defense does not apply when defendant obtains drugs from person with whom defendant is associated in selling
drugs.
3. Criminal Law.
Defense of entrapment requires that state lure someone into committing crime he or she had no predisposition to commit.
4. Criminal Law.
Evidence of predisposition to sell controlled substance will negate entrapment defense.
113 Nev. 484, 485 (1997) Colon v. State
5. Criminal Law.
Admission of evidence is within trial court's sound discretion. Supreme court will respect trial court's determination as long as it is
not manifestly wrong.
6. Criminal Law.
Admission of evidence that defendant knew of house where marijuana was being grown was not plain error in prosecution for
selling methamphetamine. Defendant's knowledge of marijuana was arguably relevant to proving her role as seller of drugs and to
explain why undercover police officer originally approached defendant seeking information on marijuana. NRS 48.045(2).
7. Criminal Law.
Evidence that man in defendant's apartment attempted to buy marijuana from defendant was relevant to defendant's procuring
agent defense in prosecution for selling methamphetamine. Evidence showed that defendant on her own brought up possible
methamphetamine sale.
Evidence that defendant bailed person arrested for drug possession out of jail was relevant in prosecution for selling
methamphetamine to show that defendant was not simply procuring agent, but obtained drugs from person with whom she was
associated.
9. Criminal Law.
Evidence that defendant had bailed person arrested for drug possession out of jail was not evidence of collateral offense requiring
Petrocelli hearing before its admission; evidence was admissible because state was required to disprove procuring agency defense in
that defendant had predisposition to sell controlled substances.
10. Criminal Law.
Prosecution is forbidden to comment at trial upon defendant's election to remain silent after being arrested. U.S. Const. amend. 5.
11. Criminal Law.
Prosecution's comment on defendant's postarrest silence is harmless beyond reasonable doubt and does not require reversal if
prosecution made only passing reference to defendant's postarrest silence or if there is overwhelming evidence of guilt. U.S. Const.
amend. 5.
12. Criminal Law.
Defense counsel opened door to evidence of and comment on defendant's failure to cooperate with police following her arrest by
raising issue of state's failure to prosecute person who allegedly supplied defendant with methamphetamine. U.S. Const. amend. 5.
13. Criminal Law.
Even if prosecutor's statements during closing argument that undercover police officer's assertions were uncontroverted were
understood to be reference to defendant's failure to testify in narcotics prosecution, reversal was not required; references were indirect,
overwhelming evidence of defendant's involvement in drug transactions was presented, and defendant's testimony was not in issue
because she did not testify. U.S. Const. amend. 5.
OPINION
The State charged Michelle Colon (Colon) with selling methamphetamine to narcotics
investigator Robert Meyers (Meyers) on two occasions.
113 Nev. 484, 486 (1997) Colon v. State
on two occasions. In both transactions, Meyers requested the drugs, Colon took the money
from Meyers, procured the drugs from her source, and gave the drugs to Meyers. Colon
asserted the procuring agent defense and claimed that she received none of the drugs or
money from the transactions. However, because the State established that on each occasion
Colon took and apparently used a portion of the methamphetamine, the jury was at liberty to
then reject the procuring agent defense. We affirm the two drug sales convictions because
there was evidence to establish that Colon was not acting solely for Meyers, the recipient, in
these transactions.
FACTS
Meyers was a narcotics investigator for the Nevada Division of Investigations. He was not
a drug recognition expert, but was familiar with recognizing persons under the influence of
narcotics. An informant introduced Meyers to Colon at Colon's apartment in Carson City on
July 22, 1993. Also present at the apartment was Colon's boyfriend, Jim. The informant asked
Colon to obtain for Meyers a sixteenth of an ounce of methamphetamine for $100. Colon
agreed and tried unsuccessfully to contact a source by telephone. Meyers then drove Colon
and the informant to the Indian Hills area to obtain the drug. Colon told Meyers that she had
recently bailed her source out of jail after he had been arrested for possession of
methamphetamine. She had been dealing with this source for some time. In looking for the
source, Colon had Meyers drive to a house where she said a quantity of marijuana was being
grown indoors. Meyers testified that police later arrested the owner of the house.
Colon finally located her source, who told her to meet him alone at a grocery store. As
Meyers drove Colon to the grocery store, they saw Jim walking, and Colon said that she had
sent him to get some marijuana for some other people. According to Meyers, Jim was
walking right towards the location where the marijuana grow was. When Meyers dropped
Colon off at the store, Colon said that she wanted a pinch of the methamphetamine.
1
When he
indicated some reluctance, she said that if she did not get a pinch, she would not get the
drug for him.
__________

1
This case involves the purchase and use of methamphetamine, a very dangerous and addictive illegal drug which the dissent has
categorized with astonishing naivete as an unprescribed mood-elevator. While elevation of mood is one effect of methamphetamine use,
other effects are confusion, depression, inability to sleep, convulsions, delusions, hallucinations, and delirium. These symptoms may
resemble those of paranoid schizophrenia. 3B Roscoe N. Gray, M.D. & Louise J. Gordy, M.D., LL.B., Attorneys' Textbook of Medicine
103.13(5) (3d ed. 1993). The state Board of Pharmacy has recognized the dangerousness of methamphetamine and has
113 Nev. 484, 487 (1997) Colon v. State
did not get a pinch, she would not get the drug for him. Meyers told her to do what she had to
do and gave her $100. He estimated that a sixteenth ounce of methamphetamine was selling
for $80 to $100 at that time. Meyers left the grocery store and picked Colon up a little later.
She produced some methamphetamine and said, Killer, this is killer. Smell it.' It appeared
to Meyers from a change in Colon's demeanor that she had ingested some of the
methamphetamine; she seemed happier, more active, and more talkative. He also thought she
had used some because the amount she gave him appeared to be quite a bit less than a
sixteenth ounce. She asked for another pinch, but he said that it was short already and that
maybe she could have more another time if he made a larger purchase. Colon told Meyers
that if he wanted more methamphetamine, her source could bring it to her apartment that
afternoon.
Meyers went to Colon's apartment again in mid-August of 1993 and tried to get more
information about the indoor marijuana in Indian Hills. Another man was present at that time,
and Meyers testified he wanted to obtain a half ounce of marijuana. Defense counsel objected
on the grounds that the testimony was hearsay and irrelevant character evidence. The district
court ruled that no hearsay had been presented and that the evidence was admissible under
NRS 48.045(2), which permits evidence of other bad acts to show intent, preparation, and
proof of a motive. Meyers testified that the man who was present left to use a pay phone to try
to locate some marijuana. Colon then asked Meyers if he wanted to buy more
methamphetamine. He said maybe later. Meyers left and was to return later that day to give
Colon and the man a ride downtown, but Meyers's supervisor did not allow him to return out
of a concern for safety.
Meyers went to Colon's apartment again on August 31, 1993, and asked about buying an
eighth ounce of methamphetamine, an eight-ball. Meyers testified that an eighth ounce
would be about seven grams and that the weight actually purchased is nearly always slightly
lighter. Colon said an eighth ounce would cost $200. Also present at the apartment were Jim,
Colon's sister, and two other men, Sam and Mike. Meyers returned later, and it appeared to
him that the people in the apartment had just ingested methamphetamine; Colon was much
more hyper than before. Jim told Meyers that the eight-ball would cost $225, and Meyers
agreed and gave Colon $240. He did not expect to get change. Colon left with Sam and did
not return for quite some time. After they returned, she took Meyers to a bedroom and handed
him some methamphetamine.
__________
classified the drug as a Schedule II narcotic. NAC 453.520. Schedule II drugs have a high potential for abuse, which may lead to severe
psychological or physical dependence. NRS 453.176.
113 Nev. 484, 488 (1997) Colon v. State
some methamphetamine. Meyers became upset because it was well short of an eight-ball.
When he asked if Colon had taken half of it, she got angry and left the room. Meyers asked
Sam if they had used half of it, and Sam said, Yes. Jim then came in and told Meyers that
he would make it right and that Meyers should deal with him from that point on. Meyers did
not get any of the $240 back.
Meyers returned to Colon's apartment in September but was not able to buy any drugs
from her. She was later arrested and charged with two felony counts of selling a controlled
substance.
On cross-examination of Meyers at the trial, defense counsel established that an eighth of
an ounce weighs about three and a half grams, not seven. Meyers also explained that the
amount of drugs purchased from street dealers was often less than the agreed upon amount
because the dealer often takes some of the drugs for personal use before handing them to the
buyer. Meyers admitted that the authorities had never arrested Colon's source or sources for
the methamphetamine and had never ascertained that Colon had kept any of the purchase
money provided to her by Meyers.
On redirect examination, the prosecutor asked why Meyers had agreed to some extent with
defense counsel that the investigation had failed. Meyers responded that
as far as failed, our goal is to start as high as we can and go up. If we have to start on
the bottomwhat we want to do is go up, meaning that we would arrest Ms. Colon and
give her the opportunity to tell us her source, and take me or another undercover agent
back to this source.
Q [PROSECUTOR] In fact, you guys did that, didn't you?
[DEFENSE COUNSEL]: Objection. I didn't open the door to post-arrest or
post-incarceration investigations. It hasn't been asked, and it's not relevant.
After a discussion sidebar, the prosecutor continued:
Q Investigator Meyers, let me ask the question again: In fact, you, you meaning
the Tri-Net Task Force, gave Ms. Colon the opportunity to cooperate, did you not?
A My understandingI was not present, but my understanding was
[DEFENSE COUNSEL]: Objection. There's no foundation as to him being present.
It's not relevant.
THE COURT: If he has no personal knowledge because of participation, then I am
sustaining the objection.
[PROSECUTOR] Who at the task force was involved in dealing with Michelle?
A I believe Investigator Heinrich, possibly Investigator VanDalinda.
113 Nev. 484, 489 (1997) Colon v. State
VanDalinda. Investigator Heinrich was. Investigator Howell was for sure. Supervisor
Milby was, I'm sure.
Q You do have knowledge then that there was follow-up, is what I'm getting at,
done with Michelle to try and get to her source; is that correct?
A That was my understanding, yes.
Colon did not appear for the second and final day of trial; no comment regarding her
absence was made to the jury before it rendered a verdict. Defense counsel did not object to
any of the jury instructions or offer any additional instructions.
In closing argument, the prosecutor asserted: If we couldn't get to her source, the fault lies
somewhere besides with the State . . . . He argued that there is no other evidence in this
case but that Michelle Colon sold these drugs to Investigator Meyers and that defense
counsel accepted Mr. Meyers's assertions about what Ms. Colon had said about the sequence
of events, about the drug transactions and the agreements and amounts. All of those things
were accepted. They were uncontroverted.
In his closing argument, defense counsel stressed to the jury that the investigation did not
result in the arrest or conviction of any of the people that were selling the drugs, but resulted
in the arrest of Michelle Colon, and in that regard, Michelle Colon is left holding the bag . . .
. He argued that Colon had procured and possessed the drugs but was not guilty of selling
them.
In final closing argument, the prosecutor said:
Are there facts which establish beyond a reasonable doubt that she sold drugs to
Investigator Meyers? Yes. Why?
She's an out-of-work addict. She's a person who needs to support her habit, her use.
How else is she going to do it, ladies and gentlemen? Where's the money going to come
from?
He also stated: She never denied using the methamphetamine on either occasion.
Jury instructions placed the burden on the State to prove beyond a reasonable doubt that
Colon was not a procuring agent. The jury found Colon guilty of two counts of sales of a
controlled substance. The district court sentenced her to two consecutive six-year prison
terms.
2

__________

2
The dissenting opinion states that this court is going in an unenlightened and socially counterproductive direction by affirming
Colon's conviction, the effect of which is that Colon will have to serve twelve years in jail. Setting aside the concerns voiced in the
dissenting opinion, we note that it is the function of the Legislature, not this court, to implement social policy and changes in the way drug
users are punished. Our function is to enforce the law as made by the Legislature when that law is clear and unambiguous, which we have
done in this instance.
113 Nev. 484, 490 (1997) Colon v. State
DISCUSSION
Whether the evidence was insufficient to prove that Colon was a seller, rather than procuring
agent, of the drugs
[Headnote 1]
In the case of Roy v. State, 87 Nev. 517, 489 P.2d 1158 (1971), we established the procuring agent defense when we held that it is
fundamental that a person cannot be found guilty of being a seller of narcotics when he or she has not acted for the supplier, but rather,
solely for the recipient. Id. at 519, 489 P.2d at 1159. In several cases we have reaffirmed this defense. See Dent v. State, 112 Nev. 1365,
929 P.2d 891 (1996); Love v. State, 111 Nev. 545, 893 P.2d 376 (1995); Paul Andre B., A Minor v. State, 108 Nev. 368, 830 P.2d 1344
(1992). In Love, we further explained the applicability of this defense:
Since Roy, we have established that the procuring agent defense in a prosecution for a sale of a controlled substance can be
maintained only if the defendant was merely a conduit for the purchase and in no way benefited from the transaction. Thus, if a
defendant receives part of the controlled substance involved in the transaction for his own use or any amount of money in
consideration for the transaction, the defense of procuring agency is not available.
Love, 111 Nev. at 548, 893 P.2d at 378. Therefore, we must examine the record to determine if there was any evidence to show that Colon
received part of the controlled substance for her own use or any money from the transactions.
Meyers testified that on July 22, 1993, before obtaining methamphetamine from her source, Colon demanded that she get a pinch of it.
She stated that if she did not get a pinch, she would not procure the drug. Meyers also testified to a change in Colon's demeanor after she
obtained the drug, which was consistent with her having used it. Finally, the amount of the drug was appreciably less than he had bargained
for, and according to Meyers this was consistent with a street dealer taking some for personal use. Meyers testified that on August 31, 1993,
he again received much less methamphetamine from Colon than he had paid her to obtain. When he confronted her and Sam, the man who
helped her obtain the drug, with the apparently missing methamphetamine, Sam admitted that he and Colon had used some of it. Defense
counsel did not object to evidence of Sam's out-of-court statement, and it was admissible against Colon as her coconspirator's statement,
pursuant to NRS 51.035(3)(e).
3
__________

3
NRS 51.035(3)(e) provides that a statement is not hearsay if it is offered against a party and is made by a coconspirator of a party
during the course and in furtherance of the conspiracy.
113 Nev. 484, 491 (1997) Colon v. State
[Headnote 2]
Meyers paid $240 and received no change in return, even though the price quoted was $225. It was reasonable for the jury to conclude
that Colon and her colleagues retained this overpayment. Furthermore, the procuring agent defense does not apply when the defendant
obtains drugs from a person with whom the defendant is associated in selling drugs. Hillis v. State, 103 Nev. 531, 536, 746 P.2d 1092,
1095 (1987). The State presented sufficient evidence that Colon was associated with the supplier in selling drugs in the first transaction.
[Headnotes 3, 4]
The dissent claims that Colon was entrapped into selling drugs to Meyers. The defense of entrapment requires that the state lure
someone into committing a crime he or she had no predisposition to commit. Hill v. State, 95 Nev. 327, 594 P.2d 699 (1979). However,
evidence of a predisposition to sell a controlled substance will negate the entrapment defense. Paul Andre B., 108 Nev. at 371, 830 P.2d at
1346. There was abundant evidence to show Colon's predisposition to sell, and this is probably why she did not raise the entrapment
defense at trial.
The record supports a finding that Colon sold, not merely procured, the drugs in question and that the jury had ample evidence to reject
the procuring agent defense.
Whether evidence was improperly admitted
[Headnote 5]
Colon claims that most of the evidence and argument presented by the State at trial was intended solely to impugn her character.
Colon's counsel did not object to most of the testimony and argument now challenged, and this court will only address the claimed errors if
they rise to the level of plain error. Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992). Admission of evidence is within the trial
court's sound discretion; this court will respect the trial court's determination as long as it is not manifestly wrong. Petrocelli v. State, 101
Nev. 46, 52, 692 P.2d 503, 508 (1985). We must examine the evidence and arguments complained of to see if they amounted to plain error.
[Headnote 6]
At several points in the trial, the State elicited testimony regarding a house in Indian Hills where marijuana was being grown. Defense
counsel objected only once, and the objection apparently regarded Meyers's conversation with another man regarding a possible marijuana
buy, not Meyers's reference to the indoor marijuana. The admission of this evidence was not plain or prejudicial error. Colon's knowledge
of the marijuana was arguably relevant to proving her role as a seller of drugs.
113 Nev. 484, 492 (1997) Colon v. State
arguably relevant to proving her role as a seller of drugs. The indoor marijuana was relevant
to explain why Meyers approached Colon in mid-August seeking information on marijuana
and to show that Colon brought up the subject of a methamphetamine sale without prompting
by Meyers. The district court also thought NRS 48.045(2) permitted the receipt of these facts
into evidence. The admission of this evidence was not plain error.
[Headnote 7]
Colon also argues that testimony regarding the attempted marijuana buy with the man at Colon's apartment was irrelevant to her case
and was used simply to prejudice her by showing that her friends engaged in drug deals. She argues that the prejudice was worsened by
reference to the safety concerns which prompted Meyers not to return and drive the man downtown. However, this evidence was relevant
to the procuring agent issue because it showed that Colon on her own brought up a possible methamphetamine sale. See Hill, 95 Nev. at
330, 594 P.2d at 701 (holding that evidence that defendant previously supplied marijuana rebutted procuring agent defense).
[Headnote 8]
Colon claims that the only reason the State introduced evidence that she bailed a person arrested for drug possession out of jail was to
show her bad character. However, the State showed that this person was Colon's supplier for the first drug transaction. The evidence was
therefore relevant to show that Colon was not simply a procuring agent, but obtained the drugs from a person with whom she was
associated in selling drugs. See Hillis, 103 Nev. at 536, 746 P.2d at 1095.
[Headnote 9]
Colon contends that the prosecutor also erred by introducing the evidence discussed above without seeking a ruling under Petrocelli v.
State, 101 Nev. 46, 692 P.2d 503 (1985). However, this evidence was clearly admissible because the State was required to disprove the
procuring agency and that Colon had a predisposition to sell controlled substances. See Love v. State, 111 Nev. 545, 551, 893 P.2d 376,
379 (1995); Paul Andre B., A Minor v. State, 108 Nev. 368, 371, 830 P.2d 1344, 1346 (1992). A Petrocelli hearing was not required, and
the prosecutor's comments on this evidence in closing argument were not error.
Whether the prosecutor improperly elicited evidence of and commented on Colon's election to remain silent
Colon contends that the State improperly commented on her right to remain silent by presenting evidence that she did not cooperate
with police after she was arrested and by arguing that her defense counsel had accepted Meyers's uncontroverted
assertions.
113 Nev. 484, 493 (1997) Colon v. State
her defense counsel had accepted Meyers's uncontroverted assertions.
Over objections by defense counsel, one of which was clearly sustained, the prosecutor in
this case elicited testimony from Meyers to the effect that after arresting Colon, police had
attempted without success to get her to cooperate and divulge the identity of her source for
methamphetamine. Defense counsel did not object to the following remarks made during
closing argument. The prosecutor argued: If we couldn't get to her source, the fault lies
somewhere besides with the State . . . . He also argued that there is no other evidence in this
case but that Colon sold the methamphetamine and that defense counsel accepted Meyers's
assertions and that they were uncontroverted. Finally, the prosecutor stated: She never
denied using the methamphetamine on either occasion.
[Headnotes 10, 11]
The prosecution is forbidden to comment at trial upon a defendant's election to remain silent after being arrested. Morris v. State, 112
Nev. 260, 264, 913 P.2d 1264, 1267 (1996). Such comment is harmless beyond a reasonable doubt and does not require reversal if the
prosecution made only passing reference to the defendant's post-arrest silence or if there is overwhelming evidence of guilt. Id. at 264, 913
P.2d at 1267-68.
[Headnote 12]
The State argues that defense counsel opened the door to evidence of and comment on Colon's failure to cooperate by raising the issue
of the State's failure to prosecute the person who supplied Colon with methamphetamine. While reference to her refusal to cooperate with
police may have prejudiced her in the eyes of the jurors and made them less likely to give her the benefit of any doubt in regard to the
selling charges, it was her counsel who raised the issue. It was not reversible error to admit such evidence in these circumstances.
[Headnote 13]
In addition, the prosecutor went further during closing argument and argued that the defense had accepted Meyers's assertions and that
those assertions remained uncontroverted. Colon argues that this was a clear reference to her failure to testify. However, it could also be a
reference to Colon's refusal to answer when asked by Meyers if she had used some of the drug. The State's informant was present at the first
transaction, and two of Colon's acquaintances were present at the second transaction. The prosecutor's reference to uncontradicted evidence
did not necessarily implicate only Colon's failure to testify, especially if Colon declined to subpoena these people. Even if the comments
were understood to be referring to Colon, they were indirect references; overwhelming evidence of Colon's
involvement in the drug transactions was presented, and Colon's testimony was not in issue since she did not
testify.
113 Nev. 484, 494 (1997) Colon v. State
were understood to be referring to Colon, they were indirect references; overwhelming
evidence of Colon's involvement in the drug transactions was presented, and Colon's
testimony was not in issue since she did not testify. As such, reversal because of these
comments is not warranted. See McCraney v. State, 110 Nev. 250, 256, 871 P.2d 922, 926
(1994).
CONCLUSION
The evidence showed that Colon used a portion of the drugs she obtained for the narcotics
investigator; therefore, she benefited from the transactions and did not act merely as a
procuring agent. The State had the burden of proving the drug sales and disproving the
agency defense beyond a reasonable doubt. The evidence that Colon knew of growing
marijuana, that she bailed a man arrested for drug possession out of jail, and that a man at her
apartment tried to obtain some drugs was admissible evidence necessary for the State to
establish its case; it was neither irrelevant character evidence nor evidence of collateral
offenses requiring a Petrocelli hearing before its admission. If any error was made by the
prosecutor in commenting on the failure to refute certain evidence, it was harmless beyond a
reasonable doubt.
4
Appellant's statement of the case in her opening brief strikes me as being a rhetorical but
still rather accurate portrayal of what this case is all about. Appellant's opening brief tells us
that Ms. Colon's conviction occurred in a familiar manner:
An actual criminal comes forward and offers to help manufacture sales charges against
a drug user in exchange for being allowed to escape accountability for [her] crimes;
Police agree to the deal, approach the targeted user and ask her to procure drugs;
Like all users, the target knows where to obtain drugs and complies with the request;
The addict is charged with being a drug dealer, and is convicted after an unfair trial
during which the State bombards the jury with a combination of conjecture, innuendo,
prior bad acts, and personal attacks; . . . . The State obtains another valuable statistic in
order to claim victory in the war on drugs.
__________

4
113 Nev. 484, 495 (1997) Colon v. State
Ms. Colon's principal argument
1
is that she was a procuring agent as a matter of law. This
is a classic case of a defendant's being a procuring agent rather than the seller. All that Ms.
Colon did was to buy drugs for an undercover police officer after he persistently urged her to
do so. After being importuned by the officer to obtain drugs for him, she finally decided to do
so as an accommodation to the officer, who had taken great pains to befriend her, solely for
the purpose of persuading her to buy drugs for him. Ms. Colon correctly argues that the
procuring agent defense was formulated for the purpose of preventing agents of the State
from going out of their way to make drug users into drug sellers by the device of leading drug
addicts into selling drugs to police officers. Ms. Colon also maintains that to condone the
State's actions in this case would defeat the very purpose of the procuring agent rule. She is
absolutely right.
As stated in Ms. Colon's brief, the State led Ms. Colon into a drug sale in the familiar
manner. It all started when Ms. Colon's co-tenant, one Cesar Bazzar, in jail facing drug
charges, told authorities that he would give them some incriminating evidence about a certain
methamphetamine user if they would give him favorable treatment. This was the start of an
intense police investigation of Ms. Colon, the purpose of which was to convict Colon of
selling rather than merely using drugs.
Michelle Colon is a rather pitiful drug addict who had become addicted to the use of
speed, methamphetamine. Her life history is a sad one. Because of severe child abuse, Ms.
Colon was forced to run away from home when she was only twelve years old. She got
married at fourteen and has three children. Ms. Colon has a low I.Q. and is borderline
mentally retarded. It was not very difficult for the undercover agent to lure her into getting
drugs for him; and it is clear that she would not have been involved in buying the drugs in
issue if she had not been enticed into it by Agent Robert Meyers.
__________

1
This case is riddled with error; however, this dissent deals principally with Ms. Colon's contention that she was a procuring agent and
not a seller, as a matter of law. I do not want to leave unmentioned, however, the fact that the State introduced evidence of a number of
prior, unsubstantiated bad acts on the part of Ms. Colon, without complying with Petrocelli and Armstrong procedures, and, more
importantly, the fact that the prosecutor commented freely on Ms. Colon's silence (i.e., the prosecutor's suggestion to the jury that by
declining to testify, Ms. Colon accepted Agent [Robert] Meyers' version of events), and the prosecutor's misleading comment that Agent
Meyers' testimony stood uncontroverted. Armstrong v. State, 110 Nev. 1322, 885 P.2d 600 (1994); Petrocelli v. State, 101 Nev. 46, 692
P.2d 503 (1985). In a case like this one, where conviction is necessarily based entirely upon whether Ms. Colon took an unobserved
pinch of the drugs she was procuring for Agent Meyers, these kinds of constitutional violations by the prosecution cannot be ignored and
certainly cannot be said to be harmless. I do not make this the main thrust of my dissent, however, because I believe that the majority's
decision constitutes a drastic and unhealthy erosion, if not elimination, of the procuring agent rule and that, consequently, my attention
should be directed principally to the majority's distortion of the rule.
113 Nev. 484, 496 (1997) Colon v. State
not very difficult for the undercover agent to lure her into getting drugs for him; and it is clear
that she would not have been involved in buying the drugs in issue if she had not been enticed
into it by Agent Robert Meyers.
Mr. Bazzar's willingness to betray his roommate to save his own skin initiated an intense
police investigation of Colon. Hours of surveillance and the use of sophisticated electronic
recording equipment were invested in trying to make a dope seller out of this retarded drug
user/addict. It will be obvious to anyone who takes the time to read this record that what this
mother of three needs is drug rehabilitation and not twelve years in prison at public expense.
After the police decided to use Mr. Bazzar to entice Ms. Colon into a drug-sales
conviction, they equipped Mr. Bazzar with a recording device in the hope that he could set up
Ms. Colon for some kind of drug sales charge. While wired-for-sound, Mr. Bazzar asked
his friend, Ms. Colon, if she would be able to get him a small amount of their drug of choice,
methamphetamine. Ms. Colon made some telephone calls but was unable to find anyone who
would provide Mr. Bazzar with the drug.
Unsuccessful in their attempt to use Mr. Bazzar to catch Ms. Colon in the act of obtaining
drugs for her friend, the police set up a sting operation in which an undercover police agent,
Agent Meyers, made the attempt to involve Ms. Colon in a drug transaction. Agent Meyers
was eventually successful in inducing Ms. Colon to drive around with him and Mr. Bazzar (in
an unmarked police vehicle) trying to find someone who would sell them a small quantity of
methamphetamine ($100.00 worth). On a July 22, 1993, dope-seeking caravan trio's attempt
was at first unsuccessful, but eventually Ms. Colon was able to locate, at a convenience store,
a person who had previously fed her addiction. She was then able to buy a small quantity of
the drug for Agent Meyers with the $100.00 that Meyers had given her.
Agent Meyers was not satisfied with this one transaction (perhaps because he realized at
that point that Ms. Colon was clearly acting only as an agent for him, buying drugs for him
and with his money). Agent Meyers no doubt realized that this transaction would not support
a sales charge (although the jury in this case did convict for sales based on this transaction).
Drug Agent Meyers' next attempt to set Ms. Colon up as a seller of drugs was ventured
on August 31, 1993, at which time Agent Meyers went to Bazzar's and Colon's apartment
with the intention of persuading Ms. Colon to procure for him a small quantity of
methamphetamine. Ms. Colon agreed to try to get Meyers some of the drug. Agent Meyers
left the apartment and came back in about one-half hour. When Agent Meyers returned, Ms.
113 Nev. 484, 497 (1997) Colon v. State
Ms. Colon agreed to go out and find some methamphetamine for her new friend, Drug Agent
Meyers. Agent Meyers gave $240.00 to Ms. Colon to make the purchase for him. Ms. Colon
returned to the apartment some time later and gave Agent Meyers his methamphetamine.
The two drug transactions outlined above present classic examples of the application of
the so-called procuring agent defense. The procuring agent defense was devised by the
courts to prevent the police from unjustifiably turning drug users into drug sellers in cases
like this one. The general idea is that one cannot and should not be found guilty of being a
seller when she/he has not acted for the supplier-vendor but solely for the buyer. Roy v.
State, 87 Nev. 517, 519, 489 P. 2d 1158, 1159 (1971). Drug users in this state are subject to
heavy penalties; but sellers are subject to much more severe penalties. It is simply unjust that
an addict be punished as a seller unless the addict is actually involved in selling drugs. Ms.
Colon might, possibly, have embezzled some of Agent Meyers' drugs, which he had entrusted
to her, but certainly Ms. Colon did not sell any drugs to anyone. If, for example, Ms. Colon
had sold her own methamphetamine to Agent Meyers, she would be guilty of a sales offense;
however, in this case, the drugs were not hers to sell, they were Agent Meyers' drugs. All Ms.
Colon was doing was taking Agent Meyers' money and acting as his agent in the purchase,
not sale, of drugs for Meyers from a third person. Until today, the courts have universally
recognized that such actions do not constitute a criminal sale of drugs.
To identify a defendant as a procuring agent and not as a drug seller the courts have
imposed the following requirements:
1. The person who does the buying must be an agent of the State.
2. The buyer must request the defendant to procure drugs.
3. The drugs must have been obtained from a third person and cannot be the
defendant's drugs.
4. The defendant must not have profited from the transaction.
All four of the foregoing requirements apply to the transactions in this case; still, after a
jury trial, Ms. Colon was convicted of two drug sales. One sales conviction arose out the
events on July 22, 1993, the day that she found someone at a convenience store who would
sell drugs to Agent Meyers. The other sales conviction was based on the August 31, 1993,
transaction in her apartment, after she had gone out to find someone who would provide
Agent Meyers with the drugs that he was seeking.
113 Nev. 484, 498 (1997) Colon v. State
It is very difficult to understand, given the clear application of the procuring agent defense
to these facts, how a conviction could have resulted in this case. It is obvious that Agent
Meyers was instigating Ms. Colon to buy drugs for him, and with Meyers' money. It is
obvious that the drugs were obtained from third persons (the one at the convenience store and
the person who provided the drugs for the sale in Ms. Colon's apartment). This being the case,
the only way that the State could make a drug user into a seller was to try to show in some
manner that Ms. Colon made a profit from the two transactions.
The State's position is that because Ms. Colon took a pinch of Agent Meyers' drug buy,
she was making a profit. First, it is quite clear that there is no proof beyond a reasonable
doubt that she did, in fact, pilfer any of Agent Meyers' drug. Second, if Ms. Colon did
pinch some of Agent Meyers' drugs, Ms. Colon cannot, in any sense of the word, be said to
have made a profit merely by taking an unauthorized sample of the drugs that Agent
Meyers bought.
The State's attempt to prove that Ms. Colon made some kind of profit in delivering Agent
Meyers' drugs to him took the form of testimony by Agent Meyers that in his opinion Ms.
Colon undoubtedly had cheated himhad not delivered what he had paid for. The State's
reasoning seems to be that if Agent Meyers did not receive the full amount that he bargained
for, then Ms. Colon must be the one who shortchanged him and, if she shortchanged him, she
therefore profited from the transaction. Agent Meyers expressed his opinion that Ms. Colon
had taken a pinch of the drug before delivering it to him, basing his opinion on an
assumption that drug-users usually do this. There is, of course, no actual evidence that she
shortchanged Agent Meyers in this manner; and the State's proof of this fact is based almost
entirely on Agent Meyers' speculation that he felt sure that she had taken a pinch. Agent
Meyers bolstered his opinion that Ms. Colon must have pilfered a pinch of his
methamphetamine by testifying that Ms. Colon appeared to be under the influence of
methamphetamine, not remembering, apparently, that Ms. Colon was almost always under the
influence.
The evidential problem with Agent Meyers' supposed failure to get the full measure of
what he paid for (if this were actually the casethere is no competent evidence that it is) is
that Agent Meyers admitted that weight is always short in almost any drug deal. If Agent
Meyers did in fact get less than he paid for, this would seem to be an expected state of affairs
more likely traceable to the supplier than to the courier. The evidence does not adequately
support the State's case against Ms. Colon. It is pure conjecture as to whether the villain
who "shorted" Agent Meyers was the supplier, other intermediaries, or Ms.
113 Nev. 484, 499 (1997) Colon v. State
conjecture as to whether the villain who shorted Agent Meyers was the supplier, other
intermediaries, or Ms. Colon herself.
As for Agent Meyers' opinion that Ms. Colon was under the influence of
methamphetamine, this is of very little probative value. Ms. Colon admitted that she was an
addict and that she used the drug on frequent occasions; she used methamphetamines in
Agent Meyers' presence, and the fact that she may or may not have been under the influence
at one of the times she delivered Agent Meyers' drugs (another matter of pure conjecture) is
virtually immaterialshe was frequently under the influence of this drug. Whether or not Ms.
Colon might have diverted a pinch of Agent Meyers' methamphetamine is a matter of pure
conjecture.
2
In the State's brief, it is argued that Investigator Meyers believed that Ms. Colon
took a pinch of the methamphetamines . . . . (My emphasis.) Agent Meyers' belief is not
enough to make a sales case against this retarded drug user.
As the majority opinion points out, the State has the burden of proving the drug sales and
disproving the drug agency defense beyond a reasonable doubt. The entire thrust of the
State's proof is, as put by the majority, that Colon took and apparently used a portion of the
methamphetamine. (Emphasis added.) It is possible but unlikely that Ms. Colon did steal
some of Mr. Meyers' drugs and did take the fateful pinch (defined as an amount that can be
compress[ed] between the tips of the finger and thumb. The Oxford Dictionary of English
Etymology, 681 (Oxford University Press 1966, 1983)). Such possibilities, obviously, do not
constitute proof beyond a reasonable doubt. I do not see how it can be said that the fact of her
stealing Meyers' drugs by taking a "pinch" was proven beyond a reasonable doubt; it is a
matter of pure conjecture, based on what the drug agent claimed was a custom and
practice among users of unprescribed methamphetamines.
__________

2
As a makeweight to its profit argument the State argued in its brief that Ms. Colon's cohort admitted they [sic] used the drugs that
they [sic] had been given. On checking the State's argument in this regard I do find that Agent Meyers gave some testimony about a
hearsay conversation that he had with an accomplice in this case (cohort, if you will), a man by the name of Sam. Agent Meyers was
talking with Ms. Colon, and with Sam, when he confronted Ms. Colon on the pinch subject in this manner: What did you do? Did you
take half of this?' According to Agent Meyers, this was Ms. Colon's reaction to his accusation: And she exploded. She left the room. She
justI don't recall if she said anything or not. But she left the room.
At this point Agent Meyers turned around to Sam, the accomplice, and said, What did you guys do? Did you use half of this.'
According to Agent Meyers, Sam did say Yes.' to that question. I suppose it could be argued, as the State does, that a cohort might
have admitted that he used some of the drug; but this is not credible evidence of Ms. Colon's having used the drug. In fact, when Ms. Colon
was accused, she exploded and left the room. This to me is strong evidence of denial rather than an admission that Ms. Colon had in fact
taken the infamous pinch. If there were any pinch[ing] in this case, it was done by Sam.
113 Nev. 484, 500 (1997) Colon v. State
pinch was proven beyond a reasonable doubt; it is a matter of pure conjecture, based on
what the drug agent claimed was a custom and practice among users of unprescribed
methamphetamines. Even if Ms. Colon did embezzle
3
some of the drugs that Agent Meyers
had entrusted to her, this certainly does not make her a seller of these drugs.
In sum, then, there is insufficient proof to show that Ms. Colon stole or embezzled Agent
Meyers' drugs, and even if she did, such pilfering cannot be called a profit. By adopting this
pinch
4
exception to the procuring agent rule, the court has abrogated the rule and
effectively eliminated the rule from our jurisprudence.
In many ways this is a fatuous case at both the trial and appellate level. It appears that tens
of thousands of dollars have been expended in a procrustean effort to bend a common drug
user-addict into being a drug trafficker.
5
Ms. Colon did not sell drugs; she did not sell
anything; she procured drugs for the benefit of Agent Meyers and possibly stole a "pinch"
of Agent Meyers' drugs on the way home.
__________

3
It is hard for me to understand how Ms. Colon's supposed pilfering of Agent Meyers' drug buy can be cast in terms of a profit to
Ms. Colon. In the ordinary sense, a profit is the excess over cost gained by an owner who sells goods in a sales transaction. This definition
is certainly not applicable here because the drugs were never owned by Ms. Colon. Title passed directly from the supplier to Agent Meyers
when the drugs were delivered to Meyers' courier, Ms. Colon. One might stretch the meaning of profit if Agent Meyers has said something
like, If you buy these drugs for me, I will give you a portion, but that certainly was not what happened here. The very worst that happened
here was that, without Agent Meyers' permission, Ms. Colon pinched (embezzled) a small portion of the drugs that Agent Meyers had
entrusted to her. How a courier's pilfering of goods purchased for, and belonging to, her principal can be called a profit is very puzzling to
me. This is like saying that the grocery delivery boy who pilfers out of a grocery bag is making a profit on the grocery sale. This is,
indeed, a strange case.

4
Anent to our presently announced pinch rule, I would note that a pinch is, by definition an insubstantial or negligible quantity. It
is hard for me to visualize just how much a pinch of a sixteenth of an ounce of powder might be, but it cannot be very much. If, as the
maxim goes, the law is not concerned with trifles, it should not concern itself with whether Ms. Colon did or did not steal this
twelve-years-in-prison pinch. Still, if the majority insists on calling theft of a pinch a profit and that such a theft or embezzlement
turns Ms. Colon from a drug user into a drug seller, it is clear to me that the procuring agent defense is a thing of the past. Anytime there is
a drug transaction now, the drug agent will simply come into court and say that procuring agents always sample the wares and that,
therefore, they must have stolen some of the drugs. Under our new pinch rule, a procuring agent who snitches a pinch of the drug
agent's purchase somehow becomes a seller instead of a mere thief.

5
This case is an excellent example of the present need for a shift in anti-drug strategy and a move away from the kind of pursuit of
nonviolent offenders that we witness in this case. The long-term incarceration of drug users who commit essentially victimless crimes is
clogging our legal system
113 Nev. 484, 501 (1997) Colon v. State
drugs; she did not sell anything; she procured drugs for the benefit of Agent Meyers and
possibly stole a pinch of Agent Meyers' drugs on the way home. By pretense and artificial
device unknown to the jurisprudence of any other state, this court has created a novel pinch
rule and has done away with the traditional and well-supported procuring agent defense. All
of this, in my opinion, is very ill-advised and contrary to the best interest not only of the
people of this state but contrary to the interest and ends of law enforcement.
I see the consequence of the majority opinion to be such an erosion of the procuring agent
defense as to encourage drug enforcement agents to enhance their drug sales conviction
stats by targeting relatively harmless addicts and sending them to prison for long terms. I
see every case in which an addict is coaxed into obtaining drugs for an undercover agent as
turning into a long-term prison, drug sales transaction rather than being what it is, a
possession case. All the State will need for a sales conviction in the future is the opinion of
the undercover agent that addicts usually take a sample of the drugs they are procuring and
that, therefore, a profit is made and a drug sales conviction is warranted in every case.
It seems to me that the court's decision today works to the disadvantage of law
enforcement and, thus, to the disadvantage of us all. If the procuring agent defense is going to
be eroded in this fashion, we are bound to see more and more cases of the kind that we are
witnessing here. We will be seeing the win-loss statistics of the war on drugs artificially
appear to be highly favorable to the good guys as long-term sentences are imposed on
persons who are not involved in the marketing of drugs but only, sadly, are addicted to their
use.
Today we send this mother of three off to prison because she is suspected of stealing a
pinch, a mite, from Agent Meyers' drug buy. We seem to have lost all sense of proportion.
At a time when some enlightenment seems to be on the horizon, when, in the urban areas we
are moving toward education and drug courts as a way of dealing with drug addicts, the
authorities in the First Judicial District and this court are going in the opposite direction. Even
as this conviction stands, I hope that some readers of this dissent will see the light and see
how inherently unjust and how socially counterproductive it is to send this retarded mother
of three off to prison for twelve years because she has allowed herself to become
addicted to the use of unprescribed mood-elevators.
__________
and overcrowding our prisons and jails. Most of our criminal cases involve drug-user related crimes. If we could bridle our intemperate
rage to punish and involve addicts like Ms. Colon in the penal system only when other measures fail, we would have a lot more time and
attention to devote to the real criminals, the rapists, robbers, murderers and for-real drug traffickers.
113 Nev. 484, 502 (1997) Colon v. State
socially counterproductive it is to send this retarded mother of three off to prison for twelve
years because she has allowed herself to become addicted to the use of unprescribed
mood-elevators.
____________
113 Nev. 502, 502 (1997) Bratcher v. City of Las Vegas
DEBORAH BRATCHER, Appellant, v. CITY OF LAS VEGAS; LAWRENCE D.
CANARELLI; GOWAN PROPERTIES, INC., and AMERICAN WEST HOMES, INC.,
Respondents.
No. 27508
April 24, 1997 937 P.2d 485
Appeal from an order granting respondents' motion to dismiss. Eighth Judicial District
Court, Clark County; A. William Maupin, Judge.
Landowner sued city and developers seeking to rescind annexation of her property by city
and to collect damages, claiming no notice of annexation petition. The district court
concluded landowner was bound by language of sewer agreement listed in title insurance
report by which her predecessors in interest agreed to annexation, and dismissed claims.
Landowner appealed. The supreme court held that: (1) sewer agreement granted city
discretionary authority to annex property but did not authorize annexation by summary
procedure; (2) only document binding on landowner at time of annexation was sewer
agreement; (3) 30-day statutory limit did not apply where landowner challenged summary
annexation; and (4) forgery claim based on signing second annexation petition failed as
petition itself was not false document.
Kossack Law Offices, Las Vegas, for Appellant.
Keefer, O'Reilly, Ferrario & Eskin, Las Vegas; Bradford R. Jerbic, City Attorney and Val
Steed, Chief Civil Deputy City Attorney, Las Vegas, for Respondents.
1. Municipal Corporations.
Sewer agreement that granted city discretionary authority to annex landowner's property did not, standing alone, enable city to
lawfully invoke summary annexation procedures. Sewer agreement stated that city could annex property in accordance with then
applicable laws, and applicable laws required long form annexation procedure because sewer agreement provision that city could
annex property was not equivalent of annexation petition signed by all owners of record as required for
summary annexation procedures.
equivalent of annexation petition signed by all owners of record as required for summary annexation procedures. Although city could
have annexed property described in sewer agreement even in the absence of approval of majority of landowners, use of summary
procedure denied landowner statutory right to attempt to persuade city council not to pass ordinance and to negotiate service plan.
NRS 268.597.
Thirty-day statutory limit to apply to district court for order staying effectiveness of annexation ordinance does not apply to where
landowner challenges summary annexation, and limitation provision applies only to annexations made via formal long form
annexation procedure. NRS 268.604.
3. Equity.
Where it is determined that statute of limitations has not run on a claim, laches will apply only under especially strong
circumstances.
Delay in challenge to annexation ordinance was not unreasonable where landowner, who was unaware of summary annexation
proceedings, filed complaint within 30 days of receiving copy of annexation petition in which somebody else listed her land as part of
territory to be annexed, and even though it may be burdensome for city to reannex land by formal procedures, it was not inequitable to
allow landowner's claim to proceed.
5. Forgery.
Forgery statute did not apply in claim by landowner that developers committed forgery by signing annexation petition as owners of
her property as annexation petition itself was genuine, notwithstanding alleged false statements contained therein. NRS 205.090.
6. Forgery.
Forgery involves false document, not misstatements of fact within a document. NRS 205.090.
OPINION
Per Curiam:
Deborah Bratcher (Bratcher) sued the City of Las Vegas (the City) and developers
Lawrence Canarelli (Canarelli), Gowan Properties (Gowan), and American West Homes
(American West), seeking to rescind the annexation of her property by the City and to collect
damages from the developers. Bratcher claimed that she had no notice of the annexation
petition that the developers filed with the City which included her property; however,
Bratcher had knowledge of a sewer connection agreement (sewer agreement) listed in her title
insurance report which provided that the City may annex certain property, including the
property now owned by Bratcher. The district court concluded that Bratcher was bound by the
language of the sewer agreement, by which her predecessors in interest had agreed to
annexation in return for sewer service, and dismissed Bratcher's claims.
FACTS
In November of 1991, Gowan owned real property in the vicinity of Ft. Apache Drive and
Gowan Road in Clark County, Nevada. This property was outside, but adjacent to, the Las
Vegas city limits. On November 13, 1991, Gowan entered into the sewer agreement with the
City to obtain services for this property. Gowan's president, Canarelli, signed the sewer
agreement on Gowan's behalf. Pursuant to the sewer agreement, the City agreed to provide
sewer services to Gowan's property and Gowan agreed that the City may annex said
described real property into its corporate boundaries as soon as it may legally do so in
accordance with the then applicable laws. The sewer agreement further provided that it was
binding upon the heirs, legal representatives, successors and assigns of Gowan. On the
same day, Canarelli signed a Petition for Annexation (1991 petition) covering the same
property to which the sewer agreement applied.
The sewer agreement and 1991 petition were recorded with the Clark County Recorder on
February 7, 1992. The sewer agreement and the 1991 petition described the property to which
they applied and referred to EXHIBITS A' AND B' (ATTACHED). Bratcher's lot was
part of the property described in Exhibit B. Exhibit A was filed on the same day as the sewer
agreement and the 1991 petition (February 7, 1992); Exhibit B was not filed until August 14,
1992, at which time the sewer agreement was re-recorded with Exhibits A and B. For
unknown reasons, Exhibits A and B were not attached to the 1991 petition. Apparently, the
re-recorded sewer agreement with Exhibits A and B attached was filed in a different
recording book than that in which the 1991 petition had been filed with the original sewer
agreement that just had Exhibit A (which did not include Bratcher's property description)
attached to it.
American West purchased
1
the property from Gowan and subdivided the property into
individual single family homes and lots. Bratcher bought one of these lots from American
West and closed and recorded the deed on August 4, 1993, over one year after the 1991
petition and sewer agreement had been filed, and almost a year after the filing of Exhibit B.
Prior to closing, Bratcher had a title search performed, which listed the sewer agreement as an
encumbrance against the lot she planned to purchase. According to Bratcher, although she
had notice of the sewer agreement before she purchased her lot, she had no notice of any
impending annexation; she was not aware of the 1991 petition, presumably because
Exhibit B, which described her property, was never attached to the 1991 petition and the
1991 petition was not filed with the re-recorded sewer agreement which did have
Exhibits A and B attached.
__________

1
We find nothing in the record memorializing this alleged purchase. Moreover, there are indices that Canarelli was the president of
American West, in addition to Gowan.
annexation; she was not aware of the 1991 petition, presumably because Exhibit B, which
described her property, was never attached to the 1991 petition and the 1991 petition was not
filed with the re-recorded sewer agreement which did have Exhibits A and B attached.
Accordingly, Bratcher alleges that she bought the property from American West in reliance
that the property was outside the City limits and in Clark County where she would enjoy
lower property taxes.
On August 24, 1993, acting as president of both Gowan and American West, Canarelli
filed a second Petition for Annexation (1993 petition). Included in this second petition was
all of the property described in Exhibits A and B attached to the sewer agreement and
referenced in the 1991 petition, along with additional acreage in the Ft. Apache Drive
vicinity. The 1991 petition with Exhibits A and B encompassed approximately 97 acres,
whereas the 1993 petition covered approximately 360 acres. According to Canarelli, Gowan,
and American West (collectively the developers), the only reason for filing the 1993
petition was to add property not covered by the 1991 petition (an additional 260 plus acres).
Conversely, Bratcher contends that the developers negligently or intentionally breached a
duty owed to her by committing forgery in representing that they owned her lot as of August
24, 1993, three weeks after she had purchased her lot from American West, with the intent to
deny her the opportunity to contest or negotiate the terms of the annexation of her property by
the City. However, according to the City, it never believed that the developers were claiming
ownership of Bratcher's lot in the 1993 petition, but assumed that the developers were merely
consolidating the 1991 petition with the additional land to be annexed (which was still owned
by the developers and several other individuals/entities who signed the 1993 petition) in the
1993 petition. On February 11, 1994, the city council passed an ordinance annexing the 360
acres described in the 1993 petition to the City. The 1993 petition included the land described
in the 1991 petition, which referred to Exhibit B, and Exhibit B included the lot purchased by
Bratcher in 1993.
There are two alternative annexation procedures. Where unanimous property owner
consent to annexation has not been obtained, the formal or long form procedure set forth in
NRS 268.578 through 268.596 must be followed.
2
However, where all owners of the
property to be annexed have signed an annexation petition, the alternate summary or
"short form" procedure found in NRS 26S.597 may be invoked.
__________

2
The statutory long form provisions include the right to protest the annexation (NRS 268.572(5) and 268.586(2)); the right to a
public hearing on the issue within certain prescribed time limits (NRS 268.584(2)); the right (as a record owner of property in the territory
to be annexed) to receive notice of the hearing through certified mail (NRS 268.584(3) and
owners of the property to be annexed have signed an annexation petition, the alternate
summary or short form procedure found in NRS 268.597 may be invoked. NRS 268.597
provides:
As an alternative to the procedures for annexation set forth in NRS 268.578 to
268.596, inclusive, the governing body of a city may annex territory which meets the
requirements of subsection 2 of NRS 268.580 [(i.e., contiguity with the City and not
within another town or city's boundaries)] if all of the owners of record of individual
lots or parcels of land within the area sign a petition requesting the governing body to
annex the area to the city. If the petition is accepted by the governing body, the
governing body may proceed to adopt an ordinance annexing the area and to take such
other action as is appropriate to accomplish the annexation.
(Emphasis added.)
Canarelli/Gowan signed the 1991 petition, which referenced Bratcher's future lot, along
with the sewer agreement which granted the City the right to annex that same land and which
was binding on future purchasers; all owners of the additional land referenced in the 1993
petition had also agreed to annexation. The City followed the summary annexation procedure,
believing that 100% of the ownership of the parcels included in the area had signed
annexation petitions. Bratcher asserts that she did not learn of the annexation of her property
until she received notice of a property tax increase from the Clark County Treasurer, dated
January 23, 1995. Bratcher claims that her taxes increased by $285.62 a year as a result of
annexation and that over the thirty-year life of her mortgage, the increase will cost her a total
of $8,568.60.
On March 27, 1995, Bratcher filed a complaint against the City seeking recision of the
annexation of her property. She contended that because she did not sign the 1993 petition, the
City had erroneously followed the short form procedure, denying her due process and
statutory rights set forth in the long form annexation procedure. The complaint also set
forth claims against the developers, alleging that they negligently or intentionally breached
their duty to file true documents with the City with the intent to defraud the body politic
(referring to the filing of the 1993 petition describing Bratcher's lot).
__________
268.586(3)); the right to be heard at the public hearing (NRS 268.590(2)); the right to have a service plan adopted with respect to the City's
provision of police and fire protection, street maintenance and extension, garbage collection, and other like municipal services (NRS
268.578(4)).
1993 petition describing Bratcher's lot).
3
She sought special damages against the developers
(jointly and severally) in the amount of the alleged thirty-year tax increase ($8,568.60), in
addition to general and punitive damages greater than $10,000.00.
The City and the developers subsequently filed motions to dismiss Bratcher's respective
claims. After hearing these motions, the district judge dismissed Bratcher's complaint in its
entirety as to all defendants, finding, in pertinent part:
(1) That Plaintiff is bound by the terms of the Sewer Connection Agreement dated and
which appeared in her chain of title and which affirmatively established the City's
right to annex the property;
(2) That Plaintiff had no basis to contest annexation or protest annexation and was
deprived of no constitutional right in conjunction with the annexation.
DISCUSSION
Standard of review for dismissal of claims
The City filed its motion to dismiss pursuant to NRCP 12(b)(1) (lack of jurisdiction over
the subject matter appearing on the face of the pleading) and 12(b)(5) (failure to state a
claim). The developers filed an NRCP 12(c) motion for judgment on the pleadings and/or
motion to dismiss.
We have held that:
The standard for review for a dismissal under NRCP 12(b)(5) is rigorous as this
court must construe the pleading liberally and draw every fair intendment in favor of
the [non-moving party].' Squires v. Sierra Nev. Educational Found., 107 Nev. 902,
905, 823 P.2d 256, 257 (1991) (quoting Merluzzi v. Larson, 96 Nev. 409, 411, 610
P.2d 739, 741 (1980)). All factual allegations of the complaint must be accepted as true.
A complaint will not be dismissed for failure to state a claim unless it appears beyond
a doubt that the plaintiff could prove no set of facts which, if accepted by the trier of
fact, would entitle him [or her] to relief. Edgar v. Wagner, 101 Nev. 226, 228, 699
P.2d 110, 112 (1985).
__________

3
Initially, Bratcher also raised a claim against the developers for invasion of privacy in that they fraudulently misrepresent[ed] that
Gowan and American owned Plaintiff's property. This claim was dismissed by the district court and has been abandoned on appeal.
Vacation Village v. Hitachi America, 110 Nev. 481, 484, 874 P.2d 744, 746 (1994) (some
citations omitted).
The district court erred in concluding that the City properly invoked the annexation
procedure set forth in NRS 268.597 and in dismissing Bratcher's claim for recision of the
City's annexation of her property
Bratcher argues that although the district court properly found that she was bound by the
terms of the sewer agreement, it erroneously concluded that the sewer agreement
affirmatively established the City's right to annex her property using the summary procedure
set forth in NRS 268.597. We agree.
The 1991 sewer agreement states that the City may annex said described real property
into its corporate boundaries as soon as it may legally do so in accordance with the then
applicable laws. The then applicable laws (those in effect at the time of the annexation in
1993) required that the procedures set forth in NRS 268.578-.596 be followed; because
Bratcher did not sign the 1993 petition, all of the owners of record of individual lots or
parcels of land within the area to be annexed did not agree to annexation, and thus, the
summary procedure of NRS 268.597 was unlawfully invoked. NRS 268.597. Therefore, the
City was without jurisdiction to annex Bratcher's property described in the 1993 petition, and
the annexation ordinance was void from its inception. See County of Clark v. City of North
Las Vegas, 89 Nev. 10, 14, 504 P.2d 1326, 1329 (1973) (The absence of adequate petitions
pursuant to NRS 268.582, rendered subsequent actions by the City relative to Annexations
Nos. 38 and 41 wholly nugatory, and the two annexation ordinances adopted by the City of
North Las Vegas are therefore invalid.).
The City argues that the authority to annex Bratcher's property came from the 1991
petition, signed by Bratcher's predecessor in interest, and that the 1993 petition was mere
surplusage as to Bratcher's property with no effect on the validity of the 1991 petition. Thus,
the City contends that the 1991 petition and the sewer agreement, both signed in 1991 by the
then owners, are valid and binding on Bratcher, even though annexation did not occur until
after Bratcher purchased her lot.
We conclude that the City could not have relied on the 1991 petition, but instead annexed
Bratcher's property in sole reliance on the 1993 petition in which her land was described but
which had been signed only by the former owners of her land, the developers. The annexation
ordinance must contain accurately described external boundaries of the territory to be
annexed. NRS 268.596. The 1991 petition did not contain such a description. Moreover, in
1991, the land at issue could not have been annexed because it was not yet contiguous to
the City.
annexed because it was not yet contiguous to the City. See NRS 268.580(2)(a). We also look
to the record; specifically, correspondence preceding the submittal of the ordinance to the
City Council in which the City clearly referred to the 1993 petition and made no mention of
the 1991 petition. Furthermore, the City's Department of Community Planning and
Development sent Bratcher a copy of only the 1993 petition after notifying her of the tax
increase (due to annexation of her property) in January, 1995.
[Headnote 1]
Because Bratcher had no notice of the 1991 petition (because it had no description of her property, was not filed with the sewer
agreement, and did not appear on her title report) and because the City did not (and could not) annex her property based upon the 1991
petition, the only document binding upon Bratcher at the time of the 1993 annexation was the sewer agreement. We disagree with the lower
court's finding that the sewer agreement, standing alone, enabled the City to lawfully invoke summary procedures.
The provision at issue in the sewer agreement (i.e., the City may annex . . .) was not the equivalent of an annexation petition signed
by all the owners of record of individual lots or parcelsa necessary prerequisite to invocation of NRS 268.597's summary procedure.
The sewer agreement granted the City discretionary authority to annex Bratcher's property, but did not authorize annexation by summary
procedure. Although the City could have annexed Bratcher's property and all of the other property described in the sewer agreement, even
in the absence of the approval of the majority of landowners, Bratcher was denied the statutory right to attempt to persuade the city council
not to pass the ordinance and to negotiate a service plan.
Both the City and the developers assert that Bratcher's claim is barred by the statute of limitations and by the equitable doctrine of
laches. We conclude that these arguments are without merit. NRS 268.604(1) provides:
Any person appearing and protesting such annexation at the public hearing, as provided in NRS 268.590, or any person filing
with the city clerk of the annexing city a written protest to such annexation within 15 days after the conclusion of such public
hearing, who believes that he will suffer material injury, by reason of the failure of the governing body of the annexing city to
comply with the procedure set forth in NRS 268.570 to 268.608, inclusive, or to meet the requirements set forth in NRS 268.580
as the same applies to his property, shall have the right, within 30 days from the date of the adoption of the annexation
ordinance, to apply to the district court . . . for an order staying the effectiveness of such annexation
ordinance.
date of the adoption of the annexation ordinance, to apply to the district court . . . for
an order staying the effectiveness of such annexation ordinance.
(Emphasis added.)
[Headnotes 2-4]
We conclude that the thirty day statutory limit contained in NRS 268.604 does not apply in the instant circumstances. This provision
applies only to annexations made via the formal, long form procedure. Bratcher could not have appeared or protested at an NRS 268.590
public hearing because such a hearing was never held; therefore, the statute does not apply to the rare scenario where a landowner
challenges a summary annexation. Because we hold that the statute of limitations has not run on Bratcher's claim, laches will apply only
under [e]specially strong circumstances. See Building and Constr. Trades v. Public Works, 108 Nev. 605, 610-11, 836 P.2d 633, 636-37
(1992). Although it may be burdensome for the City to have to re-annex the land at issue by following formal procedures, it would not be
inequitable to allow Bratcher's claim to proceed. Bratcher did file her complaint within thirty days of receiving the 1993 petition in which
someone else listed her land as part of the territory to be annexed. We conclude that her delay was not unreasonable.
The district court properly dismissed Bratcher's claim against the developers for negligent and intentional breach of duty by forgery in
including her property in the 1993 annexation petition
[Headnote 5]
Bratcher accuses Canarelli and the other developers of having committed forgery by signing the 1993 petition as owners of property
which included the lot she had recently purchased from American West.
4
NRS 205.090 provides, in pertinent part:
A person who falsely makes, alters, forges or counterfeits any record, or other authentic matter of a public nature . . . with the
intent to damage or defraud any person, body politic or corporate . . . is guilty of forgery . . . .
Bratcher argues that in signing and filing the 1993 petition which listed her propertyproperty no longer owned by the
developersCanarelli had an intent to deprive her of a public hearing and service plan and to defraud public officers so that the
appropriate long form annexation procedures would not be followed.
__________

4
Bratcher further cites NRS 207.230, which provides that it is a misdemeanor for a person to do any act for the doing of which a
license or other authority is required by law, without having such license or other authority as required by law. See NRS 207.230.
followed. She further asserts that the developers breached a duty of care owed to her, causing
her damage in the form of an increased tax burden, and thus that they were liable in
negligence and negligence per se.
[Headnote 6]
The forgery statute is inapplicable because forgery involves a false document, not mere misstatements of fact within a document. See
Winston v. Warden, 86 Nev. 33, 34, 464 P.2d 30, 31 (1970). The Winston court concluded:
It is an indispensable requirement of forgery that the writing be false. It may have been false in its inception or may have been
made so by subsequent tampering with what was originally genuine; but it must be a false writing. In this connection it is essential
to distinguish between a false instrument and false statements in an instrument. No amount of misstatement of fact and no
amount of fraud will make a false instrument out of what purports to be the very instrument which it is in fact and in law.
Winston, 86 Nev. at 34, 464 P.2d at 31 (quoting Perkins on Criminal Law 296 (Foundation Press 1957)) (emphasis added).
Bratcher asserts that Winston is not on point; we disagree. In Winston, the defendant signed his true signature to a check drawn on a
bank in which he held no checking account. The court concluded that such action was not forgery because the instrument was genuine,
notwithstanding false statements contained therein. Id. at 35, 464 P.2d at 31. Bratcher's claim would more properly be labeled common law
fraud. Therefore, the court did not err in dismissing her claim of intentional or negligent breach of duty based on forgery because the facts
(which are not disputedCanarelli did sign the 1993 petition and Bratcher's lot was included in the land description) cannot support her
claim.
CONCLUSION
We conclude that the district court erred in dismissing Bratcher's claim for recision against the City; therefore, we reverse and remand
the case for further proceedings on this issue. We further conclude that Bratcher failed to state a claim in her allegations of intentional and
negligent breach of duty by forgery against the developers; therefore, we affirm that portion of the district court's order granting the
developers' motion to dismiss on this claim.
5
__________

5
The Honorable A. William Maupin, Justice, voluntarily recused himself from participation in the decision of this appeal.
____________
113 Nev. 512, 512 (1997) Camco, Inc. v. Baker
CAMCO, INC., a Nevada Corporation, dba SUPERPAWN, Appellant, v. ROBERT T.
BAKER, HATTIE BAKER, TERRY D. GROSS, MICHELE A. GROSS, and CRAIG
McCALL, Respondents.
No. 29119
April 24, 1997 936 P.2d 829
Appeal from an order of the district court denying a preliminary injunction. Eighth Judicial
District Court, Clark County; Nancy A. Becker, Judge.
Former employer brought action against former management employees alleging breach of
contract, interference with contractual relationships, interference with business advantage,
and civil conspiracy and sought injunction to enforce restrictive covenant in employment
agreement. The district court denied request for preliminary injunction. Employer appealed.
The supreme court held that: (1) post-hire management employment agreement in which
employees agreed to clause regarding non-competition was supported by sufficient
consideration, and (2) provision of non-competition clause which restricted former
management employees from competing in any area within 50 miles of area targeted for
corporate expansion by employer was unreasonable.
Affirmed.
Hunterton & Associates and Thea Marie Sankiewicz, Las Vegas, for Appellant.
Callister & Reynolds and Michael J. Harker, Las Vegas, for Respondents.
1. Contracts.
Post-hire management employment agreement in which employees agreed to clause regarding non-competition was supported by
sufficient consideration consisting of employee's continued at-will employment.
2. Contracts.
Continued employment in at-will state is sufficient consideration for employee post-hiring non-competition covenant.
3. Injunction.
In determining whether employer enjoys reasonable probability of success on merits of its case seeking to enforce non-competition
clause in employment agreement through injunction, court must consider whether provisions of agreements would likely be found
reasonable at trial.
4. Contracts.
Provision of non-competition clause of employment agreement which restricted former management employees from competing in
any area within 50 miles of area targeted for corporate expansion by employer was unreasonable and unenforceable.
OPINION
Per Curiam:
Several former employees of SuperPawn, owned by Camco, Inc. (Camco), opened a pawn
shop in Bullhead City, Arizona (which borders Nevada, near Laughlin), shortly after
resigning from SuperPawn. While employed at SuperPawn, these former employees had
signed a contract in which they agreed not to compete with SuperPawn, after leaving
SuperPawn's employ, for a period of two years, within fifty miles of any SuperPawn store
either existing or under construction, or any location which was the target of SuperPawn's
plan for expansion.
Camco sought a preliminary injunction to enjoin these former employees from
participating in the pawn shop business
1
in Bullhead City, Arizona. The district court
concluded that the only consideration for the former employees' agreement not to compete
with SuperPawn had been their continued employment with SuperPawn. As a matter of law,
the district judge determined such consideration was inadequate and denied Camco's motion
seeking a preliminary injunction. Camco appeals from that order.
FACTS
The respondents, Robert and Hattie Baker (the Bakers), Terry Darren Gross and Michele
Gross (the Grosses), and Craig McCall (McCall), are all former employees of Camco's pawn
storesSuperPawn. The Bakers and the Grosses resigned from SuperPawn's employ without
notice on March 30, 1996. McCall had resigned almost a year earlier, on May 30, 1995.
Robert Baker had worked for SuperPawn since 1988 and was a regional manager at the
time of his resignation. Hattie Baker started with SuperPawn in 1992, prior to her marriage to
Robert, and was a store manager when she resigned. SuperPawn also hired Darren Gross in
1992, and he was a regional manager at the time of his resignation. In 1993, SuperPawn hired
Michele Gross, prior to her marriage to Darren; she was SuperPawn's director of operations at
the time of her resignation. SuperPawn also hired McCall in 1993, as director of corporate
development. At the time of his hire, McCall signed a Confidentiality Agreement with
SuperPawn, which included provisions restricting McCall from soliciting SuperPawn
employees upon his termination.2
__________

1
Apparently, these former employees are currently in the business of buying and selling secondhand goods and are taking steps to
enter the pawn business.
McCall from soliciting SuperPawn employees upon his termination.
2
Following McCall's May, 1995 resignation, SuperPawn had all of its management level
employees, including the Bakers and the Grosses, sign a Management Employment
Agreement (MEA) in October, 1995. The MEA contained provisions regarding
non-competition, preservation of trade secrets, diversion of SuperPawn employees, and
preservation of goodwill.
3
Two of SuperPawn's other management employees refused to sign
the MEA; one resigned, and the other was terminated for his refusal to sign the agreement.
On March 22, 1996, approximately one week before the Bakers and the Grosses resigned
from SuperPawn, Darren, Robert, and McCall formed Pawn Plus Corporation (Pawn Plus)
and filed Articles of Incorporation with the Nevada Secretary of State, listing McCall's
Henderson pawn shop as the corporate address. On March 27, 1996, the city of Bullhead City,
Arizona issued a business license to Pawn Plus; McCall, the Bakers, and the Grosses opened
a store named Pawn Plus in Bullhead City shortly thereafter. Bullhead City is more than
fifty miles from Las Vegas or Henderson, Nevada.
On June 21, 1996, Camco filed a complaint against the Bakers, Grosses, and McCall,
alleging various causes of action including breach of contract, interference with contractual
relationships (against McCall), interference with business advantage, and civil conspiracy. In
addition to damages, Camco sought equitable relief and filed a motion for preliminary
injunction that same day.
__________

2
In October, 1995, McCall became licensed to operate ASAP Auto Pawn in Henderson, Nevada. At that time, SuperPawn sought a
preliminary injunction against McCall, individually, for allegedly violating a non-competition provision in the Confidentiality Agreement.
The district court denied the injunction in Camco, Inc. v. McCall, No. A354941, concluding that the agreement defined competition as
targeting and soliciting SuperPawn employees, and that McCall had not solicited any SuperPawn employees for his Henderson operation. In
the instant case, SuperPawn alleges that McCall violated the Confidentiality Agreement in that he solicited the other four respondents (the
Bakers and the Grosses) in conjunction with the operation of a pawn shop in Bullhead City, Arizona.

3
Of particular relevance in this appeal is paragraph 8 of the MEA, which states:
8. Upon the conclusion of the employment by SuperPawn, it is hereby agreed that the employee shall not, for a period of two years
from the date of that event, engage in the pawn or check cashing business, directly or indirectly, as an individual, partner, director,
officer, consultant or employee of any such enterprise operating any store or facility within fifty miles of any SuperPawn store
location which was either existing, under construction or the target of a corporate plan for expansion on the date of termination of
employment.
In its motion, Camco asked the court to enforce the non-competition provisions of the Bakers
and Grosses' SuperPawn employment agreements and the non-solicitation provision of
McCall's employment agreement, thereby enjoining the five respondents from operating
Pawn Plus in Bullhead City for a period of two years.
In support of the motion below, Camco argued that Bullhead City had been a target of
SuperPawn's corporate plan for expansion before and at the time of the Bakers and Grosses'
resignation. The Bakers and Grosses asserted that SuperPawn did not have a business within
fifty miles of Bullhead City, and further, that they did not have knowledge of SuperPawn's
alleged plans to target Bullhead City. They argued that as director of operations, Michele
Gross would have been privy to any such planned expansion had such plans really existed at
the time of the Bakers and Grosses' resignation.
The district court concluded that the only potential consideration for the Bakers and
Grosses' agreement not to compete with SuperPawn was their continued employment.
4
As a
matter of law, the lower court held that continued employment was not adequate
consideration for a non-competition agreement. In the transcript of the hearing below, the
district court indicated that it found the time and place restrictions (two years and within fifty
miles
5
) of the noncompetition agreement reasonable, and would have granted the injunction
had it found adequate consideration for the agreements.
6
The issue of consideration for McCall's Confidentiality Agreement, which contained the
non-solicitation clause at issue, was not addressed by the lower court or the litigants,
presumably because, unlike the other respondents, McCall had entered the agreement at the
time of hire. The lower court's order denying Camco's motion for a preliminary injunction did
not address that part of the motion which requested that McCall be enjoined from
"soliciting, employing, or otherwise professionally associating" with the Bakers and the
Grosses for a period of two years from McCall's termination.
__________

4
Camco had submitted a supplement to their motion for preliminary injunction asserting that several months after the Bakers and
Grosses had signed the MEA, Superpawn had given them bonuses, vacation pay, and additional training as additional consideration for
signing the agreement.
The district judge concluded that the consideration has to be the consideration at the time of the contracts, not bonuses that came
after, not vacation pay that was paid thereafter. That's not consideration, it has to be at the time of the contract.

5
The district court erroneously refers to a seventy-five mile restriction.

6
The lower court repeatedly stated that it believed that in an at-will employment state, continued employment should be deemed
adequate consideration for non-competition agreements; however, the district court concluded that this court would hold otherwise and
denied the injunction accordingly.
part of the motion which requested that McCall be enjoined from soliciting, employing, or
otherwise professionally associating with the Bakers and the Grosses for a period of two
years from McCall's termination. Therefore, the following discussion focuses on the
enforceability of the non-competition provision signed by the Bakers and Grosses (also
referred to as respondents).
DISCUSSION
Appropriateness of injunctive relief
In Dixon v. Thatcher, 103 Nev. 414, 415, 742 P.2d 1029, 1029 (1987), this court held:
A preliminary injunction to preserve the status quo is normally available upon a
showing that the party seeking it enjoys a reasonable probability of success on the
merits and that the defendant's conduct, if allowed to continue, will result in irreparable
harm for which compensatory damages is an inadequate remedy.
Because we conclude that Camco did not enjoy a reasonable probability of success on the
merits, we affirm the district court's denial of the motion for a preliminary injunction.
Camco did not enjoy a reasonable probability of success on the merits of its claim
The Bakers and Grosses' post-hire non-competition agreements were supported by
consideration.
[Headnote 1]
Before reaching the issue of whether the non-competition provision at issue in the Bakers and Grosses' post-hire agreements were
reasonable, the parties contest whether the MEAs were supported by sufficient consideration.
[Headnote 2]
This court has held that an at-will employee's continued employment after formal delivery of [an employment] handbook provides
sufficient consideration for modifying the employment agreement by inclusion of the handbook provisions. Southwest Gas Corp. v.
Ahmad, 99 Nev. 594, 595, 668 P.2d 261, 261 (1983). Relying on the quoted language, Camco asserts that this law is equally applicable in
the instant case and that [c]ontinued employment in an at-will state is sufficient consideration for a post-hiring [non-competition]
covenant. We agree. A non-competition provision is no more than a modification to the original employment contract, and thus
the law articulated in Southwest Gas is dispositive.
original employment contract, and thus the law articulated in Southwest Gas is dispositive.
Respondents quote the broader language of Ellis v. McDaniel, 95 Nev. 455, 596 P.2d 222
(1979). In Ellis, a case in which a party entered a non-competition agreement at the time of
hire, this court addressed the reasonableness of the agreement at issue, declaring that
because the loss of a person's livelihood is a very serious matter, post employment
anti-competitive covenants are scrutinized with greater care than are similar covenants
incident to the sale of a business. Ellis, 95 Nev. at 459, 596 P.2d at 224. Invoking this
language, respondents assert that something more than continued employment is required to
bind an employee to a non-compete covenant entered into after the commencement of
employment.
Today we adopt the majority rule which states that an at-will employee's continued
employment is sufficient consideration for enforcing a non-competition agreement. See
Mattison v. Johnston, 730 P.2d 286, 288-90 (Ariz. Ct. App. 1986) (holding that the
continued employment

[
7
] of a terminable-at-will employee is sufficient consideration to
support a restrictive covenant executed by the employee more than two years after
commencement of employment); see also Machen, Inc. v. Aircraft Design, Inc., 828 P.2d
73, 80 (Wash. Ct. App. 1992) (holding that continued employment is sufficient consideration
in support of non-competition or confidentiality agreement).
There is no substantive difference between the promise of employment upon initial hire
and the promise of continued employment subsequent to day one.' Copeco, Inc. v. Caley,
632 N.E.2d 1299, 1301 (Ohio Ct. App. 1992). A contrary holding might leave the employer
in a position of having to fire an at-will employee and then rehire that same employee with
the restrictive covenant in place, or have the covenant held unenforceable for want of
consideration. See Corroon & Black of Illinois, Inc. v. Magner, 494 N.E.2d 785, 791 (Ill. Ct.
App. 1986). Besides the possible impact on employee seniority and vesting in various
benefit packages, such an approach would merely exalt form over substance. Simko v.
Graymar Co., 464 A.2d 1104, 1108 (Md. Ct. App. 1983).
Upon review of the reasoning behind the majority rule, we hold that continued
employment in an at-will employment context should be deemed sufficient consideration
to uphold a post-hire non-competition covenant.
__________

7
Courts have concluded that in an at-will employment context continued employment is, as a practical matter, equivalent to the
employer's forbearance to discharge; many courts have concluded that the consideration is equally valid phrased as a benefit to the
employee or a legal detriment to the employer. See Mattison v. Johnson, 730 P.2d 286, 286 (Ariz. Ct. App. 1986); Zellner v. Stephen D.
Conrad, M.D., P.C., 589 N.Y.S.2d 903, 907 (Ct. App. 1992).
hold that continued employment in an at-will employment context should be deemed
sufficient consideration to uphold a post-hire non-competition covenant. Although we
conclude that the district court erred in denying Camco's preliminary injunction based upon
the issue of consideration, our inquiry is not over. We must consider whether the covenant at
issue would likely be deemed reasonable or void as against public policy.
The non-competition provisions at issue were not reasonable
[Headnotes 3, 4]
In determining whether Camco enjoyed a reasonable probability of success on the merits of its case, the court must consider whether
the provisions of the non-competition agreements would likely be found reasonable at trial. Hansen v. Edwards, 83 Nev. 189, 191, 426 P.2d
792, 793 (1967). The Hansen court explained:
An agreement on the part of an employee not to compete with his employer after termination of the employment is in restraint
of trade and will not be enforced in accordance with its terms unless the same are reasonable. Where the public interest is not
directly involved, the test usually stated for determining the validity of the [non-competition] covenant as written is whether it
imposes upon the employee any greater restraint than is reasonably necessary to protect the business and good will of the
employer. A restraint of trade is unreasonable, in the absence of statutory authorization or dominant social or economic
justification, if it is greater than is required for the protection of the person for whose benefit the restraint is imposed or imposes
undue hardship upon the person restricted. The period of time during which the restraint is to last and the territory that is
included are important factors to be considered in determining the reasonableness of the agreement.
Id. at 191-92, 426 P.2d at 793 (citations omitted) (emphasis added); see also Ellis v. McDaniel, 95 Nev. 455, 458-59, 596 P.2d 222, 224
(1979) (There is no inflexible formula for deciding the ubiquitous question of reasonableness. However, because the loss of a person's
livelihood is a very serious matter, post employment anti-competitive covenants are scrutinized with greater care . . . .).
In Hansen, a podiatrist-employee signed a non-competition covenant in which he agreed not to practice within a one hundred mile
radius of Reno; there was no time limit on this restriction. Following termination, the employee opened his own practice near his
former employer.
near his former employer. The district court enforced the covenant as written. This court
modified the preliminary injunction, limiting its scope to the Reno city limits and adding a
time restriction of one year. Hansen, 83 Nev. at 193, 426 P.2d at 794 (citing authority for the
proposition that preliminary injunctions may be modified as justice requires). In Ellis, this
court concluded that a five-mile territorial limitation and a two-year time restriction were
reasonable and enforceable provisions of a non-competition agreement.
8
Ellis, 95 Nev. at
459, 596 P.2d at 224.
Most recently, in Jones v. Deeter, 112 Nev. 291, 913 P.2d 1272 (1996), this court
reviewed a restrictive covenant prohibiting a former employee from competing with his
former employer within a one hundred mile radius for five years. We concluded that the
five-year restriction was unreasonable because it placed too great of a hardship on the
employee and was not reasonably necessary to protect the former employer's interests;
therefore, the entire covenant was held unenforceable. Id. at 296, 913 P.2d at 1275.
The non-competition provisions at issue barred the Bakers and Grosses from competing
with SuperPawn after leaving SuperPawn's employ for a period of two years within fifty
miles of any SuperPawn store location either existing or under construction, or within fifty
miles of any area which was the target of a corporate plan for expansion. Camco claims that
Bullhead City had been a target for SuperPawn expansion since the fall of 1994before
the Bakers and Grosses signed the MEAs and before they resigned the following year.
9
Respondents' knowledge of Camco's plan to expand its business into Bullhead City was
contested, but we conclude that respondents' knowledge is irrelevant; the reasonableness of
the restriction is the germane inquiry.
Respondents argue that the territorial restriction in the MEA non-competition clause is
unreasonable because it covers too broad of an area and thus operates as a greater restraint on
trade than is necessary to protect Camco's interests.
__________

8
It should be noted that the Ellis court narrowed the breadth of restricted activity from the practice of medicine to the general
practice of medicine. The court concluded that the restriction went beyond the scope of the employer's protectable interests; moreover, it
would be against the public interest to bar the only specialized surgeon in the area from performing surgery which would force the public to
drive great distances for specialized surgical procedures. Ellis, 95 Nev. at 459, 596 P.2d 224-25.

9
Apparently, Bullhead City is important to Camco because Clark County has authorized the issuance of only one pawn license in
Laughlin, Nevada; that license is held by a SuperPawn competitor. Camco asserts that SuperPawn's only chance to viably compete in the
Laughlin market is to do business in neighboring Bullhead City.
than is necessary to protect Camco's interests. We agree. The restriction applying to areas
targeted by Camco for corporate expansion is completely unreasonable. We adopt the
view that [t]o be reasonable, the territorial restriction should be limited to the territory in
which appellants [(former employers)] established customer contacts and good will. Snelling
& Snelling v. Dupay Enterprises, 609 P.2d 1062, 1064 (Ariz. Ct. App. 1980); see also
Weatherford Oil and Tool Co. v. A.G. Campbell, 327 S.W.2d 76, 77 (Tex. Ct. App. 1959)
(holding geographical restriction in any area where [employer] may be operating or carrying
on business void as unlimited as to territory). Because Camco had no customer contacts or
good will established in Bullhead City and had not signed a lease or begun construction of a
store in that area, we hold that the non-competition covenant did not apply to Bullhead City.
In light of this court's acknowledgement that non-compete covenants are restraints of trade
and subject to careful scrutiny when made in an employment context, we hold that the
covenant at issue is overly broad as to future territory for possible expansion. Therefore, even
though there was consideration to support the Bakers and Grosses' agreements not to compete
with SuperPawn, we conclude that Camco did not enjoy a reasonable likelihood of success on
the merits of its claim, and thus injunctive relief was properly denied. See Hotel Riviera, Inc.
v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981) (If a decision below is correct, it
will not be disturbed on appeal even though the lower court relied upon wrong reasons.).
Because we conclude that Camco does not enjoy a reasonable likelihood of success on the
merits we need not address the issue of irreparable harm.
CONCLUSION
We hold that continued employment is valid consideration for an at-will employee's
post-hire agreement not to compete with a former employer, and that the lower court erred in
its contrary ruling. However, we also conclude that the provisions at issue are unreasonable in
territorial scope and therefore unenforceable as against public policy. Therefore, we affirm
the lower court's order denying Camco's motion to enjoin respondents from doing business in
Bullhead City, Arizona.
____________
113 Nev. 521, 521 (1997) Columbia/HCA Healthcare v. Dist. Ct.
COLUMBIA/HCA HEALTHCARE CORPORATION, a Delaware Corporation; SUNRISE
HOSPITAL, a Nevada Corporation d/b/a SUNRISE HOSPITAL and MEDICAL
CENTER and SUNRISE CHILDREN'S HOSPITAL; HUMANA, INC., a Delaware
Corporation d/b/a HUMANA HOSPITAL-SUNRISE and SUNRISE CHILDREN'S
HOSPITAL; GALEN HEALTH CARE, INC., LESLIE SOPER, M.D.; BURNETT,
DiFRANCESCO, EVANS, FRIES IIZUKA, KEAMY, KEMP, KOZMARY,
RUSSELL, SMITH, SOPER, WALSH, LTD., LESLIE E. SOPER, M.D., CHTD.;
JOHN B. PAYNE, D.O., ALBERT H. CAPANNA, M.D.; ALBERT H. CAPANNA,
M.D., a Nevada Professional Corporation; CAPANNA & ASSOCIATES, a Nevada
Professional Corporation; CAPANNA'S INTERNATIONAL NEUROSCIENCE
CONSULTANTS, INC., a Nevada Professional Corporation; PEDIATRIC and
ADOLESCENT NEUROLOGY & DIAGNOSTIC ASSOCIATION, INC., a Nevada
Professional Corporation, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and For The County of Clark, and THE
HONORABLE GERARD J. BONGIOVANNI, District Judge, Respondents, and
KEVIN and ELIZABETH DAILEY, Individually, KEVIN and ELIZABETH
DAILEY, as Special Administrators and Personal Representative of the Estate of
ERIK S. DAILEY, a Deceased Infant, Real Parties in Interest.
No. 28491
April 24, 1997 936 P.2d 844
Original petition for a writ of prohibition or, in the alternative, writ of mandamus
challenging an order of the district court directing petitioners to furnish real parties in interest
with certain hospital records. Eighth Judicial District Court, Clark County; Gerard J.
Bongiovanni, Judge.
Parents of child who had died after being treated at hospital for arachnoid cyst brought
medical malpractice action against hospital, and filed subpoena duces tecum seeking
disclosure of any incident or occurrence reports arising from treatment. The district court
adopted report and recommendation of discovery commissioner and held that records were
discoverable. Hospital petitioned for alternative writs of prohibition or mandamus, and the
supreme court held that: (1) writ of prohibition or mandamus may be appropriate remedy
when addressing pretrial discovery order which leaves litigant with no plain, speedy, or
adequate remedy at law; but {2) occurrence reports were not protected by attorney work
product doctrine; and {3) reports were not within scope of protection of hospital peer
review statute.
may be appropriate remedy when addressing pretrial discovery order which leaves litigant
with no plain, speedy, or adequate remedy at law; but (2) occurrence reports were not
protected by attorney work product doctrine; and (3) reports were not within scope of
protection of hospital peer review statute.
Petition denied.
Earley & Dickinson, Las Vegas, for Petitioners Columbia/HCA, Galen Health Care, Inc.
and Sunrise Hospital.
Alverson, Taylor, Mortensen, Nelson & Sanders, Las Vegas, for Petitioner Soper.
Pico & Mitchell, Las Vegas, for Petitioner Payne.
Beckley, Singleton, Jemison & List, Chtd., and Daniel F. Polsenberg, Las Vegas, for
Petitioner Capanna.
Thorndal, Backus, Armstrong & Balkenbush; Pearson & Patton, Las Vegas, for Real
Parties in Interest.
1. Mandamus.
Decision to entertain a writ is within sound discretion of supreme court. NRS 34.330.
2. Mandamus; Prohibition.
Writ of prohibition or mandamus may be appropriate remedy when addressing pretrial discovery order which leaves litigant with
no plain, speedy, or adequate remedy at law. NRS 34.160, 34.320.
Occurrence reports prepared by hospital concerning treatment of patient were made in ordinary course of business and were not
prepared in anticipation of litigation, and thus were not privileged under attorney work product doctrine, even though counsel for
hospital had sent letter to hospital's director of patient relations and risk management directing her to conduct any investigation at
counsel's direction; reports would have been created without counsel's involvement, and did not become privileged merely by injecting
attorney into investigative process. NRCP 26(b)(3).
Even though litigation is already in prospect, there is no work product immunity for documents prepared in regular course of
business rather than for purposes of litigation. NRCP 26(b)(3).
5. Hospitals.
Occurrence reports prepared by hospital after unusual circumstances arise in treatment of patient are not protected under hospital
peer review statute. NRS 49.265.
6. Hospitals.
Intent of legislature in enacting hospital peer review statute was to protect only the internal operations of peer review. NRS 49.265.
OPINION
Per Curiam:
On December 20, 1991, Erik S. Dailey (hereinafter Erik) was five and one-half months
old when he was diagnosed with an arachnoid cyst in the posterior fossa region of his brain.
1
Over the following three years and ten months, Erik endured thirteen surgeries before finally
expiring on October 4, 1995. During Erik's hospitalization, the parents of Erik, Kevin and
Elizabeth Dailey (collectively Daileys) made their displeasure with Erik's treatment and
care known to petitioners Columbia/HCA Healthcare Corporation, et al. (collectively
Sunrise Hospital). As a result, on February 5, 1992, Ms. Kerry L. Earley, counsel for
Sunrise Hospital, sent a missive to Ms. Lucille Compton, director of patient relations and risk
management at Sunrise Hospital, stating:
This letter is to inform you that you are hereby directed to conduct any investigation of
the [Erik] matter at my direction for defense of this case on behalf of Humana, Inc. Our
office has been retained to investigate this matter for purposes of defense of this claim
on behalf of Humana, Inc.
On March 29, 1995, the Daileys filed a complaint against Sunrise Hospital. The first
supplemental complaint followed on February 22, 1996. Both complaints alleged, in essence,
that Erik's misdiagnosis led to negligently performed surgical procedures, ultimately resulting
in Erik's premature demise.
However, prior to filing their first complaint, the Daileys sought evidence from Sunrise
Hospital pursuant to NRCP 27.
2
The subpoena duces tecum requested, in part, disclosure of
[a]ny incident report arising out of the treatment of Erik S. Dailey in the period of
January-May, 1992.
3
A subsequent subpoena issued during the medical screening panel
process also required Sunrise Hospital to provide "[t]ranscriptions of oral statements
about or written statements about any Hospital employee or from any physician with staff
privileges at Hospital involved in the care of Erik S.
__________

1
An arachnoid cyst is a membrane-lined fluid filled sac, located between the lower brain and spinal cord region of the cranium.
Stedman's Medical Dictionary 353 (5th ed. 1982).

2
Before a person initiates formal proceedings, NRCP 27 allows prospective plaintiffs to perpetuate testimony regarding any matter
that may be cognizable in any court of the State.

3
Incident or occurrence reports are completed by Sunrise Hospital personnel when unusual circumstances occur regarding a patient's
medical care and treatment. These documents are reviewed by the hospital's Quality Assurance Department for the purposes of reviewing
and improving the quality of care given at Sunrise Hospital.
required Sunrise Hospital to provide [t]ranscriptions of oral statements about or written
statements about any Hospital employee or from any physician with staff privileges at
Hospital involved in the care of Erik S. Dailey. Counsel for Sunrise Hospital denied the
existence of such statements and failed to provide any documents pursuant to these requests.
It was not until actual deposition testimony was elicited from Sunrise Hospital employees that
the existence of occurrence reports was revealed.
4
Consequently, Sunrise Hospital submitted, for an in camera inspection by the discovery
commissioner, nine documents identified as occurrence reports. On December 28, 1995, the
discovery commissioner concluded that the documents should be handed over to the Daileys.
Sunrise Hospital contested this ruling on the ground that the occurrence reports were
prepared in anticipation of litigation pursuant to attorney Earley's February 5, 1992 letter.
Thus, according to Sunrise Hospital, the reports fell under the work product doctrine
embodied in NRCP 26(b)(3) and enunciated in Ballard v. District Court, 106 Nev. 83, 787
P.2d 406 (1990). However, the discovery commissioner found this contention unpersuasive.
Specifically, his report and recommendation stated, I would note that the single general letter
of February 5, 1992 . . . is insufficient to invoke the [work product doctrine] . . . and is only a
thinly veiled attempt to get around the production of initial factual investigation . . . .
Sunrise Hospital also averred that the occurrence reports were protected under the peer
review privilege in NRS 49.265. This argument was similarly found to be without merit. The
discovery commissioner declared that the information in the occurrence reports was merely
raw data collected from percipient witnesses and perhaps rounded out by supervisory or
even risk management personnel. It is true this information may later be submitted to a peer
review committee, but this act does not turn the factual non-privileged information into
privileged information. On April 3, 1996, the district court adopted, in its entirety, the report
and recommendation of the discovery commissioner.
Sunrise Hospital petitions this court for alternative writs of prohibition or mandamus
challenging the district court's decision to allow the Daileys access to the occurrence reports.
However, before this court may decide the merits of Sunrise Hospital's petition, it must
first address the threshold inquiry of whether the extraordinary relief of prohibition or
mandamus is available to challenge a district court order permitting pretrial discovery.
__________

4
Candace Jensen, a registered nurse supervisor during Erik's hospitalization, had the following exchange at her deposition:
Q. Would you fill out an occurrence report if someone was injured pursuant to their care or treatment in the operating room?
A. Yes, you would fill out an occurrence report.
Q. Was an occurrence report filled out on Erik Dailey?
A. Occurrence report was filled out on Erik Dailey.
before this court may decide the merits of Sunrise Hospital's petition, it must first address the
threshold inquiry of whether the extraordinary relief of prohibition or mandamus is available
to challenge a district court order permitting pretrial discovery.
[Headnotes 1, 2]
In pertinent part, NRS 34.320 provides that a writ of prohibition . . . arrests the proceedings of any tribunal . . . exercising judicial
functions, when such proceedings are without or in excess of the jurisdiction of such tribunal. Conversely, a writ of mandamus issues to
compel the performance of an act which the law especially enjoins as a duty. NRS 34.160. A writ may be issued only by the supreme
court to an inferior tribunal . . . where there is not a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.330. The
decision to entertain a writ is within the sound discretion of this court. Bowler v. District Court, 68 Nev. 445, 234 P.2d 593 (1951).
Sunrise Hospital argues that if a writ of prohibition is not granted to prevent disclosure of the occurrence reports, the applicable
privileges will be waived. In support of its request for granting a writ, Sunrise Hospital cites Wardleigh v. District Court, 111 Nev. 345,
891 P.2d 1180 (1995). In Wardleigh, a writ of prohibition issued to prevent pretrial discovery of a law firm's client files. In overruling the
district court's order compelling discovery, this court stated, If improper discovery were allowed, the assertedly privileged information
would irretrievably lose its confidential and privileged quality and petitioners would have no effective remedy, even by a later appeal. Id.
at 35051, 891 P.2d at 1183-84. Accordingly, this court ruled that the district court exceeded its jurisdiction by ordering blanket discovery
of the client files. Id.
Although not cited in Sunrise Hospital's petition, Schlatter v. District Court, 93 Nev. 189, 561 P.2d 1341 (1977), appears to be
factually on point with the instant matter. Schlatter was a personal injury action in which the district court compelled disclosure of
plaintiff's medical records. Id. This court held that the lower court exceeded its jurisdiction by ordering carte blanche discovery of all
information contained in the medical records. Id. at 192, 561 P.2d at 1343-44. The Schlatter court concluded that a grant of mandamus
vacating the trial court's earlier discovery order was appropriate. The court stated that the plaintiff would effectively be deprived of any
remedy from the [district court's] erroneous ruling if she was required to disclose the information and then contest the validity of the order
on direct appeal. Id. at 193, 561 P.2d at 1344.
Wardleigh and Schlatter are analogous to the instant matter. If Sunrise Hospital's occurrence reports do indeed contain
privileged information and discovery is compelled through the lower court's order, then "the bell cannot be
unrung," not even on direct appeal.
Sunrise Hospital's occurrence reports do indeed contain privileged information and discovery
is compelled through the lower court's order, then the bell cannot be unrung, not even on
direct appeal. Accordingly, under this court's most recent rulings, a writ of prohibition is an
appropriate remedy to prevent pretrial discovery of privileged material.
In response, the Daileys cite no countervailing authority. Instead, the Daileys rely upon an
Ohio Supreme Court case, State ex rel. Children's Medical Ctr. v. Brown, 571 N.E.2d 724
(Ohio 1991). The Daileys urge this court to adopt the Brown standard in granting a writ of
prohibition. However, a reading of Brown reveals that it is wholly consistent with this court's
practice.
Accordingly, we conclude that a writ of prohibition or mandamus may be an appropriate
remedy when addressing a pretrial discovery order, which leaves a litigant with no plain,
speedy or adequate remedy at law.
Work product doctrine
NRCP 26 (b)(3), reads in relevant part:
[A] party may obtain discovery of documents and tangible things otherwise
discoverable under subdivision (b)(1) of this rule and prepared in anticipation of
litigation . . . only upon a showing that the party seeking discovery has substantial need
of the materials in the preparation of his case and that he is unable without undue
hardship to obtain the substantial equivalent of the materials by other means. In
ordering discovery of such materials when the required showing has been made, the
court shall protect against disclosure of the mental impressions, conclusions, opinions,
or legal theories of an attorney or other representative of a party concerning the
litigation.
(Emphasis added.)
Sunrise Hospital claims that since the occurrence reports were created as part of an
investigation directed by an attorney, they qualify as documents prepared in anticipation of
litigation and should be protected.
In contrast, the Daileys aver that the occurrence reports were not created in anticipation of
litigation. Rather, they were prepared in the ordinary course of business. Additionally, the
Daileys assert that substantial need exists for discovery of the occurrence reports because the
information cannot be obtained in any other manner.
Sunrise Hospital's claim that the occurrence reports were prepared in anticipation of
litigation is based squarely on language in Ballard v. District Court, 106 Nev. 83, 787 P.2d
406 (1990). In Ballard, while discussing the breadth of the work product doctrine, this
court concluded that "materials resulting from an insurance company's investigation are
not made 'in anticipation of litigation' unless the insurer's investigation has been
performed at the request of an attorney."
Ballard, while discussing the breadth of the work product doctrine, this court concluded that
materials resulting from an insurance company's investigation are not made in anticipation
of litigation' unless the insurer's investigation has been performed at the request of an
attorney. Id. at 85, 787 P.2d at 407 (citing Langdon v. Champion, 752 P.2d 999 (Alaska
1988)). Sunrise Hospital analogizes the insurance summaries in Ballard to the occurrence
reports in the instant matter for the wholesale proposition that whenever documents are
created as part of an investigation directed by an attorney [they] are afforded a qualified
privilege because they are created in anticipation of litigation. We conclude that Sunrise
Hospital's claim is untenable.
[Headnote 3]
The facts in the instant matter are distinguishable from those in Ballard. The occurrence reports were prepared in the ordinary course
of business. Sunrise Hospital's petition implicitly admits this fact by requiring personnel to fill out pre-printed forms in the event of an
unexpected occurrence. Occurrence reports consist of a four page form, which is completed by a hospital employee who has information
regarding an unusual event that occurred at the hospital. (Emphasis added.) Sunrise Hospital further admits that the purpose, at least in
part, for creating occurrence reports is to improve the quality of care given at Sunrise Hospital.
To suggest, as Sunrise Hospital does, that documents become privileged by injecting an attorney into the investigative process is a
specious argument, especially when the investigation occurs in the ordinary course of business. The discovery master, who inspected the
documents, recognized this point in his report and recommendation:
I would note that the single general letter of February 5, 1992, sent to the Risk Management Director at Sunrise from attorney,
Kerry Earley, which directs Risk Management to conduct an investigation of the above-captioned matter at my direction for
defense of this case . . . is insufficient to invoke the [work product doctrine] in my view and is only a thinly veiled attempt to get
around the production of initial factual investigation, as mandated by Ballard and NRCP 16.1.
Furthermore, the Daileys maintain that Sunrise Hospital's interpretation of Ballard cannot be reconciled with this court's decision in
Wardleigh. In Wardleigh, attorneys for the homeowners association attended several board meetings. Wardleigh, 111 Nev. at 349, 891 P.2d
at 1182. When the minutes of the board meeting were subpoenaed, the petitioners attempted to avail themselves of the work product
doctrine. Id. at 357, 891 P.2d at 11SS.
1188. This court rejected petitioners' claim that the minutes were prepared in anticipation of
litigation under NRCP 26(b)(3) by declaring that [t]he mere presence of the attorneys at
these meetings does not make the minutes privileged and therefore protected by the work
product doctrine. Id. at 357-58, 891 P.2d at 1188.
[Headnote 4]
Here, Earley's letter directing an investigation is no different from the presence of counsel at board meetings. Both the board minutes
and occurrence reports would have been created in the ordinary course of business regardless of counsel's presence or involvement.
Accordingly, we conclude that the occurrence reports were not created in anticipation of litigation for purposes of protection under NRCP
26(b)(3).
5
Peer review privilege
Nevada's peer review statute, NRS 49.265 provides, in pertinent part:
1. Except as otherwise provided in subsection 2:
(a) The proceedings and records of:
(1) Organized committees of hospitals . . . having the responsibility of evaluation and improvement of the quality of
care rendered by those hospitals or organizations; and
(2) Review committees of medical or dental societies,
are not subject to discovery proceedings. . . .
(Emphasis added.)
Although Sunrise Hospital claims that the occurrence reports are protected by the peer review privilege, circuitously it wants an
opinion upholding the constitutionality and expansive discovery privileges of NRS 49.265. However, the parties did not raise a
constitutional question in their respective petitions and, under the particular facts of this matter, that question is never reached.
6
Rather, the
narrow issue currently before this court is one of statutory interpretation: whether occurrence reports were intended to be included in the
phrase of NRS 49.265 proceedings and records of and, therefore, exempted from discovery.
__________

5
This conclusion comports with Professor Wright's theory of when documents are created in anticipation of litigation: [E]ven though
litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than
for purposes of litigation. 8 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 2024, at 343-46 (1994) (footnotes
omitted) (emphasis added).

6
See, e.g., Miller v. Ashurst, 86 Nev. 241, 244, 468 P.2d 357, 359 (1970) (stating that the court will not undertake to resolve
constitutional questions involved in a statute until those issues are presented in a proper case).
[Headnote 5]
While several courts have generally discussed the privileged status of occurrence reports, the North Dakota Supreme Court addressed
the precise issue before this court. In Trinity Medical Ctr. v. Holum, 544 N.W.2d 148, 157 (N.D. 1996), the court stated:
We construe the phrase proceedings and records of the committee to be limited to the formal proceedings before the committee,
and the internal records generated by the committee. Specifically, this would include testimony given to the committee at the
hearing, the deliberations and discussions among committee members, and the minutes of committee meetings. It does not include
other information or data provided to the committee or collected for the committee's review by hospital departments or employees.
It is the internal functioning of the committee which is protected.
(Emphasis added.)
The Texas appellate court similarly held that the peer review privilege extends only to documents prepared by or at the direction of the
committee. Conversely, those which are gratuitously submitted or generated without committee impetus are not protected. McAllen
Methodist Hosp. v. Ramirez, 855 S.W.2d 195, 198 (Tex. Ct. App. 1993). The court further noted that the privilege does not apply to
routine accumulative information despite the fact that these documents may eventually serve as evidence in committee deliberations. Id.
(citing Barnes v. Whittington, 175 S.W.2d 493, 496 (Tex. 1988)).
Courts offer compelling reasons for permitting discovery of occurrence reports. The Supreme Court of Arizona expressed concern that
hospitals would funnel damaging factual information through review committees to shield it from potential plaintiffs. Lipschultz v.
Superior Court, 623 P.2d 805, 808 (Ariz. 1981). The Illinois appellate court echoed these same sentiments:
If the simple act of furnishing a committee with earlier-acquired information were sufficient to cloak that information with the
statutory privilege, a hospital could effectively insulate from disclosure virtually all adverse facts known to its medical staff, with
the exception of those matters actually contained in the patient's records.
May v. Wood River Township Hosp., 629 N.E.2d 170, 174 (Ill. App. Ct. 1994).
The only opinion in this court's jurisprudence discussing the reciprocal relationship of occurrence reports and NRS 49.265 is Ashokan
v. State, Dep't of Ins., 109 Nev. 662, 856 P.2d 244 {1993).
(1993). Ashokan began its analysis of the peer review statute by noting that [p]rivileges
should be construed narrowly. Id. at 668, 856 P.2d at 247 (citing United States v. Nixon, 418
U.S. 683, 710 (1974)). In particular, we found NRS 49.265 to be extremely limited in
scope. Id. at 668, 856 P.2d at 248. This court reasoned that in the past the legislature has
demonstrated its ability to draft broad privileges (attorney-client, doctor-patient,
accountant-client, therapist-client, and social-worker-client). However, the fact that NRS
49.265 was categorized as Other Occupational Privileges demonstrates the legislature's
effort to tailor the peer review immunity to specific parameters. Put another way, the
legislature obviously understood that it was creating a privilege with a much narrower scope
than that of other privileges. Id. at 669, 856 P.2d at 249.
[Headnote 6]
The legislative history of NRS 49.265 also demonstrates that the intent of the legislature was to protect only the internal operations of
peer review. On March 20, 1969, before the Judiciary Committee, Dr. Salvadorini testified in support of enacting the modern day version of
NRS 49.265:
In our practice we have all kinds of committees that we use to see that the work in the hospitals is going properly. In these
committee meetings we discuss in depth all the things going on in the hospital. These are now supenable [sic] and can be used in a
court of law. We ask that these committees be given some type of immunity so that we can proceed in detail without fear that these
proceedings will be made public.
Proposed Evidence Code for the State of Nevada: Hearings Before the Assembly Committee on Judiciary, 55th Sess. 179 (1969) (emphasis
added).
Senator Harry M. Reid and Assemblyman Schouweiler, less than two weeks later, on April 1, 1969, stated:
Mr. Reid: This is a good bill. As the doctors told us, in most hospitals they set up a lot of committees to review what is going on in
the hospital . . . . They have all kinds of these committees. The reason for setting these up is so that people will receive better
treatment. . . . This is there [sic] way of policing their own activities in the hospital. If they suddenly have their files open to the
public, the doctors would be unwilling to step on the toes of their fellow doctors at the hospital.
Mr. Schouweiler: These records should not be available for evidentiary proceedings. . . . This is limited to one area, the
hospital review records.
Proposed Evidence Code for the State of Nevada: Hearings Before the Assembly Committee
on Judiciary, 55th Sess. 260 (1969) (emphasis added).
The committee minutes make clear that the legislature intended to protect only documents
derived directly from the peer review process. Nowhere do the legislators discuss their intent
to protect antecedent reports memorializing bare facts which were collected from percipient
witnesses. Accordingly, we conclude that the legislature never intended to exempt occurrence
reports from discovery under NRS 49.265.
Sunrise Hospital's counter-arguments are based on cases which are distinguishable from
the instant matter.
7
However, Sunrise Hospital offers Cruger v. Love, 599 So. 2d 111 (Fla.
1992), for the proposition that courts should not limit peer review privileges only to materials
generated by review committees because it discourages reporting negative information. In
short, this proposition is illusory.
Occurrence reports, which Sunrise Hospital admits are nothing more than factual
narratives, contain the very type of information that will most likely be uncovered through
traditional discovery procedures anyway. In those rare instances where the information can
only be obtained through the occurrence report, prospective plaintiffs should not be denied
access. Allowing NRS 49.265 to become an impenetrable bulwark of damaging factual
information defeats the very purposes of Nevada's evidence code for which NRS 49.265 is a
part: The purposes of this [evidence code is] to secure fairness in administration . . . to the
end that truth may be ascertained and proceedings justly determined. NRS 47.030.
Therefore, we conclude that the occurrence reports are neither work product nor protected
by the peer review privilege embodied in NRS 49.265. Accordingly, Sunrise Hospital's
petition for a writ of prohibition or, in the alternative, mandamus is denied.
8
__________

7
Alexander v. Superior Court, 859 P.2d 96 (Cal. 1993), is inapplicable because it dealt with protecting the applications of hospital
physicians and not incident reports. Yuma v. Regional Medical Ctr., 852 P.2d 1256 (Ariz. 1993), addressed the immunity given documents
considered or witnesses heard at an actual peer review hearing. West Covina Hosp. v. Superior Court, 718 P.2d 119 (Cal. 1986), is
irrelevant since it dealt with the court's refusal to compel a sitting review committee member to testify about a peer review meeting in open
court.

8
____________
113 Nev. 532, 532 (1997) Horne v. SIIS
DONNA HORNE, Appellant, v. THE STATE INDUS-
TRIAL INSURANCE SYSTEM, Respondent.
No. 27033
April 24, 1997 936 P.2d 839
Appeal from an order of the district court reversing the appeals officer's decision granting
worker's compensation benefits. Eighth Judicial District Court, Clark County; Don P.
Chairez, Judge.
State Industrial Insurance System (SIIS) petitioned for judicial review of an award of
workers' compensation benefits. The district court reversed appeals officer's decision.
Claimant appealed. The supreme court, Young, J., held that physician's statements that it was
entirely possible that there was a causal relationship between claimant's traumatic injury to
her neck and throat and her vocal cord dysfunction and that he believed that claimant's neck
trauma was related to her dysfunction were not sufficient to establish medical causation.
Affirmed.
Springer and Rose, JJ., dissented.
Karen Green-Lewis, Las Vegas, for Appellant.
Lenard T. Ormsby, General Counsel, and Arleen N. Kaizer, Associate General Counsel,
Carson City, for Respondent.
In reviewing administrative decisions, supreme court's role is identical to that of district court. Both supreme court and district
court are limited to record below in determining whether administrative officer acted arbitrarily or capriciously, thus abusing her
discretion.
Substantial evidence, in context of reviewing administrative decisions, is evidence which a reasonable mind might accept as
adequate to support a conclusion.
The supreme court, like the district court, shall not substitute its judgment for that of agency as to weight of evidence on a question
of fact in workers' compensation proceeding. NRS 233B.135(3).
Physician's statements that it was entirely possible that there was a causal relationship between workers' compensation claimant's
traumatic injury to her neck and throat and recrudescence of vocal cord dysfunction (VCD) and that he believed that claimant's neck
trauma was related to her dysfunction were not sufficient to establish medical causation.
113 Nev. 532, 533 (1997) Horne v. SIIS
OPINION
On January 5, 1991, appellant Donna Horne (Horne) was physically attacked by a man
while she was employed as a security guard. She sustained injuries, and respondent State
Industrial Insurance System (SIIS) accepted her claim and paid her worker's compensation
benefits.
In August 1991, Horne had what appeared to be an extreme attack of asthma for which she
was hospitalized. She later went to a doctor who diagnosed her with a newly discovered
disorder called Paradoxical Vocal Cord Dysfunction (PVCD). He believed this disorder
resulted from her January 5, 1991 industrial injury.
Horne subsequently attempted to reopen her January 5, 1991 claim with SIIS, which
denied her request. She appealed this decision to the hearing officer, who affirmed SIIS's
decision to deny benefits. Horne then appealed to the appeals officer who overturned the
hearing officer's decision and granted reopening of the claim. SIIS petitioned for judicial
review to the district court, which reversed the appeals officer's decision on the grounds that
there was insubstantial evidence of Horne's current condition or that it was causally
connected to the January 5, 1991 injury. Horne now appeals to this court, alleging that the
district court erred in reversing the appeals officer's decision.
Without substituting our judgment for that of the appeals officer, we conclude that the
district court did not err in finding that there was not enough evidence to reopen Horne's
January 5, 1991 claim. Accordingly, we affirm the district court's order reversing the appeals
officer's decision.
FACTS
In 1991, Horne was employed as a security guard and an emergency medical technician at
the Dunes Hotel Complex in Las Vegas. On January 5, 1991, while patrolling her assigned
area within the scope of her employment, Horne was attacked from behind by a man, who
grabbed her by the face. The man snatched her radio out of her hand and hit her over the head
with it. When Horne attempted to escape, the man grabbed her clothing and pulled her toward
him until her head hit his chest. He ripped her shirt open. All the while, he was continually
hitting her in the head with the radio. Shortly before she fell to the floor, he appropriated her
weapon. He then started to kick her, while she begged him to stop.
113 Nev. 532, 534 (1997) Horne v. SIIS
she begged him to stop. The next thing she remembered was that the attack ended and the
man was no longer present.
Horne's injuries consisted of headaches, swelling and bruising on her face and lower back,
a puffy eye, and bruising on her legs and arms. The medical reports in January 1991 do not
mention any neck injuries nor whether Horne was choked by her assailant. One report
specifically noted that upon a January 8, 1991 examination of Horne, there was no neck pain
upon palpation. However, Horne's voice became hoarse immediately after the attack, and she
subsequently claimed that she also sustained neck injuries from the attack due to being
choked.
Horne filed a worker's compensation claim with SIIS for her industrial injuries relating to
the January 5, 1991 attack. SIIS accepted this claim and provided compensation.
Seven months later, in August 1991, Horne had an extreme attack of what appeared to be
asthma,
1
whereupon she was admitted to the hospital. Horne filed a new claim with SIIS for
this incident, which was denied because it was not industrially related. She then appealed this
decision to the appeals officer; a hearing was conducted on March 24, 1992. Appeals officer
Virginia Hunt upheld SIIS's denial because there was evidence that this episode was related to
allergies and was, therefore, not industrially related.
Sometime thereafter, Horne was referred to Dr. Jim Christensen (Dr. Christensen), an
allergy and clinical immunology specialist. He diagnosed her with PVCD, a newly discovered
disorder often confused with asthma.
2
In a March 2, 1993 letter addressed to Whom It May Concern, Dr. Christensen stated, It
is entirely possible that there is a causal relationship between her traumatic injury to her neck
and throat and the recrudescence of this vocal cord dysfunction.
In September 1992, based on Dr. Christensen's diagnosis of PVCD, Horne attempted to
reopen the January 5, 1991 industrial injury claim. Horne later submitted Dr. Christensen's
March 2, 1993 letter as evidence that her PVCD was causally connected to the January 5,
1991 industrial injury. On April 2, 1993, SIIS denied the request to reopen the claim,
explaining that the vocal cord [dysfunction] was not ever included in your industrial injury
of January 5, 1991. Your industrial injury was caused to a blow in the back of your head.
__________

1
Horne had asthma for fifteen or sixteen years, but she had not been under a doctor's care for this condition since 1982.

2
PVCD mimics attacks of bronchial asthma and is characterized by vocal cord closure, usually on inspiration, leading to air-flow
obstruction, wheezing and, occasionally, stridor.
113 Nev. 532, 535 (1997) Horne v. SIIS
the back of your head. Therefore, the vocal cord dysfunction is Non-Industrially related.
On April 7, 1993, Horne appealed the denial of compensation to the hearing officer. On
May 5, 1993, a hearing was held, and on May 6, 1993, the hearing officer affirmed SIIS's
decision to deny compensation to Horne. The hearing officer determined that [Horne] has
failed to meet her burden of proof that the [PVCD] is causally related to the industrial injuries
sustained on January 5, 1991.
Horne then appealed the hearing officer's decision to the appeals officer. On June 23,
1993, a hearing was conducted by Appeals Officer Virginia Hunt, the same officer who
previously denied Horne's request to open a new claim for her August 1991 injury. At this
hearing, Horne testified as to the January 5, 1991 industrially related injury and the August
1991 incident. She also testified as to Dr. Christensen's assessment of her condition. The only
medical documentary evidence that Horne presented was Dr. Christensen's March 2, 1993
letter and a June 7, 1993 letter from Dr. Christensen to Horne's attorney, stating that he
believed Horne's neck trauma was related to her PVCD. In addition, Horne's mother testified
that Horne's voice became hoarse directly after the January 5, 1991 attack.
SIIS presented no witnesses nor conflicting medical evidence to dispute the existence of
PVCD. SIIS did, however, supply two articles about PVCD in its attempt to demonstrate the
weak medical evidence presented by Horne. SIIS also disputed that Horne even sustained a
neck injury on January 5, 1991. Your Honor, there's no documentation of any trauma to the
neck. . . . We can't say any kind of trauma triggered this so-called disease that [Horne] has.
On August 6, 1993, the appeals officer's decision was filed, reversing the hearing officer's
decision and granting Horne's request to reopen her January 5, 1991 claim to include her
PVCD condition. The appeals officer specifically found as follows:
(1) [Horne] has testified credibly to the worsening of her condition. [Horne] testified
credibly to her symptomatology and events of the industrial accident.
(2) Dr. Jim Christensen's medical documentation supplied a sufficient causal
connection for acceptance of the additional injury of vocal cord dysfunction. Dr.
Christensen also documented the necessary treatment available for [Horne].
On August 19, 1993, SIIS petitioned the district court for judicial review pursuant to NRS
233B.130 and based on all the grounds enumerated in NRS 233B.135{3).
113 Nev. 532, 536 (1997) Horne v. SIIS
grounds enumerated in NRS 233B.135(3).
3
Specifically, SIIS argued that the record did not
supply substantial evidence that Horne had PVCD or that this condition was causally
connected to the January 5, 1991 industrial injury; therefore, the appeals officer's decision
was arbitrary, capricious, and an abuse of discretion.
One year later, on August 4, 1994, the district court filed its decision and order reversing
the appeals officer's decision. The lower court found that the administrative decision was
arbitrary and capricious and not based on substantial scientific/medical evidence.
Specifically, the court stated that Dr. Christensen's letters,
with only a statement of a [sic] unsubstantiated diagnosis, a medical possibility without
scientific evidence to substantiate the diagnosis of [PVCD], does not fulfill the medical
probability standard of United Exposition Services v. SIIS, Keating, in which our
supreme court stated that a possibility is not the same as a probability.. . . The letter
submitted by [Horne] was not based on any scientific data nor was there any testing to
establish that the diagnosis is a proven medical condition.
On September 8, 1994, Horne filed her notice of appeal.
DISCUSSION
State Industrial Insurance System v. Hicks, 100 Nev. 567, 569, 688 P.2d 324, 325 (1984),
held that the burden of proof to reopen an industrial compensation claim is on the party
seeking to reopen the claim. This burden is subject to a preponderance of the evidence
standard. Id.
[Headnotes 1, 2]
In reviewing administrative decisions, this court's role is identical to that of the district court. United Exposition Service Co. v. SIIS,
109 Nev. 421, 423, 851 P.2d 423, 424 (1993). Both this court and the district court are limited to the record below in determining whether
the appeals officer acted arbitrarily or capriciously, thus abusing her discretion. State, Emp. Sec. Dep't v. Weber, 100 Nev. 121, 124
__________

3
NRS 233B.135(3) allows the reviewing court to remand or set aside an administrative agency's decision if that decision is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) Arbitrary or capricious or characterized by abuse of discretion.
113 Nev. 532, 537 (1997) Horne v. SIIS
Weber, 100 Nev. 121, 124, 676 P.2d 1318, 1320 (1984). Therefore, [t]he question is whether
the [appeals officer's] decision was based on substantial evidence. Id.; see also State, Emp.
Sec. Dep't v. Hilton Hotels, 102 Nev. 606, 607, 729 P.2d 497, 498 (1986); NRS
233B.135(3)(e) and (f). This court accepts the definition of substantial evidence in the
context of reviewing administrative decisions as evidence which a reasonable mind might
accept as adequate to support a conclusion. Schepcoff v. SIIS, 109 Nev. 322, 325, 849 P.2d
271, 273 (1993).
[Headnote 3]
Finally, this court, like the district court, shall not substitute its judgment for that of the agency as to the weight of the evidence on a
question of fact. NRS 233B.135(3); see also State, Dep't of Mtr. Vehicles v. Becksted, 107 Nev. 456, 458, 813 P.2d 995, 996 (1991);
McCracken v. Fancy, 98 Nev. 30, 30-31, 639 P.2d 552, 553 (1982).
For Horne to reopen her January 5, 1991 claim to receive benefits for her PVCD, she must prove that a causal relationship exists
between the January 5, 1991 industrial injury and PVCD.
NAC 616.576 provides:
Where a physician initiates treatment for an injury or disease of an employee after the initial report of his injury or disease and
where the medical history of the case does not mention the injury or disease for which the treatment is being initiated, the
physician must establish a firm causal connection between the newly developed injury or disease and the original accident before
the insurer may allow a fee for the treatment.
Further, this court held that a claimant to worker's compensation benefits has the burden of showing that the claimed disability or
condition was in fact caused or triggered or contributed to by the industrial injury . . . . State Industrial Insurance System v. Kelly, 99 Nev.
774, 775-76, 671 P.2d 29, 30 (1983); see also United Exposition, 109 Nev. at 424, 851 P.2d at 425. Therefore, Horne had the burden of
proof of presenting substantial evidence to demonstrate a causal connection between her PVCD and the January 5, 1991 industrial injury.
This court stated that the standard for finding a medical causal connection is as follows:
An award of compensation cannot be based solely upon possibilities and speculative testimony. A testifying physician 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.
113 Nev. 532, 538 (1997) Horne v. SIIS
fact can make the reasonable conclusion that the condition was caused by the industrial
injury.
United Exposition, 109 Nev. at 424-25, 851 P.2d at 425 (emphasis added).
In United Exposition, like the case at hand, the claimant relied solely upon a letter from his
physician to establish the requisite causation. This letter stated, It is my belief that the
accident (work-related) possibly could have been the precipitating factor in [the claimant's]
illness. Id. at 424, 851 P.2d at 425 (emphasis added). This court held that a possibility is not
the same as a probability and, therefore, the speculative nature of the doctor's opinion
regarding causation did not support the appeals officer's determination that the claimant's
current condition was industrially related.
4
Id. at 425, 851 P.2d at 425.
[Headnote 4]
Here, Horne attempted to establish the requisite firm causal relationship with two letters from Dr. Christensen. The March 2, 1993
letter states, It is entirely possible that there is a causal relationship between her traumatic injury to her neck and throat and the
recrudescence of this vocal cord dysfunction. (Emphasis added.) The June 7, 1993 letter states only that he believes Horne's neck trauma
was related to her PVCD.
5
This was the only evidence of causal connection to the January 5, 1991 industrial injury.
__________

4
This court's holding in United Exposition Service Co. v. SIIS, 109 Nev. 421, 851 P.2d 423 (1993), is consistent with the tendency to
reject mere statements of possibility and to insist on something more definitive. 2B Arthur Larson & Lex K. Larson, The Law of
Workmen's Compensation, 79.54(i) (1996). It is also consistent with other jurisdictions' standards of causal connection. For example, in
Miller v. Staton, 365 P.2d 333, 337 (Wash. 1961), the Washington Supreme Court held:
The causal relationship of an accident or injury to a resulting physical condition must be established by medical testimony beyond
speculation and conjecture. The evidence must be more than that the accident might have, may have, could have, or
possibly did, cause the physical condition. It must rise to the degree of proof that the resulting condition was probably caused by
the accident, or that the resulting condition more likely than not resulted from the accident, to establish a causal relation.
(Emphasis added.); see also Carlos v. Cain, 481 P.2d 945, 947 (Wash. Ct. App. 1971) (affirming the trial court's decision that no causal
connection was established when the cause of the claimant's current condition was unknown, could have many causes, and the claimant's
doctor could not say with reasonable medical certainty that the condition was caused by claimant's industrial accident).

5
We note that none of the medical reports from Horne's January 5, 1991 criminal attack mention any neck or throat injury. Our
dissenting colleague indicates that from [his] reading of the record, it is clear that the assault caused the neck and throat injuries that are
the subject of this opinion. With all due respect, we do not understand how his review of the record differs so drastically from ours.
113 Nev. 532, 539 (1997) Horne v. SIIS
only evidence of causal connection to the January 5, 1991 industrial injury. Unlike our
dissenting colleague, we conclude that Dr. Christensen's mere speculation and belief does not
rise to the level of reasonable medical probability of a firm causal connection. See id. at
424-25, 851 P.2d at 425; NAC 616.576.
As just discussed, mere possibility is not sufficient to establish medical causation.
Consequently, we hold that substantial evidence of the causal relationship between Horne's
PVCD and her January 5, 1991 injury was not proved. Accordingly, the appeals officer erred
in ordering the January 5, 1991 industrial claim reopened to provide benefits to Horne for
PVCD. Therefore, we affirm the district court's order reversing the appeals officer's decision.
Shearing, C. J., and Maupin, J., concur.
Springer, J., with whom Rose, J., agrees, dissenting:
The claimant in this case has presented a weak but still supportable claim for
compensation. The record contains medical evidence that the beating suffered by Ms. Horne
was related to her disability. For me this is enough.
The claimant's attorney submitted in support of Ms. Horne's claim only two hearsay letters,
both from Ms. Horne's doctor, Jim Christensen, M.D., one dated March 2, 1993, the other,
June 7, 1993. The March 2 letter from Dr. Christensen states only that it is entirely possible
that there is a causal relationship between her traumatic injury to her neck and throat and the
recrudescence of the vocal cord dysfunction. This letter is totally useless on its face and
should not have been submitted. I agree with the majority opinion that compensation cannot
be based solely upon possibilities and speculative testimony. The June 7 letter from Dr.
Christensen (in which the doctor says that the injury is related to the disability) is also
problematic; but, in my view, it is sufficient to support Ms. Horne's claim.
I trace the denial of Ms. Horne's claim entirely to the slip-shod manner in which her
attorney submitted the claim. It appears to me that Dr. Christensen was in a position to
establish the probability that Ms. Horne's vocal cord dysfunction
1
was caused by her
work-connected throat injury. It would not have been much trouble for counsel to have
submitted a physician's affidavit stating that it was medically probable that the injury caused
the throat and neck condition. As matters stand, the only basis for granting the claim must be
found in Dr. Christensen's letter of June 7, 1993, in which he states that he "believe[s] that
her neck trauma is related to her vocal cord dysfunction."
__________

1
The injury in this case was incurred during the course of a vicious criminal assault, and from my reading of the record, it is clear that
the assault caused the neck and throat injuries that are the subject of this opinion.
113 Nev. 532, 540 (1997) Horne v. SIIS
June 7, 1993, in which he states that he believe[s] that her neck trauma is related to her vocal
cord dysfunction. There is little excuse for counsel to have submitted such a statement as the
only support for this claim. I can understand why the majority would reject this letter as proof
of causation; but, as I have said, I would allow the claim, based on the doctor's statement of
opinion or belief.
I would give a liberal construction to Dr. Christensen's opinion that he believes the trauma
is related to Ms. Horne's present condition and accept it as being sufficient to establish a
causal relationship. If a doctor were to say a patient's abdominal pain was related to an
inflamed appendix, I think that I would understand that the pain was caused by appendicitis.
In my view, the majority is being hypercritical when it rules, as a matter of law, that related
to does not mean caused by in the present context. It is for this reason that I dissent.
____________
113 Nev. 540, 540 (1997) Lisle v. State
KEVIN JAMES LISLE, Appellant, v. THE
No. 28172
April 24, 1997 937 P.2d 473
Appeal from a judgment of conviction of one count of first-degree murder with use of a
deadly weapon and from a sentence of death. Eighth Judicial District Court, Clark County;
Jeffrey D. Sobel, Judge.
The supreme court held that: (1) state's failure to disclose confession by defendant did not
violate defendant's due process rights; (2) defendant had no right to relief from district court's
erroneous failure to hold evidentiary hearing to determine whether defendant received
adequate notice of grand jury proceedings; (3) defendant was not prejudiced by prosecutor's
improper remarks made during opening and closing arguments of guilt phase and penalty
phase; (4) sufficient evidence supported conviction for murder with use of deadly weapon; (5)
sufficient evidence supported finding of aggravating circumstance that murder was
committed by defendant who knowingly created great risk of death to more than one person;
and (6) court did not abuse its discretion in permitting state to present to jury evidence
concerning unadjudicated murder during penalty hearing before jury advised court that it had
found aggravating circumstance beyond reasonable doubt.
Affirmed.
113 Nev. 540, 541 (1997) Lisle v. State
Rehearing denied. Lisle v. State, 114 Nev. 221, 954 P.2d 744 (1998).
Morgan D. Harris, Public Defender and Michael L. Miller, and Ralph E. Baker, Deputy
Public Defenders, Clark County, for Appellant.
and Stacy Kollins, and Daniel M. Seaton, Deputy District Attorneys, Clark County, for
Respondent.
State's failure to disclose evidence when defense makes no request or only general request for evidence violates defendant's due
process rights only if omitted evidence creates reasonable doubt which did not otherwise exist. U.S. Const. amend. 14.
2. Constitutional Law; Criminal Law.
State's failure to disclose confession by defendant, which supported state's case, did not violate defendant's due process rights. U.S.
Const. amend. 14.
Collective effect of evidence undisclosed by state determines whether nondisclosure violates Brady requirement that suppression
of evidence favorable to accused by state violates due process. U.S. Const. amend. 14.
4. Criminal Law.
Undisclosed impeachment evidence can be immaterial because of its cumulative nature, so that state's nondisclosure does not
violate Brady, only if witness was already impeached at trial by same kind of evidence. U.S. Const. amend. 14.
Allegedly undisclosed impeachment evidence was not material in capital murder prosecution, such that state's failure to disclose
did not violate defendant's due process rights, where evidence was cumulative in that it corroborated similar evidence introduced at
trial and, in addition, evidence had little or no impeachment value. U.S. Const. amend. 14.
Prosecutor's alleged misconduct instructing government witness not to talk to defense counsel at interview held after trial had
taken place did not violate defendant's due process rights. U.S. Const. amend. 14; SCR 173.
7. Criminal Law.
District court's determinations of fact will not be set aside unless they are clearly erroneous.
District court abused its discretion in failing to hold evidentiary hearing on defendant's motion to dismiss indictment on ground
that he was not properly served with notice of grand jury proceedings against him, where defendant submitted minutes of his justice
court appearance as proof that he received only one day's notice. U.S. Const. amend. 14.
113 Nev. 540, 542 (1997) Lisle v. State
9. Mandamus.
Writ of mandamus is appropriate remedy for inadequate notice of grand jury hearing.
10. Criminal Law.
Defendant had no right to relief from trial court's alleged erroneous failure to hold evidentiary hearing to determine whether
defendant was given adequate notice of grand jury proceeding, where defendant failed to seek writ of mandamus and failed to
demonstrate any prejudice resulting from inadequate notice.
11. Criminal Law.
As general rule, failure to object, assign misconduct, or request instruction concerning alleged prejudicial remarks made by
prosecutor to jury will preclude appellate consideration. Where errors are patently prejudicial and inevitably inflame or excite passions
of jurors against accused, general rule does not apply.
12. Criminal Law.
Prosecutorial misconduct will probably be considered prejudicial if issue of guilt or innocence is close and if state's case is not
strong.
13. Criminal Law.
Prosecutor has duty to refrain from stating facts in his opening statement that he cannot prove at trial.
14. Criminal Law.
Evidence of other offenses is universally regarded as prejudicial and is therefore admitted into evidence only for certain statutorily
specified purposes, and then only when its probative value outweighs its prejudicial effect. NRS 48.045(2).
15. Criminal Law.
Prosecutor's comment during his opening statement that defendant, like all criminals, made the mistake of turning into a
cul-de-sac, went beyond what prosecutor could prove at trial, but was harmless error.
16. Criminal Law.
Analysis of harm caused by prosecutor's vouching for credibility of government witnesses depends in part on closeness of case.
17. Criminal Law.
Prosecutor's statements during rebuttal closing argument which may have suggested that prestige of government was behind
government witnesses was not reversible error in capital murder prosecution, where prosecutor did not make any affirmative
misrepresentations, fact of prosecutor's negotiations with government witnesses was in evidence, and government witnesses were
cross-examined about those negotiations.
18. Criminal Law.
Prosecutor's rebuttal closing argument statement that defendant failed to call witnesses to impeach government witnesses was
improper.
19. Criminal Law.
Prosecutor's statement during rebuttal penalty phase argument improperly suggesting that jury was aligned with prosecution was
not patently prejudicial and would not have affected jury verdict.
20. Criminal Law.
Prosecutor's statement during rebuttal penalty phase argument of capital murder prosecution, that jury must be accountable and
do the right thing, was not prosecutorial misconduct.
113 Nev. 540, 543 (1997) Lisle v. State
21. Criminal Law.
Standard of review for sufficiency of evidence in criminal case is whether, after viewing evidence in light most favorable to
prosecution, any rational trier of fact could have found essential elements of crime beyond reasonable doubt.
22. Criminal Law.
It is for jury to determine what weight and credibility to give various testimony.
23. Homicide.
Sufficient evidence supported conviction for murder with use of deadly weapon, where codefendants testified that defendant was
in passenger seat of van when he shot driver of another vehicle, witness testified the defendant owned gun and would not let anyone
else use it, defendant changed residences on day after shooting and said that it was getting too hot, and five hours after shooting,
defendant stated that he had done something crazy.
24. Homicide.
Sufficient evidence supported finding of aggravating circumstance that murder was committed by defendant who knowingly
created great risk of death to more than one person, where defendant fired his gun from van at driver of other vehicle from fairly close
range while two vehicles were moving. NRS 200.033(3).
25. Criminal Law.
When sentencing body is given discretion to impose death sentence, that discretion must be suitably directed and limited so as to
minimize risk of wholly arbitrary and capricious action.
26. Homicide.
Jury instructions during penalty phase of capital murder prosecution regarding the use of character evidence minimized risk of
arbitrary and capricious action such that no prejudicial error occurred, where jury was clearly instructed that it must find
aggravating circumstance before death penalty was option and that evidence of other crimes was not to be considered as
aggravator.
27. Homicide.
District court has broad discretion to admit evidence at penalty hearing for first-degree murder. NRS 175.552.
28. Homicide.
District court did not abuse its discretion in allowing state to present evidence of unadjudicated murder, during penalty hearing for
first-degree murder, before jury advised court that it had found aggravating circumstance beyond reasonable doubt. NRS 175.552.
29. Criminal Law.
District court's failure to grant continuance of defendant's arraignment until ten days after he actually received copy of grand jury
transcript did not deny defendant his right to due process of law, where defendant did not show any prejudice from failure to grant
continuance. U.S. Const. amend. 14; NRS 172.225(4).
30. Homicide.
Sufficient evidence supported finding that aggravating circumstance that murder was committed by defendant who knowingly
created great risk of death to more than one person outweighed any mitigating circumstances such that death sentence was not imposed
under influence of passion, prejudice, or any arbitrary factor, where defendant was sitting in passenger seat of van when he
shot driver of another vehicle as both vehicles were moving.
113 Nev. 540, 544 (1997) Lisle v. State
in passenger seat of van when he shot driver of another vehicle as both vehicles were moving. NRS 177.055(2), 200.033(3).
OPINION
Per Curiam:
FACTS
On the evening of October 22, 1994, Joey Gonzales and Kip Logan bought two beers and
then headed towards Logan's girlfriend's house. As Logan drove on U.S. Interstate Highway
95, a white van approached his Mustang. Gonzales observed the van's front passenger stick
his head and arm out of the window and scream at them. Gonzales told Logan, Let's just go,
and took a swig of his beer. At that moment, Gonzales heard the driver-side window break.
He turned and saw Logan slumped over the steering wheel. Gonzales grabbed the steering
wheel and stopped the Mustang.
Metro police officer Steve Borden and his partner, Mike Carreia, arrived as Gonzales was
pulling Logan out of the Mustang. Officer Borden saw that Logan had been shot in the head.
He checked Logan for vital signs, and saw none.
Gonzales told Borden that he saw three males in an Aerostar-type van, Hispanic or white,
with shaved heads. Gonzales said that the shooter had a goatee, and that the back-seat
passenger appeared more white.
On the next day, a medical examiner determined that Logan had died of a gunshot wound
to his head. Fragments of a bullet consistent with a .357 Magnum were removed from
Logan's head.
On the same day, John Melcher was arrested. He denied being in the van on the previous
night.
On October 27, 1994, Anthony Evans was arrested. That evening, he gave a statement that
Melcher was in the front passenger seat of the van, and that the shot came from the front
passenger side. He said that after the shooting, Shotgun (Melcher) disposed of the gun.
On October 31, 1994, the defendant, Kevin James Lisle, was arrested.
On April 6, 1995, Evans agreed to testify against Lisle and Melcher in exchange for the
State reducing his charges to accessory after the fact of murder. Evans agreed to testify both
in the Logan case and in another homicide case involving Lisle (the Lusch case). On May
23, 1995, Evans was released from custody.
Sometime after Evans agreed to cooperate with the State, Melcher sought the same deal.
On July 24, 1995, he was interviewed by detectives.
113 Nev. 540, 545 (1997) Lisle v. State
viewed by detectives. His charges were later reduced to accessory after the fact of murder.
His case was transferred to juvenile court and he received probation.
On October 9, 1995, an amended indictment was filed charging Lisle with one count of
murder with use of a deadly weapon and one count of attempted murder with use of a deadly
weapon. A jury trial commenced on October 16, 1995.
Guilt phase
At trial, Evans testified that on the night of October 22, 1994, he, Melcher, and Lisle were
at Larry Prince's apartment. Evans, Melcher, and Lisle decided to borrow a white van from
Prince, and Melcher picked up the keys to the van. As Lisle got into the front passenger seat
of the van he said, I hope nobody messes with us tonight, because I'm drunk and I do crazy
things when I'm drunk. Lisle was holding a .357 handgun.
Evans testified that Melcher drove the van, Lisle was in the front passenger seat, and he
was in the rear passenger seat. Lisle was hanging out the window and throwing gang signs at
cars. Evans heard Lisle tell Melcher, speed up, and the van pulled up to a Mustang. Evans
observed Lisle pull out his gun and point it out of the window, and then Evans heard a gun
shot and saw sparks fly. Evans then saw the Mustang pull over to the side of the road, saw
that the Mustang's driver-side window was shattered, and saw the driver lying against the
steering wheel. Evans stated that he did not know whether there was anyone else in the
Mustang besides the driver. Evans testified that after the gunshot, Lisle directed Melcher to
get off the freeway and to stop the van. Lisle then disposed of the gun.
On redirect, Evans testified that he was a member of the North Hollywood Boyz, and Lisle
was a member of the Westside Lompoc, both California gangs. He stated that he had known
Lisle for two years and Melcher for two months. He stated that Melcher was not a gang
member. Evans said that gang members have a rule not to tell on none of your friends. He
testified that he was afraid of Lisle.
Prince testified that while living in Las Vegas, he became familiar with Evans, Melcher
and Lisle. He stated that he had rented a van for their use, and that Lisle drove it more than
anyone else. Prince admitted that he testified in this case pursuant to a plea bargain on a drug
possession charge.
The grand jury testimony of Tom Foster was read. On the night of the shooting, Foster
observed three males exit from a white van. Foster testified that he was positive that Lisle
was the driver of the van. Foster identified Melcher as a passenger.
Detective Diane Falvey testified that on the day of Evan's arrest he had indicated that
Melcher was the shooter, but she suspected he was not giving the right information.
113 Nev. 540, 546 (1997) Lisle v. State
suspected he was not giving the right information. Detective Donald Tremel testified that
when Melcher was arrested, Melcher told him that Lisle was driving the van.
Melcher testified that he had no gang affiliation. He stated that he did things for Lisle,
such as drive the car around, in exchange for clothes and money. Melcher stated that on the
evening of October 22, 1994, he was driving the white van on the freeway.
Melcher testified that while he was in custody, he saw Lisle at the detention center. Lisle
told him that he looked Logan in the eye before he killed him and he enjoys it and that after I
do my first one I will see what he is talking about. Lisle also told him that the police
believed Melcher was the shooter, and told him to take the blame for the shooting. Melcher
stated that he was aware of the gang code of conduct, if you snitch, you die, and that he had
been afraid of retaliation.
Melcher also testified that he could not grow a beard.
Sophia Martinez testified that at approximately 3:00 a.m. on October 23, 1994, Lisle told
her that he had done something crazy, and to watch the news. At that time, Lisle had a
mustache but no hair on his chin. She had never seen Melcher with a mustache or a goatee.
She saw Lisle with a shaved face later that day.
Christopher Barnes, testifying for the defense, stated that after hearing about the shooting
he contacted the police, because he had been assaulted by individuals of a similar description.
He identified a photograph of Melcher as one of his assailants. However, he acknowledged
that although he had believed his assailant had lighter skin than himself, Melcher's skin was
darker than his. He was shown a photo of Lisle but did not recognize him as having been
involved in the incident. He described his assailant as having a little bit of rough around the
chin and the moustache, what he would call a goatee.
David Hermanson, Melcher's cellmate, stated that Melcher had admitted to him that he
was trying to shoot the passenger but missed and hit the driver.
On October 20, 1995, the jury returned a verdict of guilty for both the murder and the
attempted murder charges.
Penalty phase
On October 24, 1995, the State filed its intent to seek the death penalty based on the
aggravating circumstance that the murder was committed by a person who knowingly created
a risk of death to more than one person by means of a weapon, device, or course of action that
would normally be hazardous to the lives of more than one person. The district court granted
Lisle's motion for a mistrial on attempted murder, but denied a motion for mistrial for the
murder charge.
113 Nev. 540, 547 (1997) Lisle v. State
mistrial on attempted murder, but denied a motion for mistrial for the murder charge.
During the penalty phase, several witnesses implicated Lisle in the Lusch case.
On October 26, 1995, the jury returned a sentence of death. On February 1, 1996, the
judgment of conviction and a warrant of execution were filed. This appeal followed.
DISCUSSION
Whether the State violated Brady v. Maryland by failing to disclose a confession by the
defendant and other material
Lisle contends that the State failed to disclose a statement made by Melcher that included a
confession by Lisle and impeachment evidence until after trial, in violation of his right to due
process.
On July 24, 1995, Melcher gave a taped statement to police that Lisle now contends
constitutes a highly inflammatory and provocative confession by himself to Melcher. Lisle
argues that the State's failure to disclose this statement left him unable to prepare for
Melcher's in-court testimony that Lisle confessed to Melcher. Lisle argues that this
nondisclosure violates the holding in Brady v. Maryland, 373 U.S. 83 (1963), that the
suppression of evidence favorable to the accused by the State violates due process where the
evidence is material either to guilt or punishment. Id. at 87.
[Headnote 1]
Where the defense makes no request or only a general request for evidence, if the omitted evidence creates a reasonable doubt
which did not otherwise exist, constitutional error has been committed.' Under this standard, evidence is material if there is a reasonable
probability that the result would have been different if the evidence had been disclosed. Jimenez v. State, 112 Nev. 610, 619, 918 P.2d
687, 692 (1996) (citations omitted) (quoting Roberts v. State, 110 Nev. 1121, 1128, 881 P.2d 1, 5 (1994)).
[Headnote 2]
The confession Lisle contends was suppressed supports the State's case; thus, Lisle's contention that it constitutes evidence favorable
to the accused is a novel interpretation of Brady. Moreover, Melcher and Evans were present at the homicide, and their testimony
corroborated Lisle's confession that he fired at the Mustang. Thus, Lisle's confession to Melcher supports eyewitness evidence that Lisle
shot Logan, and it does not appear a reasonable probability that disclosure would have affected the outcome of the trial.
Lisle further argues that Melcher's statement included impeachment evidence that should have been disclosed by the State.
113 Nev. 540, 548 (1997) Lisle v. State
State. In the statement, Melcher admitted that he was a gang member and that he was called
Shotgun. Lisle argues that the State took advantage of the fact the Defendant did not have
the 10:17 a.m. statement to infer that the code of silence kept gang members from snitching
on other gang members and that is why Evans initially chose to point the finger at non-gang
member Melcher.
In the statement, Melcher admitted to being an enforcer for Lisle and to doing drug
deals. Melcher also admitted that he had accosted Barnes, who testified that he had been
accosted by a person with a goatee. Melcher purportedly could not grow a goatee. Lisle
argues that this statement is material to the identity of the perpetrator in the instant case.
[Headnotes 3, 4]
The State contends that the undisclosed impeachment evidence is cumulative of evidence by which Melcher was impeached at trial,
and therefore not material. The United States Supreme Court has never held that the Constitution demands an open file policy, Kyles v.
Whitley, 514 U.S. 419, 437 115 S.Ct. 1555, 1567 (1995); accordingly, a prosecutor must gauge the likely net effect of all such [favorable]
evidence and make disclosure when the point of reasonable probability' is reached. Id. Thus, although the undisclosed evidence must be
evaluated item by item to determine its importance, the collective effect of the items determines whether or not the nondisclosure violates
Brady. Id. at 1567-68, 1567 n.10. Undisclosed impeachment evidence can be immaterial because of its cumulative nature only if the
witness was already impeached at trial by the same kind of evidence. U.S. v. Cuffie, 80 F.3d 514, 518 (1996).
[Headnote 5]
Each piece of allegedly undisclosed impeachment evidence corroborates similar evidence introduced at trial. Furthermore, this
evidence has little or no impeachment value. We conclude that the cumulative effect of this evidence is not material.
Whether prosecutorial misconduct was committed when the prosecutor ordered witness Melcher not to discuss any matters with the
defense attorneys unless it was in the State's presence and with the State's permission
Lisle contends that the State attempted to control an interview of Melcher and instructed Melcher not to talk to defense counsel,
violating both Lisle's right to due process and SCR 173, Fairness to opposing party and counsel, sections 1 and 6.
113 Nev. 540, 549 (1997) Lisle v. State
[Headnote 6]
The jury verdict was filed on October 25, 1995. The interview with Melcher took place after trial, on November 1, 1995. Therefore, the
prosecutor's actions did not frustrate defense counsel's efforts to prepare a defense. We conclude that any misconduct on the part of the
prosecutor at this interview did not violate Lisle's right to due process.
SCR 173 contemplates misconduct before or during trial. See Sipsas v. State, 102 Nev. 119, 716 P.2d 231 (1986). As the conduct
complained of here did not prejudice the trial, it is unnecessary to discuss whether this rule was violated.
Whether the defendant was properly served with notice of the grand jury proceedings against him
Lisle alleges that on October 31, 1994, he was taken into a room in the police station. There, a woman threw a piece of paper across the
table in front of him and said, You've been subpoenaed, but because he was handcuffed to a chair, he could not read the paper. He was
not informed of its contents, which apparently included notice of a grand jury proceeding.
Two days later, on November 2, 1994, Lisle appeared in justice court and was given actual notice that the State would be presenting
evidence to the grand jury in an effort to indict him for murder. On the next day, November 3, 1994, the grand jury proceedings took place.
On December 19, 1994, Lisle filed a motion to dismiss on the grounds that he was given inadequate notice of the proceeding. He
submitted minutes of his justice court appearance as proof that he received only one day's notice. The State's response included an affidavit
from a detective stating that notice was mailed to Lisle's last known address on October 26, 1994, seven days before the grand jury
proceeding, and that a copy of the notice was given to Lisle upon his arrest.
Lisle argues that an evidentiary hearing should have been held to resolve the conflict between the detective's affidavit and his evidence
of receiving only one day's notice. He argues that he was denied due process of law because a hearing was not held to evaluate the
credibility of the witnesses. He did not file a motion for an evidentiary hearing regarding this matter.
[Headnote 7]
A district court's determinations of fact will not be set aside unless they are clearly erroneous. Hermann Trust v. Varco-Pruden
Building, 106 Nev. 564, 566, 796 P.2d 590, 592 (1990).
113 Nev. 540, 550 (1997) Lisle v. State
In Johnston v. State, 107 Nev. 944, 822 P.2d 1118 (1991), the defendant had sought a writ
of habeas corpus, arguing that the State had failed to give him notice of a grand jury hearing.
This court stated:
At the pretrial hearing, all parties agreed that it was a matter of credibility of the
witnesses as to whether Johnston received the required Marcum Notice. Johnston
testified that he was never given notice, either orally or in writing. The State produced
four witnesses, however, to support its contention that Johnston received notice of the
proceeding. Therefore, we conclude that the district court did not abuse its discretion in
finding in favor of the State.
Id. at 946, 822 P.2d at 1120.
Where . . . something more than a naked allegation has been asserted, it is error to resolve
the apparent factual dispute without granting the accused an evidentiary hearing.
Vaillancourt v. Warden, 90 Nev. 431, 529 P.2d 204 (1974) (remanding for an evidentiary
hearing where defendant filed four affidavits to support claim that he pleaded guilty in return
for a promise from the prosecutor's office).
[Headnote 8]
It appears that the district judge, relying upon the detective's affidavit, determined that Lisle received at least three day's notice of the
proceeding. Johnston suggests that an evidentiary hearing would have been appropriate. Lisle did not submit four affidavits, as in
Vaillancourt, but did provide more than a naked allegation. We conclude that the district court abused its discretion in failing to hold an
evidentiary hearing.
Lisle further argues that because he was not given adequate notice of the grand jury proceedings against him, the grand jury lacked
jurisdiction to indict him.
The State argues that the issue of inadequate notice must be raised by extraordinary writ, and cannot be entertained on direct appeal.
Alternatively, the State argues that Lisle received reasonable notice.
At a pretrial hearing, the district judge denied Lisle's petition for writ of habeas corpus. The district judge discussed Sheriff v. Marcum,
105 Nev. 824, 783 P.2d 1389 (1989), and there was some confusion over whether Marcum notice required five days, or whether anything
more than one day was adequate.
In Marcum, the district court had granted the defendants' petition for a writ of habeas corpus for failure to receive reasonable notice of
the grand jury proceedings at which they were indicted. The district court stated that five days' notice was reasonable, but one day's notice
was unreasonable. Id. at 825-27, 7S3 P.2d at 1390-91.
113 Nev. 540, 551 (1997) Lisle v. State
783 P.2d at 1390-91. This court affirmed, noting that since a defendant has a right to testify in
front of a grand jury, he also has a right to notice. Id. at 826, 738 P.2d at 1390-91; but see
Gordon v. Ponticello, 110 Nev. 1015, 879 P.2d 741 (1994) (the right to testify at a grand jury
proceeding is limited).
Apparently, Lisle was mailed notice seven days prior to the grand jury proceeding. It is not
clear that he received this letter. When the district court stated five days wasn't given here,
it appears to have been referring to Lisle's arrest three days prior to the hearing.
[Headnote 9]
A writ of mandamus is an appropriate remedy for inadequate notice of a grand jury hearing. Solis-Ramirez v. District Court, 112 Nev.
344, 347, 913 P.2d 1293, 1295 (1996). In Sturrock v. State, 95 Nev. 938, 604 P.2d 341 (1979), this court held that a defendant who has
been denied his right to a preliminary hearing, and has failed to pursue a pretrial remedy through mandamus, has waived any impropriety
regarding the trial court's inaction. Id. at 943, 604 P.2d at 345. We stated,
In circumstances such as those present in the instant case, where abuse is so patent and deprivation purportedly so crucial to the
accused, an extraordinary remedy must be sought, because no post-judgment appeal will be available to review the error
complained of, absent compelling reasons.
Id., 604 P.2d at 345.
In People v. Corona, 259 Cal. Rptr. 524, 528-29 (1989) (citations omitted), the court of appeal stated,
The general rule in California is that a conviction will not be reversed due to an irregularity in grand jury proceedings absent a
showing that the irregularity deprived the defendant of a fair trial or otherwise resulted in actual prejudice relating to the
conviction. Absent a possibility of prejudice it is unnecessary to decide the merits of a claim of irregularity. Any right to relief
without a showing of prejudice is limited to a pretrial challenge by extraordinary writ.
Similarly, the Second Circuit dismissed a petition for a writ of habeas corpus where a state court's failure to allow a defendant to testify
before a grand jury was harmless beyond a reasonable doubt. Saldana v. State of N.Y., 850 F.2d 117 (2nd Cir. 1988).
[Headnote 10]
This court cannot determine whether Lisle received reasonable notice because the district court failed to hold an evidentiary hearing to
determine when Lisle was given notice. Nonetheless, Lisle failed to seek a writ of mandamus and has subsequently failed to
demonstrate any prejudice resulting from inadequate notice.
113 Nev. 540, 552 (1997) Lisle v. State
failed to demonstrate any prejudice resulting from inadequate notice. We conclude that Lisle
has no right to relief from this alleged error and further conclude that the district court had
jurisdiction to try the defendant.
Whether the defendant was denied a fair trial due to repeated improper comments to the jury
by the prosecutors
[Headnote 11]
Lisle argues that the prosecutors made prejudicial remarks to the jury during both the guilt and the penalty phases of trial, in violation
of his right to due process. Lisle did not object to the remarks at trial, except for statements concerning his drug use. As a general rule, the
failure to object, assign misconduct, or request an instruction, will preclude appellate consideration. However, where the errors are patently
prejudicial and inevitably inflame or excite the passions of the jurors against the accused, the general rule does not apply. Garner v. State,
78 Nev. 366, 372-73, 374 P.2d 525, 529 (1962) (citations omitted).
[Headnote 12]
Garner further stated, [i]f the issue of guilt or innocence is close, if the state's case is not strong, prosecutor misconduct will probably
be considered prejudicial. Id. at 374, 374 P.2d at 530; cf. Lay v. State, 110 Nev. 1189, 1194, 886 P.2d 448, 451 (1994) ([W]here
evidence of guilt is overwhelming, prosecutorial misconduct may be harmless error.).
1. Guilt phase
[Headnotes 13, 14]
The prosecutor has a duty to refrain from stating facts in his opening statement that he cannot prove at trial. Riley v. State, 107 Nev.
205, 212, 808 P.2d 551, 555 (1991), cert. denied, 514 U.S. 1052, 115 S.Ct. 1431 (1995), citing Garner, 78 Nev. at 371, 374 P.2d at 528.
Evidence of other offenses is universally regarded as prejudicial and is therefore admitted into evidence only for certain specified
purposes, NRS 48.045(2), and only then when its probative value outweighs its prejudicial effect. Theriault v. State, 92 Nev. 185, 189,
547 P.2d 668, 671 (1976), overruled on other grounds, Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995).
[Headnote 15]
In the opening statement, the prosecutor stated that Lisle's family were gang members. This was not shown at trial; however, the fact
that Lisle himself was a gang member, and had gang member friends, was in evidence. The prosecutor stated that Lisle was smoking
marijuana on the night of the shooting.
113 Nev. 540, 553 (1997) Lisle v. State
Lisle was smoking marijuana on the night of the shooting. Lisle's drug use was not brought
up during trial, but may have been relevant to show state of mind. The statement that Lisle
was looking for trouble was supported by testimony at trial. The prosecutor also stated,
He, like all criminals, made the mistake of turning into a cul-de-sac. This statement goes
beyond what the prosecutor could prove at trial; nonetheless, we conclude that it constitutes
harmless error. We conclude that none of the prosecutor's statements within the opening
statement constitutes reversible error.
During rebuttal closing argument, the prosecutor referred to negotiations he had with
Melcher and Evans before they pled guilty to lesser charges. Lisle argues that the prosecutor
improperly injected his opinion or personal beliefs into his argument, tendered his own
credentials, and vouched for the credibility of government witnesses.
It is improper for the prosecution to vouch for the credibility of a government witness.
Vouching may occur in two ways: the prosecution may place the prestige of the
government behind the witness or may indicate that information not presented to the
jury supports the witness's testimony.
United States v. Roberts, 618 F.2d 530, 533 (1980).
[Headnote 16]
Analysis of the harm caused by vouching depends in part on the closeness of the case. U.S. v. Frederick, 78 F.3d 1370, 1378 (9th
Cir. 1996); see also Roberts at 534 (improper to imply that a witness not called could support a chief witness's testimony).
[Headnote 17]
In the present case, the credibility of both Melcher and Evans was critical. The prosecutor did appear to refer to information known by
him but not presented to the jury as to the content of the negotiations between himself and Melcher, and himself and Evans. Moreover, the
prosecutor's statements may have suggested that the prestige of the government was behind the witnesses. However, the prosecutor did not
make any affirmative misrepresentations; the fact of his negotiations with Melcher and with Evans was in evidence, and Melcher and Evans
were cross-examined about these negotiations.
[Headnote 18]
Also, Lisle contends that the prosecutor improperly commented on his failure to call witnesses to impeach Melcher and Evans. We
agree. It is improper to suggest to the jury that it is the defendant's burden to produce proof by explaining the absence of witnesses or
evidence.
113 Nev. 540, 554 (1997) Lisle v. State
witnesses or evidence. Barron v. State, 105 Nev. 767, 778, 783 P.2d 444, 451 (1989).
2. Rebuttal penalty phase argument
Lisle contends that the prosecutor improperly suggested to the jury that it align itself with
the prosecution by referring to we and us.
[Headnote 19]
For the most part, the prosecutor's use of we and us is rhetorical, and therefore not improper. However, the statement, There is
only one human being in this world that causes us to be here today doing this terrible thing we have to do. And his name is Kevin Lisle,
improperly suggests that the jury is aligned with the prosecution.
[Headnote 20]
Lisle contends that the prosecutor improperly told the jury that it must be accountable and do the right thing. In Domingues v.
State, 112 Nev. 683, 917 P.2d 1364 (1996), cert denied,
------
U.S.
------
, 117 S.Ct. 396 (1996) (No. 96-5797), the prosecutor stated, This
is the time for accountability and responsibility. Death is the only appropriate sentence in this case. Anything less is disrespectful to the
dead and irresponsible to the living. Id. at 698, 917 P.2d at 1375. This court held that this statement did not amount to prosecutorial
misconduct. Id. Similarly, here, we conclude that the prosecutor's remarks to the jury concerning accountability do not constitute
prosecutorial misconduct.
We conclude that several of the prosecutor's remarks were improper, but we further conclude that none was patently prejudicial and
none would have affected the jury verdict.
Whether there was sufficient evidence to convict defendant of the offense of murder with use of a deadly weapon and whether the district
court erred in denying defendant's motion for a mistrial based on the argument that the totality of conflicting evidence failed to prove
guilt beyond a reasonable doubt
Lisle filed a motion for mistrial as to both murder with use of a deadly weapon and attempted murder with use of a deadly weapon, and
the court granted his motion as to the attempted murder charge. Lisle argues that the evidence is not sufficient to support the jury's finding
that he was guilty of murder with use of a deadly weapon. He argues that the only evidence of his guilt is the uncorroborated and
impeachable testimony of Melcher and Evans.
Evans' testimony at trial implicating Lisle contradicted earlier statements identifying Melcher as the front seat
passenger.
113 Nev. 540, 555 (1997) Lisle v. State
statements identifying Melcher as the front seat passenger. Both Gonzales and Foster
identified Melcher but failed to identify Lisle. Also, Melcher changed his version of the
events. He originally stated that he was not in the van, and later said that he was the driver
and Lisle was the front seat passenger.
[Headnotes 21, 22]
The standard of review for sufficiency of evidence in a criminal case 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. Lay v. State,
110 Nev. at 1192, 886 P.2d at 450. [I]t is for the jury to determine what weight and credibility to give various testimony. Hutchins v.
State, 110 Nev. 103, 107, 867 P.2d 1136, 1139 (1994) (affirming judgments of conviction based primarily on the testimony of a sexual
assault victim).
[Headnote 23]
Melcher's and Evans' trial testimony implicating Lisle was consistent. Moreover, contrary to Lisle's contentions, additional evidence in
the record corroborates Melcher's and Evans' testimony. Prince testified that Lisle owned a .357 Magnum and would not let anyone else use
it. Prince also testified as to Lisle moving out of Prince's house the day after the shooting, and saying that it was getting too hot. Martinez
testified that five hours after the shooting, Lisle told her he had done something crazy.
We conclude that the jury had sufficient evidence to find Lisle guilty of murder beyond a reasonable doubt, and therefore the district
court properly denied Lisle's motion for mistrial.
Whether the district court committed reversible error when it allowed the jury to consider as an aggravating circumstance that the
murder was committed by a person who knowingly created a great risk of death to more than one person
Lisle argues that the district court applied NRS 200.033(3)
1
in an overly broad manner, violating the Constitution. Lisle contends that
this aggravator fails because there was insufficient evidence to indicate (1) that at the time the single shot was fired he knew there was
a passenger in the vehicle, and {2) that the single shot placed another person at great risk of death.
__________

1
NRS 200.033 states, in pertinent part:
The only circumstances by which murder of the first degree may be aggravated are:
. . . .
(3) The murder was committed by a person who knowingly created a great risk of death to more than one person by
means of a weapon, device or course of action which would normally be hazardous to the lives of more than one person.
113 Nev. 540, 556 (1997) Lisle v. State
he knew there was a passenger in the vehicle, and (2) that the single shot placed another
person at great risk of death.
First, Lisle contends that there was insufficient evidence to indicate that he knew Logan
had a passenger. Evans testified that he did not see a passenger in the Mustang. However,
Gonzales was able to see the front and rear passengers in the van.
Second, Lisle contends that a great risk of death to more than one person requires a high
probability of harm to others, not a mere possibility of harm. He cites a number of cases from
Florida and Georgia to support his argument that a high probability of harm to others was not
present here.
In Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985), the defendant knowingly created
a great risk of death to more than one person where the victim's wife was in the line of fire.
Id. at 243, 699 P.2d at 1056.
[Headnote 24]
In the instant case, Lisle fired his revolver at Logan from a fairly close range while the two vehicles were moving. Unlike Nevius,
Gonzales was not between Lisle and Logan, but he was sitting just beyond Logan, the target.
We conclude that sufficient evidence supports the finding of this aggravating circumstance, and its application in this context is not
overbroad.
Whether prejudicial error occurred when the jury was instructed on the appropriate use of the character evidence presented by the
prosecution during the penalty phase
Lisle argues that the jury instructions during the penalty phase were ambiguous and led the jury to rely improperly on his character and
his unadjudicated murder charge in finding him death-eligible. Lisle contends that nothing prevented the jury from considering character
evidence along with aggravating and mitigating evidence in arriving at the death penalty option. He argues that the evidence presented by
the State at the penalty hearing was solely evidence of his bad character, and the jury should have been instructed not to consider this
evidence until after it weighed the aggravating and mitigating circumstances.
[Headnote 25]
When a sentencing body is given discretion to impose the death sentence, that discretion must be suitably directed and limited
so as to minimize the risk of wholly arbitrary and capricious action. Gregg v. Georgia, 428 U.S. 153, 189 (1975) (Opinion of Stewart,
Powell, and Stevens, JJ.), reh'g denied, 429 U.S. 875 (1976). In Gallego v. State, this court explained the process by which a Nevada jury
arrives at a sentence of death. 101 Nev. 782, 711, P.2d S56 {19S5), cert. denied, 471 U.S. S71 {19S6) {where jury was
instructed not to consider evidence of uncharged homicides as aggravating circumstance, such evidence was
relevant to the considerations of defendant's death worthiness).
113 Nev. 540, 557 (1997) Lisle v. State
711, P.2d 856 (1985), cert. denied, 471 U.S. 871 (1986) (where jury was instructed not to
consider evidence of uncharged homicides as aggravating circumstance, such evidence was
relevant to the considerations of defendant's death worthiness). Individuals who are
identified as potential recipients of the death penalty because of conduct statutorily defined as
an aggravating circumstance must then be scrutinized according to their individual
characteristics. 101 Nev. at 791, 711 P.2d at 862.
[Headnote 26]
In the present case, the jury was clearly instructed that it must find an aggravating circumstance before the death penalty was an option,
and the aggravator was defined. Instruction 8B clearly states that evidence of other crimes is not to be considered as an aggravator.
2
We
conclude that the instructions to the jury regarding the use of character evidence minimized the risk of arbitrary and capricious action, and
no prejudicial error occurred.
Whether the trial court committed prejudicial error when it allowed the State to present to the jury evidence concerning an unadjudicated
murder case during the penalty hearing
Lisle argues that the district court erred by allowing the State to present evidence concerning an unadjudicated murder case before the
jury advised the court that it had found an aggravating circumstance beyond a reasonable doubt. Lisle contends that because this evidence
was presented in conjunction with aggravating and mitigating circumstances, the district court had no way of determining whether the
aggravator was found. Moreover, Lisle contends that the evidence is prejudicial and unreliable. He argues that introduction of the evidence
prior to establishing that the jury found the aggravating circumstance beyond a reasonable doubt violated his right against cruel and
unusual punishment and his right to due process.
[Headnote 27]
The district court has broad discretion to admit evidence at a penalty hearing for first-degree murder under NRS 175.552. In Riker v.
State, 111 Nev. 1316, 905 P.2d 706 (1995), cert. denied,
------
U.S.
------
, 116 S.Ct. 1687 (1996), this court stated, evidence of
uncharged crimes may be admitted during a penalty hearing only after any aggravating circumstances have been established beyond a
reasonable doubt. Id. at 1326, 905 P.2d at 712, citing Guy v. State, 10S Nev. 770, 7S2
__________

2
Penalty phase instruction 8B reads:
The State has alleged one statutory aggravating circumstance against Kevin Lisle. Other arrests, convictions, or pending charges
against Mr. Lisle are to be considered for character only and not as aggravating circumstances.
113 Nev. 540, 558 (1997) Lisle v. State
712, citing Guy v. State, 108 Nev. 770, 782, 839 P.2d 578, 586 (1992). This court then
explained that it does not necessarily follow that the trier of fact cannot hear the evidence of
uncharged crimes before it considers the aggravating circumstances, only that the uncharged
crimes cannot be used to prove the aggravating circumstances. Id. at 1327, 905 P.2d at 713.
[Headnote 28]
In the present case, evidence of the uncharged homicide was presented before the jury submitted its decision regarding the aggravating
circumstance. The jury was instructed not to consider other crimes or pending charges as aggravating circumstances. There is a
presumption that jurors follow jury instructions. Tennessee v. Street, 471 U.S. 409, 415 (1985). Accordingly, we conclude that the district
court did not err in allowing the State to present evidence of the unadjudicated murder before the jury advised the court that it had found an
aggravating circumstance beyond a reasonable doubt.
Whether the defendant's right to due process of law was violated when the trial court failed to continue the arraignment as statutorily
mandated under NRS 172.225(4)
Lisle contends that his right to due process of law was violated when the district court refused to grant his motion for a continuance of
his arraignment. NRS 172.225(4) provides that any defendant to whom a copy [of the grand jury transcript] has not been delivered is
entitled upon motion to a continuance of his arraignment until a date 10 days after he actually receives a copy. Lisle did not receive a copy
of the grand jury transcript before his arraignment.
[Headnote 29]
Lisle has failed to show any prejudice resulting from the district court's failure to grant a continuance of his arraignment. See Snyder v.
State, 103 Nev. 275, 280, 738 P.2d 1303, 1306 (1987) (finding that defendant's failure to plead at a formal arraignment did not deprive
him of any substantial right, nor did it change the course of his trial). Accordingly, we conclude that the district court's failure to comply
with NRS 172.225(4) did not deny Lisle his right to due process of law.
Whether the defendant's conviction must be reversed because of the cumulative effect of errors
Lisle argues that numerous errors in this case violate his rights and damage the integrity of the justice system, thereby mandating
reversal of his conviction.
113 Nev. 540, 559 (1997) Lisle v. State
If the cumulative effect of errors committed at trial denies the appellant his right to a
fair trial, this court will reverse the conviction. Relevant factors to consider in deciding
whether error is harmless or prejudicial include whether the issue of innocence or guilt
is close, the quantity and character of the error, and the gravity of the crime charged. . .
. 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.
Homick v. State, 112 Nev. at 316, 913 P.2d at 1288 (citing Big Pond v. State, 101 Nev. 1, 3,
692 P.2d 1288, 1289 (1985)).
Upon a review of the record, we conclude that the verdict would have been the same in the
absence of error.
[Headnote 30]
Finally, NRS 177.055(2) compels this court to address whether the death sentence was imposed under the influence of passion,
prejudice, or any arbitrary factor. We conclude that the record contains sufficient evidence upon which the jury could have found that the
aggravating circumstance outweighed any mitigating circumstances, and thus the death sentence was not imposed under the influence of
passion, prejudice, or any arbitrary factor.
CONCLUSION
We conclude that the effect of any errors in this case was insufficient to justify overturning Lisle's conviction or his sentence of death.
Sufficient evidence supports the jury's finding that Lisle committed murder with use of a deadly weapon. Accordingly, we affirm the
conviction and sentence.
3
__________

3
____________
113 Nev. 559, 559 (1997) Pombo v. Nevada Apartment Ass'n
MICHELE G. POMBO, Appellant, v. NEVADA APARTMENT ASSOCIATION, a Nevada
Corporation; LISA ROCHTE; STEVE BUFFINGTON; MARK STOUT; KEN
McELROY; CHRISTINA HUBERT; and VIKKI L. MORLEY, Respondents.
No. 27307
May 2, 1997 938 P.2d 725
Appeal from a judgment dismissing appellant's claims of breach of contract for wrongful
termination, civil conspiracy, emotional distress, and abuse of process; ruling in favor of
respondents on counterclaims of fraud and conversion; and awarding respondents
attorney fees and costs.
emotional distress, and abuse of process; ruling in favor of respondents on counterclaims of
fraud and conversion; and awarding respondents attorney fees and costs. Eighth Judicial
District Court, Clark County; Nancy A. Becker, Judge.
Former employee brought action against her former employer and members of its board of
directors, alleging breach of contract, abuse of process, defamation, civil conspiracy and
emotional distress. Former employer brought counterclaims for conversion and
misappropriation. The district court dismissed former employee's claims except for
defamation claim, ruled in favor of former employer on counterclaims and awarded former
employer and board members attorney fees and costs. Former employee appealed. The
supreme court, Shearing, C. J., held that defendants' second offer of judgment was valid
unconditional offer for purposes of rule providing for award of attorney fees and costs to
offeror if judgment finally obtained by offeree was not more favorable than offer.
Affirmed.
Eric Zubel, Las Vegas, for Appellant.
Patrick N. Chapin, Las Vegas, for Respondents.
District court's findings of fact and conclusions of law, even where predicated upon conflicting evidence, must be upheld if
supported by substantial evidence, and may not be set aside unless clearly erroneous.
2. Costs.
Defendants' second offer of judgment, which contained no express conditions, was valid unconditional offer of judgment for
purposes of rule providing for award of attorney fees and costs to offeror if judgment finally obtained by offeree was not more
favorable than offer, notwithstanding fact that defendants' first offer of judgment made four days earlier had been conditional. NRCP
68.
3. Costs.
Decision whether to award attorney fees is within sound discretion of district court.
4. Costs.
Offer of judgment must be unconditional and for definite amount in order to be valid for purposes of rule providing for award of
attorney fees and costs to offeror if judgment finally obtained by offeree is not more favorable than that offered. NRCP 68.
OPINION
In late 1990, several members of the board of directors of the respondent National
Apartment Association (NAA), including respondents Lisa Rochte {"Rochte") and
Christina Hubert {"Hubert"), determined that the executive director of the NAA, appellant
Michele Pombo {"Pombo"), was violating certain NAA financial policies.
respondents Lisa Rochte (Rochte) and Christina Hubert (Hubert), determined that the
executive director of the NAA, appellant Michele Pombo (Pombo), was violating certain
NAA financial policies. The NAA operations manual outlined these policies as well as
Pombo's duties.
Based on these alleged improprieties, the NAA board of directors (the board) voted to
suspend Pombo with pay. A financial investigation subsequently conducted by an outside
accounting firm discovered that various financial irregularities existed within the
organization's petty-cash system, within its bookkeeping practices, and with respect to monies
received from membership meetings. Pombo, who as executive director was in charge of
effectuating NAA fiscal policies and overseeing NAA finances, was then terminated by the
board without a disciplinary review. The operations manual provided that employees could be
terminated without a disciplinary review only when they had committed gross misconduct.
The board also attempted to institute criminal embezzlement proceedings against Pombo
based on her alleged misconduct.
In October 1992, Pombo filed a complaint against the NAA, various members of the
board, and against Pombo's former assistant, respondent Vikki Morley (Morley), alleging
breach of contract and other related claims, abuse of process, defamation, civil conspiracy,
and emotional distress. The NAA brought counterclaims of conversion and misappropriation,
and requested attorney fees and costs.
On March 17, 1994, the NAA extended an offer of judgment of $17,500 to Pombo that
contained three conditions and expired the following day. On March 21, 1994, the NAA
made a second offer of judgment for $17,500, but apparently excluded the conditions. Pombo
did not accept either offer.
Following a bench trial, the district court concluded, with respect to the breach of contract
claims, that the NAA had good cause to terminate Pombo, that it acted in good faith, and that
Pombo's actions amounted to gross misconduct for which the board could terminate
employment without a disciplinary review. With respect to the defamation claim, the district
court concluded that Morley had made a defamatory statement about Pombo and that the
NAA had breached its duty to caution Morley to refrain from such pronouncements. Pombo
was awarded $12,000: $10,000 to be paid by the NAA and $2,000 by Morley. The district
court also found no abuse of the criminal process by the NAA, and no evidence of a civil
conspiracy or outrageous conduct sufficient to find intentional infliction of emotional
distress.
The district court also ruled in favor of the NAA on its counterclaims of fraud and
conversion and entered judgment against Pombo in the amount of $1,5S2.
against Pombo in the amount of $1,582. After a post-trial hearing, the district court awarded
Pombo attorney fees of $1,494.83 and $500 in court costs, to be paid by Morley. The district
court also found that the NAA's March 21, 1994 offer of judgment was unconditional on its
face and valid under Nevada law. Pursuant to NRCP 68 and NRS 17.115, the district court
then awarded the NAA attorney fees of $10,000 and costs of $5,418.52 based upon Pombo's
rejection of the March 21, 1994 pre-trial settlement offer of $17,500.
DISCUSSION
[Headnote 1]
A district court's findings of fact and conclusions of law, even where predicated upon conflicting evidence, must be upheld if supported
by substantial evidence, and may not be set aside unless clearly erroneous. Trident Construction v. West Electric, 105 Nev. 423, 426, 776
P.2d 1239, 1241 (1989).
[Headnote 2]
Pombo contends that the NAA's offer of judgment was invalid because it contained conditions.
[Headnote 3]
The district court awarded the NAA attorney fees and costs based on Pombo's failure to accept a pre-trial offer of $17,500 and its
findings that the factors enunciated in Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983), militated in favor of the award. The decision
whether to award attorney fees is within the sound discretion of the district court. Bergmann v. Boyce, 109 Nev. 670, 674, 856 P.2d 560,
563 (1993).
[Headnote 4]
NRCP 68 provides: If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree shall not recover
costs, nor attorneys' fees, but shall pay the costs and attorneys' fees, if any be allowed, of the party making the offer from the time of the
offer. An offer of judgment must be unconditional and for a definite amount in order to be valid for purposes of NRCP 68. Stockton
Kenworth v. Mentzer Detroit Diesel, 101 Nev. 400, 404, 705 P.2d 145, 148 (1985).
In the instant case, the NAA's original offer of judgment of March 17, 1994, contained the following conditions for acceptance: (1)
dismissal with prejudice against all defendants, (2) the execution of a confidentiality agreement by Pombo not to disclose the terms of the
agreement, and (3) no admission of wrongdoing by any of the individual respondents. The second offer of judgment, filed with the court on
March 21, 1994, specified that the Defendant Nevada Apartment Association, for itself and itself alone, hereby offers to accept
judgment to be taken against it in this action in the total sum of Seventeen Thousand Five Hundred Dollars
{$17,500), which sum includes all costs."
alone, hereby offers to accept judgment to be taken against it in this action in the total sum of
Seventeen Thousand Five Hundred Dollars ($17,500), which sum includes all costs. The
second offer contained no express conditions.
There is no reason to conclude that because the first offer was conditional, that the offer of
judgment filed March 21, 1994 was also conditional. On the contrary, the fact that a new offer
was filed four days after the first conditional offer suggests that a correction deleting the
conditions was desired. Consequently, we conclude that the March 21, 1994 offer was a valid
offer of judgment for purposes of NRCP 68 and NRS 17.115. The district court did not abuse
its discretion in awarding attorney fees and costs to the Nevada Apartment Association.
We affirm the judgment of the district court in all other respects.
1
Springer, Rose, and Young, JJ., and Brennan, Sr. J., concur.
2
__________

1

2
The Governor designated The Honorable James A. Brennan, Senior Judge, to sit in the place of then-Chief Justice Thomas L. Steffen.
Nev. Const. art. 6, 4.
____________
113 Nev. 564, 564 (1997) Calloway v. City of Reno
CHARLES CALLOWAY and MARLENE IACOMETTI, on Behalf of Themselves and
Other Property Owners of HUFFAKER HILLS UNITS 3 AND 4 HOMEOWNERS'
ASSOCIATION, Appellants, v. CITY OF RENO, P & H CONSTRUCTION INC.,
CLARENCE POEHLAND, JOHN CARL CONSTRUCTION COMPANY,
HIGHLAND CONSTRUCTION, INC., and OFFENHAUSER DEVELOPMENT
COMPANY, Respondents.
CITY OF RENO, Cross-Appellant, v. HIGHLAND CONSTRUCTION, INC.,
OFFENHAUSER and OETJEN CONSTRUCTION, INC., OFFENHAUSER
DEVELOPMENT COMPANY, SPARKS ROOFING AND SIDING SERVICE,
INC., CHARLES CALLOWAY and MARLENE IACOMETTI on Behalf of
Themselves and Other Property Owners of HUFFAKER HILLS UNITS 3 AND 4
HOMEOWNERS' ASSOCIATION, Cross-Respondents.
No. 25628
May 22, 1997 939 P.2d 1020
Appeal from district court orders granting summary judgment in a construction defect
case. Second Judicial District Court, Washoe County; James A. Stone, Judge.
Owners of homes sued developer and contractor, city, and subcontractors, alleging claims
of warranty, tort, and negligent inspection. Following settlement of owners' claims against
developer and contractor, the district court granted summary judgment in favor of
subcontractor and in favor of developer and contractor on city's cross-claim. Homeowners
and city appealed. The supreme court held that: (1) statute of repose did not bar claims for
latent defects; (2) subcontractors were not prejudiced by application of relation-back doctrine
in determining when owners' action named subcontractors as defendants; (3) economic loss
rule did not apply to negligence claims asserted by owners; and (4) city was not entitled to
indemnity from developer and contractor based on indemnity clause in permit application.
Reversed in part, affirmed in part and remanded.
[Rehearing pending]
Maddox & Saint-Aubin, Reno, for Charles Calloway, Marlene Iacometti, and other
Property Owners of Huffaker Hills Units 3 and 4 Homeowners' Association.
Lemons, Grundy & Eisenberg, Reno, for City of Reno.
Beasley, Holden & Kern, Reno, for P & H Construction, Clarence Poehland, and John Carl
Construction Company.
Erickson, Thorpe & Swainston, Ltd. and Thomas P. Beko, Reno, for Highland
Construction, Inc. and Offenhauser and Oetjen Construction, Inc.
Haefner & Enzenberger, Reno, for Offenhauser Development Company.
Mortimer, Sourwine, Mousel & Sloane, Ltd., Reno, for Sparks Roofing and Siding
Service, Inc.
Cecilia L. Rosenauer, Reno, for Amici Curiae Consulting Engineers Council of Nevada
and Builders Association of Northern Nevada.
1. Courts; Limitation of Actions.
Statute of repose did not bar claims for latent defects against developer and subcontractors by homeowners, despite prediction by
trial court that legislature would enact grace period that would allow retroactive application of statute of repose yet not save
homeowners' claims. Without actual grace period provided by legislature, trial court was bound by supreme court's earlier decision
prohibiting retroactive application of statute of repose and could not vary from that mandate by attempting to predict what future
actions legislature might take. NRS 11.204.
2. Parties.
Homeowners properly asserted authority of Doe defendant rule to add subcontractors as defendants in suit involving defects in
homes, although homeowners sought to add subcontractors under rule governing third-party practice, as homeowners invoked Doe
defendant rule in their reply in support of motion to add subcontractors and in motion for reconsideration. NRCP 10(a), 14(b).
Subcontractor was not prejudiced by application of relation-back doctrine in determining when homeowners' action named
subcontractors as defendants, despite argument that homeowners did not satisfy promptness requirement because homeowners knew
that subcontractor was potential defendant nearly two years before he was named as defendant, as subcontractor was deposed shortly
after his involvement was made apparent, which put him on notice that he could be named.
4. Negligence.
Under tort theories of negligence and strict liability, plaintiff usually cannot recover economic loss without also proving personal
injury or property damage.
5. Negligence.
Primary purpose of economic loss rule is to shield defendant from unlimited liability for all of economic consequences of negligent
act, particularly in commercial or professional setting, and thus to keep risk of liability reasonably calculable.
particularly in commercial or professional setting, and thus to keep risk of liability reasonably calculable.
6. Negligence.
Economic loss rule did not apply to negligence claims asserted by owners of newly constructed homes against subcontractors who
framed homes, where owners were forced to settle claims with developer and contractor to obtain funds needed to protect homes from
coming storm season. Subcontractors' liability was limited to damage caused by alleged negligent framing and was measured by cost of
repairing framing defects and resulting water damage.
7. Negligence.
Although economic loss doctrine does not necessarily apply to claims against subcontractors, traditional tort theories are available
for subcontractors to protect themselves from being held liable for negligence of tradesmen who may perform work that affects
subcontractors' work. Subcontractors who perform their services reasonably under the circumstances may not be held liable jointly or
severally for negligence of other defendants.
8. Negligence.
Construction exception to economic loss rule is limited to construction defect cases in which relief is sought by purchasers of
newly constructed homes who cannot pursue traditional contract remedies against developer or contractor. In order for plaintiff to
recover, plaintiff must present good faith reason why relief cannot be sought in traditional fashion from developer or contractor, such
as that developer or contractor no longer exists, is bankrupt, or was dismissed from lawsuit due to bona fide pressures on plaintiff.
9. Municipal Corporation.
Approval or disapproval of building permit based on building inspection is discretionary function, and city is immune from
liability for negligently performing that function. NRS 41.033.
10. Municipal Corporation.
If city conducts building inspection and approves building permit with knowledge that defect in construction exists, city is subject
to liability. NRS 41.033.
City was not entitled to application of economic loss rule on claims by owners of newly constructed homes for negligent inspection
and approval of construction with knowledge of defects, if city had actual knowledge of alleged construction defects and failed to take
proper action as result of that discovery, as city could reasonably foresee that defects could injure owners and amount of damages
could be reasonably calculable. NRS 41.033.
12. Negligence.
Subcontractors were not strictly liable to new home purchasers for alleged defects in newly constructed home, as subcontractors
did not control entire construction of house and then thrust that house into stream of commerce.
City inspectors were not strictly liable to new home purchasers for alleged defects in newly constructed home, as city and its
inspectors were not in business of supplying or manufacturing products that are later thrust into stream of commerce.
14. Action.
Order dismissing cross-claim by city against developer and contractor was not moot, although cross-claim was made pursuant to
plaintiffs' third amended complaint to which developer and contractor had been granted summary judgment and cross-claim was not
refiled with respect to plaintiffs' fourth amended complaint. Trial court did not lose jurisdiction over claim and judicial economy was
served by adjudicating claim in case that was prone for appeal.
15. Pleading.
When cross-claim is filed, trial court gains jurisdiction over that claim and retains jurisdiction until final written order disposing of
that cross-claim is issued.
16. Contracts.
Classification of contract clause as an adhesion clause is reserved for cases where one party has unfairly used its superior
bargaining power to force inclusion of oppressive and unreasonable clause in contract.
17. Indemnity.
Indemnity clauses are strictly construed, particularly when indemnitee claims that it should be indemnified against its own
negligence.
18. Indemnity.
Ambiguous indemnity contracts are construed against indemnitee, particularly when indemnitee was drafter of agreement.
19. Indemnity.
When indemnitee seeks indemnity for its own negligent acts based on express indemnity clause, indemnity clause must clearly
and unequivocally express indemnitor's assumption of liability for negligent acts of indemnitee.
20. Indemnity.
City was not entitled to indemnity from developer and contractor on claim by owners of newly constructed homes that city had
ignored known defects when approving permits for homes, as express indemnity clause in permit application was general hold
harmless clause which did not expressly state that applicant indemnified city for city's reckless conduct. Provision was intended to
hold city harmless for any negligent conduct by developer and contractor which could subject city to liability.
21. Indemnity.
Implied indemnity shifts one joint tort-feasor's liability to another joint tort-feasor on basis of some preexisting legal or special
relationship between tort-feasors.
22. Indemnity.
Implied indemnity theories are not viable in face of express indemnity agreements. When parties affirmatively deal with question
of indemnity in written contract, it is fair to conclude that they intended what was expressed in their agreement, not that some common
law rule should govern their rights and liabilities.
OPINION
Per Curiam:
This appeal follows the complex construction defect litigation that arose out of alleged
defects in the Huffaker Hills Townhouse Development in Reno.
that arose out of alleged defects in the Huffaker Hills Townhouse Development in Reno.
Charles Calloway and Marlene Iacometti are class representatives, representing the class of
164 townhouse owners in Huffaker Hills who brought the underlying lawsuit (appellants).
Appellants asserted that their homes were built with defective framing that was
responsible for extensive water damage from rain and snow. As a result, appellants sought
recovery based upon warranty and tort theories. On October 30, 1989, appellants filed their
original complaint. That complaint named Offenhauser Development Corporation, Highland
Construction, Inc. (collectively referred to as Developer and Contractor), and Sparks
Roofing and Siding Service, Inc., all Nevada corporations, as defendants. Pursuant to NRCP
10(a), the complaint also named thirty fictitious individuals or entities as Doe defendants.
On October 15, 1991, appellants filed a third amended complaint that named the City of
Reno (the City) and various other subcontractors as defendants. The claim against the City
was based upon negligent inspection of construction. Specifically, appellants alleged that the
City approved the construction with actual knowledge of alleged defects.
On December 9, 1992, a fourth amended complaint was filed. That complaint named P &
H Construction Inc. (P & H), Clarence Poehland (Poehland), and John Carl Construction
Company (Carl) as defendants (collectively referred to as the Subcontractors). The claims
against the Subcontractors sounded in warranty and tort.
Appellants settled their claims against Developer and Contractor. As to the remaining
defendants, the district court summarily dismissed sixty-five members of appellants' class
based upon the statutes of repose. The district court summarily dismissed appellants'
negligence and strict liability claims based upon the doctrine of pure economic loss.
In addition to the claims brought by appellants, defendants engaged in extensive third
party litigation. The City cross-claimed against Developer and Contractor for indemnity and
contribution. The district court summarily dismissed the City's cross-claim in conjunction
with its approval of Developer and Contractor's settlement agreement with appellants.
In this appeal, appellants challenge the district court's interpretation and application of the
statute of repose and the district court's use of the economic loss doctrine to preclude their
negligence and strict liability claims. P & H and Poehland cross-appeal, challenging the
district court's ruling regarding the relation back doctrine and its use with Doe defendants.
Further, the City cross-appeals against Developer and Contractor, challenging the district
court's dismissal of the City's cross-claim against them.
the City cross-appeals against Developer and Contractor, challenging the district court's
dismissal of the City's cross-claim against them.
We conclude that the district court's interpretation and application of the statute of repose
and the district court's use of the economic loss doctrine to preclude appellants' negligence
and strict liability claims were erroneous. With respect to the Subcontractors' and the City's
cross-appeals, we conclude that the district court's rulings were proper.
DISCUSSION
1. Statute of repose
[Headnote 1]
Appellants filed their original complaint on October 30, 1989. In January 1993, the district court ruled that NRS 11.204 operated to bar
all claims in the third amended complaint by homeowners whose certificates of occupancy were filed more than eight years before the filing
of the original complaint. In February 1993, the district court used the Doe defendant pleading procedure to make the effective date on
which the Subcontractors were named as defendants in this action the date of the original complaint. Then, in March 1993, the district
court summarily dismissed the claims brought in the fourth amended complaint against the Subcontractors by the sixty-five plaintiffs
whose homes were substantially completed before October 30, 1981.
No action may be brought more than eight years after substantial completion of construction against a person who provided
construction services if the action is to recover damages for latent defects. NRS 11.204. This court reviewed the constitutionality of the
current version of NRS 11.204 in Alsenz v. Twin Lakes Village, Inc., 108 Nev. 1117, 843 P.2d 834 (1992). This court stated that the
running of a statute of repose is triggered not on the date of injury to a plaintiff, but on the date construction is substantially completed. Id.
at 1120-23, 843 P.2d at 836-38. The Alsenz court then stated that NRS 11.204 could not be applied retroactively to bar claims involving
construction that was substantially completed before the statute's enactment in 1983. Id.; see also Lotter v. Clark Co. Bd. of
Commissioners, 106 Nev. 366, 793 P.2d 1320 (1990); Allstate Ins. Co. v. Furgerson, 104 Nev. 772, 766 P.2d 904 (1988).
On April 10, 1991, the legislature passed SB 105, expressing its clear intention that NRS 11.204 be applied retroactively to limit
actions arising out of construction completed before 1983. Alsenz, 108 Nev. at 1121 n.1, 843 P.2d at 837 n.1. However, we determined
that SB 105 was unconstitutional because it did not provide a grace period within which to file an action that
had accrued based upon the statute of limitation.
determined that SB 105 was unconstitutional because it did not provide a grace period within
which to file an action that had accrued based upon the statute of limitation. Id. at 1121, 843
P.2d at 837; G and H Assocs. v. Ernest W. Hahn, Inc., 113 Nev. 265, 934 P.2d 229 (1997)
(explaining distinction between statute of repose and statute of limitation).
In this case, the district court understood our holding in Alsenz, but attempted to predict
whether the legislature would enact a grace period that would provide relief for the plaintiffs
whose homes were completed before NRS 11.204 was enacted in 1983. The district court
predicted that the legislature would not enact a grace period that would assist those plaintiffs,
and then the district court summarily dismissed them from this action.
Our Alsenz decision clearly prohibits the use of SB 105 to apply NRS 11.204 retroactively
because SB 105 did not provide a grace period for those with accrued rights to file actions to
enforce those rights. At the time the district court summarily dismissed the actions brought by
sixty-five homeowners based upon the statute of repose, the legislature had not yet provided a
grace period. The district court was bound by our Alsenz decision and improperly varied from
that mandate by attempting to predict what future actions the legislature might take. Such
predictions were improper, and the district court's orders that summarily dismissed the actions
brought by plaintiffs whose homes were completed before the enactment of NRS 11.204 in
1983 are hereby reversed. See McKay v. Board of Cty. Comm'r., 103 Nev. 490, 492, 746 P.2d
124, 125 (1987) (stating that it is not the business of the courts to fill legislative omissions).
2. Relation back doctrine
P & H and Poehland cross-appeal, arguing that the district court improperly applied the
relation back doctrine in determining when appellants' action named P & H and Poehland as
defendants. P & H and Poehland contend that appellants did not properly comply with NRCP
10(a) as described in Nurenberger Hercules-Werke v. Virostek, 107 Nev. 873, 822 P.2d 1100
(1991). Nurenberger explained that NRCP 10(a), the Doe defendant rule, should be applied
liberally to allow plaintiffs to pursue redress from all wrongdoers. Id. at 878, 822 P.2d at
1103.
[Headnote 2]
P & H and Poehland correctly point out that appellants sought to add them under the authority of NRCP 14(b), the rule governing
third-party practice, not NRCP 10(a). However, appellants invoked NRCP 10(a) in their reply in support of the motion to add P & H and
Poehland, and in a motion for reconsideration.
Accordingly, we conclude that appellants properly asserted the authority of NRCP 10(a).
[Headnote 3]
P & H and Poehland also argue that they were prejudiced because appellants did not satisfy the promptness requirement articulated in
Nurenberger because appellants knew that Poehland was a potential defendant nearly two years before Poehland was named as a defendant.
However, Poehland was deposed shortly after his involvement was made apparent, which put Poehland on notice that he could be named.
Therefore, Poehland did not suffer prejudice. Accordingly, we hold that the district court properly ruled on this issue.
3. Negligence claim against the Subcontractors
Appellants claim that the district court erroneously granted summary judgment for the Subcontractors based on the economic loss
doctrine. The district court ruled that in order to recover in tort, appellants had to assert personal injuries or damages to property other than
the homes themselves. Otherwise, according to the district court, plaintiffs were seeking recovery for pure economic loss which is
prohibited by Nevada case law.
In Nat'l Union Fire Ins. v. Pratt and Whitney, 107 Nev. 535, 539, 815 P.2d 601, 603 (1991), a case involving litigation over damages to
an airplane, we stated that the economic loss doctrine was never intended to apply to construction projects. In dissent, however, Justice
Rose stated that this statement was unnecessary for the analysis of the case before the court: While this may be our decision when that
issue is presented to us and carefully briefed, we should refrain from making such broad gratuitous legal statements until [the case is]
properly before this court. Id. at 546-47, 815 P.2d at 603. Today, the case is properly before this court.
[Headnotes 4, 5]
Under tort theories of negligence and strict liability, a plaintiff usually cannot recover economic loss without also proving personal
injury or property damage. Central Bit Supply v. Waldrop Drilling, 102 Nev. 139, 717 P.2d 35 (1986); Local Joint Exec. Bd. v. Stern, 98
Nev. 409, 651 P.2d 637 (1982). The primary purpose of the rule is to shield a defendant from unlimited liability for all of the economic
consequences of a negligent act, particularly in a commercial or professional setting, and thus to keep the risk of liability reasonably
calculable. Stern, 98 Nev. at 411, 651 P.2d at 638.
[Headnote 6]
Despite the economic loss doctrine, strong policy considerations support allowing owners of newly constructed homes
to recover in tort for damages to their homes from entities that negligently construct their homes.
ations support allowing owners of newly constructed homes to recover in tort for damages to
their homes from entities that negligently construct their homes. See Cosmopolitan Homes,
Inc. v. Weller, 663 P.2d 1041 (Colo. 1983); Oates v. Jag, Inc., 333 S.E.2d 222 (N.C. 1985);
McMillan v. Brune-Harpenau-Torbeck Builders, Inc., 455 N.E.2d 1276 (Ohio 1983);
Kennedy v. Columbia Lumber & Mfg. Co., 384 S.E.2d 730 (S.C. 1989). Nevada is facing a
tremendous surge of new home construction, and many families are faced with the decision of
buying a new home. The purchase of a home is often the most important economic decision
these families will make. Such a family can already assert express and implied warranties to
recover from a builder/vendor for defects in new construction. Radaker v. Scott, 109 Nev.
653, 660-61, 855 P.2d 1037, 1041-42 (1993). Too often, however, recovery against the
builder/vendor is thwarted.
Builder/vendors can create a corporation to develop new construction and then
disassemble the corporation when a project is completed or file bankruptcy before new
homeowners discover, or can recover for, defects in construction. In this case, appellants
faced an ensuing winter season that allegedly threatened further damage to their homes due to
defendants' negligent construction. To avert such damage, appellants were forced to settle
their claims with Developer and Contractor, the only parties against whom they could assert
contract remedies, in order to obtain the funds needed to protect their homes from the coming
storm season.
Thus, despite the existence of solvent subcontractors who are allegedly responsible for
negligently framing appellants' homes, the pure economic loss rule would leave appellants
with no way to recover from the Subcontractors for losses they did not recover from
Developer and Contractor.
The Subcontractors argue that this inequitable result should not prompt the erosion of the
pure economic loss doctrine because that doctrine is necessary to protect them from
unforeseen, unlimited liability. The Subcontractors also urge this court to apply the economic
loss doctrine because subcontractors are often unable to control the physical construction
environment in which they perform their work.
We ruled in Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 508, 797 P.2d 946,
952 (1990), that the pure economic recovery rule is inapplicable in a case where a defendant
could clearly foresee the type and extent of injury that could result from his or her negligent
conduct. Our ruling did not offend the pure economic loss rule because defendant was not
subject to unlimited, unforeseen liability.
In this case, the Subcontractors could clearly foresee that homeowners would live in the
homes they framed. The Subcontractors could also foresee that if they negligently performed
their framing work, structural damage and water intrusion could develop and force each
homeowner to pay repair costs. Further, the costs of repairing the framing defects and water
damage are reasonably calculable by a person in the trade. Therefore, we conclude that the
Subcontractors need not be protected by the shield of the economic loss rule. Their liability is
limited to the damage caused by their alleged negligent framing and is measured by the cost
of repairing the framing defects and the resulting water damage. In fact, if the Subcontractors
were negligent, they would be liable in contract for that same amount of damages to
Developer and Contractor if Developer and Contractor were found liable to the plaintiffs
based on implied warranties.
[Headnote 7]
The Subcontractors assert a valid concern that they often cannot control their construction surroundings. A subcontractor does not
control the trades which precede or follow it on the job site. See La Jolla Homeowners' v. Superior Court, 261 Cal. Rptr. 146 (Ct. App.
1989). While this fact militates against holding the Subcontractors strictly liable for their work, it does not follow that the Subcontractors
cannot be held liable in negligence. Traditional tort theories are available for subcontractors to protect themselves from being held liable for
the negligence of tradesmen who may perform work that affects the subcontractors' work. Our ruling today only allows recovery against
negligent subcontractors. Subcontractors who perform their services reasonably under the circumstances may not be held liable jointly or
severally for the negligence of other defendants.
Accordingly, we conclude that the district court improperly dismissed appellants' negligence claim against the Subcontractors.
Subcontractors are not subject to unforeseeable, unlimited liability, and reasonable subcontractors will not be held jointly or severally liable
for the negligent acts of other defendants who negligently perform work on the same project.
[Headnote 8]
Our ruling today is limited. We do not intend to disturb the application of the economic loss doctrine to other tort scenarios, thereby
opening the floodgates of litigation. Instead, our holding is limited to construction defect cases in which relief is sought by purchasers of
newly constructed homes who cannot pursue traditional contract remedies against a developer or contractor. Further, in order for such a
plaintiff to recover, that plaintiff must present a good faith reason why relief cannot be sought in the traditional
fashion, from the developer or contractor.
present a good faith reason why relief cannot be sought in the traditional fashion, from the
developer or contractor. Such reasons include that the developer or contractor no longer
exists, is bankrupt, or was dismissed from the lawsuit due to bona fide pressures upon the
plaintiff.
4. Negligence claim against the City
[Headnotes 9, 10]
Governmental immunity protects the City from liability for negligence in the performance of inspections. NRS 41.033. The approval or
disapproval of a building permit based on a building inspection is a discretionary function, and the City is immune from liability for
negligently performing that function. Tahoe Village Homeowners v. Douglas Co., 106 Nev. 660, 663, 799 P.2d 556, 558 (1990). However,
if a city conducts a building inspection and approves a building permit with knowledge that a defect in construction exists, the city is
subject to liability. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985).
In Charlie Brown, we ruled that a city could be liable, despite the economic loss doctrine, for damages that result from the city's failure
to perform a mandatory function that was designed to prevent the injury that occurred. In that case, the city could easily foresee the type
and extent of damage that would result from its failure to perform a mandatory function. Charlie Brown, 106 Nev. at 508-09, 797 P.2d at
952.
[Headnote 11]
Similarly, in this case, the City can be liable only if appellants prove that the City had actual knowledge of the alleged construction
defects and failed to take the proper action as a result of that discovery. We conclude that if the City knew of the alleged defects, the City
could reasonably foresee that the defects could injure appellants and the amount of damages could be reasonably calculable. Accordingly,
as with the Subcontractors, we conclude that the City's actions do not merit the shield of the economic loss rule because the liability for
those actions is not wholly unforeseeable or unlimited.
5. Strict liability claims against the Subcontractors and the City
[Headnotes 12, 13]
The theory of strict products liability has been extended in a few states, particularly California, to hold builder/vendors strictly liable to
new home purchasers and subsequent purchasers for defects in a newly constructed home. Elley v. Stephens, 104 Nev. 413, 418 n.2, 760
P.2d 768, 771 n.2 (1988); see Kreigler v. Eichler Homes, Inc.,
Eichler Homes, Inc., 74 Cal. Rptr. 749 (Ct. App. 1969); Patutucci v. Drelich, 379 A.2d 297
(N.J. Super. Ct. 1977). Still, extending such liability to subcontractors and to city inspectors
is another matter.
In La Jolla Homeowners', 261 Cal. Rptr. at 146, a California appellate court explained the
distinction between builder/vendors and subcontractors when applying the theory of strict
products liability. Strict products liability is intended to protect consumers who are in no
position to protect themselves from defective products and the manufacturers and suppliers of
those products. Id. at 152. According to La Jolla, there is no meaningful distinction between
the mass production of homes and the mass production of automobiles, and the overriding
policy considerations in favor of strict products liability are equally present in each
circumstance. Id. at 153. On the other hand, subcontractors do not control the entire
construction of a productthe houseand then thrust that product into the stream of
commerce. Based on this distinction, the La Jolla court refused to allow the plaintiffs to
pursue a strict products liability action against a subcontractor.
We agree with the La Jolla reasoning. Further, we conclude that the La Jolla reasoning
applies equally well to the question of whether a city inspector can be held strictly liable for
defects in construction that were approved by that inspector. A city and its inspectors are not
in the business of supplying or manufacturing products that are later thrust into the stream of
commerce. Accordingly, we conclude that the district court properly dismissed appellants'
strict liability claims against the Subcontractors and the City.
6. The City's cross-claim
The City filed cross-claims against Developer and Contractor for indemnity and
contribution in early 1992. Then, in November 1992, the City filed a motion for summary
judgment against appellants that was in response to appellants' third amended complaint.
Appellants then filed a fourth amended complaint that, with respect to the City, was
essentially identical to the third amended complaint. In January 1993, the district court
granted the City summary judgment with respect to appellants' third amended complaint.
Later, in June 1993, the district court granted the City summary judgment with respect to
appellants' fourth amended complaint.
A. Mootness
[Headnote 14]
In May 1993, the district court granted Developer and Contractor's motion for summary judgment against the City,
thereby dismissing the City's cross-claim for indemnity and contribution.
tractor's motion for summary judgment against the City, thereby dismissing the City's
cross-claim for indemnity and contribution. The City contends that when the district court
granted Developer and Contractor summary judgment with respect to appellant's third
amended complaint, the City's cross-claim was also dismissed because that cross-claim was
made pursuant to the third amended complaint. The City argues that because the cross-claim
was not refiled with respect to the fourth amended complaint, the subsequent order of the
district court that summarily dismissed the cross-claim in favor of Developer and Contractor
was moot. We disagree.
[Headnote 15]
When a cross-claim is filed, the district court gains jurisdiction over that claim and retains jurisdiction until a final written order
disposing of that cross-claim is issued. See Rust v. Clark Cty. School District, 103 Nev. 686, 747 P.2d 1380 (1987). Further, as in the case
before us, the interest of judicial economy is served by the district court adjudicating a cross-claim in a case that is prone for an appeal.
This court could reverse the district court's summary judgment against a plaintiff. Then, with the aid of the district court's reasoning on a
cross-claim, this court could resolve the merits of the cross-claim. Otherwise, resolution of a cross-claim would have to be remanded to the
district court for its initial determination which would likely be appealed again to this court. Clearly, judicial resources are wasted in the
process. For these reasons, we conclude that the district court properly considered the merits of the City's cross-claim.
B. Express indemnity
When Developer and Contractor approached the City to build the subject development, the City presented a form agreement entitled
Application for Building Permit. The application had blank areas for the parties to enter the name of the subject parcel, the price of the
permit, and a work description. An indemnity clause, one of only three printed provisions on the application, was located immediately
below the applicant's signature block. The indemnity clause stated that the applicant agree[s] to . . . indemnify and keep harmless the City
of Reno . . . against all liabilities, judgments, costs and expenses which may anywise accrue against the City of Reno in consequence of the
granting of this permit. (Emphasis added.) Based on this provision, the City sought indemnity from Developer and Contractor for the
negligent inspection claim that appellants filed against the City. Developer and Contractor contended, and the district court agreed, that the
indemnity clause was an adhesion clause.
[Headnote 16]
We reserve the classification of a contract clause as an adhesion clause for cases where one party has unfairly used its superior
bargaining power to force the inclusion of an oppressive and unreasonable clause in a contract. See Obstetrics and Gynecologists v. Pepper,
101 Nev. 105, 107, 693 P.2d 1259, 1260-61 (1985); Cobb v. Snohomish County, 829 P.2d 169 (Wash. Ct. App. 1991). We decline to
consider adhesion in this case, but affirm the district court's ruling on other grounds.
[Headnotes 17-19]
Indemnity clauses are strictly construed, particularly when the indemnitee claims that it should be indemnified against its own
negligence. See Pickhover v. Smith's Management Corp., 771 P.2d 664, 666 (Utah 1989); Cities Service Co. v. Northern Production Co.
Inc., 705 P.2d 321, 327-28 (Wyo. 1985). Ambiguous indemnity contracts are construed against the indemnitee, particularly when the
indemnitee was the drafter of the agreement. Wyoming Johnson, Inc. v. Stag Industries, Inc., 662 P.2d 96, 101 (Wyo. 1983); see Calkins v.
Lorain Division of Koehring Co., 613 P.2d 143, 145 (Wash. Ct. App. 1980); Carl T. Madsen, Inc. v. Babler Bros., Inc., 610 P.2d 958, 962
(Wash. Ct. App. 1980). In fact, when an indemnitee seeks indemnity for its own negligent acts based on an express indemnity clause, the
indemnity clause must clearly and unequivocally express the indemnitor's assumption of liability for the negligent acts of the indemnitee.
Keawe v. Hawaiian Elec. Co., Inc., 649 P.2d 1149, 1153 (Haw. 1982).
In this case, appellants alleged that the City was negligent when it inspected the subject property. However, due to the immunity
protection for municipal entities in Nevada, the City cannot be found liable to appellants for negligence in the performance of an
inspection. Tahoe Village Homeowners v. Douglas Co., 106 Nev. 660, 662-63, 799 P.2d 556, 558 (1990). Accordingly, the success of
appellants' recovery theory against the City rests upon a determination that the City ignored a known defect when it approved the permits
for appellants' homes. Butler, 101 Nev. at 450-51, 705 P.2d at 663. The City, therefore, sought indemnity from Developer and Contractor
for any liability it may have for such reckless conduct.
[Headnote 20]
The indemnity clause in the permit application is a general hold harmless clause. The clause does not expressly state whether the
applicant indemnifies the City for the City's negligent, reckless or malicious conduct. Accordingly, we conclude that holding
Developer and Contractor liable as indemnitors for the City's negligent, reckless, or malicious conduct would be
unjust.
that holding Developer and Contractor liable as indemnitors for the City's negligent, reckless,
or malicious conduct would be unjust. Mostyn v. Delaware L. & W.R. Co., 160 F.2d 15 (2d
Cir. 1947) (indemnity for one's own negligent conduct follows only from an expression of
such a purpose beyond any peradventure of doubt); Sweetman v. Strescon Industries, Inc.,
389 A.2d 1319 (Del. 1978). Instead, we conclude that the provision in question was intended
to hold the City harmless for any negligent conduct by Developer and Contractor which
could subject the City to liability.
C. Implied indemnity
[Headnotes 21, 22]
The City argues that the doctrine of implied indemnity should be applied in this case. Implied indemnity shifts one joint tortfeasor's
liability to another joint tortfeasor on the basis of some pre-existing legal or special relationship between the tortfeasors. See Black &
Decker v. Essex Group, 105 Nev. 344, 775 P.2d 698 (1989). However, implied indemnity theories are not viable in the face of express
indemnity agreements. Wyoming Johnson, Inc. v. Stag Industries, Inc., 662 P.2d 96, 101 (Wyo. 1983). When parties affirmatively deal with
the question of indemnity in a written contract, it is fair to conclude that they intended what was expressed in their agreement, not that
some common law rule should govern their rights and liabilities. Booth-Kelly Lumber Co. v. Southern Pacific Co., 183 F.2d 902, 906-07
(9th Cir. 1950). In light of the presence of an indemnity agreement in this case, therefore, we conclude that the doctrine of implied
indemnity is inapplicable.
CONCLUSION
We conclude that the district court improperly interpreted and applied the statute of repose, and the district court improperly used the
economic loss doctrine to preclude appellants' negligence claims. Further, we conclude that the City's claim for indemnity and contribution
from Developer and Contractor lacks merit. Accordingly, we reverse the district court's orders in part and remand this case to the district
court for further proceedings consistent with this opinion.
1
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113 Nev. 579, 579 (1997) Brake v. State
BRYAN EUGENE BRAKE, Appellant, v. THE
No. 25745
May 22, 1997 939 P.2d 1029
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of murder
in the first degree with use of a deadly weapon. Second Judicial District Court, Washoe
County; Connie J. Steinheimer, Judge.
Defendant was convicted in the district court of premeditated murder of his stepfather and
was sentenced to two life terms without possibility of parole. Defendant appealed. The
supreme court held that: (1) jury was properly instructed regarding beginning deliberations
anew when alternate juror was seated one day after case was submitted to jury; but (2)
consideration during sentencing of defendant's lack of remorse violated his constitutional
right against self-incrimination and was abuse of discretion; and (3) error was not harmless.
Shearing, C. J., dissented in part.
Michael R. Specchio, Public Defender, and John Reese Petty, Chief Appellate Public
Frankie Sue Del Papa, Attorney General, Carson City; Richard Gammick, District
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
District court properly instructed jury regarding beginning deliberations anew in murder trial when alternate juror was seated one
day after case was submitted to jury, where it told them that they had to redo all of their work from previous evening with substituted
juror and begin their deliberations anew and also that they had to start anew so that substituted juror could be part of deliberations from
very beginning. NRS 175.061(3).
2. Criminal Law; Homicide.
Sentencing judge's consideration of defendant's lack of remorse for killing his stepfather violated defendant's constitutional right
against self-incrimination and was abuse of discretion to prosecution for first-degree murder, even though defendant admitted the
killing at trial, where he claimed that he had acted in self-defense and without premeditation. U.S. Const. amend. 5; NRS 175.552.
3. Criminal Law.
Sentencing judge is allowed wide discretion in imposing sentence. Absent abuse of discretion, district court's determination will
not be disturbed on appeal.
113 Nev. 579, 580 (1997) Brake v. State
4. Criminal Law.
If sentencing judge relies upon prejudicial matters, such reliance constitutes abuse of discretion that necessitates resentencing
hearing before different judge.
5. Homicide.
It was not harmless error for trial judge to violate defendant's constitutional right against self-incrimination by considering
defendant's lack of remorse for killing his stepfather when judge sentenced defendant for first-degree murder, where it likely resulted in
harshest possible sentencetwo consecutive life terms without possibility of parolebeing assessed, insofar as testimony indicated
numerous mitigating circumstances, such as that defendant had no prior criminal record, suffered considerable mental and physical
abuse as child, and appeared to have been manipulated by his mother to commit the crime. U.S. Const. amend. 5; NRS 175.552.
OPINION
Per Curiam:
Appellant Bryan Brake was tried and convicted of first degree murder with the use of a
deadly weapon for the October 31, 1993 shooting of his stepfather, Michael Miller. Bryan
originally told the police that he had killed Michael in self-defense, but then confessed that
the killing was premeditated, that he and his mother, Phyllis Miller, had previously discussed
killing Michael, and that he had killed Michael because Michael was abusive and was
constantly meddling in Bryan's personal affairs.
At trial, Bryan argued that he had killed Michael in self-defense and that he had lied to the
police when he had told them that the killing had been premeditated. Bryan was convicted of
first degree murder with the use of a deadly weapon and was sentenced to two consecutive
life sentences without the possibility of parole. Bryan argues on appeal that the district court
erred by substituting an alternate juror once deliberations had begun and not properly
admonishing the original jury to discard all prior deliberations and begin anew. Bryan also
argues that the district court's consideration during sentencing of his lack of remorse for the
murder was an abuse of discretion.
We conclude that the district court properly admonished the jury regarding the
deliberations, but that the district court's consideration of Bryan's lack of remorse was
improper. Therefore, we affirm Bryan's conviction but remand this case to the district court
for a new sentencing hearing before a different district judge.
FACTS
Bryan was Phyllis' son from a previous marriage and lived in Michael's house with Phyllis
and Michael, who were married. On October 31, 1993, Bryan shot and killed Michael
sometime between 7:00 p.m. and S:00 p.m.
113 Nev. 579, 581 (1997) Brake v. State
between 7:00 p.m. and 8:00 p.m. Phyllis discovered Michael's body at approximately
midnight and called the police. Mike Haley, a detective with the Washoe County Sheriff's
Office, arrived at the Miller house at approximately 1:00 a.m. Bryan was staying at a friend's
house and called Michael's house sometime after 1:00 a.m.; a police sergeant answered the
call and asked Bryan to return to the house because of the crime that had been committed.
Bryan returned home and voluntarily accompanied Haley to the police station. Haley stated
that Bryan was not a suspect and that he had merely wanted to inform Bryan of Michael's
death away from the residence and to ask Bryan some basic questions about the killing. Haley
began interviewing Bryan at the station at approximately 8:00 a.m. on the morning after the
murder. Bryan was told that his participation was voluntary and that he could leave at any
time, but he answered the questions and began recounting the events of the day of the murder.
Bryan first told Haley that he had no knowledge of the killing, had not seen Michael that
afternoon before his death, and had no involvement in the killing. However, it became
apparent to Haley that Bryan had returned to the house at some point that afternoon, so he
continued the questioning. Bryan then changed his story, indicating that he had killed Michael
in self-defense after Michael had threatened to shoot him. After further questioning, Bryan
admitted that the killing was premeditated; he had gone to the house with the intent to kill
Michael because he was tired of Michael's abuse towards himself and Phyllis and of
Michael's constant meddling in his personal affairs.
At trial, the prosecutor's theory, which was based on Bryan's confession, was that the
killing was premeditated. The following facts were given in Bryan's confession and were
presented at trial. Bryan left a friend's house at 6:30 p.m. and met Phyllis at a bar. Phyllis had
been unhappy with her marriage to Michael and wanted to get out of the relationship, but
could not do so for financial reasons. Approximately two to four weeks before Michael was
killed, Bryan and Phyllis had discussed killing Michael by poisoning him, electrocuting him,
placing a bomb in his car, or shooting him; on the day that Michael was killed, they had again
discussed shooting Michael. Bryan had thought about killing Michael all day and had gone to
Michael's house with the intent to kill him. Bryan arrived at Michael's house, took a
comforter out of his car, went into Michael's bedroom and got a .357 magnum pistol out of
the closet, wrapped the gun in the comforter, and confronted Michael. The first shot went off
unexpectedly and did not hit Michael; Bryan then fired two more shots, one of which hit
Michael in the back near the shoulder. Bryan then dropped the gun, ran back into Michael's
room and got a .3S caliber pistol, returned, and shot Michael in the back of the head with
that gun.
113 Nev. 579, 582 (1997) Brake v. State
got a .38 caliber pistol, returned, and shot Michael in the back of the head with that gun.
Bryan then returned to the bar and told Phyllis what he had done.
At trial, however, Bryan's theory of defense was that he had killed Michael in self-defense
and that he had lied to the police when he told them that the killing had been premeditated.
Bryan testified that after working at the house with Michael in the morning, he ran some
personal errands and then went to a friend's apartment. He left the apartment at about 6:30
p.m. and went to meet Phyllis at a bar in order to borrow money for gas. Phyllis did not have
any money, so Bryan went to the house to see if he could find any change; he had also
planned to get a ring for Christina Johnston, a woman he was dating, that his mother had been
holding for him in her jewelry box. Michael was at the house when Bryan arrived. Bryan
went into his mother's room to get the ring, and Michael asked him what he was doing. When
Bryan told Michael that he was getting the ring to give to Johnston, Michael got angry and
began throwing the drawers of the jewelry box on the floor because he did not approve of
Bryan's relationship with Johnston.
After Michael dumped all of the jewelry on the floor, Bryan grabbed a handful of rings off
the floor and took them out to his truck. Michael told Bryan to come back into the house
because he wanted to talk to him. Bryan grabbed a comforter out of his truck to put back in
the house, and when he reentered the house, Michael had a gun sitting on the edge of the table
next to him and began berating Bryan again about dating Johnston.
At that point, Michael picked up the gun and pointed it at Bryan and Bryan pulled the
comforter from under his arm, wrapped it around Michael's wrist, and pushed his wrist away.
When Bryan did this, a shot fired. Michael tried to point the gun at Bryan again, and another
shot fired. Bryan tried to knee Michael in the side, but Michael pushed him down and a
struggle ensued. Bryan testified that because he was scared he ran into the bedroom and found
another gun.
Bryan testified that when he came back into the living room, Michael pointed the gun at
him again and pulled the trigger. Bryan heard the gun click and no bullet was fired. He ran
toward Michael, kneed him in the face, and hit him with the gun. Bryan stated that Michael
fell to the ground, still holding the pistol, but then made motions as if he were going to get up
again. Fearing that Michael was going to shoot him, Bryan shot Michael.
Bryan also testified that his childhood was replete with child abuse and that as a result of
that abuse he had developed a defense mechanism of telling authority figures what they
wanted to hear in order to prevent being beaten or getting in trouble.
113 Nev. 579, 583 (1997) Brake v. State
in order to prevent being beaten or getting in trouble. He stated that the police had not
believed that he had acted in self-defense and that they had wanted him to say that his actions
were premeditated; therefore, he told the police the fabricated story that he and his mother
had planned the killing and that he had acted with premeditation. Bryan also testified that
Michael had pointed a gun at him at least four other times and at Phyllis several times,
threatening to kill both of them, and that Michael had stalked him repeatedly.
Bryan's case was submitted to the jury for deliberations on March 8, 1994. The next day,
counsel stipulated to allow one of the jurors to be excused and replaced with an alternate
juror. Upon substituting the alternate juror, the district court told the jury members that they
were to begin deliberations anew. A few hours after deliberations began with the alternate
juror, the jury returned a guilty verdict. At sentencing, the district court followed the State's
recommendation and sentenced Bryan to two consecutive life sentences without the
possibility of parole, indicating that the sentence was appropriate because Bryan had showed
a lack of remorse for his actions.
DISCUSSION
The district court properly instructed the jury regarding beginning deliberations anew after
the alternate juror was seated.
[Headnote 1]
After placing the alternate juror on the jury panel, the district court stated:
The rest of the jury as it is now composed may now return to the jury room. You did some work last night, and that was with
Mrs. Venne. You must redo some of that work, all of that work actually with Mrs. Morrill and allow her to begin deliberations
anew. It may not take quite as long to go back over everything, but you must do that as you are starting afresh. So that she can be
part of those deliberations from the very beginning.
NRS 175.061(3) states that [i]f an alternate juror is required to replace a regular juror after the jury has retired to consider its verdict,
the judge shall recall the jury, seat the alternate and resubmit the case to the jury. (Emphasis added.) In Carroll v. State, 111 Nev. 371,
373, 892 P.2d 586, 587 (1995), we indicated that such a rule was necessary to relieve the potential pressure placed on the new juror from
the original jury members to reach a conclusion that they may have agreed on during prior deliberations.
113 Nev. 579, 584 (1997) Brake v. State
We conclude that the district court's instruction properly informed the jury that they were
to begin the deliberations anew with the alternate juror. The district court instructed the jury
members that they had to redo all of their work from the previous evening with the new juror
and begin their deliberations anew. Additionally, the district court told the jury members that
they must start anew so that the substituted juror could be part of the deliberations from the
very beginning. Therefore, the instruction clearly informed the jury members that the case had
been resubmitted to them and that deliberations had to be started anew, not just resumed.
The district court's consideration of Bryan's lack of remorse at sentencing was an abuse of
discretion.
[Headnote 2]
Pursuant to NRS 175.552, the parties agreed to have the district judge impose Bryan's sentence. The district court followed the State's
recommendation and sentenced Bryan to two consecutive life sentences without the possibility of parole, stating:
[Y]our lack of remorse, your lack of insight into what you have actually done, . . . there is no lack of insight into how it is going to
affect you, Mr. Brake, but there is a lack of insight as to how this affected others and how it has affected your victim. For that,
your lack of remorse, this Court reaches the conclusion that the recommendation of the State is appropriate.
[Headnotes 3, 4]
A sentencing judge is allowed wide discretion in imposing a sentence; absent an abuse of discretion, the district court's determination
will not be disturbed on appeal. Randell v. State, 109 Nev. 5, 8, 846 P.2d 278, 280 (1993). [I]f the judge relies upon prejudicial matters,
such reliance constitutes an abuse of discretion that necessitates a resentencing hearing before a different judge. Castillo v. State, 110 Nev.
535, 545, 874 P.2d 1252, 1259 (1994).
This court recently addressed a similar situation in Brown v. State, 113 Nev. 275, 934 P.2d 235 (1997). In Brown, the appellant was
convicted of sexually assaulting a young girl, but he denied committing the crime. At sentencing, the district court imposed the maximum
sentence on appellant based on the fact that the appellant did not admit guilt and show remorse for his acts. We concluded that the district
court's consideration of appellant's refusal to admit guilt and show remorse violated appellant's Fifth Amendment right to not be compelled
to be a witness against himself because appellant had maintained his innocence and, therefore, "was unable to express
remorse without foregoing his right to not incriminate himself, and the fact that he took the stand at trial does
not change this analysis because [appellant] maintained his innocence."
113 Nev. 579, 585 (1997) Brake v. State
innocence and, therefore, was unable to express remorse without foregoing his right to not
incriminate himself, and the fact that he took the stand at trial does not change this analysis
because [appellant] maintained his innocence. Id. at 291, 934 P.2d at 246 (citing Bushnell v.
State, 97 Nev. 591, 593, 637 P.2d 529, 531 (1981)).
We conclude that Brown governs this case also. While Bryan admitted at trial that he had
killed Michael, he did not admit that he had done so with premeditation, i.e., he maintained
that he was not guilty of first degree murder. Bryan's theory at trial was that he had killed
Michael in self-defense; as such, he had maintained his innocence of the crime for which he
was ultimately convicted and was unable to express remorse and admit guilt to first degree
murder without foregoing his right to not incriminate himself. Therefore, the district court's
consideration of Bryan's lack of remorse after he had maintained his innocence violated
Bryan's Fifth Amendment rights and constituted an abuse of discretion. See Bushnell, 97 Nev.
at 593, 637 P.2d at 531 (stating that [i]mposition of a harsher sentence based on the
defendant's exercise of his constitutional rights is an abuse of discretion).
[Headnote 5]
Furthermore, we conclude that the consideration of Bryan's lack of remorse cannot be considered harmless error. Testimony indicated
numerous mitigating circumstances: Bryan had no prior criminal record, suffered a considerable amount of mental and physical abuse as a
child, and appeared to have been manipulated by his mother to commit the crime. Therefore, it appears that the district court's consideration
of Bryan's lack of remorse likely resulted in the harshest possible sentence being assessed.
We conclude that the district court abused its discretion in relying on the fact that Bryan refused to admit his guilt and show remorse
when it imposed the sentence, and that Bryan should receive a new sentencing hearing before a different district judge.
CONCLUSION
The district court's instructions to the jury to begin deliberations anew was proper. However, the district court's consideration during
sentencing of Bryan's lack of remorse was an abuse of discretion. Therefore, we affirm Bryan's conviction for first degree murder with the
use of a deadly weapon, but vacate his sentence and remand this case to the district court for a new sentencing hearing before a different
district judge.
1

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1
113 Nev. 579, 586 (1997) Brake v. State
Shearing, C. J., concurring in part and dissenting in part:
I would affirm the conviction and sentence of Bryan Brake. I do not believe that
considering Brake's lack of remorse in the sentencing was error. This case is quite different
from Brown v. State, 113 Nev. 275, 934 P.2d 235 (1997) on which the majority relies. In
Brown, the defendant denied any involvement in the crime. Yet, the district judge announced
that the defendant would get less than the maximum penalty only if he admitted the offense.
This court reversed the sentence on the ground that the defendant had a right to remain silent.
In contrast, Brake admitted killing the victim. The only question was whether or not the
killing was in self-defense. Even if the killing had been in self-defense, Brake's lack of
remorse would have been a legitimate consideration of the sentencing judge. Brake's claim of
self-defense and a feeling of remorse are not in conflict. Thus, unlike Brown, Brake's right to
remain silent is not implicated. The sentencing judge may legitimately consider a defendant's
lack of feeling about killing a fellow human being, when the defendant admits to the killing.
____________
113 Nev. 586, 586 (1997) Schwartz v. Eliades
MILTON I. SCHWARTZ, Appellant/Cross-Respondent, v.
PETER ELIADES, Respondent/Cross-Appellant.
No. 27232
May 22, 1997 939 P.2d 1034
Appeal and cross-appeal from district court orders granting respondent's motion for
summary judgment on the basis of champerty, and granting appellant's motion for summary
judgment on appellant's counterclaim for return of consideration for void contract. Eighth
Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Cab companies and their part-owner sued newspaper and columnists for defamation.
Companies subsequently assigned all financial interest in the litigation to owner. Owner and
another part-owner then executed contract whereby second owner would get portion of any
proceeds from litigation in exchange for payment of fee plus portion of costs. After
defamation lawsuit resulted in unfavorable verdict and second owner made no further
payments, first owner brought breach of contract action against second owner, who filed
counterclaim for return of money paid under the contract. The district court granted summary
judgment in favor of second owner on the breach of contract claim, finding that parties'
agreement was unenforceable as void by reason of champerty, and granted first owner
summary judgment on the counterclaim.
champerty, and granted first owner summary judgment on the counterclaim. Parties appealed.
The supreme court held that: (1) because second owner maintained portion of companies'
equitable interest in the defamation litigation, he was no stranger to the litigation and, thus,
contract was not champertous, and (2) if agreement had been champertous, second owner
would not have been entitled to restitution of the money he paid under the void agreement.
Berkley & Gordon, Las Vegas, for Appellant/Cross-Respondent.
James J. Brown, Las Vegas, for Respondent/Cross-Appellant.
1. Camperty and Maintenance.
Champertous agreement is one in which person without interest in another's litigation undertakes to carry on the litigation at his
or her own expense, in whole or in part, in consideration of receiving, in the event of success, part of litigation proceeds.
2. Champerty and Maintenance.
To maintain another's lawsuit is unlawful, unless the person maintaining has some interest in the subject of the suit.
Where person promoting lawsuit of another has any interest whatever, legal or equitable, in the thing demanded, he or she is, in
effect, also a suitor according to the nature and extent of his or her interest.
Nevada Supreme Court will not consider issue if no relevant authority is presented on appeal.
Agreement at issue in breach of contract action was not champertous where, although it provided that defendant was entitled to
portion of proceeds from certain defamation lawsuit in exchange for paying plaintiff fee plus portion of lawsuit's costs, defendant, as
part owner of companies that had assigned all their financial interests in defamation lawsuit to plaintiff, maintained his portion of
companies' retained equitable interest in the litigation; thus, defendant was not stranger to defamation litigation, and by investing with
plaintiff, he merely enlarged his interest in the suit.
Party is not entitled to restitution of money paid under void, champertous agreement.
OPINION
Per Curiam:
This is an appeal from a district court order granting respondent's motion for summary
judgment on the basis of champerty and a cross-appeal from an order granting appellant's
motion for summary judgment on appellant's counterclaim for return of consideration on
a void contract.
and a cross-appeal from an order granting appellant's motion for summary judgment on
appellant's counterclaim for return of consideration on a void contract. We reverse the order
of summary judgment and remand the case for resolution of the claim. Because the ultimate
resolution of the claim has a direct bearing on the outcome of the counterclaim, we also
reverse and remand the district court's order granting summary judgment on the counterclaim.
Milton I. Schwartz, Peter Eliades, and four other individuals each owned one-sixth of
Checker Cab Company of Nevada, Inc. (Checker Cab) and Yellow Cab Company of
Nevada, Inc. (Yellow Cab). In response to a newspaper article, the companies and
Schwartz, as an individual, brought a defamation lawsuit in the Eighth Judicial District Court
in Clark County, Nevada.
During the course of the defamation litigation, a majority of the owners of Checker Cab
and Yellow Cab sought to eliminate their exposure to attorney's fees and costs resulting from
the lawsuit. Schwartz executed documents with Checker Cab and Yellow Cab in which
Schwartz undertook all liability for past and future expenses related to the litigation and
would receive all proceeds, if any, from the litigation. Yellow Cab and Checker Cab remained
named plaintiffs but assigned all financial interest in the outcome in the litigation to
Schwartz. Minutes of the special meeting in which Yellow and Checker Cab companies'
Boards of Directors and shareholders decided to assign the costs and proceeds of the litigation
to Schwartz reflect that: it is very important to the Corporation[s] that [they] continue with
the lawsuit to a favorable conclusion thus resulting in there being no question concerning the
actions and reputation of the Corporation[s].
Approximately six months thereafter, Schwartz and Eliades entered a contractual
agreement in which Eliades would be entitled to one-half of any proceeds from the litigation
in exchange for paying Schwartz $187,421.50 plus one-half of any costs related to the
litigation due and one-half of any costs which might be incurred in the future. At or near the
time Schwartz and Eliades executed the contract, Eliades paid Schwartz the sum of
$72,673.63. The defamation lawsuit resulted in a verdict against Schwartz and the companies.
Schwartz appealed on behalf of the three plaintiffs, and this court issued an opinion
1
in favor
of the respondents.
Other than the initial sum, Eliades made no payments to Schwartz. Schwartz initiated a
lawsuit for breach of the contract, and Eliades counterclaimed for return of the money he
advanced to Schwartz in reliance on the contract.
__________

1
Schwartz v. Estate of Greenspun, 110 Nev. 1042, 881 P.2d. 638 (1994).
to Schwartz in reliance on the contract. Eliades brought a motion for summary judgment
claiming that the contract was void as a matter of law. The district court granted summary
judgment in favor of Eliades, finding the agreement unenforceable as void by reason of
champerty.
Schwartz appealed to this court, which resulted in a finding of lack of jurisdiction because
no final, appealable order had resolved the case. The court issued an order dismissing the
appeal under NRCP 54(b),
2
based on the district court's failure to address Eliades'
counterclaim. Subsequently, in the district court, Schwartz filed a countermotion for summary
judgment regarding the counterclaim, which the district court granted.
Now that the district court has resolved all the issues in a final, appealable order, Schwartz
appeals the summary judgment on the claim that the contract is void due to champerty, and
Eliades cross-appeals the summary judgment on his counterclaim for return of the money
paid under the void contract.
Summary judgment is only appropriate when the moving party is entitled to judgment as a
matter of law, and, after a review of the record viewed in a light most favorable to the
non-moving party, there remain no genuine issues of material fact. Marshall v. Eighth
Judicial District Court, 108 Nev. 459, 463, 836 P.2d 47, 50 (1992); Butler v. Bogdanovich,
101 Nev. 449, 451, 705 P.2d 662, 663 (1985). This court's review of a summary judgment
order is de novo. Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).
[Headnotes 1-3]
A champertous agreement is one in which a person without interest in another's litigation undertakes to carry on the litigation at his
own expense, in whole or in part, in consideration of receiving, in the event of success, a part of the proceeds of the litigation. Martin v.
Morgan Drive Away, Inc., 665 F.2d 598, 603 (5th Cir. 1982), cert. dismissed, 458 U.S. 112 (1982). To maintain the suit of another is
now, and always has been, held to be unlawful, unless the person maintaining has some interest in the subject of the suit. Lum v. Stinnett,
87 Nev. 402, 408, 488 P.2d 347, 350 (1971) (citing Gruber v. Baker, 20 Nev. 453, 23 P. 858, 862 (1890)). Where a person promoting the
suit of another has any interest whatever, legal or equitable, in the thing demanded, . . . he is in effect also a suitor according
to the nature and extent of his interest."
__________

2
NRCP 54(b) states, in relevant part:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, [or] cross-claim, . . . any order . . .
which adjudicates fewer than all the claims . . . shall not terminate the action . . . [and] is subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
demanded, . . . he is in effect also a suitor according to the nature and extent of his interest.
McIntosh v. Harbour Club Villas Condominiums, 421 So. 2d 10, 11 (Fla. Dist. Ct. App.
1982).
In Martin, the court found no champerty, stating that since the investor in the litigation had
an interest in addition to his financial interest, the agreement was not champertous. 665 F.2d
at 603. The Martin court also stated that even if the investor had no interest-in-fact in the
litigation, but had a reasonable belief that he was an interested party, the agreement would not
be champertous. Id. at 606 n.6.
[Headnotes 4, 5]
Schwartz argues that, because the three plaintiffs in the defamation lawsuit included two companies of which Eliades is a one-sixth
shareholder, Eliades had an interest in the litigation. Schwartz contends that Eliades, as part owner of the corporate plaintiffs, had an
equitable interest in having there be no question concerning the actions or reputation of the Corporation. He also argues that Eliades'
interest remained even after the companies assigned their financial interests in the outcome of the litigation to Schwartz.
3
In addition,
Schwartz contends that Eliades clearly was of the impression that he had a significant personal interest in the outcome of the defamation
action even before entering into the written Agreement which is the subject of this appeal.
Eliades argues that, although he originally had a one-sixth interest in the litigation through his ownership interest in the cab companies,
he lost that interest when the companies assigned their interest to Schwartz. He contends that his sole interest in the litigation was the
potential money recovery from his investment. Eliades also argues that he had no interest in the litigation whatsoever for the six months
between the time the companies gave Schwartz their interest and the time Eliades became a one-half investor in Schwartz' enterprise. He
further argues that the district court explicitly found that, following the execution of the agreement between Schwartz and the companies,
Schwartz owned all rights and interests of the companies and their shareholders. Therefore, Eliades argues that the contract was clearly
champertous, as his sole interest was to fund Schwartz' activities in pursuing the litigation with the hope for a large money recovery.
We conclude that, because the cab companies retained an equitable interest in the litigation after assigning their
financial interests to Schwartz, Eliades maintained his portion of that interest in the litigation, and, therefore,
was not a stranger to the lawsuit when he joined Schwartz.
__________

3
Schwartz also argues that since defamation is a personal cause of action and is personal to the plaintiff, it can not be assigned.
However, he provides no authority for this premise. This court will not consider an issue if no relevant authority is presented on appeal.
Cunningham v. State, 94 Nev. 128, 575 P.2d 936 (1978).
equitable interest in the litigation after assigning their financial interests to Schwartz, Eliades
maintained his portion of that interest in the litigation, and, therefore, was not a stranger to
the lawsuit when he joined Schwartz. We conclude that Eliades merely enlarged his interest
by investing with Schwartz, and that his contract with Schwartz fails to meet the requirements
of champerty. Therefore, we conclude that, although no genuine issues of material fact
remained at the time the district court granted Eliades' motion for summary judgment, the
district court erroneously concluded that the contract was champertous and that Eliades was
entitled to judgment as a matter of law. Accordingly, we conclude that the district granted
Eliades' summary judgment motion in error.
[Headnote 6]
Eliades argues that a party making payments under an unenforceable agreement is entitled to restitution of any money paid. In George
Foreman Associates v. Foreman, 389 F. Supp. 1308 (N.D. Cal. 1974),
4
the court concluded that the contract at issue was illegal;
nonetheless, to allow a party to be unjustly enriched by keeping money paid under an illegal agreement would be inequitable. Similarly,
Eliades argues that allowing Schwartz to retain what was paid under the void agreement is tantamount to giving Schwartz recovery under
the contract.
The district court, ruling from the bench on the counterclaim, stated: To allow the defendant to recover sums already paid under a
void agreement would allow the defendant to take advantage of his own wrongdoing whereby he encouraged the plaintiff to litigate a cause
of action to which he is a stranger and has not suffered any personal damages because of the alleged defamation. See Martinez v. Johnson,
61 Nev. 125, 129, 119 P.2d 880, 882 (1941)(court will not enforce rights under a contract made in disobedience of the law). We agree.
Although we concluded above that the district court erred by finding champerty, had there actually been a champertous agreement,
Eliades would not have been entitled to restitution of the money he paid under the void agreement. The district court concluded, based on
its finding of champerty, that Eliades was not entitled, under the counterclaim, to a return of the money paid under the void contract.
However, the district court's order granting summary judgment on the counterclaim must be reversed. We have concluded that summary
judgment should not have been entered on Schwartz' claim, and the ultimate resolution of that claim has a direct bearing on the outcome of
the counterclaim. We thus conclude that the district court erred by granting summary judgment to Eliades, since, although no
genuine issues of material fact remained, the district court erroneously found that the contract was
champertous and that Eliades was entitled to judgment as a matter of law.
__________

4
Affirmed in Foreman v. George Foreman Associates, 517 F.2d 354 (9th Cir. 1975).
summary judgment to Eliades, since, although no genuine issues of material fact remained,
the district court erroneously found that the contract was champertous and that Eliades was
entitled to judgment as a matter of law.
Accordingly, we reverse and remand the order granting summary judgment regarding the
breach of contract claim, and we also reverse and remand the district court's order granting
summary judgment on the counterclaim.
5
__________

5
The Honorable A. William Maupin, Justice, voluntarily recused himself from participation in the decision of this appeal.
____________
113 Nev. 592, 592 (1997) Margrave v. Packard Mining, Inc.
FRANK MARGRAVE, LOUELLA MARGRAVE, WILTON MARGRAVE and
MARGARET MARGRAVE, Appellants, v. PACKARD MINING, INC., Respondent.
No. 28226
May 22, 1997 939 P.2d 1038
Appeal from an order of the district court granting respondent's motion for summary
judgment, denying appellants' motion for summary judgment, and requiring payment of
back-rent as specified in a mining lease. Second Judicial District Court, Washoe County;
Connie J. Steinheimer, Judge.
Mining lessors who claimed that lease terminated upon lessee's failure to pay rent appealed
from order of the district court granting summary judgment in favor of lessee. The supreme
court held that fact issue precluded summary judgment.
Woodburn & Wedge and W. Chris Wicker, Reno, for Appellants.
Bible, Hoy, Trachok and Wadhams and Mark S. Sertic, Reno, for Respondent.
Judgment.
Genuine issue of material fact existed as to whether lessors and lessee intended that mining lease would terminate automatically
during second phase of lease, upon lessee's nonpayment of rent, precluding summary judgment in action based on the lease.
OPINION
Per Curiam:
This is an appeal by lessors, the Margraves, from summary judgment entered in favor of
the lessee, Packard Mining.
judgment entered in favor of the lessee, Packard Mining. We reverse the summary judgment
and remand for trial.
The lease provides:
2. Term.
Unless sooner terminated pursuant to other provisions hereof, this Lease shall
remain in force for a term of ten years from the date hereof and for so long thereafter as
Lessee is paying Lessor rent pursuant to Section 3 or a royalty pursuant to Section 4.
On its face the lease appears to be in two phases, the first for a definite term of ten years,
followed by a determinable tenancy under which Packard Mining was entitled to possession
only for so long as rent is paid in accordance with the agreement of the parties. The parties'
dispute arose during the second for so long phase of the lease. Packard Mining did not pay
the rent, and the plain language of the lease indicates that the lease terminated automatically
when Packard Mining stopped paying the rent. The question, then, is not whether Packard
Mining is entitled to the summary judgment granted by the district court but, rather, whether
the Margraves are entitled to summary judgment on the ground that the lease terminated upon
Packard Mining's failure to pay rent, as a matter of law.
Packard Mining argues in its brief that even if the lease were construed to be a
determinable, unless
1
type lease, summary judgment in favor of Packard Mining was still
appropriate because the parties expressly made the provisions of Section 14 (Disputes)
applicable to any termination or reversion of the lease due to a failure to pay rent. Section 14
provides as follows:
Except in accordance with this Section 14, neither the breach or claimed breach by
either Lessor or Lessee of any obligation arising hereunder nor disputes of differences
between Lessor and Lessee shall be grounds for litigation, for forfeiture, cancellation or
termination of this Lease or termination or reversion of the estate created hereby.
Packard Mining claims that this paragraph applies to termination of the lease in both phase
one (the ten-year term) and phase two (the unless portion of the lease). Packard Mining
contends that by the express terms of the Lease, the parties have alleviated the harsh effects
of the unless type lease and made the notice and demand provisions of Section 14
applicable to a reversion of the Margraves' estate. The lessors, the Margraves, on the other
hand, contend that any provisions in the lease relating to surrender, release, notice or
dispute resolution clearly apply only to the ten-year, first phase of the lease and cannot
apply to the second "unless" phase of the lease.
__________

1
An unless lease is one which terminates automatically unless a limiting condition occurs. If the condition occurs, the lease
continues in effect until the condition ceases to be met, at which time the lease automatically terminates.
on the other hand, contend that any provisions in the lease relating to surrender, release,
notice or dispute resolution clearly apply only to the ten-year, first phase of the lease and
cannot apply to the second unless phase of the lease.
After examining the contentions of the parties and studying the lease document, we
conclude that sufficient ambiguity exists regarding the intentions of the parties as to require
further, parol evidence on the question. We therefore reverse the summary judgment in favor
of the lessee, Packard Mining, and remand the case to the trial court to resolve the issue
raised by Packard Mining, namely, whether it was the intention of the parties that, during its
second phase, the lease would terminate automatically on nonpayment of rent or that it would
terminate only in accordance with the sections relating to disputes and to matters of surrender
and release of the leased premises. We also conclude that the remainder of the Margraves'
issues on appeal lack merit.
Packard Mining also contends that even if the lease were construed as an unless lease,
equitable considerations preclude forfeiture of its possession of the premises. On remand,
Packard Mining will be entitled to raise these equitable claims.
The district court's summary judgment in favor of Packard Mining is reversed, and the
matter is remanded for further proceedings consistent with this opinion.
____________
113 Nev. 594, 594 (1997) Matter of Parental Rights as to Oren
In The Matter of The Parental Rights as to JESSICA FAITH OREN and LEVI ALLEN
OREN, LARRY OREN, Appellant, v. THE STATE OF NEVADA, DEPARTMENT OF
HUMAN RESOURCES, Respondent.
No. 29277
May 22, 1997 939 P.2d 1039
Appeal from a termination of parental rights and the denial of a motion to disqualify the
district judge. Ninth Judicial District Court, Douglas County; Michael P. Gibbons and David
R. Gamble, Judges.
The Department of Child and Family Services (DCFS) filed petition to terminate father's
parental rights. The district court denied father's motion to disqualify judge and granted
petition. Father appealed. The supreme court held that: (1) father's motion to disqualify had
been timely, and (2) disqualification was warranted by judge's previous involvement in
father's criminal child neglect case and in father's first protective custody hearing.
Roeser & Roeser, Zephyr Cove, for Appellant.
Frankie Sue Del Papa, Attorney General, and Donald W. Winne, Jr., Deputy Attorney
1. Judges.
Father's motion to disqualify district judge presiding over his termination of parental rights proceeding was timely, though it had
been filed over three months after trial had commenced, as motion had been filed immediately after father's counsel received
information that judge, while previously employed as deputy district attorney, had been involved in father's previous criminal child
neglect case and in father's first protective custody hearing. NRS 1.235.
2. Judges.
District judge should have been disqualified from presiding over proceeding for termination of father's parental rights, where judge
had previously been employed as deputy district attorney, had given advice regarding which crimes to charge father with for previous
child neglect case and had represented state in father's first protective custody hearing. Prior proceedings involved many of same issues
presented in parental termination hearing and, therefore, were properly considered same action or proceeding as parental termination
case. NRS 1.230(2)(c).
OPINION
Per Curiam:
Larry Oren is the father of three children who were removed from Larry's care in 1993
after the Department of Child and Family Services (DCFS) verified a report of child neglect.
Larry pleaded guilty to three counts of misdemeanor child neglect or endangerment, and was
placed on probation.
Larry's children were returned to his home, but Larry's probation was revoked and he was
sentenced to one year in jail after he was found in possession of drug paraphernalia. DCFS
filed a petition to terminate Larry's parental rights, which was granted by the district court
after a hearing was conducted. The district judge in the termination case had previously been
employed as a deputy district attorney and had given advice regarding which crimes to charge
Larry with for the 1993 neglect case; the same district judge had also represented the state in
Larry's first protective custody hearing. Larry's counsel filed a motion to disqualify the district
judge based on these grounds, and the motion was denied.
Because we conclude that the district court should have granted the motion to disqualify,
we reverse the order terminating Larry's parental rights and remand the case to the district
court for another termination hearing.
FACTS
On July 19, 1993, Larry's children were removed from his care after the DCFS
substantiated an anonymous report that the children were unsupervised. Larry was arrested on
that same day, and on October 6, 1993, Larry pleaded guilty to three counts of misdemeanor
child neglect or endangerment, was sentenced to one year imprisonment (which was
suspended), and was placed on probation for three years.
The children were returned to Larry's care around April 1994. However, in late July, 1995,
Larry was evicted from his apartment because he could not pay the rent. After Larry was
evicted, he and the children moved in with Larry's sister, Diane Parodi, and her family. On
September 11, 1995, the Department of Parole and Probation conducted a search of the
Parodi's home and found Larry in possession of drug paraphernalia. Larry was then given a
urine test, which came back positive for marijuana. On October 9, 1995, Larry admitted to
violating his probation conditions, his probation was revoked, and he was sentenced to one
year in jail.
On November 20, 1995, the State filed a petition to terminate Larry's parental rights on
various grounds.
1
The termination proceeding was conducted before district judge Michael
Gibbons. Prior to becoming a district judge, Judge Gibbons had been a deputy district
attorney. During the termination hearing, Judge Gibbons stated that he had no knowledge of
Larry's case through his previous employment as a deputy district attorney; however, he did
know of Larry because he had acted as the judge in some of Larry's 432B protective custody
hearings, Larry's probation violation hearing, and the adoption of one of Larry's children.
Larry did not recognize Judge Gibbons as the former deputy district attorney who had
participated in prior proceedings involving him. Larry's counsel, Terri Steik Roeser (Roeser),
asked Judge Gibbons for an assurance that he could base his decision in the instant case
solely on the evidence presented, which Judge Gibbons gave.
On June 25, 1996, after several days of testimony at the parental termination hearing,
Larry received discovery documents from the State consisting of case narratives. In one of the
case narratives, DCFS listed Michael Gibbons as the deputy district attorney in Larry's
criminal case and 432B case.
2
Roeser wanted to know whether Gibbons had had any
involvement with those cases or whether he had simply filed the criminal petition.
__________

1
Because we are reversing this case based on the district court's error in denying the motion for judicial
disqualification, we will not address the facts or issues regarding the termination of Larry's parental rights.

2
The criminal case refers to Larry's child neglect case from 1993. The 432B hearings refer to the protective
custody/progress hearings to determine Larry's status with the case plan. These were kept as separate files.
wanted to know whether Gibbons had had any involvement with those cases or whether he
had simply filed the criminal petition. The prosecutor stated that he believed that deputy
district attorney Kris Brown had filed the charges and conducted the plea canvass, and that
the notation may have been erroneous in that Gibbons had initially been the contact person at
the district attorney's office, but that he had not handled the case. Judge Gibbons stated:
Well, I know I didn't handle the case. But, I thought I put on the record at the start of
this trial what involvement I had or didn't have, and in 1993 I was working up at the
Lake Tahoe office and Miss Brown was the main person at the Minden office. We
didn't, we discussed some cases, but we didn't routinely discuss all cases.
I can't remember what I said when we started this trial, but I did not work on the case
at any point in time in any fashion. So, if I had, I wouldn't even have heard this to begin
with.
On June 27, 1996, Roeser filed a motion to disqualify Judge Gibbons. Roeser's affidavit
stated that she had subpoenaed and reviewed the files for Larry's criminal case and 432B
hearings to insure that Judge Gibbons had not participated in those proceedings. With regard
to the criminal case, the files indicated that while employed as a deputy district attorney,
Judge Gibbons had given advice regarding which criminal charges to file against Larry,
suggesting that he should be charged with three gross misdemeanor offenses of child neglect.
Judge Gibbons had also suggested that a DCFS case worker was an essential witness that
should be added to the witness list, and that all medical reports on the children needed to be
obtained. Furthermore, with regard to Larry's 432B hearings, the file indicated that Judge
Gibbons had represented the State at the first protective custody hearing in late 1993.
The disqualification motion was heard by district judge David Gamble. Judge Gibbons
filed an affidavit which stated that he had acted as a judge in some of Larry's 432B hearings,
Larry's probation violation hearing, and the adoption of one of Larry's children. He also stated
that he had learned that he had been involved in charging Larry's criminal case in 1993
(which led to the children's removal) and had appeared as counsel for the State in the first
432B hearing, but further stated that he had no independent recollection of those events.
Judge Gibbons stated that despite this involvement, he believed that he could fairly and
impartially decide the termination case.
Judge Gamble denied the motion to disqualify Judge Gibbons. Judge Gamble stated that
the motion was untimely because Larry was in the best position to know that Gibbons had
previously been the prosecuting attorney in his criminal case and first 432B hearing and,
therefore, should have notified Roeser of those facts prior to the commencement of the
termination hearing.
was in the best position to know that Gibbons had previously been the prosecuting attorney in
his criminal case and first 432B hearing and, therefore, should have notified Roeser of those
facts prior to the commencement of the termination hearing. Judge Gamble also stated that
Judge Gibbons had not previously acted in the parental termination hearing and had, instead,
participated in the criminal case involving the 1993 neglect. However, because the cases
involved the same children and many of the same issues, Judge Gamble had to determine
whether Judge Gibbons harbored any express or implied bias towards Larry. Judge Gamble
stated that because Judge Gibbons had indicated in his affidavit that he had no bias, and
because it appeared that Judge Gibbons did not even have a recollection of the case, no bias
against Larry existed. A written order memorializing this decision was filed on July 29, 1996.
Larry now appeals the denial of the motion to disqualify Judge Gibbons.
DISCUSSION
[Headnote 1]
We conclude that Judge Gamble erred in denying Larry's motion to disqualify Judge Gibbons. First, the motion to disqualify was
timely filed. NRS 1.235 states:
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. . . . [T]he
affidavit must be filed:
(a) Not less than 20 days before the date set for trial or hearing of the case. . . .
The motion to disqualify was filed on June 27, 1996, over three months after the trial had commenced on March 1, 1996. However, we
conclude that the motion was still timely because it was filed immediately after Larry's counsel received the information which proved that
Judge Gibbons had acted in some capacity in the criminal neglect and 432B protective custody proceedings. We agree with the district
court's conclusion that Larry was in the best position to know that Judge Gibbons had previously acted as a district attorney against him;
Larry had only one case against him and was in a better position to remember all of the parties in those actions than was Judge Gibbons,
who had handled numerous cases both as a district attorney and a district judge prior to the termination hearing. However, because several
attorneys had represented the State throughout the proceedings, Judge Gibbons had represented the State in 1993, and the termination
hearing was not held until 1996, it is likely that Larry genuinely did not remember Judge Gibbons from the
earlier proceedings.
was not held until 1996, it is likely that Larry genuinely did not remember Judge Gibbons
from the earlier proceedings.
Therefore, we conclude that it would be inequitable to hold that the motion had to be filed
twenty days prior to the date set for trial when the disqualifying information was not available
to Larry's counsel at that time. However, we caution that these are very unique circumstances
and that litigants should make all efforts to file disqualification motions in compliance with
NRS 1.235.
[Headnote 2]
We also conclude that Judge Gibbons had acted previously as a district attorney in the same action or proceeding. NRS 1.230(2) states:
2. A judge shall not act as such in an action or proceeding when implied bias exists in any of the following respects:
. . . .
(c) When he has been attorney or counsel for either of the parties in the particular action or proceeding before the court.
The evidence clearly indicated that Judge Gibbons had acted in the criminal neglect case and Larry's first 432B hearing. We conclude
that these proceedings involved many of the same issues presented in the parental termination hearing, and that those proceedings are
properly considered the same action or proceeding as the parental termination case. Therefore, we conclude that Judge Gamble should
have granted the motion to disqualify Judge Gibbons.
In so doing, we expressly indicate that we find no fault in Judge Gibbons' failure to remember what were obviously brief appearances
in criminal and protective custody proceedings involving Larry, or in Judge Gibbons' refusal to disqualify himself when he truly believed he
was not disqualified and could be fair and impartial. In fact, we have held that a judge has an obligation to sit in such circumstances. See In
re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988). But for NRS 1.230(2) and our interpretation of it, we would have
agreed with Judge Gamble that Judge Gibbons was not disqualified to hear this parental termination case.
CONCLUSION
We conclude that the district court erred in denying Larry's motion to disqualify Judge Gibbons. Therefore, we reverse the order
terminating Larry's parental rights and remand this case to the district court for a new termination hearing before a different judge.
____________
113 Nev. 600, 600 (1997) Rio Suite Hotel & Casino v. Gorsky
RIO SUITE HOTEL & CASINO, Appellant, v.
STUART GORSKY, Respondent.
No. 27178
May 22, 1997 939 P.2d 1043
Appeal from an order of the district court reversing an administrative appeals officer's
decision denying a worker's compensation claim. Eighth Judicial District Court, Clark
County; Lee A. Gates, Judge.
Claimant appealed decision of appeals officer denying workers' compensation claim on
ground that his injuries from fall did not arise from his employment as poker dealer. The
district court reversed. Employer appealed. The supreme court held that appeals officer's
decision was supported by substantial evidence, including physicians' testimony that claimant
fell because of multiple sclerosis (MS).
Reversed.
Morris, Brignone & Pickering, and Mark A. Hutchinson, Las Vegas, for Appellant.
Greenman, Goldberg, Raby & Martinez, Las Vegas, for Respondent.
Reviewing court is limited to administrative record below in making its findings.
In review of administrative decision, the gravamen issue is whether agency's decision was based on substantial evidence.
Substantial evidence, for purposes of review of administrative agency decision, is that evidence which reasonable mind might
accept as adequate to support a conclusion.
To show that injury arose out of employment, workers' compensation claimant must establish link between workplace conditions
and how those conditions caused injury, and further must demonstrate that origin of injury is related to some risk involved within the
scope of employment. NRS 616.5015(1).
If accident is not fairly traceable to nature of employment or workplace environment, then injury cannot be said to arise out of
workers' compensation claimant's employment. NRS 616.5015(1).
Resolving whether workers' compensation claimant's injury arose out of employment is examined by totality of circumstances.
NRS 616.5015(1).
Appeals officer's decision that workers' compensation claimant's injuries from fall did not arise from his employment as poker
dealer was supported by substantial evidence, including physicians' testimony that claimant fell because of multiple sclerosis (MS).
NRS 616.5015(1).
Reversal of appeals officer's decision that workers' compensation claimant's injury did not arise from his employment was not
compelled by officer's failure to cite authority for her decision or her failure to track the exact language of applicable statute. NRS
616.5015(1).
Industrial Insurance Act is not a mechanism which makes employers absolutely liable for workers' compensation benefits for
injuries suffered by employees who are on the job. NRS 616A.005 et seq.; 616.5015(1).
OPINION
Per Curiam:
On January 4, 1994, Stuart Gorsky (Gorsky) was employed and working at Rio Suite
Hotel & Casino (Rio). While walking in the casino on his way to clock out from his duties
as a poker dealer, Gorsky fell in the hallway and sustained injuries to his knees and back. On
January 7, 1994, Gorsky submitted an employee's claim for worker's compensation and an
accident report regarding the incident.
On February 7, 1994, the claims administrator for Rio denied Gorsky's claim because he
failed to demonstrate that the injuries arose out of and/or in the course of his employment.
Gorsky appealed that decision to the State of Nevada Department of Administration hearing
officer. On April 15, 1994, the hearing officer reversed the decision of Rio's claims
administrator. Rio appealed the hearing officer's decision to the administrative appeals
officer. On August 1, 1994, the hearing was held.
Danny Stefanovic (Stefanovic), Gorsky's co-worker at Rio, was identified by Gorsky as
a witness to the incident. Stefanovic testified that there was no external force or obstacle in
the hallway where Gorsky fell. Stefanovic also testified to Gorsky's admission that multiple
sclerosis (MS) caused his fall. Another fellow employee, Sue Lindhout (Lindhout), testified
that she had seen Gorsky fall in the poker room on a previous occasion for no apparent
reason.
Gorsky testified that he could not recall if any substance was present on the floor which
could have caused him to slip and fall. Gorsky admitted that his description of the slip and
fall in the incident report did not mention any obstacle or foreign substance on the carpet
which caused him to fall. Finally, Gorsky admitted telling doctors that although he could
not specifically remember his condition at the time of the fall, he had been experiencing
difficulty walking.
telling doctors that although he could not specifically remember his condition at the time of
the fall, he had been experiencing difficulty walking.
The appeals officer also considered the medical reports of two examining physicians, R.
Kirby Reed (Dr. Reed) and David Toeller (Dr. Toeller). Dr. Reed, having treated Gorsky
previously for MS, noted that for nine months prior to falling on January 4, 1994, Gorsky
used a walking cane. Dr. Reed also found that Gorsky exhibited a wide-based unsteady gait,
and it almost appeared that if he did not have a cane for stability and balance, he would
probably fall. In concluding his examination report, Dr. Reed wrote: Given the fact that the
patient cannot remember any specific obstacle over which he may have stumbled, nor does he
have any adequate explanation for why he fell, I feel that the predominant reason that he fell
is because of his demyelinating disease [MS].
Dr. Toeller, asked to perform an independent examination of Gorsky, echoed the same
conclusion of Dr. Reed. Dr. Toeller noted:
The slip/fall of 01/04/94 in my opinion and according to the opinion of neurologist Dr.
Reed, is a direct consequence of the patient's multiple sclerosis. Multiple sclerosis is a
demyelinating disease that effects [sic] the central nervous system primarily. It can
affect the preferial neurological system as well. Poor coordination is one of the more
common physiologic occurrences in a patient with such a demyelinating disease.
Weakness of the extremities, particularly the lower extremities, is the prevalent finding.
Incoordination or loss of position sense may occur independently with weakness and
often leads to gait impairment and clumsy movement of the extremities.
(Emphasis added.)
Based on this evidence, the appeals officer made the following findings of fact:
1. Neither Mr. Gorsky nor any of the other witnesses could identify any matter
which caused this fall and there is no evidence of any external force or matter causing
Mr. Gorsky to slip and fall. . . .
2. Substantial evidence in the record shows that Mr. Gorsky fell as a result of his
preexisting nonindustrial medical condition.
. . . .
4. The preponderance of the evidence establishes that the injury did not arise out of
the employment but instead arose out of risks and conditions personal to the claimant.
The appeals officer concluded that Gorsky did not satisfy the requirements of NRS
616.5015(1) which states: An injured employee or his dependents are not entitled to receive
compensation pursuant to the provisions of this chapter unless the employee or his
dependents establish by a preponderance of the evidence that the employee's injury arose out
of and in the course of his employment. (Emphasis added.)
1
Specifically, the appeals officer
noted that Gorsky failed to establish, by a preponderance of the evidence, that his injuries
arose out of his employment. Therefore, Gorsky's injuries were not compensable under a
worker's compensation claim.
On April 19, 1995, the district court reversed the decision of the appeals officer. In
reversing, the district court found:
[T]he Appeals Officer erred as a matter of law when she denied GORSKY'S claim
because his injury arose out of risks and conditions personal to the claimant.' This
conclusion by the Appeals Officer is unsupported by any legal authority, it is not drawn
from the language of the NRS 616.5015, and it is not supported by any case law.
The district court went on to note that Gorsky's injuries were compensable because they
were caused by an accident as that term is defined by NRS 616.020.
2
With regard to the
appeals officer's finding that MS caused Gorsky's fall, the district court summarily stated,
The fact that Gorsky had [MS] and it may have been the cause of the fall, [sic] does not
affect his claim under the requirements of NRS 616.5015 and NRS 616.020. The lower court
did not cite any authority for this proposition.
Rio now appeals the district court's decision, contending that Gorsky's injuries did not
arise out of his employment.
[Headnotes 1-3]
In reviewing administrative decisions, the primary function of this court is to determine whether the agency's decision was arbitrary or
capricious and, thus, an abuse of discretion. NRS 233B.135(3); United Exposition Service Co. v. SIIS, 109 Nev. 421, 423, 851 P.2d 423,
424 (1993). Reviewing courts are limited to the administrative record below in making their findings. State Emp. Sec. Dep't v. Weber, 100
Nev. 121, 124, 676 P.2d 1318, 1320 (1984). The gravamen is whether the [agency's] decision was based on substantial evidence.
McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982). Substantial evidence is that evidence "which a reasonable
mind might accept as adequate to support a conclusion."
__________

1
In 1993, NRS 616.5015(1) was replaced by NRS 616C.150.

2
NRS 616.020 states: Accident means an unexpected or unforeseen event happening suddenly and violently, with or without human
fault, and producing at the time objective symptoms of an injury.
evidence is that evidence which a reasonable mind might accept as adequate to support a
conclusion. Schepcoff v. SIIS, 109 Nev. 322, 325, 849 P.2d 271, 273 (1993).
Rio claims that Gorsky never satisfied the preponderance of the evidence standard in NRS
616.5014. Specifically, Rio alleges that Gorsky failed to prove that his injuries arose out of
his employment as a poker dealer.
Before examining the administrative record to determine if substantial evidence exists to
sustain Gorsky's position, we must first define the decisive phrase in this controversy, arose
out of, which is contained in NRS 616.5015(1). If substantial evidence exists that
demonstrates Gorsky's knee and back injuries arose out of his employment, he is entitled to
recovery of worker's compensation benefits. Conversely, if this threshold finding is not met,
Gorsky himself must provide alternative means for his health care.
The parties do not provide any citations interpreting the phrase, arose out of, found in
NRS 616.5015(1). Indeed, a search of Nevada's case law reveals that this court has never
addressed this issue in the context of NRS 616.5015(1). However, numerous other
jurisdictions have developed settled law which we look to for enlightenment.
[Headnotes 4-6]
An accident or injury is said to arise out of employment when there is a causal connection between the injury and the employee's work.
Murphy v. Industrial Comm'n of Ariz., 774 P.2d 221, 224 (Ariz. 1989). In other words, the injured party must establish a link between the
workplace conditions and how those conditions caused the injury. County of Chesterfield v. Johnson, 376 S.E.2d 73, 75 (Va. 1989).
Further, a claimant must demonstrate that the origin of the injury is related to some risk involved within the scope of employment. Smith v.
Albuquerque, 729 P.2d 1379, 1383 (N.M. Ct. App. 1986). However, if an accident is not fairly traceable to the nature of employment or the
workplace environment, then the injury cannot be said to arise out of the claimant's employment. O'Laughlin v. Circle A Constr., 739 P.2d
347, 350 (Idaho 1987). Finally, resolving whether an injury arose out of employment is examined by a totality of the circumstances. Triad
Painting Co. v. Blair, 812 P.2d 638, 643 (Colo. 1991).
[Headnote 7]
Here, Gorsky failed to present any evidence that his slip and fall arose out of his duties as a poker dealer. Additionally, Gorsky did not
provide any testimony or evidence which demonstrated that his work environment caused him to fall. In fact, all the evidence
presented at the hearing suggested that Gorsky fell as a result of his preexisting condition, MS.
evidence presented at the hearing suggested that Gorsky fell as a result of his preexisting
condition, MS.
Drs. Reed and Toeller both concluded that Gorsky fell from his MS; Stefanovic, an
eyewitness, testified that there was no external force or obstacle on the hallway floor which
caused Gorsky to fall, and Gorsky admitted to Stefanovic that he fell from his MS; Gorsky
himself testified that he could not remember how he fell, and admitted to prior momentary
bouts of disequilibrium; and Gorsky was seen by Lindhout falling in the poker room on at
least one previous occasion without any precipitating event. Therefore, we conclude that the
appeals officer correctly held that Gorsky failed to meet the statutory burden of proof
imposed upon him as a claimant under NRS 616.5015(1).
Gorsky argues that the failure of the appeals officer to cite any authority for her decision
and her misapplication of NRS 616.5015(1) demonstrate reversible error. Gorsky further
claims that the Nevada Industrial Insurance Act provides for a no-fault' remedy for workers
injured at work. These assertions lack merit.
[Headnote 8]
The appeals officer based her decision on NRS 616.5015(1) and cited it accordingly. The fact that the appeals officer did not track the
exact language of the statute is of no moment. The record indicates that the appeals officer made a thorough inquiry into the causes of
Gorsky's injuries and determined that they arose out of something other than his employment. This is precisely what NRS 616.5015(1)
requires.
[Headnote 9]
Additionally, the Nevada Industrial Insurance Act is not a mechanism which makes employers absolutely liable for injuries suffered by
employees who are on the job. The language of NRS 616.5015(1) belies this assertion. The requirements of arising out of and in the
course of employment make clear that a claimant must establish more than merely being at work and suffering an injury in order to
recover. Therefore, substantial evidence in the record does not exist to support, by a preponderance of the evidence, that Gorsky's injuries
arose out of his employment.
Thus, the district court should have deferred to the substantial evidence in the record supporting the appeals officer's ruling in the
matter. See NRS 233B.135(3)(e).
Accordingly, we reverse the order of the district court and reinstate the decision of the appeals officer.
____________
113 Nev. 606, 606 (1997) Putterman v. Putterman
MITCHELL PUTTERMAN, Appellant, v. BARBARA
LEWIS PUTTERMAN, Respondent.
No. 25598
May 22, 1997 939 P.2d 1047
Appeal from a decree of divorce. Eighth Judicial District Court, Clark County; Robert E.
Gaston, Judge.
In divorce action, the district court ordered unequal disposition of community property by
which wife received stock and valuable country club membership in addition to one-half
share in remaining community property. Husband appealed. The supreme court, Springer, J.,
held that: (1) trial court erred in dividing community property fairly and equitably without
statutorily mandated finding of compelling reasons for unequal disposition, but (2)
compelling reasons existed to justify unequal disposition.
Affirmed.
Joseph W. Houston, II, Las Vegas, for Appellant.
Wells, Kravitz, Schnitzer & Sloane, Las Vegas, for Respondent.
1. Divorce.
Court must make equal disposition of community property except in cases in which court finds compelling reason for making
unequal disposition and sets forth in writing reasons for making unequal disposition. NRS 125.150.
2. Divorce.
Statutory amendment that required equal rather than equitable disposition of community property governed case that was filed
before amendment's effective date. NRS 125.150.
3. Divorce.
Record supported unequal disposition of community property by which wife received stock and valuable country club membership
in addition to one-half share in remaining community property. Evidence indicated that husband engaged in financial misconduct in
form of his having refused to account to court concerning earnings and other financial matters over which he had control, his
lying to court about his income, and his appropriating to his own use, after separation, several thousand dollars which had to be
repaid by wife. NRS 125.150.
OPINION
[Headnote 1]
The family court divided the community property of the parties to this divorce action unequally.
to this divorce action unequally. NRS 125.150 requires the court to make an equal disposition
of the community property except in cases in which the court finds a compelling reason for
making an unequal disposition and sets forth in writing the reasons for making the
unequal disposition. See Lofgren v. Lofgren, 112 Nev. 1282, 926 P.2d 296 (1996).
The unequal disposition in this case was made in the form of giving to the wife certain
stock and a valuable country club membership in addition to giving her a one-half share in the
remaining community property of the parties.
1
The court explained this unequal disposition
by stating that failure to award the wife this additional, greater-than-half share of the
community property would be inequitable. On this ground, the court proceeded to divide
the property unequally, and, as put by the court, fairly and equitably. Fairly and equitably
in this case took the form of the court's giving to the wife somewhat more than an equal,
one-half share of the community property. The question before this court is whether, under
NRS 125.150, the district court erred in dividing the community property fairly and
equitably rather than equally.
In Lofgren, we noted that when the legislature changed property division from equitable
to equal, it deleted the equitable factors that courts formerly were required to apply in making
a just and equitable' disposition of community property. Id. at 1283, 926 P.2d at 297. We
also noted in Lofgren that the legislature did not define what it meant when it permitted an
unequal division to be made in cases in which the court found compelling reasons for doing
so. Id. In Lofgren, we defined one form of compelling reasons which would justify an
unequal division of community property as that which arose out of the financial misconduct
of one of the parties. Thus, in Lofgren, we approved of a lesser, unequal share of the
community property being given to an errant husband who, in violation of court order, had
wasted or secreted community assets. Id.
In this case, the court based its unequal disposition on its vision of equity and fairness and,
more specifically, on the fact that the wife was the principal acquirer of the community
property and that the husband was "less of a contributing member to the community."
__________

1
We note that the trial court attempted to rationalize part of its unequal division by mentioning the fact that
the wife had borrowed some of the money that went into the stock purchase. The trial court made no finding that
any part of the stock or its appreciation were separate property of the wife; but even if this had been the case, it
is clear that the court, independent of any separate property considerations, effected an unequal disposition of
community property in this case and that the court made this unequal division equitably and on the basis of the
husband's being less of a contributing member to the community than the wife.
erty and that the husband was less of a contributing member to the community.
Prior to the 1993 amendment to NRS 125.150, the court was not only empowered but
required to dispose of community property in a manner that was just and equitable and in
doing so had to consider, among other factors, the party through whom the property was
acquired. As pointed out in Lofgren, in 1993, this and other equitable factors were deleted
from the statute; and the amended statute commanded equal rather than equitable disposition.
[Headnote 2]
The wife argues in her brief the proper standard for community property division in the present case is just and equitable distribution
because the statute did not go into effect until after the complaint was filed in this case. We disagree and hold that NRS 125.150, as
amended in 1993, should have been applied by the trial court when it entered its decree of February 7, 1994. Because of the 1993
legislative change from equitable to equal disposition of community property, we now hold that it was error for the district court to divide
the Puttermans' community property fairly and equitably without the statutorily mandated finding of compelling reasons for an unequal
disposition.
[Headnote 3]
As pointed out by the wife in her brief, the trial court did not make a determination as to which version of the statute would control
the case, but instead entered specific and meticulous findings of fact which set forth numerous compelling reasons for a division which was
unequal. Based upon the findings of the trial court we conclude that, following Lofgren and NRS 125.150 as amended, compelling reasons
exist in this case to justify the unequal disposition of community property decreed by the trial court; and we affirm the trial court's
judgment.
In Lofgren, we defined one species of compelling reasons for unequal disposition of community property, namely, financial
misconduct in the form of one party's wasting or secreting assets during the divorce process. There are, of course, other possible compelling
reasons, such as negligent loss or destruction of community property, unauthorized gifts of community property and even, possibly,
compensation for losses occasioned by marriage and its breakup. See, e.g., Moge v. Moge, 3 S.C.R. 813, 43 R.F.L. 3d 345 (Canada 1992);
DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755 (Minn. 1981) (compensation (not favorable property allocation) granted to wife as
reimbursement for her support of husband while he obtained a medical degree).
It should be kept in mind that the secreting or wasting of community assets while divorce
proceedings are pending is to be distinguished from undercontributing or overconsuming of
community assets during the marriage. Obviously, when one party to a marriage contributes
less to the community property than the other, this cannot, especially in an equal division
state, entitle the other party to a retrospective accounting of expenditures made during the
marriage or to entitlement to more than an equal share of the community property. Almost all
marriages involve some disproportion in contribution or consumption of community property.
Such retrospective considerations are not and should not be relevant to community property
allocation and do not present compelling reasons for an unequal disposition; whereas,
hiding or wasting of community assets or misappropriating community assets for personal
gain may indeed provide compelling reasons for unequal disposition of community property.
As mentioned above, the trial court made specific and meticulous findings of fact which
set forth numerous compelling reasons for a division which was unequal. Based upon these
findings, we conclude that here, as in Lofgren, there are sufficient compelling reasons to
justify the trial court's unequal disposition of the property.
The trial court made the following findings:
(2) Mitchell had refused to account to either Barbara or to the court for any finances
over which he had control, including separate property or earnings;
(3) after the separation, Mitchell charged several thousand dollars on credit cards
which Barbara paid . . . (emphasis supplied);
. . . .
(5) the court believed Mitchell was lying about having no income.
The husband's financial misconduct in the form of his having refused to account to the
court concerning earnings and other financial matters over which he had control and the
husband's lying to the court about his income both provide compelling reasons for unequal
disposition. Further, the husband's appropriating to his own use, after separation, several
thousand dollars which had to be repaid by the wife presents the kind of financial
misconduct that can form the basis for a finding of compelling reasons for unequal division.
The unequal disposition of community property in this case was certainly not excessive
under the circumstances. The wife was awarded a country club membership and a portion
of stock in a closely-held corporation which the wife was able to purchase because she
was an employee of the corporation.
was awarded a country club membership and a portion of stock in a closely-held corporation
which the wife was able to purchase because she was an employee of the corporation. There
are certainly more than ample compelling reasons in this case for making this kind of unequal
disposition of community property; therefore, we affirm the judgment of the trial court.
Shearing, C. J., and Rose and Young, JJ., concur.
2
__________

2
____________
113 Nev. 610, 610 (1997) Nat'l Collegiate Athletic Ass'n v. Tarkanian
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, S. DAVID BERST, and
ROBERT L. STROUP, II, Appellants, v. JERRY TARKANIAN and LOIS TARKANIAN,
Respondents.
No. 28508
May 22, 1997 939 P.2d 1049
Appeal from an order of the district court denying appellants' motion for a change of
venue. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
College basketball coach sued collegiate athletic organization, alleging that it wrongfully
attempted to force him out of college coaching. The district court denied organization's
motion for change of venue. Organization appealed. The supreme court, Shearing, C. J., held
that organization failed to show that jury pool was likely to have read allegedly inflammatory
newspaper accounts concerning organization's investigation of coach, or to have shared in
their sentiments.
Affirmed.
[Rehearing denied July 16, 1997]
Thorndal, Backus, Armstrong & Balkenbush and Craig R. Delk and Stewart C. Fitts, Las
Vegas; Swanson, Midgley, Gangwere, Kitchin & McLarney, Kansas City, Kansas, for
Appellants.
Charles E. Thompson, Las Vegas; Beckley, Singleton, Jemison & List and Daniel F.
Polsenberg, Las Vegas; Freberg & Manley, Irvine, California; Law Offices of Terry M. Giles,
Rancho Santa Fe, California, for Respondents.
1. Venue.
Motion for change of venue must be granted where there is reasonable likelihood that in absence of such relief, impartial trial
cannot be held.
2. Venue.
To determine if venue should be transferred, courts look to nature and extent of pretrial publicity, size of community, nature and
gravity of lawsuit, status of plaintiff and defendant in community, and existence of political overtones in case.
Supreme court reviews trial court's order denying motion to change venue for manifest abuse of discretion.
4. Venue.
Collegiate athletic organization was not entitled to change of venue in action alleging that it wrongfully attempted to force plaintiff
out of college coaching, despite expert evidence that newspaper coverage of organization's investigation and findings indicated bias
against organization and in favor of coach; with few exceptions, newspaper accounts in question were published several years before
trial date, and, because population in relevant area grew from 858,232 to 1,028,228 in three years after complaint was filed, large
proportion of potential jury pool was not exposed to articles that organization's expert analyzed.
OPINION
Between 1973 and 1992, respondent Jerry Tarkanian (Tarkanian) coached basketball at
the University of Nevada, Las Vegas (UNLV). During this time, appellants National
Collegiate Athletic Association, S. David Berst, and Robert L. Stroup, II (collectively the
NCAA), investigated and found violations of NCAA legislation by the UNLV basketball
program and Tarkanian, and implemented sanctions. In 1992 Tarkanian resigned from his
coaching position at UNLV.
On November 30, 1992, Tarkanian and his wife filed a complaint alleging that the NCAA
wrongfully attempted to force Tarkanian out of college coaching. On January 19, 1993, the
Tarkanians filed an amended complaint. On March 22, 1996, the NCAA filed a motion for
change of venue and request for evidentiary hearing. In its motion, the NCAA argued that a
change of venue was proper because due to pretrial publicity, there was a reasonable
likelihood that an impartial trial could not be held in Clark County. The motion was
supported by the affidavit of Kent L. Tedin (Tedin), an expert in public opinion and
statistics who conducted a public opinion poll in Las Vegas and Reno between February 23
and March 2, 1996; the affidavit of Steven Penrod (Penrod), an expert in pretrial publicity
who conducted a content analysis of Las Vegas and Reno newspaper coverage; and
newspaper articles and videotapes of newscasts that the NCAA alleged showed bias
against them and in favor of Tarkanian.
coverage; and newspaper articles and videotapes of newscasts that the NCAA alleged showed
bias against them and in favor of Tarkanian.
The Tarkanians' opposition to the NCAA's motion was supported by an affidavit by Robert
Tortora (Tortora), a statistician who criticized the methodology used by Tedin and Penrod
as leading to inaccurate assessments of the opinions or beliefs held by potential jury pools
from Clark and Washoe Counties.
Initially the trial was set for May 28, 1996. On April 30, 1996, the district court filed an
order denying the NCAA's motion for change of venue and request for evidentiary hearing. At
the hearing on the motion, the court made the following oral findings:
This motion is untimely because defendants base their request upon facts which
were known or should have been known over five years ago when this case was first
filed.
In addition, during the passage of these five years the amount of media attention that
this case has received has not only greatly diminished but it has literally disappeared.
Professor Penrod's study relies predominantly upon media reports which are four years
old or more. In addition the defendants have not taken into account the explosive
growth of Clark County's population, which has brought huge numbers of people into
the County during the past five years who are completely unfamiliar with this case. . . .
Finally, this Court is not persuaded that an evidentiary hearing on defendant's test
results would serve a useful purpose and therefore this request is denied.
The NCAA filed a timely appeal from the district court's order. The trial was stayed
pending this appeal.
[Headnotes 1, 2]
A motion for change of venue must be granted where there is a reasonable likelihood that in the absence of such relief, an impartial
trial cannot be held. Martinez v. Superior Court, 629 P.2d 502, 503 (Cal. 1981) (citing Maine v. Superior Court, 66 Cal. Rptr. 724 (Cal.
1968)). Courts look to five factors to determine if venue should be transferred: (1) the nature and extent of pretrial publicity; (2) the size of
the community; (3) the nature and gravity of the lawsuit; (4) the status of the plaintiff and defendant in the community; and (5) the
existence of political overtones in the case. People v. Hamilton, 774 P.2d 730, 737 (Cal. 1989). The NCAA contends that the district court
failed to consider these factors, and that an independent review shows that these factors favor a change of venue.
[Headnote 3]
This court reviews a trial court's order denying a motion to change venue for a manifest abuse of discretion. Fabbi v. First Nat'l Bank,
62 Nev. 405, 414, 153 P.2d 122, 125 (1944), cited in Pearce v. Boberg, 87 Nev. 255, 256, 485 P.2d 101, 101 (1971). We independently
review the record only to determine whether the lower court's decision was a manifest abuse of discretion. See State v. Ware, 338 N.W.2d
707 (Iowa 1983) (reviewing the record de novo to make an independent evaluation of the circumstances to determine whether there was an
abuse of discretion); State v. Moyd, 619 P.2d 1107 (Haw. Ct. App. 1980) (rejecting de novo review).
[Headnote 4]
The NCAA argues that pretrial publicity has been inflammatory and extensive and created widespread community bias against the
NCAA.
Penrod analyzed 1,228 articles that mentioned UNLV basketball, Tarkanian, or the NCAA. These articles were published no later than
1992, four years prior to the trial date, by two newspapers, the Reno Gazette Journal and the Las Vegas Review Journal. Penrod's analysis
shows that the Las Vegas Review Journal was four times more likely than the Reno Gazette Journal to print negative statements about the
NCAA. Penrod found an additional five hundred Las Vegas Review Journal articles published between January 1993 and April 1996 that
referred to Tarkanian, but he did not analyze those articles for content. Tedin's poll shows that Clark County bias in favor of Tarkanian and
against the NCAA continued as late as March 1996.
Tortora criticized Penrod's analysis, noting that the link between the content of the articles and general attitudes about the target
populations was unclear. Tortora also discussed design flaws in Tedin's survey, including the failure to implement procedures to eliminate
nonresponse bias. Tortora stated, there is no evidence to link the trends in the newspaper articles with the attitudes, opinion, and beliefs of
those in [Tedin's] surveys. The record also shows that the population of Las Vegas grew from 858,232 in 1992, the year that the
Tarkanians filed their complaint, to 1,028,228 in 1995. Thus, a large proportion of the potential jury pool was not exposed to the articles
Penrod analyzed.
With a scant few exceptions, the newspaper quotations the NCAA characterizes as inflammatory were published several years before
the May 1996 trial date. The most inflammatory of these quotations appeared in a single article published in 1992, and are attributed to
Tarkanian's attorney and to the UNLV basketball players' attorney.
basketball players' attorney. Whether or not these statements were inappropriate is not the
issue in this appeal. The NCAA has failed to show that the Clark County jury pool was likely
to have read these statements or shared in their sentiments.
We conclude that substantial evidence in the record supports the district court's ruling and
that the district court did not manifestly abuse its discretion in denying the NCAA's motion
for a change of venue and request for evidentiary hearing.
Because the trial court did not err in denying the NCAA's motion, it is unnecessary to
address the NCAA's contention that a jury questionnaire cannot eliminate bias.
1
In my opinion, the NCAA probably cannot get a fair trial in Las Vegas; therefore, I dissent.
In these kinds of cases, [a]ppellate tribunals have the duty to make an independent
evaluation of the circumstances. Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). Although
we have traditionally reviewed change of venue orders on the basis of whether there was
manifest abuse of discretion in the trial court's ruling, it is my view that, given the
constitutional dimensions of this case, we should conduct a de novo review of the record
below. There is no reason in the present case why this court should not engage in an
independent review of this matter and decide, independent of the trial court's ruling, the legal
and constitutional question of whether there is a reasonable likelihood to believe that the
NCAA cannot get a fair trial in Las Vegas.
What the record reveals is that for many years Mr. Tarkanian has been a folkhero's
folk-hero in Las Vegas, a legend, the town's biggest star, the most powerful person in
Las Vegas and a man who will never be forgotten. I can think of no one in the history of
Las Vegas who can match the glory of this man; but there is someone that can match Mr.
Tarkanian, not in glory, but in infamynone other than the embodiment of evil, the
Adolph Eichmann, the Ayatollah and the Gestapo of sportsdom, namely, the barbaric
National College Athletic Association.
The picture is quite plain: Local folk-hero is wrongly and unfairly destroyed by a foreign
devil which had indulged in a 20-year conspiracy to drive [Tarkanian] from coaching and to
ruin [Tarkanian's] name and reputation with the intent of running him out of coaching. Now
representatives of the Las Vegas community are being called upon, in jury empaneled, to
pass judgment on whether their "ruined" folk-hero should be compensated for the harm
claimed to have been caused to their hero by a wrongful conspiracy wrought by the hands
of those "evil" NCAA people "in Kansas City."
__________

1
community are being called upon, in jury empaneled, to pass judgment on whether their
ruined folk-hero should be compensated for the harm claimed to have been caused to their
hero by a wrongful conspiracy wrought by the hands of those evil NCAA people in
Kansas City. To my way of thinking, this case represents exactly the type of case where
the place of trial must be changed. See Martinez v. Superior Court of Placer County, 629 P.2d
502, 503-08 (Cal. 1981).
All of the characterizations which I mention above (NCAA as being the villain,
embodiment of evil, barbaric and the like; and the legendary Las Vegas celebrity, Mr.
Tarkanian, as being the victim of a wrongful conspiracy perpetrated by the NCAA people
from Kansas City) are matters not of occasional public comment but, rather, matters that have
been the subject of the most extensive, saturating media coverage that has been afforded to
any Las Vegas celebrity. The NCAA maintains, and I agree, that local prejudiceboth
waysis so widespread and deeply embedded into the community's consciousness that its
biased effects cannot be alleviated. Even absent the social scientists' opinion supporting this
conclusion, it is clear to me that the NCAA's position in this matter is correct.
Of course, it can be argued that the torrent of publicity has subsided and that no one in Las
Vegas much remembers Tark any more. I think that the record belies such an argument; but
even if it were correct, and even if the publicity has died down, the very nature of this lawsuit
involves peculiar or sensational subject matter which bring[s] it to the consciousness of
the community, where it remains, virtually indelible to this day. Martinez, 629 P.2d at 502,
506. There can be little doubt from the record now before us that the consciousness of this
community overwhelmingly supports its hero and overwhelmingly damns the evil villain
from Kansas City. Mr. Tarkanian's case against the NCAA should not have to be tried under
these circumstances.
The record shows that most people in Las Vegas want Mr. Tarkanian to win this lawsuit,
and almost three out of four believe that the NCAA has done great damage to their university,
UNLV. Even if this kind of data does not demonstrate that the NCAA cannot get a fair and
impartial trial, permitting the trial to proceed in Las Vegas at least demonstrates an
appearance of injustice. We must ask ourselves whether justice satisfies the appearance of
justice and whether there is an appearance of impartiality. In re Murchison, 349 U.S. 133
(1955). It most certainly appears to me that it is impossible for the NCAA to get a fair trial in
Las Vegas; therefore, I dissent.
____________
113 Nev. 616, 616 (1997) SIIS v. Prewitt
THE STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of The State of Nevada,
Appellant, v. LINDA PREWITT, and SOUTHLAND CORPORATION, d/b/a 7-ELEVEN
(16), Respondents.
No. 27966
May 22, 1997 939 P.2d 1053
Appeal from an order of the district court affirming an administrative appeals officer's
decision to include deceased employee's concurrent wages earned from the federal
government in the calculation of death benefits. Eighth Judicial District Court, Clark County;
Jeffrey D. Sobel, Judge.
State Industrial Insurance System (SIIS) filed petition for judicial review of administrative
appeals officer's decision to include deceased employee's concurrent wages earned from
federal government in calculation of surviving spouse's death benefits. The district court
affirmed. SIIS appealed. The supreme court held that federal government was not employer
subject to provisions of Nevada Industrial Insurance Act (NIIA) for purposes of calculating
average monthly wage.
Lenard Ormsby, General Counsel, Wilbur W. Jennings, Associate General Counsel, Roger
P. Croteau, Associate General Counsel, State Industrial Insurance System, Carson City, for
Appellant.
Clark & Hunt, Las Vegas, for Respondents.
Federal government was not employer subject to provisions of Nevada Industrial Insurance Act (NIIA) for purposes of
calculating average monthly wage, and therefore deceased employee's concurrent wages earned from federal government were to be
excluded from calculation of his surviving spouse's death benefits. NRS 616.090, 616.615, 616.027(1)(a).
Questions of law are reviewed de novo in workers' compensation case.
3. Statutes.
Reviewing court may undertake independent review of administrative construction of statute.
Supreme court's policy of liberally construing workers' compensation statutes in favor of injured worker may not be used to alter
clear meaning of any such statute.
5. Statutes.
General rule of statutory construction cannot justify inclusion in statutory scheme of substantive right that cannot be supported by
any fair reading of statutory scheme.
OPINION
Per Curiam:
On August 9, 1994, William Prewitt was shot and killed while working as a part-time
clerk for a 7-Eleven convenience store in Las Vegas. Mr. Prewitt had been a part-time clerk at
7-Eleven for four years, where he earned approximately one-third of his annual income. The
remainder of Mr. Prewitt's income was derived from his full-time employment as a
serviceman in the United States Air Force.
Mr. Prewitt's spouse, respondent Linda Prewitt, filed a claim for death benefits with the
State Industrial Insurance System (SIIS). On August 26, 1994, SIIS sent Mrs. Prewitt a
written determination indicating that it would base its calculation of death benefits on Mr.
Prewitt's 7-Eleven wages without regard to remuneration realized by Mr. Prewitt from his
employment in the Air Force.
Mrs. Prewitt requested a recalculation of benefits, asserting that the earnings of her
deceased husband as a serviceman in the Air Force should be included as concurrent wages
in the calculation of his average monthly wage. SIIS refused the request, and Mrs. Prewitt
appealed the determination to the Department of Administration. On November 3, 1994, a
hearing officer reversed the SIIS determination and ordered recalculation of the death benefits
based upon Mr. Prewitt's total earnings, including remuneration received from his federal
employment.
On November 30, 1994, SIIS filed a request for a hearing before an appeals officer to
challenge the hearing officer's decision. On April 21, 1995, the appeals officer affirmed the
hearing officer's decision, concluding that the federal government was an employer subject to
the provisions of the Nevada Industrial Insurance Act (NIIA) for purposes of calculating
death benefits. In May 1995, in the district court, SIIS filed a petition for judicial review of
the appeals officer's decision and a motion for a partial stay pending appeal. The district court
entered the partial stay and, in December 1995, affirmed the decision of the appeals officer.
SIIS appeals the district court's order, arguing that the calculation of death benefits payable to
a surviving spouse does not include concurrent remuneration from a deceased's employment
with the federal government.
We conclude that the appeals officer erred. Therefore, we reverse the district court's order
affirming the appeals officer's decision.
DISCUSSION
[Headnote 1]
The appeals officer concluded that, as a matter of law, the federal government is not excluded from the definitions of
"average monthly wage" and "employer" set forth in NRS 616.0271 and NRS 616.090, respectively, and,
therefore, is subject to the NIIA.
federal government is not excluded from the definitions of average monthly wage and
employer set forth in NRS 616.027
1
and NRS 616.090, respectively, and, therefore, is
subject to the NIIA. The appeals officer also concluded that the fact that the federal
government does not pay industrial insurance premiums is an insufficient basis to exclude
federal government earnings from the death benefit determination.
[Headnotes 2, 3]
The facts of this case are not in dispute. The question before the court is whether the appeals officer properly interpreted and applied
the workers' compensation statutes applicable to this case. Questions of law are reviewed de novo. SIIS v. United Exposition Services Co.,
109 Nev. 28, 30, 846 P.2d 294, 295 (1993). [A] reviewing court may undertake independent review of the administrative construction of a
statute. American Int'l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983).
NRS 616.615 provides that the surviving spouse of a deceased employee is entitled to receive death benefits. It states in relevant part,
If an injury by accident arising out of and in the course of employment causes the death of an employee in the employ of an
employer, within the provisions of this chapter, the compensation is known as a death benefit, and is payable as follows:
. . . .
2. To the surviving spouse of the deceased employee, 66 2/3 percent of the average monthly wage . . . .
Thus, the basis upon which benefits are calculated under the NIIA is a determination of a deceased employee's average monthly
wage. NRS 616.027 defines average monthly wage, providing in part:
1. Except as otherwise provided in subsection 3, average monthly wage means the lesser of:
(a) The monthly wage actually received or deemed to have been received by the employee on the date of the accident or injury
to the employee, excluding remuneration from employment:
(1) Not subject to the Nevada Industrial Insurance Act or the Nevada Occupational Diseases Act; and
(2) For which coverage is elective, but has not been elected; . . . .
__________

1
The NIIA provisions in effect at the time of the district court's decision have since been replaced by NRS Chapters 616A-616D.
(Emphasis added.)
The language of NRS 616.027 clearly excludes remuneration from employment not
subject to the NIIA and for which coverage has not been elected. The federal government has
not elected coverage in the instant matter. Thus, the issue to be decided is whether the federal
government is subject to the NIIA under NRS 616.027(1)(a)(1).
SIIS argues that federal employment is not subject to the NIIA because the federal
government is not included in the definition of employer set forth in NRS 616.090. NRS
616.090 provides:
Employer Means:
1. The state, and each county, city, school district, and all public and quasi-public
corporations therein without regard to the number of persons employed.
2. Every person, firm, voluntary association, and private corporation, including any
public service corporation, which has in service any person under a contract of hire.
3. The legal representative of any deceased employer.
SIIS contends that the omission of the federal government from the definition of employer
evinces the legislature's intent to exclude federal employers from the definition. Mrs. Prewitt
argues that the omission of the federal government from the definition of employer is
irrelevant and that this court should conclude that the federal government is an employer in
Nevada subject to the NIIA for the purpose of calculating the average monthly wage.
[Headnotes 4, 5]
We are persuaded by SIIS' argument. This court has consistently upheld the plain meaning of the statutory scheme in workers'
compensation laws. This court's policy of liberally construing workers' compensation statutes in favor of the injured worker may not be
used to alter the clear meaning of any such statute. Eads v. SIIS, 109 Nev. 733, 736, 857 P.2d 13, 15 (1993). The general rule of statutory
construction . . . cannot justify the inclusion in a statutory scheme of a substantive right that cannot be supported by any fair reading of the
statutory scheme. Weaver v. SIIS, 104 Nev. 305, 306, 756 P.2d 1195, 1196 (1988); see also NRS 616.012.
2
We conclude that because
the legislature specifically defined employer without including any limiting language such as "including, but
not limited to," the legislature intended the statute to be exclusive.
__________

2
NRS 616.012 provides in relevant part:
The legislature hereby determines and declares that:
. . . .
2. A claim for compensation filed pursuant to the provisions of this chapter or chapter 617 of NRS must be decided on its
merit and not according to the principle of common law that requires statutes governing workers' compensation to be liberally
construed because they are remedial in nature; . . . .
the legislature specifically defined employer without including any limiting language such as
including, but not limited to, the legislature intended the statute to be exclusive.
Accordingly, we conclude that the federal government is not an employer defined in NRS
616.090 and is not subject to the provisions of the NIIA for purposes of calculating the
average monthly wage.
The appeals officer concluded that no rational basis exists for including wages from
concurrent employment by self-insured employers pursuant to NAC 616.688
3
while
excluding concurrent employment wages from the federal government. Thus, the appeals
officer found that the fact that the federal government does not pay industrial insurance
premiums is irrelevant to the determination of whether the federal government is subject to
the NIIA. We disagree. The rationale behind the policy of covering workers employed by
self-insured entities is to protect Nevada's workers while spreading the insurance risk among
employers. A self-insured employer pays into the system by assuming the risk when an
employee is injured in the course of his or her employment with the self-insured entity. The
federal government does not assume a similar risk. We conclude that permitting federal
employment wages to be considered in the calculation of the average monthly wage does
not further the policy underlying the NIIA.
4
For the reasons set forth above, we conclude that the appeals officer erred as a matter of
law in her interpretation and application of NRS 616.027 and NRS 616.090. Accordingly, we
reverse the order of the district court and remand this matter with instructions that the district
court enter an order reversing the appeals officer's decision and adopting SIIS' calculation of
death benefits.
__________

3
NAC 616.688 provides:
The average monthly wage of an employee who is employed by two or more employers covered by the
system or by a plan of self-insurance on the date of a disabling accident or disease is equal to the sum of
the wages earned or deemed to have been earned at each place of employment.

4
We also note that the Veterans Administration pays Mrs. Prewitt $1,100.00 per month in death benefits.
____________
113 Nev. 621, 621 (1997) Joseph John H., a Minor v. State
JOSEPH JOHN H., a/k/a JOEY E., a Minor, Appellant,
v. THE STATE OF NEVADA, Respondent.
No. 25410
May 22, 1997 939 P.2d 1056
Appeal from an order of the district court adjudicating appellant a delinquent. Eighth
Judicial District Court, Clark County; Steven E. Jones, Judge.
Juvenile appealed from order of the district court adjudicating juvenile a delinquent. The
supreme court held that State's oral affidavit was insufficient to warrant continuance based on
absence of witness.
Reversed.
Morgan D. Harris, Public Defender and Sharon G. Dickenson, Deputy Public Defender,
Clark County, for Appellant.
and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Prosecutor must be prepared to present case at time scheduled or show good cause for inability to do so; there is no presumption
that good cause exists.
2. Criminal Law.
Prosecutor seeking continuance because of absent witnesses can demonstrate good cause by submitting affidavit stating names of
absent witnesses and their present residences, if known, diligence used to procure witnesses' attendance, brief summary of expected
testimony of such witnesses and whether same facts can be proven by other witnesses, when affiant first learned that attendance of
such witnesses could not be obtained, and that motion is made in good faith and not for delay.
3. Criminal Law.
Sworn oral affidavit is sufficient to establish good cause for continuance based on absent witness when prosecutor is surprised by
absence of subpoenaed witness and has no time to prepare written affidavit.
4. Infants.
State's oral affidavit was insufficient to warrant continuance of juvenile delinquency proceeding based on absence of witness,
where State simply mailed subpoena to victim and expected her to be present, State apparently disregarded or did not record victim's
telephone calls indicating she was not available for scheduled hearing, and State took no action with respect to witness until day of
hearing.
OPINION
Per Curiam:
FACTS
On May 27, 1993, the state petitioned the district court to adjudge the minor appellant a
delinquent.
adjudge the minor appellant a delinquent. The state mailed a subpoena to the victim fifteen
days before the contested hearing, but the subpoena was never returned.
1
On the day of the
hearing, apparently during the lunch hour, the prosecuting attorney called the victim's
telephone number and learned that it was disconnected. The prosecutor then drove to the
victim's last known address and learned that the victim had moved the prior weekend. The
victim did not appear at the hearing, and the state orally moved for a continuance. Appellant
objected to the continuance on the grounds that the subpoena had not been properly served
and the state failed to file a written affidavit pursuant to Hill v. Sheriff, 85 Nev. 234, 452 P.2d
918 (1969). The juvenile referee granted the continuance because she found that the state had
shown due diligence in attempting to locate the victim, particularly because the prosecutor
had received the case from a vacationing prosecutor the day before the hearing.
The continued hearing was subsequently conducted, and the referee recommended a
finding of guilt and a suspended commitment to the Spring Mountain Youth Camp. At the
hearing, the victim testified that she received a subpoena in the mail two weeks before the
first hearing. According to the victim, she called the state several times and indicated that she
could not be present at the hearing, but was eventually told, if [you do not] show up, then
[you do not] show up. The district court subsequently entered a formal probation order
adopting the referee's recommendations and adjudging appellant a delinquent.
DISCUSSION
[Headnote 1]
Prosecutors must be prepared to present their cases at the times scheduled or show good cause for their inability to do so. Bustos v.
Sheriff, 87 Nev. 622, 624, 491 P.2d 1279, 1280 (1971). There is no presumption that good cause exists. Ex Parte Morris, 78 Nev. 123, 125,
369 P.2d 456, 457 (1962). We have previously indicated that our criminal justice system can ill afford to bestow on prosecutors, or on
defense counsel, largesse through continuances for which no cause is shown. McNair v. Sheriff, 89 Nev. 434, 436-37, 514 P.2d 1175,
1176 (1973).
[Headnotes 2, 3]
A prosecutor seeking a continuance because of an absent witness can demonstrate good cause by submitting an affidavit stating {1)
the names
__________

1
A witness may accept delivery of a subpoena, in lieu of service, by a written or oral promise to appear. The recipient of the witness'
promise to appear must then memorialize the promise in a specified manner. See NRS 174.315. In this case, the victim never promised she
would appear at the hearing; to the contrary, she expressly informed the state she was unavailable on the scheduled date.
stating (1) the names of the absent witnesses and their present residences, if known; (2) the
diligence used to procure their attendance; (3) a brief summary of the expected testimony of
such witnesses and whether the same facts can be proven by other witnesses; (4) when the
affiant first learned that the attendance of such witness could not be obtained; and (5) that the
motion is made in good faith and not for delay. Hill v. Sheriff, 85 Nev. 234, 235-36, 452 P.2d
918, 919 (1969). A sworn oral affidavit is sufficient when the prosecutor is surprised by the
absence of a subpoenaed witness and has no time to prepare a written affidavit. Bustos v.
Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971).
We recently concluded that the protections afforded in Hill extend to juvenile proceedings.
Scott E., A Minor v. State, 113 Nev. 234, 931 P.2d 1370 (1997). In Sheriff v. Terpstra, 111
Nev. 860, 899 P.2d 548 (1995), we overruled, in part, Ormound v. Sheriff, 95 Nev. 173, 591
P.2d 258 (1979),
2
and stated:
What constitutes good cause is not amenable to a bright-line rule. The justices' court
must review the totality of the circumstances to determine whether good cause has
been shown. This is not to say that the use of an available means to compel the
attendance of a witness is not a significant factor in determining whether good cause
has been shown. It is not, however, a dispositive factor; it merely goes to the diligence
used by the prosecutor to procure the witness' attendance.
Terpstra, 111 Nev. at 863, 899 P.2d at 550.
[Headnote 4]
In this case we find it significant that the state failed to use proper legal means to compel the victim's attendance, and failed to use
informal means of compulsion until immediately before the hearing was scheduled to begin. The state simply mailed a subpoena to the
victim and expected her to be present. The state apparently disregarded or did not record the victim's telephone calls indicating she was not
available for the scheduled hearing. The state never spoke with the victim about her testimony prior to the hearing, nor did the prosecutor
even know if the victim received the subpoena. While not dispositive, these uncontradicted facts evince the state's conscious indifference
to rules of procedure affecting" appellant's rights as a juvenile defendant.
__________

2
Ormound stood for the proposition that [w]here a legal means of compelling the attendance of a witness is available, that method
must be used before the good cause requirement . . . is met. Ormound, 95 Nev. at 175, 591 P.2d at 259. Although we overruled Ormound
in part, we specifically noted that the continuance granted therein was improper because [t]he mere mailing of a justices' court subpoena to
the witness, combined with informing the witness that her testimony is necessary, was insufficient. Terpstra, 111 Nev. at 863 n.2, 899
P.2d at 551 n.2.
procedure affecting appellant's rights as a juvenile defendant. See State v. Austin, 87 Nev.
81, 83, 482 P.2d 284, 285 (1971).
The facts of this case are dissimilar from those in Sheriff v. Simpson, 109 Nev. 430, 851
P.2d 428 (1993), where the state made substantial efforts to locate and serve a subpoena upon
a necessary witness the day before the preliminary hearing. Moreover, the prosecutor in
Simpson was informed that the witness would be present, and therefore, was genuinely
surprised by her absence at the hearing. Thus, in Simpson, an oral affidavit pursuant to Bustos
was sufficient to warrant a continuance. In this case, the state cannot rely upon its own lack of
diligence to argue that it was surprised by the victim's absence and that there was insufficient
time to prepare a written affidavit pursuant to Hill. We expressly reject the state's argument
that Hill authorizes an oral affidavit even though a prosecutor is not surprised when an
improperly subpoenaed witness fails to appear.
According to the victim's uncontradicted testimony, the state had actual notice she would
not appear, yet it failed to prepare a Hill affidavit or take any other action until the day of the
hearing. Accordingly, we conclude that under these circumstances, the district court erred in
entering its order adjudicating appellant a delinquent. We therefore reverse the district court's
order.
____________
113 Nev. 624, 624 (1997) Beck v. District Court
ANDREW J. BECK, Petitioner, v. THE SEVENTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and For The County of Eureka, and THE HONORABLE
DAN L. PAPEZ, District Judge, Respondents, and THE STATE OF NEVADA, Real
Party in Interest.
No. 29433
May 22, 1997 939 P.2d 1059
Original petition for a writ of prohibition, seeking to prevent the state and district court
from proceeding in a criminal prosecution. Seventh Judicial District Court, Eureka County;
Dan L. Papez, Judge.
After the district court declared mistrial in prosecution for indecent exposure, defendant
petitioned for writ of prohibition, to prevent state and court from proceeding in another
prosecution. The supreme court, Maupin, J., held that declaration of mistrial was supported
by manifest necessity, permitting retrial on same charges without violating double jeopardy.
Petition denied.
Steven G. McGuire, State Public Defender and Sue Fahami, Deputy Public Defender,
Carson City, for Petitioner.
William E. Schaeffer, District Attorney, Eureka County, for Respondents and Real Party in
Interest.
Double Jeopardy.
Declaration of mistrial in indecent exposure prosecution, occurring after defense counsel accused witness' mother of mouthing
words to witness during defendant's cross-examination of witness and court questioned mother from audience, was supported by
manifest necessity, permitting retrial on same charges without violating double jeopardy. Questioning of mother and implication there
was improper communication was prejudicial and would have impacted jury's ability to reach impartial verdict. U.S. Const. amend. 5.
OPINION
By the Court, Maupin, J.:
On September 2, 1995, Devanie Allen spent part of the day at Petroglyph State Park, along
with her two children and her friend, Kristi Despain. At about 5:50 p.m., the foursome left the
park and began driving east on Highway 50, with Allen driving. A car passed them, and
according to Allen, the driver smiled at her. The driver of the other car was petitioner Andrew
Beck. After Beck got ahead of Allen's group, he pulled off the highway and stopped. Allen
alleges that she saw Beck get out of his car and remove his pants. Allen testified that Beck
then started walking toward the trunk of his car, holding up his shirt to expose himself. After
Allen and her group passed Beck, he got back into his car and came up behind Allen's car,
following her. Allen used her cellular phone to call the police. A sheriff's deputy responded
and stopped Beck.
Beck's version of the story differs.
1
Approximately four months before the incident in
question, Beck had a vasectomy. Because of the surgery, he is uncomfortable sitting for long
periods of time. As he was driving, he took off his shorts in an attempt to get more
comfortable, and he laid his shorts on his lap. After Beck passed Allen's car, his trunk came
unlatched and so he pulled over to the side of the road. In his haste to close his trunk, Beck
jumped out of the car and the shorts fell to the ground, exposing Beck to Allen, Despain, and
the children. Beck, embarrassed, got back into his car and resumed his journey. The fact that
he caught up to Allen's car was merely coincidental.
On September 29, 1995, an information was filed, charging Beck with indecent exposure.
__________

1
The trial was stopped before the state finished presenting its case. The following account is taken from the
opening statement of Beck's counsel.
Beck with indecent exposure. A jury trial commenced on November 8, 1995. Allen testified
without incident. The state called Despain as a witness. Despain's mother, Peggy Jardine, was
sitting in the audience observing. During the defense's cross-examination of Despain, the
defense attorney stated: Your Honor, I have an objection. The mother is mouthing words and
nodding her head to the witness. That's certainly improper. Whereupon the following
exchange took place:
THE COURT: Is that going on? Are you talking toare you the mother?
FROM THE AUDIENCE: Yes, I am.
THE COURT: Are you mouthing words to the witness?
FROM THE AUDIENCE: I wasn't mouthing any words. I was justwhat I'm
sayinghow can she understand? I wasn't mouthing anything.
THE COURT: I'll direct you leave the courtroom at this time.
FROM THE AUDIENCE: Okay.
After Jardine left the courtroom, cross-examination of Despain continued without incident,
and the state conducted redirect.
The following morning, when the trial resumed, the district judge expressed concern about
certain alleged improprieties that may have occurred during the testimony yesterday of one
of the State's witnesses, Kristie [sic] Despain. The district court decided to conduct a hearing
outside the presence of the jury.
Susan Harrison, a prospective juror who had been excused but who had remained to
observe the trial, testified. Harrison related that she had observed Despain mouthing words
toward the audience during a sidebar. Despain also testified, and she indicated that she did
not mouth words to her mother during her testimony, that she did not even make eye contact
with her mother during her testimony, and that she had not discussed the incident with her
mother since it originally happened. Jardine was called to testify, but she invoked her Fifth
Amendment rights and refused to testify.
After the hearing, the district judge said, Counsel, in my mind this trial at this point has
been infected with a virus. I don't think it is curable by anything that we can do. The judge
went on:
The court sua sponte is going to make a finding that there is a manifest necessity to
declare a mistrial in this case based upon all of the factors that I've stated in the matter.
And, I truly believe that the ends of justice in this case require that a mistrial be declared.
Both the defense and the state objected to the declaration of a mistrial.
Beck now seeks a writ of prohibition, claiming that if the state attempts to re-try him, he
will be placed in double jeopardy, in violation of the constitutions of the United States and
Nevada. U.S. Const. amend. V; Nev. Const. art. 1, 8.
In analyzing the facts of this case to determine if double jeopardy bars further
prosecution, this court must make a two-part inquiry. We must first decide whether
declaration of the mistrial was dictated by manifest necessity or the ends of justice and,
second, in the presence of manifest necessity, whether the prosecutor is responsible for
the circumstances which necessitated declaration of a mistrial.
Hylton v. District Court, 103 Nev. 418, 422-23, 743 P.2d 622, 625 (1987).
This court has previously held that [d]enial of a motion for mistrial is within the trial
court's sound discretion. The court's determination will not be disturbed on appeal in the
absence of a clear showing of abuse. Owens v. State, 96 Nev. 880, 883, 620 P.2d 1236, 1238
(1980). In this case, we conclude that the district court did not abuse its discretion, because
the district judge's questioning of Jardine and the implication that there was improper
communication between Jardine and Despain created a situation where declaration of a
mistrial became a manifest necessity. Specifically, we note that Despain was one of only two
witnesses to the incident, so her testimony was very important to the state's case.
Additionally, credibility was very important, since it was essentially Beck's word against
Despain's and Allen's. Because credibility was such an important issue, the exchange which
occurred between Jardine and the district judge was particularly prejudicial, and would have
severely impacted the jury's ability to reach an impartial verdict. A trial judge properly
exercises his discretion to declare a mistrial if an impartial verdict cannot be reached . . . .
Illinois v. Somerville, 410 U.S. 458, 464 (1973).
We therefore conclude that the district court's declaration of a mistrial over the objection
of the defendant and the state was dictated by manifest necessity. Further, it is clear that the
prosecution was not responsible for the circumstances which caused the district court to
declare a mistrial. The district court specifically found that the State, the prosecution, is in
no way, shape or form at fault for what has happened in this case. This finding is supported
by the record. Accordingly, we conclude that the requirements of Hylton are satisfied and
Beck may be retried without implicating the Double Jeopardy Clause. The petition is denied.
Springer, J., with whom Rose, J., agrees, dissenting:
The majority correctly notes that the decision to declare a mistrial is within the discretion
of the district court, citing Owens v. State, 86 Nev. 880, 620 P.2d 1236 (1980). That
discretion is not unlimited, however. Where, as here, there is a possible implication of the
double jeopardy clause because a mistrial was declared over the objection of the defendant,
this court has scrutinized the district court's decision more closely than the majority's analysis
would suggest. E.g., Hylton v. District Court, 103 Nev. 418, 743 P.2d 622 (1987); Carter v.
State, 102 Nev. 164, 717 P.2d 1111 (1986); State v. Helm, 66 Nev. 286, 209 P.2d 187 (1949).
In such a case, [t]he prosecutor has a heavy burden of justifying the mistrial in order to avoid
the double jeopardy bar. Hylton, 103 Nev. at 422, 743 P.2d at 625.
A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict
cannot be reached, or if a verdict of conviction could be reached but would have to be
reversed on appeal due to an obvious procedural error in the trial. Illinois v. Somerville, 410
U.S. 458, 464 (1973). The question before this court, then, is whether events at trial would
have necessarily meant a reversal on appeal, had petitioner been convicted.
I note that the district judge, by asking Jardine if she was mouthing words to Despain, did
not comment on the credibility of Despain, but on the actions of a spectator. Further, the
incident was very brief and would not appear to have made much of an impression on the
jurors. In fact, after Jardine was asked to leave the courtroom, cross-examination of Despain
continued and the state conducted redirect examination. It was not until the following
morning that the district court declared a mistrial.
In my view, the district judge acted properly by simply excluding Jardine from the
courtroom; and the exchange which occurred between the district judge and Jardine would
not have mandated a reversal on appeal. If the district court felt that further action was
necessary to cure any perceived tainting of Despain's credibility, an admonition to the jury
would surely have been sufficient. I cannot conclude, therefore, that declaration of a mistrial
was a manifest necessity. I conclude that the case against appellant should be barred by the
prohibition against double jeopardy and the petition should be granted.
____________
113 Nev. 628, 628 (1997) Feole v. State
DENNIS ARTHUR FEOLE, Appellant, v. THE
No. 27722
May 22, 1997 939 P.2d 1061
Appeal from judgment of conviction of attempted preventing or dissuading a witness
from reporting a crime.
113 Nev. 628, 629 (1997) Feole v. State
dissuading a witness from reporting a crime. Third Judicial District Court, Lyon County;
Mario G. Recanzone, Judge.
Defendant was convicted in the district court of attempted preventing or dissuading
witness from reporting crime. Defendant appealed. The supreme court held that justice of the
peace's failure to bind defendant over for trial on original charges did not constitute egregious
error which would permit State to file information by affidavit alleging same violations.
Reversed.
Kenneth V. Ward, Public Defender, Lyon County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert E. Estes, District Attorney,
Lyon County, for Respondent.
After justice court determines that probable cause does not exist to bind accused over for trial, State can again bring charges
against accused by filing second complaint with justice court or by indictment; this is proper method if State wishes to correct and/or
satisfy deficiencies in evidence.
State did not comply with technical requirement of statute permitting State to file information by affidavit by leave of court, after
justice court determined that probable cause did not exist to bind accused over for trial, where prosecutor filed his own affidavit.
Statute required that State attach affidavit of competent witness with knowledge of commission of offense. NRS 173.035.
Justice of the peace's failure to bind defendant over for trial on charges of preventing or dissuading witness from reporting crime
and intimidating witness to influence testimony did not constitute egregious error which would permit State to file information by
affidavit alleging same violations. Defendant did not succeed in preventing alleged victim from reporting crime, victim testified that
defendant never threatened to kill her, that defendant angered easily and said things he did not carry out, victim and third person did
not see defendant with any weapon, defendant did not directly tell victim not to testify, and defendant never abused victim and never
showed victim a weapon. NRS 173.035.
OPINION
Per Curiam:
FACTS
Appellant Dennis Arthur Feole shared a household with Martha Tiscareno. Tiscareno told
Feole that she might report Feole's son Dominic's use of marijuana to the police. Feole
responded by telling Tiscareno that if she snitched, her body would be found in the desert.
Tiscareno reported Dominic to the police, then moved out of the house.
113 Nev. 628, 630 (1997) Feole v. State
police, then moved out of the house. When Tiscareno next saw Feole, Feole made shoveling
motions saying, Remember what I told you.
Feole was charged by complaint with preventing or dissuading a witness from reporting a
crime, and with intimidating a witness to influence testimony. At Feole's preliminary hearing,
the justice of the peace, finding no probable cause, dismissed both charges.
After the charges were dismissed, Robert Witek, Deputy District Attorney, filed in the
district court an information alleging the same violations set forth in the original criminal
complaint and a Motion for Leave to File Information by Affidavit. Witek then filed an
Affidavit in Support of Information that stated that Witek had been the prosecutor at the
preliminary hearing and set forth the testimony of the two witnesses at the preliminary
hearing.
Feole filed a Motion to Strike the Information and Opposition to Motion for Leave to File
Information by Affidavit. The district court heard the State's Motion For Leave to File
Information by Affidavit and allowed the State to file the information. However, after the
hearing, the State filed an Amended Information, changing the original charges to one count
of Attempted Preventing or Dissuading A Witness from Reporting A Crime, in violation of
NRS 193.330 and NRS 199.305.
A jury trial resulted in a verdict of guilty on the amended information. Feole now appeals
the district court's decision to permit the State to file the information.
DISCUSSION
[Headnote 1]
After the justice court determines that probable cause does not exist to bind an accused over for trial, the State has two options. First, it
can bring charges against the accused again by filing a second complaint with the justice court or by indictment. Murphy v. State, 110 Nev.
194, 198, 871 P.2d 916, 918 (1994). This is the proper method if the State wishes to correct and/or satisfy deficiencies in the evidence. See
id. Alternatively, the State can proceed pursuant to NRS 173.035, which states in pertinent part:
2. If, however, upon the preliminary examination the accused has been discharged, . . . the district attorney may, upon
affidavit of any person who has knowledge of the commission of an offense, and who is a competent witness to testify in the case,
setting forth the offense and the name of the person or persons charged with the commission thereof, upon being furnished with
the names of the witnesses for the prosecution, by leave of the court first had, file an information, and process must forthwith be
issued thereon.
113 Nev. 628, 631 (1997) Feole v. State
We have stated that this statute contemplates a safeguard against egregious error by a
magistrate in determining probable cause, not a device to be used by a prosecutor to satisfy
deficiencies in evidence at a preliminary examination, through affidavit. Cranford v. Smart,
92 Nev. 89, 91, 545 P.2d 1162, 1163 (1976).
Feole contends that the district court erred in allowing the State to file an information by
affidavit because NRS 173.035 is a remedy for egregious error, but here, the justice of the
peace did not commit egregious error in failing to find probable cause. We agree.
[Headnote 2]
Initially, we recognize that the State did not comply with the technical requirement of NRS 173.035(2) that it attach an affidavit of a
competent witness with knowledge of the commission of the offense. The prosecutor filed his own affidavit, which we have previously
stated is insufficient to satisfy the statute. Cipriano v. State, 111 Nev. 534, 540, 894 P.2d 347, 351 (1995).
[Headnote 3]
We also conclude that the failure of the justice of the peace to bind Feole over for trial does not constitute egregious error. First, Feole
did not succeed in preventing Tiscareno from reporting Dominic, even though he had been charged with preventing or dissuading a witness
from reporting a crime. Additionally, at the preliminary hearing, evidence of these crimes consisted of testimony by Tiscareno and Rose
Corcilius (Feole's niece). Tiscareno testified that Feole told her that if she snitched her body would be found out in the desert, and that
she was fearful of Feole at that time. However, on cross-examination, Tiscareno testified that Feole never threatened to kill her, and that
Feole was easily angered and said things he did not carry out. The month after the alleged threat was made, Corcilius saw Feole. Corcilius
testified, I thought maybe he was going to do something to her, possibly, and I just assumed that she was going to be hurt. Neither
Tiscareno nor Corcilius saw Feole with any weapon.
Furthermore, any evidence that Feole intimidated Tiscareno to influence testimony is insubstantial. Tiscareno testified that after she
reported Dominic, when she saw Feole at the casino Feole made some shoveling motions, but she did not state that Feole told her directly
not to testify against Dominic.
Tiscareno testified that Feole never abused her, and that he never showed her a weapon. There is little or no evidence that the alleged
threat was accompanied by physical acts. After Tiscareno reported Dominic, and after she saw Feole at the casino, Feole apparently
suggested to Corcilius that he knew someone in Oregon who might hurt Tiscareno. Because Feole's statements to Corcilius occurred
after the alleged threats, and were not made to Tiscareno, it is unlikely that Feole could have intended them to
prevent Tiscareno from reporting or testifying against Dominic.
113 Nev. 628, 632 (1997) Feole v. State
to Corcilius occurred after the alleged threats, and were not made to Tiscareno, it is unlikely
that Feole could have intended them to prevent Tiscareno from reporting or testifying against
Dominic. Based on this evidence, we conclude that the failure to bind Feole over for trial was
not an egregious error.
Finally, we note that after the prosecutor was permitted to file the information in the
district court, he amended the information to charge Feole with attempted preventing or
dissuading a witness from reporting a crime. Because we have concluded that the district
court erred in permitting the prosecutor to file the information, we also must conclude that the
conviction on the amended information's charges was improper. Because the information
should never have been filed, the amended information should also have never been filed.
Had the prosecutor wished to charge Feole with the attempted crime, he should have refiled a
complaint in the justice's court, not availed himself of the procedure delineated in NRS
173.035(2).
In view of the circumstances of this case and the character of the district court's error, we
conclude that the district court's judgment of conviction must be reversed.
1
__________

1
____________
113 Nev. 632, 632 (1997) Las Vegas Downtown Redev. Agency v. Hecht
CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT AGENCY, Appellant, v.
JACOB CHIC HECHT, as Trustee of JACOB CHIC HECHT Revocable Living
Trust, CECELIA HECHT APPELBAUM, JUAN DEL PRADO dba WORLD
MERCHANTS IMPORTERS, LAWYERS TITLE OF LAS VEGAS, INC.,
NEVADA STATE BANK, CITY OF LAS VEGAS, a Municipal Corporation, Clark
County, MARTIN D. HECHT, as Trustee Under the MARTIN D. HECHT Revocable
Living Trust Dated September 5, 1989, DONALD HECHT, JACOB HECHT, KEVIN
MURPHY dba MICHAEL MENS FASHION, CECELIA APPELBAUM, Trustee in
Trust Under the APPELBAUM Family Trust, Dated October 20, 1989, Respondents.
No. 27942
June 3, 1997 940 P.2d 127
Motion to disqualify Supreme Court Justice Young.
Attorney representing party in underlying appeal moved to disqualify supreme court
justice as being biased against him.
disqualify supreme court justice as being biased against him. The supreme court held that: (1)
remarks that justice had made during election campaign for justice's seat about propriety of
attorney's donations to justice's opponent did not warrant disqualification, and (2) fact that
justice's son-in-law was partner in firm representing amicus curiae also did not warrant
disqualification.
Motion denied.
Bradford Jerbic, City Attorney, Las Vegas; Beckley, Singleton, Jemison & List and Daniel
F. Polsenberg, Las Vegas; McDonough, Holland & Allen and Mark A. Wasser, Sacramento,
California, for Appellant.
Kermitt L. Waters and Laura Wightman FitzSimmons, Las Vegas, for Respondents.
Chet Adams, City Attorney, Sparks; Shauna M. Hughes, City Attorney, Henderson;
Richard C. Maurer, City Attorney, North Las Vegas; Noel S. Waters, District Attorney,
Carson City, for Amicus Curiae City Redevelopment Agencies.
Lionel Sawyer & Collins, Las Vegas, for Amicus Curiae The Fremont Street Experience.
1. Judges.
Remarks that supreme court justice had made during election campaign for justice's seat about propriety of attorney's donations to
justice's opponent did not show bias against attorney warranting disqualification of justice from hearing appeal in which attorney was
representing party, where remarks were off-the-cuff comments that were based on information justice had received and that merely
suggested that attorney may have engaged in impropriety. Code of Jud.Conduct, Canons 2, 3E(1)(a).
2. Judges.
Supreme court justice was not disqualified from hearing appeal on ground that his son-in-law was partner in firm representing
amicus curiae, where his daughter had no direct economic interest in subject matter of controversy or any other more than de
minimis interest that could be substantially affected and son-in-law was not actually involved in the representation. Code of
Jud.Conduct, Canon 3E(1)(c), (d).
3. Judges.
Before justice or judge can be disqualified because of animus toward party's attorney, egregious facts must be shown. Code of
Jud.Conduct, Canon 3E.
4. Judges.
When statement or conduct of justice or judge made in campaign setting is reviewed in context of motion to disqualify that jurist
for animus toward party's attorney, reasonable latitude must be given in recognition of realities of election process,
particularly if attorney has inserted himself or herself into contest.
recognition of realities of election process, particularly if attorney has inserted himself or herself into contest. Code of Jud.Conduct,
Canon 3E.
OPINION
Per Curiam:
FACTS
Respondents Jacob Chic Hecht, as Trustee of the Jacob Chic Hecht Revocable Living
Trust; Martin D. Hecht, as Trustee under the Martin D. Hecht Revocable Living Trust dated
September 5, 1989; Cecelia Appelbaum, Trustee in Trust, under the Appelbaum Family Trust
dated October 10, 1989; Cecelia Hecht Appelbaum; Donald Hecht; and Jacob Hecht
(collectively Hecht) filed a motion to disqualify Justice Cliff Young from hearing the
merits of the underlying appeal based on the grounds of actual bias, implied bias, and/or
appearance of impropriety. Respondents base their argument on the fact that Justice Young
allegedly harbored a bias against their counsel, Kermitt Waters.
Justice Young and his opponent in the last Nevada Supreme Court election, Judge Steve
Jones, were present at an October 9, 1996 Washoe County Bar Association luncheon to
answer questions about the upcoming election. Judge Jones was asked whether he would, if
he won the election, recuse himself from an appeal pending in the Nevada Supreme Court in
which Waters was representing a party who had been awarded $9,000,000 at trial; at that
time, Waters had donated $27,882, personally and through his wholly owned corporation, to
Jones' campaign. After Judge Jones answered the question, Justice Young stated:
Regarding the contributions, whether Judge Jones should disqualify himself, it is a
matter of Judge Jones to decide from the standpoint of his own conscience. I think that
the law limits individuals to $10,000 and corporations to $20,000. It would appear that
perhaps Mr. Waters has exceeded to some extent those contributions. As far as other
services, I know that recently Mr. Waters has made available two large billboards [for
Jones] on top of his office which I presume has not at this time been known to my
opponent.
Hecht argues that this statement amounted to an accusation that Waters had committed a
crime and, as such, was evidence of Justice Young's actual or implied bias toward Waters;
therefore, Hecht argues that Justice Young should be disqualified from hearing the merits in
the underlying appeal.
Hecht also argues that Justice Young should be disqualified from hearing the underlying
appeal because the law firm of Lionel Sawyer & Collins represents The Fremont Street
Experience, an amicus curiae to this appeal, and Justice Young's son-in-law is a partner in
that firm.
from hearing the underlying appeal because the law firm of Lionel Sawyer & Collins
represents The Fremont Street Experience, an amicus curiae to this appeal, and Justice
Young's son-in-law is a partner in that firm.
We conclude that Hecht's arguments lack merit, and we deny Hecht's motion to disqualify
Justice Young.
DISCUSSION
[Headnote 1]
This court has consistently held that the attitude of a judge toward the attorney for a party is largely irrelevant. Prior to our adoption of
the Code of Judicial Conduct (the Code) in 1992, we considered Ainsworth v. Combined Ins. Co., 105 Nev. 237, 259, 774 P.2d 1003, 1019
(1989), in which we had affirmed a punitive damage award of $6,000,000. A petition for rehearing and a motion to disqualify former Chief
Justice Elmer Gunderson were filed based upon Gunderson's participation in the previous decisions in the case. We held that [g]enerally,
an allegation of bias in favor of or against counsel for a litigant states an insufficient ground for disqualification because it is not indicative
of extrajudicial bias against the party.
1
Id. at 259, 774 P.2d at 1019; see also In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d
1271 (1988). The purpose for such a policy was that:
In a small state such as Nevada, with a concomitantly limited bar membership, it is inevitable that frequent interactions will occur
between the members of the bar and the judiciary. Thus, allegations of bias based upon a judge's associations with counsel for a
litigant pose a particularly onerous potential for impeding the dispensation of justice.
Dunleavy, 104 Nev. at 790-91, 769 P.2d at 1275. Furthermore, we stated that if a litigant could successfully challenge a judge based upon
allegations of bias against counsel for the litigant, it would bid fair to decimate the bench' and lawyers, once in a controversy with a
judge, would have a license under which the judge would serve at their will.' Id. at 790, 769 P.2d at 1275 (quoting Davis v. Board of
School Com'rs of Mobile County, 517
__________

1
In Ainsworth, former Justice Gunderson openly ridiculed Combined's attorney in court, referred to him in a motion as a loser or
losing lawyer approximately 130 times, and admitted to entering the case with a preconceived negative impression of Combined's
counsel. Additionally, Ainsworth's attorney had acted as the campaign manager for former Justice Gunderson in one of his campaigns for
the Nevada Supreme Court and had represented former Justice Gunderson's wife in a previous unrelated venture. Ainsworth v. Combined,
105 Nev. 237, 256-68, 774 P.2d 1003, 1017-25 (1989). In spite of these facts, we denied the motion to disqualify and the petition for
rehearing.
F.2d 1044, 1050 (5th Cir. 1975)). This policy still applies, and we continue to believe that to
permit a justice or judge to be disqualified on the basis of bias for or against a litigant's
counsel in cases in which there is anything but an extreme showing of bias would permit
manipulation of the court and significantly impede the judicial process and the administration
of justice.
The 1992 adoption of the Code did not vitiate these prior statements of the law concerning
jurist disqualification. Canon 2 states the general principle that [a] judge shall avoid
impropriety and the appearance of impropriety in all of the judge's activities. However,
Canon 3(E) of the Code specifically guides the judiciary in matters of disqualification.
2
While
Canon 3(E)(1)(a) states that a judge can be disqualified for animus toward an attorney,
situations where such a disqualification has been found are exceedingly rare, and non-existent
in Nevada. Richard E. Flamm, Judicial Disqualification 4.4.4, at 124 (1996). [T]o warrant
judicial disqualificationmuch less other, more drastic sanctionsthe judge's bias toward
the attorney ordinarily must be extreme. Situations in which judges have manifested such
extreme bias toward an attorney are exceedingly rare. Id.
In recent cases decided after the adoption of Canon 3(E)(1)(a), notwithstanding the
Canon's expansive language, we have reaffirmed the policy that a judge's bias toward an
attorney is largely irrelevant. In Valladares v. District Court, 112 Nev. 79, 910 P.2d 256
(1996), Judge Connie Steinheimer was campaigning for election to the bench and sent out
two campaign letters very critical of then District Judge Lew Carnahan. The letters made
disparaging remarks about Carnahan's ethics, honesty, and competency. Steinheimer won the
election, and Carnahan appeared as the attorney for a party before Judge Steinheimer. He
requested that she recuse herself from the case, Steinheimer refused, and Carnahan petitioned
this court for a writ. In deciding the case, this court stated: Judge Steinheimer does not
possess an actual or apparent bias against Carnahan and therefore need not recuse herself. Id.
at 84, 910 P.2d at 260.
Additionally, in Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996), the prosecutor
represented the judge up to the day the prosecutor was to begin prosecuting Sonner in a death
penalty case. While this court gives death penalty cases very careful scrutiny, we held that
even though the prosecutor had represented the judge in an unrelated matter up to the time
he began his prosecutorial duties in the murder case, there was no reason to conclude
that the attorney-client relationship between the judge and the prosecutor in any way
affected the judge's ability to be fair and impartial.
__________

2
PETA v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269 (1995), has been cited for the proposition that
a judge should disqualify himself or herself whenever an appearance of impropriety might arise. However, we
conclude that the specific disqualification provisions of Canon 3(E), and subsequent case law applying these
provisions, should control over the broader statement of Canon 2.
the judge in an unrelated matter up to the time he began his prosecutorial duties in the murder
case, there was no reason to conclude that the attorney-client relationship between the judge
and the prosecutor in any way affected the judge's ability to be fair and impartial. In the
Sonner case, substantial weight was given to Judge Wagner's opinion that he could be fair
and impartial.
The facts presented in the case at bar do not rise to anything near the level warranting
Justice Young's disqualification. The comments made by Justice Young were off-the-cuff
remarks made during an election campaign; and they were not nearly as serious as those made
in Ainsworth and Valladares, in which the judges made egregious remarks about counsel for
a party, or the situation presented in Sonner. Justice Young's comments were based upon the
information he had received and merely suggested that Waters may have engaged in
impropriety. When an attorney enters the fray in a contested judicial election, he or she
should anticipate that comments may be made about his or her activities by one side or the
other. This is part of Nevada's judicial election process. Justice Young's remarks do not show
evidence of a bias toward Waters that would mandate Justice Young's disqualification in this
matter.
Additionally, we note that PETA v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269
(1995), a case cited by Hecht, is inapplicable. PETA dealt with a judge's connection to a
group whose activity was similar to that of a party and not with the relationship of the judge
and an attorney for one of the parties. To the extent that PETA is inconsistent with this
decision, we modify PETA accordingly.
[Headnote 2]
We also conclude that Justice Young is not disqualified from hearing this appeal on the ground that his son-in-law is a partner in the
Lionel Sawyer & Collins firm, which represents The Fremont Street Experience, an amicus curiae to this appeal. Canon 3(E)(1)(c) of the
Code states:
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: . . . the judge knows that . . . the judge's . . . child wherever residing, . . . 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.
However, The Fremont Street Experience is not a party to this litigation, and Justice Young's daughter has no direct economic interest in
the subject matter in controversy or any other "more than de minimis" interest that could be substantially
affected.
interest in the subject matter in controversy or any other more than de minimis interest that
could be substantially affected.
Additionally, Canon 3(E)(1)(d) states:
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 person within the third degree of relationship to [the judge], or the spouse
of such a person . . . is acting as a lawyer in the proceeding.
However, we have stated previously that representing an amicus curiae is not the equivalent
of representing a litigant in an appeal. Ainsworth v. Combined Ins. Co., 105 Nev. 237, 266,
774 P.2d 1003, 1023 (1989). As such, it is clear that representing an amicus curiae is not the
equivalent of acting as a lawyer in the proceeding pursuant to Canon 3(E)(1)(d), and
Hecht's claim must fail. Even if we were to consider the representation of an amicus curiae a
function undertaken in the proceeding, the commentary to Canon 3(E)(1)(d) makes it clear
that the attorney at issue must be actually involved in the representation of the amicus curiae,
and not just affiliated with the law firm that is providing the representation. Hecht presented
no evidence that Justice Young's son-in-law was actually representing The Fremont Street
Experience, and therefore, Hecht's claim must fail.
CONCLUSION
[Headnotes 3, 4]
Before a justice or judge can be disqualified because of animus toward a party's attorney, egregious facts must be shown. When
reviewing the statement or conduct of a justice or judge made in a campaign setting, reasonable latitude must be given in recognition of the
realities of the election process. This is particularly true if the attorney has inserted himself or herself into the contest.
Justice Young's remarks about Waters' donations certainly do not show any disqualifying animus toward Waters. Furthermore, Justice
Young is not disqualified by virtue of the fact that his son-in-law is a partner in the law firm that represents an amicus curiae in this appeal.
Therefore, Hecht's motion to disqualify Justice Young in this matter is denied.
3
Shearing, C. J., Rose, J., and Sullivan, D. J.
4

__________

3
The Honorable Cliff Young, Justice, did not participate in the decision of this matter.

4
The Honorable Jerry V. Sullivan, Judge of the Sixth Judicial District Court, was designated by the Governor to sit in place of The
Honorable A. William Maupin, Justice. Nev. Const. art. 6, 4.
On May 30, 1997, Justices Rose and Shearing and Judge Sullivan entered a one-sentence
order denying the motions to disqualify Justice Rose and Justice Young. In response to the
May 30 order I filed a twelve-page dissent in which I maintained:
1. It is improper for Justice Rose and Justice Young to take turns in voting on the
other's qualifications. Each is the swing vote on the other's case; and I believe that the
proper thing for each of them to have done (each being accused of having a bias in this
case) would have been to stay out of the decision-making process on the two motions
that have been filed to disqualify them.
2. It is improper for Justice Rose to continue to sit in this gaming case, given the
fact that he is required by law to remove himself from gaming cases. The subject
matter of this litigation is an eminent domain proceeding, the purpose of which is to
condemn respondents' property and turn it over to a joint venture comprised of ten
downtown Las Vegas casinos. Justice Rose has, as a general rule (with one notable
exception
1
), disqualified himself in these kinds of cases. Justice Rose's insistence upon
remaining in this case and not in other, similar cases provides, of itself, (without
considering the other grounds for questioning his impartiality) grounds upon which his
impartiality might reasonably be questioned. Code of Judicial Conduct, Canon
3(E)(1)(d).
2

__________

1
Justice Rose is required by law to remove himself in gaming cases. When hotel-casinos are involved in
litigation, Justice Rose has, for the most part, voluntarily removed himself from such cases; e.g., when the Hilton
Hotel and Casino was involved in litigation involving a prize-fight controversy (Hilton Hotels v. Butch Lewis
Productions, 107 Nev. 226, 808 P.2d 919 (1991) and Hilton Hotels v. Butch Lewis Productions, 109 Nev. 1043,
862 P.2d 1207 (1993)), and when the Nugget Hotel and Casino was involved in a dispute with a linen service
(GNLV Corp. v. Service Control Corp., 111 Nev. 866, 900 P.2d 323 (1995)), Justice Rose voluntarily
disqualified himself. When the Nugget got involved in litigation with Donald Trump, however, Justice Rose
stayed in the case. Trump v. District Court, 109 Nev. 687, 857 P.2d 740 (1993). I cannot discern what criteria
are being employed by Justice Rose in determining when to remain in gaming cases; but I must say that I fail to
see any distinction between the cases in which he disqualifies himself and the cases in which he decides not to
disqualify himself. To me, Trump and the present case, which involves the interests of ten gaming casinos, are
indistinguishable from the linen service case and the prize-fight case and other gaming licensee cases in which
Justice Rose has disqualified himself.

2
Concurring Judge Sullivan takes the rather odd position that judicial ethics rules, and in particular Canon
3(E), are irrelevant for this court's consideration in disqualifying a supreme court justice. Thus, Judge
Sullivan maintains that ethics rules are important [only] in each judge's own consideration of whether he or she
should disqualify themselves [sic]. Fortunately,
3. It is improper for Justice Rose to continue to sit in this case by reason of the
extreme prejudice that he has displayed against one of the attorneys for parties who
oppose efforts to force them to turn their land over to the Fremont Experience.
Justice Rose has publicly proclaimed that respondents' attorney is part of a cabalistic
coalition (in combination with three former chief justices of this court) that is
conspiring to defame him and ruin him politically. Still, Justice Rose unconvincingly
insists that he holds no ill-will or bias against this attorney and that he will be able to
treat her with justice and equanimity. I do not think so.
4. As appears in the majority opinion, Justice Young's son-in-law is a member of
the firm that represents The Fremont Experience, Lionel, Sawyer and Collins. Ever
since his son-in-law became a member of that firm, Justice Young, either because he
believed that he was legally disqualified or because he believed that his impartiality
might be reasonably questioned, has voluntarily removed himself from all cases
involving this firm. Mr. Samuel Lionel has filed an appearance in this case and,
additionally, has filed a petition in this court seeking to overturn the trial court's
judgment and obtain a judgment of this court which would allow the condemnation
proceedings to be carried out, thus permitting his client, The Fremont Experience, to
take possession of the land in question. Similar to Justice Rose's situation, Justice
Young's making an exception, in this case, gives rise to an appearance of impropriety
and creates a condition under which his impartiality might reasonably be questioned.
It is not my intention, in this dissenting opinion, to go into the detail that I went into in my
May 30 dissent; and those readers who are interested in going into more depth in this matter
are invited to examine that document. I file this dissenting opinion in opposition to each of
the three-judge majority opinions denying the motions to disqualify Justice Young and Justice
Rose. For present purposes, I find it necessary only to deal, rather cursorily (and curiously),
with the explanations given by the majority for its allowing Justices Young and Rose to
continue to sit in this case.
__________
Let your conscience be your guide is not the standard for judicial qualifications. The Judicial Code of
Conduct, enacted by this court, is mandatory, and Canon 3(E) mandates that a judge shall disqualify himself
under conditions set forth in the Code. (Emphasis added.) Judge Sullivan's position does, however, cast an
interesting light on these proceedings because it reveals an attitude on the part of at least one member of the
three-judge majority that rules of ethics are irrelevant when it comes to deciding matters of this kind. One must
wonder if the other two members of the majority agree with Judge Sullivan.
1. The Rose Disqualification: The Majority Incorrectly Holds that Justice Rose's Bias is
not so Extreme as to Require his Disqualification. The majority concedes that a
disqualification of Justice Rose may be warranted if his bias against [the] attorney . . . [is]
extreme. (Emphasis added.) I differ with the majority in my understanding of the word
extreme. The majority informs us that Justice Rose's comments may have been better not
made and that they were based on what Justice Rose had been informed FitzSimmons was
doing against him. The majority fully understands that Justice Rose was, to some degree at
least, out of line and that Justice Rose is convinced that Ms. FitzSimmons has been doing
things against him. The majority is also aware of Justice Rose's public announcement, in a
document filed in this appeal, that Ms. FitzSimmons is engaged in a conspiracy with three
former chief justices of this court to ruin him. It is difficult for me to understand how Justice
Rose's admitted ill-feeling and bias against Ms. FitzSimmons can be said to be anything other
than extreme.
3
2. The Rose Disqualification: The Majority is Incorrect in Relying on the Supposition that
Gaming Will not be Conducted on the Condemned Premises. Justice Young tells us in his
majority opinion that no gaming will be conducted on the condemned property."
__________

3
In the document filed in this case by Justice Rose on January 29, 1997, mentioned above, Justice Rose
accuses respondents' counsel, Laura FitzSimmons, of being part of an ongoing conspiracy against him, a
conspiracy which he calls the Gunderson/Whitehead/ Springer/Steffen coalition. The Rose document is
comprised of a long bill of complaints against Ms. FitzSimmons and against the mentioned conspiratorial
coalition, including charges that Ms. FitzSimmons was part of a plan to make public sealed criminal charges that
had been filed by a Metropolitan police officer against Justice Rose, and that, had it not been for Ms.
FitzSimmons and her co-conspirators, these charges would have been kept from the public eye and remained
sealed by order of District Judge Nancy Becker in Las Vegas. Ms. FitzSimmons vehemently denies that she is
part of any such conspiracy; but it is obvious from Justice Rose's January 29 document that he earnestly believes
that Ms. FitzSimmons is conspiring to destroy him. In my judgment, these beliefs and the other charges which
Justice Rose makes against Ms. FitzSimmons in his January 29 document create a strong appearance of extreme
bias on the part of Justice Rose and lead to the almost inescapable inference that it is impossible for Justice Rose
to sit in impartial judgment in this case while Ms. FitzSimmons is acting as counsel.
I note in passing that Justice Rose justifies his inflammatory public remarks about Hecht's attorney, Laura
FitzSimmons, by saying that they were only made in response to statements or actions of Laura FitzSimmons
and that his feelings and statements against this attorney were, therefore, not evidence of any disqualifying
bias. With regard to the argument that retaliatory remarks do not count and that Justice Rose was provoked into
doing what he has done, I submit that whatever might have prompted Justice Rose to behave in the way that he
has, his conduct should be admitted as evidence of . . . disqualifying bias on his part.
property. It does not matter where gaming is eventually conducted; what matters is that this
is clearly a gaming enterprise, conjured for the benefit of the ten downtown casinos.
There is nothing obscure or uncertain about this case. A public entity, created for the
purpose (the Downtown Development Agency) is to condemn the property in question and
turn it over to Mr. Lionel's clients, the Liability Corporation and the Parking Company. Mr.
Lionel has told the court that the Corporation, which will ultimately receive the condemned
property, is comprised of gaming casinos. If Justice Rose disqualifies himself in cases in
which gaming casinos are litigating with prize-fight promoters and linen suppliers (see
footnote 1), then perhaps he should disqualify himself in a case in which the principal, if not
sole, beneficiaries of the litigation are gaming casinos. According to Mr. Lionel, his clients
are the legally aggrieved parties in this litigation because they have a right to equitable
title to the properties after they are condemned. Whether gaming will be conducted in the
garage or in other portions of the condemned property is not of much consequence. The real
parties in this case, those who are legally aggrieved, are gaming licensees. Justice Rose
disqualifies himself in these kinds of cases because he, obviously, considers them to be
gaming cases.
3. The Young Disqualification: The Majority Opinion Fails to Reckon with the Fact that
Justice Young has for a Number of Years Disqualified Himself in All Lionel-Sawyer Cases;
Yet Insists Upon Remaining in this One. The majority opinion claims that Justice Young's
disqualification is not required in this case because Hecht has presented no evidence that
Justice Young's son-in-law was actually representing The Fremont Experience and no
evidence that Justice Young's daughter has [any] direct economic interest in the subject
matter in controversy, (that is to say, the controversy as to whether the ten-casino combine,
The Fremont Experience, will be allowed to develop the Hecht property). The answer to this
is simple, Justice Young himself has already decided that ethics and propriety demand that he
remove himself in all Lionel-Sawyer cases. Whether Justice Young's son-in-law actually
works on a Lionel-Sawyer case or his daughter receives some ultimate benefit out of the
decision in a case does not matter because Justice Young, himself, has already made the
judgment that he must get out of Lionel-Sawyer cases. At last count, Justice Young has
removed himself from twenty-one Lionel-Sawyer cases without ever considering the issues
upon which the majority opinion relies. Perhaps, from now on, Justice Young intends to sit in
Lionel-Sawyer cases unless there is evidence that his daughter is going to make some
money out of the case; but I rather doubt it.
of the case; but I rather doubt it. What should be forthcoming from Justice Young is an
explanation as to why he decided to remain in this case and this case only. Absent such an
explanation, he should retire from the case as he does from all other Lionel-Sawyer cases.
4. The Young Disqualification: The Majority is Incorrect in Relying on the Premise that
The Fremont Street Experience is not a Party to this Litigation. Similar to the point that
Justice Young's daughter does not stand to make any money out of the Fremont Experience's
winning this appeal, the question of whether Mr. Lionel's client, The Fremont Experience, is
or is not a party to this appeal is totally immaterial.
As pointed out in my May 30 dissent, Mr. Lionel's clients are interested, if not actual,
parties to this appeal. Mr. Lionel, believing that his clients were proper parties to this appeal,
filed, in this appeal, on behalf of his client, on February 29, 1996, a document entitled
Appearance Pursuant to NRS 37.080 and Opening Brief. Mr. Lionel argued in this
document that although his clients were not named as parties below, they were (already) in
occupation of the property described in appellant's complaint for eminent domain. Later on
March 29, 1996, Mr. Lionel filed another document in this appeal, entitled, Opposition to
Motion for Disqualification of Justice Rose, in which he, not surprisingly, argued that
Justice Rose should remain in the case. Although the record is not clear to me, it seems as
though, somehow, Mr. Lionel's documents were stricken from the record, so that Mr.
Lionel arguably is no longer counsel of record in this appeal (although, I note, the
Lionel-Sawyer firm is still on the list of counsel of record in this case and is still served with
all documents filed in this appeal). As I have said before, however, it does not make a particle
of difference whether, technically, Lionel-Sawyer remains as counsel of record in this case.
The point is made by Mr. Lionel himself: His clients are obliged to provide the financing,
leasing and operation of the Fremont Street Experience; his clients possess a right to
equitable title to the properties under the Agreement, and . . . acquisition of legal title to such
properties is essential to the consummation of the construction and management of the
project and the property which is the subject of this appeal. Justice Young should have
disqualified himself, as he always does; and this court should have granted the motion to
disqualify him.
It is hard not to editorialize on the obvious and to be critical of my colleagues and the
court which now permits them to sit in judgment in this case. Rather than say more, I will let
the readers of this dissent draw their own conclusions.
____________
CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT AGENCY, Appellant, v.
JACOB CHIC HECHT, as Trustee of JACOB CHIC HECHT Revocable Living
Trust, CECELIA HECHT APPELBAUM, JUAN DEL PRADO dba WORLD
MERCHANTS IMPORTERS, LAWYERS TITLE OF LAS VEGAS, INC.,
NEVADA STATE BANK, CITY OF LAS VEGAS, a Municipal Corporation, Clark
County, MARTIN D. HECHT, as Trustee Under the MARTIN D. HECHT Revocable
Living Trust Dated September 5, 1989, DONALD HECHT, JACOB HECHT, KEVIN
MURPHY dba MICHAEL MENS FASHION, CECELIA APPELBAUM, Trustee in
Trust Under the APPELBAUM Family Trust, Dated October 20, 1989, Respondents.
No. 27942
June 3, 1997 940 P.2d 134
Motion to disqualify Supreme Court Justice.
City redevelopment agency brought condemnation action against property owners. The
district court entered decision, and agency appealed. On property owners' motion to disqualify
supreme court justice, the supreme court, Young, J., held that: (1) justice's comments
concerning attorney's activities during justice's election campaign did not demonstrate bias
that would require justice's disqualification, and (2) condemnation action did not present
gaming issue such that justice would be precluded from participating in action based on his
holding of promissory note from gaming entity.
Motion denied.
Bradford Jerbic, City Attorney, Las Vegas; Beckley, Singleton, Jemison & List and Daniel
F. Polsenberg, Las Vegas; McDonough, Holland & Allen and Mark A. Wasser, Sacramento,
California, for Appellant.
Kermitt L. Waters and Laura Wightman FitzSimmons, Las Vegas, for Respondents.
Chet Adams, City Attorney, Sparks; Shauna M. Hughes, City Attorney, Henderson;
Richard C. Maurer, City Attorney, North Las Vegas; Noel S. Waters, District Attorney,
Carson City, for Amicus Curiae City Redevelopment Agencies.
Lionel Sawyer & Collins, Las Vegas, for Amicus Curiae The Fremont Street Experience.
1. Judges.
Supreme court justice's comments concerning attorney's activities during justice's election campaign did not demonstrate bias that
would require justice's disqualification in case in which attorney represented a party, where comments were not vindictive or critical of
attorney's ability or character, justice had always acknowledged that attorney was excellent attorney, justice stated that he could be fair
and impartial, and attorney's clients had won most of the cases which justice had heard.
2. Judges.
In determining whether judge or justice should be disqualified from hearing case based on alleged bias against attorney for a party,
supreme court should give reasonable latitude for activities or statements made by judge or justice in political campaign about
attorneys who are actively opposing the jurist.
3. Judges.
Judge or justice should be disqualified because of bias or animosity toward attorney for a party only in extreme situations.
4. Judges.
To warrant judicial disqualification, much less other, more drastic sanctions, judge's bias toward attorney for a party ordinarily
must be extreme.
5. Judges.
Attorney should not be permitted to create situation involving judge and then claim that judge should be disqualified because of
events the attorney created.
6. Judges.
Judge should not be precluded, through motion to disqualify based on alleged bias against attorney for a party, from stating that
attorney or group of attorneys oppose him or her in election and the reason for said opposition.
7. Judges.
Party or his or her attorney should not be permitted to cause disqualification of judge by virtue of his or her own intentional
actions.
8. Judges.
Any disqualification of judge or justice because of bias against attorney for a party should be restricted to those cases where malice
is obvious and there is little question that judge or justice cannot be fair and impartial.
9. Judges.
Grounds for disqualifying judge can be waived by failure to timely assert such grounds.
10. Judges.
Attorneys who seek to disqualify judge because of bias or prejudice toward counsel should do so consistently or risk having their
challenges considered waived by supreme court.
11. Judges.
Gaming issue, for purposes of requirement that judge holding gaming license must refrain from participating in gaming
issues, is to be narrowly construed, and is one that involves Gaming Control Board or Commission, its members or
employees, or enforcement or interpretation of gaming statutes.
Commission, its members or employees, or enforcement or interpretation of gaming statutes.
12. Judges.
Action to condemn buildings, allegedly pursuant to redevelopment project which would make gambling casinos more attractive to
tourists but would not result in gaming being conducted on condemned property, did not present gaming issue such that supreme
court justice would be precluded from participating in action based on his holding of promissory note from gaming entity as result of
his sale of bar/restaurant located 15 miles from condemned property.
OPINION
Respondents Jacob Chic Hecht, as Trustee of the Jacob Chic Hecht Revocable Living
Trust; Martin D. Hecht, as Trustee under the Martin D. Hecht Revocable Living Trust dated
September 5, 1989; Cecelia Appelbaum, Trustee in Trust under the Appelbaum Family Trust
dated October 10, 1989; Cecelia Hecht Appelbaum, Donald Hecht, and Jacob Hecht
(collectively Hecht) have moved to disqualify Justice Robert E. Rose based upon his
alleged animosity toward their attorney, Laura FitzSimmons (FitzSimmons), and because
this condemnation action is gaming related and Justice Rose is disqualified pursuant to
Regulation 12 of the Nevada gaming regulations from participating in gaming related cases.
We conclude that Hecht has not made a sufficient showing of bias to meet the burden of
proof necessary to disqualify a judge or justice and that neither the subject matter of this
condemnation case nor the debt owed Justice Rose by a gaming entity requires his
disqualification.
FACTS
Hecht and FitzSimmons claim that Justice Rose should be disqualified from hearing this
or any other case where FitzSimmons is the attorney for a party because statements made by
Justice Rose show that he has an express or implied bias against her. Hecht has cited
numerous instances where Justice Rose has commented on the action taken by FitzSimmons
or what Justice Rose believed was action taken by FitzSimmons' close friend, former Justice
Elmer Gunderson. The first statements made by Justice Rose were in the controversial
Whitehead v. Nevada Commission on Judicial Discipline case, and FitzSimmons was one of
the attorneys for Whitehead. FitzSimmons delivered a letter to Justice Rose demanding he
recuse himself from the case because the Attorney General had reviewed a report alleging
misconduct by Justice Rose and the Attorney General agreed with the Clark County District
Attorney that the complaint against Justice Rose had no merit.
Attorney General agreed with the Clark County District Attorney that the complaint against
Justice Rose had no merit. Justice Rose had stated that he believed former Justice Elmer
Gunderson and some of the Whitehead attorneys had made public information that was the
basis of the misconduct claim against Justice Rose.
Nineteen ninety-four was an election year for Justice Rose, and FitzSimmons supported
his opponent and worked in the opponent's campaign office. She also arranged a press
conference where statements were made by former U.S. Attorney Bill Maddox that were
detrimental to Justice Rose's campaign. During these political campaign exchanges, Justice
Rose cited FitzSimmons' activity as evidence that she opposed his re-election. While most of
the comments made by Justice Rose were factually based, a few comments were apparently
based on what Justice Rose had been informed FitzSimmons was doing against him.
After Justice Rose won the 1994 election, FitzSimmons filed a lawsuit to make public any
telephone conversations between Justice Rose and third parties that had previously been
sealed by the district court. FitzSimmons stated that the purpose of the request was so that she
could use the statements in a legal action against Justice Rose; however, FitzSimmons gave
neither Justice Rose nor the other third parties to the conversations notice of the petition or
hearing. When Justice Rose and the third parties became aware of the action through sources
other than FitzSimmons, they opposed it; and FitzSimmons did not pursue it further.
Hecht also claims that this condemnation action is part of a project to improve downtown
Las Vegas and make Fremont Street and the fronting gaming casinos more attractive to
tourists. As such, Hecht claims that the case involves gaming, even though no gaming was
or will be conducted on the condemned property. Justice Rose holds a promissory note from
individuals who own a bar in which gaming is conducted and which is located fifteen miles
from downtown Las Vegas. Since the note is secured by a deed of trust on the property where
gaming is conducted and the stock owned by the individuals is pledged to secure payment of
the note to Justice Rose, Hecht asserts that Justice Rose has a financial interest in the note's
repayment, which constitutes an interest in gaming.
Justice Rose has filed a response to the motion to disqualify stating that he has no implied
or express malice toward FitzSimmons that would prevent him from sitting in a fair and
impartial manner on cases where she is the attorney of record. Justice Rose also asserts that
FitzSimmons has waived any disqualification claim against him.
disqualification claim against him. Since the inception of the alleged bias, Justice Rose avers
that FitzSimmons and her clients have not consistently moved to disqualify him and that this
waives any disqualification claim asserted on that basis. Specifically, Justice Rose states that
FitzSimmons has been counsel of record in eighteen cases that were decided or are pending
before the Nevada Supreme Court since the Whitehead case (the time which FitzSimmons
claims Justice Rose's bias against her began) and that she has filed a formal demand to
disqualify him in only half of them. Of the nine cases where FitzSimmons and her client did
not move to disqualify Justice Rose, Justice Rose apparently voted in favor of FitzSimmons'
clients five out of eight times, with one case still pending. Accordingly, Justice Rose asserts
that any claim by FitzSimmons and her clients based on this ground has been waived because
FitzSimmons has not consistently moved to disqualify Justice Rose. Further, Justice Rose
cites the record of rulings in her cases as clear evidence that he is fair and impartial in cases
where FitzSimmons is an attorney for a party.
DISCUSSION
The disqualification of Justice Rose
[Headnote 1]
At the outset, we must place the remarks made by Justice Rose concerning FitzSimmons in context. Late 1993 and 1994 was a political
year for Justice Rose since he was up for re-election in November 1994. His re-election was opposed by FitzSimmons. The controversy
between Justice Rose and FitzSimmons began with the Whitehead v. Nevada Commission on Judicial Discipline case, and this extremely
high profile case became as much a political as a legal matter in the state. Justice Rose's comments were not about the substance of the
Whitehead case, or any other, but about the activities of his opponents.
[Headnote 2]
Admittedly, a few of Justice Rose's comments may have been better not made; however, the political realities of the situation cannot be
ignored. Justice Rose was in a difficult campaign for re-election, and FitzSimmons was actively opposing him. Reasonable latitude should
be given for activities or statements made by a judge or justice in a political campaign about attorneys who are actively opposing the jurist.
In a state with a relatively small number of attorneys disqualifying judges because an attorney before them had participated in the process
or had opposed a judge or justice would subject many judges and justices to disqualification. We recognized this precise point in In re
Petition to Recall Dunleavy, 104 Nev. 7S4, 790
Recall Dunleavy, 104 Nev. 784, 790-91, 769 P.2d 1271, 1275 (1988):
In a small state such as Nevada, with a concomitantly limited bar membership, it is
inevitable that frequent interactions will occur between the members of the bar and the
judiciary. Thus, allegations of bias based upon a judge's associations with counsel for a
litigant pose a particularly onerous potential for impeding the dispensation of justice.
[Headnotes 3, 4]
We believe a judge or justice should be disqualified because of his bias or animosity toward an attorney for a party only in extreme
situations, and we have so held in numerous cases. Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996) (holding that the fact that the
prosecuting attorney had represented the judge on an unrelated matter up until the beginning of the murder case would not disqualify judge
from presiding); Valladares v. District Court, 112 Nev. 79, 910 P.2d 256 (1996) (holding that a judge is not disqualified even though the
judge challenged the attorney's ethics, honesty, and competency in prior election campaign); Ainsworth v. Combined Ins. Co., 105 Nev.
237, 774 P.2d 1003 (1989) (holding that a justice is not disqualified for bias even though he referred to a party's attorney as the loser over
100 times in a response to motions). Legal authority throughout the United States is generally in accord with our decisions. [T]o warrant
judicial disqualificationmuch less other, more drastic sanctionsthe judge's bias toward the attorney ordinarily must be extreme.
Situations in which judges have manifested such extreme bias toward an attorney are exceedingly rare. Richard E. Flamm, Judicial
Disqualification 4.4.4, at 124 (1996).
[Headnotes 5-7]
In reviewing the statements made by Justice Rose about FitzSimmons' activities, we find that the statements are not critical of
FitzSimmons' ability or character and have none of the vindictiveness found in the statements made in Valladares where the attorney's
ethics, honesty, and competency were challenged. To the contrary in this case, Justice Rose has always acknowledged that FitzSimmons is
an excellent attorney and a very persuasive advocate. A lawyer should not be permitted to create a situation involving a judge and then
claim that the judge should be disqualified because of the events the attorney created. State v. Jeffers, 661 P.2d 1105, 1128-29 (Ariz. 1983).
Nor should a judge be precluded from stating that an attorney or group of attorneys oppose him in an election and the reason for said
opposition. Thus, a party or his attorney should not be permitted to cause the disqualification of a judge by virtue of his or her own
intentional actions.
actions. Richard E. Flamm, Judicial Disqualification 21.4 (1996); United States v.
Helmsley, 760 F. Supp. 338, 342 (S.D.N.Y. 1991) (holding that hostile attacks by a party,
much less by its lawyer, are not a sufficient basis for recusal); State v. Jeffers, 661 P.2d 1105
(Ariz. 1983). FitzSimmons does not contest the fact that she was actively opposing Justice
Rose and supporting his opponent.
[Headnote 8]
Based upon these observations, we believe that this situation is in line with Valladares, Ainsworth, and Sonner and that any
disqualification of a judge or justice because of bias against an attorney for a party should be restricted to those cases where malice is
obvious and there is little question that the judge or justice can not be fair and impartial.
Hecht has cited PETA v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269 (1995), and the Nevada Code of Judicial Conduct, Canon
3(E), for the proposition that a judge should disqualify himself or herself whenever an appearance of impropriety will arise. However,
PETA dealt with a district judge's association with a group whose activity was similar to that of a party and not with the relationship of the
judge and an attorney for one of the parties. Furthermore, the holding in PETA was not followed in the later case of Snyder v. Viani, 112
Nev. 568, 916 P.2d 170, cert. denied,
------
U.S.
------
, 117 S. Ct. 385 (1996), where the Court rejected the PETA standard and reverted to
the prior standard of whether there was a direct, ongoing pecuniary or personal interest in determining a judge's disqualification. To the
extent that our holding today is inconsistent with PETA, we modify PETA accordingly. While the Nevada Code of Judicial Conduct does
state that a judge can be disqualified for animus toward an attorney, such disqualification should be restricted to those extreme situations
not presented in this case.
In reaching our conclusion today, we have given substantial weight to Justice Rose's opinion that he can be fair and impartial in any
case where FitzSimmons represents a party. Many times we have stated that a judge or justice's opinion concerning his or her bias or
prejudice should be given substantial weight. Sonner, 112 Nev. at 1335, 930 P.2d at 712 (this court has always accorded substantial
weight to a judge's determination that he can fairly and impartially preside over a case); see also Goldman v. Bryan, 104 Nev. 644, 649,
764 P.2d 1296, 1299 (1988). Justice Rose's opinion is reinforced by the fact that in FitzSimmons' cases where he has sat as a justice since
her allegations of bias, FitzSimmons' clients have won most of those appeals.
Our decision today is also in line with this court's previous concern about the disqualification of judges and justices because of a
judge's bias against an attorney of record. In In re Petition to Recall Dunleavy, 104 Nev. 7S4, 790
Recall Dunleavy, 104 Nev. 784, 790, 769 P.2d 1271, 1275 (1988), we stated:
To permit an allegation of bias, partially founded upon a justice's performance of his
constitutionally mandated responsibilities, to disqualify that justice from discharging
those duties would nullify the court's authority and permit manipulation of justice, as
well as the court. See State v. Rome, 685 P.2d 290, 295-96 (Kan. 1984); see also Tynan
v. United States, 376 F.2d 761 (D.C. Cir. 1967), cert. denied, 389 U.S. 845.
If we permitted FitzSimmons to disqualify Justice Rose every time she represented a party or
associated to represent a party before the Nevada Supreme Court, she would have a potent
weapon that would permit her to disqualify one justice of the court in any case. We are
reluctant to extend this advantage to any party unless a clear, substantial showing of actual
bias has been made establishing a judge's or justice's bias against a party's attorney.
The waiver of grounds to disqualify a judge
[Headnotes 9, 10]
Justice Rose has been challenged in only half the cases in which FitzSimmons has appeared as counsel since the beginning of the
alleged bias by Justice Rose. Grounds for disqualifying a judge can be waived by failure to timely assert such grounds. See In re Steven O.,
279 Cal. Rptr. 868 (Ct. App. 1991); In re Marriage of Fifi, 776 P.2d 1167 (Colo. Ct. App. 1989). While the above cases concern untimely
motions to disqualify a judge after the judge has ruled on certain aspects of a case, the reasoning of those cases appears equally applicable
to FitzSimmons' attempt to disqualify Justice Rose in only some of the cases where she has appeared as counsel for a party. Therefore,
attorneys who seek to disqualify a judge because of bias or prejudice toward counsel should do so consistently or risk having their
challenges considered waived by this court.
This is not a gaming case
[Headnote 11]
Hecht claims that this case presents a gaming issue and that Justice Rose is precluded from participating because of Gaming
Regulation No. 12. Regulation 12 requires that any judge or justice holding a gaming license refrain from participating in gaming related
matters. Our case law makes clear that a gaming issue for a judge or justice is to be narrowly construed and is one that involves the
Gaming Control Board or Commission, its members or employees, or the enforcement or interpretation of Nevada gaming statutes."
Nevada gaming statutes. Snyder v. Viani, 112 Nev. 568, 577, 916 P.2d 170, 175 (1996).
[Headnote 12]
Justice Rose owned a restaurant/bar and the real property on which it was located, which he sold in 1995. In exchange, Justice Rose
received a promissory note from the individuals who purchased the stock of the corporation that owns the real property and business. The
debt is secured by a pledge of the stock and a trust deed on the real property in favor of Justice Rose. FitzSimmons claims that this debt
owed by a gaming enterprise to Justice Rose provides sufficient interest in gaming to justify his disqualification.
First, we do not consider the holding of an accounts receivable from a gaming establishment to be a substantial, direct, personal, or
pecuniary interest in gaming. Further, we answered Hecht's allegation in Snyder v. Viani, 112 Nev. 568, 916 P.2d 170, cert. denied,
------
U.S.
------
, 117 S. Ct. 385 (1996), where a similar claim was made against Justice Rosethat he had owned a bar/restaurant and therefore
possessed a gaming interest. The Snyder court stated that a judge's disqualifying interest must be a present interest in the outcome of the
proceeding, not some indirect, remote, speculative, theoretical, or possible interest.' ' Id. at 575, 916 P.2d at 174 (quoting Goldman v.
Bryan, 104 Nev. 644, 651, 764 P.2d 1296, 1300 (1988) (quoting State v. Scarborough, 410 P.2d 732, 734 (N.M. 1966))). The Snyder court
concluded that Justice Rose's interest in the bar was not an ongoing interest because he had sold the bar prior to the decision in the case and
that his consideration of the case was proper. Snyder, 112 Nev. at 575-76, 916 P.2d at 174-75. If the ownership of a bar/restaurant is
insufficient to be considered an interest in gaming, holding a promissory note after the sale of the property is certainly more remote than
owning the property itself.
This is a condemnation issue, not a gaming case, and Justice Rose's account receivable from a gaming entity located fifteen miles away
from the condemned property does not qualify as an interest in gaming.
CONCLUSION
Hecht has not met his burden to establish that Justice Rose is prejudiced against their attorney, FitzSimmons. We also conclude that
this is not a gaming case requiring Justice Rose to recuse himself. Accordingly, Hecht's motion to disqualify Justice Rose is denied.
Shearing, C. J., concurs.
Sullivan, D. J., concurring:
1
I concur in the judgment denying the motion to excuse Justice Rose but write separately
because I see a number of other reasons to reach the same conclusion as those stated in the
majority opinion.
First of all, the law is clear in this matter. NRS 1.225 requires that:
1. A justice of the supreme court shall not act as such in an action or proceeding
when he entertains actual bias or prejudice for or against one of the parties to the
action.
2. A justice of the supreme court shall not act as such in an action or proceeding
when implied bias exists in any of the following respects:
(a) When he is a party to or interested in the action or proceeding.
(b) When he is related to either party by consanguinity or affinity within the third
degree.
(c) When he has been attorney or counsel for either of the parties in the particular
action or proceeding before the court.
(d) When he is related to an attorney or counsel for either of the parties by
consanguinity or affinity within the third degree.
3. A justice of the supreme court, upon his own motion, may disqualify himself
from acting in any matter upon the ground of actual or implied bias.
(emphasis added). This statute contemplates bias against the party to the action and not
against the attorney for the party. Even though the ethics rules go further and contemplate
disqualification for demonstrated bias against the attorney for the party, this court ought not
to go further than the legislative mandate of NRS 1.225.
Furthermore, the judicial ethics rules cited by the parties in this case are irrelevant for this
court's consideration in disqualifying a supreme court justice. See, e.g., Canon 3(E). Those
rules apply to disciplinary actions and are handled by a separate body for consideration.
Certainly the ethics rules are important in each judge's own consideration of whether he or
she should disqualify themselves.
Secondly, the court should return wholeheartedly to the policy enunciated in In re
Petition to Recall Dunleavy, 104 Nev. 7S4, 790
__________

1
The Governor designated the Honorable Jerry V. Sullivan, Judge of the Sixth Judicial District Court, to sit in
the place of The Honorable A. William Maupin, Justice. Nev. Const. art. 6, 4.
enunciated in In re Petition to Recall Dunleavy, 104 Nev. 784, 790-91, 769 P.2d 1271, 1275
(1988).
[A] allegation of bias in favor or against an attorney for a litigant generally states an
insufficient ground for disqualification because it is not indicative of extrajudicial bias
against a party.' In a small state such as Nevada, with a concomitantly limited bar
membership, it is inevitable that frequent interactions will occur between the members
of the bar and the judiciary. Thus, allegations of bias based upon a judge's associations
with counsel for a litigant pose a particularly onerous potential for impeding the
dispensation of justice.
(citations omitted). See Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003
(1989). It is clear in the environment in which the small Nevada bar operates that lawyers and
judges will have disagreements and take opposite stands. In order for the judicial system to
function in this state, the judge and the attorney must set aside differences and the judge must
mete out justice and make rulings based upon the law. Likewise, the attorney must present his
or her case with civility.
Furthermore, if after a disagreement or an interaction between an attorney and a judge, the
attorney moves to disqualify the judge on all subsequent cases, and this court sanctions this in
any fashion, the court is allowing unjustified judge-shopping. The power of the judiciary
could be manipulated and eroded. NRS 1.225 requires that disqualification have
meritactual or implied bias against the party whom the attorney represents.
On May 30, 1997, Justices Rose and Shearing and Judge Sullivan entered a one-sentence
order denying the motions to disqualify Justice Rose and Justice Young. In response to the
May 30 order I filed a twelve-page dissent in which I maintained:
1. It is improper for Justice Rose and Justice Young to take turns in voting on the
other's qualifications. Each is the swing vote on the other's case; and I believe that the
proper thing for each of them to have done (each being accused of having a bias in this
case) would have been to stay out of the decision-making process on the two motions
that have been filed to disqualify them.
2. It is improper for Justice Rose to continue to sit in this gaming case, given the
fact that he is required by law to remove himself from gaming cases. The subject
matter of this litigation is an eminent domain proceeding, the purpose of which is to
condemn respondents' property and turn it over to a joint venture "comprised of" ten
downtown Las Vegas casinos.
over to a joint venture comprised of ten downtown Las Vegas casinos. Justice Rose
has, as a general rule (with one notable exception
1
), disqualified himself in these kinds
of cases. Justice Rose's insistence upon remaining in this case and not in other, similar
cases provides, of itself, (without considering the other grounds for questioning his
impartiality) grounds upon which his impartiality might reasonably be questioned.
Code of Judicial Conduct, Canon 3E(1)(d).
2
3. It is improper for Justice Rose to continue to sit in this case by reason of the
extreme prejudice that he has displayed against one of the attorneys for parties who
oppose efforts to force them to turn their land over to the Fremont Experience.
Justice Rose has publicly proclaimed that respondents' attorney is part of a cabalistic
coalition (in combination with three former chief justices of this court) that is
conspiring to defame him and ruin him politically. Still, Justice Rose unconvincingly
insists that he holds no ill-will or bias against this attorney and that he will be able to
treat her with justice and equanimity.
__________

1
Justice Rose is required by law to remove himself in gaming cases. When hotel-casinos are involved in
litigation, Justice Rose has, for the most part, voluntarily removed himself from such cases; e.g., when the Hilton
Hotel and Casino was involved in litigation involving a prize-fight controversy (Hilton Hotels v. Butch Lewis
Productions, 107 Nev. 226, 808 P.2d 919 (1991) and Hilton Hotels v. Butch Lewis Productions, 109 Nev. 1043,
862 P.2d 1207 (1993)), and when the Nugget Hotel and Casino was involved in a dispute with a linen service
(GNLV Corp. v. Service Control Corp., 111 Nev. 866, 900 P.2d 323 (1995)), Justice Rose voluntarily
disqualified himself. When the Nugget got involved in litigation with Donald Trump, however, Justice Rose
stayed in the case. Trump v. District Court, 109 Nev. 687, 857 P.2d 740 (1993). I cannot discern what criteria
are being employed by Justice Rose in determining when to remain in gaming cases; but I must say that I fail to
see any distinction between the cases in which he disqualifies himself and the cases in which he decides not to
disqualify himself. To me, Trump and the present case, which involves the interests of ten gaming casinos, are
indistinguishable from the linen service case and the prize-fight case and other gaming licensee cases in which
Justice Rose has disqualified himself.

2
Concurring Judge Sullivan takes the rather odd position that judicial ethics rules, and in particular Canon
3E, are irrelevant for this court's consideration in disqualifying a supreme court justice. Thus, Judge Sullivan
maintains that ethics rules are important [only] in each judge's own consideration of whether he or she should
disqualify themselves [sic]. Fortunately, Let your conscience be your guide is not the standard for judicial
qualifications. The Judicial Code of Conduct, enacted by this court, is mandatory, and Canon 3E mandates that a
judge shall disqualify himself under conditions set forth in the Code. (Emphasis added.) Judge Sullivan's
position does, however, cast an interesting light on these proceedings because it reveals an attitude on the part of
at least one member of the three-judge majority that rules of ethics are irrelevant when it comes to deciding
matters of this kind. One must wonder if the other two members of the majority agree with Judge Sullivan.
ill-will or bias against this attorney and that he will be able to treat her with justice and
equanimity. I do not think so.
4. As appears in the majority opinion, Justice Young's son-in-law is a member of
the firm that represents The Fremont Experience, Lionel, Sawyer and Collins. Ever
since his son-in-law became a member of that firm, Justice Young, either because he
believed that he was legally disqualified or because he believed that his impartiality
might be reasonably questioned, has voluntarily removed himself from all cases
involving this firm. Mr. Samuel Lionel has filed an appearance in this case and,
additionally, has filed a petition in this court seeking to overturn the trial court's
judgment and obtain a judgment of this court which would allow the condemnation
proceedings to be carried out, thus permitting his client, The Fremont Experience, to
take possession of the land in question. Similar to Justice Rose's situation, Justice
Young's making an exception, in this case, gives rise to an appearance of impropriety
and creates a condition under which his impartiality might reasonably be questioned.
It is not my intention, in this dissenting opinion, to go into the detail that I went into in my
May 30 dissent; and those readers who are interested in going into more depth in this matter
are invited to examine that document. I file this dissenting opinion in opposition to each of
the three-judge majority opinions denying the motions to disqualify Justice Young and Justice
Rose. For present purposes, I find it necessary only to deal, rather cursorily (and curiously),
with the explanations given by the majority for its allowing Justices Young and Rose to
continue to sit in this case.
1. The Rose Disqualification: The Majority Incorrectly Holds that Justice Rose's Bias is
not so Extreme as to Require his Disqualification. The majority concedes that a
disqualification of Justice Rose may be warranted if his bias against [the] attorney . . . [is]
extreme. (Emphasis added.) I differ with the majority in my understanding of the word
extreme. The majority informs us that Justice Rose's comments may have been better not
made and that they were based on what Justice Rose had been informed FitzSimmons was
doing against him. The majority fully understands that Justice Rose was, to some degree at
least, out of line and that Justice Rose is convinced that Ms. FitzSimmons has been doing
things against him. The majority is also aware of Justice Rose's public announcement, in a
document filed in this appeal, that Ms. FitzSimmons is engaged in a conspiracy with three
former chief justices of this court to ruin him.
ruin him. It is difficult for me to understand how Justice Rose's admitted ill-feeling and bias
against Ms. FitzSimmons can be said to be anything other than extreme.
3
2. The Rose Disqualification: The Majority is Incorrect in Relying on the Supposition that
Gaming Will not be Conducted on the Condemned Premises. Justice Young tells us in his
majority opinion that no gaming will be conducted on the condemned property. It does not
matter where gaming is eventually conducted; what matters is that this is clearly a gaming
enterprise, conjured for the benefit of the ten downtown casinos.
There is nothing obscure or uncertain about this case. A public entity, created for the
purpose (the Downtown Development Agency) is to condemn the property in question and
turn it over to Mr. Lionel's clients, the Liability Corporation and the Parking Company. Mr.
Lionel has told the court that the Corporation, which will ultimately receive the condemned
property, is comprised of gaming casinos. If Justice Rose disqualifies himself in cases in
which gaming casinos are litigating with prize-fight promoters and linen suppliers (see
footnote 1), then perhaps he should disqualify himself in a case in which the principal, if not
sole, beneficiaries of the litigation are gaming casinos. According to Mr. Lionel, his clients
are the legally aggrieved" parties in this litigation because they have "a right to equitable
title to the properties after they are condemned."
__________

3
In the document filed in this case by Justice Rose on January 29, 1997, mentioned above, Justice Rose
accuses respondents' counsel, Laura FitzSimmons, of being part of an ongoing conspiracy against him, a
conspiracy which he calls the Gunderson/Whitehead/ Springer/Steffen coalition. The Rose document is
comprised of a long bill of complaints against Ms. FitzSimmons and against the mentioned conspiratorial
coalition, including charges that Ms. FitzSimmons was part of a plan to make public sealed criminal charges that
had been filed by a Metropolitan police officer against Justice Rose, and that, had it not been for Ms.
FitzSimmons and her co-conspirators, these charges would have been kept from the public eye and remained
sealed by order of District Judge Nancy Becker in Las Vegas. Ms. FitzSimmons vehemently denies that she is
part of any such conspiracy; but it is obvious from Justice Rose's January 29 document that he earnestly believes
that Ms. FitzSimmons is conspiring to destroy him. In my judgment, these beliefs and the other charges which
Justice Rose makes against Ms. FitzSimmons in his January 29 document create a strong appearance of extreme
bias on the part of Justice Rose and lead to the almost inescapable inference that it is impossible for Justice Rose
to sit in impartial judgment in this case while Ms. FitzSimmons is acting as counsel.
I note in passing that Justice Rose justifies his inflammatory public remarks about Hecht's attorney, Laura
FitzSimmons, by saying that they were only made in response to statements or actions of Laura FitzSimmons
and that his feelings and statements against this attorney were, therefore, not evidence of any disqualifying
bias. With regard to the argument that retaliatory remarks do not count and that Justice Rose was provoked into
doing what he has done, I submit that whatever might have prompted Justice Rose to behave in the way that he
has, his conduct should be admitted as evidence of . . . disqualifying bias on his part.
aggrieved parties in this litigation because they have a right to equitable title to the
properties after they are condemned. Whether gaming will be conducted in the garage or in
other portions of the condemned property is not of much consequence. The real parties in this
case, those who are legally aggrieved, are gaming licensees. Justice Rose disqualifies
himself in these kinds of cases because he, obviously, considers them to be gaming cases.
3. The Young Disqualification: The Majority Opinion Fails to Reckon with the Fact that
Justice Young has for a Number of Years Disqualified Himself in All Lionel-Sawyer Cases;
Yet Insists Upon Remaining in this One. The majority opinion claims that Justice Young's
disqualification is not required in this case because Hecht has presented no evidence that
Justice Young's son-in-law was actually representing The Fremont Experience and no
evidence that Justice Young's daughter has [any] direct economic interest in the subject
matter in controversy, (that is to say, the controversy as to whether the ten-casino combine,
The Fremont Experience, will be allowed to develop the Hecht property). The answer to this
is simple, Justice Young himself has already decided that ethics and propriety demand that he
remove himself in all Lionel-Sawyer cases. Whether Justice Young's son-in-law actually
works on a Lionel-Sawyer case or his daughter receives some ultimate benefit out of the
decision in a case does not matter because Justice Young, himself, has already made the
judgment that he must get out of Lionel-Sawyer cases. At last count, Justice Young has
removed himself from twenty-one Lionel-Sawyer cases without ever considering the issues
which upon which the majority opinion relies. Perhaps, from now on, Justice Young intends
to sit in Lionel-Sawyer cases unless there is evidence that his daughter is going to make
some money out of the case; but I rather doubt it. What should be forthcoming from Justice
Young is an explanation as to why he decided to remain in this case and this case only.
Absent such an explanation, he should retire from the case as he does from all other
Lionel-Sawyer cases.
4. The Young Disqualification: The Majority is Incorrect in Relying on the Premise that
The Fremont Street Experience is not a Party to this Litigation. Similar to the point that
Justice Young's daughter does not stand to make any money out of the Fremont Experience's
winning this appeal, the question of whether Mr. Lionel's client, The Fremont Experience, is
or is not a party to this appeal is totally immaterial.
As pointed out in my May 30 dissent, Mr. Lionel's clients are interested, if not actual,
parties to this appeal. Mr. Lionel, believing that his clients were proper parties to this appeal,
filed, in this appeal, on behalf of his client, on February 29, 1996, a document entitled
"Appearance Pursuant to NRS 37.0S0 and Opening Brief."
in this appeal, on behalf of his client, on February 29, 1996, a document entitled Appearance
Pursuant to NRS 37.080 and Opening Brief. Mr. Lionel argued in this document that
although his clients were not named as parties below, they were (already) in occupation of
the property described in appellant's complaint for eminent domain. Later on March 29,
1996, Mr. Lionel filed another document in this appeal, entitled, Opposition to Motion for
Disqualification of Justice Rose, in which he, not surprisingly, argued that Justice Rose
should remain in the case. Although the record is not clear to me, it seems as though,
somehow, Mr. Lionel's documents were stricken from the record, so that Mr. Lionel
arguably is no longer counsel of record in this appeal (although, I note, the Lionel-Sawyer
firm is still on the list of counsel of record in this case and is still served with all documents
filed in this appeal). As I have said before, however, it does not make a particle of difference
whether, technically, Lionel-Sawyer remains as counsel of record in this case. The point is
made by Mr. Lionel himself: His clients are obliged to provide the financing, leasing and
operation of the Fremont Street Experience; his clients possess a right to equitable title to
the properties under the Agreement, and . . . acquisition of legal title to such properties is
essential to the consummation of the construction and management of the project and the
property which is the subject of this appeal. Justice Young should have disqualified himself,
as he always does; and this court should have granted the motion to disqualify him.
It is hard not to editorialize on the obvious and to be critical of my colleagues and the
court which now permits them to sit in judgment in this case. Rather than say more, I will let
the readers of this dissent draw their own conclusions.
____________
113 Nev. 659, 659 (1997) Nevada State Bd. of Nursing v. Merkley
NEVADA STATE BOARD OF NURSING, Appellant, v.
TIMOTHY MERKLEY, Respondent.
No. 27620
June 4, 1997 940 P.2d 144
Appeal from an order of the district court reversing an order of the Nevada State Board of
Nursing disciplining respondent for unprofessional conduct. First Judicial District Court,
Carson City; Michael R. Griffin, Judge.
Registered nurse sought judicial review of order of state Board of Nursing disciplining him
for unprofessional conduct. The district court reversed administrative order, and Board
appealed.
district court reversed administrative order, and Board appealed. The supreme court held that:
(1) finding that nurse committed professional misconduct by back-timing order for morphine
to be administered to patient by intravenous drip (IV) was supported by record; (2) nurse's
failure to accept order for second bag of morphine from patient's son or to obtain order from
patient's physician for record did not constitute failure to collaborate with other members of
health care team as necessary to meet health needs of patient; (3) finding that nurse failed to
observe, record and report patient's condition was not supported by substantial evidence; and
(4) remand to Board was required in order to determine appropriate discipline in light of
circumstances.
Frankie Sue Del Papa, Attorney General, and Keith D. Marcher, Deputy Attorney
Peter D. Durney, Reno, for Respondent.
Role of supreme court in reviewing administrative decision is identical to that of district court: it must affirm agency decision that
is supported by substantial evidence. Agency's factual findings are conclusive if supported by evidence and court is limited to
determination of whether agency acted arbitrarily or capriciously. Court may set aside agency's decision if agency has prejudiced
substantial rights. NRS 233B.135(3).
2. Physicians and Surgeons.
Finding by state Board of Nursing that registered nurse committed professional misconduct by back-timing order for morphine to
be administered to patient by intravenous drip (IV) was supported by record. NAC 632.890.
Registered nurse was not guilty of failing to collaborate with other members of health care team as necessary to meet health needs
of patient, in not accepting order for second bag of morphine from patient's son, who was anesthesiologist, or in failing to obtain order
from patient's physician of record, where nurse did accept order from another anesthesiologist familiar with patient's treatment. NAC
632.890.
Finding of state Board of Nursing that registered nurse failed to observe, record and report terminal patient's condition in violation
of professional standards was not supported by substantial evidence. Nurse had been ordered to provide only comfort care, level of
monitoring and assessment provided was consistent with provision of comfort care, patient's condition was being constantly monitored
by patient's son, who as an anesthesiologist, and patient's son indicated that he did not want his father to be disturbed by full
assessment. NAC 632.890.
Registered nurse's failure to administer medication to reverse effects of morphine administered to terminal patient and refusal to
accept order for additional morphine from physician who was patient's son did not constitute failure to follow
customary standards, in violation of professional standards.
for additional morphine from physician who was patient's son did not constitute failure to follow customary standards, in violation of
professional standards. NAC 632.890.
While state Board of Nursing has wide discretion to discipline and ensure competence of its licensees, court has obligation upon
judicial review of results of disciplinary proceeding to look beyond label given to conviction to true nature of facts, in order to
determine whether underlying circumstances of conviction warrant discipline.
Remand to district court with instructions to remand to state Board of Nursing was required in order to determine appropriate
discipline with respect to registered nurse who engaged in professional misconduct by back-timing order for morphine. Board's prior
suspension of nurse's license to practice nursing had prejudiced his substantial rights, in light of lack of support in record for other
findings of Board. NRS 632.320; NAC 632.690.
OPINION
Per Curiam:
Respondent Timothy Merkley (Merkley) is a registered nurse licensed by appellant, the
Nevada State Board of Nursing (the Board), and formerly employed at Saint Mary's
Regional Hospital. On April 17, 1993, Merkley provided nursing care for a terminally ill
patient, Mr. Bayless. Merkley was subsequently charged with unprofessional conduct in
connection with this treatment, and the Board suspended his nursing license for one year. The
Board's order was reversed by the district court. The Board now appeals the decision of the
district court.
We conclude that the district court erred in finding that the Board's decision was arbitrary
and capricious and unsupported by substantial evidence. We further conclude that several of
the Board's factual findings were in error. We therefore reverse the district court's order and
remand this matter to the district court with instructions to remand to the Board so that it can
determine appropriate discipline in light of this opinion.
STATEMENT OF THE FACTS
On April 17, 1993, Wendy Smedes (Smedes), a registered nurse, was on the 2:15
p.m.-10:45 p.m. shift at Saint Mary's Regional Hospital (St. Mary's) and was responsible
for patient Leon Bayless (Mr. Bayless). Mr. Bayless had peripheral vascular disease, was in
terminal condition, and had chosen a do not resuscitate policy. He was ischemic below his
waist. Smedes and the nursing staff had been instructed to make Mr. Bayless as comfortable
as possible. Mr. Bayless' son, Dr. Joseph Bayless (Dr. Bayless), an anesthesiologist at the
hospital, was present in the room during these hours, as was Mr.
present in the room during these hours, as was Mr. Bayless' wife (Mrs. Bayless), and Dr.
Bayless' wife, both of whom were nurses.
At 5:00 p.m. Smedes administered Percocet, a pain medication, to Mr. Bayless. However,
it became apparent to Smedes and to Mr. Bayless' family that the Percocet was not relieving
his pain. According to Dr. Bayless, his father was trying to tear out his abdomen and genitals,
and both his father and mother begged Dr. Bayless to take the pain away.
Smedes telephoned the office of Dr. Schultz, the doctor in charge of Mr. Bayless' case, and
reached Dr. Shapiro, who was on call that afternoon. Dr. Shapiro gave Smedes an order for
Morphine to be administered by intravenous drip (IV) at ten milligrams per hour, with a
three-milligram loading dose. According to Dr. Bayless, Dr. Shapiro asked him if the dosage
was adequate, and it was understood that this order was a starting point and that the dosage
was less important than Mr. Bayless' comfort.
Merkley, a registered nurse licensed by the Board, was the clinical leader responsible for
helping other nurses that afternoon. While Smedes was occupied with other patients, Merkley
picked up a solution containing 125 milligrams of Morphine from the pharmacy. Dr. Bayless
testified that he hung the bag at approximately 6:20 p.m. and let it run wide open until his
father said that he felt better. About a half hour later, Smedes verified that it was hung
properly. She checked on the patient again at approximately 9:30 p.m., at which time Mr.
Bayless' respiratory rate appeared normal and the IV appeared to be flowing at the expected
rate. The IV was timed to run over twelve hours.
At 11:30 p.m. Merkley went into Mr. Bayless' room in response to an alarm and found the
Morphine bag empty. Dr. Bayless, noting that his father was showing signs of discomfort,
told Merkley to obtain a second bag. On his way to the pharmacy, Merkley sought his
supervisor, Aletha Hartwig (Hartwig), and apprised her of his concern about the increased
IV rate. Hartwig told him to fill out a variance report.
Dr. Bayless offered to write an order for the second bag of Morphine, but Merkley refused
to accept an order from a family member. Therefore, Dr. Bayless telephoned another
anesthesiologist, Dr. Calvin Smith (Dr. Smith), who was on call within the hospital. Dr.
Smith ordered Merkley to resume Dr. Shapiro's order. This telephone order was made at
approximately 12:00 a.m., but Merkley back-timed it to appear as if it were made at 9:00 p.m.
Mr. Bayless received approximately 100 milligrams of Morphine from the second bag before
he was declared dead on April 1Sth at 1:00 a.m. Mr. Bayless' death certificate lists his
cause of death as cardiorespiratory failure due to gangrene of the left lower extremity
due to severe arteriosclerosis.
April 18th at 1:00 a.m. Mr. Bayless' death certificate lists his cause of death as
cardiorespiratory failure due to gangrene of the left lower extremity due to severe
arteriosclerosis.
Merkley and a second nurse completed a variance report on April 17. On April 23,
Merkley asked Linda Charlebois (Charlebois), the manager of his nursing unit, if she had
any questions about it. Subsequently, the hospital commenced an investigation against
Merkley and the other nurse, as a result of which both nurses were fired. The hospital notified
the Board of the investigation, and the Board filed an administrative complaint against
Merkley charging him with gross negligence and unprofessional conduct pursuant to NRS
632.320 and NAC 632.890.
The board may deny, revoke or suspend any license or certificate applied for or issued
pursuant to this chapter, or take other disciplinary action against a licensee or holder of
a certificate, upon determining that he:
. . . .
4. Is unfit or incompetent by reason of gross negligence or recklessness in carrying
out the usual nursing functions.
. . . .
7. Is guilty of unprofessional conduct . . . .
The Board concluded that Merkley committed four acts constituting unprofessional
conduct pursuant to NRS 632.320 and NAC 632.890: (1) inaccurate recording, falsifying or
otherwise altering or destroying records; (2) failing to collaborate with other members of a
health care team as necessary to meet the health needs of a patient; (3) failing to observe the
conditions, signs and symptoms of a patient, to record the information or to report significant
changes to the appropriate persons; and (4) failing to perform nursing functions in a manner
consistent with established or customary standards. Accordingly, the Board suspended
Merkley's license to practice nursing for one year, then stayed the suspension, placing
Merkley on probation for one year.
Merkley petitioned the district court for judicial review, which was granted by an order
dated August 22, 1995. The district court determined that the Board's decision was arbitrary
and capricious and unsupported by substantial evidence. The court noted that Charlebois had
failed to interview Drs. Smith and Bayless, and had determined without any basis in fact that
Mr. Bayless received an inappropriate amount of morphine and substandard care. The district
court further noted that Charlebois and Saint Mary's had delayed acting upon the variance
report and had failed to notify the coroner's office that Mr. Bayless' death involved unusual
circumstances until after his body had been cremated.
cremated. The court noted that the Board imposed a standard of care that is not established,
stating, There is no indication in the record of any guidelines establishing a set of
circumstances under which a nurse is required to question or challenge a physician's decision
or to determine which physician has the authority to treat a particular patient. Finally, the
district court noted that there was ample evidence that Mrs. Bayless wanted Dr. Bayless to
treat her husband.
The Board timely appeals the order of the district court.
DISCUSSION
The Board argues that substantial evidence supports its decision to discipline Merkley;
therefore, the district court committed reversible error by failing to affirm the Board's
decision. The Board contends that the district court improperly ignored factual findings and
substituted its judgment for that of the Board.
[Headnote 1]
This court's role in reviewing an administrative decision is identical to that of the district court. Ruggles v. Public Service Comm'n,
109 Nev. 36, 40, 846 P.2d 299, 301 (1993) (citation omitted). This court must affirm a decision by the agency that is supported by
substantial evidence. Mishler v. State, Bd. of Med. Examiners, 109 Nev. 287, 292, 849 P.2d 291, 294 (1993). When the factual findings of
the administrative agency are supported by the evidence, they are conclusive, and the district court is limited to a determination of whether
the agency acted arbitrarily or capriciously. Id. at 292, 849 P.2d at 294 (citation omitted); see NRS 233B.135(3). However, this court may
set aside the agency's decision if the agency has prejudiced substantial rights. Mishler, 109 Nev. at 292, 849 P.2d at 294.
[Headnote 2]
NAC 632.890 put Merkley on notice of the acts that constitute professional misconduct, and the Board found that he committed four of
these acts. First, the Board found that he falsified a record by back-timing the second order for Morphine. This finding is supported by the
record.
[Headnote 3]
Second, the Board found that Merkley failed to collaborate with other members of a health care team as necessary to meet the health
needs of a patient. The Board sanctioned Merkley for failing to obtain an order for the second bag of Morphine from Dr. Shapiro, the
physician of record. Charlebois, and Kathy Ruebusch (Ruebusch), a clinical nurse, both testified that they would never take an order
from a member of a patient's family.
However, Merkley did not accept the order for the second bag of Morphine from Dr.
Bayless, but accepted it from Dr. Smith. Moreover, Dr. Bayless testified that no Nevada
policy prevented him from treating his own family or from giving the order. He testified that
he was in the best position to attend to his father's needs because he was at his father's
bedside the entire day, and was an anesthesiologist with responsibilities on that floor of the
hospital. He explained that Dr. Shapiro was deferring to his judgment, that he was hired by
his mother and father to provide medical care, and that the only reason he was not considered
a member of the medical team was that Merkley did not allow him to write on Mr. Bayless'
chart.
Also, Dr. Bayless testified that Dr. Smith's anesthesiology team provided anesthesia when
Mr. Bayless' leg was amputated, and therefore was part of Mr. Bayless' medical group. Dr.
Bayless explained that it was not out of the ordinary to call Dr. Smith for the order, and that
contacting Dr. Shapiro on a Saturday night would have been a nuisance call. Dr. Smith
testified that the second order was proper. Both doctors testified that it was appropriate for
Mr. Bayless to receive tremendous quantities of Morphine, and that he had an extraordinarily
high tolerance for the drug. Thus, the evidence shows that Mr. Bayless' health needs were
met, and that Merkley acted in an appropriate manner.
[Headnote 4]
Third, the Board found that Merkley failed to observe, record and report Mr. Bayless' condition. In the Board's deliberations, Board
members stated that flicking Mr. Bayless' toe, when he had a necrotic foot, did not constitute an adequate assessment of Mr. Bayless'
condition. The Board also criticized Merkley's failure to notify Dr. Shapiro of the increased dosage of Morphine.
Merkley testified that because he was ordered to provide only comfort care, further assessment was unwarranted. Both he and Smedes
checked Mr. Bayless' respirations, which did not indicate a drug overdose. The other nurse subject to discipline testified that Mr. Bayless'
respiration was normal and further assessment was not needed. Moreover, Dr. Bayless was monitoring Mr. Bayless during the entire period
in question and indicated that he did not want his father to be disturbed by a full assessment when he had finally been made comfortable.
We conclude that the Board's finding that Merkley failed to observe, record and report Mr. Bayless' condition is not supported by
substantial evidence in the record.
[Headnote 5]
Fourth, the Board sanctioned Merkley for failing to follow customary standards.
customary standards. Charlebois and Ruebusch testified that it was standard practice to call
the attending physician in such circumstances and to refuse orders from members of a
patient's family. However, the hospital's policy regarding treatment of family members was
not put in writing until after the incident with Mr. Bayless.
Charlebois, who commenced the investigation against Merkley, believed that Mr. Bayless'
death was under suspicious circumstances. She testified, [T]here is a line between providing
comfort and deliberately administering or allowing to be administered what we all know as
nurses is a fatal dose of Morphine. She testified that Merkley should have administered
Narcan to reverse the effects of the Morphine. However, two qualified anesthesiologists
strongly disagreed with this assessment. Dr. Bayless was severely critical of the use of
Narcan, stating that it would have caused his father to be wide awake and in excruciating
pain. Dr. Smith testified that a strong argument could be made that the increased dosage was
life-prolonging. Moreover, Dr. Bayless' family commended Merkley's actions. Mrs. Bayless,
formerly the Secretary of the Board, was shocked when Merkley was reprimanded.
[Headnote 6]
The Board has wide discretion to discipline and ensure the competence of its licensees. Nonetheless, as this court noted in Mishler,
With respect to a disciplinary proceeding against a licensed professional, this court has an obligation . . . to look beyond the label given to
a conviction to the true nature of the facts, in order to determine whether the underlying circumstances of the conviction warrant discipline.'
109 Nev. at 296, 849 P.2d at 296 (citing State Bar of Nevada v. Claiborne, 104 Nev. 115, 211, 756 P.2d 464, 526 (1988)). Here, the
record does not support the Board's findings that Merkley failed to collaborate with other members of a health care team as necessary to
meet the health needs of a patient, that Merkley failed to observe, record and report Mr. Bayless' condition, or that Merkley's conduct fell
below the standards of practice for nurses in Nevada. The record indicates that Merkley acted to ensure that Mr. Bayless' health needs were
met and that Mr. Bayless received a standard of care consistent with his and his family's wishes.
1
In view of the circumstances of
this case, we conclude that the Board prejudiced Merkley's substantial rights by suspending his license to
practice nursing.
__________

1
See Comment, The Nurse as Patient Advocate: Is There a Conflict of Interest?, 29 Santa Clara L. Rev. 391, 394 (1989) (discussing
how the lack of usable guidelines which would enable nurses to resolve conflicts between their ethical duties to patients and legal duties to
employers and physicians creates confusion over what behavior is sanctionable); see also Elizabeth Harrison Hadley, Nurses and
Prescriptive Authority: A Legal and Economic Analysis, 15 Am. J. L. & Med. 245 (1989) (criticizing state statutes defining
view of the circumstances of this case, we conclude that the Board prejudiced Merkley's
substantial rights by suspending his license to practice nursing.
CONCLUSION
[Headnote 7]
We conclude that the Board did not abuse its discretion in determining that Merkley violated NRS 632.320 and NAC 632.890 by
back-timing an order for Morphine. We therefore reverse the order of the district court, which reversed the decision of the Board. We
further conclude that the Board's findings that Merkley failed to collaborate with other members of a health care team as necessary to meet
the health needs of a patient, that Merkley failed to observe, record and report Mr. Bayless' condition, and that Merkley's conduct fell below
the standards of practice for nurses in Nevada, are not supported by substantial evidence in the record. We therefore remand this matter to
the district court with instructions to remand to the Board so that the Board can determine appropriate discipline in light of this opinion.
__________
the practice of nursing that fail to recognize that nurses routinely perform tasks requiring independent judgment, therefore putting nurses
unfairly at risk of sanctions).
____________
113 Nev. 667, 667 (1997) Panicaro v. Robertson
JOSEPH PANICARO, JR., and LIBERTY PLUMBING AND HEATING, INC., Appellants,
v. G. DAVID ROBERTSON and GILBERT COLEMAN, Ph.D., Respondents.
No. 27358
June 17, 1997 941 P.2d 485
Appeal from a judgment awarding costs and attorney's fees. Second Judicial District
Court, Washoe County; Mills Lane, Judge.
The supreme court held that attorney fee award limit of $3,000 in arbitration rule applies
only to mandatory fees required under Nevada Arbitration Rule 20, and does not restrict
district court's jurisdiction to award discretionary fees.
Affirmed.
Joseph R. Plater, Reno, for Appellants.
Robertson & Benevento, Reno, for Respondents.
Even though trial court did not set forth statutory basis for award of attorney fees, supreme court could determine that it was made
pursuant to general attorney fees statute, not attorney fees provision of statute dealing with offers of judgment, where award included
fees incurred before offer of judgment was made. NRS 17.115, 18.010.
2. Arbitration.
Attorney fee award limit of $3,000.00 in arbitration rule applies only to mandatory fees required under Nevada Arbitration Rule
20, and does not restrict district court's jurisdiction to award discretionary fees. NRS 18.010(2); Nevada Arbitration Rule 20.
OPINION
Per Curiam:
A jury trial was held in which appellant Joseph Panicaro, Jr. (Panicaro) was found liable
for the attorney's fees of respondents G. David Robertson and Gilbert Coleman (Coleman)
(collectively Respondents). Panicaro appealed the judgment to this court. While that appeal
was pending, Respondents filed in the district court a motion for attorney's fees and costs
associated with the trial. The district court granted Respondents' motion. Panicaro now
appeals that decision to this court.
Panicaro claims that the lower court's award of attorney's fees must be reversed because
the order is devoid of any statutory basis. See Integrity Ins. Co. v. Martin, 105 Nev. 16, 769
P.2d 69 (1989). Although Panicaro correctly notes that the district court failed to cite any
relevant statutory authority for awarding attorney's fees, the basis of the district court's award
is readily apparent from the dollar amount contained in the judgment.
[Headnote 1]
NRCP 68 and NRS 17.115 provide recovery of attorney's fees from the time the offer of judgment is made to the opposing party.
Conversely, NRS 18.010 contains no such restriction. In this case, Respondents' award of attorney's fees included fees incurred before an
offer of judgment was made. Therefore, we conclude that the lower court awarded attorney's fees pursuant to NRS 18.010. See Pease v.
Taylor, 86 Nev. 195, 197, 467 P.2d 109, 110 (1970) (stating that this court has repeatedly held that even in the absence of express
findings, if the record is clear and will support the judgment, findings may be implied).
Panicaro next asserts that Respondents' attorney's fees are limited to $3,000.00 because he requested a trial de novo after Coleman
received an arbitration award of $2,550.00. Since Panicaro failed to reduce the arbitration award at trial, he claims that Respondents are
entitled to only the statutory maximum of $3,000.00 under Nevada Arbitration Rule 20 {"Rule 20").1 We conclude that
NRS 1S.010 does not countenance such a result.
$3,000.00 under Nevada Arbitration Rule 20 (Rule 20).
1
We conclude that NRS 18.010
does not countenance such a result.
[Headnote 2]
First, the $3,000.00 cap applies only to mandatory fees required under Rule 20. Rule 20 does not restrict the district court's jurisdiction
to award discretionary fees under NRS 18.010(2). Secondly, the plain language of NRS 18.010(2) expressly states: 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. (Emphasis
added.) Therefore, we conclude that lower courts are empowered to exceed statutory caps on attorney's fees pursuant to a discretionary
award under NRS 18.010. That is precisely what occurred in this case.
Accordingly, we affirm the judgment of the district court.
2
__________

1
Rule 20, the provision governing a request for trial de novo after an arbitration award, provides in part:
[I]f the amount of the award in the trial de novo does not either exceed the arbitration award made to the party requesting the trial
de novo, or reduce the liability imposed on that party by the arbitration award, the party requesting the trial de novo must pay to
the adverse party all recoverable costs and actual attorney's fees associated with the prosecution or defense of the trial de novo.
Awards of attorney's fees may not exceed the total amount of $3,000 unless the court finds extraordinary circumstances justifying
a higher award.
(Emphasis added.)

2
After thoroughly reviewing Panicaro's remaining arguments, we conclude that all lack merit.
____________
113 Nev. 669, 669 (1997) Batson v. State
MARK DENNIS BATSON, Appellant, v. THE
No. 27353
June 17, 1997 941 P.2d 478
Appeal from a judgment of conviction of one count of battery on a police officer causing
substantial bodily harm entered pursuant to a jury verdict. Second Judicial District Court,
Washoe County; James A. Stone, Judge.
The supreme court, Rose, J., held that: (1) defendant was not entitled to continuance; (2)
person may defend another against officer's use of force if excessive force is witnessed and
serious harm is imminent, overruling State v. Smithson, 54 Nev. 417, 19 P.2d 631 (1933);
and (3) permitting cumulative evidence to be presented by prosecution as rebuttal
testimony was not reversible error.
presented by prosecution as rebuttal testimony was not reversible error.
Affirmed.
Michael Specchio, Public Defender and John Reese Petty, Chief Appellate Public
Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
Defendant who was charged with battery on police officer arising from incident in which officer was attempting to guide
defendant's wife to place to sit could only rely on privilege of defense of others to extent that wife could have invoked privilege of
self-defense against officer.
2. Criminal Law.
Granting of motion to continue is within sound discretion of trial court.
3. Criminal Law.
Information that police officer had been found liable in federal civil suit for wrongfully breaking into house to conduct search was
irrelevant in prosecution for battery on officer arising from incident in which officer was attempting to guide defendant's wife to place
to sit, and thus did not warrant grant of continuance. Fact that officer may have invaded someone's privacy at some previous time did
nothing to support defendant's theory of defense, as it did not tend to make it more likely than not that officer was exerting something
more than light touch on wife or that defendant thought or had reason to believe that officer was abusing wife. NRS 48.025(2).
Reasonable doubt instruction which used language required by statute did not violate defendant's due process rights. U.S. Const.
amend. 14; NRS 175.211.
5. Criminal Law.
Defendant is entitled to jury instruction on his theory of his case; however, proposed instruction must correctly state the law.
Person may defend another against a police officer's use of force only where that person has witnessed officer's unlawful and
excessive use of force, and only where individual being rescued is facing imminent and serious bodily harm at the hands of officer;
overruling State v. Smithson, 54 Nev. 417, 19 P.2d 631 (1933).
Individual acting in defense of another against police officer may only use that force reasonably necessary to remove threat of
imminent serious bodily harm to that other person.
8. Criminal Law.
Even if trial court gave jury a definition of theory of defense of others which properly stated the law, jury would still have found
defendant guilty of battery on police officer arising from incident in which officer was attempting to guide
defendant's wife to place to sit, and thus defendant's claim that court erred in rejecting proposed "defense
of others" instruction failed.
ant guilty of battery on police officer arising from incident in which officer was attempting to guide defendant's wife to place to sit, and
thus defendant's claim that court erred in rejecting proposed defense of others instruction failed.
9. Criminal Law.
Supreme court was not required to address defendant's claim against admission of cumulative testimony where defendant failed to
object to testimony at trial.
10. Criminal Law.
Even if lower court abused its discretion in allowing officer's largely cumulative rebuttal testimony, in which officer reiterated
testimony of other officers, such error was harmless and reversal was not warranted.
OPINION
Reno Police Department Officer Robert Tygard (Tygard), was one of several policemen to
respond to a fight between Mark Batson (Batson) and a neighbor at a Reno trailer park. When
Tygard arrived at the scene, the fighting parties had been separated, and he proceeded to meet
with Batson and his wife, Donna Batson (Donna). Tygard had Batson sit down on a low
outside wall (the parties label it a stem wall) by the Batsons' trailer, while Tygard (with his
back towards Batson) attempted to talk to a distraught Donna. Donna was extremely agitated
about the fight between Batson and their neighbor and was flailing her arms. Tygard tried to
calm Donna down and guide her to the wall where Batson was seated. As Tygard was guiding
Donna towards the wall, Batson jumped off the wall and struck Tygard twice, breaking
Tygard's jaw. Batson was tried and convicted of one count of battery on a police officer
causing substantial bodily harm, and was sentenced to six years imprisonment and ordered to
pay restitution in the amount of $12,859.98. Batson appeals his conviction and sentence.
FACTS
On July 31, 1993, at approximately 8:00 p.m., Officer Tygard responded to a report of a
fight in progress where a shot had been fired, at a trailer park located at 600 Newport Lane in
Reno. It was later determined that no shots had been fired and that the sound like a gunshot
was actually a window breaking. Tygard was in the second of six or more patrol cars to
respond to the scene. One group of officers was already talking to one of the men involved in
the altercation at the bottom of a hill, and Tygard and another officer, Paul Kisner, went up
the hill to interview Batsonthe other participant in the alleged fightat the Batsons' trailer.
Tygard testified that Batson appeared disheveled but uninjured; however, Donna testified
that Batson had been bleeding. Batson sat down on a low wall about ten yards away from and
behind Tygard. Tygard had turned his attention to Donna, who was distressed, crying and
flailing her arms around. Tygard testified that he then tried to get Donna to calm down and
sit next to her husband, first by verbal request, and then by using a light touch
1
to her wrist
and elbow to guide her to the wall. Tygard heard Batson yell Get your f---ing hands off my
wife! and was then struck on the side of his head from behind; Tygard fell to the ground,
reached for his cap stun, turned around, and was again struck in the face by Batson. Tygard's
version of what transpired at the trailer park is corroborated by the testimony of several other
officers who were at the scene.
However, according to Donna and Batson, Donna had been attempting to get to Batson
when Tygard grabbed her right arm from behind her back and wrenched [it] up behind [her]
back, [while] another arm came around [her] throat from behind. Donna then screamed for
help because [Tygard] was breaking [her] arm. Donna testified that Batson immediately
came to her aid but was subdued by other officers; she did not know whether Batson had
struck Tygard.
Batson testified that he had been feeling faint from his fight when Tygard arrived outside
the Batsons' trailer, so he sat down on the stem wall. Batson then heard his wife scream in
pain. According to Batson, Donna was:
Very much in pain. Fromshe was being choked to unconsciousness [by Tygard].
She couldn't breathe. Her face turned solid red. Her arm was twisted up behind her back
beyond the point of normal use, soand her screaming for help was the last point that
Ithat's all it took for me when she screamed for help, I couldn't sit there and watch
any longer.
. . . .
I stood up and took a couple of steps towards Officer Tygard and my wife. At that
point I wasn't really sure what I was going to do. He [Tygard] had her in such a tight
hold, that even trying to use physical restraint to try and stop him would have possibly
injured my wife and would have possibly broke her arm, because he had it that far up
behind her back.
But all I remember is taking two steps and getting hit from behind the back of the
head by somebody else . . . .
__________

1
Tygard described a light touch as the same motion that you would use as if you are escorting somebody to a
car. . . . [Y]ou use it to guide someone to where you want them to go.
And I got up, took two steps, and I went black. All I remember was falling forward,
and falling into Officer Tygard and my wife. . . . It was like I went black.
. . . .
I woke up being hog tied and shackled with Officer O'Bryan's foot dead on the back
of my neck, with my face planted dead in the hard ground.
According to Officer Pat O'Bryan, who was down the hill interviewing the other person
involved in the fight with Officers Robert Alexander, Greg Meister, and several other
policemen, he saw Batson hit Tygard from behind. O'Bryan and several other officers ran to
Tygard's aid, tackling Batson. Donna then jumped on the backs of the officers in an attempt to
pull them away from Batson. Donna was restrained and taken into custody. Batson was cuffed
and placed in a police van where he continued to struggle and kick at the vehicle's doors. The
officers then hobbled Batson's feet to further restrain him. Tygard was taken by ambulance to
Washoe Medical Center where he was treated for a severely fractured jaw.
On the day of Batson's trial, his counsel moved for a continuance for an indefinite period
of time in order to further investigate information indicating that Tygard had been found
liable for invasion of privacy for breaking into someone's house in an unrelated civil case in
federal court. The judge denied Batson's motion. Batson argues that the judge erred in its
ruling. Batson also claims that the reasonable doubt jury instruction given at trial was
unconstitutional. He further asserts that the lower court erred in rejecting his proposed
defense of others jury instruction, and in permitting the prosecution to present cumulative
evidence as rebuttal testimony. Because we conclude that the district court did not err, we
affirm Batson's conviction and sentence.
DISCUSSION
The district court properly denied Batson's request for a continuance
On Monday, May 1, 1995, the day of Batson's trial, after the venire had been assembled
but before the jury had been empaneled, Batson moved for a continuance for an unspecified
period of time. Batson's counsel claimed to have received information on the previous Friday
that Tygard had been found liable in a federal civil suit against the City of Reno for invading
someone's privacy by wrongfully breaking into a house to conduct a search. The district judge
asked Batson's counsel whether Batson had known about the charges pending against Tygard
on July 31, 1993, the date he allegedly battered Tygard. Batson's counsel acknowledged that
Batson had not been aware of the civil claims against Tygard.
edged that Batson had not been aware of the civil claims against Tygard.
The State argued and the district judge concluded that the information Batson sought a
continuance to produce was irrelevant, and thus inadmissible. See NRS 48.025(2). The judge
based his ruling, in part, on Burgeon v. State, 102 Nev. 43, 46, 714 P.2d 576, 578 (1986),
which held that where the defendant alleged self-defense, specific, violent acts of the victim
which were unknown to the defendant were inadmissible to establish the reasonableness of
defendant's fear or state of mind.
[Headnote 1]
On appeal, Batson asserts that Burgeon is inapplicable because he was not acting in self-defense but in defense of his wife, Donna.
2
He argues Tygard's civil liability for invasion of privacy may have been relevant not to show prior violence on the part of [Tygard]. . . .
Rather it may have been relevant to impeach Officer Tygard's contention that he had merely applied a light touch' to [Donna]. We
conclude that Batson's argument is without merit.
[Headnotes 2, 3]
It is well settled that the granting of a motion to continue is within the sound discretion of the trial court. Doleman v. State, 107 Nev.
409, 416, 812 P.2d 1287, 1291 (1991). The district judge did not abuse his discretion in concluding that the information Batson sought to
pursue was irrelevant, inadmissible, and thus did not warrant the granting of a continuance. That Tygard may have invaded someone's
privacy at some previous time did nothing to support Batson's theory of defense; it did not tend to make it more likely than not that Tygard
was in fact exerting something more than a light touch on Donna, or that Batson thought or had reason to believe that Tygard was
abusing his wife. Accordingly, we hold that the district judge did not err in denying Batson's motion for a continuance.
The reasonable doubt instruction given to the jury did not violate Batson's due process rights
Batson contests the constitutionality of the reasonable doubt instruction given to his jury in as much as it defined reasonable doubt as
such doubt as would govern or control a person in the more weighty affairs of life.
__________

2
Batson makes a specious distinction; as other jurisdictions have noted, one who would come to the defense of others must stand in the
shoes of the person being defended. See State v. Wenger, 390 N.E.2d 801, 804 (Ohio 1979). Thus, Batson could only rely on the privilege
of defense of others to the extent that Donna could have invoked the privilege of self-defense against Tygard.
[Headnote 4]
The district court instructed the jury using the language required by NRS 175.211. This court has repeatedly held that jury
instructions on reasonable doubt given pursuant to NRS 175.211 are constitutional. Milton v. State, 111 Nev. 1487, 1492, 908 P.2d 684,
687 (1995) (footnote omitted). Therefore, this claim is without merit.
Batson's proposed jury instruction on defense of others was properly rejected by the district court
At trial, Batson offered the following instruction regarding the defense of others:
It is lawful for a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to
be inflicted upon his spouse to protect that individual from attack. In doing so he may use all force and means which such person
believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be
necessary to prevent the injury which appears to be imminent.
The district judge rejected this instruction, and the only instruction which mentioned the words self-defense or defense of another
stated:
If evidence of self-defense or defense of another is present, the State must prove beyond a reasonable doubt that the defendant
did not act in self-defense or in defense of another. If you find that the State has failed to prove beyond a reasonable doubt that the
defendant did not act in self-defense or defense of another, you must find the defendant not guilty. In other words, if you have a
reasonable doubt whether or not the defendant acted in self-defense, your verdict must be not guilty.
Batson asserts that the lower court erred in rejecting his proposed defense of others instruction because a defendant in a criminal
case is entitled, upon request, to a jury instruction on his theory of the case so long as there is some evidence, no matter how weak or
incredible, to support it. Roberts v. State, 102 Nev. 170, 172-73, 717 P.2d 1115, 1116 (1986). He asserts that because Batson and Donna
presented evidence that Batson was acting in Donna's defense, the proffered instruction was warranted because the jury received no other
instruction on what constituted self-defense or defense of another.
[Headnote 5]
We agree with Batson that a defendant in a criminal case is entitled to a jury instruction on his theory of his case;
however, the proposed instruction must "correctly state the law."
entitled to a jury instruction on his theory of his case; however, the proposed instruction must
correctly state the law. Barron v. State, 105 Nev. 767, 773, 783 P.2d 444, 448 (1989). The
state asserts that Batson's defense of others instruction did not correctly state the law in that
[t]he proposed instruction would have allowed Mr. Batson to use force to prevent Tygard
from lawfully detaining [Donna]. It would, in essence, allow any husband to rescue his spouse
from the lawful clutches of the law. (Emphasis added.)
[Headnotes 6, 7]
Whether (and under what conditions) an individual can exert force against a police officer in the defense of others is a question of first
impression in Nevada. Today we hold that a person may defend another only where that person has witnessed a police officer's unlawful
and excessive use of force, and only where the individual being rescued is facing imminent and serious bodily harm at the hands of the
police officer.
3
See Commonwealth v. French, 611 A.2d 175, 179 (Pa. 1992). Furthermore, an individual acting in defense of another
against a police officer may only use that force reasonably necessary to remove the threat of imminent serious bodily harm to that other
person. See State v. Smits, 792 P.2d 565, 569 (Wash. Ct. App. 1990).
[Headnote 8]
[I]t has been held that where the defendant in a criminal case proves facts or circumstances to excuse his act which otherwise would
in and of itself be a crime, or the specific issue is one of criminal intent, such as where there is a claim of . . . self-defense . . ., ordinarily an
affirmative instruction should be given. 75B Am. Jur. Trial 1259 (1992). However, the settling of jury instructions was not reported in
the record on appeal, and there is no record that Batson objected, nor is there any rationale for why Batson's counsel did not submit an
alternate jury instruction. The jury was at least instructed that defense of another was a complete defense to the crime charged, and
this general statement was more favorable to Batson than the language of the standard we adopt today.4
Moreover, Batson has "not sustained [his] burden of showing that a different result would have been obtained
had the proposed instruction been given."
__________

3
In State v. Smithson, 54 Nev. 417, 428, 19 P.2d 631, 634-35 (1933) (quoting Adams v. State, 57 So. 591, 592 (Ala. 1912)), this court
set forth a standard of self-defense against a police officer:
The citizen may resist an attempt to arrest him which is simply illegal, to a limited extent, not involving any serious injury to the
officer. He is not authorized to slay the officer, except in self-defense; that is when the force used against him is felonious, as
distinguished from forcible.
(Emphasis added.) Batson could only exert that force which Donna was justified in exerting. We conclude that the language of Smithson
describes the right to defend oneself or act in defense of another against police officers too broadly. Accordingly, Smithson is overruled to
the extent that it justifies the use of any force in response to anything less than a police officer's use of unlawful and excessive force.
defense to the crime charged, and this general statement was more favorable to Batson than
the language of the standard we adopt today.
4
Moreover, Batson has not sustained [his]
burden of showing that a different result would have been obtained had the proposed
instruction been given. Barron, 105 Nev. at 777, 783 P.2d at 451. Furthermore, Batson's
testimony was that he fell into Officer Tygard and his wife, not that he hurt Officer Tygard in
defense of his wife. We conclude that, on the instant facts, even if the jury had been given a
definition of the theory of defense of others which properly stated the law, the jury would
have still found Batson guilty. Therefore, Batson's claim must fail.
Permitting cumulative evidence to be presented by the prosecution as rebuttal testimony did
not constitute reversible error
[Headnote 9]
Following the close of Batson's case in chief, the State called Officer Alexander in rebuttal. Both parties concede that Alexander's
testimony was, for the most part, cumulative and added little of substance to the prosecution's case, although Alexander did add that he
had not seen Tygard choke Donna. As an initial matter, Batson failed to object to Alexander's testimony and therefore, this court need not
address this claim. See McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983) (stating that the failure to object below bars
appellate review).
Notwithstanding, we turn to the merits of Batson's claim. Batson quotes Morrison v. Air California, 101 Nev. 233, 699 P.2d 600
(1985), for the principle that [r]ebuttal evidence is that which explains, repels, contradicts or disproves evidence introduced by a defendant
during his case in chief. The general rule for determining whether certain rebuttal evidence is proper is whether it tends to counteract new
matters by the adverse party.' Id. at 235-36, 699 P.2d at 602 (quoting McGee v. Burlington Northern, Inc., 571 P.2d 784 (Mont. 1977))
(citations omitted). In response, the State argues that allowance of rebuttal testimony is addressed to the lower court's sound discretion, and
that the trial court's decision is subject to the harmless error standard. Morrison, 101 Nev. at 237, 699 P.2d at 603.
[Headnote 10]
We conclude that even if the lower court abused its discretion in allowing Alexander's largely cumulative testimony, in which he
reiterated the testimony of Officers Tygard and O'Bryan, such error was harmless and reversal on this ground is not
warranted.
__________

4
In fact, the instruction given was much closer in effect to the version Batson proposed.
error was harmless and reversal on this ground is not warranted. See Felder v. State, 107 Nev.
237, 242, 810 P.2d 755, 758 (1991) (holding that admission of cumulative evidence was
harmless).
CONCLUSION
We conclude that the district court did not err in denying Batson's motion for a
continuance to pursue irrelevant evidence, nor did it err in giving a reasonable doubt
instruction which conformed with NRS 175.211. We further conclude that Officer
Alexander's cumulative rebuttal testimony constituted harmless error. Batson's proffered
instruction on defense of others was properly rejected as a misstatement of the law. We
further conclude that even if a proper instruction on this theory had been given, in light of the
overwhelming evidence, Batson would have still been convicted by the jury. Therefore, we
affirm Batson's conviction.
Shearing, C. J., and Rose and Maupin, JJ., concur.
The majority opinion recognizes that [w]hether (and under what conditions) an individual
can exert force against a police officer in the defense of others is a question of first
impression in Nevada. In other words, when Mr. Batson was defending against these
criminal charges neither he nor his prosecutor (nor this court) knew what the law was relating
to the sole defense which Batson offered in this case.
Now, of course, we all know what the law is. It has been declared by the court in this case:
[A] person may defend another only where that person has witnessed a police officer's
unlawful and excessive use of force, and only where the individual being rescued' is facing
imminent and serious bodily harm at the hands of the police officer. Mr. Batson was most
certainly engaged in the act of rescuing his wife from what he saw as the use of unlawful
and excessive force which he believed was causing serious bodily harm to his wife. The
problem with this conviction is that no matter what the jury believed, it could not have, under
the instructions given in this case, conscientiously brought in a verdict of acquittal. The jury
simply was not instructed on the meaning or definition of Mr. Batson's affirmative defense. I
do not believe that Mr. Batson should stand convicted of this serious crime until he has had
the opportunity to have a jury judge him in a manner that is based on the law of Nevada. At
this writing he has been denied that right.
This is not by any means a clear case of guilt. Mr. Batson's wife claims that she was the
subject of an unprovoked attack by Officer Tygard. Officer Tygard testified that he was
merely trying to calm down an hysterical woman who was "crying and flailing her arms
around."
to calm down an hysterical woman who was crying and flailing her arms around. The
officer claims that the physical force he used upon Mr. Batson's wife was minimal, merely a
light touch. The Batsons claim that Officer Tygard had wrenched Mrs. Batson's arm up
behind her back and had placed his arm around her throat from behind. Whether the jury
believed that the officer only touched Mrs. Batson or dangerously wrenched her arm in
back of her and had a throat hold on her that kept her from breathing does not matter in this
case because the jury was given no definition or explanation of the conditions under which
Mr. Batson was legally entitled to defend his wife. The jury was merely instructed on the
burden of proof and told that the State must prove beyond a reasonable doubt that the
defendant did not act . . . in defense of another. The jury was not told what defense of
another was or when a person had the right to defend one's loved one against unlawful and
excessive police violence. Mr. Batson did not get a fair trial because the jury was never
instructed on his theory of the case.
As stated in the majority opinion, the Batsons tell a story of an annoyed police officer who
over-reacted to Mrs. Batson's emotional state. Mr. Batson claims that he saw his wife in great
pain, that she was being choked unconscious, that her arm was twisted up behind her back
beyond the point of normal use, and that she was screaming for help. Almost any husband
would have tried to do something to come to the rescue of his wife under these
circumstances. Even, however, if the jury believed everything that the Batsons told them, a
conscientious jury had no basis for acquitting Mr. Batson under the instructions given to this
jury.
I do not see how the majority can affirm a conviction by a jury that did not know the law.
All Mr. Batson asks for is a fair trial in which a jury is correctly told of the essence of his
defense, namely, under what conditions Mr. Batson was entitled to come to the rescue of his
wife in this case. I would reverse the judgment of conviction and remand the case for a new
trial before a correctly-instructed jury.
____________
113 Nev. 679, 679 (1997) Lisle v. State
KEVIN JAMES LISLE and JERRY LOPEZ, Appellants,
v. THE STATE OF NEVADA, Respondent.
No. 28773
June 17, 1997 941 P.2d 459
Appeal from judgment of conviction for first degree murder with use of a deadly weapon,
conspiracy to commit murder, and being an ex-felon in possession of a firearm, and a
sentence of death.
113 Nev. 679, 680 (1997) Lisle v. State
death. Appeal from judgment of conviction for first degree murder with use of a deadly
weapon and conspiracy to commit murder. Eighth Judicial District Court, Clark County; Sally
L. Loehrer, Judge.
Two defendants were convicted of murder and other offenses and were sentenced to death
and life in prison, respectively, following jury trial in the district court, and they appealed.
The supreme court held that: (1) defendants had not been entitled to severance; (2) testimony
about victim's telephone conversation on night of murder was admissible under hearsay
exceptions; (3) evidence supported conviction; (4) severance of firearms charge had not been
required; (5) notes that prosecutor took during his interview with witness were privileged
work-product; (6) prosecutor's instructing witness not to speak with defense counsel caused
no prejudice to defendant; (7) unavailable witness's prior sworn testimony concerning his
drug transaction with defendant was admissible; (8) admission of evidence indicating that
defendant had committed another murder did not require mistrial; (9) witness did not waive
privilege as to discussion with his attorney about confession that defendant had allegedly
made to him; (10) exclusion of prior inconsistent statements of penalty-phase witness was
harmless error; (11) redaction of portions of testimony of defendant's former judvenile
probation officer was not improper; (12) penalty-phase jury did not have to find that
defendant was death eligible before considering character evidence; (13) prosecutor did not
make improper closing arguments in penalty phase; and (14) death sentence was not
excessive.
Affirmed.
[Rehearing denied January 23, 1998]
Morgan D. Harris, Public Defender; Michael L. Miller, Deputy, and Ralph Baker, Deputy,
Clark County, for Appellant Lisle.
David M. Schieck, Las Vegas, for Appellant Lopez.
James Tufteland, Chief Deputy, and Daniel M. Seaton, Deputy, Clark County, for
Respondent.
1. Criminal Law.
Overwhelming evidence against co-defendant, co-defendant's adornment with various visible tattoos, and co-defendant's
involvement in drug transaction did not create spillover effect requiring severance of defendant's trial in murder prosecution,
especially since trial court gave adequate limiting instructions. NRS 174.165(1).
113 Nev. 679, 681 (1997) Lisle v. State
2. Criminal Law.
Joinder of defendants is within discretion of trial court, and its decision will not be reversed absent abuse of discretion. NRS
174.165(1).
3. Criminal Law.
Trial court making decision on severance of defendants must consider not only possible prejudice to moving defendant but also
possible prejudice to government resulting from two time-consuming expensive, and duplicitous trials. NRS 174.165(1).
4. Criminal Law.
Ultimate issue on motion for severance of defendants is whether jury can reasonably be expected to compartmentalize evidence as
it relates to separate defendants. NRS 174.165(1).
5. Criminal Law.
Jury is expected to follow instructions in limiting evidence for each defendant. NRS 174.165(1).
6. Criminal Law.
Co-defendant is entitled to separate trial if he presents sufficient showing of facts demonstrating that substantial prejudice would
result in joint trial. NRS 174.165(1).
7. Criminal Law.
Severance of defendants will not be granted if based on guilt by association alone. NRS 174.165(1).
8. Criminal Law.
Merely having better chance at acquittal if defendants are tried at separate trials is not sufficient to establish prejudice warranting
severance of defendants. NRS 174.165(1).
9. Criminal Law.
Defendant is not entitled to severance merely because evidence admissible against his co-defendant is more damaging than that
admissible against himself. NRS 174.165(1).
NRS 174.165(1).
10. Criminal Law.
Witness' testimony that murder victim told witness over telephone on night of murder that he was going out with defendants to get
drugs for witness, that defendants were there at that exact moment, and that he would be back in 15 minutes after completing deal was
admissible under present sense impression exception and state of mind exception to hearsay rule. NRS 51.085, 51.105(1).
11. Criminal Law.
Under Hillmon doctrine, hearsay evidence of statements which tend to show speaker's intention to perform particular act that is
at issue in case is admissible under state of mind exception to hearsay rule. NRS 51.105(1).
12. Criminal Law.
Test for sufficiency of evidence upon appellate review is not whether supreme court is convinced of defendant's guilt beyond
reasonable doubt, but whether jury, acting reasonably, could be convinced to that certitude by evidence it had right to accept.
13. Homicide.
Evidence that defendant drove to desert with victim and co-defendant, saw co-defendant shoot victim, helped co-defendant in
cover-up, and boasted to another that we killed victim was sufficient to support defendant's conviction for first-degree murder.
113 Nev. 679, 682 (1997) Lisle v. State
14. Criminal Law.
Witness' hearsay testimony that co-defendant said he observed the other guy shoot victim was not incriminating on its face, and
thus admitting it in murder prosecution neither violated defendant's constitutional right to cross-examination nor entitled him to
severance, especially considering that four other witnesses heard defendant confess to killing victim. U.S. Const. amend. 6; NRS
174.165(1).
15. Criminal Law.
Admission of evidence of defendant's prior felony conviction for conspiracy to sell controlled substance to satisfy element of
charge of being ex-felon in possession of firearm did not unduly prejudice jury against him with respect to murder and conspiracy
charges, and thus defendant was not entitled to severance of firearm charge, where prior conviction was not emphasized and was
merely read in jury instruction naming charges against defendant, and where there was other admissible evidence concerning
defendant's participation in drug sales.
16. Criminal Law.
Notes that prosecutor took during his interview with witness were privileged attorney work-product. NRS 174.245(1).
17. Criminal Law.
Resolution of discovery issues are normally within trial court's discretion.
18. Criminal Law.
Work-product privilege is not absolute and may be waived. NRS 174.245(1).
19. Criminal Law.
Counsel does not normally waive work-product privilege by making use throughout trial of notes, documents, and other internal
material prepared to adequately present his client's case or by relying on such materials in examining witnesses. Where counsel
attempts to make testimonial use of such materials, normal rules of evidence come into play with respect to cross-examination and
production of documents. NRS 174.245(1).
20. Criminal Law.
Any impropriety in prosecutor's instructing witness not to speak with defense counsel caused no prejudice to defendant where
there was evidence that witness would have spoken with defense counsel anyway but was never contacted by defense counsel.
21. Criminal Law.
Unavailable witness' prior sworn testimony concerning his drug transaction with murder defendant, which testimony witness had
given at penalty hearing during trial of defendant for another murder, was admissible in present murder prosecution, where defendant's
motive to cross-examine was in both instances to avoid death penalty, and where defense counsel had had full, complete, and
unrestricted opportunity to cross-examine witness and did not show how he would have further impeached witness. NRS 51.325.
22. Criminal Law.
Any prejudice to murder defendant caused when, despite great care taken by trial court and parties not to identify defendant as
having been involved in prior murder, prosecutor's examination of certain witnesses revealed that unidentified person involved in prior
murder was adult white male who was possibly staying at one witness' house was adequately cured when trial court chastised
prosecutor and ordered him to elicit testimony that many adult white males stayed at that house; thus, mistrial was not required.
113 Nev. 679, 683(1997) Lisle v. State
23. Criminal Law.
Denial of mistrial is within sound discretion of district court, and that ruling will not be reversed unless it was abuse of discretion.
24. Witnesses.
Witness' testimony that he had discussed with his attorney a confession that murder defendant had allegedly made to witness but
that he could not remember substance of discussion did not waive attorney-client privilege as to discussion.
25. Witnesses.
If client voluntarily reveals portions of communications with attorney, those revelations amount to waiver of attorney-client
privilege as to remainder of conversation or communication about same subject matter.
26. Witnesses.
Mere disclosure of fact that communication occurred between client and attorney does not amount to disclosure of specific content
of that communication, and as such does not necessarily constitute waiver of attorney-client privilege.
27. Witnesses.
Test for whether witness' testimony about his communications to his attorney amounts to waiver of attorney-client privilege is
whether witness' answers were wide enough in scope and deep enough in substance to constitute significant part of communication;
merely acknowledging fact that communication occurred does not suffice.
28. Homicide; Witnesses.
Evidence that witness who testified at penalty phase of murder trial as to facts and circumstances of prior murder for which
defendant had been convicted had made prior inconsistent statements was not relevant to witness' character or to show that he was
biased. NRS 48.015, 48.025(2).
29. Criminal Law.
District court has discretion to admit evidence in penalty phase of trial and will not be overturned absent abuse of that discretion.
30. Criminal Law.
Although evidence that witness changed his story before testifying at penalty phase of murder trial as to facts and circumstances of
prior murder for which defendant had been convicted should have been admitted as prior inconsistent statement, error was harmless,
where jury in prior case resolved that factual issue and where evidence in support of claimed aggravating circumstances was
overwhelming.
31. Homicide.
Reduction of portions of testimony of murder defendant's former juvenile probation officer indicating that defendant had been
ordered not to associate with co-defendant did not preclude defendant from presenting evidence at penalty phase of mitigating factor of
vulnerability to influence of others, where defendant's mother testified that defendant started having problems after he became friends
with co-defendant and that she did not approve of their friendship, and, in any event, testimony was irrelevant to whether defendant
was currently vulnerable to co-defendant and was ambiguous as to which of the two was bad influence on other.
32. Criminal Law.
Penalty-phase jury need not determine that defendant is death eligible before considering character evidence.
33. Criminal Law.
If proffered instruction misstates law or is adequately covered by other instructions, it need not be given.
113 Nev. 679, 684 (1997) Lisle v. State
34. Criminal Law.
Prosecutor's closing argument in penalty phase of murder prosecution asking jury to send a message was not improper.
35. Criminal Law.
Prosecutor's comment during closing argument in penalty phase of murder prosecution that defendant did not present psychiatric
evidence that his childhood abuse contributed to his current behavior did not improperly shift burden of proof on mitigator, where
comment was general and did not refer to specific witnesses.
36. Homicide.
Death sentence was not excessive penalty for murder, considering senseless and violent nature of crime and defendant. Defendant
drove to desert with victim and co-defendant, shot victim several times, and left him there following dispute over drugs and firearms.
NRS 177.055(2).
OPINION
Per Curiam:
On August 22, 1994, between 4:00 to 4:30 a.m., the body of nineteen-year-old Justin
Lusch (Justin) was found shot to death in the Lone Mountain desert area in Las Vegas.
Appellants Kevin James Lisle (Lisle) and Jerry Lopez (Lopez) were each convicted of
first degree murder with use of a deadly weapon and conspiracy to commit murder. In
addition, Lisle was convicted of being an ex-felon in possession of a firearm. Lisle was
sentenced to death, and Lopez was sentenced to life in prison with the possibility of parole.
On appeal, Lisle and Lopez each argue a multitude of issues. We conclude that none of these
contentions have merit and, accordingly, affirm the convictions and Lisle's sentence of death.
FACTS
In early July 1994, Justin began living with a friend, Eric Resma (Resma) in Resma's
converted garage, which was a known drug house. About August 8, 1994, two weeks prior
to Justin's death, Lisle and Lopez visited Resma's garage for the first time, looking for their
friend, Jason Sullivan (Sullivan), who had recently lived there, but had since moved out.
Resma talked with Lisle and Lopez and invited them inside to ingest drugs. From that day
forward, Lisle and Lopez continued to frequent Resma's residence. At some point thereafter,
Resma found a .380 caliber automatic gun between his couch cushions. When Resma asked
the occupants of the garage where it came from, either Lisle or Lopez took the gun from
Resma and put it in his own pants waistband.
On August 17, 1994, Lisle and Sullivan participated in a drug transaction at Resma's
house. Lisle sold Sullivan ten grams of methamphetamine with the understanding that
Sullivan would pay Lisle for the narcotics within a few days.
113 Nev. 679, 685 (1997) Lisle v. State
methamphetamine with the understanding that Sullivan would pay Lisle for the narcotics
within a few days. Sullivan then sold Justin 1.75 grams for which Justin would pay later.
Sullivan took his portion of the drugs, along with five or six rifles he also presumably
received from Lisle, to the house of his girlfriend, Nicole Catherina (Catherina), where
Sullivan was then living. Later that day, Sullivan was arrested on unrelated charges.
The next day, on August 18, 1994, Catherina contacted Resma so that she could return the
drugs and guns to Lisle. Resma and Justin went to Catherina's residence to pick up the items
and took them to Resma's house where Lisle and Lopez were waiting. Resma gave the drugs
to Lisle, but put the rifles, wrapped in a blanket, on the couch. Justin told Lisle that Sullivan
had given him a portion of the drugs, and Lisle demanded to know their location. Justin
replied that the drugs were locked away and he did not have them in his possession at the
moment. Lisle continued to demand to see the drugs. He appeared very upset and seemed to
disbelieve Justin. Resma then stated that he had the drugs and asked Lisle if he wanted to see
them. Lisle calmed down once Resma interjected; Lisle stated that he did not need to see the
drugs.
Throughout this conversation, Lisle was fiddling with his .380 caliber weapon. He was
cleaning it, and the clip containing ammunition was not in the gun. Nevertheless, Justin asked
Lisle if he was threatening him with the gun. Lisle said he was not; if he had a problem with
Justin, he would take him outside and they would box.
Later that day, Justin separately told his friends, Ryan Cizl (Cizl) and Jeff Kurtz
(Kurtz), that Lisle had held a gun to his head. He also told them that later Lisle apologized
to Justin. Both Kurtz and Cizl testified at trial that although Justin was prone to exaggerate,
this time they did not detect any hyperbole from him.
Sometime between August 18, 1994, and August 21, 1994, Justin found the rifles that
were returned at Resma's residence.
1
He thought they were stolen and stated that he wanted
the guns removed from the residence or else he would turn them over to his father, the chief
of police for North Las Vegas. Thereafter, another resident at Resma's garage, T. J. Willis
(Willis), told Lisle what Justin had said about the guns. Lisle apparently stated to Willis
that he advised Justin not to do that.
__________

1
It is unclear from the record how Justin found these rifles when he participated in obtaining them from
Catherina to return to Lisle. Presumably, since the rifles were wrapped in a blanket, Justin did not know what
they were.
113 Nev. 679, 686 (1997) Lisle v. State
On August 21, 1994, in the late evening hours, Lisle, Lopez, and some other friends,
including Adam Evans (Evans), were at the house of Anthony Vanella (Vanella). Lisle
stated, in Evans' presence, that he was going to kill a snitch named Justin. Lopez was not
present at this conversation.
In the meantime, at approximately 10:30 p.m., Kurtz telephoned Justin to request that
Justin procure some drugs for him. Between 11 p.m. to midnight, Justin gave another friend a
ride home from Resma's garage. While Justin was out, Kurtz called back again and left a
message. When Justin returned home, he did not call Kurtz back right away.
At approximately 2 a.m. on August 22, 1994, Lisle and Lopez left Vanella's house. Either
Lopez or Lisle had a .380 caliber gun tucked into his waistband.
At approximately 2:30 a.m., Justin returned Kurtz's phone call to inform him that he was
going out to get the drugs. Justin stated that he was on his way out the door at that moment
and he would contact Kurtz in fifteen minutes. He stated he was getting the drugs from some
people known as Vatos and that they were at the door right now. Lisle and Lopez were
known as Vatos, and Justin, in particular, enjoyed calling them by that nickname. Kurtz,
who was anxiously awaiting his delivery, called Justin again at 3 a.m. and received no
answer.
Between approximately 4:00 to 4:30 a.m., Justin's body was found at an area in the desert
known as Lone Mountain. It was later determined that this was an area that Lisle and Lopez
were known to frequent for shooting practice. Justin was shot three times: once in the upper
chest, once in the right side of his back, and once in his lower back.
Meanwhile, between 4:00 to 4:30 a.m., Lisle and Lopez returned to Vanella's house. Lisle
had the gun in his possession. Evans testified that Lisle told Vanella, I smoked him. I got
him. I killed a snitch. We took him to where we used to shoot and he ran and I shot him in the
back. In addition, Vanella's mother overheard Lisle say, I took him to the desert and I did
him. I shot him four times and I think I hit him three. He was a rat. I knew he was a rat and
I'm glad I did it. Lisle also mentioned the snitch's name was Justin. Lopez then stated,
We did it clean and we did it good. Nobody is going to find out that we did it. You don't
have to worry.
Vanella then suggested to Lisle and Lopez to get rid of the gun, whereupon Lisle stated
that he would go out and sell it. Lisle and Lopez then left Vanella's house and returned about
one hour later. Lisle stated he sold the gun for $50.00.
Later on August 22, 1994, between 9 or 10 p.m., Vanella brought Lisle and Lopez to the
house of Larry Prince (Prince) for the first time.2 Lisle, Vanella, and Prince discussed a
drug transaction.
113 Nev. 679, 687 (1997) Lisle v. State
for the first time.
2
Lisle, Vanella, and Prince discussed a drug transaction. At the conclusion
of this conversation, Lisle asked Vanella to leave the room. When Prince and Lisle were
alone, Lisle stated, There's something I have to let you know. I killed a snake. I mean I offed
a snitch, I offed someone. I offed a human being. I killed someone. He then stated the victim
was a son of a police officer, but did not name him. Lisle did, however, state that it would be
on the news that evening. At 11 p.m., they all watched the news. Upon seeing a story of a
body found in the desert, Lisle seemed to display a sense of satisfaction, while Lopez
portrayed no reaction at all.
The next day, August 23, 1994, Prince assisted Lisle and Lopez in disposing of a trash bag
that purportedly contained two pairs of tennis shoes. Evans testified that within a couple days
after the murder, he noticed that Lisle and Lopez wore different tennis shoes than they had
worn prior to Justin's death.
Sometime between August 22, 1994, and August 25, 1994, Lisle showed Prince a .380
caliber automatic gun, but explained that this was not the weapon used to kill Justin. Lisle
stated, Don't worry about that one. That one's long gone.
On August 25, 1994, the police arrested Prince at his home for possession of a controlled
substance with intent to sell. While there, the police observed Lisle sitting in a certain
armchair. Later that day, upon searching Prince's house pursuant to a search warrant, the
police found a .380 caliber gun tucked into the seat cushions of the very chair on which Lisle
had been sitting. Although this gun was later determined not to be the same weapon that
killed Justin, it was discovered that the brand of bullets found in the gun was the same brand
used to shoot Justin.
In late August 1994, Lisle informed his friend, John Melcher (Melcher), that he was
laying low because the police were trying to get him for the murder of the North Las
Vegas police chief's son, but that the police did not have enough evidence on him.
Lisle introduced Melcher to Lopez. Lopez told Melcher that he and Lisle picked up Justin
and took him to the desert. Lopez stopped the car, and Lisle and Justin got out and went to the
back of the car, whereupon Lopez observed Lisle shoot Justin. Lopez was able to witness this
incident by looking at the rear-view mirror.
On October 22, 1994, Lisle, Melcher, and Evans were involved in the murder of Kip
Logan (Logan). Lisle was eventually convicted of first degree murder and sentenced to
death.
__________

2
Prince was a man in his late forties who provided food, drugs, money, and a place to stay for teenagers and
young adults in the neighborhood.
113 Nev. 679, 688 (1997) Lisle v. State
death.
3
Melcher and Evans eventually agreed to a plea bargain for their participation in
Logan's death in exchange for testifying against Lisle for the killing of both Logan and Justin.
In addition, Prince plea bargained the August 25, 1994 drug charges pending against him in
exchange for testifying at both murder trials.
In early 1995, while Melcher and Lisle were incarcerated together because of the Logan
murder, Lisle told Melcher that he looked Justin in the eyes before he killed him and that he
got a thrill from it.
In July 1995, Lisle and Lopez were arrested for Justin's murder, and on July 28, 1995, an
information was filed charging Lisle and Lopez each with murder with use of a deadly
weapon and conspiracy to commit murder. In addition, Lisle was charged with being an
ex-felon in possession of a firearm.
Trial began on April 9, 1996, and concluded on April 18, 1996, resulting in verdicts of
first degree murder with use of a deadly weapon and conspiracy to commit murder for both
Lisle and Lopez. Lisle was also found guilty of being an ex-felon in possession of a firearm.
The penalty hearing began April 22, 1996, and concluded on April 25, 1996, resulting in a
sentence of death for Lisle and a sentence of life in prison with the possibility of parole for
Lopez.
On June 4, 1996, both appellants were formally sentenced. On June 6 and 7, 1996, Lopez
and Lisle respectively filed their notices of appeal.
DISCUSSION
LOPEZ
The district court did not err in denying Lopez's motion to sever trials from Lisle
[Headnote 1]
On December 20, 1995, Lopez filed a motion to sever the defendants' trials. The district court denied the motion on March 21, 1995.
Lopez contends that the district court erred.
[Headnotes 2, 3]
Initially, we note that joinder of defendants is within the discretion of the trial court and its decision will not be reversed absent an
abuse of discretion. Jones v. State, 111 Nev. 848, 853, 899 P.2d 544, 547 (1995); NRS 174.165(1). While making this decision, a court
must consider not only the possible prejudice to the defendant but also the possible prejudice to the Government
resulting from two time-consuming, expensive and duplicitous trials."
__________

3
Lisle was apparently sitting in the passenger's seat of a van while Melcher was driving it on the freeway. Evans was sitting in the back
seat behind Lisle. Lisle was making gang hand signals and yelling at the cars that passed them on the right side. Logan was a driver of a car
next to them, who started to laugh at Lisle. Lisle pulled out a gun and shot Logan, killing him.
113 Nev. 679, 689 (1997) Lisle v. State
to the defendant but also the possible prejudice to the Government resulting from two
time-consuming, expensive and duplicitous trials. United States v. Andreadis, 238 F. Supp.
800, 802 (E.D.N.Y. 1965).
[Headnotes 4, 5]
Any possible prejudice may be cured by providing an adequate jury instruction to prevent the jury from associating evidence
admissible for one defendant with the other defendant. Id. Therefore, the ultimate issue is whether the jury can reasonably be expected to
compartmentalize the evidence as it relates to separate defendants. Jones, 111 Nev. at 854, 899 P.2d at 547. The jury is expected to follow
the instructions in limiting evidence for each defendant. Spencer v. Texas, 385 U.S. 554, 562 (1967).
In the present case, when any evidence was presented against Lisle, which was not admissible against Lopez, the judge instructed the
jury as such.
4
[Headnote 6]
Even with these principles in mind, a defendant is entitled to a separate trial if he presents a sufficient showing of facts demonstrating
that substantial prejudice would result in a joint trial. Amen v. State, 106 Nev. 749, 755, 801 P.2d 1354, 1358 (1990).
In the present case, Lopez alleges that he was sufficiently prejudiced because the evidence presented against Lisle was so
overwhelming that a spillover effect occurred. The spillover' or rub-off' theory involves the question of whether a jury's unfavorable
impression of [one] defendant against whom the evidence is properly admitted will influence the way the jurors view the other defendant.
State v. Rendon, 715 P.2d 777, 782 (Ariz. App. 1986). Lopez alleges that because Lisle was adorned with various visible tattoos, was
involved in a drug transaction, and the evidence against Lisle in this trial was so substantial, Lopez was found guilty based on his
association with Lisle.
[Headnotes 7-9]
Severance of defendants will not be granted if based on guilt by association alone. United States v. Boffa, 513 F. Supp. 444, 487 (D.
Del. 1980). Merely having a better chance at acquittal if the defendants are tried at separate trials is not sufficient to establish
prejudice.
__________

4
In addition, the court provided jury instruction 22:
The information names two (2) defendants who are on trial together. In reaching a verdict, however, you must bear in mind
that guilt is individual. Your verdict as to each defendant must be determined separately, without regard to the guilt or innocence
of anyone else.
In addition, some of the evidence in this case was limited to one defendant. Any evidence admitted solely against one
defendant may be considered only as against that defendant and may not, in any respect, enter into your deliberations on any other
defendant.
113 Nev. 679, 690 (1997) Lisle v. State
establish prejudice. United States v. Baker, 10 F.3d 1374, 1388 (9th Cir. 1993), cert. denied,
513 U.S. 934 (1994). In addition, a defendant is not entitled to a severance merely because
the evidence admissible against a co-defendant is more damaging than that admissible against
the moving party. Id.
We conclude that Lopez's argument amounts to nothing more than that he would have had
a better chance at acquittal if he and Lisle had separate trials. In addition, the district court
gave adequate instructions to the jury not to consider the evidence against Lisle when
deciding the verdict for Lopez. Accordingly, we find that the district court did not abuse its
discretion by denying Lopez's motion to sever.
Lopez may not challenge the district court's denial of Lisle's motion for mistrial
During the trial, Lisle moved for a mistrial which was denied.
5
Lopez did not join in this
mistrial nor raise any objections at trial regarding the circumstances leading to this motion.
Nevertheless, Lopez argues that he was prejudiced simply because he was associated with
Lisle.
We need not address this issue because Lopez did not raise this issue at trial. McCullough
v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983).
The district court did not err by admitting the hearsay statements Justin made to Kurtz
[Headnote 10]
Kurtz testified that on August 22, 1994, at 2:30 a.m., he spoke with Justin on the phone. Justin said he was going out the door to get
Kurtz some drugs and that he was going out with a couple of people Justin referred to as Vatos to get drugs.
6
Justin further told Kurtz
that Vatos were there right now. Justin assured Kurtz that he would be back in fifteen minutes after completing the deal. Over objection,
the district court admitted this hearsay testimony based on the present sense impression exception and the state of mind exception. Lopez
contends that this was error. Initially, we note that the statements are highly relevant to prove Justin was with Lisle and Lopez at the time he
was murdered.
Present sense impression exception
NRS 51.085 states: A statement describing or explaining an event or condition made while the declarant was perceiving the event
or condition, or immediately thereafter, is not inadmissible under the hearsay rule."
__________

5
The circumstances of this motion for mistrial and its merits will be discussed below.

6
Lisle and Lopez were Vatos.
113 Nev. 679, 691 (1997) Lisle v. State
event or condition, or immediately thereafter, is not inadmissible under the hearsay rule.
Lopez alleges that [n]o evidence existed [to] show that [Justin] was describing events as
they happened or as he had observed them happening. We conclude that Lopez's argument is
untenable because Kurtz testified that Justin stated that Vatos were present at the exact
moment that Justin was telling Kurtz that they were present. This is precisely what the present
sense impression exception in NRS 51.085 encompasses.
State of mind exception
NRS 51.105(1) states: A statement of the declarant's then existing state of mind, emotion,
sensation or physical condition, such as intent . . . is not inadmissible under the hearsay rule.
(Emphasis added.)
[Headnote 11]
The Hillmon
7
doctrine is a well-settled rule of evidence which provides that
when the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may
be shown. From that intention, the trier of fact may draw the inference that the person carried out his intention and performed the
act. Within this conceptual framework, hearsay evidence of statements by the person which tend to show his intention is deemed
admissible under the state of mind exception.
United States v. Pheaster, 544 F.2d 353, 376 (9th Cir. 1976), cert. denied, 429 U.S. 1099 (1977).
In the instant matter, Justin told Kurtz his intent to go out with Vatos. Pursuant to Hillmon and NRS 51.105(1), the district court did
not err by allowing Justin's statement of intent to be admissible as direct evidence that he did, indeed, carry out that intent and go out with
Vatos.
Sufficient evidence exists to support Lopez's conviction for first degree murder
[Headnote 12]
[T]he test for sufficiency [of the evidence] upon appellate review is not whether this court is convinced of the defendant's guilt beyond
a reasonable doubt, but whether the jury, acting reasonably, could be convinced to that certitude by evidence it had a right to accept.
Edwards v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974). Additionally, this court has held that circumstantial evidence
alone may sustain a conviction.
__________

7
Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892).
113 Nev. 679, 692 (1997) Lisle v. State
circumstantial evidence alone may sustain a conviction. Deveroux v. State, 96 Nev. 388, 391,
610 P.2d 722, 724 (1980).
[Headnote 13]
Evidence admissible against Lopez regarding the first degree murder charge includes: (1) Lopez's statement in the presence of Evans,
We did it clean and we did it good. Nobody is going to find out that we did it. (Emphasis added); (2) Lopez's statement to Melcher that he
and Lisle picked up Justin and took him to the desert and that Lopez observed Lisle shoot Justin; (3) Justin's statement to Kurtz that he was
going out with Vatos, also known as Lisle and Lopez, shortly before he was killed; (4) Lopez left Vanella's house with Lisle at 2 a.m. on
August 22, 1994, and returned with Lisle at about 4 a.m., which was the two-hour period within which Justin was killed; (5) Lopez
accompanied Lisle to sell the gun; (6) Justin's body was found in a desert area that Lopez was known to frequent; and (7) Lopez wore
different tennis shoes after Justin was killed than he did before Justin's death, and Prince assisted Lopez in disposing of tennis shoes the day
after the murder.
Accordingly, we conclude that the evidence is sufficient for any rational trier of fact [to find] the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
LISLE
The district court did not err in denying Lisle's motion to sever trials from Lopez
[Headnote 14]
On December 29, 1995, Lisle filed a motion to sever his trial from that of Lopez. He based this motion on the statement that Lopez
made to Melcher, incriminating Lisle; specifically, Lopez told Melcher that he observed Lisle shoot Justin at the rear of the car. On March
21, 1996, the district court filed its order denying Lisle's motion. However, the court ordered that when Melcher testified as to Lopez's
statement, the statement must be redacted so as to exclude any reference to Lisle. Accordingly, when Melcher testified, he stated that Lopez
observed the other guy shoot Justin.
Lisle cites Bruton v. United States, 391 U.S. 123 (1968), for the proposition that Lisle's constitutional right to cross-examine the
witness was violated when Lopez's hearsay statements, which inculpate Lisle, were admitted. However, Lisle fails to cite Richardson v.
March, 481 U.S. 200 (1987). Richardson held that if a statement is redacted to exclude defendant's existence and the statement is not
incriminating on its face, but only when linked with other evidence introduced later at trial, then a limiting instruction
will cure any prejudice.
113 Nev. 679, 693 (1997) Lisle v. State
with other evidence introduced later at trial, then a limiting instruction will cure any
prejudice. Id. at 211. Therefore, a redacted version of the statement may be admitted. Id.
The United States Court of Appeals for the Ninth Circuit extended this concept to allow
defendant's name to be replaced by a neutral word, such as individual. Therefore, although
the statement referred to defendant's existence, the court allowed it to be admitted as long as
his name was not used. United States v. Enrique-Estrada, 999 F.2d 1355, 1359 (9th Cir.
1993).
Here, Melcher's testimony that Lopez observed the other guy shoot Justin is not
incriminating on its face because it does not, in and of itself, reference Lisle. Only when other
evidence introduced at trial linked that statement to Lisle did it incriminate him. Under
Richardson and Enrique-Estrada, this is not a violation of Lisle's constitutional rights.
Lisle also cites Stevens v. State, 97 Nev. 443, 444, 634 P.2d 662, 663 (1981), which
reversed a co-defendant's conviction because [i]t appears likely that the jury read the
appellant's name into the blanks in her co-defendant's statement. This case is distinguishable
because no direct evidence, only circumstantial evidence, was introduced of Stevens'
involvement in the crime; therefore, her co-defendant's statement, although redacted, was
extremely damaging. In the instant matter, regardless of Lopez's statement, four other
witnesses heard Lisle confess to killing Justin.
8
See id. at 445, 634 P.2d at 664 (holding
harmless error analysis applies).
Accordingly, we conclude that the district court did not abuse its discretion in denying
Lisle's motion to sever.
The district court did not err by denying Lisle's motion to sever his ex-felon in possession of a
firearm count from the murder and conspiracy counts
[Headnote 15]
On December 29, 1995, Lisle filed his motion to sever his ex-felon in possession of a firearm count from the murder and conspiracy
counts. Lisle alleged that submitting evidence of his prior felony, conspiracy to sell a controlled substance, as an element of the firearm
charge would unduly prejudice the jury against him with respect to the murder and conspiracy charges. On March 21, 1996, the district
court denied this motion. Lisle asserts that the district court erred because joinder of the counts was prejudicial.
We have held that joinder decisions are within the district court's discretion and that this court will not reverse that decision
absent an abuse of discretion. Robins v. State, 106 Nev. 611,
__________

8
These witnesses are Evans, Prince, Vanella's mother, and Melcher.
113 Nev. 679, 694 (1997) Lisle v. State
619, 798 F.2d 558, 563 (1990), cert. denied, 499 U.S. 970 (1991). The Ninth Circuit held that
the test is whether joinder was so prejudicial that the trial judge was compelled to exercise
his discretion to sever. United States v. Lewis, 787 F.2d 1318, 1321 (9th Cir. 1986),
amended by 798 F.2d 1250 (1986). In addition, the defendant has the burden to prove that the
prejudice was of such magnitude that the defendant's right to a fair trial was abridged. Id.
In United States v. Jiminez, 983 F.2d 1020, 1022 (11th Cir. 1993), cert. denied, 510 U.S.
925 (1993), a charge of being an ex-felon in possession of a firearm was joined with a count
charging conspiracy to distribute a controlled substance. Defendant alleged that he was
unduly prejudiced by admission of his prior felony because that previous conviction was
unrelated to the conspiracy charge. The court held that the lower court did not abuse its
discretion by denying defendant's motion to sever counts because the prior felony conviction
was not unduly emphasized. Id. at 1023.
In the present case, the prior felony conviction was not emphasized. It was merely read in a
jury instruction naming the charges against Lisle.
We conclude, therefore, that manifest prejudice did not result from the information that
Lisle had previously been convicted of conspiracy to sell a controlled substance. It is doubtful
that the jury convicted Lisle of murdering Justin based solely on the fact that Lisle had
previous dealings with narcotics. In addition, admissible evidence was presented that Lisle
participated in a drug transaction with Sullivan. Therefore, even if the charges had been
severed and the jury remained unaware of Lisle's prior felony conviction, the jury would still
have been mindful of Lisle's involvement with drug sales.
Accordingly, the district court did not abuse its discretion in denying Lisle's motion to
sever counts.
The district court did not err in denying Lisle's motion to compel discovery of the
prosecutor's written notes from a July 12, 1995 interview with Melcher
Melcher was involved in the Logan murder for which Lisle was eventually convicted.
Prior to the Logan trial, Melcher, through his attorney, arranged a plea bargain with
prosecutor Dan Seaton (Seaton), who prosecuted both the Logan trial and the present one.
Prior to the Logan trial, Melcher, his attorney, and Seaton met on July 12, 1995, to discuss
information Melcher had regarding statements Lisle allegedly made to Melcher about both
homicides. Seaton took notes of the interchange in anticipation of the upcoming Logan trial,
as well as the instant trial.
113 Nev. 679, 695 (1997) Lisle v. State
On July 24, 1995, Melcher gave a statement to the police reiterating the same information
he provided Seaton. In addition, on November 1, 1995, Melcher met with Lisle's attorney and
gave the same information as to what Lisle previously told Melcher about both murders.
After the October 1995 Logan trial, Lisle's attorney filed a post-trial motion which the
State opposed.
9
In that opposition, the State allegedly referred to the fact that Melcher's
statements to Seaton regarding what Lisle had previously told Melcher were consistent with
what Melcher had told the police, with what Melcher had testified at the present case's
preliminary hearing, and with what Melcher had testified at the Logan trial.
10
[Headnote 16]
On December 29, 1995, with respect to the current case, Lisle filed a motion to compel discovery of Seaton's notes of the July 12, 1995
interview with Melcher. On March 21, 1996, the district court denied the motion. Lisle now appeals, arguing that the notes were not
attorney work-product and that even if they were, Seaton waived the work-product protection.
[Headnote 17]
Initially, we note that resolution of discovery issues are normally within the trial court's discretion. People v. District Court of El Paso
County, 790 P.2d 332, 336 (Colo. 1990).
At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can
analyze and prepare his client's case. United States v. Nobles, 422 U.S. 225, 238 (1975) (extending the work-product privilege to criminal
cases).
Lisle argues that these notes are not work-product because they do not contain theories, opinions, or conclusions of the attorney; rather,
they contain only factual information. See State v. Nunez, 534 P.2d 270, 271 (Ariz. App. 1975) (holding that the district attorney's notes are
not work-product because they did not contain theories, opinions, or conclusions as the state statute defining work-product requires).
__________

9
The record for the current case does not reveal the nature of this motion.

10
Apparently, the State's opposition did not specifically refer to Seaton's notes; however, Lisle asserts in the current appeal that the
contents of the notes were alleged to support the District Attorney's argument that Mr. Melcher's statements were consistent. By using the
notes in the litigation the District Attorney has opened them up for discovery . . . .
We note that Lisle has not referenced the record on appeal for this allegation nor has he specified how Seaton used the notes in the
current litigation. We further note that at trial for Justin's murder, Seaton did not use his notes to bolster Melcher's testimony. Assuming
that the State did mention these notes, it was in regard to the Logan case, not this one. Therefore, Lisle's argument is misplaced and without
merit.
113 Nev. 679, 696 (1997) Lisle v. State
However, Nevada's relevant statute, NRS 174.245(1), does not limit non-discoverable
documents to only theories, conclusions, or opinions. Rather, NRS 174.245(1) is broader,
stating, in part, [T]his subsection does not authorize the discovery or inspection of reports,
memoranda or other internal state documents made by state agents in connection with the
investigation or prosecution of the case, or of statements made by state witnesses or
prospective state witnesses, other than the defendant, to agents of the state. (Emphasis
added.)
Accordingly, we conclude that because Seaton took notes during his interview with
Melcher, they were prepared in anticipation of litigation and are, therefore, attorney
work-product.
[Headnotes 18, 19]
However, the work-product privilege is not absolute and may be waived. Nobles, 422 U.S. at 239.
What constitutes a waiver with regard to work-product materials depend, of course, upon the circumstances. Counsel necessarily
makes use throughout trial of the notes, documents, and other internal material prepared to adequately present his client's case, and
often relies on them in examining witnesses. When so used, there normally is no waiver. But where, as here, counsel attempts to
make a testimonial use of these materials the normal rules of evidence come into play with respect to cross-examination and
production of documents.
Id. at 239 n.14 (emphasis added). In Nobles, the defense attorney elected to present his investigator, whose notes were at issue, as a witness.
Therefore, the Court held that the attorney waived his work-product privilege regarding the matters covered in the investigator's testimony.
Id. at 239.
Here, Lisle alleges that Seaton used his notes for testimonial use and, therefore, waived his work-product protection. However, Lisle
never states what testimonial use Seaton allegedly invoked. See, supra, note 10. Accordingly, we conclude that Seaton did not waive his
work-product privilege. Therefore, the district court did not abuse its discretion by denying Lisle's motion to compel discovery of Seaton's
notes.
The district court did not err in denying Lisle's motion to dismiss Melcher's testimony due to the prosecutor allegedly instructing Melcher
not to talk with Lisle's attorney
[Headnote 20]
In late 1995, Melcher had an appointment with Seaton at the district attorney's office regarding his plea bargain. While Melcher was
waiting in the lobby, a man who did not identify himself to Melcher elicited information from him regarding Logan's and
Justin's murders.
113 Nev. 679, 697 (1997) Lisle v. State
himself to Melcher elicited information from him regarding Logan's and Justin's murders.
Melcher thought the man was from the district attorney's office because that was who he was
there to meet. However, the man turned out to be an investigator for the public defender's
office.
On November 1, 1995, Melcher met with Lisle's attorney at Seaton's office. Seaton stated
to Lisle's attorney,
Tom Gibson [the investigator] was over here and I learned through [Melcher] that Tom
started talking to him and didn't reintroduce himself and started asking questions and
[Melcher] told me that he was under the impression he was one of the guys who worked
up here in the office, just didn't recognize him from the [Logan] trial. And that isthat
happens many times with your office, most often with your investigators and that is the
reason that you're over here talking to him. You can talk to him in my office while I'm here
to protect him or you can talk to him under oath in court. But I've instructed him not to talk
to you under any other circumstances.
Lisle's attorney then turned to Melcher and asked him if Melcher would talk to him in his
office without Seaton present. Melcher stated that he would, as long as his own attorney said
it would be acceptable.
Melcher later testified that Lisle's attorney never contacted him for another interview at his
office. However, Lisle's attorney alleges that he attempted to contact Melcher several times
and his messages were never returned. Therefore, on December 29, 1995, Lisle filed a motion
to dismiss or, in the alternative, to bar Melcher's testimony on the grounds that Seaton
impermissibly instructed Melcher not to speak with Lisle's attorney. On March 21, 1996, the
court filed its order denying the motion. The judge stated that the State did not interfere with
defense counsel's right to interview witnesses.
Lisle asserts that Melcher's testimony should have been dismissed or barred, and since it
was not, Lisle's convictions must be reversed.
11
He cites Davis v. State, 110 Nev. 1107, 1120,
881 P.2d 657, 665 (1994), which holds that when a prosecuting attorney suggests to a witness
not to talk to defendant, this interferes with defendant's right to access witnesses and his
efforts to prepare a defense.
__________

11
The State responds to Lisle's assertion of misconduct by stating that (1) Seaton was merely protecting
Melcher from the defense's deception by the investigator; (2) Seaton did not instruct Melcher not to talk to the
defense at all, only that it should be done in Seaton's office; (3) Lisle's attorney freely interviewed Melcher on
November 1, 1995, without interference by Seaton; and (4) Melcher relied on the advice of his own attorney, not
Seaton, as to whether Melcher should speak with the defense attorney at his office.
113 Nev. 679, 698 (1997) Lisle v. State
efforts to prepare a defense. We concluded that this amounted to incurable prejudice, forcing
us to vacate the conviction and dismiss the case with prejudice. Id.
Davis relied on State v. York, 632 P.2d 1261 (Or. 1981). York held that although it is
improper for a prosecutor to instruct witnesses to refrain from talking with the defense, no
prejudice occurred there. The witness at issue stated that he would not have talked to defense
counsel regardless of the prosecutor's instructions. Therefore, the court held that the
conviction need not be overturned on this basis. Id.
In the instant matter, Melcher told Lisle's attorney that he would be willing to meet with
him. In addition, Melcher testified at trial that he never refused to speak with the defense; he
stated, however, that the defense never attempted to contact him for another meeting. The
trial judge believed Melcher's testimony over the statements by Lisle's counsel that he did
attempt to contact Melcher to no avail.
Accordingly, we conclude that even if it was improper for Seaton to instruct Melcher not
to speak with Lisle's attorney at his office, no prejudice occurred because Melcher would
have spoken with him anyway (assuming his own attorney would have allowed it). The only
reason Melcher did not attend such a meeting was because Lisle's attorney allegedly never
contacted him. Therefore, since the judge believed this version of events, we conclude that
Lisle's allegation is without merit.
The district court did not err by admitting Sullivan's prior sworn testimony from the Logan
trial penalty phase
[Headnote 21]
At the trial for the instant matter, Sullivan was unavailable as a witness. Therefore, the district court admitted Sullivan's prior sworn
testimony from the Logan trial penalty hearing. Lisle objected to its admission. This testimony explained the August 17, 1994 drug
transaction between Lisle and Sullivan. Lisle's counsel had asked only one question on cross-examination. Lisle argues that the issues at
each proceeding were not substantially the same and that the motives for cross-examining were different.
NRS 51.325 states:
Testimony given as a witness at another hearing of the same or a different proceeding . . . is not inadmissible under the
hearsay rule if:
1. The declarant is unavailable as a witness; and
2. If the proceeding was different, the party against whom the former testimony is offered was a party . . . and the issues are
substantially the same.
113 Nev. 679, 699 (1997) Lisle v. State
In State v. Massengill, 657 P.2d 139, 141 (N.M. 1983), appellant contended that former
testimony from the preliminary hearing should not have been admitted because the motive to
cross-examine was different. A preliminary hearing determines probable cause, while the trial
determines guilt beyond a reasonable doubt. The court disagreed with appellant's argument
and held that [t]he issue is whether defendant had an opportunity and a similar motive to
develop testimony. . . . The fact that defendant did not choose to further cross-examine does
not go to motive. This was a matter of tactics. Id.
Here, Sullivan's testimony at the penalty hearing was to show Lisle's bad character of
participating in the drug deal. At the present trial, the purpose of the testimony was to show
that Lisle participated in the drug deal. Lisle's motive to cross-examine was similar in that at
the penalty hearing, Lisle was trying to avoid the death penalty, while at the current trial,
Lisle was trying to avoid a murder conviction which could result in receiving the death
penalty. Lisle's life was literally in the balance at both proceedings. In addition, Lisle's
attorney had a full, complete, and unrestricted opportunity to cross-examine Sullivan, and he
has not stated how he would have further impeached Sullivan's testimony. Accordingly, we
conclude that the district court did not err by admitting this testimony.
The district court did not err by denying Lisle's motion for a mistrial when the prosecutor's
examination of Melcher, Evans, and Prince may have indicated that Lisle was the other
guy involved in the Logan murder
[Headnote 22]
At the trial, the parties and the lower court took great care not to reveal that Lisle was involved in the Logan murder. However, the
existence of this murder was relevant to impeach Evans, Melcher, and Prince because their plea bargains each contained agreements to
testify at both trials. They each testified as to their knowledge and/or involvement in the Logan murder. All were careful not to mention
Lisle's name in their testimony. They each referred to him as the other guy. However, despite this, it was revealed that this other guy was
an adult white male, who was possibly staying at Prince's house.
Outside the jury's presence, the court chastised the prosecutor and ordered him to cure the potential identification of Lisle by eliciting
testimony from Prince that many adult white males stayed with Prince.
12
Lisle's attorney moved for a mistrial, arguing that it was
obvious that Lisle was Logan's murderer and that the jury's knowledge of this prior bad act substantially
prejudiced him.
__________

12
At oral arguments before this court, Lisle's attorney suggested that the lower court judge suborned perjury by ordering Prince to lie
on the stand regarding how many people lived at his place. We disagree and acknowledge
113 Nev. 679, 700 (1997) Lisle v. State
ing that it was obvious that Lisle was Logan's murderer and that the jury's knowledge of this
prior bad act substantially prejudiced him. The court denied the motion, ruling that Prince's
testimony regarding numerous adult white males cured any problem. Lisle argues that the
district court erred.
[Headnote 23]
Denial of a mistrial is within the sound discretion of the district court, and that ruling will not be reversed unless it was an abuse of
discretion. Lane v. State, 110 Nev. 1156, 1163, 881 P.2d 1358, 1363 (1994), cert. dismissed, 514 U.S. 1058, 115 S. Ct. 1444 (1995).
We conclude that the district court did not abuse its discretion in denying the mistrial because it ordered a curative remedy to the
potential problem. Therefore, any adult white male who was staying with Prince could have been involved in the Logan murder. No other
evidence directly linked Lisle with that case. Accordingly, Lisle's argument is without merit.
The district court properly denied Lisle's request to call Melcher's attorney to the stand due to the attorney-client privilege
[Headnote 24]
In 1995, after Lisle allegedly confessed to Melcher that he killed Justin, Melcher supposedly discussed this conversation with his
attorney for the purpose of pursuing a plea bargain for the charges against him in the Logan murder. At the trial for Justin's murder, Lisle's
attorney attempted to impeach Melcher's testimony regarding what Lisle had stated to him.
Q. When this alleged conversation between you and [Lisle] occurred at the detention center, Laura [FitzSimmons] was still
your attorney at that time?
A. Yes.
Q. But you didn't tell her, did you?
A. No.
Q. In fact, didn't she tell you that the District Attorney was interested in the [Justin] Lusch homicide?
. . . .
A. Yes.
Q. And did she ask you if [Lisle] had made any statements to you?
A. I don't remember.
Q. But didn't you tell her that [Lisle] had denied being involved in the homicide?
__________
that creating fictions for the jury is often necessary to protect a defendant's rights, as was done here. Additionally, evidence existed in the
record that Prince's testimony was truthful, and therefore, no lies or fictions were conveyed to the jury.
113 Nev. 679, 701 (1997) Lisle v. State
A. To be honest with you, I can't remember the conversation that me and Laura had.
Q. You may have said that?
A. I may have.
Lisle's attorney moved the court to call Melcher's attorney to the stand regarding whether
he made those statements to her because Melcher could not remember. Defense counsel
argued that Melcher waived his attorney-client privilege by testifying as to his conversation
with his attorney. The court stated that if Melcher did not expressly waive his attorney-client
privilege, then his attorney may not be called as a witness.
[Headnote 25]
There is no dispute that the conversations fall within the attorney-client privilege; the question is whether Melcher waived his privilege.
If a client voluntarily reveals portions of the communications with the attorney, those revelations amount to a waiver of the attorney-client
privilege as to the remainder of the conversation or communication about the same subject matter. In re Grand Jury Jan. 246, 651 N.E.2d
696, 700 (Ill. App. 1995), appeal denied, 657 N.E.2d 622 (Ill. 1995); see also Wardleigh v. District Court, 111 Nev. 345, 354, 891 P.2d
1180, 1186 (1995).
[Headnotes 26, 27]
However, mere disclosure of the fact that a communication between client and attorney had occurred does not amount to disclosure of
the specific content of that communication, and as such does not necessarily constitute a waiver of the privilege. Mitchell v. Superior
Court, 691 P.2d 642, 647 (Cal. 1984). Rather, the test for waiver is whether [the witness's] answers were wide enough in scope and deep
enough in substance to constitute a significant part of the communication.' Id. at 648 (quoting Travelers Ins. Co. v. Superior Court, 191
Cal. Rptr. 871 (Ct. App. 1983)) (emphasis deleted). Merely acknowledging the fact that the witness discussed a subject with his attorney
does not waive the privilege. Id.
We conclude that Melcher revealed only that he had discussed the subject with his attorney, but did not reveal the substance of their
conversation. Specifically, Melcher could not even remember the substance of what he told her. Accordingly, using the Mitchell test, we
conclude that Melcher did not waive his privilege. Therefore, the lower court's refusal to allow his attorney to testify was proper.
Lisle did not properly preserve the issue of whether the prosecutor committed certain misconduct during his closing arguments of the guilt
phase
During closing arguments, the prosecutor used the terms we and "us" on several occasions.
113 Nev. 679, 702 (1997) Lisle v. State
and us on several occasions. However, defense counsel did not object. Therefore, this issue
was not properly preserved on appeal, and this court need not consider it. McCullough, 99
Nev. at 74, 657 P.2d at 1158.
The district court did not commit reversible error by striking Detective Darlene Falvey's
testimony as irrelevant
[Headnote 28]
At the penalty hearing, the prosecutor introduced Lisle's judgment of conviction for Logan's murder. In addition, Evans testified as to
the facts and circumstances of that murder.
13
For impeachment, Lisle's attorney called Detective Darlene Falvey (Falvey) as a witness to
testify as to prior statements by Evans that Lisle was not the shooter in Logan's death. The prosecutor objected to this testimony and moved
that it be stricken because Lisle's attorney was attempting to relitigate the facts of the prior case. The defense disputed the motion, alleging
that the testimony went toward Lisle's character and that it impeached Evans' testimony. The district court struck the testimony as
irrelevant. Lisle contends that the district court erred and alleges that Evans' credibility and reliability went unchallenged.
[Headnote 29]
The district court has the discretion to admit evidence in the penalty phase of a trial and will not be overturned absent an abuse of that
discretion. Pellegrini v. State, 104 Nev. 625, 631, 764 P.2d 484, 488 (1988).
NRS 48.025(2) prohibits irrelevant evidence from being admitted. Relevant evidence means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the
evidence. NRS 48.015 (emphasis added). The district court was correct in its ruling that Falvey's testimony was not relevant to Lisle's
character.
[Headnote 30]
Furthermore, citing Ransey v. State, 100 Nev. 277, 279, 680 P.2d 596, 597 (1984), Lisle argues that Falvey's testimony showed bias on
the part of Evans and bias is always relevant. We conclude that the testimony did not show any bias by Evans.
14
Rather, the testimony
proved only that Evans had made prior inconsistent statements with regard to who the shooter was.
__________

13
At the Logan trial, conflicting testimony was presented as to who actually fired the shot killing Logan.

14
In any event, Ransey held that bias may be elicited through cross-examination. Lisle's attorney did cross-examine Evans in an attempt
to impeach him. Ransey, 100 Nev. at 279, 680 P.2d at 597. Therefore, contrary to Lisle's assertion, Evans' credibility and reliability were
challenged.
113 Nev. 679, 703 (1997) Lisle v. State
inconsistent statements with regard to who the shooter was. While we conclude that the
testimony should have been admitted as a prior inconsistent statement, the error was harmless
beyond a reasonable doubt because the jury in the Logan case resolved that factual issue. The
testimony would have been irrelevant had the State restricted its proof to the existence and
nature of the conviction. Once Evans actually testified, the right to cross-examine included
the right to bring out the prior inconsistent statements. This notwithstanding, the evidence in
support of the claimed aggravating circumstances was so overwhelming that reversal of the
penalty in this case is unwarranted.
The district court did not err by redacting certain statements to exclude references to Lopez
[Headnote 31]
Lisle presented the former sworn testimony of Janice Sykes (Sykes), Lisle's juvenile probation officer when he was seventeen years
old, six years prior. Her testimony described Lisle's involvement with the criminal justice system when he was a juvenile. The district court
redacted certain portions of the testimony relating to Lisle's relationship with Lopez. Specifically omitted was testimony that Lisle was
ordered, as a ward of the court, not to associate with Lopez. These statements were redacted because they may have prejudiced Lopez,
whose sentence was also at issue in the penalty hearing.
One of the mitigating factors Lisle presented was his vulnerability to the influence of others. The jury did not find that this mitigator
existed. Lisle contends on appeal that redacting the references to Lopez precluded him from presenting mitigating evidence. See Harris v.
State, 106 Nev. 667, 671, 799 P.2d 1104, 1106 (1990) (The sentencing body may not be precluded from considering any relevant
mitigating evidence.).
We conclude that Lisle was not precluded from presenting evidence of his vulnerability to the influence of others. For example, his
mother testified that Lisle started having problems after he became friends with Lopez and that she did not approve of their friendship.
Moreover, we conclude that Sykes' testimony is irrelevant to whether Lisle was currently vulnerable to Lopez because her acquaintance
with Lisle occurred six years ago. Further, her testimony does not state that Lopez was a bad influence on Lisle; rather, it could easily be
interpreted as Lisle being a bad influence on Lopez. This is especially noteworthy in light of testimony during the guilt phase that Lopez
was very quiet and often not present for conversations in which Lisle participated regarding obtaining drugs or killing Justin. Accordingly,
Lisle's argument lacks merit.
113 Nev. 679, 704 (1997) Lisle v. State
The district court properly refused Lisle's proposed jury instruction 8A
[Headnote 32]
Lisle's attorney proposed the following jury instruction:
Evidence has been presented concerning other arrests, convictions, or other circumstances. This evidence can be considered
by you for character purposes only.
You are instructed that this evidence can only be considered by you after you have determined whether or not the state has
proved an aggravating circumstance or circumstances beyond a reasonable doubt, whether mitigating circumstances have been
shown to exist and whether or not mitigating circumstances have been shown to outweigh one or more of the aggravating
circumstances.
As you have been instructed in instruction #7, death eligibility can only be considered based on the weighing of mitigating
and aggravating circumstances. This character evidence cannot be considered in determining the death eligibility of the Defendant.
Only after you have made that determination may you then consider this evidence in arriving at a penalty.
The lower court denied this instruction because the judge believed that it misstated the law. Specifically, the judge stated that even if
the jury determined that Lisle was not death eligible, it may still consider character evidence in deciding whether to impose a sentence of
life with or without the possibility of parole.
[Headnote 33]
[T]he instruction must correctly state the law. . . . [I]f a proffered instruction misstates the law or is adequately covered by other
instructions, it need not be given. Barron v. State, 105 Nev. 767, 773, 783 P.2d 444, 448 (1989).
Lisle has offered no authority to support his interpretation that character evidence cannot be considered until after the jury determines
he is death eligible. Whereas, Pellegrini, 104 Nev. at 630, 764 P.2d at 488, held that defendant's character is relevant to the jury's
determination of the appropriate sentence for a capital crime; Pellegrini does not limit the relevance of character evidence to only after the
jury decides the defendant is death eligible. Rather, it is relevant to determine the sentence. Therefore, we conclude that proposed jury
instruction 8A misstates when character evidence may be used in the penalty phase.
Moreover, instruction 7 informs the jury that it must determine whether there are aggravating circumstances and mitigating factors. It
further instructs the jury to weigh the aggravators with the mitigators to determine if the defendant is death eligible.
113 Nev. 679, 705 (1997) Lisle v. State
mitigators to determine if the defendant is death eligible. Accordingly, the remainder of
instruction 8A is adequately covered by instruction 7. Therefore, the district court did not err
by disallowing instruction 8A.
The prosecutor did not commit reversible misconduct during closing arguments of the
penalty phase
When the prosecutor used the terms we and us
During closing arguments, the prosecutor used the terms we and us on several
occasions. However, as in the guilt phase, defense counsel did not object. Therefore, we need
not consider this issue on appeal. McCullough, 99 Nev. at 74, 657 P.2d at 1158.
When the prosecutor told the jury to send a message
[Headnote 34]
During closing arguments, the prosecutor stated,
Your verdicts here today do a lot of things, one of which is to send a messagea message to society and it's incumbent upon you
to think about what that message is going to be. Let me ask you this: Is your message going to be that if you deal drugs, if you
carry guns, if you belong to gangs, if you conspire to kill and indeed you do go out and kill that we're going to give you life with
the possibility of parole and one day let you perhaps be walking the streets a free person at the same time the Lusch[es] are visiting
their son's grave? Is that the message that you want to send? . . . . Or might you prefer to send a message to the gang-bangers and
the dope dealers and the gun carriers and the killers to be that you're not going to tolerate this type of action in our society.
(Emphasis added.)
Lisle's attorney made an objection, the judge sustained it, and admonished the jury to disregard those statements. Lisle contends,
nonetheless, on appeal that the statements were patently improper.
This court held, [T]he relevant inquiry is whether the comments were so unfair that they deprived the defendant of due process.
Witter v. State, 112 Nev. 908, 923, 921 P.2d 886, 897 (1996), petition for cert. filed, (March 13, 1997). In Witter, during the penalty phase
closing argument, the prosecutor commented,
It is important to send a message to people in the community and to would[-]be murderers that there are lines that you do not
cross in Nevada; that there is some conduct that simply will not be tolerated and will be met with a very, very
severe penalty.
113 Nev. 679, 706 (1997) Lisle v. State
will not be tolerated and will be met with a very, very severe penalty.
. . . .
What message does this punishment send today? Will we tell would[-]be murderers,
will we tell this community, that you can kill a man, thrust a knife into his skull 16
times, one time through his skull, 16 times into his body, that you can perpetrate
unspeakable, despicable deeds upon his wife in her own car and that you, the husband,
can drive upon that crime scene and witness your wife bleeding to death, struggling for
your life, what message does it send to say the man that perpetrates those crimes can
live his life in prison, can write his family, see his family, speak to his family?
Id. at 924-25, 921 P.2d at 897 (emphasis added). This court held that in a penalty hearing the
comments properly focus on what would be an appropriate punishment under the facts and
circumstances of this case, as well as what would be necessary to deter others from
committing such a brutal act. These are entirely proper areas for comment. Id. at 926, 921
P.2d at 898. As the comments in Witter are substantially similar to the ones in the present
case, we conclude that Lisle's argument is without merit.
When the prosecutor commented that Lisle did not present psychiatric evidence that his
childhood abuse contributed to his current behavior
[Headnote 35]
One of the mitigating circumstances that Lisle put forth was his physically and sexually abusive childhood and adolescence. During
closing arguments, the prosecutor commented that the only evidence of this abuse was from Lisle's mother. He further stated, I don't
remember the psychiatrist who came in and said that there was some sort of an interrelationship between whatever acts happened back in
Kevin Lisle's childhood. The court overruled defendant's objection, stating it was the subject of fair comment. The jury did not find Lisle's
abusive childhood as a mitigating factor. Lisle contends on appeal that the prosecutor's comment improperly shifted the burden of proof.
This court held that it is generally improper for a prosecutor to comment on the defendant's failure to call witnesses because that shifts
the burden of proof to the defense. Whitney v. State, 112 Nev. 499, 502, 915 P.2d 881, 882 (1996). In Whitney, the prosecutor made
numerous remarks about the defense failing to produce particular fact witnesses. Here, the prosecutor made only a few general remarks
about the lack of expert witnesses, not a specific person.
113 Nev. 679, 707 (1997) Lisle v. State
In People v. Kelly, 800 P.2d 516, 538 (Cal. 1990), cert. denied, 502 U.S. 842 (1991),
during the penalty hearing, the prosecutor commented that the defendant did not present
evidence of his longstanding psychological and social pathologies or that such pathologies
caused his violent nature. The court held that the prosecutor merely pointed out that the
defendant failed to substantiate his claim that the crime he committed was a result of his
psychological problems. Id.
We conclude that, likewise, the prosecutor in the instant matter was merely pointing out
that Lisle did not substantiate his claim of abuse as a mitigator and was contrasting the weight
of evidence. Accordingly, the district court did not err in allowing the comments.
Lisle's death sentence was not improper pursuant to NRS 177.055(2)
[Headnote 36]
In cases in which the death penalty is imposed, this court is statutorily required to consider whether the death sentence was imposed
under the influence of passion, prejudice, or any arbitrary factor and whether the sentence of death is excessive considering both the crime
and the defendant. NRS 177.055(2). We conclude that the death sentence was not imposed under the influence of passion, prejudice, or any
arbitrary factor, nor was it excessive in this case considering the senseless and violent nature of the crime and the defendant.
CONCLUSION
We conclude that none of Lopez's or Lisle's allegations have merit. Therefore, we affirm each appellant's conviction, including Lisle's
sentence of death.
I dissent to the penalty judgment because I believe the trial court erred in overruling Lisle's objection to the prosecution's comment on
Lisle's failure to produce psychiatric testimony in support of his case on mitigating circumstances.
A prosecutor generally may not comment on a defendant's failure to call a witness because such comments tend to shift
impermissibly the burden of proof to the defense. Whitney v. State, 112 Nev. 499, 502, 915 P.2d 881, 882 (1996). This shifting of the
burden of proof is improper because [i]t suggests to the jury that it was the defendant's burden to produce proof by explaining the absence
of witnesses or evidence. This implication is clearly inaccurate.' Ross v. State, 106 Nev. 924, 927, 803 P.2d 1105-06 (1990) (quoting
Barron v. State, 105 Nev. 767, , 7S3 P.2d 444, 451 {19S9)).
113 Nev. 679, 708 (1997) Lisle v. State
778, 783 P.2d 444, 451 (1989)). The jury in this case may very well have inferred from the
challenged comment that a psychiatrist was needed to substantiate the defendant's claims and
that because the defendant did not call a psychiatrist to the stand he had not met his burden.
1
The majority cites People v. Kelly, 800 P.2d 516, 538 (Cal., 1990), cert. denied, 502 U.S.
842 (1991) (Prosecutor sought to disassociate defendant's recent violent behavior from
psychological and social problems he had faced his entire life.). In Kelly, the prosecutor
argued that evidence introduced during the penalty phase did not demonstrate that the
defendant's social and psychological problems caused him to commit murder.
2
This is
distinguishable from the prosecution's comment in the present case on the defendant's failure
to call certain witnesses. There is a significant difference between arguing that the evidence
does not support the defense's claims and arguing that the defense has failed to call a
particular witness or class of witnesses. The former merely questions whether evidence
presented substantiates a defendant's claim; the latter implies that the defendant must call
certain witnesses in order to substantiate his or her claimed position relative to mitigating
circumstances.
During the penalty phase, a defendant has the burden of substantiating mitigating factors
but is not required to present certain kinds of witnesses in support of that position. A
prosecutor's comment on the defendant's failure to call a witness is not permitted if, as here, it
suggests to a jury that the defendant does have a burden of presenting certain witnesses.
__________

1
During the penalty phase, the defendant does have the burden of presenting mitigating evidence. Sonner v.
State, 112 Nev. 1328, 930 P.2d 707 (1996). This, however, does not license a prosecutor to comment in a
manner that would not be permitted in the guilt phase of a trial. A prosecutor is free to comment that evidence
introduced by a defendant does not substantiate mitigating factors just as a prosecutor is allowed to comment
that evidence does not support an affirmative defense; the prosecutor may not, however, imply that the defendant
is required to call, as a necessary part of the defendant's case, a certain witness or type of witness.

2
The majority incorrectly writes that the prosecutor commented that the defendant did not present evidence
of his longstanding psychological and social pathologies or that such pathologies caused his violent nature. The
Kelly defendant presented much evidence of his social and psychological problems, including learning
disabilities, brain atrophy, and a schyzotypal personality. See Kelly, 800 P.2d at 523. Challenged comments
made by the prosecutor did not allege that this evidence had not been presented; instead, they suggested that
these problems were not the cause of the defendant's recent violent behavior.
Similarly, the prosecutor did not comment on a failure to demonstrate that the defendant's problems caused his
violent nature. To the contrary, the prosecution wished to disassociate the defendant's recent violent behavior
from the problems he faced his entire life. To do this, the prosecutor tried to show that the defendant did not
have a violent nature.
113 Nev. 679, 709 (1997) Lisle v. State
have a burden of presenting certain witnesses. The prosecutor's comment that the defendant
did not call a psychiatrist as a witness did just that. It went beyond merely pointing out that
Lisle did not substantiate his claim of abuse as a mitigating factor.
I would reverse the penalty judgment and remand to the trial court for a new penalty
hearing.
____________
113 Nev. 709, 709 (1997) State, Dep't of Transp. v. Barsy
THE STATE OF NEVADA, on Relation of its DEPARTMENT OF TRANSPORTATION,
Appellant/Cross-Respondent, v. KENNETH J. BARSY; SHELBY R. SEILER;
YOUNG ELECTRIC SIGN COMPANY, a Utah Corporation; GOLDEN WEST
MECHANICAL, INC., a Nevada Corporation; WYATT, TIEDER, KILLIAN AND
HOFFER, a Virginia Partnership; SHARON L. BARSY; LAND TITLE COMPANY,
INC., a Nevada Corporation, COLDWELL BANKER COMMERCIAL REAL
ESTATE GROUP, INC., a Delaware Corporation; NEVADA TITLE COMPANY, a
Nevada Corporation; VALLEY BANK OF NEVADA, a Nevada Corporation;
UNITED STATES OF AMERICA ex rel. its Department of Treasury and Internal
Revenue Service; CLARK COUNTY TREASURER; CLARK COUNTY
SANITATION DISTRICT NO. 1; COUNTY OF CLARK, a Political Subdivision of
the STATE OF NEVADA; and All Other Persons Unknown Claiming any Right,
Title, Estate, Lien or Interest in the Real Property Described in the Complaint,
Respondents/Cross-Appellants.
No. 26739
June 17, 1997 941 P.2d 969
Motion to disqualify Supreme Court Justice Young.
State brought civil action against respondents. Respondents moved to disqualify supreme
court justice from hearing action. The supreme court held that: (1) claims that attorney for
respondents donated heavily to justice's opponent in reelection campaign and that justice had
commented that donations to opponent may have exceeded campaign donation limits were
insufficient to show bias disqualifying justice from hearing cases tried by attorney, and (2)
claims that state was represented by member of attorney general's office and that Attorney
General had endorsed and publicly supported justice in previous election were insufficient to
show bias disqualifying justice from hearing cases tried by attorney.
show bias disqualifying justice from hearing cases tried by attorney.
Motion denied.
Frankie Sue Del Papa, Attorney General, and Leslie A. Nielsen, Deputy Attorney General,
Carson City, for Appellant/Cross-Respondent.
Kermitt L. Waters, Las Vegas, for Respondents/Cross-Appellants.
1. Judges.
Claims that attorney for one of parties donated heavily to supreme court justice's opponent in re-election campaign and that justice
had commented that donations to opponent may have exceeded campaign donation limits were insufficient to show bias disqualifying
justice from hearing cases tried by attorney.
2. Judges.
Claims that one party was represented by Attorney General's office and that Attorney General had endorsed and publicly supported
supreme court justice in previous election were not sufficient to show bias disqualifying justice from hearing cases.
OPINION
Per Curiam:
[Headnote 1]
Respondents/cross-appellants assert that Justice Young has shown express or implied bias against Kermitt Waters, the attorney for
respondents/cross-appellants, and that this is sufficient to disqualify him from hearing these cases. The basis of the claim is that Waters
donated heavily to Justice Young's opponent in Justice Young's 1996 re-election campaign and that Justice Young commented that Waters'
donations may have exceeded the campaign donation limits. This same argument was made and rejected in Las Vegas Downtown Redev.
Agency v. Hecht, 113 Nev. 632, 940 P.2d 127 (1997), and that decision is dispositive of this ground for disqualification.
[Headnote 2]
Respondents/cross-appellants also argue that Justice Young is disqualified from hearing these cases because the State of Nevada is
represented by the Attorney General's office and the Attorney General endorsed and publicly supported Justice Young in the previous
election. We considered essentially the same issue in Ainsworth v. Combined Ins. Co., 105 Nev. 237, 259, 774 P.2d 1003, 1019 (1989),
where post-opinion motions challenged former Justice Elmer Gunderson's participation in the case and requested a
new hearing.
challenged former Justice Elmer Gunderson's participation in the case and requested a new
hearing. One ground asserted to disqualify Justice Gunderson was that Ainsworth's attorney
had been a campaign co-chairman for Gunderson in a prior re-election campaign. The court
concluded that legally insufficient grounds were shown to disqualify Justice Gunderson and
cited several of our prior cases. The court then went on to say:
In the instant case, we similarly conclude that counsel's associations with the
campaign in issue, years before this case came before this court, do not presently
constitute legally competent grounds for recusal, vacatur or reargument under our
statutes or code of judicial conduct. Nor do such associations establish the direct,
substantial, pecuniary, and conflicting interests which have been held to warrant recusal
and vacatur under the due process clause. See Aetna Life Insurance Co. v. Lavoie, 475
U.S. 813 (1986). This state's constitution and code of judicial conduct specifically
compel and countenance the election of all state judges, and leading members of the
state bar play important and active roles in guiding the public's selection of qualified
jurists. Under these circumstances, it would be highly anomalous if an attorney's prior
participation in a justice's campaign could create a disqualifying interest, an appearance
of impropriety or a violation of due process sufficient to require the justice's recusal
from all cases in which that attorney might be involved.
Id. at 261, 774 P.2d at 1020.
Recently, we rejected in an unpublished order a similar claim that a Justice was
disqualified because of the fact that one of the attorneys in the case had served as county
chairman in his recent successful election campaign. Dow Chemical Company v. Mahlum,
Docket No. 28600, (order denying Justice Maupin's voluntary recusal or, in the alternative,
Justice Maupin's disqualification, April 14, 1997). We conclude that Justice Young's
disqualification is not required by virtue of the fact that he received the support of the
Attorney General in the prior election.
Having previously considered and rejected these grounds for disqualification now urged by
respondents/cross-appellants, the motion to disqualify Justice Young is denied.
1
__________

1
The Honorable Cliff Young, Justice, did not participate in the decision of this motion.
The Honorable Charles E. Springer, Justice, did not participate in the decision of this motion.
____________
THE STATE OF NEVADA, on Relation of its DEPARTMENT OF TRANSPORTATION,
Appellant/Cross-Respondent, v. KENNETH J. BARSY; SHELBY R. SEILER;
YOUNG ELECTRIC SIGN COMPANY, a Utah Corporation; GOLDEN WEST
MECHANICAL, INC., a Nevada Corporation; WYATT, TIEDER, KILLIAN and
HOFFER, a Virginia Partnership; SHARON L. BARSY; LAND TITLE COMPANY,
INC., a Nevada Corporation; COLDWELL BANKER COMMERCIAL REAL
ESTATE GROUP, INC., a Delaware Corporation; NEVADA TITLE COMPANY, a
Nevada Corporation; VALLEY BANK OF NEVADA, a Nevada Corporation;
UNITED STATES OF AMERICA ex rel. its DEPARTMENT OF TREASURY and
INTERNAL REVENUE SERVICE; CLARK COUNTY TREASURER; CLARK
COUNTY SANITATION DISTRICT NO. 1; COUNTY OF CLARK, a Political
Subdivision of the STATE OF NEVADA; and all Other Persons Unknown Claiming
any Right, Title, Estate, Lien or Interest in the Real Property Described in the
Complaint, Respondents/Cross-Appellants.
No. 26739
June 17, 1997 941 P.2d 971
Appeal from amended judgment of condemnation and cross-appeal from order granting
partial summary judgment. Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
State initiated eminent domain action. Property owner filed counterclaim for lost rental
income due to state's delay in condemning property. The district court granted partial
summary judgment for state on counterclaim. Following grant of partial summary judgment,
jury valued property at $432,000 over amount originally offered by state. The district court
entered judgment of condemnation in amount awarded by the jury plus prejudgment interest,
and subsequently amended prejudgment interest rate. State appealed, and property owner
cross-appealed. The supreme court held that: (1) evidence supported finding that appropriate
rate of prejudgment interest was higher than statutory rate; (2) as matter of apparent first
impression, owner of condemned property is entitled to damages if condemnor acts
unreasonably in issuing precondemnation statements, either by excessively delaying eminent
domain action or by other oppressive conduct; and (3) counterclaim alleged facts showing
official act or expression amounting to announcement of intent to condemn.
act or expression amounting to announcement of intent to condemn.
Affirmed in part; reversed in part and remanded with instructions.
Frankie Sue Del Papa, Attorney General and Leslie A. Nielsen, Deputy Attorney General,
Carson City, for Appellant/Cross-Respondent.
Kermitt L. Waters, Las Vegas, for Respondents/Cross-Appellants.
Order denying summary judgment is not appealable. NRAP 3A(b).
2. Interest.
Determination of proper prejudgment interest rate in condemnation proceeding is question of fact, and district court is not bound
by statutory interest rate. NRS 37.175.
3. Eminent Domain.
Just compensation, in condemnation proceeding, requires that landowner be put in as good position pecuniarily as he would
have been if his property had not been taken.
4. Eminent Domain.
Purpose of awarding prejudgment interest in condemnation proceeding is to compensate landowner for delay in monetary payment
that occurred after property had been taken.
5. Interest.
While statutory rate of prejudgment interest on condemnation judgment should be used if unchallenged, once competent evidence
is presented supporting another rate of interest as being more appropriate, district judge must determine which rate would permit most
reasonable interest rate. NRS 37.175.
6. Interest.
Evidence that prudent landowner in position of property owner faced with condemnation proceeding would have paid off
mortgage on property at issue or invested his money in land similar to that condemned, rather than hold land at low rate of return
represented by statutory rate of prejudgment interest, supported finding of district court that appropriate rate of prejudgment interest to
be paid on jury's condemnation award was higher than statutory rate. NRS 37.175.
7. Eminent Domain.
Supreme court would not consider, on state's appeal from award of prejudgment interest in condemnation proceeding, state's
contentions that property owner's challenge to reasonableness of statutory interest rate was untimely and that motion to amend was
inappropriate as method to reopen case to assert new issue, where state cited no authority for former proposition and gave no
explanation for latter. NRS 37.175; NRCP 52(b).
Supreme court need not consider assignments of error that are not supported by relevant legal authority.
9. Judgment.
Summary judgment is proper only if no genuine issues of material fact remain for trial and moving party is entitled to judgment as
matter of law.
Supreme court's review of district court's grant or denial of summary judgment is de novo.
11. Eminent Domain.
Property owners who suffer loss of their property through condemnation proceedings are entitled to receive just compensation as
provided under just compensation clauses of both Federal and State Constitutions. Const. art. 1, 8; U.S. Const. amend. 5.
12. Eminent Domain.
Owner of condemned property is entitled to damages if condemnor acts unreasonably in issuing precondemnation statements,
either by excessively delaying eminent domain action or by other oppressive conduct; condemnee must demonstrate that condemnor
acted improperly following precondemnation announcement by unreasonably delaying action or by other unreasonable
precondemnation conduct and that such acts resulted in decrease in market value of property condemned.
13. Eminent Domain.
Issue of whether there has been any actionable delay by condemnor, entitling condemnee to state cause of action for damages, he
also must allege facts showing official action by condemnor amounting to announcement of intent to condemn.
14. Eminent Domain.
Public agency's activities with respect to condemnation of real property have gone beyond the planning stage to reach acquiring
stage, as required for condemnee to be entitled to damages for unreasonable delay, if condemnation has taken place, steps have been
taken to commence eminent domain proceedings, or there has been official act or expression of intent to condemn.
15. Eminent Domain.
Counterclaim for damages by condemnee which alleged that representatives of state agency visited condemnee's tenants to inform
them of imminent condemnation, resulting in loss of tenants and condemnee's inability to acquire new tenants, and that state sought
federal funds and risked state funds for acquisition of property at issue, alleged facts showing official act or expression amounting to
announcement of intent to condemn; activities alleged could be viewed as evidencing agency's intent to purchase property, moving
beyond planning stage to acquiring stage.
OPINION
Per Curiam:
Appellant State of Nevada, on relation of its Department of Transportation (NDOT),
initiated an eminent domain action to condemn a two-acre parcel of land owned by
respondent Kenneth Barsy (Barsy). Barsy filed a counterclaim, seeking lost rental income due
to NDOT's unreasonable delay in condemning the property. The district court granted partial
summary judgment for NDOT on Barsy's counterclaim.
A jury determined that just compensation for Barsy's property amounted to $432,000
more than the amount originally offered by NDOT.
amounted to $432,000 more than the amount originally offered by NDOT. The district court
entered a judgment of condemnation in the amount awarded by the jury, plus an additional
amount for prejudgment interest pursuant to NRS 37.175. The district court subsequently
amended the prejudgment interest rate, finding that the statutory rate unreasonably
compensated Barsy, and declaring the fair rate of prejudgment interest to be the prime rate
plus two percent.
On appeal, NDOT argues that Barsy's challenge to the interest rate was untimely and that
the district court's findings in its amended judgment are clearly erroneous. We disagree and
affirm the district court's ruling.
[Headnote 1]
On cross-appeal, Barsy argues that the district court erred in granting NDOT's motion for partial summary judgment.
1
We agree,
reverse the partial summary judgment and remand the issue for trial.
FACTS
On April 13, 1987, the Nevada State Senate passed Resolution No. 19 encouraging NDOT to proceed as quickly as possible to provide
a full interchange at the intersection of Interstate 15 and Spring Mountain Road in Las Vegas. The resolution contemplated reliance on
federal funding for ninety-five percent of the cost of the project.
In 1988, a design and alternatives were developed, and public input was solicited. Ultimately, NDOT decided to reconstruct the Spring
Mountain Road interchange and to extend Desert Inn Road over I-15. An environmental assessment was also prepared in 1988 and
provided to the Federal Highway Administration (FHWA) as a prerequisite to obtaining federal highway funds for the project.
Barsy owned property, with a building and two tenants, that would be affected by the project. In late 1988 or early 1989, a NDOT
representative visited the two tenants, Decratrend Paints and Golden West Mechanical, informing them of the imminent project and of the
relocation costs and benefits which NDOT would pay them. Due to NDOT's inability to indicate an accurate time frame for the acquisition
of the property, the tenants refused to renew their leases upon expiration.
2
Barsy was unable to attract
__________

1
Barsy also seeks to appeal the district court's denial of his motion for partial summary judgment. However, an order denying summary
judgment is not appealable. NRAP 3A(b); Evans v. Southwest Gas Corp., 108 Nev. 1002, 1003 n.1, 842 P.2d 719, 720 n. 1 (1992).

2
Decratrend's lease expired December 31, 1990. Golden West's lease expired April 30, 1991.
new tenants because of the uncertainty surrounding the acquisition by NDOT.
In October 1989, a design for the new interchange and Desert Inn overpass was completed
in time to allow NDOT to compete for certain federal funds. However, the funds were
insufficient to complete the project. In order to compete for and acquire all necessary federal
funding for acquisition and construction, and still meet the needs of the community by
expediting construction, the project was divided into five stages. Each stage would provide
significant transportation benefits independent of the other stages in the event funding for
subsequent stages was delayed or denied. Construction of stage 1 started in the spring of 1991
and was completed in the fall of 1992. Barsy's property was scheduled to be acquired in 1993
or 1994 for stage 3.
Recognizing the inconvenience faced by Barsy and several of his neighbors, NDOT on
three separate occasions from mid-1989 to early 1992, unsuccessfully sought federal funding
for acquisition of those properties. In early 1991 and through the summer of 1992, Barsy
requested that his property be acquired ahead of schedule because of the hardships he was
suffering. Garth Dull, Director of NDOT, testified that since early 1991 he was aware of the
inconvenience imposed on Barsy as a result of early project announcements, and sought to
expedite acquisition of the property. In November 1991, Dull decided to obligate state
highway funds, otherwise budgeted for highway maintenance, to appraise and prepare to
acquire Barsy's property.
3
In order to expedite the Barsy acquisition, and contrary to generally established NDOT
procedure, NDOT contracted with Gary Kent on February 4, 1992 to perform the Barsy
appraisal prior to receiving FHWA approval, thus risking the possibility of bearing the
expense of the appraisal without FHWA reimbursement. On April 28, 1992, NDOT presented
a written offer to Barsy to purchase his property for the appraised value of $1,455,000. Barsy
rejected the offer.
On October 15, 1992, NDOT filed the underlying condemnation action, and deposited
$1,455,000 with the district court on October 21, 1992. On October 15, 1993, Barsy filed a
first amended counterclaim requesting that the court award Barsy lost rental income caused
by the unreasonable delay in commencing the condemnation action.
On August 15, 1994, NDOT filed a motion for partial summary judgment on Barsy's claim
for lost rents, and Barsy filed a countermotion for partial summary judgment. The district
court granted NDOT's motion on September 9, 1994.4 Barsy filed a notice of appeal on
September 21, 1994.5
__________

3
Dull's decision accelerated the appraisal and acquisition of Barsy's property by approximately two years.
NDOT risks state highway funds for right-of-way acquisition very infrequently.
granted NDOT's motion on September 9, 1994.
4
Barsy filed a notice of appeal on September
21, 1994.
5
On September 15, 1994, the jury awarded Barsy $1,887,000 as just compensation for his
property, valued as of October 20, 1992.
6
NDOT, having previously deposited $1,455,000
upon occupancy of the real property, owed a deficiency of $432,000.
Based upon the jury's verdict, the district court entered a judgment of condemnation on
October 6, 1994, which included prejudgment interest at the rate provided in NRS 37.175.
7
Barsy filed two post-trial motions, claiming that the statutory interest rate was improper and
asking that NRS 37.175(1) be declared unconstitutional as violative of the Equal Protection
Clause of the Fourteenth Amendment. Alternatively, Barsy requested the district court to
adopt an interest rate equal to the prime lending rate plus two percent, or to hold an
evidentiary hearing to determine the proper rate of interest.
The district court rejected Barsy's equal protection argument,
8
and ordered an evidentiary
hearing. At the latter hearing, both parties presented expert testimony regarding the proper
rate of interest. On December 14, 1994, the district court filed an amended judgment of
condemnation, in which it found that: 1) the rate provided in NRS 37.175 was unreasonable
in compensating Barsy for the delay in payment of the difference between NDOT's initial
deposit and the jury's valuation; and 2) the fair rate of prejudgment interest is eight percent,
computed by adding two percent to the prime rate which remained static at six percent from
July 1, 1992 through January 1, 1994.
On appeal, NDOT argues that Barsy's challenge to the interest rate was untimely and that
the district court's two findings in its amended judgment are clearly erroneous.
__________

4
At a subsequent hearing on October 19, 1994, the district court requested the State's attorney to prepare
findings of fact and conclusions of law and a judgment. Approximately two months later, the State's attorney
prepared the document. By this time Judge Thompson had retired from the bench and the findings of fact and
conclusions of law were signed by Judge Mosley.

5
An amended notice of appeal was filed after the amended judgment, on December 19, 1994.

6
NRS 37.120(1) sets the date of valuation as the date of the first service of summons.

7
NRS 37.175 provides for prejudgment interest on condemnation judgments at the rate fixed for one year's
United States Treasury bills adjusted and compounded annually.

8
Barsy claims that the district court did not rule on the constitutionality of NRS 37.175, but rather avoided
the issue by making a factual determination as to what rate of interest would provide just compensation.
However, the minutes of the hearing on November 30, 1994 state, The Court disagrees with Mr. Waters'
[Barsy's attorney] position on equal protection. And the December 5, 1994 minutes state, Court stated it
refused the equal protection argument.
rate was untimely and that the district court's two findings in its amended judgment are
clearly erroneous. In his cross-appeal, Barsy insists that the district court erred in granting
NDOT's motion for partial summary judgment.
DISCUSSION
A. NDOT'S APPEAL FROM AMENDED JUDGMENT OF CONDEMNATION
[Headnotes 2-5]
NDOT contends that the statutory rate operates as prima facie evidence of a fair rate. In County of Clark v. Alper, 100 Nev. 382, 685
P.2d 943 (1984), this court referred to the statutory rate as a floor on permissible rates, and allowed that legislative amendments increasing
the statutory rate were prima facie proof of an increase in interest rates, not prima facie proof of a fair rate. This court further held that the
determination of the proper interest rate is a question of fact, and that the district court was not bound by the statutory interest rate. Id. at
394, 685 P.2d at 951. We stated that just compensation requires that the landowner be put in as good position pecuniarily as he would
have been if his property had not been taken.' . . . The purpose of awarding interest is to compensate the landowner for the delay in the
monetary payment that occurred after the property had been taken. Id. at 392, 685 P.2d at 950 (quoting Seaboard Air Line Ry. v. United
States, 261 U.S. 299 (1923)). While the statutory rate should be used if unchallenged, once competent evidence is presented supporting
another rate of interest as being more appropriate, the district judge must then determine which rate would permit the most reasonable
interest rate.
[Headnote 6]
Barsy's expert testified that a prudent landowner would have paid off the mortgage on the land or invested his money in land similar to
that condemned rather than hold the land at such a low rate of return. He further testified:
My opinion is that the . . . interest of prime plus two comes reasonably close to anticipating what property owners would have
done with the money. The prime rate itself is a bank rate that is charged to a bank's best customer. Adding two percent for that
allows for several things. One, a longer duration of the loan, which would be equivalent to the time it typically takes in one of
these cases for the issue to be resolved, and two, also to allow for greater risk that's associated with an owner owning property
particularly for business purposes.
We conclude that the evidence adduced on the subject substantially supported the district
court's finding. See State Emp. Sec. v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498
(1986) (substantial evidence is evidence which a reasonable mind might accept as adequate to
support a conclusion).
NDOT next contends that Barsy's constitutional challenge to the statutory rate was
untimely, and that Barsy's motion to amend based on NRCP 52(b) was inappropriate as a
method to reopen the case to assert a new issue. We disagree. Barsy's motion alleged that the
statutory rate was inapplicable for two reasons: 1) NRS 37.175 was unconstitutional; and 2)
the statutory rate was unreasonable. The district court quickly rejected the constitutional
claim, and the evidentiary hearing focused solely on the reasonableness claim. The district
court eventually ruled only that the statutory rate was unreasonable.
[Headnotes 7, 8]
NDOT cites no authority for the proposition that the challenge to the reasonableness of the interest rate was untimely, and gives no
explanation as to why an NRCP 52(b) motion was inappropriate. This court need not consider assignments of error that are not supported
by relevant legal authority. See Sheriff v. Gleave, 104 Nev. 496, 498, 761 P.2d 416, 418 (1988).
B. BARSY'S CROSS-APPEAL FROM ORDER GRANTING PARTIAL SUMMARY JUDGMENT
[Headnotes 9, 10]
Barsy contends that the district court erred in granting NDOT's motion for partial summary judgment. Summary judgment is proper
only when no genuine issues of material fact remain for trial and the moving party is entitled to judgment as a matter of law. Perez v. Las
Vegas Medical Ctr., 107 Nev. 1, 4, 805 P.2d 589, 590 (1991). Our review of summary judgment is de novo. Walker v. American Bankers
Ins., 108 Nev. 533, 536, 836 P.2d 59, 61 (1992).
[Headnotes 11, 12]
It is, of course, fundamental that property owners who suffer the loss of their property through condemnation proceedings are entitled
to receive just compensation as provided under the just compensation clauses of the United States Constitution and, in the instant case,
Article 1, section 8 of the Nevada Constitution. At issue in the case before us is whether the precondemnation activities of the State entitle
Barsy to damages in addition to those resulting from the taking of his property. In resolving this issue, we elect to follow the leading case
on the rights of property owners who sustain damages as a result of precondemnation activities by the condemning authority.
activities by the condemning authority. In the case of Klopping v. City of Whittier, 500 P.2d
1345, 1355 (Cal. 1972), the California Supreme Court, basing its decision on constitutional
grounds, held that where a condemnor acts unreasonably in issuing precondemnation
statements, either by excessively delaying eminent domain action or by other oppressive
conduct, our constitutional concern over property rights requires that the owner be
compensated. The Klopping court ruled that a condemnee must demonstrate that the
condemnor acted improperly following a precondemnation announcement by unreasonably
delaying action or by other unreasonable precondemnation conduct and that such acts resulted
in a decrease in the market value of the property. We define this cause of action to give a
condemnee the right to recover for damages caused by precondemnation activity when
extraordinary delay or oppressive conduct by the condemnor has been shown. The
condemnation process involves governmental agencies and the court system, and it is
endemic with delay. Without the reasonably stringent standard we adopt today, every
condemnation case would give birth to a separate cause of action based on precondemnation
activity. But where the evidentiary burden is met, the condemnee must be compensated for
loss of income due to precondemnation action or publicity.
[Headnote 13]
In applying this standard to the instant case, both parties erroneously treat as a question of law the issue of whether there has been any
actionable delay by the condemnor. The courts have specifically recognized that the issue is a question of fact. See id. at 1357 (whether
there was unreasonable delay . . . is a question of fact); Cambria Spring Co. v. City of Pico Rivera, 217 Cal. Rptr. 772, 782 (Ct. App.
1985) (whether there has been unreasonable delay or unreasonable action by the condemnor is a question of fact . . . . [The] findings are
entitled to be upheld if supported by substantial evidence).
[Headnote 14]
For the landowner to state a cause of action, he also must allege facts showing an official action by the condemnor amounting to an
announcement of intent to condemn. Terminals Equip. Co. v. County of San Francisco, 270 Cal. Rptr. 329, 336 (Ct. App. 1990). The
pivotal issue . . . is whether the public agency's activities have gone beyond the planning stage to reach the acquiring stage.' Id. The
public agency's activities reach the acquiring stage when condemnation has taken place, steps have been taken to commence eminent
domain proceedings, or there has been an official act or expression of intent to condemn. Id. This requirement was followed by this court in
Sproul Homes v. State ex rel. Dep't Hwys., 96 Nev. 441, 445, 611 P.2d 620, 622 {19S0), in which the landowner's complaint
was dismissed because there was "no factual allegation of undue or unreasonable delay."
622 (1980), in which the landowner's complaint was dismissed because there was no factual
allegation of undue or unreasonable delay.
[Headnote 15]
Thus, the preliminary issue in the present case is whether Barsy has alleged facts showing an official act or expression by NDOT
amounting to an announcement of an intent to condemn Barsy's land. We conclude that the record contains sufficient facts to make it
inappropriate for summary judgment to have been granted on this preliminary issue. In late 1988 or early 1989, an NDOT representative
personally visited Barsy's two tenants to inform them of an imminent condemnation and to explain the relocation benefits and costs which
NDOT would pay. This early notice apparently resulted in the eventual loss of existing tenants and Barsy's inability to secure replacement
tenants. As early as August 1989, NDOT had sought federal fund for a hardship acquisition of Barsy's property. NDOT sought such funds
again in September 1990 and January 1992. NDOT explained that it sought the federal funding because it recogniz[ed] the inconvenience
faced by Mr. Barsy and several of his neighbors. Finally, in November 1991, NDOT risked state funds to appraise and acquire Barsy's
property three to four years ahead of project construction needs.
NDOT's activities, described above, reflect a reasonable basis for concluding that NDOT felt at least partly responsible for Barsy's
hardship. Moreover, these efforts could be viewed as evidencing NDOT's intent to purchase the property, moving beyond the planning
stage to the acquiring stage. Therefore, the district court should have denied the State's motion for summary judgment, and this preliminary
issue, as well as the issue whether there was extraordinary delay or oppressive conduct, should have been left for the jury to determine.
CONCLUSION
For the reasons discussed above, we affirm the district court's order determining that the fair rate of interest was eight percent, but
reverse the partial summary judgment against Barsy and remand the matter for trial on the issues of whether NDOT's official action
amounted to an announcement to condemn and if preacquisition activity establishes extraordinary delay or oppressive conduct that would
permit Barsy to recover damages he can prove.
9
__________

9
____________
113 Nev. 722, 722 (1997) Miller v. State
TIMOTHY JOSEPH MILLER, Appellant, v. THE
No. 29807
LINK KUTSCHEROUSKY, Appellant, v. THE
No. 29827
June 17, 1997 941 P.2d 456
Appeal from a judgment of conviction, based on a guilty plea, of one count of use of a
controlled substance. Second Judicial District Court, Washoe County; Deborah Agosti, Judge
(Docket No. 29807). Appeal from a judgment of conviction, based on a guilty plea, of one
count of use of a controlled substance. Third Judicial District Court, Lyon County; Archie E.
Blake, Judge (Docket No. 29827).
Upon consolidation, the supreme court held that district courts exceeded statutory
authority in imposing jail terms as conditions of mandatory probation.
Sentences vacated; remanded for imposition of correct sentences.
[Rehearing denied September 19, 1997]
Michael R. Specchio, Public Defender, John Reese Petty, Chief Deputy Public Defender,
and Mary Lou Wilson, Deputy Public Defender, Washoe County, for Appellant Miller.
Jeffrey D. Morrison, Reno, for Appellant Kutscherousky.
Attorney, and Gary H. Hatlestad, Chief Appellate Deputy District Attorney, Washoe County;
Robert E. Estes, District Attorney and Eileen Barnett, Deputy District Attorney, Lyon
County, for Respondents.
1. Criminal Law.
Rule that failure to raise claim below generally bars its consideration on appeal is relaxed in cases involving plain error or
constitutional issues.
2. Criminal Law.
Legislature must authorize judicial power to impose conditions on probation, but given such a grant, district court enjoys wide
discretion to impose such conditions.
3. Criminal Law.
District courts exceeded statutory authority in imposing jail terms as conditions of mandatory probation for use of controlled
substance. NRS 193.130(2)(e), 453.411(3)(a).
4. Criminal Law.
In accepting guilty pleas, district courts were bound to follow all relevant statutory sentencing provisions.
5. Criminal Law.
If district court properly determines that plea agreement amounts to abuse of prosecutorial discretion, court has authority to reject
the plea.
6. Criminal Law.
Statute providing that a court shall sentence a convicted person to imprisonment in the state prison for a minimum term of 1 year
and a maximum term of 4 years for category E felonies did not permit term of imprisonment ranging from not less than one year to
not more than four years. NRS 193.130(2)(e).
OPINION
Per Curiam:
These appeals have been consolidated for the purpose of this opinion. See NRAP 3(b). We
conclude that in each case the district court exceeded its statutory authority in imposing a jail
term as a condition of mandatory probation. Each court also erred in sentencing each
appellant to a range of prison terms that did not conform to the statutory requirement. We
therefore vacate appellants' sentences and remand.
FACTS
Kutscherousky v. State, Docket No. 29827
In August 1996, police arrested appellant Link Kutscherousky at a house along with the
couple to whom the house belonged. In the house, officers found twelve baggies of
methamphetamine, some marijuana, and five hypodermic devices; one device was floating in
the toilet where Kutscherousky sat. On October 14, 1996, the state filed a second amended
information charging Kutscherousky with one count of use of a controlled substance, a
category E felony violation of NRS 453.411. Kutscherousky was arraigned the same day and
pleaded guilty.
On December 2, 1996, the district court held a sentencing hearing. Kutscherousky's
presentence report showed that he had prior felony convictions for possession of a controlled
substance, receiving stolen property, and being under the influence of a controlled substance.
After ascertaining that probation was mandatory, the court sentenced Kutscherousky to
twelve to thirty-two months in prison. The court suspended the sentence and placed
Kutscherousky on probation for not more than five years, and as a condition of probation
ordered him to serve six months in the Lyon County Jail.
Defense counsel informed the court that Kutscherousky had been in jail for about four
months and asked if he would receive credit for that time.
credit for that time. The court said that it understood that Kutscherousky was in the Lyon
County Jail for a probation hold out of Washoe County. When defense counsel said that was
correct, the court stated: He can get credit someplace else. He has got all of the credit that he
is going to get from this court.
Miller v. State, Docket No. 29807
On November 20, 1996, appellant Timothy Joseph Miller signed a plea memorandum,
pleading guilty to one count of use of a controlled substance, a category E felony violation of
NRS 453.411. On December 4, 1996, the district court held a sentencing hearing. Defense
counsel informed the court that at that time Miller was serving a six-month jail sentence due
to a Reno Municipal Court case and expected to be released on January 18, 1997. The court
adjudged Miller guilty and sentenced him to 18 to 48 months in prison, consecutive to his
current sentence. The court suspended the sentence, placed Miller on probation for five years,
and as a condition of probation ordered him to serve one year in jail, concurrent to his current
sentence. The court told Miller, you are a classic example of the failure of the legislature two
years ago. You don't deserve probation, you deserve a prison sentence.
DISCUSSION
Both appellants challenge their sentences, contending that ordering a jail term as a
condition of probation offends the legislative intent of NRS 453.411(3)(a) and 193.130(2)(e).
[Headnote 1]
Neither appellant objected at the time of his sentencing. The state urges us to reject Miller's appeal for this reason. Failure to raise a
claim below generally bars its consideration on appeal, but this rule is relaxed in cases involving plain error or constitutional issues.
Koerschner v. State, 111 Nev. 384, 386, 892 P.2d 942, 943-44 (1995). We will consider these appeals because we conclude that the district
courts plainly erred.
1
Each appellant pleaded guilty to a category E felony violation of NRS 453.411, which makes knowing use of a controlled substance
unlawful. NRS 453.411(3)(a) provides that a category E felony offender shall be punished as provided in NRS 193.130.
__________

1
It is possible that one or both appellants have served their jail terms by this time. However, even if they have, their appeals are not
moot because they challenge an activity that is capable of repetition yet evades review. See State v. Washoe Co. Public Defender, 105 Nev.
299, 301, 775 P.2d 217, 218 (1989) (a court may decide a technically moot case when otherwise an important question of law could never
be decided because of the nature of its timing).
E felony offender shall be punished as provided in NRS 193.130. NRS 193.130(2)(e)
provides that for a category E felony
a court shall sentence a convicted person to imprisonment in the state prison for a
minimum term of 1 year and a maximum term of 4 years. Upon sentencing a person
who is found guilty of a category E felony, the court shall suspend the execution of the
sentence and grant probation to the person upon such conditions as the court deems
appropriate.
(Emphasis added.)
Kutscherousky asserts that by sending him to jail for six months, especially after he had
already spent about four months in jail,
2
the district court nullified the statutory requirement
of probation. Miller challenges his one-year jail term for the same reason, arguing that
although NRS 193.130(2)(e) permits appropriate conditions on probation, this does not allow
a court to impose a probation condition that effectively eliminate[s] the right to a
probationary period which was made mandatory by the statute. Both appellants cite a basic
principle of statutory construction: no part of a statute should be rendered nugatory, nor any
language turned to surplusage, if such consequences can properly be avoided. Walsh v. State,
110 Nev. 1385, 1388, 887 P.2d 1239, 1240 (1994); see also Robert E. v. Justice Court, 99
Nev. 443, 445, 664 P.2d 957, 959 (1983) (When presented with a question of statutory
interpretation, the intent of the legislature is the controlling factor and, if the statute under
consideration is clear on its face, a court can not go beyond the statute in determining
legislative intent.).
[Headnote 2]
NRS 193.130(2)(e) requires the sentencing court to grant probation upon such conditions as the court deems appropriate. The
legislature must authorize judicial power to impose conditions on probation, but given such a grant, a district court enjoys wide discretion
to impose such conditions. Igbinovia v. State, 111 Nev. 699, 707, 895 P.2d 1304, 1309 (1995). In Creps v. State, 94 Nev. 351, 363, 581
P.2d 842, 851, cert. denied, 439 U.S. 981 (1978), this court held that a short term of incarceration imposed as a condition of probation
may in certain cases help rehabilitate a convicted person and has its place as a sentencing alternative under NRS 176.1S5 and
176.205.
__________

2
This prior jail time is of no relevance to the issue before us. Kutscherousky had no right to credit in this case for the prior jail time
because that time was based on a different conviction. See NRS 176.055(1) (allowing courts to order credit for time spent in confinement
before conviction, unless the confinement was pursuant to a judgment of conviction for another offense).
ing alternative under NRS 176.185 and 176.205. The court stated that its analysis of the
language and background of Ch. 176 reveals no compelling reason to exclude incarceration
from the [range] of permissible conditions of probation. Id. at 360, 581 P.2d at 848.
In comparing the instant case with Creps, we note a number of distinguishing factors. See
id. at 356, 581 P.2d at 845-46. Creps was convicted of sale of a controlled substance; here,
appellants were convicted of use of a controlled substance, a less serious offense. Creps was
sentenced to five and a half years in prison; the maximum sentence imposable here was only
four years. Creps was ordered to serve 60 days in jail; the jail terms imposed here were
substantially longer, six months and twelve months in length. However, the most important
distinction is that in Creps the granting of probation was a discretionary matter, while the
statute here provides for mandatory probation.
[Headnotes 3-5]
We conclude that imposing jail time as a condition of probation is contrary to the legislative intent evident in NRS 193.130(2)(e)
which requires that the execution of the sentence be suspended and probation granted. Therefore, the district courts exceeded their statutory
authority in imposing jail terms as a condition of this mandatory probation.
3
[Headnote 6]
We also conclude that the district courts erred in another manner in sentencing appellants. None of the parties raised this issue, but it is
plain error which we will address sua sponte. NRS 193.130(2)(e) provides that a court shall sentence a convicted person to imprisonment
in the state prison for a minimum term of 1 year and a maximum term of 4 years. The district courts incorrectly interpreted this provision
as allowing a term of imprisonment ranging from not less than' one year to not more than' four years. NRS 193.130(2) does allow some
variation in the range of sentences for category C and D felonies: subsection (c) requires imprisonment for a minimum term of not less
than 1 year and a maximum term of not more than 5 years, and subsection (d) requires a minimum term of not less than 1 year and a
maximum term of not more than 4 years. (Emphasis added.) However, subsection (e) does not contain the emphasized language and
plainly requires a sentence range of exactly one to four years in prison for category E felonies.
__________

3
It appears that both district courts were dissatisfied with the plea bargains struck by the state, which required suspended sentences and
probation. However, in accepting the guilty pleas, the courts were bound to follow all relevant statutory sentencing provisions. This does
not mean that district courts are bound to accept every plea bargain regardless of its terms. If a district court properly determines that a plea
agreement amounts to an abuse of prosecutorial discretion, it has the authority to reject the plea. See Sandy v. District Court, 113 Nev. 435,
935 P.2d 1148 (1997).
language and plainly requires a sentence range of exactly one to four years in prison for
category E felonies. Thus, the Third Judicial District Court erred in imposing a maximum
sentence of thirty-two months, and the Second Judicial District Court erred in imposing a
minimum sentence of eighteen months. Each court should have sentenced each appellant to a
minimum term of one year and a maximum term of four years in the state prison.
CONCLUSION
Given the mandatory probation provision of NRS 193.130(2)(e), the district courts
exceeded their statutory authority in imposing jail terms as a condition of probation.
4
The
courts also erred in failing to sentence each appellant to a minimum term of one year and a
maximum term of four years in the state prison. We therefore vacate appellants' sentences and
remand to the district courts, directing them to impose correct sentences consistent with this
opinion.
__________

4
The trial judges were obviously disenchanted with the mandatory probation provisions relative to category E
felonies. While the sentences in these matters were clearly based on sincerely held judicial philosophies, the
concerns of these judicial officers should be addressed to the legislature and the provisions enforced to the letter
until and unless that body determines the public policy considerations behind them are unsound.
____________
113 Nev. 727, 727 (1997) Lesley v. Lesley
DEBORAH LESLEY, Appellant, v.
ELDON LESLEY, Respondent.
No. 29116
June 17, 1997 941 P.2d 451
Appeal from a district court order denying appellant's motion to set aside a default divorce
decree. Sixth Judicial District Court, Humboldt County; Jerry V. Sullivan, Judge.
Wife moved for relief from default judgment of divorce. The district court denied motion,
and wife appealed. The supreme court held that wife was entitled to relief on grounds of
mistake, inadvertence, or excusable neglect.
Belanger & Plimpton, Lovelock, for Appellant.
Jack T. Bullock, II, Winnemucca, for Respondent.
1. Judgment.
District court has wide discretion in deciding whether to grant or deny a motion to set aside a judgment. NRCP 60(b).
Legal discretion cannot be sustained unless there is competent evidence to justify court's action.
3. Judgment.
District court deciding whether to grant relief from judgment on grounds of mistake or inadvertence or excusable neglect must
analyze whether movant promptly applied to remove judgment, lacked intent to delay proceedings, demonstrated good faith, lacked
knowledge of procedural requirements, and tendered meritorious defense to claim for relief. NRCP 60(b)(1).
4. Divorce.
Wife acted promptly in seeking to set aside default divorce judgment, where motion was filed within 90 days after entry of
judgment and wife promptly consulted with in-state attorney upon her return to state. NRCP 60(b)(1).
5. Divorce.
Wife lacked such intent to delay proceedings as might have warranted denial of motion to set aside default divorce judgment,
where wife had been out of state for two months and had received order of protection and temporary custody by the time husband filed
for divorce, wife believed she could resolve legal issues from her new home, wife had no prior experience with legal affairs and may
have been unaware that state had jurisdiction over custody dispute and divorce, wife did not attempt to avoid service of process or to
disregard state proceedings, and wife was not afforded lengthy time to reply. NRCP 60(b).
6. Divorce.
Wife acted in good faith, as required to be entitled to have default divorce decree set aside, even though she failed to respond to
complaint and was unwilling to return to state, where she contacted numerous attorneys and instituted legal action in state to which she
had moved. NRCP 60(b).
7. Divorce.
Wife lacked knowledge of procedural requirements, as required to obtain relief from default decree, where she consulted with and
relied on advice of several attorneys in state to which she moved, believed she could obtain legal separation in that state, was bolstered
in that belief by court orders entered by that state, did not realize that she needed in-state attorney until she discovered that default
judgment had been entered against her, and had no previous experience with complex legal matters. NRCP 60(b).
8. Divorce.
Trial court's failure to consider children's best interests was meritorious defense to husband's request for custody and warranted
relief from default divorce decree. NRCP 60(b).
9. Infants.
In an action involving child custody, required meritorious defense factor for relief from judgment is satisfied if the movant can
show that the district court did not consider the best interests of the child before making the custody determination. NRS 125.480.
10. Divorce.
Policy considerations favored setting aside default divorce decree, where trial court did not consider children's best interests and
awarded custody to husband who allegedly had committed domestic violence. NRS 125.480.
11. Infants.
When examining child custody arrangements, the focus is on the best interests of the minor child.
12. Divorce.
District court would be required to reconsider property issues on remand from decision that wife was entitled to relief from default
divorce decree. NRS 125.150.
OPINION
Per Curiam:
Appellant Deborah Lesley (Deborah) and respondent Eldon Millard Lesley (Eldon)
were married on October 26, 1992, in Fresno, California. Thereafter, the couple resided near
Winnemucca, Nevada.
Deborah avers that, on January 14, 1996, Eldon struck her with a closed fist in front of the
couple's three minor children and threw a beer bottle at her. When she suggested that they
attempt a trial separation, Eldon allegedly responded that if Deborah and the children were
not at home when he returned from work he would find her, beat her, and take away the
children permanently. Eldon also allegedly raised his fist to the couple's oldest child,
six-year-old Allan.
On January 15, 1996, Deborah left the family home with the children, Allan, John, and
James. Her parents and a counselor on the Nevada crisis line had apparently advised her to
move away from Eldon. Deborah drove to her parents' house near Fresno, California.
On January 17, 1996, Deborah conferred with a California legal aid paralegal. Deborah
filed documents in a Fresno County Superior Court seeking temporary custody of the children
and a restraining order against Eldon. In those documents, Deborah revealed that she had
moved to California two days earlier, and that her previous residence was in Nevada. The
same day, Deborah secured an ex-parte temporary protective order from a Fresno County
Superior Court judge. Deborah then filed for legal separation in California. According to
Eldon, he was served with the California complaint for legal separation on March 15, 1996.
On March 18, 1996, Eldon filed a complaint for divorce in Humboldt County district
court, along with a motion for a temporary custody order (TCO). On March 22, 1996,
Judge Sullivan issued an ex-parte TCO and an order directing Deborah to return the children
to Nevada. The complaint, summons, and motion were served upon Deborah on March 23,
1996. On April 2, 1996, Deborah received a copy of Judge Sullivan's orders by certified mail.
On April 2, 1996, Eldon, accompanied by a deputy sheriff, attempted to pick up his
children at Deborah's residence in Fresno. Apparently, Deborah had moved out of the
residence during the last several days of March. The following day, Eldon appeared before
the mediation services of the Fresno County court in order to tender his Nevada documents.
Deborah did not appear. Eldon also initiated an action with the child abduction unit of the
Fresno County District Attorney's Office, seeking to enforce Judge Sullivan's orders.
On April 17, 1996, Eldon filed an application for default in Humboldt County. The
following day, Judge Sullivan signed findings of fact, conclusions of law, and a default
decree of divorce prepared by Eldon's counsel. The order granted the parties a divorce upon
the grounds of incompatibility and awarded sole legal and physical custody of the three
children to Eldon. Deborah was given visitation rights and directed to pay child support. The
court also awarded Eldon all of his separate property and personal belongings as well as [a]ll
of the real and personal property currently in the possession of the Plaintiff in the State of
Nevada. The court did not hold a prove-up hearing prior to signing the default judgment
order.
Deborah testified that, on April 21, 1996, she called the Humboldt County courthouse to
inquire about the status of Eldon's divorce complaint. The clerk's office notified her that she
was legally divorced. The same day, Deborah contacted Roland Belanger (Belanger), her
Nevada counsel. Apparently, he advised her to get things going. However, she testified that
she could not afford the legal fee and, because she had not yet received the written default
judgment or had it explained to her by an attorney, she still believed that she could resolve the
matters in California. Deborah testified that she did not receive a copy of the written default
judgment until May 28, 1996.
On April 24, 1996, the Fresno court dissolved the temporary protective order issued in
favor of Deborah.
In late May 1996, the Fresno district attorney notified Eldon that the children had been
located, but that they remained in the custody of Deborah pending a hearing before a
California court. On June 25, 1996, Deborah filed a motion in the Fresno court to set aside
the dissolution of the temporary protective order. Apparently, the Fresno court denied this
motion.
In late June 1996, Deborah recontacted Belanger. On July 3, 1996, Belanger filed the
instant motion to set aside the default judgment. On August 5, 1996, a hearing on the motion
was held before Judge Sullivan. At the beginning of the hearing, Belanger's law partner, Todd
Plimpton (Plimpton), announced that he intended to have several witnesses testify in
support of the motion. Plimpton and Eldon's attorney, Jack Bullock (Bullock), then made
arguments on the motion. After these arguments, Plimpton again requested to examine
several witnesses before the court rendered its decision.
arguments, Plimpton again requested to examine several witnesses before the court rendered
its decision.
Judge Sullivan indicated that he was not inclined to allow the witnesses to testify. He
stated that if things had been done properly initially, there probably would have been a lot of
evidence before this court that was not presented. . . . What you seek to do is reopen and start
back at time one. . . . The judge also suggested that the pleadings filed by Deborah included
hearsay and insufficient evidence by way of affidavit.
The court then rendered its oral findings and denied the motion. It found that Deborah had
not made the requisite showings of (1) mistake, surprise, inadvertence or excusable neglect,
or (2) a meritorious defense. The court emphasized its displeasure with Deborah's attempts to
resolve the matter outside of Nevada, the proper forum.
After announcing its decision, the court granted Plimpton permission to make an offer of
proof. Several of Deborah's former neighbors then testified that she was a good mother, that
Eldon physically and verbally abused his children and Deborah, and that Eldon sometimes
drank to excess. Deborah testified that (1) Eldon physically and verbally abused her on
several occasionsstriking her on the head and giving her black eyesin front of the
children; (2) she had contacted numerous attorneys and paralegals upon her arrival in Fresno;
(3) she was a high-school graduate and had never hired an attorney or paralegal prior to her
involvement in the instant case; and (4) she was unaware of all her legal options and that she
could have obtained low-cost legal representation in Nevada. She also stated that until she
received a copy of the default divorce judgment, she believed that she could resolve all
pertinent legal matters in California with a California lawyer. She also testified that she had
used an inheritance to make a down payment on the home she lived in with Eldon and the
children.
At the close of Deborah's testimony, the court denied Deborah's motion to reconsider its
earlier ruling. On August 5, 1996, the district court issued its written order denying Deborah's
motion to set aside the divorce default judgment. Deborah now appeals.
DISCUSSION
[Headnotes 1, 2]
Deborah contends that she satisfied all factors required to set aside a judgment under NRCP 60(b).
1
__________

1
Eldon argues that the affidavits submitted by Deborah with her motion were insufficient to satisfy local and state rules of civil
procedure. We conclude that the affidavits of Deborah and the pleadings set forth sufficient
NRCP 60(b) provides, in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect; . . . The motion shall be made
within a reasonable time, and . . . not more than six months after the judgment, order, or
proceeding was entered or taken.
Under NRCP 60(b), the district court has wide discretion in deciding whether to grant or deny
a motion to set aside a judgment. Stoecklein v. Johnson Electric, Inc., 109 Nev. 268, 271, 849
P.2d 305, 307 (1993). However, this legal discretion cannot be sustained where there is no
competent evidence to justify the court's action. Id., 849 P.2d at 307.
[Headnote 3]
When assessing an NRCP 60(b)(1) claim, the district court must analyze whether the movant: (1) promptly applied to remove the
judgment; (2) lacked intent to delay the proceedings; (3) demonstrated good faith; (4) lacked knowledge of procedural requirements; and
(5) tendered a meritorious defense to the claim for relief. Bauwens v. Evans, 109 Nev. 537, 539, 853 P.2d 121, 122 (1993) (citation
omitted). In rendering its oral decision denying Deborah's motion, the district court determined that Deborah had shown no meritorious
defense. The court also indicated that Deborah had not filed her motion promptly, had an intent to delay the proceedings, and had acted in
bad faith.
Promptness
[Headnote 4]
In the case at bar, the district court entered a default judgment against Deborah on April 18, 1996, which Deborah testified that she
received on May 28, 1996. Deborah filed her motion to set aside the default judgment on July 3, 1996. The record shows that she promptly
consulted with a Nevada attorney upon her return to Nevada. We conclude that Deborah's NRCP 60(b)(1) motion was timely filed and that
the district court erred by finding it untimely. See Petersen v. Petersen, 105 Nev. 133, 135, 771 P.2d 159, 161 (1989) (error for district
court to dismiss motion to set aside decree of divorce filed 90 days after entry of judgment); NRCP 60(b) (six-month time limit).
__________
allegations. See Sealed Unit Parts v. Alpha Gamma Ch., 99 Nev. 641, 643, 668 P.2d 288, 289 (1983); Jenkins v. Goldwater, 84 Nev. 422,
425, 442 P.2d 897, 899 (1968).
Intent to delay the proceedings
[Headnote 5]
The record shows that Eldon filed his complaint for divorce on March 18, 1996. By that time, Deborah had already been in California
for two months, gained temporary custody of her children, secured a temporary protective order, and filed for legal separation.
The record shows that Deborah remained in the Fresno area and attempted to resolve her legal issues there because she believed that
she could resolve the pertinent issues in California. She based this on the advice of several California attorneys and paralegals. The record
shows that Deborah had no prior experience with legal affairs and may have been unaware that Nevada had jurisdiction over the custody
dispute and the divorce. The record shows that Deborah did not attempt to avoid service of process or to totally disregard the Nevada
proceedings. Moreover, exactly one month after the filing of the divorce complaint, the Nevada court entered its default judgment. Thus,
Deborah was not afforded a lengthy time to reply. There is virtually no evidence that Deborah intended to delay the divorce proceedings.
We conclude that the district court erred by finding that Deborah had an intent to delay the proceedings.
Good faith
[Headnote 6]
Deborah testified that due to legal advice she received in California, she believed that she could resolve the child custody and other
divorce matters in California with California counsel. It appears that the district court did not give great weight to this testimony.
However, other than Deborah's failure to respond to the divorce complaint and her unwillingness to return to Nevada, there is little
evidence that she acted in bad faith. Deborah contacted numerous attorneys and instituted legal action in California. We conclude that
Deborah's actions do not show a serious disregard of the judicial process and that she has demonstrated adequate good faith. See Yochum
v. Davis, 98 Nev. 484, 487, 653 P.2d 1215, 1217 (1982) (citing Gutenberger v. Continental Thrift and Loan Co., 94 Nev. 173, 576 P.2d
745 (1978)).
Lack of knowledge of procedural requirements
[Headnote 7]
As noted above, Deborah contacted numerous California attorneys during her time in Fresno. Deborah testified that she was under
the impression that she could obtain a legal separation in California.
under the impression that she could obtain a legal separation in California. The California
courts bolstered her belief by issuing several orders in her favor. Deborah testified that she
did not realize that she needed a Nevada attorney until she discovered that the default
judgment had been entered against her. Deborah had not had previous experience with
complicated legal matters. We conclude that Deborah made an adequate showing that she
lacked knowledge of Nevada procedural requirements.
Meritorious defense
[Headnotes 8-10]
The district court determined that Deborah did not show a meritorious defense. However, the district court focused its discussion of
this issue on Deborah's unwillingness to return to Nevada. The court did not address whether Deborah had provided a defense to the
underlying claim. See generally Kahn v. Orme, 108 Nev. 510, 516, 835 P.2d 790, 794 (1992) (addressing whether movant had defense to
underlying claim). In an action involving child custody, the required meritorious defense factor is satisfied if the movant can show that the
district court did not consider the best interests of the child before making the custody determination. See NRS 125.480. In the instant case,
it appears that the district court did not conduct a hearing concerning the best interests of the children. Thus, we conclude that Deborah put
forth a meritorious defense to Eldon's allegations.
Policy considerations
When reviewing district court decisions on NRCP 60(b) motions, this court also examines whether the case should be tried on the
merits for policy reasons. See id., 835 P.2d at 794. This court has held that Nevada has a basic underlying policy that cases should be
decided upon the merits. Id., 835 P.2d at 794 (citing Hotel Last Frontier v. Frontier Prop., 79 Nev. 150, 155, 380 P.2d 293, 295 (1963)).
Our policy favoring decisions on the merits is heightened in cases involving domestic relations matters. Price v. Dunn, 106 Nev. 100, 105,
787 P.2d 785, 788 (1990) (citing Dagher v. Dagher, 103 Nev. 26, 28, 731 P.2d 1329, 1330 (1987)).
[Headnote 11]
An essential part of the case at bar is the child custody matter. When examining child custody arrangements, the focus is on the best
interests of the minor child. Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993); see also NRS 125.480 (if court finds by clear
and convincing evidence that one parent has committed domestic violence upon the other, a rebuttable presumption is created that
custody by perpetrator is not in best interests of child).
tion is created that custody by perpetrator is not in best interests of child). Because a default
judgment was entered in this case, the court has not engaged in an examination of the best
interests of the three minor children nor of the parental fitness of Eldon and Deborah.
Pursuant to the default judgment, the court awarded legal and primary physical custody to
Eldon. Testimony and affidavits by Deborah and testimony of neighbors indicate that Eldon
may have a propensity for violence and may have committed domestic violence upon
Deborah. Thus, while these issues are properly resolved on an uncontested basis in the event
of a default, they become pertinent on a motion to set aside a default judgment.
In its oral decision, it appears that the district court gave undue weight to Deborah's failure
to return to Nevada, but insufficient weight to the best interests of the children. See Sims, 109
Nev. at 1149, 865 P.2d at 330 (court may not use changes of custody as a sword to punish
parental misconduct; disobedience of court orders is punishable in other ways) (citation
omitted). We conclude that public policy weighs in favor of hearing the instant action on the
merits.
[Headnote 12]
Given these circumstances, we conclude that the district court abused its discretion by refusing to set aside the default decree of
divorce.
2
We reverse the order of the district court, which declined to set aside the default judgment, and remand to the district court for
further proceedings in light of this opinion.
__________

2
Deborah also contends that the district court erred by awarding all the community property to Eldon. It appears that the district court
should reconsider this issue on remand. See NRS 125.150; Lofgren v. Lofgren, 112 Nev. 1282, 926 P.2d 296 (1996).
____________
THE STATE OF NEVADA, DEPARTMENT OF HUMAN RESOURCES, DIVISION OF
MENTAL HYGIENE and MENTAL RETARDATION, Appellant, v. JULIE
JIMENEZ, as Guardian ad Litem For JOHN DOE, a MINOR, Respondent.
No. 26021
June 17, 1997 941 P.2d 969
Appeal from a judgment of the district court. Second Judicial District Court, Washoe
County; Peter I. Breen, Judge.
Proceedings dismissed; former opinion withdrawn.
Frankie Sue Del Papa, Attorney General and Cynthia A. Pyzel, Senior Deputy Attorney
Durney and Brennan, Reno; Calvin R.X. Dunlap, Reno, for Respondent.
Richard A. Gammick, District Attorney and Madelyn Shipman, Assistant District Attorney,
Washoe County; Patricia A. Lynch, Reno City Attorney and D. Michael Clasen, Chief
Deputy City Attorney, Reno; Chester H. Adams, Sparks City Attorney, Sparks; Thorndal,
Backus, Armstrong & Balkenbush and Brent T. Kolvet, Reno; Stewart L. Bell, District
Attorney and Jason F. Stewart, Chief Deputy District Attorney, Clark County; Bible, Haney,
Hoy, Trachok, Wadhams & Woloson and Constance L. Akridge, Reno, for Amici Curiae.
OPINION
Per Curiam:
This is an appeal from a judgment entered pursuant to a bench trial in a civil action for
negligent supervision and sexual assault. On March 27, 1997, we filed an opinion affirming
in part and reversing in part the district court's order. See State, Dep't Hum. Res. v. Jimenez,
113 Nev. 356, 935 P.2d 274 (1997). Appellant then filed a petition for rehearing challenging
our March 27, 1997, opinion. On May 20, 1997, the parties filed a Stipulation for Voluntary
Dismissal of Case, seeking an order dismissing these proceedings and withdrawing the
opinion entered in this appeal on March 27, 1997. Cause appearing, we grant the parties'
request. Accordingly, we dismiss these proceedings in their entirety, including appellant's
petition for rehearing, and withdraw our prior opinion entered on March 27, 1997.
1
__________

1
The Honorable Charles E. Springer, Justice, and The Honorable A. William Maupin, Justice, did not
participate in the decision of this appeal.
____________
113 Nev. 737, 737 (1997) Masonry and Tile v. Jolley, Urga & Wirth
MASONRY AND TILE CONTRACTORS ASSOCIATION OF SOUTHERN NEVADA,
ANTHONY MARNELL, GEORGE MARNELL, CARMINE CATELLO, BILL
DALEY, JIM CAROLLO, BOB ALLYN MASONRY, INC., CATELLO TILE AND
MARBLE CONTRACTORS, INC., JIM CAROLLO MASONRY, INC., BILL
DALEY MASONRY, INC., and MARNELL MASONRY,
Appellants/Cross-Respondents, v. JOLLEY, URGA & WIRTH, LTD., a Nevada
Corporation, ROGER WIRTH, an Individual, and JOLLEY, URGA, WIRTH &
WOODBURY, a Partnership, Respondents/Cross-Appellants.
No. 26426
July 1, 1997 941 P.2d 486
Appeal and cross-appeal from an order of the district court granting summary judgment
and costs in favor of respondents in an action for legal malpractice. Eighth Judicial District
Court, Clark County; Peter I. Breen, Judge.
Contractors and their multiemployer bargaining association brought legal malpractice
action against law firm which had represented association in connection with dispute with
labor union over handling of promotion fund, which had ultimately resulted in settlement,
alleging that law firm had failed to raise affirmative defense of union's failure to exhaust
mandatory contractual arbitration remedy. After initial judge denied summary judgment to
law firm on basis that dispute was not arbitrable, successor judge was appointed, and law firm
again sought summary judgment. The district court granted motion, and contractors appealed.
The supreme court, Shearing, C. J., held that: (1) dispute was not arbitrable as matter of law,
and (2) successor judge thus had authority to reconsider ruling on initial motion, which was
clearly erroneous.
Affirmed.
Kirshman & Harris, Las Vegas; Altshuler, Berzon, Nussbaum, Berzon & Rubin, San
Francisco, California, for Appellants/Cross-Respondents.
Rawlings, Olson, Cannon, Gormley & Desruisseaux, Las Vegas; Gibson, Dunn &
Crutcher and William F. Highberger, Los Angeles, California, for
Respondents/Cross-Appellants.
Appellate review of order granting summary judgment is do novo. NRCP 56(c).
2. Motions.
District court may reconsider previously decided issue if substantially different evidence is subsequently introduced or decision is
clearly erroneous.
3. Motions.
Successor judge in legal malpractice action brought by contractors and their multiemployer bargaining organization against
attorneys who had represented them in labor dispute had authority to reconsider initial judge's prior ruling that labor dispute was not
arbitrable, so that failure of attorneys to raise in underlying action affirmative defense of union's failure to exhaust mandatory
arbitration remedy did not result in damages, as initial judge's ruling on issue was clearly erroneous.
4. Labor Relations.
Dispute between contractors' bargaining organization and labor unions, which related to claim by union that organization was
improperly administering contractors' industry promotion fund by itself, rather than through trustees, was not arbitrable as matter of
law. Trust agreement permitted but did not mandate arbitration, and presumption of arbitrability did not apply to dispute, since
contractors were being sued for actions taken as trustees rather than as employers and neither party had access to economic weapons of
strikes and lockouts.
5. Labor Relations.
Establishment and maintenance of promotion funds are permissible subjects of collective bargaining.
6. Costs.
Trial court did not abuse its discretion in denying law firm's request for attorney fees and limiting recoverable costs following
grant of summary judgment to law firm in legal malpractice action brought by organization of contractors, which had been represented
by firm in underlying dispute with labor union. Action was initially brought in good faith, and rejection of law firm's offer of judgment
was not unreasonable.
OPINION
This is an action for legal malpractice. Appellants are several masonry and tile contractors
in Las Vegas (contractors) and their multi-employer bargaining association, the Masonry &
Tile Contractors Association of Southern Nevada (MTCA). Respondents are the attorneys
who defended appellants in a 1981 federal court action under the Labor-Management
Relations Act 301, 29 U.S.C. 185(a) (1988), entitled Bricklayers & Allied Craftsmen,
Local Union No. 3 v. Masonry and Tile Contractors Association of Southern Nevada, No.
CV-S-81-726-RDF (D. Nev., filed October 21, 1981) (the Promotion Fund case). In that
case, the union plaintiffs pleaded causes of action against appellants alleging, inter alia, that
appellants had violated the parties' trust agreement by spending promotion fund monies
improperly.
appellants alleging, inter alia, that appellants had violated the parties' trust agreement by
spending promotion fund monies improperly. Appellants eventually settled with the union
plaintiffs in 1990.
Appellants brought this malpractice action in 1989 in the Eighth Judicial District Court,
Clark County. Appellants alleged, inter alia, that respondents negligently failed to plead the
affirmative defense of mandatory exhaustion of contractual arbitration remedies in the
Promotion Fund case, and that timely assertion of that defense would have resulted in the
dismissal of that case with prejudice, saving appellants years of expensive litigation.
1
Appellants also allege now that failure to timely plead the affirmative defense forced
appellants to enter into a costly settlement.
The key issue of causation in the malpractice action is whether exhaustion of contractual
arbitration remedies would have been a valid defense in the Promotion Fund lawsuit.
Because that issue raises a pure question of law, the parties filed cross-motions for summary
judgment in early 1991.
2
Those cross-motions principally focused on the narrow question of
whether the underlying Promotion Fund dispute was subject to mandatory contractual
arbitration.
After all of the Las Vegas trial judges recused themselves,
3
the case was assigned to
Visiting Judge Mark Handelsman from the Second Judicial District in Reno. In his written
decision regarding the motions for summary judgment, Judge Handelsman concluded, after a
detailed review of the applicable federal court precedent, that the subject matter of the
underlying Promotion Fund dispute was arbitrable as a matter of law, unless the right to
compel arbitration was waived, pursuant either to the integrated collective bargaining and
trust agreements or to the trust agreement alone as a labor contract. Judge Handelsman
rested his analysis on the presumption of arbitrability under federal labor law.
Several months later, Judge Handelsman removed himself from the case for personal
reasons, and the case was assigned to Senior Judge Llewellyn Young.
__________

1
In the Promotion Fund dispute, respondents, on behalf of the appellants, filed an answer to the complaint
from the union and raised a series of affirmative defenses, but failed to raise the single affirmative defense that
appellants claim would have terminated the entire damages action in favor of appellantsthe union's failure to
exhaust its mandatory contractual arbitration remedy. The exhaustion defense was not raised in the Promotion
Fund case until 1987, after respondents had been replaced by new counsel. By then, however, it was too late, as
the federal district court ruled that the contractors had waived the arbitral exhaustion defense by failing to raise it
in a timely manner.

2
Appellants filed a motion for partial summary judgment.

3
The record does not disclose why no judge in Las Vegas was able to hear the case.
the case for personal reasons, and the case was assigned to Senior Judge Llewellyn Young.
Several months after Judge Handelsman's decision, respondents filed a motion asking Judge
Young to reconsider the arbitrability issue. Judge Young eventually denied respondents'
motion for reconsideration.
Judge Young passed away, and several months later the case was assigned to Visiting
Judge Peter Breen. Respondents then filed a motion for summary judgment. Respondents
maintained that the Promotion Fund dispute was not arbitrable, contrary to Judge
Handelsman's conclusion. Respondents also set forth three new affirmative defenses in which
they alleged that appellants had improperly assigned their malpractice claim to the union in
settling the Promotion Fund litigation.
4
This time, respondents' motion was successful. Judge Breen ruled that the underlying
Promotion Fund dispute was not arbitrable, and that respondents were therefore entitled to
summary judgment. In addition, Judge Breen accepted respondents' argument that the
Promotion Fund settlement agreement violated Nevada's public policy against assignment of
legal malpractice claims, thus requiring dismissal of the entire action. Respondents moved for
costs and fees. However, Judge Breen only awarded $22,041.20 in costs to respondents and
denied respondents' request for attorney fees. This appeal and cross-appeal followed.
On appeal, appellants claim that Judge Breen erred in concluding that the Promotion Fund
dispute was not arbitrable and in concluding that the 1990 Promotion Fund settlement
agreement violated the public policy against assignment of malpractice claims. They assert,
therefore, that summary judgment in favor of respondents was improper. On cross-appeal,
respondents contend that Judge Breen erred in denying their request for attorney fees and in
limiting their recoverable costs.
[Headnote 1]
Summary judgment is appropriate only when no genuine issue of material fact remains for trial and the moving party is entitled to
judgment as a matter of law. NRCP 56(c); Walker v. American Bankers Ins., 108 Nev. 533, 536, 836 P.2d 59, 61 (1992). This court's
review of an order granting summary judgment is de novo. Walker, 108 Nev. at 536, 836 P.2d at 61. Because no facts are in dispute
regarding arbitrability, this court must simply determine if respondents were entitled to judgment as a matter of law on
that issue.
__________

4
Respondents' first defense alleged that the contractors were no longer real parties in interest under NRCP 17, as a result of the
assignment; their second defense alleged that the assignment violated common law prohibitions against champerty and maintenance;
their third defense alleged that the assignment violated Nevada public policy.
determine if respondents were entitled to judgment as a matter of law on that issue.
Appellants contend that Judge Breen erred in granting summary judgment for respondents
by concluding that the Promotion Fund dispute was not arbitrable because Judge Breen
lacked authority to reconsider Judge Handelsman's prior ruling that the dispute was arbitrable.
[Headnotes 2, 3]
A district court may reconsider a previously decided issue if substantially different evidence is subsequently introduced or the decision
is clearly erroneous. See Little Earth of United Tribes v. Department of Housing, 807 F.2d 1433, 1441 (8th Cir. 1986); see also Moore v.
City of Las Vegas, 92 Nev. 402, 405, 551 P.2d 244, 246 (1976) (Only in very rare instances in which new issues of fact or law are raised
supporting a ruling contrary to the ruling already reached should a motion for rehearing be granted.) (Emphasis added). Judge Breen rested
his reconsideration of Judge Handelsman's arbitrability analysis on the basis that it was clearly erroneous, particularly in light of what he
considered to be new clarifying case law.
We conclude that Judge Breen properly determined that Judge Handelsman's decision was clearly erroneous. We hold that the
Promotion Fund dispute was not arbitrable as a matter of law.
[Headnote 4]
In September 1965, the MTCA entered into a collective bargaining agreement with the union.
5
That agreement, among other things,
established and provided ongoing funding for the Masonry Contractors Industry Promotion Fund (the promotion fund) and also contained
an agreement between the MTCA and the union to submit to binding arbitration any grievance with respect to the interpretation or
application of any provisions of the collective bargaining agreement. In 1966, the parties entered into a trust agreement pertaining to the
promotion fund. The trust agreement contained no provision requiring arbitration.
The promotion fund was to be managed by employer trustees appointed by the MTCA president. By 1975, however, the MTCA had
taken over control of all promotion fund decision-making, and the MTCA's contractor members began to administer the promotion fund by
majority vote at their monthly MTCA meetings. In 1981, the union filed the Promotion Fund suit and made its claim that appellants were
improperly administering the trust.
__________

5
The collective bargaining agreement was renegotiated and executed several times up to 1984.
Respondents concede that there is a strong presumption of arbitrability in cases involving
employee-employer disputes. Respondents contend, however, that the Promotion Fund
dispute was one between employees and trustees, not employees and employers. Accordingly,
respondents argue that the presumption did not apply.
The key case in this matter is Schneider Moving & Storage Co. v. Robbins, 466 U.S. 364
(1984). In Schneider, various employers entered into collective bargaining agreements with a
union that required them to participate in two multi-employer employee-benefit trust funds
and incorporated the terms of two trust agreements by reference. Id. at 368-69. The trust
agreements required the employers to contribute to the funds according to the applicable
terms of their collective bargaining agreements. Id. at 369. The terms of the trust agreements
authorized the trustees to initiate any legal proceedings as the Trustees in their discretion
deem in the best interest of the Fund to effectuate the collection or preservation of
contributions. Id. The trustees filed complaints against the employers in federal court
claiming that the employers failed to meet their contribution requirements, and requesting the
court to order an accounting and immediate payment of all sums thereby determined to be
due. Id. at 366. The employers argued that the complaints raised disputed interpretations
under the collective bargaining agreements that should have been arbitrated.
6
Id. The case
reached the United States Supreme Court, which held, inter alia, that the presumption of
arbitrability applicable to disputes between a union and an employer is not applicable to
disputes between trustees and employers:
Arbitration promotes labor peace because it requires the parties to forgo the economic
weapons of strikes and lockouts. Because the trustees of employee-benefit funds have
no recourse to either of those weapons, requiring them to arbitrate disputes with the
employer would promote labor peace only indirectly, if at all. We conclude, therefore,
that the presumption of arbitrability is not a proper rule of construction in determining
whether arbitration agreements between the union and the employer apply to disputes
between trustees and employers, even if those disputes raise questions of interpretation
under the collective-bargaining agreements.
__________

6
The collective bargaining agreements required arbitration of differences . . . between the Company and the
Union or any employee of the Company as to the meaning or application of the provisions of this agreement.'
Schneider, 466 U.S. at 370 (quoting the agreements). No parties other than the union or the employer were given
access to the arbitration process. Id.
Id. at 372 (footnotes omitted) (emphasis added). The Court went on to hold that, in light of
the fact that the agreements at issue and the surrounding circumstances evidenced no intent
by the agreeing parties to require arbitration of disputes between the trustees and employers,
there was no basis for assuming that the agreeing parties intended to require arbitration of
disputes between the trustees and the employers. Id. at 372-76.
Although the Promotion Fund suit indeed involved employees and employers, the
employers were being sued for actions taken in their capacity as trustees of the promotion
fund. The critical aspect of the relationship between the parties to the dispute is whether both
parties had access to economic weapons such as a lockout or a strike. The animating
purpose behind presuming arbitration in disputes between parties with access to economic
weapons is the preservation of labor peace.
This focus on the parties' potential use of economic weapons is clear in Schneider, which
involved a neutral trustee without the options of strikes or lockouts. Two federal court cases
decided after Schneider further illustrate the point. In Communications Workers of America
v. Michigan Bell Telephone Co., 820 F.2d 189, 192 (6th Cir. 1987), the court stated that
[t]he critical inquiry under Schneider Moving & Storage is whether the parties involved in
the dispute have recourse to economic weapons. In Viggiano v. Shenango China Div. of
Anchor Hocking Corp., 750 F.2d 276, 281 (3d Cir. 1984), the court stated that [t]hose
critical considerations [in Schneider] . . . do not apply where, as here . . . both parties have
economic measures available to them. The underlying theme in these cases is that recourse
to economic weapons is the critical factor in the analysis.
Following the Schneider reasoning in this case, we begin with the proposition that no
presumption of arbitrability should be used when interpreting the trust agreement. Thus, we
look at the language of the agreement to determine whether mandatory arbitration was
contemplated. The trustees were given broad powers to take legal actionincluding the
authority to commence and defend suits and to settle, compromise, or submit to arbitration
any claim or debt. Section 4(3)(i) states as follows:
The Trustees, to carry out the purposes of this trust, shall exercise the following
powers: . . . .
. . . .
(i) Settlement of claims and debts. To settle, compromise, or submit to arbitration
any claims, debts, or damages due or owing to or from the Trust, to commence or
defend suits or legal or administrative proceedings, and to represent the Trust in all
suits and legal and administrative proceedings; but such legal matters shall relate only
to matters arising subsequent to the date of the Labor contract and shall in no case
relate to anything but trust affairs.
but such legal matters shall relate only to matters arising subsequent to the date of the
Labor contract and shall in no case relate to anything but trust affairs.
This section clearly gives the trustees broad authority to bring or defend legal actions and to
elect to submit matters to arbitration if the trustees believe it is in the trust's best interest. This
section does not mandate arbitration; on the contrary, it gives the trustees a range of options
in handling legal disputes. Therefore, we conclude that the clear intent of the parties as
expressed in the trust agreement was that arbitration was an option but was not mandatory.
The Court in Schneider also determined that nothing in the arbitration clauses of the
collective bargaining agreements suggested that the employers or the union intended to
require arbitration in disputes involving the trustees.
Even if we assume that the parties to the collective-bargaining agreements could
negate by their agreement the powers conferred on the trustees by the broader group of
parties to the trust agreements, we find no attempt to do so here. The arbitration clauses
found in these collective-bargaining agreements contain no suggestion that either the
petitioners or the Union intended to require arbitration of disputes between the trustees
and the employers.
466 U.S. at 374. In the case at bar, the arbitration clauses of the collective bargaining
agreement evidence no indication that the trustees would be required to arbitrate their
disputes. A new collective bargaining agreement was renegotiated after the trust was in place,
but the arbitration clause was the same as in the prior collective bargaining agreement and
made no reference to mandatory arbitration of disputes arising from the trust agreement.
Again, nothing in this new agreement indicates that the parties wanted the trustees to
participate in mandatory arbitration before pursuing legal action.
While the individual trustees are associated with some of the employers, their duties and
responsibilities under the trust agreement are to receive the contributions to the fund and
spend them for designated purposes. The improper spending of trust fund money does not
implicate any of the employers, but focuses on whether these individuals discharged their
fiduciary duties as trustees.
[Headnote 5]
The trustees do not have access to economic weapons, and could not have effectively employed such weapons against the union in
the Promotion Fund suit. The establishment and maintenance of promotion funds are permissible subjects of collective
bargaining.
nance of promotion funds are permissible subjects of collective bargaining. See McDonald v.
Hamilton Elec., Inc. of Florida, 666 F.2d 509, 514 (11th Cir. 1982); N.L.R.B. v. Sheet Metal
Workers Int'l Ass'n., 575 F.2d 394, 397 (2d Cir. 1978); Service Art Co., 291 N.L.R.B. 234
(1988). Under the National Labor Relations Act, the parties are precluded from striking or
engaging in lockouts over non-mandatory subjects such as industry promotion funds. See
N.L.R.B., 575 F.2d at 399. Economic weapons could not be employed in the promotion suit,
and therefore should not have any part in this analysis, and that certainly appears to be the
conclusion reached in the Schneider case.
In sum, the presumption of arbitrability did not apply to the Promotion Fund dispute,
because neither party to that dispute had access to economic weapons. We conclude that the
subject matter giving rise to the Promotion Fund dispute was not arbitrable.
In light of our conclusion that the Promotion Fund dispute was not arbitrable, we do not
need to examine whether the Promotion Fund settlement agreement between appellants and
the union violated the public policy against assignment of malpractice claims.
[Headnote 6]
Respondents cross-appeal, claiming that the district court erred in denying respondents' request for attorney fees and limiting their
recoverable costs. The district court recognized the difficulty in the alliance between the union and the union attorney and the contractors,
who were adversaries in the underlying lawsuit, as a result of the contractors' assignment of the malpractice claim to the union.
Nevertheless, the court noted that this alliance was created after the lawsuit was brought and that the suit was initially brought in good
faith. Moreover, evidence in the record supports the district court's determination that the claims were brought in good faith, particularly
the fact that Judge Handelsman granted plaintiffs partial summary judgment on the arbitrability issue.
The district court also found that appellants' rejection of respondents' offer of judgment was not unreasonable in view of Judge
Handelsman's earlier decision. We conclude that the district court did not abuse its discretion in denying respondents' request for attorney
fees and in limiting their recoverable costs.
Accordingly, we affirm the order of the district court.
Rose, J., and Zenoff, Sr. J., concur.
7, 8

__________

7
The Honorable Cliff Young, Justice, and The Honorable A. William Maupin, Justice, did not participate in the decision of this appeal.

8
The Honorable David Zenoff, Senior Justice, was appointed to serve in the place of then-Chief Justice Thomas L. Steffen, who
voluntarily recused himself from participation in the decision of this appeal.
I dissent for two reasons: first, Judge Breen exceeded his authority by reconsidering and
then overruling Judge Handelsman's prior decision; and, second, whether the attorneys were
negligent in failing to plead mandatory exhaustion of arbitration remedies as an affirmative
defense raises factual issues that should be tried by a jury or other finder of fact.
Judge Breen was the third judge to adjudicate the arbitrability issue. Finding Judge
Handelsman's prior decision on the issue of arbitrability to be clearly erroneous, Judge
Breen decided to reverse Judge Handelsman's decision, stating that nothing prevents a
[district] judge from modifying [another district judge's] opinion when it is determined to be
clearly in error.
To support his reversal of Judge Handelsman's decision, Judge Breen states:
The law of the case doctrine directs a court's discretion, but does not limit the tribunal's
power. Arizona v. California, 460 U.S. 605, 618 (1983). Under the law of the care [sic]
doctrine, a court will reconsider a previously decided issue if substantially different
evidence is subsequently introduced or the decision is clearly erroneous and would
work manifest injustice. Little Earth of United States Tribes v. Department of Housing,
807 F.2d 1433, 1441 (9th Cir. 1986).
In State Engineer v. Curtis Park, 101 Nev. 30, 32, 692 P.2d 495, 497 (1985), this court
held that
[t]he doctrine of the law of the case provides that where an appellate court states a
principle of law in deciding a case, that rule becomes the law of the case, and is
controlling both in the lower court and on subsequent appeals, as long as the facts are
substantially the same. Adolino v. State, 99 Nev. 346, 350, 662 P.2d 631 (1983)
(citations omitted).
The law of the case doctrine, then, relates to principles of law stated by an appellate court and
does not justify the reversal of one trial judge's decision by another trial judge because the
second judge believes that the first judge's decision was clearly erroneous.
After a district court judge has issued a ruling, the parties may move for reconsideration of
the decision. If the district court denies the motion for reconsideration, the appropriate action
is an appeal to this court. To allow a third or fourth district court judge to consider the issue
and alter the result in any given case has the effect of creating an inappropriate intermediate
review. Judge Breen exceeded his authority when he decided to reconsider and reverse Judge
Handelsman's decision regarding arbitrability.
Appellants filed this legal malpractice action complaining that their attorney breached a
duty of care by failing to plead an affirmative defense in a timely manner. As the majority
states, whether exhaustion of contractual arbitration remedies would have been a valid
defense in the Promotion Fund
1
lawsuit is a pure question of law. The district court judges
who heard the case carefully analyzed the applicable federal court precedents regarding this
close question of law and determined first that the dispute was arbitrable, and then that it was
not.
Given the conflicting opinions among the district court judges in this case, the law
regarding arbitrability of disputes such as this one is far from being clear and settled. Judge
Handelsman did not render his reasoned written decision relating to the presumption of
arbitrability under federal labor law in a haphazard or ill-considered manner. Reasonable
persons, including three district court judges, have been unable to agree as to whether this
dispute was arbitrable. Under these circumstances, whether a prudent defense attorney would
have reasonably pleaded mandatory exhaustion of contractual arbitration remedies as an
affirmative defense in the Promotion Fund case is a matter that should be decided by a jury or
other trier of fact. This being the case, summary judgment was inappropriate. I would reverse
the judgment of the trial court and remand the matter for trial.
__________

1
Bricklayers & Allied Craftsmen, Local Union No. 3 v. Masonry and Tile Contractors Association of
Southern Nevada, No. CV-S-81-726-RDF (D. Nev., filed October 21, 1981) (the Promotion Fund case).
____________
113 Nev. 747, 747 (1997) LeasePartners Corp. v. Brooks Trust
LEASEPARTNERS CORPORATION, a California Corporation, and AD ART SIGNS, INC.,
Appellants, v. THE ROBERT L. BROOKS TRUST DATED NOVEMBER 12, 1975,
Respondent.
No. 25946
July 15, 1997 942 P.2d 182
Appeal from an order granting partial summary judgment in a dispute over the electrical
sign on a casino. Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Leaseholder of electrical signage on hotel used hotel owner for claim and delivery and
unjust enrichment. The district court granted hotel owner's motion for summary judgment.
Leaseholder appealed. The supreme court held that: (1) material issues of fact existed as to
whether signs were fixtures or personal property; {2) no written agreement existed that
would bar claim for unjust enrichment; and {3) material issue of fact existed as to
whether benefit was conferred on hotel owner through installment of signage for hotel
tenant.
property; (2) no written agreement existed that would bar claim for unjust enrichment; and (3)
material issue of fact existed as to whether benefit was conferred on hotel owner through
installment of signage for hotel tenant.
Kummer, Kaempfer, Bonner & Renshaw and Anthony A. Zmaila, Las Vegas, for Appellant
LeasePartners.
Freeman, Roskelley & Ritchie, Las Vegas, for Appellant Ad Art Signs, Inc.
Lionel Sawyer & Collins, Las Vegas, for Respondent.
1. Judgment.
Summary judgment is only appropriate when, after review of record viewed in light most favorable to nonmoving party, there
remain no issues of material fact.
2. Judgment.
In determining whether summary judgment is proper, nonmoving party is entitled to have evidence and all reasonable inferences
accepted as true.
Supreme court's review of summary judgment order is de novo. Court is required to determine whether trial court erred in
concluding that absence of genuine issues of material fact justified its granting of summary judgment.
4. Judgment.
Material issues of fact existed as to whether hotel signs were fixtures or personal property, precluding summary judgment for hotel
owner on sign leaseholder's claims for claim and delivery and unjust enrichment.
5. Fixtures.
Characterization of item as fixture or as personal property is mixed question of law and fact.
6. Fixtures.
Application of test to determine whether item is fixture or personal property becomes pure question of law when only one
reasonable conclusion may be drawn from evidence.
7. Implied and Constructive Contracts.
Unjust enrichment occurs whenever person has and retains benefit which in equity and good conscience belongs to another.
Action based on theory of unjust enrichment is not available when there is express, written contract, because no agreement can be
implied when there is express agreement.
Although written contract existed between hotel owner and tenant and written contract existed between sign leaseholder and
tenant, no written contract existed between leaseholder and hotel owner, and thus, there was no written agreement that would bar claim
for restitution and unjust enrichment by leaseholder against owner.
10. Judgment.
Material issue of fact existed as to whether benefit was conferred by leaseholder of signs on hotel owner through installment of
signage for hotel tenant when hotel owner retained signs without payment, precluding summary judgment for hotel owner on
leaseholder's claim for unjust enrichment.
OPINION
Per Curiam:
Appellant LeasePartners Corporation (LeasePartners) financed a long-term equipment
lease for Danzig Corporation (Danzig Corp.), the tenant of the Royal Hotel and Casino
(Royal Hotel). The Royal Hotel was owned by respondent Robert L. Brooks Trust (the
Brooks Trust). After the Danzig Corp. defaulted on its lease with the Brooks Trust, its hotel
lease was terminated and neither Danzig Corp. nor the Brooks Trust made any payments to
LeasePartners for the signs. LeasePartners filed a complaint against the Brooks Trust, Danzig
Corp., and Danzig Corp.'s president, Harold Danzig (Harold), for delivery, misrepresentation,
and unjust enrichment. The complaint against the Brooks Trust is the only action at issue in
this appeal.
The Brooks Trust moved for and was granted summary judgment against LeasePartners on
the grounds that the signs were fixtures and that the Brooks Trust was not unjustly enriched.
We conclude that the district court erred in granting summary judgment, and we now reverse
that ruling.
FACTS
The Brooks Trust owns the Royal Hotel in Las Vegas. On August 6, 1989, the Brooks
Trust leased the Royal Hotel to Danzig Corp. for a term of twenty-five years with an option
for an additional twenty years. Harold determined that the old signage in front of the hotel
needed to be replaced because he felt [i]t wasn't bright enough.
On May 14, 1990, Danzig Corp. and Ad Art Signs, Inc. (Ad Art) entered into an
equipment lease which provided for the construction, lease, installation, and maintenance of
the new signage. The signage was designed, engineered, and manufactured by Ad Art in
Stockton, California. Testimony was presented by Ad Art employees that the signage was
custom built to match the design and layout of the Royal Hotel and was custom fit for the
Royal Hotel. However, testimony was also presented that portions of the signage could be
used elsewhere. For example, testimony indicated that the electronic message center, which
accounted for over fifty percent of the cost of the sign, could be removed and used in other
signs.
removed and used in other signs. Additionally, the chairman of the board of Ad Art testified
by affidavit that all of the signage could be removed without damage to the building, that
with the exception of the word Royal, most of the signage was reusable, and that the
signage was modular and could be recreated in different lengths in different locations.
Ad Art removed the old signage from the property over a three-day period and threw it
away. Ad Art knew that the Brooks Trust owned the Royal Hotel but did not ask it for
permission to dispose of the signs because the Brooks Trust was not its customer. Installing
the new signage took approximately two and one-half months. The value of the new signage
was in excess of $800,000.
LeasePartners claims that:
Brooks Trust did not object in any manner to the construction and installation of the
New Hotel Signage. Brooks Trust remained silent in circumstances which would lead
any reasonable person knowledgeable of commercial practice to believe that a
contractor or financier would claim a security interest in the New Hotel Signage.
Mrs. Brooks, the co-trustee of the Brooks Trust, testified that she never discussed the
remodeling of the old signage with Harold or granted permission to remove the old signage.
Although Harold signed a variance application for the new signage, Mrs. Brooks testified that
she was not aware of the application. Earlier, in January 1990, Mrs. Brooks had signed an
architectural supervision application for one sign utilizing an electronic message board.
The new signs were installed between April and June of 1990. Under the terms of the May
14, 1990 equipment lease, Ad Art leased the signage to Danzig Corp. for ten years.
Additionally, the lease included the following provisions:
6. TITLE TO EQUIPMENT. Ownership of the equipment shall at all time remain in
Lessor [Ad Art]. The equipment is and shall remain personal property whether or
not affixed to realty. . . .
. . . .
25. GENERAL PROVISIONS: . . . This agreement is, and is intended to be a lease
and Lessee does not acquire hereby any right, title or interest whatsoever, legal or
equitable, in or to any of the equipment, or to the proceeds of the sale of any
equipment, except its interest as Lessee hereunder.
However, this language conflicts with Paragraph 7.3 of the lease between the Brooks Trust
and Danzig Corp. which provided that upon termination of the lease all additions,
improvements, fixtures, furnishings and equipment which may be made or installed or
placed by either Lessor or Lessee upon the Leased Property during the term of this Lease .
. . shall be surrendered with the Leased Property as a part thereof.
additions, improvements, fixtures, furnishings and equipment which may be made or
installed or placed by either Lessor or Lessee upon the Leased Property during the term
of this Lease . . . shall be surrendered with the Leased Property as a part thereof.
Ad Art initially agreed to finance the construction, installation, and maintenance of the
signage. However, Ad Art and Danzig Corp. agreed to seek an alternative method to finance
the deal because, apparently, Ad Art either was not in a position to provide long-term
financing from its own resources or did not wish to provide long-term financing.
LeasePartners, a California company which finances leases, was contacted to provide
long-term financing for the project.
On September 25, 1990, LeasePartners paid for and formally acquired Ad Art's rights
pursuant to Ad Art's equipment lease agreement with Danzig Corp. and then entered into a
new lease with Danzig Corp. The lease provided a monthly payment schedule and further
provided that Danzig Corp. could purchase the signage at the end of the lease term for one
dollar. Harold personally guaranteed the lease payments, providing financial statements
which showed a net worth in excess of $30,000,000. The lease between Danzig Corp. and
LeasePartners provided:
13. Title: Personal Property: The Equipment is, and shall at all times remain,
property of Lessor, and Lessee shall have no right, title or interest therein or thereto
except as expressly set forth in this Lease. . . . The Equipment is and shall at all times
and [sic] remain personal property notwithstanding that the Equipment or any part
thereof may now be or hereafter become in any manner affixed or attached to real
property or any improvements thereof.
This language also conflicts with Paragraph 7.3 of the lease agreement between Brooks Trust
and Danzig Corp.
On January 17, 1991, almost four months later, a UCC financing statement purporting to
assign Ad Art's security interest to LeasePartners was filed in the office of the Secretary of
State. However, the collateral was assigned to Swiss Bank Corporation, not LeasePartners,
because LeasePartners financed its Danzig Corp. lease through Swiss Bank Corporation.
LeasePartners, however, was listed to receive a copy of the filed financing statement.
Danzig Corp. defaulted on the lease with the Brooks Trust by not paying rent for the
months of February, March, April, and May of 1991. Due to this default, the Brooks Trust
terminated Danzig Corp.'s lease of the Royal Hotel on May 24, 1991. Until Danzig Corp.'s
default and the subsequent termination of the lease, LeasePartners did not know that Danzig
Corp. was only a tenant at the Royal Hotel and that the Brooks Trust owned the Royal.
tenant at the Royal Hotel and that the Brooks Trust owned the Royal.
Following the default, the Brooks Trust refused to release the signs or pay LeasePartners
for them. On July 16, 1991, LeasePartners filed a complaint against Danzig Corp. for breach
of contract and claim and delivery and filed a complaint against Harold personally for breach
of guaranty and misrepresentation. However, the actions against Harold and Danzig Corp. are
not involved in this appeal, and at the time the briefs were filed, these two actions were
pending in district court. LeasePartners also filed a complaint against the Brooks Trust for
claim and delivery and unjust enrichment, which is the subject of this appeal.
On July 22, 1991, LeasePartners filed an application for an order to show cause why the
property should not be taken from Brooks Trust and delivered to LeasePartners. On
September 5, 1991, the matter was argued before a district judge who denied the application,
concluding as a matter of law that the signs were fixtures and that LeasePartners had no
security interest in the signs because it did not file its January 17, 1991 financing statement as
a fixture filing. On March 4, 1994, the Brooks Trust filed a motion seeking summary
judgment on the grounds that (1) it was not unjustly enriched, and (2) that the signs were
fixtures and therefore LeasePartners had no perfected security interest in the signs. On March
21, 1994, LeasePartners filed an opposition to the Brooks Trust's motion for summary
judgment and also filed a cross-motion for summary judgment on a claim of unjust
enrichment. The district court granted summary judgment in favor of the Brooks Trust and
denied LeasePartners' motion in full.
On June 10, 1994, LeasePartners appealed the district court's grant of summary judgment.
DISCUSSION
[Headnotes 1, 2]
Summary judgment is only appropriate when, after a review of the record viewed in a light most favorable to the non-moving party,
there remain no issues of material fact. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). In determining whether
summary judgment is proper, the nonmoving party is entitled to have the evidence and all reasonable inferences accepted as true. Wiltsie
v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989).
[Headnote 3]
This court's review of a summary judgment order is de novo. Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 {19S9).
(1989). On appeal, this court is required to determine whether the trial court erred in
concluding that an absence of genuine issues of material fact justified its granting of summary
judgment. Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18 (1981).
The district court erred by concluding that the signs were fixtures as a matter of law
[Headnote 4]
The issue of whether the signs were fixtures or personal property was debated throughout the proceedings in the lower court. At the
September 5, 1991 hearing and again in granting the Brooks Trust's motion for summary judgment, the district judge determined as a
matter of law that the signs were fixtures; however, we conclude that the district judge's determination was erroneous.
This court has stated that the three factors to determine whether an item is a fixture are annexation, adaptation, and most importantly,
intent. Fondren v. K/L Complex, Ltd., 106 Nev. 705, 710, 800 P.2d 719, 722 (1990). We also stated:
The annexation test is met where the chattel is actually or constructively joined to the real property.
The adaptation test is met when the object in question is adapted to the use to which the real property is devoted. However, the
most important factor in making the determination of whether an item is a fixture . . . is the intention of the parties at the time the
items were installed.
Id. (citations omitted).
[Headnotes 5, 6]
The characterization of an item as a fixture or as personal property is a mixed question of law and fact. Rayl v. Shull Enterprises, Inc.,
700 P.2d 567, 570 (Idaho 1984); State Highway Com'n v. Empire Building Material Co., 523 P.2d 584, 589 (Or. Ct. App. 1974). However,
the application of the three-part test delineated in Fondren becomes a pure question of law when only one reasonable conclusion may be
drawn from the evidence. Id. We conclude that these facts did not present a situation where the three-part Fondren test became a pure
question of law which could have been decided by a district judge pursuant to a motion for summary judgment.
On the issue of annexation, Brooks Trust argued that the signs were attached to the realty such that they became fixtures.
LeasePartners, however, presented evidence that the signs, while attached to the realty, could be removed without damaging the building.
building. We conclude that the evidence strongly indicated that the signage was firmly
secured to the realty and the hotel, and therefore the only reasonable conclusion that could
have been drawn from the evidence was that the signage was annexed to the structure.
The second issue was whether the signage was adapted to the use to which the real
property was devoted. Brooks Trust argued that the signage was specially designed and
engineered for the Royal and that the electric lighting was designed to advertise the Royal.
However, LeasePartners argued that the electronic message center could be removed and used
in any sign, that the sign was modular and could be reused and recreated at any other location,
and that the only unusable part of the sign was the word Royal. This conflicting evidence
allowed more than one reasonable conclusion to be drawn as to whether the signage was
adapted to the use to which the real property was devoted.
Finally, and most importantly, we reach the issue of intent of the parties. At the time the
equipment lease agreement was entered into between Ad Art and Danzig Corp., and also at
the time LeasePartners acquired Ad Art's interest and entered into a new lease with Danzig
Corp., the intention of Ad Art, LeasePartners, and Danzig Corp. was that the signs would
remain personal property. Brooks Trust argued, however, that it had a separate lease
agreement with Danzig Corp. which designated that everything, including all personal
property except for gaming equipment, would be surrendered with the Leased Property as a
part thereof, and that they were neither a party to nor bound by the Ad Art/Danzig Corp. or
LeasePartners/Danzig Corp. contracts.
It appears that there may be a conflict between the contract between Brooks Trust and
Danzig Corp. and the contract between LeasePartners and Danzig Corp. Clearly then, there is
more than one reasonable conclusion that can be drawn from the evidence as to the parties'
intentions regarding the characterization of the signs at the time of installation.
Therefore, this is not a situation where the district court could have concluded as a matter
of law that the signage was personal property or a fixture because (1) conflicting evidence
existed regarding the adaptation issue, (2) the annexation issue favored Brooks Trust, and (3)
the property at issue was characterized differently in the agreements Danzig Corp. executed.
Because we have concluded that the district court erred in determining as a matter of law
that the signs were fixtures, we need not reach the issue of whether LeasePartners had a
superior, perfected security interest in the signs. Such a determination can only be made after
a trier of fact determines whether the signs were personal property or fixtures.
only be made after a trier of fact determines whether the signs were personal property or
fixtures.
1
The district court erred in concluding as a matter of law that the Brooks Trust was not
unjustly enriched
Additionally, we conclude that the district court's conclusion that the Brooks Trust was not
unjustly enriched as a matter of law was also erroneous. LeasePartners' motion claimed that
the Brooks Trust was unjustly enriched by virtue of the fact that it received and did not pay
for several new signs valued at approximately $800,000. Brooks Trust argued that an action
for unjust enrichment was improper because a written contract existed and because it was not
unjustly enriched.
The phrase unjust enrichment' is used in law to characterize the result or effect of a
failure to make restitution of, or for, property or benefits received under such circumstances
as to give rise to a legal or equitable obligation to account therefor. 66 Am. Jur. 2d
Restitution 3 (1973).
[Headnote 7]
This court has stated:
The essential elements of quasi contract are a benefit conferred on the defendant by the plaintiff, appreciation by the defendant of
such benefit, and acceptance and retention by the defendant of such benefit under circumstances such that it would be inequitable
for him to retain the benefit without payment of the value thereof.
Unionamerica Mtg. v. McDonald, 97 Nev. 210, 212, 626 P.2d 1272, 1273 (1981) (quoting Dass v. Epplen, 424 P.2d 779, 780 (Colo.
1967)). Additionally, unjust enrichment occurs when ever [sic] a person has and retains a benefit which in equity and good conscience
belongs to another. Unionamerica Mtg., 97 Nev. at 212, 626 P.2d at 1273.
[Headnote 8]
An action based on a theory of unjust enrichment is not available when there is an express, written contract, because no agreement can
be implied when there is an express agreement. 66 Am.
__________

1
If the trier of fact concludes that the signs are personal property, it must then determine whether LeasePartners satisfied NRS
104.9401(1)(c) such that LeasePartners obtained a perfected security interest in the signs. If the trier of fact concludes that the signs are
fixtures, it must determine whether LeasePartners satisfied NRS 104.9401(2) or NRS 104.9313(5) such that LeasePartners obtained a
perfected security interest in the fixtures. We note that these are only some of the factors which the trier of fact must consider and that other
statutes may have relevance in these determinations.
Am. Jur. 2d Restitution 6 (1973). The doctrine of unjust enrichment or recovery in quasi
contract applies to situations where there is no legal contract but where the person sought to
be charged is in possession of money or property which in good conscience and justice he
should not retain but should deliver to another [or should pay for]. 66 Am. Jur. 2d
Restitution 11 (1973); see Lipshie v. Tracy Investment Co., 93 Nev. 370, 379, 566 P.2d
819, 824 (1977) (To permit recovery by quasi-contract where a written agreement exists
would constitute a subversion of contractual principles.).
[Headnote 9]
In the instant case, a written contract existed between Brooks Trust and Danzig Corp., and a written contract existed between
LeasePartners and Danzig Corp. However, no written contract existed between LeasePartners and Brooks Trust. Therefore, we conclude
that there was no written agreement as contemplated by either Lipshie or 66 Am. Jur. 2d Restitution 11, and a claim for restitution (and
unjust enrichment) was not barred on this ground.
[Headnote 10]
The issue therefore becomes whether Brooks Trust was unjustly enriched. LeasePartners argues that through the installment of the
signage, it conferred a benefit upon Brooks Trust which Brooks Trust has retained without payment. LeasePartners argues that it conferred
a benefit upon Brooks Trust because the new signs were bigger, more attractive, and more state of the art than the old signs which they
replaced. However, Brooks Trust was apparently satisfied with the old signs which were destroyed and therefore argues that any benefit
conferred upon it, if indeed there was any, was unwanted.
We conclude that this conflicting evidence regarding whether or not a benefit was conferred upon the Brooks Trust created a genuine
issue of material fact, and that the district court erred in granting summary judgment in favor of Brooks Trust on this issue but was correct
in denying LeasePartners' motion on the same. Therefore, this issue must be remanded to the district court for the trier of fact to determine
whether Brooks Trust was unjustly enriched, and if so, to what extent.
CONCLUSION
The district court erred in concluding as a matter of law that the signs were fixtures because genuine issues of material fact remained
regarding that issue. Additionally, the district court erred in granting summary judgment in favor of Brooks Trust on the issue of whether
Brooks Trust was unjustly enriched because genuine issues of material fact remained regarding that issue.
For the foregoing reasons, we reverse and remand this case to the district court for
proceedings consistent with this opinion.
2
Shearing, C. J., Rose, J., Zenoff, Sr. J., and Ames, D. J., concur.
__________

2
The Honorable David Zenoff, Senior Justice, was appointed to sit in place of The Honorable Thomas L.
Steffen, then Chief Justice. Nev. Const. art. 6, 19; SCR 10.
The Honorable Jack B. Ames, Judge of the Fourth Judicial District Court, was designated by the Governor to
sit in place of The Honorable Cliff Young, Justice. Nev. Const. art. 6, 4.
The Honorable Charles E. Springer, Justice, voluntarily recused himself from participation in the decision of
this appeal.
____________
113 Nev. 757, 757 (1997) Angle v. State
SUSAN LYNN ANGLE, Appellant, v. THE
No. 27450
July 15, 1997 942 P.2d 177
Appeal from a judgment of conviction pursuant to a jury trial of one count of driving
under the influence of alcohol. Fifth Judicial District Court, Nye County; John P. Davis,
Judge.
Defendant was convicted in the district court of driving under the influence of alcohol
(DUI). Defendant appealed. The supreme court held that: (1) trial court erred in refusing to
allow defendant to redact her admission that she had previously been convicted of driving
under the influence of alcohol from videotape of her booking that she wished to introduce
into evidence; (2) prosecutor improperly commented on defendant's post-arrest silence during
closing arguments; and (3) errors were not harmless and, thus, warranted new trial.
Harry R. Gensler, Public Defender, and Sharon Dockter, Deputy Public Defender, Nye
County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District
Attorney, and Kirk Vitto, Deputy District Attorney, Nye County, for Respondent.
1. Criminal Law.
Fact that defendant had completed her sentence did not render her appeal from conviction for driving under the influence of
alcohol (DUI) moot, as conviction could affect any sentences defendant might receive in future.
113 Nev. 757, 758 (1997) Angle v. State
2. Criminal Law.
Trial court erred in refusing to allow defendant to redact her admission that she had previously been convicted of driving under the
influence of alcohol (DUI) from videotape of her police station booking that she wished to introduce into evidence and, instead,
deciding that entire videotape had to be entered into evidence if at all and that limiting instruction would be given to jury, in
prosecution for driving under the influence of alcohol. Admission of prior conviction was not relevant since prior conviction was not
an element of instant crime and admission was prejudicial. NRS 48.015, 48.035(1).
3. Criminal Law.
Videotape of defendant's police station booking was relevant evidence in prosecution for driving under the influence of alcohol
(DUI). Videotape showed defendant walking and talking, and jury might have found videotape useful to determine whether defendant
was intoxicated. NRS 48.015.
4. Criminal Law.
Defendant's admission during her police station booking that she had previously been convicted of driving under the influence of
alcohol (DUI) was not relevant in prosecution for driving under the influence of alcohol, as previous convictions were not element of
instant offense. NRS 48.015.
5. Criminal Law.
Prosecutor improperly commented on defendant's post-arrest silence during closing arguments by commenting that, while
defendant was in police car and while she was being booked, she could have explained to officers things that she had testified to at
trial.
6. Criminal Law.
Prosecution is forbidden at trial to comment upon accused's election to remain silent following his arrest and after he had been
advised of his rights under Miranda.
7. Witnesses.
Prosecutor cannot use post-arrest pre-Miranda silence to impeach defendant.
8. Criminal Law.
In prosecution for driving under the influence of alcohol (DUI), prosecutor's remark during closing arguments on defendant's
silence during field sobriety test was not impermissible comment on defendant's post-arrest silence, as defendant had not yet been
arrested while she was taking test.
9. Criminal Law.
Prosecutor's improper comment during closing arguments on defendant's post-arrest silence, which was more than mere passing
reference, would nevertheless be harmless error if there was overwhelming evidence of defendant's guilt.
10. Criminal Law.
Overwhelming evidence of guilt did not exist and, thus, errors in trial court's refusal to allow defendant to redact her admission
that she had previously been convicted of driving under the influence of alcohol (DUI) from videotape of her police station booking
that she wished to introduce into evidence and prosecutor's improper comment on defendant's post-arrest silence were not harmless
beyond a reasonable doubt and, thus, warranted new trial for driving under the influence of alcohol, despite testimony of deputy
sheriffs and sheriff's department employee that defendant appeared to be intoxicated.
113 Nev. 757, 759 (1997) Angle v. State
that defendant appeared to be intoxicated. Videotape briefly exhibited defendant's motor functions and speech patterns and, had
videotape been redacted and played, jury might have come to different conclusion as to defendant's intoxication. NRS 48.015,
48.035(1).
OPINION
Per Curiam:
Appellant Susan Angle was arrested for driving under the influence of alcohol. Angle
argued that she was not drunk, but rather that she had taken allergy medication, had
consumed one beer, and that the combination of these two products gave the arresting officer
the erroneous impression that she was intoxicated. At the conclusion of trial, Angle was
convicted of driving under the influence of alcohol.
On appeal, Angle alleges that the prosecutor improperly commented on her post-arrest
silence during closing arguments, that the district judge incorrectly refused to redact a portion
of a videotape of Angle's booking at the police station, and that these errors require a reversal
of her conviction. We agree and remand this matter to the district court for a new trial.
FACTS
On April 26, 1994, Nye County Deputy Sheriff Gene Elbert was traveling westbound
when he saw an approaching eastbound car cross the center line of the roadway and then drift
back into the eastbound lane. Elbert made a U-turn and began to follow the car. He again saw
the car drift across the center line. As Elbert got closer to the suspect vehicle, the vehicle
drifted back across the eastbound lane and onto the gravel shoulder. Elbert then activated his
flashing red and blue lights and stopped the vehicle.
Elbert approached the vehicle; Angle produced a Wyoming driver's license but no
registration for the car. The car belonged to Angle's father, who Angle lived with in Pahrump.
Elbert testified that Angle slightly smelled of alcohol, her eyes were glassy, she had a blank
stare, and her speech was slow and pronounced. Elbert stated that when he asked Angle if she
had been drinking, Angle responded that she had consumed one beer at Our Bar, a local
saloon located about five miles from where Elbert stopped Angle. Elbert asked Angle to get
out of the car. When Angle complied, Elbert noticed that she was unsteady on her feet and
used her car for support.
Elbert administered a field sobriety test to Angle. Elbert administered the horizontal gaze
nystagmus test. He also asked Angle to count backwards from 89 to 69; to touch the tip of
her thumb to the tip of each finger, starting with the pinky, and to count from one to four
as she touched each finger; to close her eyes, tilt her head back, and touch her finger to
her nose; and to recite the alphabet.
113 Nev. 757, 760 (1997) Angle v. State
her thumb to the tip of each finger, starting with the pinky, and to count from one to four as
she touched each finger; to close her eyes, tilt her head back, and touch her finger to her nose;
and to recite the alphabet. Elbert testified that Angle failed every test except for the alphabet
test.
Angle refused to submit to a preliminary breath test, and Elbert stated that based on his
training, expertise, and observations, it was his opinion that Angle was under the influence of
alcohol. Elbert arrested Angle and took her to the police station's booking area, and Angle
again refused to submit to a breath test (blood tests were not available at the booking facility).
Dana Elbert, Deputy Elbert's wife, who at the time also worked for the Nye County
Sheriff's Department, was riding along in the car with Elbert on the night of Angle's arrest.
She stated that she was trained in the administration of field sobriety tests, that she observed
Elbert administer the test to Angle, and that Elbert had administered the test correctly. She
also stated that she had had close personal contact with Angle later on the evening of Angle's
arrest and that based on her training and experience, she believed that Angle was under the
influence of alcohol.
Former Deputy Sheriff Christopher Royer was the officer that conducted Angle's booking.
He stated that he had previously met Angle through a friend and testified that when he came
into contact with Angle, he noticed that she strongly smelled of alcohol, that her speech was
slow and stuttered, and that she was very unsteady and used the wall and counter for support.
He testified that he knew Angle's speech pattern from previously meeting her and that her
speech was different at the booking than it was at other times. Finally, he testified that Angle
admitted to him that she had consumed a few beers that night and knew that she should not
have been driving. Angle denied making this statement.
Angle testified that she suffered from severe allergies at the time of the arrest, and as a
result of those allergies, she coughed and sneezed constantly, had a runny nose and watery
eyes, and got headaches. She also stated that she did not drink during that day of her arrest,
but that she did have one beer at a softball game at approximately 7:00 p.m. Angle further
testified that the wind was blowing at the softball field, exacerbating her allergies, and that
even though she had taken her allergy medicine earlier, she was feeling so bad that she
needed to go home. Angle's friend, Deborah Davee, testified that she saw Angle at the
softball game and that Angle appeared sober. Davee also testified that Angle appeared to have
a cold, that her eyes had been red and watering, that she had a runny nose, and that she had
coughed periodically.
Angle stated that after she was detained by Elbert, she tried to comply with Elbert's
instructions and told Elbert that she was suffering from allergies.
113 Nev. 757, 761 (1997) Angle v. State
comply with Elbert's instructions and told Elbert that she was suffering from allergies. She
also stated that Elbert's spotlight was shining directly into her eyes, rendering her unable to
see clearly, and that this inability to see, combined with her bad knee and her having taken
allergy medicine, impaired her ability to take the field sobriety test. She stated that she had
refused to take the breath test after she was arrested because she believed the test was
inaccurate.
At trial, Angle requested to introduce into evidence a videotape of her booking at the
police station. The videotape showed Angle getting out of the police car, walking through a
hallway and into the booking room, and talking to Elbert and Royer; however, during part of
the videotape, Angle admitted that she had been convicted of driving under the influence of
alcohol before. Angle's counsel wished to redact that portion of the videotape containing the
admission, but the district court refused, stating that if the videotape was entered into
evidence, it would be shown in its entirety, and that a limiting instruction would be given to
the jury. Angle chose not to admit the videotape into evidence. Additionally, during closing
arguments, the prosecutor stated that Angle had ample opportunity to tell the arresting officer
of her allergy condition after her arrest but failed to do so.
[Headnote 1]
At the conclusion of a jury trial, Angle was convicted of driving under the influence of alcohol and was sentenced to one year in prison
and a $2,000 fine.
1
This sentence was based on the fact that Angle had been convicted three previous times of misdemeanor counts of
driving under the influence of alcohol (twice in Wyoming, once in Utah). Angle now appeals her conviction.
DISCUSSION
We conclude that the district court erred in refusing to redact from the videotape mention of Angle's prior DUI conviction and further
that the prosecutor improperly commented on Angle's post-arrest silence. The combination of these errors constituted reversible error.
The district court erred in failing to redact a portion of the videotape of Angle's booking
[Headnote 2]
At trial, Angle wished to admit into evidence the redacted version of the videotape of her booking. Angle's counsel argued that if the
prosecution had wanted to introduce the tape, it would not be permitted to include the portion containing the
admission; therefore, Angle's counsel stated that Angle should be afforded the same privilege.
__________

1
Presumably, Angle has completed her sentence. Even so, this appeal is not moot because Angle's conviction for driving under the
influence of alcohol could affect any sentences she may receive in the future. Arterburn v. State, 111 Nev. 1121, 1124 n.1, 901 P.2d 668,
670 n.1 (1995).
113 Nev. 757, 762 (1997) Angle v. State
that if the prosecution had wanted to introduce the tape, it would not be permitted to include
the portion containing the admission; therefore, Angle's counsel stated that Angle should be
afforded the same privilege. After the district judge refused to admit the redacted version of
the videotape, and instead decided that the entire tape would be admitted into evidence, but
that he would give the jury a limiting instruction that Angle's admission of having previously
been convicted of driving under the influence of alcohol was not to be used for a finding of
guilt in this case, Angle's counsel chose not to enter the tape into evidence. We conclude that
the district court's refusal to redact the portion of the videotape referring to Angle's prior
conviction was error.
[Headnotes 3, 4]
The videotape of Angle's booking was relevant evidence because it showed Angle walking and talking for a brief time, and a jury may
have found this tape useful to determine whether Angle was intoxicated. NRS 48.015. Furthermore, Angle's admission that she had
previously been convicted for driving under the influence of alcohol was not relevant, because previous convictions were not an element of
the instant crime, and its prejudicial value substantially outweighed its probative value. NRS 48.035(1). The challenged portions of the
videotape could have been easily redacted, and the district court's decision to permit mention of the prior conviction but then give a
limiting instruction would have been insufficient in this case to remove the prejudicial impact of the admission.
The deputy district attorney improperly commented on Angle's post-arrest silence
[Headnote 5]
We also conclude that the prosecutor improperly commented on Angle's post-arrest silence during closing arguments. During closing
arguments, the prosecutor made the following statement:
Defendant had time in the field, she had time in the car, she had time on the way [to the police station], she had time while she
was [at the police station], to explain all the things that she has presented to you today. She didn't do that. Not one of them.
Deputy Elbert would listen to those. I think it's pretty clear that you would agree that Deputy Elbert would have listened to
what she said and he would have given them weight accordingly.
Angle's counsel objected to this line of argument, stating that the prosecution was improperly commenting on Angle's post-arrest
silence. The district judge overruled the objection.
113 Nev. 757, 763 (1997) Angle v. State
[Headnotes 6, 7]
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 as required by Miranda v. Arizona . . . . McGee v. State, 102 Nev. 458, 461, 725 P.2d 1215,
1217 (1986). Furthermore, a prosecutor also cannot use post-arrest, pre-Miranda silence to impeach a defendant. Morris v. State, 112
Nev. 260, 263, 913 P.2d 1264, 1267 (1996) (citing Coleman v. State, 111 Nev. 657, 895 P.2d 653 (1995)).
[Headnote 8]
It is clear that the prosecutor improperly commented on Angle's post-arrest silence. The testimony demonstrated that after Angle failed
the field sobriety test, Elbert arrested her, placed her in his police car, and transported her to the station house to book her. The prosecutor
commented that while Angle was in the police car and while she was being booked, she could have explained to the officers the things that
she had testified to at trial. Such remarks were an obvious comment on Angle's post-arrest silence.
2
The combination of these two errors warrants reversal of Angle's conviction and remand to the district court for a new trial
[Headnotes 9, 10]
The prosecutor's comment on Angle's post-arrest silence was more than a passing reference, but this error would nevertheless be
harmless beyond a reasonable doubt if there was overwhelming evidence of Angle's guilt. Morris, 112 Nev. at 264, 913 P.2d at 1267.
However, we cannot determine that such overwhelming evidence existed in light of the district court's erroneous refusal to redact the
videotape, which prevented Angle from presenting and the jury from considering relevant evidence.
Elbert, his wife Dana, and Royer all testified that in their professional opinion, Angle appeared to be intoxicated. However, the
videotape briefly exhibited Angle's motor functions and speech patterns, and had the videotape been redacted and played, the jury might
have come to a different conclusion regarding Angle's intoxication. Of course, the jurors might have still found Angle guilty even after
seeing the videotape, but we cannot conclude beyond a reasonable doubt that they would have done so. Therefore, Angle's conviction must
be reversed and the case remanded to the district court for a new trial. Because we have reversed Angle's conviction, we need not
consider her remaining issues on appeal.
__________

2
However, the prosecutor's remark on Angle's silence during the field sobriety test was a proper comment because Angle had not yet
been arrested while she was taking the test.
113 Nev. 757, 764 (1997) Angle v. State
reversed Angle's conviction, we need not consider her remaining issues on appeal.
CONCLUSION
The district court erred in refusing to redact a portion of the videotape of Angle's booking,
and the prosecutor improperly commented on Angle's post-arrest silence. We conclude that
there was not overwhelming evidence of Angle's guilt, and we reverse Angle's conviction and
remand the case to the district court for a new trial.
3
__________

3
____________
113 Nev. 764, 764 (1997) American Casualty v. Union Welfare Fund
AMERICAN CASUALTY COMPANY OF READING, PA., a Corporation, Appellant, v.
HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS
INTERNATIONAL UNION WELFARE FUND, JOHN CULLERTON, LEWIS R.
COHEN, DONALD J. DEPORTER, PATRICK KANE, DOMINIC LUONGO, A.W.
MITCHELL, A.M. QUARLES, FREDERIC N. RICHMAN, WILLIAM SCHUMAN,
EDWARD HANLEY, RONALD RICHARDSON, JOHN KENNEALLY, HERBERT
TRIPLETT, VITO PITTA, FRANK GERACE, MICHAEL SLOAN, H.W. WARD,
DALE STORMER, JOHN WILHELM, JACK PENMAN, BRIAN HANDELMAN,
PAUL DIAMICO, C.A. CATALDO, JERRY BERNS, JOHN O'GARA, FLORENCE
FAIR, GAIL FABIAN, BEN SCHMOUTEY, JACK STAFFORD, MICHAEL
PISANELLO, RICHARD P. CRANE, JR., CHARLES R. ADKISSON, and
GREGORY E. SMITH, Respondents.
No. 24290
July 15, 1997 942 P.2d 172
Appeal from summary judgment; petition for rehearing. Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Fiduciary liability insurer sought declaratory judgment that policy did not cover judgment
against trustees of international union welfare fund for breach of contract claim by trustees of
local union welfare fund. The district court entered summary judgment in favor of
international fund. Insurer appealed. The supreme court held insurer was required to
indemnify trustees.
111 Nev. 591, 894 P.2d 371 (1995). Insurer petitioned for rehearing. The supreme court held
that: (1) judgment that international trustees were required to pay for their breach of contract
in failing to defend trustees of local health and welfare fund in third-party suit was not loss
that resulted from wrongful act within coverage of fiduciary liability policy, but (2) remand
was required on estoppel issue.
Rehearing granted; reversed and remanded.
Kummer Kaempfer Bonner & Renshaw, Las Vegas; Ross, Dixon & Masback and Lona T.
Perry, Washington, D.C., for Appellant.
Wells, Kravitz, Schnitzer & Sloane, Las Vegas, for Respondents.
Rehearing was appropriate to address issue that was overlooked in initial appellate opinion where issue altered outcome of appeal.
NRAP 40(c).
2. Compromise and Settlement; Insurance.
International union welfare fund's settlement of claims against its trustees settled obligation of trustees, not fund, for purposes of
trustees' protective liability insurance policy. Settlement agreement was in direct response to judgment against trustees as individuals,
and fact that fund paid settlement reflected fact that it was obligated to indemnify trustees anyway.
3. Insurance.
Coverage for wrongful acts in fiduciary liability policy was broad enough to include intentional breaches of contractual duties.
4. Insurance.
Judgment that international trustees were required to pay for their breach of contract in failing to defend trustees of local health
and welfare fund in third-party suit was not loss that resulted from wrongful act within coverage of fiduciary liability policy;
wrongful act of refusal to pay obligation was not cause of obligation, which arose from contract, such that loss would have occurred
without any wrongful act.
OPINION ON REHEARING
Per Curiam:
In our first Opinion in this case, American Casualty v. Union Welfare Fund, 111 Nev. 591,
894 P.2d 371 (1995), we affirmed the district court's order granting summary judgment in
favor of respondents. Appellant has petitioned for rehearing.
Appellant American Casualty Company (American) argues in its petition for rehearing that
this court overlooked its argument that the liability at issue in this matter arose from a
contractual obligation under a merger agreement, and is not a loss covered by the policy of
insurance American issued.
by the policy of insurance American issued. Specifically, American argues that the insureds
were simply required to pay money they had wrongfully withheld given their prior agreement
to pay. We agree.
[Headnote 1]
We overlooked this issue in our prior Opinion. Because this court's Opinion neglected to decide an issue presented in the briefs, and
because that issue must be decided in favor of appellant, we grant rehearing. NRAP 40(c) (rehearing will be granted when this court has
overlooked a material matter and when rehearing will promote substantial justice). For the reasons expressed below, we reverse the
summary judgment in favor of respondents, and we remand this matter to the district court for further proceedings.
FACTS
Respondent Hotel and Restaurant Employees and Bartenders International Union Welfare Fund (the International Fund), was formed as
an umbrella organization for various health and welfare trusts from around the United States to increase culinary union members'
purchasing power of health and welfare services.
Pursuant to a declaration and agreement (the trust agreement) which established the International Fund, the International Fund is
governed by appointed trustees (the international trustees). Paragraphs 9.01-9.04 of the trust agreement provide that the International Fund
will indemnify the international trustees for actions they take and decisions they make on behalf of the International Fund, provided that the
international trustees do not violate the Employee Retirement Income Security Act (ERISA). As further protection for the international
trustees, the trust agreement requires the International Fund to carry fiduciary liability insurance to cover the international trustees' acts or
omissions which violate their fiduciary duties. To that end, the International Fund purchased from American a Trustees Protective
Liability Insurance Policy (the policy) to cover claims made against the international trustees for wrongful acts.
1
It is the scope of this
policy that is at issue in this appeal.
On October 7, 1980, prior to the purchase of the policy, the international trustees entered into an agreement (the merger agreement)
with the trustees of the Southern Nevada Hotel and Restaurant Employees and Bartenders Union Welfare Fund (the Local Fund and the
local trustees). Under this merger agreement, the assets of the Local Fund, worth approximately thirty million dollars, were added to
the International Fund.
__________

1
The policy provided coverage from October 18, 1981, to October 18, 1984, and had a retroactive date to 1974.
dollars, were added to the International Fund. The Local Fund was left with no assets. In
consideration for this thirty million dollar payment, the merger agreement provided that the
international trustees would indemnify the local trustees for any losses, damages or claims
brought against the local trustees, so long as the local trustees did not violate ERISA. Thus,
the international trustees' obligation to indemnify the local trustees was contractual, and was
bought and paid for.
The local trustees were subsequently sued. The international trustees elected not to defend
or indemnify the local trustees. The decision not to defend was based in part on the fact that
the complaint included allegations that the local trustees had violated ERISA. The
international trustees maintained that they were not required to defend the local trustees if
violations of ERISA had occurred. Actually, the merger agreement absolutely required the
international trustees to defend the local trustees, but allowed the international trustees to
recover from any local trustee any costs and expenses incurred in defending any such [local]
Trustee if the local trustee was adjudged in any action, suit, or proceeding to be guilty of
any violation of ERISA. (Emphasis added.) Thus, the mere allegation of ERISA violations
was not a valid basis for the international trustees' refusal to defend the local trustees.
The local trustees brought a lawsuit in federal court against the international trustees,
claiming that the local trustees were entitled to indemnification.
2
On March 25, 1983, the
International Fund, through its attorney Jack Reynolds, made a written demand on American
to defend the international trustees against the local trustees' lawsuit. In response to this
demand, American took various actions in the lawsuit on behalf of the international trustees,
allegedly without reserving any rights. However, on December 21, 1983, American provided
the International Fund with a detailed reservation of rights indicating that a defense would be
provided but that, under the policy, the international trustees were not entitled to
indemnification for damages as a result of the lawsuit.
3
In May of 1988, judgment was entered in the federal lawsuit in favor of the local trustees
against the international trustees for breach of contract.
__________

2
This action was filed in federal court as a counterclaim to a related action that was pending in federal court.

3
The record indicates that American asserted a general reservation of rights on September 30, 1983, but did
not state specific grounds for the reservation of rights at that time. American provided the International Fund
with a detailed reservation of rights on December 21, 1983, and that reservation of rights included the theory on
which American relies in this appeal, and particularly in this petition for rehearing.
breach of contract. Because the local trustees had prevailed on the claims alleging ERISA
violations, the international trustees were held contractually liable for the local trustees' legal
costs in defending the suit. This was the consideration that had been purchased and paid for
by the local trustees in the merger agreement.
The International Fund subsequently settled with the local trustees for $750,000. The
International Fund then brought suit in federal court against American, seeking a declaration
that the international trustees were entitled to indemnification under the policy. The
International Fund argued alternatively that coverage existed based on a theory of estoppel.
The federal district court dismissed the lawsuit without prejudice for lack of complete
diversity.
American then sought a declaratory judgment in state district court against the
International Fund and its trustees, claiming that no coverage existed under the terms of the
policy and Illinois law. The International Fund counterclaimed, asserting the same arguments
it had asserted in federal court. Both sides moved for summary judgment, which the district
court granted in the International Fund's favor. American appeals.
DISCUSSION
[Headnote 2]
In our first Opinion in this case, we determined that the policy provided coverage to the international trustees, but not to the
International Fund. American, 111 Nev. at 595, 894 P.2d at 374. We further determined that the liability resulting from the federal
judgment was incurred by the international trustees, not by the International Fund. Id. We specifically reaffirm those determinations.
Nevertheless, we stated in our prior Opinion that [i]f the settlement was to settle an obligation of the [international] Trustees, then
American is required to indemnify the [international] Trustees under the Policy. It is this statement which may have been too broad.
American is, of course, only required to indemnify the international trustees to the extent that the policy covers the loss at issue. We
neglected to address the question of whether the policy covers the loss at issue. We turn now to address that question.
[Headnote 3]
American contends in its petition for rehearing that this court overlooked American's argument that the policy does not cover claims
for intentional breaches of contract because the policy covers only fortuitous acts. Our prior Opinion in this matter, however,
specifically states that the issue "is whether respondents were entitled to indemnification . . . for a judgment
respondents were required to pay when they breached a contract."
however, specifically states that the issue is whether respondents were entitled to
indemnification . . . for a judgment respondents were required to pay when they breached a
contract. American, 111 Nev. at 592, 894 P.2d at 372. Although we did not address the
question of whether the policy covered intentional acts, we were aware of the argument, and
we impliedly rejected it when we concluded that the district court was correct in finding that
the Policy required American to indemnify the [International] Fund. Id. at 596, 894 P.2d at
375.
We note that the policy provided coverage for wrongful acts, and defined that term
broadly to include any actual or alleged error or misstatement or misleading statement or act
or omission or neglect or breach of duty by the Insureds in the discharge of their duties,
individually or collectively, on behalf of the Trust. Policy II(c). Further, the policy
expressly excluded coverage for intentional acts which amounted to a crime, but did not
exclude coverage for intentional acts not amounting to a crime. Policy III(a)(5). Although
the international trustees intentionally breached the merger agreement, they did so for alleged
business reasons, in the discharge of their duties to and on behalf of the International Fund.
Also, there has never been any allegation that the international trustees were guilty of any
criminal act. We conclude, therefore, that the policy was expressly intended to cover the
intentional acts of the international trustees at issue in this case.
[Headnote 4]
Nevertheless, American contends correctly that the judgment against it in this case represents an amount that cannot be properly
considered a loss resulting from any wrongful act of the international trustees. The policy provides that American agrees that if claim
or claims are [sic] first made against the Insureds [i.e., the international trustees], individually or collectively during the policy year for a
Wrongful Act, [American] will pay on behalf of the Insureds all loss which said Insureds shall be legally obligated to pay. Policy I(a)
(emphasis added). Although a loss is defined very broadly to include almost any amount awarded against the insureds, the issue in this case
is not the definition of loss, or whether the damages in this case could fall within that definition. Instead, the issue is whether the
judgment which the international trustees were required to pay was a loss that resulted from any wrongful act of the international
trustees. Simply put, the policy only covers loss resulting from wrongful acts, whether actually committed or merely alleged.
American argued in the district court and in its briefs in this court that the policy did not cover the loss in this case because the loss in
this case did not result from any "wrongful act" of the international trustees; the "loss" was not a loss at all; it
was merely the judicial enforcement of the international trustees' contractual obligations to the local trustees
under the merger agreement.
loss in this case did not result from any wrongful act of the international trustees; the loss
was not a loss at all; it was merely the judicial enforcement of the international trustees'
contractual obligations to the local trustees under the merger agreement. American argues that
it never agreed to pay the international trustees' obligations under the merger agreement; an
obligation for which the international trustees were fully paid.
The loss in this case did not result from any actual or alleged wrongful act of the
international trustees. The wrongful act was the failure to defend.
4
The only loss this failure
occasioned was the expense involved in defending the action of the local trustees against the
international trustees. This failure to defend did not result in the local trustees' costs in
defending the third party action against them, because the costs involved in defending the
third party suit would have been incurred whether or not the international trustees had
committed the wrongful act of failing to defend the local trustees. Although the local trustees
initially paid the costs of defending against the third party suit, the international trustees were
contractually obligated to bear those costs. Had the international trustees not committed the
wrongful act of failing to defend the local trustees, i.e., had the international trustees elected
to honor their obligation and defend the local trustees, the international trustees would have
been obligated to pay the cost of the defense, and they would not have been in a position to
pass their legal obligation on to their insurance carrier. It is the cost of this defense that was
reduced to a judgment in the federal action against the international trustees.
The international trustees were required to pay their contractual obligation. This
contractual obligation did not result from their wrongful act of refusing to satisfy it. To hold
otherwise would allow an insured to turn all of its legal liabilities into insured events by the
intentional act of refusing to pay them. The refusal to pay an obligation simply is not the
cause of the obligation, and the international trustees' wrongful act in this case did not result
in their obligation to pay; their contract imposed on them the obligation to pay.
The international trustees argue that the obligation to indemnify the local trustees would
have arisen as a matter of law as a result of the merger between the two funds.
__________

4
The only wrongful act the international trustees relied on in their suit against American was the international
trustees intentional breach of the merger agreement with the local trustees. This fact was reaffirmed at the oral
argument in this case. Justice Rose asked: What was the wrong they [the international trustees] did? Counsel
for respondents replied: Nothing more than the breach of contract itself by not providing a defense. Justice
Rose stated: That was it? Counsel replied: That was it.
nify the local trustees would have arisen as a matter of law as a result of the merger between
the two funds. Thus, they argue that their obligation is not merely contractual, but is also a
legal debt which should be covered by the policy.
5
This argument misses the point. The
policy is not a general liabilities policy. It does not purport to cover any liability that the
international trustees might incur personally or on behalf of the International Fund. Instead,
the policy is expressly limited to loss resulting from a wrongful act. It is irrelevant whether
the international trustees' obligation to indemnify the local trustees is express or implied; that
liability is the result of a lawful merger, not of any wrongful act.
American did not insure the international trustees against debts they are obligated to pay
pursuant to the merger agreement with the local trustees. Because the judgment of the district
court is based on a theory that the contractual obligation of the international trustees under the
merger agreement is covered as a loss under the policy, we must reverse that judgment.
We note, nevertheless, that the international trustees argued below that they were entitled
to coverage under a theory of estoppel based on Illinois law. Specifically, the international
trustees argued that, under Illinois law, American waived its right to contest coverage under
the policy when it undertook to defend the international trustees in the local trustees' suit
against them without making a timely reservation of rights. The international trustees argue
further that they have been prejudiced by American's actions in their ability to defend the suit
brought by the local trustees. American sought summary judgment on the international
trustees' claim of estoppel, but the district court expressly denied summary judgment on this
ground, concluding that material issues of fact remained for trial. On appeal, all parties argue
that summary judgment on this issue should have been granted in their favor.
We decline the parties' invitations to decide this issue in the first instance in this appeal.
Accordingly, we reverse the district court's judgment, and we remand this matter to the
district court for further proceedings consistent with this Opinion.
6
__________

5
The international trustees' reliance on Silver v. Telerent Leasing, 105 Nev. 30, 768 P.2d 879 (1989), is
misplaced. In that case, this court found the right of indemnification in the express agreements of the parties. We
did not imply a right of indemnity. Nevertheless, in an appropriate case, an indemnity will be implied from the
relationship of the parties. See Reid v. Royal Insurance Co., 80 Nev. 137, 390 P.2d 45 (1964).

6
____________
113 Nev. 772, 772 (1997) Johnson v. State
NORMAN EARL JOHNSON, Appellant, v.
No. 27001
July 15, 1997 942 P.2d 167
Appeal from a judgment of conviction entered pursuant to a jury verdict of one count each
of sexual assault and attempted sexual assault. Eighth Judicial District Court, Clark County;
Lee A. Gates, Judge.
Defendant was convicted in the district court of sexual assault and attempted sexual
assault. Defendant appealed. The supreme court, Shearing, C. J., held that: (1) evidence of
alleged prior sexual molestation of victim was irrelevant and inadmissible under rape shield
law to rebut victim's claim that she had never had sexual intercourse prior to date of alleged
incident involving defendant, and (2) any error by trial court in allegedly excluding evidence
of alleged prior sexual molestation was harmless, as jury was made aware of those alleged
prior sexual contacts.
Affirmed.
Rose and Springer, JJ., dissented.
Thomas C. Naylor, Las Vegas, for Appellant.
James N. Tufteland, Chief Deputy District Attorney, and Mary K. Holthus, Deputy District
1. Criminal Law.
Defendant failed to preserve for appeal contention that trial court improperly excluded testimony as to victim's alleged prior sexual
conduct by failing to preserve record of proceedings in which court allegedly refused to admit subject evidence, in prosecution for
sexual assault and attempted sexual assault; defendant had available procedure for establishing record of unreported hearings, but
failed to utilize it. NRAP 10(c).
2. Criminal Law.
It was defendant's responsibility to make adequate appellate record.
3. Criminal Law.
Supreme court cannot properly consider matters not appearing in appellate record.
4. Rape.
Evidence of alleged prior sexual molestation of victim was irrelevant and inadmissible under rape shield law to rebut victim's
claim that she had never had sexual intercourse prior to date of alleged incident involving defendant, in prosecution for sexual assault
and attempted sexual assault. There was no evidence that victim was sexually penetrated by alleged molesters and, thus,
evidence was of no probative value in challenging victim's claim that she had not previously had sexual
intercourse.
trated by alleged molesters and, thus, evidence was of no probative value in challenging victim's claim that she had not previously had
sexual intercourse. NRS 50.090.
5. Criminal Law.
Decision to admit or exclude evidence is within sound discretion of district court.
6. Rape.
Purposes of rape shield law include protecting rape victims from degrading and embarrassing disclosure of intimate details
about their private lives and encouraging rape victims to come forward and report crimes and testify in court protected from
unnecessary indignities and needless probing into their respective sexual histories. NRS 50.090.
7. Witnesses.
Under rape shield law, once victim testified that she had never had sexual intercourse prior to night of alleged rape, defense had
right to attempt to discredit testimony by showing that victim was not virgin, in prosecution for sexual assault and attempted sexual
assault. NRS 50.090.
8. Criminal Law.
Any error by trial court in allegedly excluding evidence of victim's alleged prior sexual conduct was harmless in prosecution for
sexual assault and attempted sexual assault, as jury was made aware of those alleged prior sexual contacts through testimony, was not
directed to disregard testimony, and nevertheless chose to believe victim. NRS 50.090.
OPINION
On February 3, 1994, Nicole, a seventeen-year-old Las Vegas high school student, ran
away from home. Nicole's friend Heather Collins (Heather), who was then living at the
family home of her boyfriend David Miller (David), agreed to let Nicole stay with them.
Subsequently, David's mother, Ms. Nellie Miller (Ms. Miller), sent Nicole to stay with Ms.
Miller's daughter Donna. Donna lived in North Las Vegas with her fianc, appellant Norman
Johnson (Norman).
Nicole's first night at Norman and Donna's apartment apparently passed without incident.
The following night, David and Heather spent the evening in the apartment with Nicole.
According to Nicole's testimony, Donna went to work at around 7:30 p.m. Norman, who did
not work that day, was in and out of the apartment all evening. David, Heather, and Nicole
watched television and drank beer. Nicole testified that David became quite intoxicated and
tried to kiss her. Nicole testified that she drank only a few sips of the beer.
According to Nicole, after David and Heather retired to a bedroom, Norman returned
home.
bedroom, Norman returned home. Norman's entrance awakened Nicole, who was sleeping on
a couch in the living room. Nicole testified that Norman did not appear intoxicated. She
further testified that Norman sat down next to her, put his hand on her, and stated, I'm not
going to bite you. Nicole rose from the couch and proceeded down a short hallway toward
the back bedroom. She intended to go to sleep.
Norman then grabbed Nicole, forced her to the ground, removed her clothing and a
tampon, and raped her in the hallway near the bedroom where David and Heather were
sleeping. Norman pinned Nicole's arms over her head and also tried to place his penis in
Nicole's mouth. Some time later, Nicole escaped Norman's grasp and ran into David and
Heather's room. Nicole testified that she did not awaken David or Heather because she was
scared . . . [and] felt dirty.
Norman's version of the night's events is very different. He testified that he arrived home
while David, Heather, and Nicole were still awake. Both Norman and David testified that
Nicole was drunk. Norman testified that he watched David and Heather go to the bedroom,
picked up his baby daughter off the couch, then spent the remainder of the evening in his
room, and was only interrupted when David and he talked for a while at around midnight.
After David left, Norman allegedly fell asleep and did not wake up until the following
morning. According to Norman, he only encountered Nicole a few times that night, and his
only physical touching of her was when he and David picked up the staggering, intoxicated
Nicole and put her in the second bedroom.
The next morning Nicole told Heather her account of the previous night's events. David
also learned of the alleged incident and moved Nicole to his other sister's house for the next
several days. According to Nicole's mother, David told her that Norman had bragged that he
had devirginized Nicole and stuck her.
About five days after the incident, Shane Robb, a Las Vegas police officer and friend of
Nicole's parents, found Nicole. He took Nicole to a facility for runaways. There, after
inquiries by intake personnel, Nicole admitted that she had been raped. She later recounted
the events to several police officers and identified Norman in a photo lineup.
On February 24, 1994, Nicole received an examination by a sexual abuse team. Dr. Ellis
Olson, a physician on that staff, determined by using a sophisticated camera-type instrument
that hymenal tearing in Nicole's vagina was consistent with an object, perhaps a penis,
penetrating that area. He also stated that Nicole's injuries were those normally found in
somebody who has not been penetrated in the past.
A preliminary hearing took place on June 20, 1994. During cross-examination, Nicole
testified that she was touched by Uncle Jeff, a friend of her mother's, when she was nine
or ten years old. It appears that defense counsel also attempted to introduce a police report
that made reference to the Uncle Jeff incident, but Judge Kelly refused to admit it. After
Nicole testified that she had filed a sexual abuse claim against Uncle Jeff in 1993, the
defense ended this line of inquiry.
On October 24, 1994, the trial commenced. Nicole and Norman testified. The only
nontestimonial evidence of the alleged event presented during trial was a video, displayed and
explained to the jury by Dr. Olson, showing Nicole's inner-vaginal hymenal tearing.
There is some indication that the district court made nontranscribed rulings both before
and during the trial attempting to exclude any reference to the alleged Uncle Jeff incident
and to allegations that Nicole's stepfather had abused her. Despite any such rulings that might
have been made, Ms. Miller testified that Nicole had admitted that she was sexually assaulted
by her stepfather and uncle. Immediately after this testimony, a nontranscribed bench
conference was held. After the conference, the trial judge did not direct the jury to disregard
Ms. Miller's statement or strike that testimony from the record.
In later testimony, Nicole denied that she had been sexually or physically abused by her
stepfather. Nicole's mother denied that her husband (Nicole's stepfather) had physically
abused Nicole.
After David and Ms. Miller had testified, Nicole was recalled to the stand. She testified
that she had never had sexual intercourse prior to February 4, 1994. Defense counsel did not
object to this testimony or attempt to challenge this assertion during cross-examination.
During closing arguments, the prosecutor argued that Nicole had voluntarily waived the
protections of the rape shield law. The defense did not object to that statement.
The jury returned guilty verdicts on the sexual assault count based on the sexual
penetration and on the count of attempted sexual assault for Norman's attempts to place his
penis in Nicole's mouth. The district court sentenced Norman to twenty years on the sexual
assault charge and ten years on the attempted sexual assault charge, to run concurrently.
Norman filed a timely notice of appeal.
DISCUSSION
Norman contends that his conviction should be reversed because the district court
improperly excluded testimony regarding the prior sexual experience of Nicole. His
contention lacks merit.
[Headnotes 1-3]
First, appellant failed to preserve a record of the proceedings in which the district court allegedly refused to admit any evidence
concerning Nicole's alleged prior sexual conduct with Uncle Jeff and her stepfather. It is appellant's responsibility to make an adequate
appellate record. Carson Ready Mix v. First Nat'l Bk., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981). We cannot properly consider matters
not appearing in that record. Id., 635 P.2d at 277. The record does not properly establish any lower court error which has been preserved for
appellate review respecting the district court's review of the Uncle Jeff and stepfather evidence. See id. at 477, 635 P.2d at 278 (appellant
failed to preserve for appeal its claims of error where no adequate record of nontranscribed in camera hearing existed). Appellant had
available the procedure outlined in NRAP 10(c) for establishing a record of unreported hearings, but failed to utilize it.
[Headnotes 4, 5]
Second, even if the district court had limited evidence of prior sexual experience, the judge had the authority to do so. The decision to
admit or exclude evidence is within the sound discretion of the district court. Greene v. State, 113 Nev. 157, 166, 931 P.2d 54, 60 (1997).
[Headnote 6]
In any prosecution for sexual assault . . . , the accused may not present evidence of any previous sexual conduct of the victim
of the crime to challenge the victim's credibility as a witness unless the prosecutor has presented evidence or the victim has
testified concerning such conduct, or the absence of such conduct, in which case the scope of the accused's cross-examination of
the victim or rebuttal must be limited to the evidence presented by the prosecutor or victim.
Among the purposes of this rape shield law are to protect rape victims from degrading and embarrassing disclosure of intimate details
about their private lives . . . [and to] encourage rape victims to come forward and report the crimes and testify in court protected from
unnecessary indignities and needless probing into their respective sexual histories.' Summitt v. State, 101 Nev. 159, 161, 697 P.2d 1374,
1375 (1985) (citations omitted).
While Nicole's preliminary hearing testimony indicates that she may have been molested, there is no evidence in the record to support
the proposition that Nicole was sexually penetrated by her Uncle Jeff or her stepfather. Consequently, the Uncle Jeff" and
stepfather evidence was of no probative value in challenging Nicole's claims that she had never had sexual
intercourse prior to February 4, 1994.
Jeff and stepfather evidence was of no probative value in challenging Nicole's claims that
she had never had sexual intercourse prior to February 4, 1994. Given these circumstances,
we conclude that this prior sexual conduct evidence was irrelevant and should have been
properly excluded under NRS 50.090. This is not a case where Nicole's knowledge or lack of
knowledge is relevant as in Summitt v. State, supra. The only question was the credibility of
Nicole in stating that she was a virgin until the night of the attack. The jury heard
contradictory evidence and chose to believe Nicole.
[Headnote 7]
NRS 50.090 permits the defense to challenge a victim's claims of the absence of previous sexual conduct; however, the accused's
cross-examination of the victim or rebuttal must be limited to the evidence presented by the prosecutor or victim. Consequently, once
Nicole testified that she had never had sexual intercourse prior to the night of the rape, the defense had the right to attempt to discredit this
testimony by showing that Nicole was not a virgin. However, counsel did not cross-examine Nicole on this issue, attempt to introduce any
evidence to challenge Nicole's statement, or make any relevant objection on the record in this matter. The defense may not use the appellate
courts to relitigate strategic decisions made during trial.
[Headnote 8]
The third and most important reason that Norman's contentions regarding exclusion of evidence are without merit is that evidence of
both the stepfather and Uncle Jeff incidents was presented to the jury. Ms. Miller testified that Nicole allegedly revealed that she had
been sexually assaulted by her stepfather and uncle. The judge did not direct the jury to disregard this testimony. Thus, the jury was made
aware of Nicole's alleged prior sexual contacts and nevertheless chose to believe Nicole. Accordingly, we conclude that Norman's argument
lacks merit.
We conclude that Norman's remaining contentions are without merit or not appropriate for consideration on direct appeal and thus we
affirm the jury verdict and sentencing in all respects.
Young and Maupin, JJ., concur.
Rose, J., with whom Springer, J., joins, dissenting:
The prosecution presented a runaway teenager as a virgin whom appellant sexually assaulted, causing a hymenal tear. The jury was
shown a photograph of the tear that had been taken with a sophisticated medical camera. The examining physician stated that a penis
could have caused this damage and that the injury is normally found in "somebody who has not been
penetrated in the past."
that a penis could have caused this damage and that the injury is normally found in
somebody who has not been penetrated in the past. Therefore, the issue of the victim's
virginity was placed in issue by the victim and the prosecution.
At the preliminary hearing, the victim testified that she had been sexually assaulted by
Uncle Jeff when she was nine or ten years old and had filed a criminal charge against him
in 1993. The defense attempted to introduce a police report that documented the incident, but
the justice of the peace refused its admission or any further evidence of the prior sexual
assault, other than the fact that it had occurred, because of the rape shield law.
Norman's counsel represents that at trial he wanted to introduce the Uncle Jeff sexual
assault to counter the victim's claims of virginity, but was precluded by the district judge.
Unfortunately, there is no record of this hearing or of the district judge's ruling that refused to
let in the Uncle Jeff evidence. However, Norman's counsel attempted to question Nellie
Miller, the mother of Donna Miller (who was engaged to Norman), regarding whether the
victim had ever told Miller that she had been sexually assaulted. After Miller stated that the
victim had told her that she had been sexually assaulted both by her stepfather and her
mother's friend, presumably Uncle Jeff, the prosecution objected, and an unreported
conference was held at the bench. After the conference, Norman's counsel asked Miller
questions regarding whether the victim had told her that she had been subjected to verbal and
physical abuse, but not sexual abuse, by her father, and no questions were asked regarding
what the victim had told her about the sexual assault committed by Uncle Jeff. The logical
inference is that the judge instructed Norman's counsel that the victim's sexual history was
inadmissible pursuant to the rape shield law. This inference was bolstered by the fact that
Norman's counsel did not cross-examine the victim after the victim testified that she was a
virgin, even though the victim had testified at the preliminary hearing that she had been
sexually assaulted by Uncle Jeff when she was nine or ten years of age.
The result of all of this was that the jury was left with an untruth, based on the victim's
preliminary hearing testimony, that the victim had never been sexually penetrated, whether
voluntarily or involuntarily, and had no independent knowledge of similar sexual acts.
Furthermore, Norman was denied the opportunity to prove that the graphic hymenal tear
shown to the jury in a photograph could well have been caused by Uncle Jeff. The
prosecutor also argued to the jury that the victim had waived the protection of the rape
shield law when just the opposite was apparently true.
protection of the rape shield law when just the opposite was apparently true.
This was a close case that hinged on the credibility of the accuser and the accused. There
was no corroborating evidence other than the photo and the fact that both were at the
apartment on the evening that the incident allegedly occurred. The victim testified that the
attack took place right outside the bedroom of her friends and that she screamed repeatedly.
However, the friends heard nothing that evening and were surprised when the victim told
them the next morning that she had been raped. The male friend stated that when he went to
bed, the victim was intoxicated and had been kissing him. Although this evidence was also
initially disallowed by the district judge, it was eventually presented to the jury.
The case of Summitt v. State, 101 Nev. 159, 163, 697 P.2d 1374, 1377 (1985), is
strikingly similar to this case, and I believe it mandates reversal. In Summitt, the defendant
sought to introduce evidence that the six-year-old victim had been sexually assaulted
previously in order to show that, despite her young age, the victim had independent
knowledge of similar sexual acts. Id. at 163-66, 697 P.2d at 1375-77. The testimony was thus
offered for the limited purpose of challenging her credibility by dispelling certain inferences
related to her youth; the remaining evidence of guilt was not strong, and the accuracy and
truthfulness of the victim's testimony were key elements in the case against the defendant. Id.
at 163-66, 697 P.2d at 1377. This court held that the district court's exclusion of this
testimony constituted reversible error requiring a new trial. Id. I find no fundamental
distinction between Summitt and the case at bar.
Furthermore, the testimony regarding Uncle Jeff's (and the stepfather's) sexual assaults
was admissible because it was used to show that somebody other than Johnson caused the
damage, not to prove that the victim consented to the sexual activity. See Cox v. State, 102
Nev. 253, 256, 721 P.2d 358, 360 (1986) (NRS 48.069 applies only to cases in which
evidence of prior sexual conduct is offered to prove that a victim consented to sexual
activity). Furthermore, under this theory that Uncle Jeff or the stepfather caused the
damage, the evidence was not precluded by NRS 50.090, because it was not offered to
challenge the victim's credibility.
However, the evidence was also admissible to challenge the victim's credibility as a
witness pursuant to NRS 50.090, which authorizes such a use if the witness has testified to
such conduct. The victim testified at trial that she was a virgin. Therefore, Norman's counsel
should have been permitted to cross-examine the victim regarding her testimony at the
preliminary hearing that she had been sexually assaulted by "Uncle Jeff."
the victim regarding her testimony at the preliminary hearing that she had been sexually
assaulted by Uncle Jeff.
Accordingly, I would reverse this case and remand it to the district court for a new trial
because important, reliable evidence that would have attacked the victim's credibility was not
presented to the jury.
____________
113 Nev. 780, 780 (1997) Ducksworth v. State
RONALD DUCKSWORTH, JR. and CARL LEE MARTIN, Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 25415
July 15, 1997 942 P.2d 157
Appeals from separate judgments of conviction, pursuant to jury verdicts, of two counts of
murder with use of a deadly weapon, two counts of first degree kidnapping with use of a
deadly weapon, and one count each of burglary with use of a deadly weapon, sexual assault
with use of a deadly weapon, and robbery with use of a deadly weapon. Eighth Judicial
District Court, Clark County; Sally L. Loehrer, Judge.
Defendant and co-defendant were convicted upon jury verdict in the district court of two
counts of murder with use of deadly weapon, two counts of first-degree kidnapping with use
of deadly weapon, and one count each of burglary with use of deadly weapon, sexual assault
with use of deadly weapon, and robbery with use of deadly weapon. Defendant and
co-defendant appealed. The supreme court held that: (1) trial court's refusal to allow
defendant to call witness at penalty hearing, based on her indication that she would invoke
her Fifth Amendment rights regarding uncharged murder, did not violate defendant's right to
cross examine witness; (2) court's failure to give defendant's requested penalty phase jury
instructions on aggravating circumstances was not prejudicial; (3) sufficient evidence
supported defendant's conviction for sexual assault with use of deadly weapon; (4) evidence
did not support defendant's conviction for kidnapping; and (5) co-defendant was prejudiced
by trial court's erroneous failure to sever joint trial.
Affirmed in part and reversed in part with regard to appellant Ducksworth; reversed
and remanded with regard to appellant Martin.
Rehearing denied. Ducksworth v. State, 114 Nev.
------
,
------
P.2d
------
(Adv. Op.
No. 106, September 24, 1998)
Gensler & Kuehn, Las Vegas, for Appellant Ducksworth.
Sgro & Perry, Las Vegas, for Appellant Martin.
and James Tufteland, Chief Deputy District Attorney, and Kimberly Maxson, Deputy District
1. Criminal Law.
Prosecution did not improperly withhold evidence of witness' potentional involvement in uncharged murder, where prosecution
disclosed impeaching evidence to defense counsel on day after witness disclosed evidence.
2. Criminal Law.
Trial court's refusal to allow defendant to call witness at penalty hearing in murder prosecution did not violate defendant's right to
confront and cross-examine witness regarding witness' alleged involvement in uncharged murder, where witness indicated that she
would invoke her Fifth Amendment right in regard to any question about uncharged murder, and other witnesses had already provided
incriminating evidence against defendant regarding uncharged murder. U.S. Const. amend. 6.
3. Homicide.
Jury instruction on premeditation in murder prosecution, that premeditation is a design, a determination to kill, distinctly formed
in mind at any moment before or at any time of killing, was not vague. U.S. Const. amend. 14.
4. Criminal Law.
Defendants are entitled to jury instructions on their theories of case so long as there is some evidence, regardless of how weak or
incredible, to support their theories; however, defendant is not entitled to instruction which incorrectly states the law.
5. Criminal Law.
Trial court's refusal of defendant's proposed jury instruction concerning sentence for first-degree murder was not error, where
proposed instruction was essentially same as instruction given by court.
6. Homicide.
Defendant was not prejudiced by trial court's failure to give defendant's requested jury instructions concerning aggravating
circumstances at penalty phase of murder prosecution, where defendant did not receive death penalty.
7. Criminal Law.
Sufficient evidence supported conviction for sexual assault with use of deadly weapon, where defendant admitted that victim had
been raped and that he was present when acts occurred, although he claimed he was not involved in acts, victim's nightgown had been
moved above her waist, her underwear was cut off, pair of scissors was found on dresser nearby, semen was present on inside of pair of
black jeans found in bathroom and on floor under victim's pelvic area, and hair found on victim's nightgown matched defendant's.
8. Criminal Law.
Sufficient evidence did not support defendant's conviction for kidnapping, apparently based on defendant's carrying victim from
car to house after victim had been shot, where only logical inference from state's expert evidence was that victim was dead when
defendant carried him from car to house.
9. Kidnapping.
Kidnapping requires willful seizing, confining, or carrying away of a live person.
10. Criminal Law.
Decision to sever joint trial is left to trial court's discretion and will not be reversed absent showing of abuse of discretion.
11. Criminal Law.
Defendant was prejudiced by trial court's failure to sever joint trial in murder prosecution. Evidence against defendant was largely
circumstantial, and co-defendant's confessions to murder referred to another unnamed person, but it was likely that jury deduced that
other person was defendant, given fact that defendant and co-defendant sat together at trial and testimony indicated that defendant and
victim were friends and that defendant, co-defendant, and victim all drove from California together.
12. Criminal Law.
Admission of co-defendant's confessions to murder which referred to another unnamed person violated defendant's Sixth
Amendment right of cross-examination, where co-defendant did not testify. U.S. Const. amend. 6.
OPINION
Per Curiam:
This appeal arises out of the convictions of Ronald Ducksworth, Jr., and Carl Lee Martin
on a variety of charges involving the murders of Joseph Smith III (Joey) and Vikki Smith
(Vikki). Joey and Vikki's bodies were found at their Las Vegas home on April 11, 1992.
Ducksworth and Martin were arrested for the murders in May 1992.
After a two week trial, the jury found both Ducksworth and Martin guilty of all crimes
charged. Both defendants appeal their convictions on a variety of theories discussed below.
We conclude that no errors occurred with regard to Ducksworth's conviction, and we affirm
that conviction. However, we conclude that Martin was prejudiced by the district court's
failure to sever the trials and that Martin's conviction must be reversed and the matter
remanded to the district court for a new trial.
FACTS
This case arises out of the murders of Joey and his wife Vikki at their home in Las Vegas.
On April 11, 1992, Joseph Smith, Jr. (Smith), Joey's father, arrived at Joey's house at
approximately 1:30 p.m. Joey did not answer the door, and because Smith was concerned
about Joey and Vikki, he decided to try to get into the house to see if they were alright.
Smith entered the house through the back door, which was not locked. Upon entering the
house, he walked down a hallway and saw Joey's dead body lying face down on the floor in
the northwest bedroom with a pillow over his head and dried blood around his head.
his head. A large piece of telephone cord and a telephone also lay near him on the floor. Joey
was dressed in a black T-shirt, white shorts, white socks, and black tennis shoes and was not
wearing any of the jewelry which he usually wore. Smith found Vikki's dead body in the
southwest bedroom. She was wearing only a nightgown, and her hands had been bound to the
leg of one of the bunk beds in the bedroom. Her underpants had been cut at the seams and
were found under her body, and there was dried blood around her body.
Detective Robert Leonard from the Las Vegas Metropolitan Police Department testified
regarding the state of the crime scene. He stated that the perpetrators had been searching for
valuables because the contents of drawers in the northwest bedroom had been emptied and
sorted through. Also, the contents of a jewelry box had been emptied onto one of the bunk
beds, and many of the closet doors throughout the house stood open. Finally, Vikki's purse
had been emptied onto the living room couch.
The carpet underneath the lower part of Vikki's pelvic area was covered in lotion. In the
bathroom was a pair of size five black pants lying in the sink that had a substantial amount of
a lotion on them. Testimony revealed that much of the evidence from the scene was tainted by
this lotion.
Dr. Jordan performed the autopsies on Joey and Vikki and testified as follows. Vikki had
been shot three times, twice in the head and once in the arm. Joey had been shot three times
in the head, and Dr. Jordan testified in the preliminary hearing and on direct and
cross-examination that all three of the shots were instantaneously fatal. However, the State
recalled Dr. Jordan to the stand to question him about the gunshot wounds, and Dr. Jordan
stated that one of the gunshot wounds was not as lethal as the others, but that it was still a
lethal wound. The spent casings at the scene revealed that two different nine millimeter
weapons were used to kill Joey and Vikki. Based on the state of decomposition, testimony
indicated that Joey and Vikki could have been killed in the early morning of Thursday, April
9, 1992. However, the time of death could not be stated with any great certainty. The state of
decomposition did indicate, however, that Joey and Vikki were killed at approximately the
same time.
An examination of Vikki's sexual organs was conducted but revealed no evidence of
trauma or bruising. The sexual assault kit performed on Vikki revealed no semen in her body.
Small semen stains were found on the black pants and on the carpet, but these stains were not
large enough to yield any evidence of the specific blood group of the perpetrator.
Additionally, two separate hairs were recovered from Vikki's nightgown; one was similar to
Vikki's hair samples and the other was similar to Ducksworth's hair samples.
hair samples. The same type of lotion described above was also found on Vikki's vulva and
appeared to be in the vaginal cavity.
The following events led up to the murders of Joey and Vikki. On Wednesday, April 8,
1992, Joey, Martin, Martin's brother Bobby Ray Martin (Bobby), Ducksworth, and Sharee
McQueen all drove from Riverside, California, to Las Vegas in Joey's white Mazda.
Sharee was romantically involved with Joey at the time of his death, and she testified that
for the two or three days prior to the trip to Las Vegas, Joey had been with her in California.
She also testified that he had approximately $2,700 in cash with him; however, when his
body was found, he did not have any money.
Joey brought his nine millimeter gun on the trip, and Sharee testified that she recognized
the gun because Joey had it at her home in California and that it had recognizable chips and
scratches in the paint of the chamber. She noticed it in the car because Joey had it in his lap
and then put it under the front seat on the driver's side.
When the group arrived in Las Vegas, they went directly to the Vacation Village Resort
where Joey got Sharee a room. Joey left the gun under the seat of the car when he went into
the office of the hotel. The four men then left the hotel, and at that time Joey was wearing a
primarily black T-shirt with small green and white polka dots, white shorts, and black tennis
shoes.
Sharee fell asleep for awhile, and when she woke up, she called Martin to find out if he
had seen Joey. Martin told her that Joey was probably somewhere with Vikki. Sharee then
told Martin to come pick her up so that she could go back to California. The next morning,
April 9, 1992, Martin came by the Vacation Village and picked Sharee up. Martin had a nine
millimeter gun in the back seat for protection, but Sharee testified that she had not seen this
particular nine millimeter gun before.
Sharee stayed at Martin's house in Las Vegas for the next two nights and then drove back
to California with Martin. The day after she returned to California, she visited her sister,
Nikki McQueen, in Riverside, California. At that time, Nikki was one of Ducksworth's
girlfriends.
While Sharee was staying with Nikki, she saw Joey's nine millimeter gun under the
mattress in Nikki's room. She also testified that she saw Ducksworth wearing a gold link
bracelet that Joey had been wearing the night he left her at the Vacation Village. Nikki
testified that several days after Ducksworth returned from Las Vegas, she found two guns
underneath her mattress. She had never seen either gun, but identified one as a black
handgun. She also testified that a few days after Ducksworth's return, she noticed that
Ducksworth was wearing a gold necklace and bracelet she had never seen before.
Additionally, Ducksworth gave Nikki a woman's gold wedding band with a single
diamond. Because it was too small for Nikki, Ducksworth took the ring, allegedly to have it
sized for Nikki; however, Nikki testified that the diamond actually ended up in one of
Ducksworth's nugget rings. Several days after Ducksworth's arrest, Nikki confronted him
regarding whether the ring he had tried to give her had been Vikki's. She stated that he acted
hurt and did not want to talk about it.
Donnette Peach testified that she was dating Bobby Martin at the time of the murders. She
testified that just after midnight on April 9, 1992, the probable date of the murders, Bobby
called her at the Las Vegas home of her mother, Donna Gibbs. She testified that during this
conversation she heard Joey, Ducksworth, and Martin's voices. At approximately 12:30 a.m.,
Bobby came alone to Gibbs' house to pick her up.
After Bobby and Donnette left Gibbs' house, they went to a Travel Lodge. They stayed
there until Bobby was paged on his beeper thirty-five minutes later. Bobby returned the page
from the hotel room phone then told Donnette they were leaving. They went back to Gibbs'
house, where he used the phone again. Donnette testified that the conversation lasted about
five or six minutes and then she and Bobby left the house again. Only a few blocks from the
house, they made a U-turn and returned to Gibbs' house because Bobby's pager had gone off
again. This time Bobby left Donnette in the car while he went into Gibbs' house.
Gibbs testified regarding the second phone call. She stated that after Bobby and Donnette
left after the first phone call, Ducksworth called wanting to speak to Bobby. Donna told him
they had just left, but that she could beep Bobby. After she beeped Bobby, he came back.
Since Ducksworth had waited on the phone for Bobby's return, she simply handed the phone
over to Bobby. Donna testified that Ducksworth sounded hysterical, upset and said that he
had to leave and get back to California.
Donnette testified that she fell asleep while she was waiting for Bobby to return from
making the second telephone call. She woke up at about 7:00 a.m. that same morning, April
9, 1992, realizing that they were headed back to California and that Ducksworth had joined
them. Upon arriving in Riverside, Bobby checked Donnette into a motel and then took
Ducksworth elsewhere.
On April 10, 1992, Donnette, her sister Tamica, Bobby, and Ducksworth went to visit
Donnette's brother, William Dale, at his house in Long Beach. Dale testified that while they
were visiting him in Long Beach, Ducksworth asked him if there was anywhere he could hide
a gun just in case something happens. Dale testified that when Ducksworth showed him the
gun, he recognized it as Joey's nine millimeter gun by the scratches on the chamber.
the chamber. He had seen Joey with the same gun several weeks before at his mother's
(Gibbs') house.
On the night of April 11, 1992, Donnette learned of Joey's and Vikki's deaths from Dale
and his wife. Dale had heard the news from his mother. At the time the group heard about the
murders, Donnette testified that Bobby got like real emotional, but that Ducksworth did not
show any emotion. Donnette testified that at some time while she was in California, she and
Tamica visited Bobby and Martin's mother in Los Angeles.
Donnette returned to Las Vegas on April 13, 1992. That night she saw Martin at Gibbs'
house. Martin pulled her aside and told her not to tell anyone she was back, let anyone know
where she had been, or tell anyone that she had been at his mother's house in Los Angeles or
where his mother lived.
Smith testified that Martin came by his house on April 12, 1992, and told Smith that he did
not have anything to do with the murders and, in fact, had not even arrived in Las Vegas until
late Thursday night (April 9) or early Friday morning (April 10). Additionally, Martin stated
that he did not know where Joey lived and had never even been to Joey's house because Vikki
did not like him.
On April 13, 1992, Dale saw Martin at Gibbs' house in Las Vegas. Dale testified that he
had a conversation with Martin about how Joey died. Dale then told Martin that Joey didn't
have to die like he died. Martin responded that it was all part of the game and that Joey
was just somebody out there to use. Dale also testified to a conversation with Martin at
Gibbs' house after a viewing of Vikki and Joey on April 16, 1992. In that conversation,
Martin told Dale that he knew that Joey had been killed first in front of Vikki and that Vikki
had been sodomized. Dale also testified that he had given a statement to the police at the end
of April, during which he stated that Martin admitted to him that he had killed Joey in front of
Vikki.
Additionally, Dale testified that on the day of the viewing, he saw Martin wearing the
nugget ring that Gibbs had given Joey. Gibbs testified that she had given Joey the ring in
March of 1992 when both Joey and Martin were at her house. Both expressed interest in the
ring, but because she had showed the ring to Joey first, she told Martin he would have to get
it from him. Every time she saw Joey after that, he had the ring on. When Dale asked him at
the viewing about his wearing the ring, Martin simply said that Joey had let him wear the
ring.
Gibbs also saw Martin on April 15, 1992, when he came by her house. While Martin was
at her house, a police officer stopped by to check on Gibbs' youngest daughter. Gibbs stepped
out of the house, and the officer showed her some pictures of three men, including Martin.
three men, including Martin. When Gibbs went back into the house and told Martin what had
happened, Martin told her to watch [her] back cause by knowing the cops [she] could come
up missing.
Kenya Crawl, one of Ducksworth's girlfriends with whom he had a child in 1992, testified
regarding incriminating statements he had made to her about his involvement in the murders.
She stated that on April 9, 1992, Ducksworth called her at about 3:00 a.m. and said that he
had just killed Joey. However, she did not believe Ducksworth's claims until she saw a story
about the murders on television on April 11, 1992. After the news coverage, Ducksworth
called her and asked if they had any suspects. When she told him no, he stated: We must
have took care of business proper.
Crawl testified that she did not like Joey because in 1989 he had tried to force her to have
sex with him and that Ducksworth knew about the incident. Ducksworth told her that on the
night of the murders, he had questioned Joey about what he tried to do to her, and this
resulted in a fight between Ducksworth and Joey.
Crawl testified that she and Ducksworth had several discussions regarding the murders of
Vikki and Joey. Ducksworth told her that Joey had been shot twice in the head and that Vikki
had also been shot in the head. He also admitted to stealing money from Joey, but adamantly
denied having anything to do with Vikki's rape or murder. Ducksworth also tried to give
Crawl a ring, but because she suspected it might have belonged to Vikki, she told him she did
not want the ring.
After the news coverage of the murders, Crawl had to move out of her apartment. She
moved in with a friend, Brenda Shuaid, for about three weeks. After this, she moved in with
Brenda's husband, Al Shuaid. During her stays with both Brenda and Al Shuaid, she
continued to have conversations with Ducksworth regarding the murders.
Al testified regarding five or six of Crawl's conversations with Ducksworth which he had
overheard. Eventually, Al talked to Ducksworth directly, and he also testified regarding those
conversations. Al testified that he had overheard Ducksworth say, and also was told by
Ducksworth, that he had killed Joey. Al testified that Ducksworth told him that he killed Joey
for his attempted sexual assault of Crawl, that Ducksworth had told him that he and Joey had
gotten in an argument over this, and as a result of this argument, he shot Joey in the car.
Ducksworth got into Joey's house by dragging Joey up to the door, knocking on the door and
telling Vikki to let them in because Joey had been hurt. Ducksworth told Al that initially
Vikki refused to let them in, but after she looked out the peephole and saw Joey wrapped
up in a blanket, she opened the door.
she looked out the peephole and saw Joey wrapped up in a blanket, she opened the door.
Ducksworth also told Al that Vikki had been both sodomized and sexually assaulted
orally, that he had nothing to do with the acts committed on Vikki, and that he was, in fact, a
hundred percent against any harm being done to Vikki. Al stated that Ducksworth
emphasized this in several conversations. Ducksworth stated that in an attempt to cover up
any semen, the lotion had been squirted into her vagina. Ducksworth also confessed to Al that
money, jewelry, and a small amount of dope had been stolen from Joey and Vikki.
Testimony was also presented regarding the disappearance of Joey's Mazda. Deon Hopkins
testified that on her way to work at about 5:20 a.m. on the morning of April 9, 1992, she saw
two men driving Joey's white Mazda. She testified that at the time of the murders, she had
known Joey for twenty years and knew his car when she saw it. She stated that at the
intersection she honked her horn, but neither occupant reacted. Normally, had Joey been in
the car, he would have honked back at her. Based on the fact that the occupants did not react,
she knew that Joey was not in the car.
She stated that after she realized that Joey was not in the car, she got nosy and drove up
right next to the side of the car. Hopkins testified that she got a sufficient look at the driver,
and based on photographs shown to her by police, she identified the driver as Martin.
However, Carolyn Paige, Hopkins' passenger, testified that she could not see who was in the
car because it was dark at 5:20 in the morning. She also testified that she recalled there being
a dark tint on the windows.
Joey's Mazda was later found at the Vacation Village. An employee of the Vacation
Village at the time of the crimes testified that the Mazda sat in the parking lot unmoved
between April 9, 1992, and April 14, 1992, when the police located it. When the car was
investigated, the following was discovered. The stereo had been ripped out, Joey's cellular
phone was on the front seat, and a nine millimeter casing lay on the floorboard between the
right front passenger's seat and the door. A black holster and gun belt were found underneath
the right front seat. Blood was found in the car on the driver's seat headrest, on the floorboard
behind the seat, and on the console next to the emergency brake; the blood found in the car
was tested and was consistent with Joey's blood type. However, no bullet holes were found in
the car. Two cigarette butts were recovered from the inside of the car and tested, and the
saliva found on the cigarette butts was consistent with the sample of saliva that Martin had
given to law enforcement officials. Additionally, Martin's fingerprints were found in the car.
After Martin and Ducksworth had returned to California, both were staying with Nikki
McQueen. While they were staying at McQueen's apartment, police surveillance was set up
outside the apartment to monitor their activities. On May 19, 1992, at approximately 6:00
a.m., Riverside police officers contacted Nikki as she left her apartment. They asked for her
consent to search her apartment, and she signed a consent to search form.
At 7:00 a.m., Riverside police officers, secreted behind a fence in back of the apartment,
received word that Martin and Ducksworth were trying to flee on foot. After Martin and
Ducksworth tried to climb over the fence, they were taken into custody.
On October 19, 1993, the jury found both Martin and Ducksworth guilty of the following
charges: two counts of murder with use of a deadly weapon, two counts of first degree
kidnapping with use of a deadly weapon, and one count each of burglary with use of a deadly
weapon, sexual assault with use of a deadly weapon, robbery with use of a deadly weapon.
Martin's and Ducksworth's sentences were the same. For the two counts of murder, both
were sentenced to two consecutive life sentences without the possibility of parole and
mandatory additional consecutive life sentences for the weapons enhancement. On the
burglary charge, both were sentenced to ten years with an additional mandatory ten year
weapon enhancement, the sentence to be served consecutively to the murder charges. For
robbery with use of a deadly weapon, both were sentenced to fifteen years plus an additional
fifteen years for weapons enhancement, the sentence to be served consecutively to the murder
charges. Finally, for the sexual assault charge and the two kidnapping charges, both were
sentenced to three terms of life imprisonment with consecutive life imprisonments for use of
a deadly weapon, the sentences to run concurrently with each other and the murder sentences.
Both defendants appeal.
DISCUSSION
Appellant Ducksworth
Ducksworth was not denied the opportunity to cross-examine a key witness at the penalty
hearing
Ducksworth claims that he was denied his constitutional right to confront and
cross-examine Crawl at the penalty hearing regarding her involvement in an uncharged
murder case. During the penalty phase of the trial, evidence was presented that both
Ducksworth and Martin were involved in an uncharged murder, assault, and robbery at the
LeGardy house in February of 1992. Testimony was also presented that two women were
involved.
Because Crawl testified at trial regarding Ducksworth's confession to Joey's murder, the
State intended to call Crawl to the stand at the penalty hearing to elicit any evidence from her
regarding Ducksworth's involvement in the LeGardy murder. The State assumed that because
Ducksworth had confessed to her regarding his involvement in the murder of Vikki and Joey,
he would have done the same with regard to the LeGardy murder.
[Headnote 1]
However, outside the presence of the jury, the district court was informed that Crawl herself may have been one of the persons involved
in the LeGardy murder.
1
The district court allowed Crawl to be questioned outside the presence of the jury, and Crawl indicated that she
would invoke her Fifth Amendment rights in regard to any question about the LeGardy murder. The court then refused to allow either side
to call Crawl to testify.
In United States v. Compton, 365 F.2d 1, 5 (6th Cir. 1966), the court addressed the issue of a party calling a witness that it knows will
exercise his or her Fifth Amendment rights. The court stated:
Government counsel need not refrain from calling a witness whose attorney appears in court and advises court and counsel
that the witness will claim his privilege and will not testify. However, to call such a witness, counsel must have an honest belief
that the witness has information which is pertinent to the issues in the case and which is admissible under applicable rules of
evidence, if no privilege were claimed. It is an unfair trial tactic if it appears that counsel calls such a witness merely to get him to
claim his privilege before the jury to a series of questions not pertinent to the issues on trial . . . .
Id.
[Headnote 2]
This is essentially what the defense was attempting to do in its attempt to call Crawl to the stand. Defense counsel claimed that it
wanted to elicit Crawl's testimony because she might provide exculpatory evidence for the defendants. However, the district court noted
that other witnesses had already provided incriminating evidence against the defendants regarding the LeGardy murder and that nothing in
Crawl's testimony would exculpate them.
__________

1
Ducksworth argues that the prosecution improperly withheld the evidence of Crawl's potential involvement in the LeGardy murder in
violation of Brady v. Maryland, 373 U.S. 83 (1963). However, because the prosecution disclosed the impeaching evidence to the defense
counsel the day after Crawl disclosed the evidence, we conclude that there was no error.
Therefore, it appears that the defense wanted Crawl to take the stand and invoke her Fifth
Amendment rights in an attempt to persuade the jury to make negative inferences about her
credibility. Based on this, we conclude that the district court did not err in refusing to allow
the defense to call Crawl as a witness at the penalty hearing.
The premeditation instruction given at trial was constitutional
[Headnote 3]
Ducksworth claims that the premeditation instruction given to the jury was unconstitutional and vague and that it misstated the amount
of time necessary for premeditation. We disagree. Prior to trial, the district court gave the following instruction to the jury regarding
premeditation:
Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or at any time of the killing.
Premeditation need not be for a day, an hour, or even a minute. It may be as instantaneous as successive thoughts of the mind. For
if the jury believes from the evidence that the acts constituting the killing has been preceded by and has been the result of
premeditation, no matter how rapidly the premeditation is followed by the act constituting the killing, it is willful, deliberate and
premeditated murder.
Ducksworth claims that this definition of premeditation is vague and ambiguous. However, in Powell v. State, 108 Nev. 700, 709, 838 P.2d
921, 926 (1992), overruled on other grounds by Powell v. Nevada, 511 U.S. 79 (1994), we concluded that the same instruction properly
defined the concept of premeditation. Therefore, we conclude that the instruction was not unconstitutional or vague.
Furthermore, in Briano v. State, 94 Nev. 422, 425, 581 P.2d 5, 7 (1978), we stated that to prove premeditation it [does not] matter
how short a time existed between the formation of the design to kill and the killing itself. Because the jury instruction given in the instant
case comports with Briano, we conclude that the instruction properly defined the amount of time necessary for premeditation. See Powell,
108 Nev. at 709-10, 838 P.2d at 927 (stating that the same jury instruction as the one in the instant case comported with Briano).
The district court did not err in refusing to give Ducksworth's proposed penalty phase instructions
[Headnote 4]
Ducksworth claims that the district court erred by not substituting his proposed instructions for the ones read at trial.
tuting his proposed instructions for the ones read at trial. We have stated that upon request,
criminal defendants are entitled to jury instructions on their theories of a case so long as there
is some evidence, regardless of how weak or incredible, to support their theories. Harris v.
State, 106 Nev. 667, 670, 799 P.2d 1104, 1105-06 (1990). However, a criminal defendant is
not entitled to an instruction which incorrectly states the law. Geary v. State, 110 Nev. 261,
265, 871 P.2d 927, 929 (1994).
[Headnotes 5, 6]
At the penalty phase, Ducksworth objected to jury instructions 18, 19, and 30 and instead proposed instructions A, B, and C. In
instructing the jury, the district court did not substitute Ducksworth's instructions when it instructed the jury. We conclude that the district
court did not err.
Ducksworth's proposed instruction A concerned the sentence for first degree murder and was essentially the same as jury instruction
22; thus, the district court did not err in refusing Ducksworth's proposed instruction. Jefferson v. State, 108 Nev. 953, 954, 840 P.2d 1234,
1235 (1992). Ducksworth's proposed instructions B and C concerned the aggravating circumstances, and because Ducksworth did not
receive the death penalty, we conclude that he was not prejudiced by the district court's failure to give the instructions.
The evidence adduced at trial was sufficient for the jury to find defendant guilty of sexual assault with the use of a deadly weapon but
insufficient to find defendant guilty of first degree kidnapping with the use of a deadly weapon as to victim Joey Smith
This issue was raised for the first time in Ducksworth's reply brief, and pursuant to NRCP 28(c), we are not required to consider the
issue. However, because of the serious nature of the crimes and the length of the sentence imposed, we will reach the issue.
Ducksworth asserts that the evidence at trial was insufficient to warrant a finding that he was guilty of either the sexual assault on
Vikki or first degree kidnapping with respect to Joey. We disagree as to the sexual assault conviction, but agree as to the kidnapping
conviction.
The relevant inquiry for this 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.' Koza v. State, 100 Nev. 245, 250, 681 P.2d
44, 47 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
[Headnote 7]
Evidence indicated that Vikki's nightgown was moved above her waist, her underwear was cut off, a pair of scissors was found on the
dresser nearby, a tampon was found inside the bedroom on the floor close to the body, semen was present on the inside of a pair of black
jeans found in the bathroom as well as on the floor under the victim's pelvic area, and Ducksworth's hair was found on Vikki's nightgown.
Also, Crawl and Al testified that Ducksworth admitted that the victim had been raped, albeit not by him.
Ducksworth claims that all this equals only circumstantial evidence of sexual assault. However, Ducksworth admitted that Vikki had
been raped, although he was not involved in the acts, and that he was present when the acts occurred. Additionally, evidence revealed that
the only physical evidence found on Vikki was a hair found on her nightgown that matched Ducksworth's. Therefore, a rational jury could
conclude that Ducksworth had sexually assaulted Vikki. Furthermore, the jury was instructed on the law regarding aiding and abetting a
crime and could have concluded that Ducksworth had aided and abetted in the commission of the sexual assault.
[Headnote 8]
However, we conclude that sufficient evidence did not support Ducksworth's conviction for the kidnapping of Joey. The kidnapping
charge was apparently based on Ducksworth's carrying Joey from the car to the house after he had shot Joey. Ducksworth confessed to Al
that he had shot Joey once in the car, and Joey's blood was located in the car. Despite Dr. Jordan's testimony that one of the three shots was
not as lethal as the others, he stated on three separate occasions that all three gunshot wounds were instantaneously fatal. Therefore, the
only logical inference from the State's evidence was that Joey was dead when Ducksworth wrapped him in the blanket and took him from
the car to the front door.
[Headnote 9]
Kidnapping requires the willful seizing, confining, or carrying away of a live person. Cf., Atkins v. State, 112 Nev. 1122, 1127, 923
P.2d 1119, 1122 (1996) (stating that Nevada's sexual assault statute requires a live victim). Because all of the testimony indicated that Joey
was dead before he was moved, we conclude that no rational trier of fact could have found the essential elements of the kidnapping charge
beyond a reasonable doubt. As such, we reverse Ducksworth's conviction for the kidnapping charge regarding Joey. We note that because
the sentence for the kidnapping ran concurrent to the sentences for the murder convictions, we have not, in
practical terms, reduced Ducksworth's sentence.
kidnapping ran concurrent to the sentences for the murder convictions, we have not, in
practical terms, reduced Ducksworth's sentence.
Appellant Martin
The district court erred in refusing to grant a severance
[Headnote 10]
Martin asserts that the district court erred in failing to grant a severance. NRS 174.165 allows the district court to sever a joint trial
[i]f it appears that a defendant . . . is prejudiced by a joinder of . . . defendants . . . for trial together. Additionally, the decision to sever is
left to the trial court's discretion and will not be reversed absent a showing of abuse of discretion. Amen v. State, 106 Nev. 749, 756, 801
P.2d 1354, 1359 (1990). Because we conclude that Martin was prejudiced by the joinder at trial with Ducksworth, we reverse his
conviction and remand the matter to the district court for a new trial.
[Headnote 11]
The evidence against Martin was largely circumstantial and was much less convincing than was the evidence against Ducksworth.
Most damaging to Martin was the testimony of Crawl and Al concerning Ducksworth's confessions which mentioned, both directly and by
inference, that Ducksworth had acted with an accomplice. Crawl testified that after Ducksworth had confessed to her that he had killed Joey
and she had informed him that the police had no suspects, Ducksworth told her that, We must have took care of business proper.
(Emphasis added.) Additionally, Crawl and Al both testified that Ducksworth had told them that Vikki had been sexually assaulted and
sodomized, but that he had not been involved in those acts. This testimony created the inference that Ducksworth had acted with an
accomplice. On appeal, the State relied heavily on the evidence presented by Crawl and Al to prove that Martin's conviction for sexual
assault was supported by sufficient evidence. For example, the State claimed that Martin also might have committed the offense [of sexual
assault] for the simple reason that Ducksworth admitted to doing everything else except those crimes that occurred against Vikki.
The district court gave a limiting instruction before both Crawl and Al's testimony that the testimony was only to be considered in
relation to Ducksworth and also gave a general limiting instruction before deliberations began. Martin made motions to sever following
both Crawl and Al's testimony, which were denied because the court believed that the jury clearly understood that the testimony only
applied to Ducksworth. However, we conclude that this was error because Ducksworth's confessions referred to
another unnamed person, and it is likely that the jury deduced that this other person was Martin.
conclude that this was error because Ducksworth's confessions referred to another unnamed
person, and it is likely that the jury deduced that this other person was Martin. This
conclusion is bolstered by the fact that Martin and Ducksworth sat together at trial, and
testimony had indicated that Martin and Joey were friends and that Martin, Joey, and
Ducksworth all drove from California together.
[Headnote 12]
We conclude that because Ducksworth did not testify, the introduction of his confession, which probably inculpated co-defendant
Martin, violated Martin's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. Stevens v. State, 97
Nev. 443, 444-45, 634 P.2d 662, 663-64 (1981) (citing Bruton v. United States, 391 U.S. 123, 126 (1968)).
In Stevens, the appellant's co-defendant made several incriminating statements to officials before the grand jury. Prior to introducing
the statements, the prosecution excised all the references to appellant. However, in reversing the conviction and remanding for a new trial,
we stated:
It appears likely that the jury read the appellant's name into the blanks in each one of [co-defendant's] statements introduced at
the trial below. The circumstantial links between [the co-defendant] and [the appellant], referred to by the prosecutor, and the fact
that [the co-defendant] and appellant were being tried together made it not only natural, but seemingly inevitable, that the jury
would infer appellant to be the person referred to in the blanks in [the co-defendant's] statements.
Id. at 444, 634 P.2d at 663. The instant case is substantially similar to Stevens. The testimony of Crawl and Al was relevant only against
Ducksworth. However, in confessing, Ducksworth mentioned an unnamed accomplice, and we conclude that the jury inevitably inferred
that Ducksworth's accomplice was Martin.
While a Bruton violation does not automatically require reversal of Martin's conviction, we conclude that because it is not clear beyond
a reasonable doubt that the improper use of the confession was harmless error, a reversal of Martin's conviction and remand to the district
court is warranted. Stevens, 97 Nev. at 445, 634 P.2d at 664.
Because we reverse Martin's conviction and remand the case for a new trial, we need not reach Martin's remaining issues on appeal.
CONCLUSION
We reverse Ducksworth's conviction for kidnapping with regard to Joey, but conclude that
all of Ducksworth's other contentions on appeal lack merit. However, because we conclude
that the district court erred in failing to grant Martin's motion for severance, we reverse his
convictions and remand the case to the district court for a new trial.
2
__________

2
____________
113 Nev. 796, 796 (1997) Wharton v. City of Mesquite
ISAAC WHARTON, Deceased, by and Through His Personal Representative, Mary
Wharton, Appellant, v. THE CITY OF MESQUITE, BRUNO BIASI, and B & B DRILLING,
Respondent.
THE CITY OF MESQUITE and BRUNO BIASI, Cross-Appellants, v. ISAAC WHARTON,
Deceased, by and Through His Personal Representative, Mary Wharton, Cross-Respondent.
No. 27538
July 15, 1997 942 P.2d 155
Appeal and cross-appeal from a judgment in a negligence action. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
Injured worker on city project brought negligence action against city, his employer and
another. After worker's death, the district court denied defendants' motion to dismiss, granted
counsel's motion to substitute worker's surviving spouse as his personal representative and
entered judgment upon jury verdict against defendants. Appeal and cross-appeal were taken.
The supreme court held that counsel's failure to file motion for substitution within 90 days of
when defendants filed notice of suggestion of worker's death required dismissal of action.
Helena S. Wise, Burbank, California, for Appellant/Cross-Respondent.
Elwin Leavitt, Las Vegas, for Respondent/Cross-Appellant B & B Drilling.
Thorndal, Backus, Armstrong & Balkenbush and William R. Killip, Las Vegas, for
Respondents/Cross-Appellants City of Mesquite and Bruno Biasi.
Parties.
Following death of plaintiff, failure of plaintiff's counsel to file motion for substitution of parties within 90 days of when
defendants filed notice of suggestion of plaintiff's death required dismissal of action. NRCP 25(a)(1).
OPINION
Per Curiam:
The City of Mesquite (City) hired B & B Drilling (B & B) to drill a well and pump
water. B & B sent an employee, Isaac Wharton, to install a derrick and drilling rig at the site.
When Wharton left the site, the installed drilling rig and derrick were pumping water.
Thereafter, the City hired Bruno Biasi to remove B & B's equipment and set a different
pump in the well. Biasi unsuccessfully attempted to remove the equipment, and, when
Wharton returned to the well site, the derrick was about to collapse. Working with Biasi to
stabilize the derrick, Wharton climbed onto the drill platform. Without warning, the drive
shaft began to turn and caught Wharton's pant leg. Wharton was dragged into the motors and
was seriously injured.
Wharton brought a negligence action against Biasi, B & B and the City. Prior to trial,
Wharton died of causes unrelated to the accident. On June 2, 1993, B & B filed a notice of
suggestion of Isaac Wharton's death. Wharton's counsel did not file a motion for substitution
of parties within the ninety-day time period allowed by NRCP 25.
1
All defendants moved the
court to dismiss the complaint in mid-September, after the ninety days had run on August 31,
1993. On October 5, 1993, one-hundred and twenty-five days after filing of the notice of
suggestion of death, Wharton's counsel moved to substitute Wharton's surviving spouse as his
personal representative. The district court denied the motions to dismiss, granted the motion
to substitute Wharton's surviving spouse as his personal representative, and awarded the
defendants attorney's fees and costs for preparing their motions to dismiss.
A jury found in favor of Wharton, determining that (1) Bruno Biasi was acting within the
scope of his employment at the time of Wharton's injury, (2) the City maintained a safe
workplace, (3) B & B Drilling failed to carry workers' compensation insurance on the date of
Wharton's injury, and (4) the City was responsible for one hundred percent of the negligence
for Wharton's injury. The jury awarded Wharton $1.3 million in damages.
__________

1
Nevada Rule of Civil Procedure 25(a)(1), which governs substitution of the parties if a party to a lawsuit
dies, provides: Unless the motion for substitution is made not later than 90 days after the death is suggested
upon the record . . . the action shall be dismissed as to the deceased party.
Following the jury's verdict, the district court denied Wharton's motion for attorney's fees,
awarded Wharton $1,800.00 in costs, and entered a final judgment. The district court also
determined that a $50,000.00 cap on the City's liability limited Wharton's recovery of the
judgment. This appeal followed.
On appeal, Wharton argues that the district court erred by directing certain verdicts,
challenges the district court's determination regarding statutory limits on the City's liability,
and claims that the district court abused its discretion by failing to award attorney's fees.
Because we conclude that the district court erred in failing to dismiss Wharton's action, we
need not address Wharton's arguments on appeal.
The City and Biasi cross-appeal, arguing that Wharton's successors-in-interest failed to
comply with NRCP 25 and that the district court therefore erred in failing to dismiss the case
prior to trial. Although a trial on the merits is favored over a mechanical application of a
ninety-day rule, Barto v. Weishaar, 101 Nev. 27, 692 P.2d 498 (1985), this court has strictly
interpreted the language of NRCP 25(a)(1). In Bennett v. Topping, 102 Nev. 151, 717 P.2d
44 (1986), after the plaintiff died, the defendant served a notice of suggestion of death. When
plaintiff's counsel failed to designate a personal representative within ninety days, the court
dismissed the deceased plaintiff's claim, stating:
The rule is quite clear that unless the motion for substitution is made within ninety
days after the death is suggested upon the record, the action shall be dismissed as to
the deceased party. The district judge was required to dismiss the deceased party.
Id. at 152, 171 P.2d at 45 (citing NRCP 25).
In the instant case, Wharton's counsel failed to comply with NRCP 25(a)(1) by not moving
the court to substitute Wharton's surviving spouse as his personal representative within the
90-day period. Therefore, we conclude that the district court erred in granting Wharton's
counsel's untimely motion for substitution of parties and by denying the defendants' motions
to dismiss the action. Accordingly, we reverse the district court's judgment and remand this
matter with instructions to enter judgment in favor of respondents.
2
__________

2
The Honorable A. William Maupin, Justice, voluntarily recused himself from participation in the decision of
this appeal.
____________
113 Nev. 799, 799 (1997) Harris v. State
JAMES EARL HARRIS, Appellant, v. THE
No. 28351
July 15, 1997 942 P.2d 151
Appeal from judgments of conviction for indecent exposure and using a controlled
substance. Second Judicial District Court, Washoe County; Deborah A. Agosti, Judge.
Defendant was convicted in the district court of indecent exposure and using controlled
substance. Defendant appealed. The supreme court held that: (1) defendant knowingly and
voluntarily waived right to counsel, and (2) district court was not obligated to appoint
advisory counsel or advise defendant of potential availability of advisory counsel.
Affirmed.
Michael Specchio, Public Defender and Mary Lou Wilson, Deputy Public Defender,
Attorney and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
Waiver of right to counsel must be made knowingly and intelligently.
2. Criminal Law.
Test of valid waiver of right to counsel is not whether specific warnings or advertisements were given, but whether record as whole
demonstrates that defendant understood disadvantages of self-representation, including risks and complexities of particular case.
3. Criminal Law.
Relevant assessment with respect to validity of waiver of right to counsel examines accused's competence to choose
self-representation, not ability to adequately defend himself.
4. Criminal Law.
Supreme court will give deference to district court's determination that defendant waived right to counsel with full understanding
of disadvantages and clear comprehension of attendant risks.
5. Criminal Law.
Defendant knowingly and voluntarily waived right to counsel, and district court did not err in permitting him to proceed in proper
person, where court made detailed inquiry into defendant's background and notified defendant of dangers of self-representation,
defendant's responses were articulate, defendant had high school education and could read and write quite well, defendant was
mentally stable and sober, and defendant unequivocally indicated that he accepted consequences of having to be his own defense.
6. Criminal Law.
District court has discretion to deny self-representation request when request is made in untimely fashion.
7. Criminal Law.
Defendant has constitutional right to refuse service of counsel, so long as defendant does so knowingly and intelligently.
8. Criminal Law.
Denial of right to self-representation is per se harmful.
9. Criminal Law.
District court canvassing defendant who requests to proceed in proper person must make defendant aware of facts essential to
broad understanding of whole matter, however, court does not have obligation to give defendant specific warnings or advisements
about every rule or procedure which may be applicable. SCR 253.
10. Criminal Law.
While defendant representing himself has right to utilize compulsory process, district court has no duty to inform defendant of
right to subpoena witnesses.
11. Criminal Law.
Defendant who was representing himself was not prejudiced by trial court's failure to notify him of right to subpoena witnesses in
his defense, where defendant was able to examine two witnesses, and there was no indication that defendant wished to call other
witnesses.
12. Criminal Law.
After accepting defendant's request to proceed in proper person, trial court must meet its obligation to ensure that defendant
receives fair trial.
13. Criminal Law.
District court has discretion to appoint competent counsel to give defendant who is representing himself meaningful assistance in
presentation of defense or to aid in saving record for appeal.
14. Criminal Law.
Defendant does not have constitutional right to advisory counsel.
15. Criminal Law.
District court does not have duty to inform defendant who is representing himself that advisory counsel might be available in some
circumstances.
OPINION
Per Curiam:
On October 16, 1995, the State of Nevada charged appellant James Earl Harris (Harris)
with indecent exposure, a gross misdemeanor, and using a controlled substance, a felony. The
charges stemmed from allegations that Harris unlawfully made an indecent or obscene
exposure to his ten-year-old daughter (minor daughter), at their apartment in Reno. The
minor daughter allegedly told her brother (minor son) that Harris had done something to
her.
Shortly thereafter, Alice Thompson (Alice), Harris's wife, came home from work. The
minor daughter told Alice that "daddy just tried to do it to me."
daddy just tried to do it to me. Officers arrived a few minutes later and apprehended Harris.
Harris later submitted to a blood test which revealed cocaine metabolite in his system.
At a December 14, 1995 hearing on a motion to confirm the trial date, held before Judge
Agosti, Deputy Public Defender Maizie Pusich (Pusich), Harris's court-appointed counsel,
indicated that Harris was not satisfied with her representation and wished to replace her.
Pusich also stated to the court that Harris could not retain another public defender, but would
have to retain an outside lawyer. The district court notified Harris that his decision to employ
new counsel would probably not be considered sufficient grounds to grant a continuance.
After Harris stated that he understood, the court confirmed the trial date for January 8, 1996.
On January 3, 1996, Harris and Pusich again appeared before Judge Agosti to confirm the
trial date. Harris had been unable to retain different counsel because, in his words, he did not
have sufficient resources to do so. Pusich indicated that Harris wanted to represent himself.
Thereafter, the court canvassed Harris about his capacity and ability to proceed in proper
person. The court then allowed Harris to waive counsel.
On January 8 and 9, 1996, Harris's trial took place. After the prosecution's case in chief,
Harris called the minor son and Alice, whom the State had subpoenaed but not called. Both
witnesses corroborated the minor daughter's version of events. Harris then testified on his
own behalf. Harris also gave a short closing argument.
The jury returned guilty verdicts on both counts. The district court sentenced Harris to
serve two concurrent terms of one year. Harris now appeals.
DISCUSSION
Harris contends that the district court erred by allowing him to proceed in proper person
because he did not unequivocally declare that he wanted to represent himself. The State
contends that the district court's canvass shows that Harris competently, knowingly,
unequivocally, and intelligently waived his right to counsel.
[Headnotes 1-4]
Waiver of the right to counsel must be made knowingly and intelligently. Faretta v. California, 422 U.S. 806, 835 (1975). The test of
a valid waiver is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the
defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.' Arajakis v.
State, 108 Nev. 976, 980, 843 P.2d S00, S02-03 {1992) {quoting People v. Bloom, 774 P.2d 69S {Cal.
800, 802-03 (1992) (quoting People v. Bloom, 774 P.2d 698 (Cal. 1989)). The relevant
assessment examines the accused's competence to choose self-representation, not his ability
to adequately defend himself. Godinez v. Moran, 509 U.S. 389, 400 (1993). This court will
give deference to the district court's determination that the defendant waived his or her right
to counsel with a full understanding of the disadvantages and clear comprehension of the
attendant risks. Graves v. State, 112 Nev. 118, 124, 912 P.2d 234, 238 (1996).
Recently promulgated Supreme Court Rule 253 (SCR 253) sets forth guidelines
suggesting areas of examination and warnings that should be given by district courts during a
canvass regarding waiver of the right to counsel. Although SCR 253 came into effect on
March 31, 1997, and thus has no direct application to the case at bar, it appears that the
district court's canvass of Harris fully complied with those guidelines.
The record shows that the district court made a detailed inquiry into Harris's background
and notified him of the dangers of self-representation. The court inquired, inter alia, into
Harris's reasons for wishing to proceed in proper person, his educational background, his past
and present mental health, his previous legal experience, and whether Harris was currently
under the influence of drugs or alcohol. Harris replied in an articulate fashion that he had a
high school education; had no particular training in the law, but had sat through two jury
trialsonce as a defendant, once as a juror; was employed; could read and write quite well;
was mentally stable and sober; and was dissatisfied with his lack of communication with
his appointed counsel, Pusich.
The district court explained that it was generally considered foolish for a person to
represent himself, that the court would give no special assistance to Harris during trial, that he
would be expected to follow the rules of procedure and evidence, and that he would be held
to the same standards as an attorney. At the court's request, the district attorney explained to
Harris the elements of the crimes charged, the burden of proof, the potential penalties, and the
fact that he could not claim ineffective assistance of counsel on appeal if he represented
himself. Pusich then noted that she had previously explained to Harris, in general terms,
possible defenses to the crimes charged. While Harris intimated that he would have accepted
appointed counsel if he believed that the public defender would truly represent his interests,
he unequivocally indicated that he accepted the consequences of having to be my own
defense in view of the circumstances I related to [the court].
[Headnote 5]
In sum, the record shows that the district court's canvass was extensive and proper, that Harris wished to proceed in proper person, and
that he was competent to choose to do so. See Graves, 112 Nev. at 124-26, 912 P.2d at 238-39; Arajakis, 108 Nev. at 980, 843 P.2d at
802-03. Accordingly, we conclude that Harris knowingly and voluntarily waived his right to counsel and that the district court did not err in
permitting him to proceed in proper person. The district court's canvass and factual findings were sufficient to satisfy Faretta and its
progeny.
Harris contends that his request to represent himself was untimely, and hence invalid, because it occurred only five days before trial.
[Headnotes 6-8]
District courts have discretion to deny self-representation requests when they are made in an untimely fashion. See Lyons v. State, 106
Nev. 438, 443, 796 P.2d 210, 213 (1990). However, Harris's argument that district courts must deny untimely requests for
self-representation lacks merit. A defendant has the constitutional right to refuse the service of counsel, so long as he does so knowingly
and intelligently. Id. Denial of that right is per se harmful. Id. Accordingly, we conclude that Harris's contention is without merit.
Harris also contends that the court did not advise him of all of his constitutional rights, and therefore his waiver was ineffective.
Specifically, he contends that the court failed to notify him of his right to subpoena witnesses in his defense.
[Headnotes 9-11]
A district court canvassing a defendant who requests to proceed in proper person must make the accused aware of facts essential to a
broad understanding of the whole matter.' Scott v. State, 110 Nev. 622, 626, 877 P.2d 503, 506 (quoting Cohen v. State, 97 Nev. 166,
168, 625 P.2d 1170, 1171 (1981)). However, the district court certainly does not have an obligation to give the defendant specific warnings
or advisements about every rule or procedure which may be applicable. Cf. Arajakis, 108 Nev. at 980, 843 P.2d at 802-03; see also Graves,
112 Nev. at 125, 912 P.2d at 238; SCR 253. Thus, while defendants representing themselves have a right to utilize compulsory process, see
Faretta, 422 U.S. at 818, the district court has no duty to inform defendants of their right to subpoena witnesses on their own behalf. In any
event, as Harris was able to examine the minor son and Alice, and there is no indication in the record or appellate briefs that Harris wished
to call other witnesses, he was not prejudiced. We conclude that Harris's contention lacks merit.
Next, Harris contends that the district court should have considered giving him a different
deputy public defender, other appointed counsel, or other competent counsel to advise him
during trial, rather than giving him the sole option of keeping Pusich or representing himself.
[Headnotes 12, 13]
After accepting a defendant's request to proceed in proper person, the trial court must meet its obligation to ensure that the accused
receives a fair trial. Hollander v. State, 82 Nev. 345, 352, 418 P.2d 802, 806 (1966). The district court thus is afforded discretion to appoint
competent counsel to give the accused meaningful assistance in the presentation of the defense or to aid in saving a record for appeal. See
generally Bishop v. State, 95 Nev. 511, 597 P.2d 273 (1979) (standby counsel appointed by district court in death penalty case); Junior
v. State, 91 Nev. 439, 537 P.2d 1204 (1975) (advisory counsel assisted defendant).
[Headnotes 14, 15]
However, a defendant does not have a constitutional right to advisory counsel. United States v. Kienenberger, 13 F.3d 1354, 1356 (9th
Cir. 1994); see also Wheby v. Warden, 95 Nev. 567, 569, 598 P.2d 1152, 1153 (1970) (defendant has no right to have his case presented in
court both by himself and by counsel acting at the same time or alternatively at the defendant's pleasure), overruled on other grounds, Keys
v. State, 104 Nev. 736, 766 P.2d 270 (1988). Accordingly, the district court has no duty to appoint advisory counsel when a defendant
elects to represent himself. See United States v. Patterson, 42 F.3d 246, 248 (5th Cir. 1994). District courts have no duty to inform
defendants that advisory counsel might be available in some circumstances.
The district court had no duty to advise Harris of the potential availability of advisory counsel or to appoint advisory or standby
counsel to represent him. The record shows that the district court met its obligation to ensure Harris a fair trial. Thus, Harris's contention
lacks merit.
We conclude that Harris's remaining contentions are without merit, and thus we affirm his convictions and sentences.
____________
113 Nev. 805, 805 (1997) State, Dep't Mtr. Veh. v. Bremer
THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Appellant, v.
SHARON E. BREMER, Respondent.
No. 27206
SAFETY, Appellant, v. RICHARD JAMES SANDERS, Respondent.
No. 28680
July 15, 1997 942 P.2d 145
Consolidated appeals from district court orders granting petitions for judicial review and
the reinstatement of petitioners' driver's license privileges. Eighth Judicial District Court,
Clark County; Donald M. Mosley and Joseph T. Bonaventure, Judges.
In separate proceedings, drivers sought judicial review of revocation of their driving
privileges. The district court reversed. Department of Motor Vehicles (DMV) appealed, and
appeals were consolidated. The supreme court held that: (1) affidavit of chemistry expert was
admissible; (2) unsworn declarations executed under penalty of perjury were admissible; and
(3) supreme court has jurisdiction to review decisions of district courts on judicial review of
administrative proceedings.
Reversed.
[Rehearing denied October 2, 1997]
Frankie Sue Del Papa, Attorney General, Matthew T. Dushoff, Deputy Attorney General,
and Jon M. Okazaki, Deputy Attorney General, Carson City, for Appellants.
John Glenn Watkins, Las Vegas, for Respondents.
1. Automobiles.
In administrative driver's license revocation proceeding, chemistry expert's affidavit was admissible before hearing officer, without
requalification of expert or introduction of evidence of reliability and trustworthiness of blood alcohol test, where chemist had been
previously qualified as an expert in field of chemistry in district court. NRS 50.315(1)(c).
2. Automobiles.
Administrative hearings concerning revocation of driver's licenses are civil in nature, not criminal.
3. Automobiles.
In administrative driver's license revocation proceedings, failure of Department of Motor Vehicles (DMV) to submit affidavit
stating that blood-testing device used to measure person's concentration of alcohol was properly calibrated did not render chemistry
expert's affidavit inadmissible, even in absence of some other proof relative to calibration. NRS 484.3935.
4. Automobiles.
Distinction between affidavit and declaration made under penalty of perjury is not such as to affect substantial rights of parties to
driver's license revocation proceedings, and thus such declarations may be admitted in lieu of affidavits. NRS 50.315, 53.045.
State supreme court has jurisdiction to review decisions of district courts on judicial review of administrative proceedings. Const.
art. 6, 4, 6, 8; NRS 233B.150.
OPINION
Per Curiam:
FACTS
DMV v. Bremer
On June 23, 1993, Nevada Highway Patrol Trooper Eric Barros (Barros) initiated a
traffic stop after observing Sharon Bremer's failure to maintain a travel lane. Barros detected
a moderate odor of alcohol on Bremer's breath and inquired if she had been drinking, to
which she replied that she had consumed three glasses of wine. Bremer then consented to and
failed field sobriety and preliminary breath tests.
After placing Bremer under arrest, Barros recited her Miranda warnings and her rights and
obligations under the Nevada Implied Consent Law. Bremer then consented to a blood test
which was administered by a nurse at the Las Vegas City Jail. The samples taken were placed
in an evidence refrigerator and later analyzed by Dr. Dragoslav Marcovich, a chemist who
had previously qualified as an expert in the Eighth Judicial District of this state. Dr.
Marcovich determined that Bremer's blood contained 0.150 gm% ethanol. Accordingly,
Bremer's driver's privileges were suspended.
At the conclusion of her administrative hearing, the hearing officer upheld the revocation
based upon an affidavit from the chemist. The district court granted Bremer's petition for
judicial review, finding that the affidavit was improperly admitted and that the Department of
Motor Vehicles (DMV) had not availed itself of the provisions of NRS 484.3935. The
DMV challenges these rulings.
DMV v. Sanders
On the evening of March 12, 1995, Nevada Highway Patrol Trooper Mark Phillips
(Phillips) was dispatched to an accident on Interstate Highway 15 (I-15). Respondent
Richard James Sanders was standing next to his car, which was imbedded in a right-of-way
fence located beyond a raised concrete curb. Sanders stated that he lost control because "it
felt like ice on the road."
Sanders stated that he lost control because it felt like ice on the road. Trooper Phillips asked
Sanders to submit to a field sobriety test after Phillips detected the odor of alcohol on
Sanders' breath. Sanders submitted to a breath test after failing the field sobriety test.
Two evidentiary breath tests were administered at the Clark County Detention Center. The
tests revealed breath alcohol concentrations of .11% and .10%, respectively. Sanders was then
booked for DUI and his license was revoked.
At Sanders' administrative hearing, the DMV sought to introduce declarations under
penalty of perjury, as opposed to affidavits, to prove that the breath testing machine was
calibrated and that its simulator solution was prepared properly. The exhibits were admitted
into evidence, and the administrative law judge sustained the revocation of Sanders' driving
privileges. The district court granted Sanders' petition for judicial review and held that the
administrative law judge erred as a matter of law in admitting the declarations into evidence
because they were not in affidavit form.
DISCUSSION
DMV v. Bremer
The district court concluded that the DMV did not establish a proper foundation for the
admissibility of Dr. Marcovich's affidavit at the administrative hearing because it failed to
demonstrate the requisite indicia of trustworthiness and reliability of the blood test, and
because the DMV chose not to take advantage of NRS 484.3935
1
(affidavit requirements for
proof of calibration of blood, breath and urine testing devices). In support of its
determination, the district court relied on Santillanes v. State, 104 Nev. 699, 765 P.2d 1147
(1988), in which we reaffirmed that the admissibility of scientific evidence must be assessed
in terms of reliability and trustworthiness.
The DMV contends that the affidavit of the chemist was properly admitted at the
administrative hearing pursuant to NRS 50.315, and that Santillanes is inapplicable because
these proceedings were civil rather that criminal in nature. We conclude that the affidavit was
admissible pursuant to NRS 50.315; that, while Santillanes applies to civil as well as criminal
matters, its ruling does not support the result reached by the district court; and that, in accord
with prior precedent drawing distinctions between administrative and criminal proceedings,
the affidavit of Dr.
__________

1
The order granting judicial review actually refers to NRS 389.3935. There is no NRS 389.3935. We assume
that reference to chapter 389 was a clerical error and that the order prepared by Bremer's counsel for signature
by the district court was intended to refer to NRS 484.3935.
Dr. Marcovich was sufficient in and of itself to prove Bremer's blood alcohol content.
Admissibility of scientific evidence in driver's license revocation proceedings
NRS 50.315
2
in effect at the time of Bremer's arrest provided in part as follows:
1. If a person has qualified in the district court of any county as an expert witness to
testify regarding the presence in the blood, or urine of a person of alcohol, a controlled
substance, or a chemical, poison or organic solvent, or the identity or quantity of a
controlled substance alleged to have been in the possession of a person, the expert's
affidavit is admissible in evidence in an administrative proceeding or in a criminal trial
. . . to prove:
. . . .
(c) The amount of alcohol or the presence or absence of a controlled substance,
chemical, poison or organic solvent, as the case may be.
[Headnote 1]
Because Dr. Marcovich had been previously qualified as an expert in the field of chemistry in district court, his affidavit was
admissible before the hearing officer. It was not necessary to re-qualify him or introduce new and redundant evidence of the reliability and
trustworthiness of a scientific test that has been judicially accepted for many years. See State, Dep't of Motor Vehicles v. Tilp, 107 Nev.
288, 810 P.2d 771 (1991); and State v. Hall, 105 Nev. 7, 768 P.2d 349 (1989). Bremer disingenuously argues here, as she did below, that
Santillanes requires an evidentiary foundation be re-established showing that an ordinary blood test for alcohol is trustworthy and reliable
in every administrative and criminal proceeding. To the contrary, Santillanes simply applied the two-pronged test of reliability and
trustworthiness to a controversial blood test not employed here. In fact, Bremer made no attack on the specific nature of the test she
underwent, she only questioned the foundation laid. Santillanes did not create a broad rule of evidence that judicially accepted scientific
doctrine must be revalidated each time proof thereon is attempted (here a blood alcohol test that has been accepted as valid on literally
thousands of occasions). If Bremer's argument were to prevail here, these types of proceedings would be marked by an unending,
unreasonable and unnecessary evidentiary burden. Thus, despite the fact that the holding of Santillanes relative to the threshold
requirement for the admissibility of expert testimony applies to all evidentiary proceedings, civil or criminal,
that decision does not compel the result reached below.
__________

2
NRS 50.315(1) was amended in 1995 to delete the operative language in this case. Effective October 1, 1995, the language of former
NRS 50.315 was incorporated into NRS 50.320(1).
threshold requirement for the admissibility of expert testimony applies to all evidentiary
proceedings, civil or criminal, that decision does not compel the result reached below.
The DMV argues that the district court's reading of Santillanes is clearly erroneous
because the burdens of proof and rules of admissibility of evidence differ between the
criminal and civil arenas, particularly in the context of administrative hearings. As support for
this proposition, the DMV notes that NRS 233B.123 relaxes the evidentiary rules in
administrative hearings and that findings of fact are sustainable via substantial evidence
only.
3
Thus, the DMV maintains that the district court's reliance on Santillanes is inapposite.
[Headnote 2]
This court has carved out a unique posture towards administrative driver's license
revocation proceedings. It is well established that administrative hearings concerning the
revocation of driver's licenses are civil in nature, not criminal. State, Dep't Mtr. Vehicles v.
Vezeris, 102 Nev. 232, 235, 720 P.2d 1208, 1211 (1986). In Vezeris, we concluded that only
defendants in criminal proceedings may object to the use of affidavits of persons drawing
blood samples; parties seeking administrative review of driver's license revocations may not
object to the use of affidavits. Id. at 236, 720 P.2d at 1211 (emphasis added). Although the
affidavits at issue in Vezeris involved persons drawing rather than those testing blood
samples, the same reasoning applies because of the long established reliability of
blood-alcohol testing. Id. at 236, 720 P.2d at 1211 and 1212.
We conclude that the DMV provided sufficient foundation relating to the trustworthiness
and reliability of these blood tests. First, pursuant to NRS 50.315, Dr. Marcovich was
qualified as an expert in the district court and could, therefore, proffer an affidavit to prove
Bremer's blood alcohol level. Second, the DMV's blood-testing procedures are inherently
reliable, particularly in light of our rulings in Tilp and Hall. Moreover, Vezeris instructs, by
analogy, that Bremer may not object to the use of Marcovich's affidavit in an administrative
driver's license revocation proceeding. Accordingly, the district court erred in finding that Dr.
Marcovich's affidavit was improperly admitted or was insufficient as a matter of law.
Applicability of NRS 484.3935
NRS 484.3935 in effect on June 23, 1993, provided as follows:
__________

3
See NRS 233B.123. Also, NRS 233B.121(8) provides: Findings of fact must be based exclusively on
substantial evidence and on matters officially noticed.
If:
1. A manufacturer or technician in a laboratory prepares a chemical solution or gas
to be used in calibrating a device for testing a person's breath, blood or urine to
determine the percent by weight of alcohol in his blood; and
2. The technician makes an affidavit that the solution or gas has the chemical
composition that is necessary for calibrating the device, it is presumed that the solution
or gas has been properly prepared and is suitable for calibrating the device.
(Emphasis added.)
[Headnote 3]
The DMV contends that NRS 484.3935 did not require the submission of an affidavit stating that the blood-testing device used to
measure a person's concentration of alcohol was properly calibrated. Although Bremer concedes this point, she argues that, in the absence
of some other proof relative to calibration, a failure to utilize the option to provide an affidavit under this provision rendered the affidavit of
Dr. Marcovich inadmissible because the performance of the test in question could not have been established as reliable and trustworthy.
We conclude that, while NRS 484.3935 in place at the time of Bremer's arrest referred to breath, urine and blood testing, prior case
authority exempted blood testing from proof requirements as to calibration of the testing device.
It is clear that, for the purpose of proving calibration of testing devices, the legislature and this court have, over time, viewed breath
tests and blood-testing differently. We are mindful that a strict reading of NRS 484.389(4) in effect as of Bremer's arrest, the provision
requiring evidence of calibration, made no distinction between blood and breath testing;
4
however, our 1991 decision in Tilp did draw such
a distinction.
In Tilp, we noted that the committee on testing for intoxication confined its regulations for the calibration of equipment to the testing
of breath samples as opposed to blood samples. Accordingly, we held that NRS 484.389(4) did not bar the admission of blood testing
without evidence of calibration. Tilp, 107 Nev. at 291, 810 P.2d at 773. Our holding in Tilp has since been codified in the 1993 and 1995
5
revisions of the Nevada Revised Statutes. Thus, in the absence of any regulation in 1993 requiring evidence of calibration for the
administration of blood tests, we conclude that Bremer's argument is without merit.
__________

4
See infra note 5.

5
For example, NRS 484.389(4) was amended in 1993 after Bremer's arrest to add the word breath, thus effectively eliminating the
calibration proof requirement for blood testing gas chromatography:
Evidence of a required test is not admissible in a criminal or administrative proceeding unless it is shown by documentary or other
evidence
of calibration for the administration of blood tests, we conclude that Bremer's argument is
without merit.
We therefore hold that the DMV hearing officer correctly admitted evidence of Bremer's
blood test and correctly sustained the revocation of her driving privileges.
DMV v. Sanders
Whether NRS 50.315(3) and (4) require the submission of foundational documents in affidavit
form
At the administrative hearing, the hearing officer allowed the DMV to lay a foundation for
the results of Sanders' breath test to be presented in the form of unsworn declarations. The
district court concluded that NRS 50.315 required the submission of documents in affidavit
form. While a strict reading of the statute supports this ruling, for the reasons set forth below,
we hold that the distinctions between the declarations utilized in this case and a formal sworn
affidavit are not such as to render the information contained therein inadmissible in the
context of administrative proceedings to revoke driving privileges.
The 1993 revisions to NRS 50.315 relaxed the foundational requirements for proof of
identity of a person whose breath, blood or urine has been drawn for testing and for proof of
the chain of custody of blood samples. See NRS 50.315(5). They authorized the person taking
the sample to either submit an affidavit or a sworn declaration under penalty of perjury on
these issues. Prior to the amendment, only notarized affidavits were admissible. The
amendment did not eliminate the affidavit requirement with regard to the results of these
tests. The DMV, however, points to the fact that the 1993 legislature also enacted NRS
53.045:
1. Except as otherwise provided in subsection 2, any matter whose existence or truth
may be established by an affidavit or other sworn declaration may be established with
the same effect by an unsworn declaration of its existence or truth signed by the
declarant under penalty of perjury, and dated, in substantially the following form:
(a) If executed in this state: I declare under penalty of perjury that the foregoing is
true and correct.
Executed on
-----------------

-----------------

(date) (signature)
. . . .
2. This section does not dispense with a requirement of a witness to or the
authentication of a signature, or the requirements of NRS 133.050 or a similar
statute.
__________
that the law enforcement agency calibrated the breath testing device and otherwise maintained it as
required by the regulations of the committee on testing for intoxication.
(Emphasis added.) See also 1993 and 1995 amendments to NRS 50.315.
witness to or the authentication of a signature, or the requirements of NRS 133.050 or a
similar statute.
The DMV maintains that the two declarations at issue fully complied with the statutory
provisions pursuant to NRS 53.045.
6
The DMV argues that NRS 53.045 is clear and
unambiguous on its face; therefore, a court may not go beyond the language of the statute in
determining the legislature's intent. Roberts v. State of Nevada, 104 Nev. 33, 37, 752 P.2d
221, 223 (1988). The limitations on dispensing with the need for an affidavit are set forth
under NRS 53.045(2). Thus, the legislature clearly intended to require affidavits in certain
contexts.
Sanders concedes that the 1993 version of NRS 50.315(5) allowed the person drawing the
blood sample to submit a declaration as opposed to an affidavit to prove certain facts.
Nevertheless, Sanders argues that this amendment did not alter the requirement for affidavits
of persons mentioned in the remaining paragraphs of NRS 50.315,
7
particularly those relating
to breath testing.
It is noteworthy that the 1993 amendments to NRS 50.315 were effected
contemporaneously with the enactment of NRS 53.045, the general declaration statute. This
raises the issue as to whether the general declaration statute controls.
This court has acknowledged the accepted rule of statutory construction that a provision
which specifically applies to a given situation will take precedence over one that applies only
generally. Sierra Life Ins. Co. v. Rottman, 95 Nev. 654, 656, 601 P.2d 56, 57 {1979).
__________

6
One of the DMV exhibits is an unsworn declaration with regard to the accurate calibration of the intoxilyzer.
The other is an unsworn declaration as to the correct chemical composition of the solution used for calibrating
the breath testing device.

7
Further amendments to NRS 50.315 were adopted by the 1995 legislature. As noted above, the incident here
took place prior to the effective date of the 1995 changes. The affidavit requirements prior to October 1, 1995,
relating to proof of calibration remained unchanged:
3. The affidavit of a person who prepared a chemical solution or gas that has been used in calibrating
a device for testing another's breath to determine the amount of alcohol in his breath is admissible in
evidence in any criminal or administrative proceeding to prove:
(a) The affiant's occupation; and
(b) That he prepared a solution or gas having the chemical composition necessary for accurately
calibrating it.
. . . .
4. The affidavit of a person who calibrates a device for testing another's breath to determine the
amount of alcohol in his breath is admissible in evidence in any criminal or administrative proceeding to
prove . . . .
(Emphasis added.)
601 P.2d 56, 57 (1979). Sanders argues that because NRS 53.045 is silent with regard to its
full force and effect over NRS 53.315(3) and (4), this court cannot imply that the general
declaration statute supersedes the specific affidavit requirements of NRS 50.315. Sanders also
contends that the 1995 legislature's subsequent failure to substitute or add the word
declaration in NRS 50.315(1), (2), (3) and (5) provides proof that the legislature has always
intended to require the use of affidavits in some instances.
8
[Headnote 4]
While Sanders' contentions relative to the standard rules of statutory construction are
correct, we hold that the distinction between an affidavit and declaration made under penalty
of perjury is not such as to affect the substantial rights of parties to civil license revocation
proceedings. Id. at 236, 720 P.2d at 1211. In so ruling, we find no irreconcilable repugnancies
between NRS 50.315 and NRS 53.045. See City of Las Vegas v. Int'l Assoc. Firefighters, 91
Nev. 806, 543 P.2d 1345 (1975).
9
In this limited context, there is no logical reason for requiring the formalistic protocol of a
sworn affidavit. Further, the administration of an oath or affirmation no longer has religious
significance. Thus, for the purposes of administrative hearings of the type involved in this
matter, the distinction between a sworn declaration and an affidavit is a distinction without a
legal difference.
Accordingly, for the reasons discussed above, we reverse the district court and hold that
the administrative law judge did not err in admitting the declarations in lieu of affidavits.
Whether the Nevada Supreme Court has appellate jurisdiction
[Headnote 5]
Bremer and Sanders argue that this court is without jurisdiction to review decisions of
district courts on judicial review of administrative proceedings under Article 6, section 6, of
the Nevada Constitution:
The 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. They also shall have final appellate jurisdiction in cases arising in Justices
Courts and such other inferior tribunals as may be established by law. . . .
__________

8
The 1995 revision of NRS 50.315 retained the word affidavit in paragraphs (1), (2), (3), and (5). Only
paragraph (4) authorizes either an affidavit or declaration.

9
Our ruling in this case does not affect affidavit requirements set forth in other contexts, e.g., NRS 53.045(2),
NRCP 56, the Nevada Probate Code, criminal DUI trials, NRS 31.260(2), NRS 6.130(2) and NRS 1.235.
shall have final appellate jurisdiction in cases arising in Justices Courts and such other
inferior tribunals as may be established by law. . . .
They maintain that an administrative hearing is held before an inferior tribunal and that
judicial review over such proceedings in district court is the final appellate remedy of the
parties thereto. Further, both Bremer and Sanders contend that, pursuant to Article 6, section
4, this court's appellate jurisdiction is lacking because administrative proceedings are not
civil cases arising in district courts.
10
These contentions are without merit.
Bremer and Sanders primarily rely upon Nevada Industrial Commission v. Reese, 93 Nev.
115, 560 P.2d 1352 (1977), in which we upheld the constitutionality of the judicial review
prerogatives of district courts in the context of workers' compensation claims. We noted in
Reese that the power of judicial review over administrative agency hearings fell under Article
6, section 6 of the Nevada Constitution, which vests district courts with final appellate
jurisdiction in cases arising in Justices Courts, and such other inferior tribunals as may be
established by law. Because Reese treats administrative law courts as inferior tribunals,
Bremer and Sanders claim that Reese reverses Nevada Tax Commission v. Mackie, 74 Nev.
276, 329 P.2d 448 (1958), in which we rejected a similar claim regarding this court's
jurisdiction. In Mackie, it was contended that this court was without jurisdiction to review a
district court ruling on judicial review modifying a tax commission license revocation. In
response, we held that the final appellate jurisdiction of district courts over inferior
tribunals did not divest this court of its appellate jurisdiction:
We cannot accept respondents' definition. The tribunals to which this section refers
are judicial and not administrative tribunals. The review of tax commission action
which is provided by law, NRS 463.310, subd. 7, is not an exercise of appellate
jurisdiction. Appellate jurisdiction is jurisdiction to review the action of inferior
judicial tribunals.
Id. at 279, 329 P.2d at 449. (Emphasis added.)
To the extent that these cases are inconsistent, we now undertake to resolve any conflict
between them. Reese does not reach the issue of this court's appellate jurisdiction except,
possibly, by implication. Mackie arguably confuses the difference between judicial and
administrative tribunals {certainly, a tax commission ruling may not involve a decision of
an administrative law judge).
__________

10
Article 6, section 4 provides in part: The supreme court shall have appellate jurisdiction in all civil cases
arising in district courts . . . . (Emphasis added.)
judicial and administrative tribunals (certainly, a tax commission ruling may not involve a
decision of an administrative law judge). We now hold that the power of judicial review at
the district court level arises in district court under Article 6, section 4 of the Nevada
Constitution. Contrary to the contentions made by Bremer and Sanders, Reese does not
overrule Mackie, expressly or by implication. Reese did not refer to Mackie and did not reach
the jurisdictional issue Bremer and Sanders now raise. Further, Article 6, section 8 of the
Nevada Constitution provides that the legislature shall prescribe by law the manner and
determine the cases in which appeals may be taken from justices' and other courts. Consistent
with this authority, NRS 233B.150 expressly grants this court jurisdiction to review final
judgments of the district court, notwithstanding the origin of the claim. This is so even if
administrative hearing officers preside over inferior tribunals. Thus, to the extent that
Article 6, section 6 of the constitution seems to conflict with Article 6, sections 4 and 8, we
resolve that conflict in favor of this court's jurisdiction.
CONCLUSION
For the reasons discussed above, we reverse the district court's rulings in these
consolidated matters.
Sanders raises other issues that are not properly before this court.
____________
113 Nev. 815, 815 (1997) Arnesano v. State, Dep't Transp.
VICKI ARNESANO, Individually, and as Administratrix for the ESTATE OF SALVATORE
ARNESANO, Deceased; and as Natural Parent for DANIELE and LUCA
ARNESANO, Minors, Appellants/Cross-Respondents, v. THE STATE OF
NEVADA, on Relation of Its DEPARTMENT OF TRANSPORTATION,
Respondent/Cross-Appellant.
No. 27924
July 15, 1997 942 P.2d 139
Appeal and cross-appeal from district court judgment granting appellants damages in
accordance with the statutory cap set forth in NRS 41.035(1). Eighth Judicial District Court,
Clark County; Jeffrey D. Sobel, Judge.
Motorist's wife, children, and estate brought wrongful death action against state claiming
state's failure to install safety barrier around support posts for freeway overpass caused death
of motorist whose vehicle collided with support posts after being rear-ended.
ist whose vehicle collided with support posts after being rear-ended. Upon jury verdict
finding state liable and awarding damages, the district court entered judgment awarding
$50,000 to wife and each child, pursuant to statutory cap on damages, denied plaintiffs'
motion for attorney fees, costs, and prejudgment interest, and awarded $9,306.62 to motorist's
estate, along with pro rata share of attorney fees and costs and prejudgment interest. State
appealed, and plaintiffs cross-appealed. The supreme court held that: (1) statutory cap on
award of damages against state in tort action did not violate plaintiffs' rights to due process or
to jury trial; (2) statutory cap did not preclude attorney fees and costs that exceeded $50,000
statutory cap on damages; (3) statutory cap did preclude award of prejudgment interest that
exceeded statutory cap, but estate's award of prejudgment interest was valid since total award
did not exceed cap; (4) state's failure to install safety barriers was legal cause of motorist's
death; and (5) state's decision not to install barrier protection was operational matter for
which it was not entitled to discretionary immunity.
Gordon and Silver and Joseph S. Kistler, Las Vegas, for Appellants/Cross-Respondents.
Frankie Sue Del Papa, Attorney General, and Roger D. Comstock, Deputy Attorney
General, Carson City, for Respondent/ Cross-Appellant.
1. Constitutional Law; States.
Statutory cap on damage award in tort action against state did not violate plaintiffs' due process rights. U.S. Const. amend 14;
NRS 41.035(1).
2. Constitutional Law; Eminent Domain; States.
Denying wrongful death plaintiffs full jury award entered against state, pursuant to statutory cap on damage awards in tort actions
against state, was not a taking without due process of law and without just compensation. U.S. Const. amend. 14; NRS 41.035(1).
3. Jury.
Statutory cap on damage awards in tort actions against state did not violate wrongful death plaintiffs' rights to jury trial, even
though jury awarded damages in excess of statutory cap. U.S. Const. amend. 7; NRS 41.035(1).
4. Statutes.
In construing statute, supreme court must give effect to literal meaning of its words.
5. States.
Statutory cap on damages awarded in tort action against state does not preclude award of attorney fees and costs that exceed
statutory cap on damages. NRS 41.035(1).
6. States.
Statutory cap on award of damages in tort action against state precludes prejudgment interest on damages from exceeding the
statutory cap, such that claims for prejudgment interest are only valid when interest award does not cause total individual award,
exclusive of post-judgment interest, attorney fees and costs, to exceed statutory cap. NRS 41.035(1).
7. States.
Award of prejudgment interest to decedent's estate was valid in wrongful death action against state, where total individual damage
award did not exceed $50,000 statutory cap on damages against state. NRS 41.035(1).
8. Automobiles.
Substantial evidence supported jury's finding that state's failure to install safety barriers near support posts for freeway overpass
was proximate cause of death of motorist whose vehicle struck support post, even though accident was initially triggered by rear-end
impact of motorist's vehicle, where new safety guidelines required that solid, nonmovable objects within 30 feet of traveled roadway
should be protected by barrier.
9. Negligence.
Actor's negligent conduct is legal cause of harm if conduct is substantial factor in bringing about harm.
Discretionary immunity applies to planning level of government, but not to actual construction and operation of project. NRS
41.032(2).
11. Automobiles.
State's decision not to install barrier protection around support posts for freeway overpass was operational matter, such that state
was not entitled to discretionary immunity from liability in action arising out of automobile collision with post. NRS 41.032(2).
OPINION
Per Curiam:
On the morning of May 21, 1991, Salvatore Arnesano (Arnesano) was driving on I-95,
travelling southbound in the Flamingo Road exit lane. A pickup truck travelling southbound
in the right travel lane struck the rear of Arnesano's Ford. The initial impact was minor, but
caused the Ford to spin out of control. The Ford slid across the southbound travel lanes into
the center median of I-95 until the driver's side crashed into a concrete post three feet in
diameter, and located sixteen feet off the paved portion of the freeway. Arnesano sustained
severe head trauma and was pronounced dead at the scene.
Arnesano had crashed into the northernmost post in a row of posts that supported a
freeway overpass. The overpass, built in 1966, was replaced by a more complex interchange
in 1985.
When the new interchange was built, the older overpass was allowed to remain standing so
that the University of Nevada could conduct seismic testing on it.
The original plans for the old overpass did not require barriers between the travel lanes and
the support posts. In 1977, the American Association of State Highway Engineers published a
Guide for Selective Location, Designing of Traffic Barriers (the AASHTO Guide).
According to this guide, solid, nonmoveable objects within thirty feet of the traveled roadway
should be protected by a barrier such as a guardrail, concrete Jersey barrier, or crash
cushions.
In 1992, appellants filed a complaint for damages alleging that the State had negligently
failed to protect the public from the support posts. Before trial, pursuant to NRCP 68 and
NRS 17.115, Arnesano's wife, Vicki Arnesano, and Arnesano's children, Daniele Arnesano
and Luca Arnesano, made offers of judgment to the State in the amount of $50,000 each,
exclusive of interest, costs, and attorney fees. The Estate of Salvatore Arnesano (the Estate)
made an offer of judgment in the amount of $9,316.62, exclusive of interest, costs, and
attorney fees. The State rejected these offers.
In January 1995, a jury trial was held. The jury found the State liable for Arnesano's death
and awarded appellants the following amounts: Vicki Arnesano$625,000; Daniele
Arnesano$200,000; Luca Arnesano$225,000; and the Estate$25,000.
After trial, appellants filed a motion for entry of final judgment and award of attorney fees,
costs, and prejudgment interest, pursuant to NRCP 68 and NRS 17.115, NRS 18.010, and
NRS 18.020. The district court ruled that Vicki Arnesano, Daniele Arnesano, and Luca
Arnesano could not recover attorney fees, costs, or prejudgment interest because this would
cause a judgment to be entered against the governmental defendant for more than $50,000
each exclusive of interest from the date of entry of judgment. The district court then entered
a judgment based upon the statutory limitations set forth in NRS 41.035(1)
1
and awarded
$50,000 to Vicki Arnesano, $50,000 to Daniele Arnesano, and $50,000 to Luca Arnesano. It
also entered a damage award in favor of the estate in the amount of $9,316.62,2 along
with the pro rata share of attorney fees and costs per NRS 1S.010, and prejudgment
interest under NRS 17.130{2).
__________

1
NRS 41.035 reads in part:
Limitation on award for damages in tort actions.
1. An award for damages in an action sounding in tort brought under NRS 41.031 or against a present
or former officer or employee of the state or any political subdivision, immune contractor or state
legislator arising out of an act or omission within the scope of his public duties or employment may not
exceed the sum of $50,000, exclusive of interest computed from the date of judgment, to or for the
benefit of any claimant. An award may not include any amount as exemplary or punitive damages.
damage award in favor of the estate in the amount of $9,316.62,
2
along with the pro rata share
of attorney fees and costs per NRS 18.010, and prejudgment interest under NRS 17.130(2).
The State appeals the judgment reflecting these awards. Appellants cross-appeal.
NRS 41.035(1) provides that an award for damages in a tort action against the state cannot
exceed $50,000, exclusive of interest computed from the date of judgment, per claimant.
Appellants contend that NRS 41.035(1) violates their rights under the Nevada Constitution to
equal protection and due process of law. Appellants argue that the statute effectively retracts
the State's waiver of sovereign immunity for the seriously injured, who cannot be adequately
compensated. Appellants further contend the limit on damages is arbitrary because the
Nevada treasury is solvent.
We have previously held that NRS 41.035(1) does not violate the equal protection clause.
State v. Silva, 86 Nev. 911, 478 P.2d 591 (1970).
[Headnote 1]
In Nevada, there is no constitutional or common law right to recover from the State for negligent operation of its roads. Hardgrave v.
State ex rel. Hwy. Dep't, 80 Nev. 74, 77-78, 389 P.2d 249, 250-51 (1964). Accordingly, NRS 41.035 has not abrogated a fundamental
right, and we decline to apply heightened scrutiny to the statute. See McCorvey v. Utah State Dept. of Transp., 868 P.2d 41, 47 (Utah
1993) (declining to apply heightened scrutiny to statutory cap where there was no common law right to recover for injury resulting from
negligent road maintenance).
[Headnote 2]
Substantive due process guarantees that no person shall be deprived of life, liberty or property for arbitrary reasons. Allen v. State,
Pub. Emp. Ret. Bd., 100 Nev. 130, 134, 676 P.2d 792, 794 (1984) (citation omitted). Large jury awards could present a threat to the state
treasury. A statutory cap on the damages the state must pay for its tortious conduct furthers a legitimate interest in protecting the state
treasury. See Packard v. Joint School Dist. No. 171, 661 P.2d 770, 775 (Idaho Ct. App. 1983) (a statutory cap on governmental liability
relates to effective risk management by public entities and their insurers, and protects the public coffers). We conclude that NRS 41.035(1)
does not violate appellants' due process rights. We further conclude that denying appellants the full jury award does not
constitute a taking without due process of law and without just compensation.
__________

2
The Estate was limited by statute to recovery of the decedent's actual funeral expenses. See NRS 41.085(5)(b).
appellants the full jury award does not constitute a taking without due process of law and
without just compensation.
[Headnote 3]
Appellants further argue that the statutory cap violates their rights to a jury trial. While it is the jury's role as factfinder to determine the
extent of a plaintiff's injuries, it is not the role of the jury to determine the legal consequences of its factual findings. . . . That is a matter
for the legislature. Boyd v. Bulala, 877 F.2d 1191, 1196 (4th Cir. 1989) (upholding a statutory cap on medical malpractice liability).
Hence, the statutory cap does not violate appellants' rights to a jury trial.
Appellants argue that the plain language of the statute, which states that an award for damages in an action sounding in tort may not
exceed $50,000, exclusive of post-judgment interest, does not preclude an additional award of attorney fees, costs, and prejudgment
interest.
The State argues that the legislature did not intend for any additional payment for costs, prejudgment interest, or attorney fees above
the $50,000 limit on damages. The State contends that the legislative history of NRS 41.035(1) shows that only post-judgment interest
should be paid, not prejudgment interest. The State further argues that limiting liability to a definite amount protects its interest in fiscal
certainty.
[Headnote 4]
In construing a statute, this court must give effect to the literal meaning of its words. State v. Webster, 88 Nev. 690, 696, 504 P.2d
1316, 1320 (1982).
In Griffin v. Tri-Met, 870 P.2d 808, 812 (Or. 1994), the Oregon Supreme Court reviewed a state statute that imposed a $100,000 limit
on a public body's liability. The plaintiff argued that the $100,000 limit was meant to apply only to awards of tort damages, not to awards
of attorney fees and costs. The Supreme Court of Oregon disagreed, stating:
The statute, however, contains no such qualification. . . . The statute does not refer to damages at all. Had the legislature
intended the limit on liability' to apply only to liability for tort damages, it could have said so.
Id. (emphasis added).
Similarly, in DeCordova v. State, 878 P.2d 73 (Colo. Ct. App. 1994), a plaintiff's judgment against a Colorado hospital was limited by
a statute that stated:
(1) The maximum amount that may be recovered under this article in any single occurrence, whether from one or more public
entities and public employees, shall be:
(a) For any injury to one person in any single occurrence, the sum of one hundred and
fifty thousand dollars.
Id. at 75. The plaintiff contended that the statutory limit did not apply to costs. Id. at 74.
However, because the statute placed a limit on total recovery, the court of appeals
concluded that the plaintiff could recover actual costs only to the extent that total recovery
did not exceed the limitation. Id. at 75-76.
The State of Nevada waived sovereign immunity in NRS 41.031.
3
NRS 41.035(1) limits
this waiver, stating:
1. An award for damages in an action sounding in tort . . . may not exceed the sum
of $50,000, exclusive of interest computed from the date of judgment, to or for the
benefit of any claimant. An award may not include any amount as exemplary or
punitive damages.
(Emphasis added.)
[Headnote 5]
Unlike Griffin, where liability was limited, or the statute in DeCordova that limited recovery, the Nevada statute limits damages
to $50,000 exclusive of interest computed from the date of judgment. Damages has been defined as:
A pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or
injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another. A sum of money
awarded to a person injured by the tort of another. Restatement, Second, Torts, 12A. Money compensation sought or awarded as
a remedy for a breach of contract or for tortious acts.
Black's Law Dictionary 466 (6th ed. 1990). This definition does not encompass attorney fees and costs.
Attorney fees and costs are not damages in this context. Thus, giving effect to the literal meaning of the words of the statute, we
conclude that NRS 41.035(1) does not limit the State's liability for attorney fees and costs. We now hold that the statute does not preclude
attorney fees and costs that exceed the $50,000 cap on damages.
__________

3
1. The State of Nevada hereby waives its immunity from liability and action and hereby consents to have its liability
determined in accordance with the same rules of law as are applied to civil actions against natural persons and corporations, except
as otherwise provided in NRS 41.032 . . . .
[Headnotes 6, 7]
Unlike attorney fees and costs, prejudgment interest is derived from damages. The legislature addressed interest on damages in NRS
41.035(1), which specifies that an award for damages may not exceed the sum of $50,000, exclusive of interest computed from the date of
judgment.
4
The legislature clearly intended to preclude prejudgment interest on damages from exceeding the statutory cap, but to allow
post-judgment interest to exceed the statutory cap. Further, the legislature has repeatedly failed to include prejudgment interest in the
category of recoverable interest in excess of the statutory cap under NRS 41.035(1) since the enactment in 1979 of NRS 17.130(2), the
Nevada prejudgment interest statute. Accordingly, the heirs of Salvatore Arnesano have no right to prejudgment interest on their wrongful
death claims. Such claims for prejudgment interest are only valid when the interest award does not cause the total individual award,
exclusive of post-judgment interest, attorney fees and costs, to exceed $50,000. Accordingly, the Estate's award of prejudgment interest is
valid.
On cross-appeal, the State argues that the district court erred in denying its motion to dismiss because there was no evidence to show
that it caused the fatal accident to Arnesano. The State argues that no feature of the freeway caused the accident and that striking the
support post was not legally foreseeable. The State contends that the proximate cause of the accident was the impact of the pickup truck.
[Headnote 8]
One whose tortious conduct is otherwise one of the legal causes of an injurious result is not relieved from liability for the entire harm
by the fact that the tortious act of another responsible person contributes to the result. Restatement (Second) of Torts 879 cmt. a (1965).
Accordingly, we conclude that the State is not relieved from liability by the fact that the accident was initially triggered by the impact of the
pickup.
The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the
harm."
__________

4
In 1973, the statute was amended as follows:
No award for damages in an action sounding in tort brought under NRS 41.031 may exceed the sum of $25,000, exclusive of
interest computed from the date of judgment, to or for the benefit of any claimant. No such award may include any amount as
exemplary or punitive damages. [or as interest prior to judgment.] (Amendment deletes prejudgment interest language.)
1973 Nev. Stat., ch. 744, 1 at 1532.
the harm. Restatement (Second) of Torts 431. Trial testimony indicates that safety barriers
would have reduced or prevented the impact of the Ford against the support post. We
conclude that striking the support post was legally foreseeable, and that substantial evidence
supports the jury's finding that the State's failure to install such barriers was a legal cause of
Arnesano's death.
[Headnote 9]
The State argues that the trial court gave incorrect jury instructions on proximate cause because the only Nevada case discussing the
substantial factor test is one in which the court applied California law. We conclude that the substantial factor test is a correct statement
of legal cause, and the jury instructions were proper. See Restatement (Second) of Torts 431.
The State argues that its failure to adequately protect the concrete post falls within the ambit of NRS 41.032(2), the discretionary act
exception to the state's waiver of sovereign immunity. The State points out that the old overpass met all standards for reasonable safety
when it was constructed in 1966, and that until 1991 there had never been an accident where anyone was injured from colliding with the
posts. The State argues that any decision to upgrade to current standards of safety by installing guardrails was a discretionary act and could
not be the basis for a negligence cause of action.
[Headnote 10]
Discretionary immunity is limited to conduct involving policy decisions. Harrigan v. City of Reno, 86 Nev. 678, 681, 475 P.2d 94, 95
(1970); Restatement (Second) of Torts 895B cmt. d. Accordingly, discretionary immunity applies to the planning level of government,
but not to the actual construction and operation of a project. Harrigan, 86 Nev. at 681, 475 P.2d at 95.
In Webster, a driver suffered a fatal collision with a horse that had wandered onto a freeway. 88 Nev. at 690-91, 504 P.2d at 1318. This
court upheld an award of damages against the State for its negligence in failing to install a cattleguard at the freeway entrance. Id. at 694,
504 P.2d at 1318. This court explained,
Whether or not, for the convenience of the traveling public, the State would construct a controlled-access freeway between the two
cities or construct a portion of the route was an exercise of discretion based upon policy. Its decision to do so was a discretionary
act. Once the decision was made to construct a controlled-access freeway in the area where this accident happened, the State was
obligated to use due care to make certain that the freeway met the standard of reasonable safety for the traveling public.
safety for the traveling public. This is the type of operational function of government
not exempt from liability if due care has not been exercised and an injury results.
Id. at 694-95, 504 P.2d at 1319 (citations omitted).
[Headnote 11]
Following Webster, once the government chose to build the overpass, it became obligated to ensure that all aspects of the overpass met
the standard of reasonable safety. Id. at 694-95, 504 P.2d at 1319. In the years after the overpass was built, changes in conditions may have
mandated new safety precautions. We conclude that the state's decision not to install barrier protection was an operational matter and
therefore the State was not immune from liability under NRS 41.032(2).
We conclude that the district court erred in ruling that Vicki Arnesano, Daniele Arnesano, and Luca Arnesano could not recover
attorney fees and costs. We therefore remand this case to the district court to enter judgment in accordance with a determination of the
respective parties' pro rata share of attorney fees and costs. We affirm the decision of the district court in all other respects.
5
__________

5
The Honorable Miriam Shearing, Chief Justice, did not participate in the decision of this appeal.
____________
113 Nev. 824, 824 (1997) Horton v. Fritz
KATHY HORTON, Appellant, v.
RYAN FRITZ, Respondent.
No. 28216
July 15, 1997 942 P.2d 134
Appeal from a judgment pursuant to a jury verdict. Eighth Judicial District Court, Clark
County; Donald M. Mosley, Judge.
Pedestrian sued driver, a minor, for injuries sustained when she was leaning against
stationary automobile and driver suddenly drove forward causing her to fall. Upon jury
verdict, the district court entered judgment for driver. Pedestrian appealed. The supreme
court, Maupin, J., held that: (1) evidence did not warrant jury instruction that violation of
hit-and-run statutes was negligence as matter of law, and (2) trial court erred by instructing
jury that driver, as a minor, was not held to same standard of conduct as adult.
Young, J., dissented.
Michael Paul Wood, Las Vegas, for Appellant.
Pico & Mitchell and F. Breen Arntz, Las Vegas, for Respondent.
1. Automobiles; Damages; Evidence.
Ordinarily, evidence of leaving scene of accident without stopping to render aid or provide information is not probative as
evidence of substantive liability for automobile accident itself; rather, such evidence may be probative as implied admission of fault or
as evidence that victim's injuries were exacerbated by delay in obtaining medical treatment. NRS 484.219, 484.223.
2. Automobiles.
Jury instruction that violation of hit-and-run statutes was negligence as matter of law was not warranted in pedestrian's personal
injury accident arising out of incident in which pedestrian was leaning against stationary automobile when driver suddenly drove
forward, causing pedestrian to fall, and driver left scene of accident without rendering aid or procuring medical assistance. NRS
484.219, 484.223.
3. Automobiles.
Trial court properly refused to give pedestrian's requested jury instruction, that driver's leaving the scene of accident entitled jury
to infer that information which driver would have given at scene would have been unfavorable to him, in action arising out of incident
in which pedestrian was leaning against vehicle when driver suddenly drove away causing pedestrian to fall, where driver admitted to
drinking alcohol that evening and there was no contest in evidence as to whether his driving had been affected thereby.
4. Automobiles.
Trial court erred by instructing jury that defendant driver, as a minor, was not held to same standard of conduct as adult and was
only required to exercise degree of care which ordinarily is exercised by minors of like age, intelligence, and experience under similar
circumstances in pedestrian's action arising out of incident in which she was leaning against vehicle when driver drove away causing
her to fall, notwithstanding driver's argument that instruction addressed driver's reaction to confrontation with potentially dangerous
and antagonistic pedestrian.
5. Trial.
Trial court's threats of Rule 11 sanctions were improper in pedestrian's action against driver for injuries sustained when she was
leaning against car and driver drove away causing her to fall, particularly if threats had been addressed to both parties. NRCP 11.
OPINION
Appellant Kathy Horton (Horton) was injured as a result of an incident that occurred
during the early morning hours of November 1, 1992. She claims that she was leaning against
a stationary automobile when the driver, respondent Ryan Fritz {"Fritz"), a
seventeen-year-old minor, suddenly drove forward, causing her to fall and severely
fracture her left arm.
(Fritz), a seventeen-year-old minor, suddenly drove forward, causing her to fall and
severely fracture her left arm. It is uncontested that Fritz left the scene of the accident without
rendering aid or procuring medical assistance.
Horton sued Fritz for negligence and lost at trial. She appeals, claiming that the district
court erred by refusing to give her proposed jury instructions regarding the hit-and-run nature
of the incident and for instructing the jury that Fritz's conduct was to be governed by a
discrete standard of care applicable to minors. Horton also contends that the trial court's
extrajudicial statements regarding settlement and the merits of the case created a litigation
environment so hostile as to warrant reversal.
The facts of the case were vigorously contested. Horton claims that the incident took place
at about 2:00 a.m. on the night in question after she noticed Fritz's car driving by her house in
a suspicious manner. She had been drinking and observed the vehicle while she was sitting in
a van outside her residence with her boyfriend. Another occupant of Fritz's vehicle, Jamie
Renshaw (Renshaw), was a friend of Horton's son and was known to Horton as such. When
she recognized her son's friend, she thought they might be looking for her son or know his
whereabouts. She then proceeded to Fritz's vehicle to inquire about her son and, receiving no
response and growing frustrated, started to raise her voice. She also claims that she was
leaning on the car during this confrontation when, suddenly and without warning, Fritz rolled
up his window and accelerated away, throwing her to the ground. Horton claims that the car
paused at the end of the block and drove away. Her friend immediately called for emergency
assistance, which ultimately arrived and transported her to the hospital for treatment.
Fritz claims that he and his passengers were trying to find Horton's house between
midnight and 12:30 a.m., when Horton came running and stumbling toward them while
yelling and screaming. He further claims that she was hitting the side of his vehicle which,
along with the nearby presence of Horton's boyfriend in the van, frightened him. On the
advice of Renshaw, who was also frightened, Fritz pulled away. According to his testimony,
it was then that Horton attempted to grab the side mirror and appeared to trip while running
alongside the moving vehicle. At the end of the block, he paused to look back, at which time
he observed Horton on her feet. He left assuming that she had sustained only minor injuries,
that her boyfriend would provide necessary assistance, and that a return might result in a
serious confrontation.
DISCUSSION
At the conclusion of the evidence, the court refused to instruct the jury that a violation of
NRS 4S4.2191 and 4S4.223,2 the Nevada "hit-and-run" statutes, constituted negligence
as a matter of law and that such violations would require the jury to simply move on to
the issue of legal causation of the alleged injuries.
the jury that a violation of NRS 484.219
1
and 484.223,
2
the Nevada hit-and-run statutes,
constituted negligence as a matter of law and that such violations would require the jury to
simply move on to the issue of legal causation of the alleged injuries.
[Headnote 1]
Ordinarily, evidence of leaving the scene of an accident without stopping to render aid or provide information is not probative as
evidence of substantive liability for the accident itself. Rather it may be probative as an implied admission of fault or as evidence that
the victim's injuries were exacerbated by delay in obtaining medical treatment.
__________

1
Instruction No. A, which was based on NRS 484.219, read:
There was in force at the time of the occurrence in question a Nevada law which reads as follows:
The driver of any vehicle involved in an accident on a highway or on premises to which the public has access resulting in bodily
injury to or the death of any person shall immediately stop his vehicle at the scene of the accident or as close thereto as possible,
and shall forthwith return to and in every event shall remain at the scene of the accident . . . .
A violation of the law just read to you constitutes negligence as a matter of law. If you find that a party violated the law just read to
you, it is your duty to find such violation to be negligence; and you should then consider the issue of whether that negligence was
a legal cause of injury or damage to the plaintiff.

2
Instruction No. B, which was based on NRS 484.223, read:
There was in force at the time of the occurrence in question a Nevada law which read as follows:
1. The driver of any vehicle [involved] in an accident resulting in an injury to or death of any person or damage to any vehicle
or other property which is driven or attended by any person shall:
(a) Give his name, address and the registration number of the vehicle he is driving, and shall upon request and if available
exhibit his license to operate a motor vehicle to any person injured in such accident or to the driver or occupant of or person
attending any vehicle or other property damaged by such accident;
(b) Give such information and upon request manually surrender such license to any police officer at the scene of the accident
or who is investigating the accident; and
(c) Render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements
for the carrying, of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that such
treatment is necessary, or if such carrying is requested by the injured person.
2. If no police officer is present, the driver of any vehicle involved in such accident, after fulfilling all other requirements [set
forth above] insofar as possible on his part to be performed, shall forthwith report such accident to the nearest officer of a police
authority or of the Nevada Highway Patrol and submit thereto the information specified [herein].
A violation of the law just read to you constitutes negligence as a matter of law. If you find that a party violated the law just read to
you, it is your duty to find such violation to be negligence; and you should then consider the issue of whether that negligence was
a legal cause of injury or damage to the plaintiff.
evidence that the victim's injuries were exacerbated by delay in obtaining medical treatment.
See Powell v. Doe, 473 S.E.2d 407, 413 (N.C. Ct. App. 1996) (holding that use of a penal
statute as the standard for negligence per se is only appropriate when the hit-and-run driver's
failure to stop and render aid either exacerbated the injury, resulted in unnecessary pain and
suffering, or resulted in an avoidable death); see also Cheevers v. Clark, 449 S.E.2d 528, 530
(Ga. Ct. App. 1994).
[Headnote 2]
Here, the trial court properly refused these instructions because the hit-and-run feature of the case had nothing to do with basic
liability for the accident. Because no separate instructions were offered on the exacerbation or admission issues, we conclude that counsel
did so in his tactical approach to the case.
3
[Headnote 3]
The court also rejected an instruction advising that leaving the scene of an accident would entitle the jury to infer that the information
which that party would have given at the scene would have been unfavorable to him. Horton sought this latter instruction on the
implication that the unfavorable information would have involved Fritz's drinking. Because Fritz admitted to imbibing that evening, and
because there was no contest in the evidence as to whether his driving had been affected thereby, the trial court properly exercised its
discretion in refusing the proffered instruction. Horton also argues that the instruction should have been given under PETA v. Bobby
Berosini, Ltd., 110 Nev. 78, 90, 867 P.2d 1121, 1128 (1994) (PETA I), which held that the failure of a party to produce evidence on an
issue peculiarly within his own knowledge raises an inference that the concealed information is unfavorable. The record does not confirm
that the instruction was designed to facilitate an argument that Fritz should have been presumed to have concealed other information
beyond his drinking prior to the incident. Thus, there was no further basis for reading the proposed presumption instruction to the jury.
Over Horton's objection, the judge read the following instruction on standard of care:
A minor is not held to the same standard of conduct as an adult. He is only required to exercise the degree of care which ordinarily
is exercised by minors of like age, intelligence and experience under similar circumstances. It is for you to determine whether the
conduct of the defendant was such as might reasonably have been expected of a minor of his age, intelligence
and experience, acting under similar circumstances.
__________

3
A hit-and-run instruction on the damage issue would have been properly refused because there was no evidence that Fritz's departure
from the scene without reporting the incident or lending assistance caused a delay in obtaining medical treatment.
such as might reasonably have been expected of a minor of his age, intelligence and
experience, acting under similar circumstances.
Horton contends that this instruction improperly lessened the standard of care by creating a
separate, less rigorous, standard for minor operators of motor vehicles. The judge, in ruling
on the instruction, noted that Fritz was not accused of violating the Nevada traffic code. He
stated [I] think the primary thrust of this accusation of negligence is his judgment under the
circumstances of driving away in a manner that put someone in danger. (Emphasis added.)
Fritz argues that the instruction was designed to fit his theory of the case that a minor
could reasonably act as he did in this confrontation with adults. He also argues that this
instruction merely supplements the general standard of care instruction that was also read to
the jury and which articulated the doctrine governing the operation of a motor vehicle by any
driver regardless of age. We disagree.
[Headnote 4]
The instruction of which Horton now complains improperly conflicts with, rather than supplements, the general instruction given on
the standard of care. It unequivocally states, in general terms, that a minor is governed by a lesser standard of care in contravention of
existing doctrine that all licensed drivers tested and approved for vehicular operation by the Nevada Department of Motor Vehicles are
bound to comport with the same standards of conduct. Summerill v. Shipley, 890 P.2d 1042, 1044 (Utah Ct. App. 1995); see also Lemond
Const. Co. v. Wheeler, 669 So. 2d 855, 869 (Ala. 1995) (Houston, J., dissenting).
We hold that an instruction couched in terms of duty was improper for the specific purpose of addressing Fritz's reaction to a
confrontation with a potentially dangerous and antagonistic person.
4
To the extent that the defense wished to submit a theory of the case
instruction on Fritz's alleged flight from the scene, the instruction should have simply indicated that persons are not required to remain at
the scene of an accident when to do so would endanger themselves or others.
__________

4
The dissent contends that the instruction was proper because Fritz was not charged with any driving violation. This misapprehends the
fundamental nature of the claims litigated below. Besides the hit-and-run allegations, Fritz was primarily accused of negligently pulling
away from the scene while Horton was leaning on his vehicle. This clearly implicates the operation of a vehicle and the standard of care
that applies to all licensed drivers. While the instruction was meant to address Fritz's reaction to the situation with which he was faced, the
instruction went far beyond its stated purpose and obscured the general standard of care applicable to this particular negligence claim.
Regardless of her apparent lack of credibility, Horton was entitled to have the case litigated under appropriate instructions.
would endanger themselves or others. Further, because the instruction appears to have been
given in connection with the hit-and-run allegations, the instruction was rendered
unnecessary by the court's refusal to give the negligence per se instructions on that issue.
Horton also complains that the trial judge threatened her counsel with NRCP 11 sanctions
if the case was lost, that the judge advised the attorneys that he was fed up with spurious
lawsuits, and that he believed he had the responsibility to ferret through cases and disallow
or discourage cases without merit. After the verdict was read, a show cause hearing was
ordered and conducted by the trial court on the question of NRCP 11 sanctions. These were
denied.
[Headnote 5]
Although the trial judge had the discretion to facilitate settlement under NRCP 16, and while there is no judicial conduct of record
requiring reversal, we hereby advise the trial court that threats of Rule 11 sanctions were improper in the context of this case, especially if,
as represented at oral argument, they may have been addressed to both parties. Further, although the plaintiff's case can, in retrospect, be
considered to be quite marginal, Horton had the right to proceed to trial without being made subject to a threat of sanctions under NRCP
11.
Accordingly, we reverse and remand this action for a new trial.
Shearing, C. J., and Springer and Rose, JJ., concur.
Young, J., dissenting:
I must respectfully dissent because I do not believe Horton's minimal prospects of prevailing on remand require a second and
unnecessary trial.
The majority apparently reverses this case based solely on the following allegedly erroneous jury instruction:
A minor is not held to the same standard of conduct as an adult. He is only required to exercise the degree of care which ordinarily
is exercised by minors of like age, intelligence and experience under similar circumstances. It is for you to determine whether the
conduct of the defendant was such as might reasonably have been expected of a minor of his age, intelligence and experience,
acting under similar circumstances.
The majority opines that it was erroneous for the lower court to allow this instruction because all licensed drivers tested and approved
for vehicular operation by the [DMV] are bound to comport with the same standards of conduct. Majority, at 829 {citing Summerill v.
Shipley, S90 P.2d 1042, 1044 {Utah Ct.
(citing Summerill v. Shipley, 890 P.2d 1042, 1044 (Utah Ct. App. 1995)). I respectfully
submit that the majority's reliance on a provision in Nevada's motor vehicle code as the
applicable standard of care in this case is misplaced because this case does not charge Fritz
with any driving violation.
In Summerill, plaintiff sued a sixteen-year-old boy for negligence when he caused a
four-car collision as he was entering traffic on a highway. The defendant requested an
instruction on a minor's standard of care which the trial court refused to give. Summerill, 890
P.2d at 1044. The Utah Court of Appeals held that a minor operating a motor vehicle is held
to the same standard of care as an adult and, therefore, affirmed the lower court's decision. Id.
However, unlike Summerill, this case does not involve the violation of any traffic or driving
provision. Rather, the facts giving rise to the instant matter involved a minor faced with the
uncertain dangers of an irate, drunken woman and an unknown, potentially dangerous man
sitting in a nearby van. Indeed, the contested instruction never mentions driving. Instead, it
requires the jury to consider Fritz's overall conduct in determining whether Fritz was
negligent when he continued driving forward while Horton yelled unintelligibly, pounded on
the car, and held onto the sideview mirror.
Accordingly, I conclude that the trial court was correct in evaluating this case as possible
negligence in Fritz's judgment, rather than Fritz's driving ability.
Even if the instruction were erroneous, I am unwilling to concede that the jury would have
reached an entirely different result if it were given an instruction consistent with the majority
opinion. I note that after a three-day trial, the jury deliberated only twenty-five minutes before
returning a verdict in favor of Fritz.
The majority's opinion apparently reverses this case because the instruction used the legal
phrase standard of conduct. If use of this term of art was error, then pursuant to Nevada
Rule of Civil Procedure 61,
1
I conclude that it was harmless error. This jury instruction,
erroneous or otherwise, is not inconsistent with substantial justice, nor does it affect the
substantial rights of the parties."
__________

1
NRCP 61 provides:
[N]o error or defect in any ruling or order or in anything done or omitted by the court or by any of the
parties is ground for . . . setting aside a verdict or for vacating, modifying or otherwise disturbing a
judgment or order, unless refusal to take such action appears to the court inconsistent with substantial
justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.
of the parties. NRCP 61. Therefore, I conclude that if any error occurred, it was harmless
and does not require reversal.
2
Accordingly, I write this dissent to express my belief that the allegedly erroneous jury
instruction was not given in error. Additionally, even if it was incorrect, such an
inconsequential error should not require reversal.
__________

2
Indeed, even the majority agrees that Horton is not credible. Majority, at 829 n.4. Therefore, I am puzzled as
to why the majority insists on remanding this case to be relitigated when the only difference between the first and
second trial will be to delete this very harmless jury instruction.
____________
113 Nev. 832, 832 (1997) Roberts Trust v. County of Clark
LIA ARNOLD ROBERTS REVOCABLE TRUST, AURELIA ARNOLD ROBERTS,
Trustee, Appellant, v. COUNTY OF CLARK, a Political Subdivision of the State of Nevada,
Respondent.
No. 24976
July 15, 1997 942 P.2d 133
Appeal from a judgment of the district court in an eminent domain action. Eighth Judicial
District Court, Clark County; Jack Lehman, Judge.
County brought eminent domain action against landowner. After jury trial, the district
court denied landowner's motion to amend judgement. Landowner appealed. The supreme
court held that, once landowner supported motion with expert's affidavit, trial court should
have made determination of what prejudgment interest rate would provide landowner with
reasonable compensation.
Kermitt L. Waters, Las Vegas, for Appellant.
Stewart L. Bell, District Attorney, Charles A. Paine, Deputy District Attorney, Clark
County, for Respondent.
Frankie Sue Del Papa, Attorney General, and Brian Randall Hutchins, Chief Deputy
Attorney General, Carson City, for Amicus Curiae State of Nevada.
Eminent Domain.
Once condemnee moved to amend judgment to reflect prejudgment interest rate of eight percent and supported motion with
expert's affidavit stating that statutory rate was inadequate and that appropriate prejudgment interest rate to provide reasonable return
on judgment amount was eight percent, trial court should have made determination, after holding evidentiary
hearing if necessary, of what interest rate would provide condemnee with reasonable compensation.
eight percent, trial court should have made determination, after holding evidentiary hearing if necessary, of what interest rate would
provide condemnee with reasonable compensation. NRS 37.175.
OPINION
Per Curiam:
The issue presented in this appeal was decided in State, Department of Transportation v.
Barsy, 113 Nev. 712, 941 P.2d 971 (1997), where we held that NRS 37.175 does not preclude
a higher rate of interest on judgments in condemnation cases if it is shown that a higher rate
of interest is necessary to provide a reasonable rate of return. Therefore, we reverse that
portion of the district court's judgment pertaining to prejudgment interest and remand based
upon that recent decision.
FACTS
On September 23, 1991, Clark County brought an eminent domain action against Roberts
seeking a .59 acre parcel of real property in conjunction with the Palm/Pecos Interconnect
project. On the same date, Clark County also filed a motion for immediate occupancy. On
November 19, 1991, Clark County took possession of the property pursuant to the district
court's order of immediate occupancy. As a condition to the granting of the order, Clark
County deposited $300,000.00 with the court clerk on December 12, 1991.
The case was tried before a jury, and on March 25, 1993, the jury set total just
compensation at $500,000.00. The district court's judgment on the verdict stated: [T]he
Defendant, Lia Roberts, shall receive statutory interest on the balance of the $200,000 from
the 19th day of November, 1991, the date of the Order of Immediate Occupancy, at the
statutory rate until paid.
On June 8, 1993, Clark County served a notice of deposit on Roberts informing it that
$214,825.75 had been deposited with the court clerk. This sum included statutory costs,
prejudgment interest, and post-judgment interest. Clark County had calculated prejudgment
interest at four percent based on the one-year United States treasury bill pursuant to NRS
37.175. On June 16, 1993, Roberts filed a motion to amend the judgment and attacked Clark
County's reliance on NRS 37.175. Roberts attached the affidavit of Dr. Thomas Carroll to the
motion, and the affidavit stated that an eight percent rate of interest (calculated pursuant to
NRS 17.130 by using the prime rate of the largest bank in Nevada and adding two percent)
provided a more accurate return on the loss of the use of property than the one-year treasury
bill rate. In response to the motion, Clark County relied on NRS 37.175 and submitted a
copy of the Federal Reserve bulletin to assist the court in computing the one-year
treasury bill rate.
response to the motion, Clark County relied on NRS 37.175 and submitted a copy of the
Federal Reserve bulletin to assist the court in computing the one-year treasury bill rate.
Alternatively, Roberts asked the court to: (1) declare NRS 37.175 unconstitutional as a
violation of the equal protection clause of the Fourteenth Amendment, (2) adopt the rate
established by NRS 17.130, or (3) set a date for an evidentiary hearing to determine what
interest rate would provide just compensation.
On August 10, 1993, the district court rendered a written decision denying Roberts'
motion. The district court determined that Roberts was not entitled to a higher rate of interest
because the four percent rate was based on a relevant market indicator. Further, the district
court stated that the fact that the State had used a different means to determine the interest
rate applicable to different judgments was irrelevant to the question of whether a legitimate
state interest exists. Finally, the district court concluded that in the absence of a showing by
Roberts that the State was without a right to set statutory interest rates, the court could not
question the rate established by NRS 37.175.
Roberts filed a timely appeal.
DISCUSSION
In the recent decision of State, Department of Transportation v. Barsy, 113 Nev. 712, 941
P.2d 971 (1997), this court upheld a condemnee's right to receive a reasonable rate as
prejudgment interest if competent evidence showed that a reasonable rate of interest would be
other than that stated in NRS 37.175. The Roberts Family Trust moved to amend the
judgment entered pursuant to the jury verdict to reflect a prejudgment interest rate of eight
percent. This motion was supported by an expert's affidavit stating that the rate set forth in
NRS 37.175 was inadequate and that the appropriate prejudgment interest rate to provide a
reasonable return on the judgment amount should have been eight percent per annum. Once
such a showing is made, a district court should make a determination, after holding an
evidentiary hearing, if necessary, of what interest rate will provide the condemnee with
reasonable compensation.
Accordingly, we reverse that portion of the judgment of the district court pertaining to
prejudgment interest and remand to the district court for a determination of the appropriate
rate of interest pursuant to Barsy. The judgment is affirmed in all other respects.
1
__________

1
The Honorable Robert E. Rose, Justice, did not participate in the decision of this matter.
____________
113 Nev. 835, 835 (1997) Sun City Summerlin v. State, Dep't Tax.
SUN CITY SUMMERLIN COMMUNITY ASSOCIATION, a Nevada Non-Profit
Corporation, Appellant, v. THE STATE OF NEVADA, by and Through Its
DEPARTMENT OF TAXATION; COUNTY OF CLARK, NEVADA; and MARK
W. SCHOFIELD, Clark County Assessor, Respondents.
No. 26419
August 28, 1997 944 P.2d 234
Appeal from an order of the district court denying a petition for judicial review of a
decision by the Nevada State Board of Equalization. Eighth Judicial District Court, Clark
County; Jeffrey D. Sobel, Judge.
Community association for planned residential community appealed county assessor's tax
assessments of association's properties which were used as common areas. County board of
equalization upheld assessments and association appealed. State Board of Equalization
denied appeal and association petitioned for judicial review. The district court denied petition
and association appealed. The supreme court held that: (1) property tax statute prohibiting
separate taxation or assessment of condominium's or planned community's common elements
applied to association's properties; (2) statute was unconstitutional; (3) properties retained
some taxable value despite their legal restrictions; (4) taxation of individual units of
community and common areas was not double taxation; and (5) assessor was required to
consider restrictions on properties.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks and Andrew P.
Gordon, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and Norman J. Azevedo and Harry J.
Schlegelmilch, Deputy Attorneys General, Carson City; Stewart L. Bell, District Attorney, Zev
E. Kaplan, Deputy District Attorney, Clark County, for Respondents.
Woodburn & Wedge, Las Vegas, for Amicus Curiae The Community Association Institute.
1. Taxation.
Property tax statute requiring each unit of condominium or planned community to be separately taxed and prohibiting separate
taxation or assessment of common elements for which declarant has reserved no developmental rights if there is any unit's owner other
than declarant does not require that all units have owners other than declarant. NRS 116.1105(2)(b).
2. Taxation.
Property tax statute which prohibited separate taxation or assessment of condominium's or planned community's common elements
for which declarant has reserved no developmental rights applied to common areas in planned residential community, even though
declarant intended to add additional land to community and to subdivide that land, where declarant did not reserve developmental
rights for existing common areas, but conveyed common areas to community association. NRS 116.1105(2)(b).
3. Taxation.
Statute which effectively permitted taxation of common elements in condominiums, in which unit owners hold undivided interests
in common elements, but precluded taxation of common elements in planned communities, in which community associations owned
common elements, violated constitutional prescription for uniform and equal rate of assessment and taxation of property. Const. art.
10, 1; NRS 116.1105(2)(b).
Statutes enacted by legislature carry presumption of constitutional validity, and those attacking statute must clearly show that it is
unconstitutional.
5. Taxation.
Taxpayer challenging property tax assessment can satisfy burden of showing clear and satisfactory evidence that county assessor's
valuation is unjust and inequitable by showing that assessor applied fundamentally wrong principle or refused to exercise his best
judgment or that assessment is so excessive as to imply fraud and bad faith. NRS 361.430.
6. Taxation.
Restrictions on use and alienability of land are relevant to valuation of land and in some circumstances may be extreme enough to
render land valueless for tax purposes.
7. Taxation.
Assuming that properties owned by community association for planned residential community were required to be run as nonprofit
enterprises for sole benefit of community residents for 20 years, properties retained some taxable value, where association had power to
sell properties if majority of its members assented and there was no restriction on properties' use after 20-year period expired.
8. Taxation.
Taxation of both planned residential community's individual units and golf courses and recreation centers, which were owned by
community association for benefit of community, did not constitute unconstitutional double taxation, even though golf courses and
recreation centers enhanced value of and increased taxes on individual units.
9. Taxation.
Membership in community association for planned residential community and holding of easements for access to and use of
common areas of community did not constitute ownership of common areas for taxation purposes. NRS 116.110318(2).
10. Taxation.
Legal restrictions on properties owned by community association for planned residential community which required properties to
be run as nonprofit enterprises for sole benefit of community residents for 20 years were relevant to properties' valuation, and thus,
county assessor was required to consider restrictions in making valuations, even though statute did not expressly require that
legal restrictions be considered in appraising improved land.
statute did not expressly require that legal restrictions be considered in appraising improved land. NRS 361.227(1)(a)(2).
OPINION
Per Curiam:
Sun City Summerlin (Sun City) is a master-planned adult residential community in Las
Vegas developed by Del Webb Communities, Inc. (Del Webb). Del Webb developed two golf
courses and two recreation centers (the properties) as a part of Sun City and conveyed them to
appellant Sun City Summerlin Community Association (the Association), a non-profit
corporation. The Clark County Assessor's Office (the county assessor) assessed real property
taxes totaling $259,648.11 against the properties. The Association appealed the assessments
to the Clark County Board of Equalization, which upheld the assessments. The Association
appealed the decision to the State Board of Equalization (the State Board), which denied the
appeal. The Association then petitioned for judicial review, and the district court denied the
petition.
We conclude that NRS 116.1105(2)(b) applies to this case but is unconstitutional insofar
as it precludes taxation of common elements in a planned community. We further conclude
that restrictions on the use of the properties are relevant to their valuation and that the county
assessor erred in disregarding the restrictions in valuing the properties.
FACTS
The following facts were presented to the State Board. Sun City is a master-planned adult
residential community in Las Vegas developed by Del Webb. Del Webb developed two golf
courses and two recreation centers as a part of Sun City and conveyed them to the
Association. Del Webb recoups the cost of developing these amenities through a higher sale
price for homes in Sun City. Owners of residences in Sun City are Class A members of the
Association and must pay an annual fee of $320.00 to the Association. Class A members who
wish to play golf pay an additional annual fee of $600.00 and a fee of $4.00 per round of golf.
Del Webb is a Class B member of the Association. The Association's bylaws provide that its
board of directors can sell Association property worth more than a specified value only with
the assent of a majority of its members.
The four properties were conveyed to the Association in 1990 and 1992 and are
encumbered with certain use restrictions. All four deeds reserve for Del Webb, for a period of
twenty years after conveyance, the right to prior approval of the design of any improvements
to the properties.
improvements to the properties. The golf course properties shall be used only as golf courses
for a period of twenty years after conveyance. The Association asserts in its brief to this court
that all four properties must be run as non-profit enterprises for the sole benefit of Sun City
residents for twenty years. However, in the record before this court, only the deed for one
recreation center states all these restrictions. Moreover, Jon Donnell, the treasurer for the
Association and a vice president of Del Webb, informed the State Board that the Association
supplements its income by permitting some nonresident golf play [at] about $75 a round.
The Association gave evidence that the golf courses, pro shops, grill, snack bar, and
recreation centers on the properties operate at an overall loss.
The Association presented evidence that due to the amenities provided by the properties,
homes in Sun City sell for higher prices than comparable homes elsewhere without such
amenities and that Sun City homes were assessed $11.00 per square foot higher than
comparable homes. According to the Association, this additional assessment amounted to
$83,259,000.00 for all Sun City homes. The county assessor valued the four properties in
question at a total of $21,657,281.00.
Bill Chambers of the county assessor's office stated that in addition to the golf courses and
recreation areas, other factors accounted for the higher value of Sun City homes: Sun City is
an affluent retirement community which has security, shopping centers, and nearby medical
facilities. Chambers said that to help establish the taxable value of Sun City lots, the county
assessor's office had compared the cost of Sun City interior lots with those at a development
across the street, Belair Estates. He also said that although Sun City homes were production
and Belair Estates homes were semi-custom, the quality of construction was similar.
According to Chambers, the county assessor had also compared golf course frontage lots at
Sun City with those at Canyon Gate development and concluded that the valuation of Sun
City was appropriate given these comparisons.
Tim Greene stated for the Association that Sun City had public streets while Canyon Gate
was a more exclusive community with security gates, yet comparable Sun City homes were
still higher valued. Donnell, Del Webb vice president, stressed that the county assessor
compared Sun City production homes with semi-custom and custom homes, not other
production housing developments, which Donnell considered to be Sun City's competition.
A member of the State Board asked Chambers, what if the developer had recorded his
maps with an undivided interest in the common areas? How would you handle it then? It
would be reflected in the price of the individual home, wouldn't it? Chambers answered:
Yes, it would be like a condo.
DISCUSSION
Whether NRS 116.1105(2) applies to this case
NRS 361.420(4)(b) provides that a property owner who has protested his or her property
taxes and been denied relief by the State Board may sue in court on the ground that the
property is exempt from taxation under the provisions of the revenue or tax laws of the state.
In a condominium or planned community:
(a) If there is any unit's owner other than a declarant, each unit that has been created,
together with its interest in the common elements, constitutes for all purposes a separate
parcel of real estate.
(b) If there is any unit's owner other than a declarant, each unit must be separately
taxed and assessed, and no separate tax or assessment may be rendered against any
common elements for which a declarant has reserved no developmental rights.
The Association contends that NRS 116.1105(2)(b) prohibits separate assessment and
taxation of the properties. Respondent Department of Taxation (the Department) argues that
this statute does not apply to this case.
1
[Headnotes 1, 2]
Del Webb is the declarant here. See NRS 116.110335. The Department argues that as long as Del Webb owns any units at Sun City
and is a member of the Association, NRS Chapter 116 is inapplicable. By its own language, however, NRS 116.1105(2)(b) applies [i]f
there is any unit's owner other than a declarant. (Emphasis added.) It does not require that all units have owners other than a declarant. The
Department also asserts that because Del Webb intends to add additional land to Sun City and subdivide it, Del Webb has reserved
developmental rights which place Sun City outside the purview of NRS 116.1105(2)(b). See NRS 116.11034.
2
However, NRS
116.1105(2)(b) provides that no separate tax or assessment may be rendered against any common elements for
which a declarant has reserved no developmental rights."
__________

1
The Department also contends that even if the statute applies, it simply provides a billing mechanism that does not preclude taxing
the properties but only requires billing the individual homeowners for the taxes rather than the Association. We reject this contention
because we do not see how NRS 116.1105(2)(b) can preclude separate tax or assessment against common elements and yet allow billing
of unit owners for taxes on the common elements.

2
NRS 116.11034 provides that developmental rights are rights to:
1. Add real estate to a common-interest community;
2. Create units, common elements or limited common elements within a common-interest community;
3. Subdivide units or convert units into common elements; or
4. Withdraw real estate from a common-interest community.
separate tax or assessment may be rendered against any common elements for which a
declarant has reserved no developmental rights. (Emphasis added.) Del Webb has not
reserved developmental rights for the common elements in question here. It conveyed the
properties to the Association and reserved no right to create units within the properties. Even
if Del Webb can add land to Sun City and create additional units, these do not constitute
developmental rights in the golf courses or recreation centers. Therefore, Del Webb's
remaining interests in Sun City do not preclude application of NRS 116.1105(2) to this case.
3
Whether NRS 116.1105(2)(b) is constitutional as applied to planned communities
[Headnote 3]
NRS 116.1105(2)(a) contemplates a situation where each unit that has been created, together with its interest in the common
elements, constitutes for all purposes a separate parcel of real estate. (Emphasis added.) In such a situation, each unit must be separately
taxed and assessed, and no separate tax or assessment may be rendered against any common elements. NRS 116.1105(2)(b). However,
under the statutory scheme set forth in NRS Chapter 116, units in planned communities, unlike condominiums, include no taxable interest
in common elements.
The parties agree that Sun City is a planned community. See NRS 116.110368, 116.110323. Individual Sun City units do not include
ownership interests in the golf courses and recreation centers; rather, the Association of Sun City unit owners owns these common
elements. NRS 116.1105(2) expressly applies to both condominiums and planned communities. But these two types of common-interest
community, by statutory definition, exhibit distinctly different ownership of common elements. In a condominium, the undivided interests
in the common elements are vested in the units' owners. NRS 116.110325. In a planned community, common elements are real estate,
other than a unit, owned or leased by the association. NRS 116.110318(2). Thus, NRS 116.1105(2)(b) permits taxation of common
elements in condominiums, where unit owners hold undivided interests in the elements, but not in planned communities such as Sun City,
where associations own the elements, and the county assessor is precluded from taxing the common elements directly.
[Headnote 4]
The question before us is whether this disparate taxation of properties is constitutional.
__________

3
Even if Del Web held developmental rights in the common elements, the State would then be required to assess taxes against Del
Webb, not the Association. NRS 116.1105(3).
properties is constitutional. Statutes enacted by the Legislature carry a presumption of
constitutional validity, and those attacking a statute must clearly show that it is
unconstitutional. List v. Whisler, 99 Nev. 133, 137-38, 660 P.2d 104, 106 (1983).
Article ten, section one of the Constitution of the State of Nevada requires the Legislature
to provide by law for a uniform and equal rate of assessment and taxation and prescribe
such regulations as shall secure a just valuation for taxation of all property. Early in its
history, this court explained that this constitutional provision requires that all ad valorem
taxes should be of a uniform rate or percentage. That one species of taxable property should
not pay a higher rate of taxes than other kinds of property. State of Nevada v. Eastabrook, 3
Nev. 173, 177 (1867). The court concluded that a statute providing for a different tax rate for
the products of mines was unconstitutional and void: The legislature could neither make the
tax greater nor less on the products of mines than on other property. Id. at 179. This court
has reaffirmed its holding in Eastabrook many times. See List, 99 Nev. at 138, 660 P.2d at
107.
In Boyne v. State ex rel. Dickerson, 80 Nev. 160, 390 P.2d 225 (1964), this court
considered a statute which allowed assessment of land used for agricultural purposes based
on its value for such use, rather than on its value for other purposesthe method for
assessing other lands. This court affirmed the district court's conclusion that the statute was
unconstitutional because it gave the owners of agricultural property a distinct tax advantage
over other landowners. Id. at 166-67, 390 P.2d at 228-29.
Insofar as NRS 116.1105(2)(b) precludes taxation of common elements in planned
communities, we conclude that it is void for violating the prescription for a uniform and
equal rate of assessment and taxation of all property set forth in article ten, section one of
our state constitution.
Other issues regarding the assessment and taxation of the properties
The Association offers other reasons, in addition to NRS 116.1105(2)(b), for assessing no
taxes against the properties. It argues that the tax assessment was improper because the deed
restrictions limit the properties' marketability and largely eliminate their value. It also argues
that because the properties enhance the value of and increase the taxes on Sun City units and
because unit owners hold easements in the properties, taxation of both the properties and the
units amounts to unconstitutional double taxation.
[Headnote 5]
NRS 361.420(4)(e) provides that a person assessed may sue on the ground that "the assessment is out of proportion to
and above the taxable cash value of the property assessed."
the ground that the assessment is out of proportion to and above the taxable cash value of the
property assessed. The plaintiff has the burden of proof to show by clear and satisfactory
evidence that any valuation established by . . . the county assessor . . . is unjust and
inequitable. NRS 361.430. A plaintiff can satisfy this burden by showing that the assessor
applied a fundamentally wrong principle or refused to exercise his or her best judgment or
that the assessment is so excessive as to imply fraud and bad faith. Imperial Palace v. State,
Dep't Taxation, 108 Nev. 1060, 1066, 843 P.2d 813, 817 (1992).
[Headnotes 6, 7]
Both parties have cited a number of cases regarding the effect of zoning and deed restrictions on the value of land. See, e.g., Recreation
Centers v. Maricopa County, 782 P.2d 1174, 1176 (Ariz. 1989); Lake County Bd. v. Property Tax Appeal Bd., 414 N.E.2d 173 (Ill. App.
Ct. 1980); Supervisor of Assessments v. Bay Ridge Prop., Inc., 310 A.2d 773 (Md. 1973); Dept. of Revenue v. Grouse Mt. Development,
707 P.2d 1113 (Mont. 1985); Locke Lake Colony v. Town of Barnstead, 489 A.2d 120 (N.H. 1985); Grasser v. Graham, 411 N.Y.S.2d 836
(Sup. Ct. 1978); Brooks Resources Corp. v. Dept. of Revenue, 595 P.2d 1358 (Or. 1979); Tualatin Development Co. v. Department of
Revenue, 473 P.2d 600 (Or. 1970); Lake Monticello Owners' Ass'n v. Ritter, 327 S.E.2d 117, 119 (Va. 1985); Sahalee Country Club v. Bd.
of Tax App., 735 P.2d 1320 (Wash. 1987); Twin Lakes Golf and Country Club v. King County, 548 P.2d 538 (Wash. 1976). We distill
from these cases the proposition that restrictions on the use and alienability of land are relevant to valuation of land and in some
circumstances may be extreme enough to render the land valueless for tax purposes. We conclude that the restrictions in the instant case are
not that extreme. Even assuming that all four properties must be run as non-profit enterprises for the sole benefit of Sun City residents for
twenty years, they appear to retain some taxable value. The Association has the power to sell the properties in question if a majority of its
members assent. Someone might be willing to buy the properties since there is no restriction on their use after the twenty-year period
expires. Under the approach taken by the Arizona Supreme Court in Recreation Centers, even a nonprofit restriction on a property's use is
irrelevant to its valuation for tax purposes. Recreation Centers, 782 P.2d at 1181-83. Furthermore, the Association did not show that the
golf courses or other facilities could not be run at a profit in the future. See Brooks, 595 P.2d at 1360 (taxpayer failed to show unprofitable
golf course had no value when losses were decreasing and taxpayer offered no expert testimony that course would continue to be
unprofitable).
[Headnote 8]
In regard to the issue of double taxation, the correct view is that there is no necessary correlation between one property's increase in
value and another property's decrease in value. Homes located near a golf course can enjoy enhanced value from that proximity without
impairing the value of the golf course itself. Certainly, a separately owned, for-profit golf course which enhances the value of surrounding
homes could not avoid taxes simply because it has increased the value of and the taxes paid on those homes. Therefore, the focus should be
simply on the subject property's value, and neighboring property values are relevant only insofar as they affect the subject property's value.
See Sahalee, 735 P.2d at 1323-24; Lake County, 414 N.E.2d at 176; cf. Lake Monticello, 327 S.E.2d at 119.
The Association contends that taxation of the properties constitutes double taxation for other reasons. The Association argues that
because its members are automatically and mandatorily made members of the Association, and the Association owns the common elements,
that such membership constitutes an ownership interest in the common elements. It also claims that Sun City residents have an ownership
interest in the properties pursuant to NRS 116.2116(2), which provides that in a planned community,
the units' owners have an easement:
(a) In the common elements for purposes of access to their units; and
(b) To use the common elements and all real estate that must become common elements . . . for all other purposes.
[Headnote 9]
This contention has no merit. The Association offers no authority for the proposition that membership in the Association or easements
for access to and use of property constitute ownership of that property, nor does it explain how this proposition is to be reconciled with
NRS 116.110318(2), which states that common elements in a planned community are owned or leased by the association.
4
[Headnote 10]
As discussed above, however, these easements are relevant to accurate valuation of the properties. Although the restrictions imposed on
the properties do not render them valueless, the restrictions are relevant to valuation of the properties. The record indicates that the county
assessor did not consider the restrictions in making its valuations, and the Department argues that under NRS 361.227{1){a){2) the
assessor need not and should not consider such restrictions in valuing improved land.
__________

4
Even if we were to agree that membership in the Association constituted an ownership interest in the common elements, it is clear
from the double taxation discussion, supra, that such an interest was not taxed through the higher value of the homes.
NRS 361.227(1)(a)(2) the assessor need not and should not consider such restrictions in
valuing improved land. We reject this argument.
NRS 361.227(1)(a)(1) expressly provides that vacant land be appraised by considering
inter alia any legal . . . restrictions upon the land's uses, while NRS 361.227(1)(a)(2) does
not expressly provide that legal restrictions be considered in appraising improved land. The
Department seems to argue that since subsection (1)(a)(2) does not mention legal restrictions
upon use, such restrictions are irrelevant in regard to improved land. This view does not make
sense. NRS 361.227(1)(a)(2) provides that improved land be appraised consistently with the
use to which the improvements are being put. We conclude that restrictions on use are an
integral aspect of the use to which improved land is put and are necessarily relevant to any
valuation of the land. Therefore, we conclude that the county assessor applied a
fundamentally wrong principle in disregarding the use restrictions in valuing the properties.
CONCLUSION
NRS 116.1105(2)(b) is unconstitutional and void insofar as it precludes the taxation of
common elements in a planned community. Consideration of the restrictions which the
properties are subject to is necessary for accurate valuation of the properties. We therefore
reverse the district court's order and remand this case to that court for further proceedings
consistent with this opinion.
5
____________
113 Nev. 844, 844 (1997) Tanksley v. State
RICHARD TANKSLEY and ALICE D. TANKSLEY, Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 27094
August 28, 1997 944 P.2d 240
Appeal from judgments of conviction of Richard Tanksley of attempting to obtain money
by false pretenses and extortion, and of Alice Tanksley of principal to an attempt to obtain
money by false pretenses. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
The supreme court, Shearing, C. J., held that: (1) substantial evidence supported trial
court's conclusion that defendant was competent to stand trial; {2) trial court did not abuse
discretion by granting defendant's request to waive counsel; {3) trial court could impose
maximum penalties, even though white co-defendant received lesser sentences; and {4)
trial court gave misleading instruction on need for showing of criminal intent in order to
convict for principal to attempt to obtain money by false pretenses, requiring new trial for
co-defendant.
__________

5
competent to stand trial; (2) trial court did not abuse discretion by granting defendant's
request to waive counsel; (3) trial court could impose maximum penalties, even though white
co-defendant received lesser sentences; and (4) trial court gave misleading instruction on
need for showing of criminal intent in order to convict for principal to attempt to obtain
money by false pretenses, requiring new trial for co-defendant.
Mark B. Jackson, Gardnerville, for Appellant, Richard Tanksley.
William G. Rogers, Carson City, for Appellant, Alice Tanksley.
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney
and Robert F. Bony, Deputy District Attorney, Carson City, for Respondent.
1. Mental Health.
Test to be applied in determining competency to stand trial is whether defendant has sufficient present ability to consult with his
lawyer with reasonable degree of rational understanding, and whether he has rational and factual understanding of proceedings against
him.
2. Criminal Law.
When there is conflicting psychiatric testimony at competency hearing, trier of fact resolves conflicting testimony of witnesses.
3. Criminal Law.
Findings of fact in competency hearings will be sustained on appeal when substantial evidence exists to support them.
4. Criminal Law.
Substantial evidence supported trial court's determination that defendant was competent to stand trial. Two out of three members
of sanity commission found defendant competent, and third was unable to make determination.
5. Criminal Law.
In reviewing whether defendant waived his right to counsel with full understanding of disadvantages, supreme court gives
deference to decision of trial judge, who is more competent to judge defendant's understanding than is supreme court.
6. Criminal Law.
Trial court did not abuse discretion in granting defendant's request to waive counsel. Trial court explained hazards of
self-representation to defendant and ordered standby counsel, and there was evidence in record that defendant understood
consequences of waiver.
7. Criminal Law.
District court has wide discretion in imposing prison term, and supreme court will not disturb sentence absent showing of abuse of
discretion.
8. Criminal Law.
Sentencing judge has discretion to consider defendant's age and prior record.
9. Criminal Law.
Trial court could sentence defendant to maximum sentences of five years imprisonment for attempting to obtain money by false
pretenses and 10 years imprisonment for extortion, even though white co-defendant received lesser sentences; co-defendant entered
into plea negotiations with prosecution and defendant had extensive prior criminal record.
10. Criminal Law.
Jury instruction should be unambiguous.
11. Criminal Law.
Jury instructions taken as whole may be sufficient to cure ambiguity in challenged instruction.
12. Criminal Law.
As an attempt crime is a specific intent crime, act constituting attempt must be done with intent to commit that crime. NRS
193.330.
13. False Pretenses.
Trial court gave ambiguous instruction on crime of principal to an attempt to obtain money by false pretenses. The instruction the
fact that the person who 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, could be interpreted to mean that an aider need not have intent to commit the crime. NRS 195.020.
OPINION
Appellant Richard Tanksley (Richard) was tried before a jury and convicted of
attempting to obtain money by false pretenses and extortion. Appellant Alice Tanksley
(Alice) was tried before a jury and convicted of principal to an attempt to obtain money by
false pretenses. On appeal, Richard contends (1) that the trial court abused its discretion in
finding him competent to stand trial; (2) that the trial court abused its discretion in
determining that he made a knowing and intelligent waiver of assistance of counsel; and (3)
that the trial court abused its discretion in sentencing him to the maximum punishment. Alice
contends that (1) the criminal information provided insufficient notice that she was charged
as an aider and abettor; and (2) the jury was improperly instructed concerning criminal intent.
We affirm the judgment of the trial court with regard to Richard. With regard to Alice, we
conclude that the trial court did not properly instruct the jury that a finding of criminal intent
was required to find Alice guilty of attempt. We therefore reverse Alice's conviction and
remand for a new trial.
DISCUSSION
Richard argues that the district court abused its discretion in finding him competent to
stand trial. He argues that he suffered from paranoid delusions which interfered with his
ability to communicate rationally and to cooperate with his attorneys.
[Headnotes 1-3]
The test to be applied in determining competency is whether the defendant has sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding, and whether he has a rational and factual understanding of the proceedings against
him. Jones v. State, 107 Nev. 632, 637, 817 P.2d 1179, 1182 (1991); see NRS 178.400. When there is conflicting psychiatric testimony
at a competency hearing, the trier of fact resolves the conflicting testimony of the witnesses. Furthermore, such findings will be sustained
on appeal when substantial evidence exists to support them. Ogden v. State, 96 Nev. 697, 698, 615 P.2d 251, 252 (1980) (citations
omitted).
[Headnote 4]
The trial judge impanelled a sanity commission to determine whether Richard was competent to stand trial. Two members of the
commission found Richard competent, and the third was unable to make a determination. We conclude that substantial evidence exists to
support the district court's determination that Richard was competent.
Richard argues that he did not knowingly and voluntarily waive his right to assistance of counsel, and that the district court erred by
failing to consider the particular facts and circumstances of his case when granting the waiver.
[Headnote 5]
In reviewing whether a defendant waived his right to counsel with a full understanding of the disadvantages, this court gives deference
to the decision of the trial judge, who is much more competent to judge a defendant's understanding than this court. Graves v. State, 112
Nev. 118, 124, 912 P.2d 234, 238 (1996).
During the trial judge's canvass of Richard, the trial judge advised Richard of the dangers of self-representation, and ordered standby
counsel. There is substantial evidence in the record that Richard understood the consequences of self-representation and voluntarily waived
the assistance of counsel. We conclude that the trial court did not abuse its discretion in granting the waiver of counsel.
[Headnote 6]
Richard argues that the district court abused its discretion in sentencing him to the maximum sentences of five years imprisonment
for attempting to obtain money by false pretenses, and ten years imprisonment for extortion.
ment for attempting to obtain money by false pretenses, and ten years imprisonment for
extortion. He contends that his sentence would have been more proportionate to that of a
co-defendant if he had been a young white male.
[Headnotes 7, 8]
A district court has wide discretion in imposing a prison term and this court will not disturb the sentence absent a showing of abuse of
such discretion. Glegola v. State, 110 Nev. 344, 349, 871 P.2d 950, 953 (1994). The sentencing judge has discretion to consider the
defendant's age and prior record. Deveroux v. State, 96 Nev. 388, 390, 610 P.2d 722, 723-24 (1980).
[Headnote 9]
In the instant case, the co-defendant entered into a plea negotiation with the State. Also, unlike the co-defendant, Richard had an
extensive criminal background. These factors are plausible explanations for the difference between Richard's and the co-defendant's
sentences.
Finally, Richard's contention that race played a factor in sentencing is without merit. Accordingly, we affirm Richard's conviction and
sentence.
Alice contends that the criminal information failed to set forth how she aided and abetted Richard, in violation of Barren v. State, 99
Nev. 661, 669 P.2d 725 (1983). In Barren, this court reversed and remanded Barren's convictions of murder and robbery because an
indictment failed to provide the defendant with adequate notice to prepare his defense. Id. at 668, 669 P.2d at 730; accord Ikie v. State, 107
Nev. 916, 823 P.2d 258 (1991). In contrast to Barren, in the instant case, the State clearly proceeded on the same theories that were in the
information. We conclude that the information provided sufficient notice to Alice to prepare a defense to the charge of aiding and abetting.
The jury, however, was given the following instruction:
Every person concerned in the commission of a felony, 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 is a principal, and shall be proceeded against and punished
as such. The fact that the person who 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.
Jury Instruction No. 8 (emphasis added).
Alice argues that the word who inserted at a key point in this instruction allowed her to be convicted without a
finding of criminal intent.
this instruction allowed her to be convicted without a finding of criminal intent. Alice also
contends that Jury Instruction No. 9 erroneously required a finding that either Richard or
Alice had specific intent to commit the crime, instead of a finding that Alice had the specific
intent.
At trial, the judge stated that Jury Instruction No. 8 was a verbatim recital of NRS
195.020. NRS 195.020 states in pertinent part:
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.
[Headnotes 10, 11]
A jury instruction should be unambiguous. See Culverson v. State, 106 Nev. 484, 488, 797 P.2d 238, 240 (1990). Nonetheless, jury
instructions taken as a whole may be sufficient to cure an ambiguity in a challenged instruction. See Doyle v. State, 112 Nev. 879, 901-02,
921 P.2d 901, 916 (1996).
[Headnote 12]
An attempt crime is a specific intent crime; thus, the act constituting attempt must be done with the intent to commit that crime. NRS
193.330; Curry v. State, 106 Nev. 317, 319, 792 P.2d 396, 397 (1990).
[Headnote 13]
In the instant case, the word who in the challenged jury instruction creates an ambiguity that may have misled the jury into believing
that a finding of Alice's criminal intent was not required. The fact that the person who aided . . . could not or did not entertain a criminal
intent shall not be a defense may be read to refer to Alice, who, under the facts of the case, was the person who aided Richard. In
comparison, under NRS 195.020, Alice would be the person aiding Richard, who is the person aided. The misworded jury instruction
suggests that lack of criminal intent on the part of Alice, the person who aided, is no defense.
Taken as a whole, the jury instructions do not cure the ambiguity. Jury Instruction No. 9 reads in pertinent part, 3. That either ALICE
D. or RICHARD TANKSLEY had the specific intent to obtain money . . . by making a false representation. . . . This appears to instruct
the jury that it must find that either Richard or Alice had specific intent, but a finding that both defendants had specific intent was not
required to find that both were guilty of the crimes charged.
The jury, having never been instructed that a finding of specific intent was required to convict Alice, could have returned a verdict of
guilty without having found that Alice intended to obtain money by false pretenses or intended to aid and abet
the obtaining of money by false pretenses.
verdict of guilty without having found that Alice intended to obtain money by false pretenses
or intended to aid and abet the obtaining of money by false pretenses. Thus, the trial court did
not properly instruct the jury regarding criminal intent. We conclude that Alice's conviction
must be reversed and her case remanded to the district court for a new trial.
Based on the foregoing, we reverse and remand Alice's conviction of principal to an
attempt to obtain money by false pretenses. We affirm the decision of the trial court in all
other respects.
Rose, J., dissenting:
This case is an example of how those in our society who suffer serious mental illness are
treated when they find their way into our criminal justice system. All too often, we warehouse
them for lengthy sentences in an already crowded prison system. Rather than consider
Tanksley's documented mental illness as mitigation in his sentence, the district judge
apparently held it, and the conduct it produced, against him.
When arraigned, counsel had serious doubts about Tanksley's competence to stand trial.
Tanksley's history showed prior hospitalization for delusional disorder or paranoid
schizophrenia, which included two years in the Nevada State Prison's mental unit, and
treatment with psychotropic medication.
The district court appointed a sanity commission to assess Tanksley's ability to stand trial
and ordered Tanksley sent to Lakes Crossing for observation and evaluation. Three doctors
examined him as part of the sanity commission. Two of these doctors had participated in
Tanksley's sanity evaluation involving another case in Washoe County. At a hearing on the
results of Tanksley's evaluation, all three doctors opined that he was suffering from delusional
disorders. One diagnosed Tanksley with paranoid schizophrenia. Initially, when asked about
their conclusions regarding Tanksley's competence to stand trial and to assist in his own
defense, all three concluded that he could not participate effectively in his own defense. Upon
reconsideration, and based on a telephone conversation with Tanksley, one psychiatrist
decided Tanksley was competent, concluding that Tanksley's failure to assist in his defense
was volitional. The second doctor said that Tanksley was competent to understand but could
not participate in his own defense. The third doctor was unwilling to say for certain whether
Tanksley's mental state would impair his ability to assist in his own defense because Tanksley
refused to meet with him for purposes of the sanity commission.
Tanksley also testified at the hearing of the sanity commission. He failed to provide
responsive answers to direct questions; he inferred that his defense would be assisted by
many well-known and important public persons and that a child victim of kidnapping was
a key figure in his defense.
inferred that his defense would be assisted by many well-known and important public persons
and that a child victim of kidnapping was a key figure in his defense. He testified that Nelson
Mandela, kidnap victim Jaycee Lee Dugard (the minor victim in a local unsolved kidnapping
case), and Ed Pearce, a newsman on local Channel 8 television, would assist him at trial, but
he was unwilling to elaborate to his attorneys because they were working against him.
Tanksley was found competent to stand trial by the court at this hearing, but the court
noted that Tanksley's own testimony gave a delusional viewpoint of his defense, and [would]
give a rather constrained defense at best . . . . Shortly before trial, Tanksley elected to
represent himself, and the district judge approved his representation. During jury venire,
Tanksley asked the potential jurors:
Have you all heard about Jaycee Lee Dugard, the incident in the newspaper, about
her being a witness in this court?
. . . .
The Black Panther who might know where she is from the Travis T. Hipp Sunday
afternoon show?
All right. I have no further questions.
In Tanksley's opening statement, he indicated that the case involved a kidnapped child. At
trial, he continued his themes of raising money to locate or secure the release of Jaycee Lee
Dugard and of the conspiracy to hinder this defense.
In Tanksley's closing statement, he stated that the money he attempted to obtain from the
victim was intended to be used for the release of this child, Jaycee Lee Dugard, and he spoke
at length regarding evidence he believed was purposefully hidden from him. Tanksley's
conduct at trial seemed to confirm the numerous medical diagnoses of delusional disorders
with schizophrenia. His numerous delusions were obvious, and he was very suspicious of the
judge and lawyers.
At sentencing, Tanksley argued only that the transcripts of the trial would prove the
perjury and conspiracy that had taken place and that no crime had occurred. Also of interest
was the court's statement at sentencing:
The sentences I'm about to impose, I think, are justified by the actions of both
defendants, as well as what I regard as an offensive attempt to throw a smoke screen to
this Court and to the jury with regard to a child who was unfortunately kidnapped from
her parents, . . . to try to inject that particular child into the theory of defense for reasons
that still escape this Court.
Those reasons seemed clear to the mental health professionals who testifiedTanksley is
mentally ill and suffers from delusional disorders with schizophrenia. Tanksley was
sentenced to five years for obtaining money under false pretenses and ten years on the
extortion count, each count to run consecutive to the other, the maximum sentence that could
be imposed.
While awaiting trial, Tanksley set the stuffing in his jail mattress on fire. He was charged
with arson and tried for this separate offense after the above-stated sentencing. Tanksley was
convicted, adjudged a habitual criminal, and given the maximum sentence of life with the
possibility of parole.
Tanksley, a black man with a white wife, came to Carson City and attempted a scam on a
local businessman by attempting to give him a bad check for a good one. Before any money
changed hands, Tanksley's deception was discovered. His second crime was to set fire to his
jail mattressa more serious offense because it necessitated evacuating prisoners. But in the
broader scheme of things, there was no property loss or personal injury, and I would not
classify either offense as a major felony.
Tanksley is a petty thief with a long history of mental illness. Rather than recognize that
most of Tanksley's conduct was driven by his mental condition, the district judge did just the
opposite. We now have sentences imposed on a mentally ill person of life imprisonment in
the arson case (a minimum of ten actual years must be served before parole eligibility), plus
fifteen years of sentences imposed in this case. Nevada must pay to incarcerate this man for
about twenty years when no one was hurt nor property lost from conduct primarily the
product of mental illness.
This case brings into question the wisdom of this Court's decision in Sims v. State, 107
Nev. 438, 814 P.2d 63 (1991), where we held that the court will not review any sentence that
a district judge could have legally imposed. In dissent with Justice Springer, I stated: The
majority's failure to do so is an abdication of our responsibility and a refusal to correct an
injustice when brought to our attention. Id. at 442, 814 P.2d at 65. I further stated that I find
it disheartening that the part of the criminal process that has the greatest ultimate effect on the
defendantthe imposition of his or her sentenceis the part we decline to review. Id.
It still seems odd to me that we will review every discretionary act performed by a district
court but refuse to scrutinize the sentence imposed in felony crimes. While such review
should be conducted with appropriate deference to the district court and reluctantly exercised,
the Sims case and the case in question are examples of why such review should be conducted.
But, since this court has abdicated its authority to review any sentence that is legally
possible to assess, I can only harangue against such a restrictive policy.
this court has abdicated its authority to review any sentence that is legally possible to assess, I
can only harangue against such a restrictive policy.
I would affirm Tanksley's conviction but vacate the sentence and remand for a new
sentencing hearing before a different district judge.
I agree that the judgment of conviction should be affirmed. I do not join in Justice Rose's
analysis of the sentencing in this case; but, based on my reading of the record, I agree that the
sentence is excessive and that the case should be remanded for re-sentencing.
____________
113 Nev. 853, 853 (1997) Walker v. State
RICHARD ALLAN WALKER, Appellant, v.
No. 26700
RICHARD ALLAN WALKER, Appellant, v.
No. 27633
August 28, 1997 944 P.2d 762
Consolidated appeals from a judgment of conviction pursuant to a jury verdict of one
count of first-degree murder with use of a deadly weapon and one count of robbery with use
of a deadly weapon, and from an order of the district court denying a motion for a new trial.
Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Defendant was convicted before the district court of first-degree murder with use of a
deadly weapon and robbery with use of a deadly weapon, and was sentenced to life without
possibility of parole. Defendant appealed from judgment of conviction and denial of his
motion for new trial. The supreme court held that: (1) evidence was sufficient to sustain
convictions; (2) co-defendant's change of plea statement and penalty hearing statement in
which co-defendant admitted to stabbing victim were not admissible; (3) letter to defendant in
which co-defendant admitted to killing victim was not admissible; (4) investigatory stop of
van in which defendant was a passenger was justified; (5) district court properly denied
defendant's challenges for cause based contention that prospective jurors were not willing to
consider a sentence of life with the possibility of parole; (6) trial court did not err in
determining that state did not use five of eight peremptory challenges to strike women
from the jury with intent to discriminate on basis of gender; {7) evidence of prior
uncharged theft of van belonging to government agency was admissible as evidence of
prior bad act; {S) testimony of doctor concerning defendant's history of drug abuse and
alcoholism and level of intoxication at time of crime was not admissible; and {9)
defendant was not entitled to new trial on ground of newly discovered evidence that he
purchased pure-grain alcohol on day of murder.
court did not err in determining that state did not use five of eight peremptory challenges to
strike women from the jury with intent to discriminate on basis of gender; (7) evidence of
prior uncharged theft of van belonging to government agency was admissible as evidence of
prior bad act; (8) testimony of doctor concerning defendant's history of drug abuse and
alcoholism and level of intoxication at time of crime was not admissible; and (9) defendant
was not entitled to new trial on ground of newly discovered evidence that he purchased
pure-grain alcohol on day of murder.
Affirmed.
[Rehearing denied April 14, 1998]
Patricia M. Erickson, Las Vegas, for Appellant.
and James Tufteland, Chief Deputy District Attorney, and Chip Siegel, Deputy District
1. Criminal Law.
When sufficiency of evidence is challenged on appeal in a criminal case, supreme court inquires 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 sustain a conviction.
3. Homicide; Robbery.
Evidence was sufficient to sustain convictions for murder with use of a deadly weapon and robbery with use of a deadly weapon.
Evidence included bloody footprints at murder scene matching defendant's athletic shoes and knife at murder scene that matched a
sheath defendant was wearing when apprehended. Additionally, defendant's fingerprint was found in stolen van a few blocks from
murder scene, and victim's personal property and items with blood matching victim's blood type on them were found in vehicle in
which defendant was riding when apprehended.
4. Criminal Law.
Co-defendant's change of plea statement and penalty hearing statement in which co-defendant admitted to stabbing victim were
not admissible during guilt phase of defendant's murder trial under general exception to rule against hearsay, despite defendant's
contention they were made under special circumstances which offered assurances of accuracy. Record showed that co-defendant made
other statements implicating defendant in both charged murder and another murder, and given inconsistencies between co-defendant's
statements, district court properly decided that change of plea and penalty hearing statements were inadmissible. NRS 51.075.
5. Criminal Law.
Letter to defendant in which co-defendant admitted to killing victim and co-defendant's statement at his penalty hearing making
same admission were not admissible in guilt phase of defendant's trial pursuant to statement against interest
exception to rule against hearsay.
sion were not admissible in guilt phase of defendant's trial pursuant to statement against interest exception to rule against hearsay. If
letter were redacted to exclude statements exculpating defendant which were untrustworthy, remaining statements against interest
would have had little or no probative value, because co-defendant's guilt did not preclude defendant's criminal liability; also,
co-defendant's remorseful penalty phase statement was not against his penal interest. NRS 51.345.
6. Criminal Law.
Parts of letter to defendant in which co-defendant admitted to killing victim were not admissible in guilt phase of defendant's
murder trial under state of mind exception to the hearsay rule, as statements of then-future intent, absent some showing of the relevance
of co-defendant's then-future intent. NRS 51.105.
7. Homicide.
Questions of admissibility during penalty phase of capital murder trial are largely left to discretion of trial judge.
8. Homicide.
Trial court did not err during penalty phase of capital murder trial in determining that if certain exculpatory statements of
co-defendant were admitted, state would be allowed to admit all other statements made by co-defendant. Admitting only some of
co-defendant's statements could have misled the jury, and statements defendant sought to admit were of dubious veracity.
9. Judges.
Burden is on party asserting the challenge to judge to establish sufficient factual grounds warranting disqualification.
10. Judges.
Generally, what a judge learns in his official capacity does not result in disqualification.
11. Judges.
Opinion formed by judge on the basis of facts introduced or events occurring in the course of current proceedings, or of prior
proceedings, constitutes a basis for a bias or partiality motion where the opinion displays a deep-seated favoritism or antagonism that
would make fair judgment impossible.
12. Judges.
Fact that judge was on panel which sentenced co-defendant to death, and that judge noted in defendant's case that he sought to
admit statements which were inconsistent with evidence admitted at co-defendant's penalty hearing, did not prove bias warranting
judge's disqualification, as judge merely demonstrated a legitimate concern for the reliability of evidence brought before jury.
13. Criminal Law.
Evidence that co-defendant killed his roommate in 1990 was not admissible in trial of defendant for 1992 murder in course of
robbery, despite defendant's claim that exclusion of the evidence prevented him from proving that co-defendant had the ability to act
alone in the robbery and killing. The two homicides were dissimilar in that roommate was shot, and second victim was stabbed.
Assuming arguendo that defendant could prove the prior bad act by clear and convincing evidence, it did not show that co-defendant
acted alone in murdering victim. NRS 48.045(2).
14. Automobiles.
Highway patrol officer had sufficient facts to form a reasonable suspicion that criminal activity was occurring, justifying stop of
van in which defendant was a passenger to investigate whether its driver was under the influence of alcohol.
which defendant was a passenger to investigate whether its driver was under the influence of alcohol. Officer had been notified by
dispatch of a possible drunk driver, confirmed license plate number of van as that of suspect, and observed van weaving within its lane.
15. Jury.
Trial court has broad discretion in its rulings on challenges for cause.
16. Jury.
District court properly denied defendant's challenges for cause based on contention that prospective jurors were not willing to
consider a sentence of life with the possibility of parole for a person convicted of first-degree murder; although jurors initially indicated
that they could not vote to impose such sentence after convicting a person of first-degree murder, they each indicated they could
consider the sentence under circumstances of hypothetical scenario; thus, it could not be said that jurors' views would have caused
them to reject such sentence regardless of the facts and circumstances of conviction.
17. Jury.
Trial court in capital murder case did not abuse its discretion in granting state's challenge for cause of juror who stated he could
only impose the death penalty in John Gacy-type situations. Jury expressed more than general objections to the death penalty, as he
indicated that he would be unwilling to impose a sentence of death in the case at bar.
Potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored
group stereotypes rooted in, and reflective of, historical prejudice. U.S. Const. amend. 14.
19. Jury.
Gender, like race, is an unconstitutional proxy for juror competence and impartiality.
20. Jury.
Batson process for determining whether a prosecutor has used peremptory challenges in a discriminatory manner has three steps:
defendant must make a prima facie showing of intentional discrimination; state must then offer a gender-neutral explanation for
striking the jurors; finally, trial court must decide whether the defendant has carried his burden of proving purposeful discrimination.
21. Jury.
In deciding whether the defendant has made prima facie showing of intentional discrimination in prosecutor's use of peremptory
challenges, trial court should consider all relevant circumstances.
22. Jury.
At second step of Batson inquiry in which state must offer a gender-neutral explanation for striking jurors, issue is the facial
validity of prosecutor's explanation.
23. Jury.
At final stage of Batson inquiry, trial court may determine that state's justifications for its use of peremptory challenges are mere
pretexts for purposeful discrimination.
24. Jury.
Trial court's ultimate decision in Batson inquiry on state's discriminatory intent in its use of peremptory challenges represents a
finding of fact of the sort accorded great deference on appeal.
25. Jury.
Trial court did not err in determining that state did not use five of eight peremptory challenges to strike women from the jury with
intent to discriminate on the basis of gender. Record did not reveal a significant difference between prosecutorial questioning of
women and of men, and state had nonpretextual, nondiscriminatory reasons to exercise peremptory challenges against each of the
prospective jurors in question.
26. Criminal Law.
State must prove that the defendant committed a prior bad act by clear and convincing evidence. NRS 48.035(3).
27. Criminal Law.
Evidence of prior uncharged theft of van belonging to government agency was admissible as prior bad act evidence in prosecution
for murder and robbery arising from subsequent theft of second van, as first theft served as link in sequence of events between time
that defendant left carnival where he was employed and time that he was arrested, and was closely related to second incident. NRS
48.035(3).
28. Criminal Law.
Mere presence at scene of crime cannot support an inference that one is a party to an offense; however, defendant's presence,
companionship and conduct before, during and after the crime are circumstances from which participation in criminal act can be
inferred.
29. Criminal Law.
Unanimity instruction in first-degree murder prosecution was not erroneous on ground that it did not require jury to unanimously
agree to underlying theory of first-degree murder, i.e., whether murder was premeditated and deliberate, or whether it was perpetrated
in course and furtherance of robbery or attempted perpetration of a robbery.
30. Criminal Law.
Flight instruction may give undue influence to one phase of evidence, and therefore supreme court will carefully scrutinize it to be
certain that the record supports the conclusion that defendant's going away was not just a mere leaving but was with a consciousness of
guilt and for the purpose of avoiding arrest.
Flight instruction did not violate due process on theory that it created mandatory presumption of guilt, where instruction stated in
part that flight of person after commission of crime is not sufficient in itself to establish guilt. U.S. Const. amend. 14.
32. Criminal Law.
Testimony of doctor concerning defendant's history of drug abuse and alcoholism and level of intoxication at time of crime was
not admissible in murder trial under medical diagnosis exception to the hearsay rule, where doctor's findings following interview with
defendant were sent to defense counsel who requested report, indicating that doctor's statements were generated for purposes of
litigation, not for medical diagnosis or treatment. NRS 51.075.
33. Criminal Law.
If issue of guilt or innocence is close, if state's case is not strong, prosecutor misconduct will probably be considered prejudicial.
34. Criminal Law.
Where evidence of guilt is overwhelming, even aggravated prosecutorial misconduct may be harmless error.
35. Criminal Law.
Three-day delay in the filing of order for costs of transportation and lodging for defense witnesses just before penalty
phase of murder trial was to begin did not prejudice defendant despite his claim that delay prevented key
penalty phase witnesses from testifying, where defendant had several months in which to prepare an order
for the costs of witness transportation and lodging.
lodging for defense witnesses just before penalty phase of murder trial was to begin did not prejudice defendant despite his claim that
delay prevented key penalty phase witnesses from testifying, where defendant had several months in which to prepare an order for the
costs of witness transportation and lodging.
36. Criminal Law.
Grant or denial of new trial on ground of newly discovered evidence is within discretion of trial court.
37. Criminal Law.
To establish basis for a new trial on ground of newly discovered evidence, the evidence must be: newly discovered; material to the
defense; such that even with the exercise of reasonable diligence it could not have been discovered and produced for trial;
noncumulative; such as to render a different result probable upon retrial; not only an attempt to contradict, impeach, or discredit a
former witness, unless the witness is so important that a different result would be reasonably probable; and the best evidence the case
admits.
38. Criminal Law.
Defendant convicted of first-degree murder was not entitled to new trial on ground of newly discovered evidence that he purchased
pure-grain alcohol on day of the murder, supporting his argument that he was too drunk to commit first-degree murder, as it was not
reasonably probable that the new evidence would have led to a different result.
OPINION
Per Curiam:
On April 14, 1992, police discovered the body of Kevin Marble in Las Vegas. On the same
morning, David Riker and appellant Richard Allan Walker (Walker) were apprehended in
Barstow, California after crashing a van that Marble had used. On June 21, 1994, a jury
convicted Walker of first-degree murder with use of a deadly weapon and robbery with use of
a deadly weapon. Walker then filed a motion for a new trial, which was denied. On December
8, 1994, Walker received two consecutive sentences of life without the possibility of parole.
Walker appeals from the district court's judgment of conviction and denial of his motion for a
new trial.
STATEMENT OF THE FACTS
On April 14, 1992, at 2:47 a.m., Thomas Harmon (Harmon), a Las Vegas Metropolitan
Police Department (LV Metro) officer, found the body of Kevin Marble (Marble) in an
alleyway behind Boston Avenue in Las Vegas. The body was lying in a large pool of blood.
Footwear impressions from two different sets of shoes appeared in the blood. A survival-type
knife lay on the nearby sidewalk. Marble had been stabbed once in the neck and once in the
chest.
Appellant Richard Allan Walker (Walker) was charged with first-degree murder with
use of a deadly weapon and robbery with use of a deadly weapon. A jury trial commenced on
May 31, 1994.
At trial, John McDonald (McDonald) testified that in April 1992, David Riker (Riker)
and Walker were working for him as carnies in Blythe, California. McDonald testified that
on April 10, 1992, at approximately 8:00 p.m., Walker quit. Soon thereafter, Riker also quit.
Philip Quinn (Quinn), also a carnie, testified that he shared a motel room in Blythe with
Riker and Walker. Quinn testified that they had discussed leaving the carnival, and Riker had
mentioned going to Las Vegas. Quinn testified that Riker owned a pair of brown or black
boots with red laces (the Colorado boots), and Walker owned one or two pairs of tennis
shoes.
Melvin Bergman (Bergman), of the National Oceanic and Atmospheric Administration
(NOAA), and his crew were also working in Blythe in April 1992. On April 11, 1992, a
Suburban van used by the NOAA crew (the NOAA van) was stolen. Four days later, when
Bergman recovered the NOAA van in Las Vegas, he noticed that parts of it had been
spray-painted red. Bergman testified that upon recovery, a survival knife and its sheath were
missing from a box in the van. At trial, Bergman identified photographs of the knife and
sheath, and noted that the knife was bent in the photographs.
Thomas Thowsen (Thowsen), a LV Metro officer, testified that the NOAA van was
recovered on South Highland in Las Vegas. Trans Sierra Communications (TSC) was
located nearby at 3347 South Highland.
Joseph Matvay (Matvay), a LV Metro senior crime analyst, testified that the NOAA van
appeared to have been spray-painted in an attempt to obliterate latent fingerprints. Matvay
identified a fingerprint on the driver's seat belt buckle as Walker's, and also found Riker's
fingerprints in the van.
Stephen Glen Kirk (Kirk) testified that in April 1992 he was employed by TSC and was
Marble's coworker. Kirk testified that on April 13, 1992, at about 8:30 p.m., Marble came to
his house to pick up some keys and an identification card. Marble told Kirk that he was going
to the TSC office to work on some blueprints for a school, and then Marble was going home.
Kirk identified a van recovered in Barstow as the van Marble drove (the TSC van), and
identified objects found in the van, including blueprints, keys, and Marble's wallet.
Kathy Marble, Marble's wife, testified that Marble's West Boston Avenue apartment was
near the TSC office.
Louis DeFalco (DeFalco) testified that in April 1992 he ran security at the Primadonna
Hotel and Whiskey Pete's at Stateline, Nevada. On April 14, 1992, between 1:20 and 1:30
a.m., he was notified about a confrontation between a drunk white male and a security
guard in the parking lot.
security at the Primadonna Hotel and Whiskey Pete's at Stateline, Nevada. On April 14, 1992,
between 1:20 and 1:30 a.m., he was notified about a confrontation between a drunk white
male and a security guard in the parking lot. The white male was near a white van with RC
or TC Communications printed on the side. DeFalco described the man as clean-shaven and
having shoulder-length blondish-brown hair. DeFalco observed the man get into the
passenger side of the van, and the van leave the parking lot in a reckless manner. A PBX
operator notified the Nevada Highway Patrol and the California Highway Patrol (CHP)
about the van.
William Flowers (Flowers), a CHP officer, testified that at 1:33 a.m. on April 14, 1992,
CHP dispatch notified him and his partner, Officer Nester (Nester), of a possible drunk
driver involved in breaking a car window in the Whiskey Pete's parking lot. Dispatch said that
the driver was a male with long hair and a beard. Flowers and Nester received a second call at
3:16 a.m., when the vehicle passed the agricultural check station. Personnel at the agricultural
station had reported that the parties within the van smelled of alcohol, and that a bearded
male was passed out in the back of the van. Flowers and Nester saw the van, confirmed the
license plate number, and called for assistance to stop the vehicle. Flowers testified that he
observed the van weaving within its lane, and stated that drunk drivers display these types of
maneuvers due to a lack of coordination. Flowers and Nester followed the van for over six
miles before Flowers signalled for it to pull over. Flowers testified that the van accelerated to
90 m.p.h. before it exited at Main Street in Barstow.
Barry Hazelett (Hazelett), a Barstow police officer, testified that at 3:27 a.m. he was
involved in chasing a TSC van down Main Street in Barstow. The van ultimately crashed into
an embankment. Both Riker and Walker were injured. Riker was removed from the driver's
seat. Hazelett found a knife near Riker's foot, and Marble's driver's license outside the vehicle
on the driver's side. When Walker was pulled out of the passenger side, he was wearing a
knife sheath on his belt. At trial, Bergman identified this sheath as the mate for the survival
knife. Hazelett described Walker as half-white, half-Asian, with long black hair.
Donald Dibble, formerly a LV Metro detective, testified that he impounded Riker's and
Walker's clothes. The clothes associated with Walker included a pair of white Jordache
athletic shoes, and a black vinyl knife sheath.
Terry Cook (Cook), a criminalist for the LV Metro Crime Lab, tested items retrieved
from the TSC van for Riker's, Walker's and Marble's blood types. Cook testified that blood
found on a set of black boots with red laces, on a pair of blue jeans, on a black-handled
knife, and on a glove was consistent with Marble's blood type, to the exclusion of Riker
and Walker.
jeans, on a black-handled knife, and on a glove was consistent with Marble's blood type, to
the exclusion of Riker and Walker. Cook found a small amount of Type A blood on a pair of
Jordache athletic shoes consistent with either Riker's or Marble's blood type. The amount of
blood on a knife with a compass and a bent handle was not enough to test. Blood on other
items corresponded with either Walker's or Riker's blood types.
Richard Good (Good), an expert in footwear impression comparison, testified that
several impressions in Marble's blood trail corresponded to the Jordache athletic shoes in
evidence, although not to the exclusion of all other athletic shoes. Two impressions
corresponded to the Colorado boots.
On June 21, 1994, the jury found Walker guilty of first-degree murder with use of a deadly
weapon and robbery with use of a deadly weapon. Prior to the penalty phase, Walker filed a
motion for a new trial based upon a claim of newly discovered evidence. The district court
denied this motion. On December 8, 1994, Walker received two consecutive sentences of life
without the possibility of parole plus two consecutive sentences of fifteen years for use of a
deadly weapon. Walker filed notices of appeal from the judgment of conviction and from the
denial of his motion for a new trial. This court consolidated the appeals.
DISCUSSION
First, Walker argues that the State failed to present sufficient evidence of guilt to support
his convictions for murder with use of a deadly weapon and robbery with use of a deadly
weapon; therefore, according to Walker, the district court erred in denying his motion for
judgment of acquittal notwithstanding the jury verdict.
[Headnotes 1, 2]
When the sufficiency of evidence is challenged on appeal in a criminal case, this court inquires 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. Hutchins v. State, 110 Nev. 103, 107-08, 867 P.2d 1136, 1139 (1994). Circumstantial evidence alone may sustain a
conviction. McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 576 (1992).
[Headnote 3]
Evidence that Walker participated in the murder and robbery of Marble includes bloody footprints matching Walker's athletic shoes
and a knife at the murder scene that matched a sheath Walker was wearing when stopped in Barstow. Additionally, Walker's fingerprint
was found in the NOAA van a few blocks from the murder scene.
from the murder scene. Marble's personal property and items with blood matching Marble's
blood type on them were found within the TSC van. We conclude that sufficient evidence in
the record supports Walker's convictions.
Second, Walker argues that the district court erred in precluding him from presenting
statements made by his co-defendant, Riker, at the guilt phase and at the penalty phase. In a
letter to Walker dated November 4, 1992, Riker admitted to killing Marble and the owner of
the Suburban (NOAA employee John Phippen (Phippen)) and made several statements
exculpating Walker. On August 13, 1993, at a change of plea hearing, Riker pleaded guilty to
first-degree murder and robbery with the use of a deadly weapon. During the hearing, Riker
admitted under oath to stabbing Marble. On February 25, 1994, at Riker's penalty hearing, he
made an unsworn statement before a three-judge panel. The panel found that Riker murdered
Marble, and imposed a sentence of death.
On May 31, 1994, Walker filed a motion in limine requesting permission of the court to
introduce the November 4, 1992 letter and to redact all references to Phippen's killing from
the letter. The trial court denied the motion. Later, during the guilt phase of trial, counsel for
Walker asked the trial court to reconsider this decision, and sought to admit several additional
documents. The trial court ruled that the findings and sentence of the three-judge panel, the
change of plea transcript, the penalty hearing statement, and the letter were all inadmissible.
The decision to admit or to exclude evidence is within the sound discretion of the trial
court, and this court will not overturn the trial court's determination absent manifest error.
Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985). Evidence which is not relevant
is not admissible. NRS 48.025(2).
[Headnote 4]
Walker argues that Riker's change of plea statement and penalty hearing statement were admissible during the guilt phase under NRS
51.075, the general exception to the rule against hearsay, because they were made under special circumstances which offer assurances of
accuracy. However, the record shows that Riker made other statements implicating Walker in both the Phippen and the Marble murders.
Given the inconsistencies between Riker's statements, we conclude that the district court properly decided that the change of plea and the
penalty hearing statement were inadmissible.
[Headnote 5]
The trial court determined that Riker's letter and penalty hearing statement were offered to exculpate Walker and thus required
corroborating circumstances indicating that this evidence was trustworthy.
trustworthy. Circumstances indicated that this evidence was untrustworthy; therefore, the trial
court excluded this evidence from the guilt phase. Walker asserts that this ruling was in error
because portions of these documents were admissible pursuant to the statement against
interest exception to the rule against hearsay.
A statement against penal interest is admissible if the declarant is unavailable at the time
of the trial and if the statement was against the declarant's penal interest at the time when
made. NRS 51.345; Woods v. State, 101 Nev. 128, 132, 696 P.2d 464, 467 (1985).
If the letter were redacted to exclude statements exculpating Walker, the remaining
statements against interest would have little or no probative value, because Riker's guilt does
not preclude Walker's criminal liability. Also, Riker's remorseful penalty phase statement was
not against his penal interest. Accordingly, we conclude that the trial court did not abuse its
discretion in determining that portions of the letter and the penalty hearing statement were
inadmissible.
[Headnote 6]
Walker asserts that parts of the letter were admissible pursuant to NRS 51.105, the state of mind exception to the hearsay rule, as
statements of then-future intent. Walker has not shown the relevance of Riker's then-future intent; hence, we conclude that the trial court
properly refused to admit any parts of the letter. See Shults v. State, 96 Nev. 742, 751, 616 P.2d 388, 394 (1980).
Walker contends that during the penalty phase, the trial court erred in determining that if the above evidence were admitted, the State
would be allowed to admit all other statements made by Riker. Walker argues that statements other than those he sought to admit did not
fall within any exceptions to the rule against hearsay, and that co-defendant statements were inadmissible pursuant to Bruton v. United
States, 391 U.S. 123 (1968).
[Headnote 7]
Questions of admissibility during the penalty phase of a capital murder trial are largely left to the discretion of the trial judge. Lane v.
State, 110 Nev. 1156, 1166, 881 P.2d 1358, 1365 (1994), cert. dismissed, 514 U.S. 1058 (1995). But cf. Lord v. State, 107 Nev. 28, 43-44,
806 P.2d 548, 557 (1991) (admitting a non-testifying co-defendant's confession during the penalty phase of a capital case generally violates
the defendant's constitutional right to confrontation).
[Headnote 8]
Admitting only some of Riker's statements could have misled the jury. Also, as discussed above, the statements Walker sought to
admit were of dubious veracity.
to admit were of dubious veracity. Irrespective of the admissibility of other evidence, we
conclude that the trial court did not err in precluding the statements made by Riker which
Walker sought to admit.
Finally, Walker argues that the preclusion of any evidence of Riker's guilt precluded
Walker from arguing that Riker was the sole actor in Marble's death and that Walker was
merely present at the scene. Given our conclusions above, we conclude that this argument is
without merit.
Third, Walker argues that the district court improperly denied his motion to disqualify
Judge Guy, thereby denying his right to due process and a fair trial. Judge Guy was on the
panel which sentenced Riker.
[Headnotes 9-11]
The burden is on the party asserting the challenge to establish sufficient factual grounds warranting disqualification. In re Petition to
Recall Dunleavy, 104 Nev. 784, 788, 769 P.2d 1271, 1274 (1988). Generally, what a judge learns in his official capacity does not result in
disqualification. Kirksey v. State, 112 Nev. 980, 1007, 923 P.2d 1102, 1119 (1996). However,
[A]n opinion formed by a judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of
prior proceedings, constitutes a basis for a bias or partiality motion where the opinion displays a deep-seated favoritism or
antagonism that would make fair judgment impossible.
Id., quoting Liteky v. United States, 510 U.S. 540, 555 (1994).
[Headnote 12]
In the instant case, Judge Guy noted that Walker sought to admit statements which were inconsistent with evidence admitted at Riker's
penalty hearing. This demonstrated a legitimate concern for the reliability of evidence brought before the jury. See generally Leonard v.
State, 108 Nev. 79, 81, 824 P.2d 287, 289 (1992). We conclude that Walker failed to prove bias warranting Judge Guy's disqualification.
[Headnote 13]
Fourth, Walker argues that the trial court violated his right to a fair trial by denying his pretrial motion in limine to introduce evidence
that Riker killed William Rutkowski, Riker's roommate, in 1990. Walker argues that by denying his motion, the district court prevented
him from proving that Riker had the ability to act alone in the robbery and killing of Marble.
Rutkowski's and Marble's homicides were dissimilar: Rutkowski was shot, and Marble was stabbed. Thus, assuming arguendo that
Walker could prove the prior bad act by clear and convincing evidence,1 it does not show that Riker acted alone in
murdering Marble.
convincing evidence,
1
it does not show that Riker acted alone in murdering Marble.
Accordingly, evidence of Rutkowski's homicide was properly deemed inadmissible. NRS
48.045(2).
[Headnote 14]
Fifth, Walker argues that the trial court erred in denying appellant's motion to suppress evidence based on an illegal search and seizure
of the TSC van.
A police officer may stop a person when the officer has a reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 22
(1969); see NRS 171.123. The officer must be able to point to specific and articulable facts which, when taken together with rational
inferences from those facts, reasonably warrant intrusion. Terry, 392 U.S. at 21.
CHP Officer Flowers initiated a stop of the TSC van to investigate whether the driver was under the influence of alcohol. After
reviewing the record, we conclude that Flowers had sufficient facts to form a reasonable suspicion that criminal activity was occurring, and
thus the stop was lawful. Accordingly, we conclude that the trial court properly denied Walker's motion to suppress.
Sixth, Walker argues that the trial court improperly denied his challenges for cause against four prospective jurors. Walker contends
that the district court improperly denied his challenges based upon the jurors' indications that they could consider a sentence of life with the
possibility of parole for a person convicted of first-degree murder in a dissimilar case. Walker relies upon People v. Livaditis, 831 P.2d 297
(Cal. 1992), wherein a prospective juror indicated a willingness to consider the death penalty under facts not applicable to the case, and the
California Supreme Court held that the district court properly found that her ability to perform her duty was substantially impaired.
[Headnote 15]
A trial court has broad discretion in its rulings on challenges for cause. Wainwright v. Witt, 469 U.S. 412, 428-29 (1985). In Witt, the
United States Supreme Court noted that the trial judge's predominant function in determining juror bias involves credibility findings
whose basis cannot be easily discerned from an appellate record. These are factual issues' . . . . Id. at 429. The California Supreme Court
has noted, [o]n appeal, if the prospective juror's responses are equivocal, i.e., capable of multiple inferences, or conflicting, the trial court's
determination of that juror's state of mind is binding. Livaditis, 831 P.2d at 303.
__________

1
The district court noted that no one had been charged with Rutkowski's homicide. See Petrocelli, 101 Nev. at 51, 692 P.2d at 508
(prior bad act must be proved by clear and convincing evidence).
[Headnote 16]
This case involves the issue of whether prospective jurors were willing to impose a sentence of life with the possibility of parole, not
whether or not a juror is willing to impose a sentence of death. However, our analysis remains guided by capital cases. [T]he proper
standard for determining when a prospective juror may be excluded for cause because of his or her view on capital punishment . . . 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.' Witt, 469 U.S. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). In Morgan v. Illinois, 504 U.S. 719 (1992), the
United States Supreme Court held that a challenge for cause should be granted in a reverse-Witherspoon
2
situation, where a juror would
always impose a sentence of death for one convicted of first-degree murder. The Court stated, Any juror who would impose death
regardless of the facts and circumstances of conviction cannot follow the dictates of law. Id. at 735.
Walker challenged prospective jurors 154, 157, 162 and 164 for cause. The trial court denied these challenges, hence Walker utilized
four of eight peremptory strikes to exclude these jurors. Walker indicated that he was unable to use peremptory strikes against four other
prospective jurors who he believed should not have been on the jury panel, and who were ultimately members of the selected panel. This is
sufficient to establish prejudice. Bryant v. State, 72 Nev. 330, 335, 305 P.2d 360, 362 (1956).
Prospective jurors 154, 157, 162 and 164 had initially indicated that they could not vote to impose a sentence of life with the
possibility of parole after convicting a person of first-degree murder. The prospective jurors were then given the following factual scenario:
a man saw his child being raped by two men, and later found and killed the men. Each of the prospective jurors then indicated that they
could consider life with the possibility of parole under these circumstances.
Reviewing the cold record, we conclude that substantial evidence supports a determination that the views of jurors 154, 157, 162,
and 164 would not have prevented or substantially impaired the performance of their duties in accordance
with their instructions and oath.
__________

2
Walker's opening brief contains an extensive discussion of Witherspoon v. Illinois, 391 U.S. 510 (1968). In Witherspoon, the United
States Supreme Court held that excluding prospective jurors because they voiced general objections to the death penalty did not produce an
impartial jury, but instead a jury uncommonly willing to condemn a man to die. Id. at 521. Subsequently, the Supreme Court clarified
that the holding in Witherspoon concerns circumstances under which prospective jurors cannot be excluded, but does not delineate when
prospective jurors can be excluded. Wainwright v. Witt, 469 U.S. 412, 422 (1984); Adams v. Texas, 448 U.S. 38, 48 (1979) (Witherspoon
is not a ground for challenging a prospective juror). Accordingly, in the instant case, Witherspoon is not on point.
162, and 164 would not have prevented or substantially impaired the performance of their
duties in accordance with their instructions and oath. Given the trial court's broad discretion,
we conclude that its denial of Walker's challenges for cause of these jurors was proper.
[Headnote 17]
Walker further argues that the trial court used a double standard when it granted the State's challenge for cause of a prospective juror
who stated he could only impose the death penalty in John Gacy-type situations. Juror 104 expressed more than general objections to the
death penalty; he indicated that he would be unwilling to impose a sentence of death in the case at bar. We conclude that the trial court did
not abuse its discretion in granting the State's challenge for cause of Juror 104.
Seventh, Walker argues that the State exercised peremptory challenges against women with an intent to discriminate on the basis of
gender.
[Headnotes 18, 19]
[P]otential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored
group stereotypes rooted in, and reflective of, historical prejudice. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128, 114 S.Ct. 1419, 1421
(1994). Gender, like race, is an unconstitutional proxy for juror competence and impartiality. Id.
[Headnotes 20-23]
In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court outlined a process for determining whether a prosecutor
has used peremptory challenges in a discriminatory manner. First, the defendant must make a prima facie showing of intentional
discrimination. Id. at 96. In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant
circumstances. Id. at 96-97; accord Libby v. State, 113 Nev. 251, 255, 934 P.2d 220, 222 (1997). Second, the State must offer a
gender-neutral explanation for striking the jurors. See Hernandez v. New York, 500 U.S. 352, 359 (1990). At this step of the inquiry, the
issue is the facial validity of the prosecutor's explanation. Id. at 360. Third, the trial court must decide whether the defendant has carried
his burden of proving purposeful discrimination. Purkett v. Elem., 514 U.S. 765, 767 (1995). At this stage, the trial court may determine
that the State's justifications are mere pretexts for purposeful discrimination. Id.
[Headnote 24]
The trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort
accorded great deference on appeal."
inatory intent represents a finding of fact of the sort accorded great deference on appeal.
Hernandez, 500 U.S. at 364.
[Headnote 25]
Here, the State used five of eight peremptory challenges to strike women from the jury. Cf. Libby, 113 Nev. at 255, 934 P.2d at 223
(use of seven of nine peremptory challenges against female jurors established a prima facie case of discrimination). The record does not
reveal a significant difference between prosecutorial questioning of women and of men. For example, the State questioned both male and
female prospective jurors regarding their feelings about Walker's appearance. The record also shows that the State had non-pretextual,
nondiscriminatory reasons to exercise peremptory challenges against each of the prospective jurors in question. We conclude that the trial
court did not err in determining that the State exercised its peremptory challenges in a constitutionally permissible manner. Accordingly, we
decline to address Walker's other contentions elaborating upon this issue.
[Headnote 26]
Eighth, Walker argues that the trial court erred in admitting evidence of the theft in Blythe of the NOAA van and NOAA property.
Walker asserts that this evidence does not fall within the complete story of the crime exception to the rule against evidence of other bad
acts, because Marble's murder could be explained without reference to the Blythe theft.
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.
The State must prove that the defendant committed a prior bad act by clear and convincing evidence. Petrocelli, 101 Nev. at 52, 692 P.2d
at 503.
[Headnote 27]
Walker was in Blythe before Marble's murder. The NOAA van stolen from Blythe was found a few blocks from Marble's body.
Bergmann testified that the sheath worn by Walker at his arrest matched a knife that had been in the NOAA van. This knife was found at
the scene of Marble's murder. Also, Walker's fingerprint was found inside the NOAA van. Thus, there is clear and convincing evidence in
the record that Walker was involved in the theft. Moreover, the Blythe theft served as a link in the sequence of events between the
time that Walker left the carnival and the time that he was arrested in Barstow.
of events between the time that Walker left the carnival and the time that he was arrested in
Barstow. Thus, evidence of the theft was closely related to the instant case. The trial court
admitted evidence of the Blythe thefts, but would not admit evidence of Phippen's murder.
Thus, the record reflects that the trial court properly balanced the prejudicial effect of the
Blythe evidence against its probative value. We conclude that the trial court did not
manifestly abuse its discretion by admitting evidence of the Blythe theft.
Ninth, Walker argues that several instructions given to the jury over his objections violated
his right to due process and a fair trial.
Walker argues that the jury instruction on mere presence
3
failed to instruct the jury that
associating a defendant with the crime, rather than with a person who may have committed
the crime, was essential. Walker contends that the instruction allowed the State's closing
argument to focus on Walker's association with Riker, and allowed the jury to infer guilt
based upon this association. Walker had submitted a proposed instruction on mere presence.
[Headnote 28]
It is not error not to give the defendant's proposed instruction on mere presence when the actual instruction adequately covers the
law. Doleman v. State, 107 Nev. 409, 416-17, 812 P.2d 1287, 1292 (1991). We have previously stated, although mere presence cannot
support an inference that one is a party to an offense, presence together with other circumstances may do so. Palmer v. State, 112 Nev.
763, 769, 920 P.2d 112, 115 (1996) (quoting Baker v. State, 93 Nev. 11, 13, 558 P.2d 629, 629 (1977)).
[Headnote 29]
The instruction at issue here stated that mere presence cannot support an inference that one is a party to an offense, and that
presence, companionship and conduct before, during and after the crime are circumstances from which you may infer participation in the
offense. Following Palmer, we conclude that the instruction was proper.
__________

3
The instruction stated:
Mere presence at the scene of a crime cannot support an inference that one is a party to an offense. However, the defendant's
presence, companionship and conduct before, during and after the crime are circumstances from which you may infer his
participation in the criminal act.
The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping
commit the crime.
The trial court also instructed the jury that:
All verdicts returned in this case must be unanimous. In considering the offense of
Murder of the First Degree, however, you need not be unanimous in finding that the
murder was premeditated and deliberate, or that it was perpetrated in the course and
furtherance of a robbery or attempted perpetration of a robbery. It is sufficient that each
of you finds, beyond a reasonable doubt, that the murder, under either theory, was
Murder of the First Degree.
Walker contends that this instruction violates his right to due process, because a jury's
theory of criminal liability must be unanimous.
In Schad v. Arizona, 501 U.S. 624, 640-43 (1991), the United States Supreme Court held
that the trial court did not err in failing to require a jury to agree on a single theory of
first-degree murder. At issue was the mens rea required for felony murder as compared to the
mens rea required for premeditated murder. Id. The Court noted that both theories carried the
same risk of punishment. Id. at 644 n.9.
In Nevada, aiding and abetting in an act that constitutes an offense carries the same risk of
punishment as directly committing the act. See NRS 195.020. Also, felony murder and
deliberate and premeditated killing are both first-degree murder and are punishable by death.
See NRS 200.030. Following Schad, we conclude that the trial court did not err in instructing
the jury that it did not have to unanimously agree upon a theory of murder.
Walker argues that the jury instruction on flight
4
violated his right to due process because
it created a mandatory presumption of guilt, and that the facts of this case did not warrant
such an instruction, because he was unconscious in the passenger seat while Riker drove the
van.
[Headnote 30]
In Miles v. State, 97 Nev. 82, 85, 624 P.2d 494, 496 (1981), this court stated:
[A] flight instruction may give undue influence to one phase of evidence, therefore we will carefully scrutinize it to be certain
that the record supports the conclusion that appellant's going away was not just a mere leaving but was
with a consciousness of guilt and for the purpose of avoiding arrest.
__________

4
The instruction stated:
The flight of a person after the commission of a crime is not sufficient in itself to establish guilt; however, if flight is proved, it
is circumstantial evidence in determining guilt or innocence.
The essence of flight embodies the idea of deliberately going away with consciousness of guilt and for the purpose of avoiding
apprehension or prosecution. The weight to which such circumstance is entitled is a matter for the jury to determine.
certain that the record supports the conclusion that appellant's going away was not just a
mere leaving but was with a consciousness of guilt and for the purpose of avoiding
arrest.
[Headnote 31]
In this case, the instruction stated in part, The flight of a person after the commission of a crime is not sufficient in itself to establish
guilt. This does not create a mandatory presumption. Additionally, evidence supports the conclusion that Walker traveled with a
consciousness of guilt and for the purpose of avoiding arrest. We conclude that the flight instruction was proper.
Lastly, Walker argues that the reasonable doubt instruction suggested that a higher degree of doubt was required than is required for
acquittal under the reasonable doubt standard. See Cage v. Louisiana, 498 U.S. 39 (1990) (invalidating a jury instruction on reasonable
doubt which included the words substantial and grave). The instruction is a verbatim recital of NRS 175.211(1). We have previously
held that the current statutory definition is constitutional. Milton v. State, 111 Nev. 1487, 1492, 908 P.2d 684, 687 (1995); Hutchins, 110
Nev. at 112, 867 P.2d at 1142. In sum, we conclude that each of the challenged jury instructions was proper.
[Headnote 32]
Tenth, Walker argues that the trial court abused its discretion by refusing to allow Dr. Pitterman, an internal medicine doctor, to testify
about Walker's history of drug abuse and alcoholism and level of intoxication at the time of the crime. The trial court had ruled that this
evidence did not fall within the medical diagnosis exception to the hearsay rule. Walker contends that Dr. Pitterman's determination of
Walker's blood alcohol level during the evening of April 13, 1992, was reliable because it was based upon hospital records, and therefore
was admissible pursuant to the general exception to the rule against hearsay. See NRS 51.075; Emmons v. State, 107 Nev. 53, 807 P.2d
718 (1991) (testimony of a medical examiner regarding another radiologist's opinion was properly admitted where the medical examiner
was a disinterested witness with no apparent motive to lie). Walker asserts that the evidence was critical because it helped prove that he
lacked the mens rea to commit first-degree murder.
On May 27, 1994, Dr. Pitterman interviewed Walker concerning his medical history. He then sent his findings to defense counsel. Dr.
Pitterman's statements appear to have been generated for the purposes of litigation, not for medical diagnosis or treatment. Therefore, his
testimony was not admissible under the medical diagnosis exception to the hearsay rule, NRS 51.115.
Dr. Pitterman was not a disinterested witness, but made his report at the request of defense
counsel. Moreover, Dr. Pitterman's conclusions were partly based upon information obtained
from Walker. For example, Walker told Dr. Pitterman that he had been smoking marijuana on
April 13, 1992, and the doctor stated that the use of marijuana would increase the effect of
alcohol. We conclude that the trial court did not abuse its discretion in refusing to admit Dr.
Pitterman's testimony.
Eleventh, Walker argues that the State made numerous improper remarks in the presence
of the jury that constituted prejudicial prosecutorial misconduct.
[Headnotes 33, 34]
If the issue of guilt or innocence is close, if the state's case is not strong, prosecutor misconduct will probably be considered
prejudicial. Garner v. State, 78 Nev. 366, 373, 374 P.2d 525, 530 (1962). Where evidence of guilt is overwhelming, even aggravated
prosecutorial misconduct may be harmless error. Riley v. State, 107 Nev. 205, 213, 808 P.2d 551, 556 (1991). After reviewing the record,
we conclude that the effect of any prosecutorial misconduct in this case was harmless.
[Headnote 35]
Twelfth, Walker argues that the district court erred in denying him the opportunity to present mitigating evidence at the penalty
hearing. Walker contends that a delay in financing travel and lodging costs prevented three key penalty phase witnesses from testifying.
On June 21, 1994, the trial court scheduled the penalty phase to begin on October 10, 1994. On October 4, 1994, defense counsel
submitted an order to the court for the payment of transportation and lodging costs of penalty hearing witnesses. This request was
erroneously denied. On October 7, 1994, an order for payment of these fees was filed.
Walker had several months in which to prepare an order for the costs of witness transportation and lodging. He has failed to explain
how a three-day delay in the filing of his order prejudiced him. We conclude that this contention lacks merit.
Thirteenth, Walker argues that the district court erred in denying his motion for a new trial based upon newly discovered evidence,
consisting of a statement made by Riker after Walker's convictions. Walker contends that a defense witness, Jody Diaz (Diaz), changed
her testimony after meeting with a prosecutor, and as a result Walker could not call her to testify. Walker appears to argue that if Riker's
statement was available to impeach Diaz, Diaz could be called to testify that Walker purchased pure-grain alcohol from her on the day of
the murder.
[Headnotes 36, 37]
The grant or denial of a new trial on the ground of newly discovered evidence is within the discretion of the trial court. Sanborn v.
State, 107 Nev. 399, 406, 812 P.2d 1279, 1284 (1991).
To establish a basis for a new trial on this ground, the evidence must be: newly discovered; material to the defense; such that even
with the exercise of reasonable diligence it could not have been discovered and produced for trial; non-cumulative; such as to
render a different result probable upon retrial; not only an attempt to contradict, impeach, or discredit a former witness, unless the
witness is so important that a different result would be reasonably probable; and the best evidence the case admits.
Id., 812 P.2d at 1284-85; see NRS 176.515.
[Headnote 38]
In the trial court's order denying Walker's motion for a new trial, it found that the defense made a tactical decision not to call Diaz as a
witness.
Diaz' testimony would support Walker's argument that he was too drunk to commit first-degree murder. However, we conclude that it
is not reasonably probable that the new evidence would lead to a different result; therefore, the trial court properly denied Walker's motion
for a new trial.
We affirm the judgment of conviction and the denial of Walker's motion for a new trial.
____________
113 Nev. 873, 873 (1997) Barelli v. Barelli
MADELINE BARELLI, Appellant, v. ANTHONY E. BARELLI, Individually and as Alter
Ego for ANTHONY E. BARELLI M.D. Ph.D., LTD. and ANTHONY E. BARELLI, M.D.
Ph.D., LTD., Respondent.
No. 27421
August 28, 1997 944 P.2d 246
Appeal from a final judgment of the district court. Eighth Judicial District Court, Clark
County; Frances-Ann Fine, Judge.
Former wife sued former husband, seeking reformation of marital settlement agreement or
alternatively damages for breach of oral agreement. The district court entered judgment for
former husband and appeal was taken. The supreme court held that: (1) family court had
jurisdiction over claim by former wife that former husband breached oral contract under
which he was to provide former wife with permanent employment in return for her
foregoing alimony; {2) former wife was not entitled to jury trial on her breach of contract
claim, as it related to matrimonial matters for which jury was not available; and {3) trial
court did not err in dismissing claim, for failure to make prima facie case.
provide former wife with permanent employment in return for her foregoing alimony; (2)
former wife was not entitled to jury trial on her breach of contract claim, as it related to
matrimonial matters for which jury was not available; and (3) trial court did not err in
dismissing claim, for failure to make prima facie case.
Affirmed.
Marilyn V. Romanelli, Las Vegas, for Appellant.
Law Offices of Daniel Marks and Keith M. Lyons, Las Vegas, for Respondent.
1. Reformation of Instruments.
Purpose of an action for reformation of written instrument is not to make new agreement for parties, but rather, its purpose is to
establish and perpetuate actual agreement based upon true intent of parties.
Actions regarding resolution of marriage filed independent of divorce proceeding, to reform or rescind unmerged property
settlements, fall within jurisdiction of family court pursuant to Constitution and statute. Const. art. 6, 6(2)(b); NRS 3.223(1)(a).
Family court had jurisdiction over suit brought by divorced wife against husband, alleging breach of oral contract of employment;
there was question whether property settlement agreement would be reformed to provide for benefits allegedly called for under oral
contract, and existence of oral agreement related to resolution. NRS 3.223(1)(a), 125.150(6).
4. Jury.
Former wife was not entitled to jury trial on claim for damages arising out of former husband's alleged breach of oral contract to
provide her with employment in return for her waiver of alimony; although she characterized action as one of contract breach and
fraud, it arose out of marital relationship and there was no right to jury in matrimonial proceedings. NRS 125.070.
In order to survive motion for involuntary dismissal, plaintiff must present prima facie case on which triers of fact can grant relief.
NRCP 41(b).
In determining whether to grant motion of involuntary dismissal, court must disregard all contradictory evidence presented by
defense during case-in-chief, whether by cross-examination or direct testimony of defense witness. NRCP 41(b).
7. Husband and Wife; Reformation of Instruments.
Trial court's finding that alleged oral agreement, under which wife agreed to forego alimony in return for former husband's promise
of permanent employment, did not exist was supported by the evidence, precluding claim for reformation or recission of property
settlement agreement based on the alleged oral contract.
8. Appeal and Error; Trial.
Trial court's ruling, while considering motion for involuntary dismissal, that contract did not exist was technically improper where
weighing of evidence was involved, but error was harmless where trial court was sitting without a jury and evidentiary phase of trial
was closed at time determination was made. NRCP 41(b).
One-sentence letter signed by husband, stating that wife was currently and will continue on into the future as a salaried employee
of [husband's] company at the same rate of pay and position, could not be considered a contract, where the letter was devoid of any
reference to an obligation to wife.
OPINION
Per Curiam:
FACTUAL BACKGROUND
Madeline and Dr. Anthony Barelli were divorced on September 23, 1988. Up until the
divorce, Madeline worked as an office manager for Anthony at Anthony's medical practice,
Anthony E. Barelli, M.D. Ph.D., Ltd.
1
(hereinafter the practice), and at Medical Intelcom.
2
Her salary was approximately $30,000 per year.
Just before the divorce, Madeline claims she and Anthony entered into an unwritten side
agreement where she would continue working for him in lieu of receiving alimony.
Madeline claims that she agreed because she had minimal skills and was completely unable to
obtain employment on her own.
3
She also claims that this side agreement obligated
Anthony to pay her $30,000 per year plus health benefits for the rest of her life.
Anthony's attorneys drafted a property settlement agreement providing that Madeline was
and would continue to be self-supporting and that no spousal support was warranted. This
agreement, which was signed by Madeline and Anthony, was not merged into the divorce
decree. Neither the property settlement agreement nor the decree of divorce mentioned that
Madeline was to retain her position with the practice or Medical Intelcom.
__________

1
Anthony E. Barelli, M.D. Ph.D., Ltd., is now known as A.E. Barelli, M.D., Ltd., because Anthony does not
have a Ph.D.

2
Medical Intelcom is a corporation formed by Anthony for research and development.

3
Madeline quit working for Anthony after the divorce. Thereafter, she held two jobs, but claims that those
positions were not indicative of her ability to secure employment because Anthony obtained the first job for her,
and because the second was a phoney job at her boyfriend's business.
At the time she signed the property settlement agreement, Madeline was represented by
attorney George Dickerson. Dickerson claims that he did not write the agreement, but did
review it. He testified that he objected strongly to the fact that Madeline was to waive
alimony and accept only $300,000 as a valuation of the entire community property under the
agreement. Dickerson specifically objected in light of his opinion that Madeline was entitled
to $400,000 in alimony alone. Madeline signed the agreement over Dickerson's objections.
Dickerson testified that, in his opinion, Madeline was competent at the time she executed
the agreement. He also testified that he explained to her that the decree of divorce could not
be modified to alter the provisions in the agreement because the agreement would not merge
into the decree, to which she stated that she understood.
Anthony denied making an arrangement with Madeline whereby she would keep her job
indefinitely. Further, he testified that he believed Madeline was self-supporting because she
told him that she could obtain work. He claimed that, at the time of the divorce, he took
Madeline off the payroll because she didn't show up. Anthony testified that Madeline did
not ask him for a job or about her job until the month that he stopped paying the lease on her
Jaguar automobile in 1992. He also claimed that Madeline resigned as officer and director in
his corporations at the time of the divorce.
Madeline testified in the proceedings below that, after the divorce, they decided that she
should take a leave of absence because it was too difficult for them to work together. She
went on to claim that Anthony obtained interim employment for her with a radio station.
Anthony denied this assertion. She also alleged she kept in contact with Anthony, who
continually refused to rehire her until a later date. Madeline also knew that Anthony
discontinued her health insurance, but claims he told her he would make it up to her when
business improved.
Madeline consulted Dickerson again in 1990 when she found that Anthony had sold
Medical Intelcom. When Madeline called him regarding her right to be employed by Anthony
for the rest of her life, Dickerson told her that he was unable to represent her in any capacity
because she failed to follow his advice.
[Headnote 1]
On November 23, 1992, Madeline filed a complaint in a district court of general jurisdiction, alleging that Anthony fraudulently
induced her to waive alimony in return for lifetime employment with his medical practice. She asked the district court to reform the
property settlement agreement so that she could receive monthly alimony and an additional $250,000 in community
property.4 In the alternative, she asked the court for damages under their oral employment contract.
could receive monthly alimony and an additional $250,000 in community property.
4
In the
alternative, she asked the court for damages under their oral employment contract. After the
family court was established, the case was transferred there, and despite renewed challenges
to jurisdiction, the family court judge retained jurisdiction.
The family court, sitting without a jury, determined that there was no contract between the
parties that guaranteed Madeline indefinite employment in exchange for waiving alimony. It
also denied reformation. This appeal followed.
DISCUSSION
Subject Matter Jurisdiction
Claiming that this case involves a purely contractual dispute between two unmarried
people, Madeline argues that the family division of the district court acted in excess of its
subject matter jurisdiction. We disagree.
Article 6, section 6(2)(b) of the Nevada Constitution provides that the legislature may
establish a family court as a division of any district court and may prescribe its jurisdiction. In
1993, the legislature provided that the family court has original, exclusive jurisdiction in
any proceeding brought pursuant to chapters 62, 123, 125, 125A, 125B, 126, 127, 128, 129,
130, 159, 425 or 432B of NRS. NRS 3.223(1)(a). While the grant of jurisdiction to the family
court in the above listed matters is exclusive, we do not believe that the legislature intended
to prohibit the family court from adjudicating matters related to its jurisdictional authority.
__________

4
In the complaint Madeline claims that she is entitled to reformation of said property settlement agreement
and properly awarded alimony in the sum of $5,000 monthly, and $250,000 reimbursement. The purpose of an
action for reformation of a written instrument is not to make a new agreement for the parties, but rather, its
purpose is to establish and perpetuate the actual agreement based upon the true intent of the parties. Meyer v.
Young, 159 P.2d 908, 911 (Wash. 1945). Reformation will not lie to make a new contract for the parties. Krick
v. Thompson, 162 S.W.2d 240, 245 (Mo. 1942).
In this case, Madeline stated in her complaint that [t]he true intent of the parties was that plaintiff [be]
self-supporting . . . . Because an action in reformation would be restricted by definition to a rewriting of the
property settlement agreement to somehow express that intent, and because alimony and additional distributions
of community property were not originally intended by either party, Madeline's action technically lies in
rescission. Only if the agreement were rescinded, would the district court have the discretion to award alimony
and additional community property under NRS chapter 125. (Although an award of alimony and additional
distributions of property might facilitate her goal of self-support, these devices were clearly not intended by
either Madeline or Anthony when the divorce was originally finalized.)
[Headnote 2]
Although the property settlement agreement in this case cannot be modified under NRS 125.150(6),
5
Madeline has filed an action to
reform (or, by seeking alimony, to rescind) the agreement. We hold that actions regarding the resolution of the marriage filed independent
of the divorce proceeding to reform or rescind unmerged property settlements fall within the jurisdiction of the family court pursuant to
article 6, section 6(2)(b) of the Nevada Constitution, and NRS 3.223(1)(a).
[Headnote 3]
Even though Madeline brought a separate claim for contractual damages, the resolution of whether the property settlement agreement
could be reformed or rescinded based on allegations of fraud was dependent on the resolution of whether, in fact, there was a contract ab
initio (the oral side agreement). Therefore, because the reformation/rescission claim was dependent upon the existence of the oral contract,
and because a favorable ruling on the reformation/rescission had a potential for resurrecting claims for alimony and community property,
the family court also had jurisdiction to adjudicate its existence.
In holding that the family division of the district court has such jurisdiction, we do not intend to suggest that a district court of general
jurisdiction would be without power to fully resolve these issues if brought before it. Instead, we hold that both the family and the general
divisions of the district court have the power to resolve issues that fall outside their jurisdiction when necessary for the resolution of those
claims over which jurisdiction is properly exercised. For example, the family court has jurisdiction to reach a reformation or recision claim
where family law issues are implicated; and a district court of general jurisdiction has authority to reach a family law issue where necessary
to resolve a claim that would ordinarily fall within its jurisdiction, such as reformation or rescission.
Right to a Jury Trial
[Headnote 4]
Next, Madeline claims that she was erroneously deprived of a jury trial on her claim for contract damages.
__________

5
If the . . . agreement by the parties settling their property rights has been approved by the court, whether or not the court has
retained jurisdiction to modify them, the adjudication of property rights, and the agreements settling property rights, may
nevertheless at any time thereafter be modified by the court upon written stipulation signed and acknowledged by the parties to the
action, and in accordance with the terms thereof.
jury trial on her claim for contract damages. NRS 125.070 provides that [t]he judge of the
court shall determine all questions of law and fact arising in any divorce proceeding under the
provisions of this chapter.
The court granted Anthony's motion to strike Madeline's demand for a jury trial because
the contractual claim arose out of the marital relationship, and the right to a trial by jury is
eliminated in domestic proceedings. Madeline argues that this is not a domestic proceeding,
but rather an action seeking money damages for breach of contract and fraud.
Again, we agree with the district court that this is an action attempting to resolve the
marriage because it attempts to rescind the marital agreement between the parties and award
alimony and community property under NRS chapter 125. Further, because resolution of the
reformation or rescission issue was dependent upon whether the existence of the oral contract
had been proved, the family court's determination that no contract existed barred the damage
claim. Therefore, under NRS 125.070, Madeline was not entitled to a jury trial on either
cause of action.
Motion to Dismiss Pursuant NRCP 41(b)
[Headnotes 5, 6]
At the close of evidence, Anthony's counsel moved to dismiss the case under NRCP 41(b).
6
The trial judge found that there was no
oral contract. Accordingly, she ordered that Defendant's Motion to Dismiss the First Cause of Action to reform the Property Settlement
Agreement as it relates to alimony is granted and the N.R.C.P. 41(b) Motion to Dismiss is granted with prejudice. Madeline claims the
district court erroneously dismissed the cause of action.
NRCP 41(b) provides:
After the plaintiff has completed the presentation of his evidence, the defendant, . . . may move for a dismissal on the ground that
upon the facts and the law the plaintiff has failed to prove a sufficient case for the court or jury. Unless the court in its order for
dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an adjudication upon the merits.
In reviewing a motion to dismiss pursuant to NRCP 41(b),
the plaintiff's evidence must be accepted as true . . . [and] this court must draw all permissible inferences in his favor and not
pass upon the credibility of the witnesses nor weigh the evidence," . . . it is equally true that the
plaintiff must present a prima facie case upon which the triers of fact can grant relief.
__________

6
The defense called no witnesses. The motion was made just prior to closing argument.
and not pass upon the credibility of the witnesses nor weigh the evidence, . . . it is
equally true that the plaintiff must present a prima facie case upon which the triers of
fact can grant relief.
Griffin v. Rockwell International, Inc., 96 Nev. 910, 911, 620 P.2d 862, 863 (1980) (quoting
Bates v. Cottonwood Cove Corp., 84 Nev. 388, 391, 441 P.2d 622, 624 (1968)) (citations
omitted). Thus, the court is bound to disregard any contradictory evidence presented by the
defense during the case-in-chief, whether by cross-examination or by direct testimony of a
defense witness. Warner v. Dillon, 92 Nev. 677, 679, 558 P.2d 540, 541 (1976).
[Headnote 7]
Madeline asked the district court to reform the property settlement agreement because Anthony fraudulently induced her to waive
alimony. She claims that at the time they entered into the contract, Anthony did not intend to give her lifetime employment. Because the
district court found that the parties did not enter into an oral agreement, a finding of fraud was necessarily precluded. Thus, the property
settlement agreement could not have been rescinded on that basis.
[Headnote 8]
Where the trial court, sitting without a jury, makes a determination predicated upon conflicting evidence, that determination will not
be disturbed on appeal where supported by substantial evidence. Trident Construction v. West Electric, 105 Nev. 423, 427, 776 P.2d
1239, 1242 (1989). Therefore, the district court's finding that the parties did not enter into an oral agreement will not be set aside if
predicated upon conflicting evidence. Here, because the trial court was the finder of fact and all of the evidence had been presented, the
court had the discretion to make a finding that no side agreement existed in aid of the resolution of the reformation/rescission claim. This is
so even in the context of this 41(b) motion because no further evidence was taken.
7
[Headnote 9]
In this case, Madeline testified that there was an oral agreement and Anthony testified that there was not. While Madeline produced a
one-sentence letter signed by Anthony, dated September 26, 1988, stating that Madeline is currently and will continue on into the
future as a salaried employee of this company at the same rate of pay and position," the letter was devoid of
any reference to an obligation to Madeline and cannot be considered a contract.
__________

7
Technically, a ruling under NRCP 41(b) was improper because resolution of whether a contract existed involved the weighing of
evidence. Cf. FRCP 41(b). However, because the evidentiary phase of the trial was closed, this was harmless error.
on into the future as a salaried employee of this company at the same rate of pay and
position, the letter was devoid of any reference to an obligation to Madeline and cannot be
considered a contract. Therefore, the letter was merely conflicting evidence to be weighed by
the trial court.
Because there is conflicting evidence in the record regarding whether there was an oral
agreement, we will not disturb the district court's finding that none existed. Therefore, the
district court did not err in dismissing the reformation/rescission claim pursuant to NRCP
41(b) because, in the absence of a contract, Madeline cannot set forth a prima facie case of
fraud.
In conclusion, we hold that the district court properly heard the case without a jury and
properly dismissed the reformation/rescission action under NRCP 41(b) in light of its finding
that the parties did not enter into an oral agreement. Accordingly, we affirm.
____________
113 Nev. 881, 881 (1997) Ruffner v. SIIS
DONALD L. RUFFNER, SR., Appellant, v. STATE INDUSTRIAL INSURANCE SYSTEM
and GRANITE CONSTRUCTION COMPANY, Respondents.
No. 27626
August 28, 1997 944 P.2d 250
Appeal from an order of the district court denying a petition for judicial review of a
workers' compensation claim. First Judicial District Court, Carson City; Michael R. Griffin,
Judge.
Workers' compensation claimant petitioned for review of decision of appeals officer
denying his request to reopen claim. The district court denied petition. Claimant appealed.
The supreme court held that claimant's back surgery, which occurred after he requested
reopening, was irrelevant to determination of whether evidence of worsening condition
existed.
Arthur J. Bayer, Carson City, for Appellant.
Lenard T. Ormsby, General Counsel, D. Michael Clasen, Associate General Counsel,
Carson City, for Respondent State Industrial Insurance System.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks and Timothy Rowe,
Reno, for Respondent Granite Construction.
Supreme court's role in reviewing administrative decision is to review evidence before administrative agency and determine
whether agency's decision was arbitrary and capricious and therefore an abuse of agency's discretion.
Workers' compensation claimant's back surgery was irrelevant to determination of whether evidence of worsening condition
existed, such that claim should be reopened, where surgery did not occur until eight months after claimant requested reopening.
On appeal of denial of request for reopening, issue before appeals officer was whether workers' compensation claimant could
demonstrate comparative change in circumstances relating to his injury by preponderance of evidence.
OPINION
Per Curiam:
In August 1988, Donald Ruffner slipped and fell from a piece of heavy equipment,
injuring his back. The accident took place while Ruffner was working for Granite
Construction Company (Granite). The State Industrial Insurance System (SIIS) accepted
Ruffner's claim based on a back injury and provided medical benefits and vocational
rehabilitation training. When Ruffner's condition stabilized, SIIS closed his claim on July 10,
1989, assigning a fifteen percent permanent partial disability rating.
In 1991, Ruffner twice requested SIIS to reopen his claim: once for medical benefits alone
and once for medical, rehabilitation, and permanent total disability benefits. Ruffner was
referred to the Spine Care Medical Center (Spine Care) in San Francisco, where he
underwent a multidisciplinary evaluation. The doctors at Spine Care concluded that Ruffner
had multilevel degenerative disc disease but recommended against surgical treatment. SIIS
subsequently denied both of Ruffner's requests to reopen his claim.
In January 1992, Ruffner filed a new request to reopen his claim. SIIS denied the request
on the ground that Ruffner had failed to present any objective evidence that his condition had
worsened. In February 1992, Ruffner requested vocational rehabilitation benefits. SIIS also
denied this request. Ruffner appealed. On appeal, the Department of Administration hearing
officer affirmed SIIS's denial of both the request for reopening and the request for
rehabilitation benefits. Ruffner appealed these determinations.
The appeals were consolidated and heard for the first time before an appeals officer on
June 10, 1992. The appeals officer determined that Ruffner provided sufficient medical
documentation to warrant reopening his case for further medical investigation.
determined that Ruffner provided sufficient medical documentation to warrant reopening his
case for further medical investigation. The appeals officer instructed SIIS to have an
independent medical specialist evaluate whether Ruffner's medical condition had worsened
since the date his claim originally closed. The appeals officer retained jurisdiction to resolve
any disputes that arose between the parties concerning Ruffner's medical condition. On
September 9, 1992, SIIS notified Ruffner that Dr. James R. Rappaport would perform the
independent medical examination on October 28, 1992.
On October 23, 1992, prior to the scheduled examination, Ruffner underwent back surgery
at the Veterans Administration (VA) Hospital in California. Ruffner did not first obtain
authorization from SIIS for the surgery. The surgery resulted in failed back syndrome and
did not improve Ruffner's condition.
Dr. Rappaport did not perform the scheduled examination on October 28, 1992. However,
subsequent to the October 23, 1992 back surgery, Dr. Rappaport reviewed medical records
regarding Ruffner's condition. In a report submitted to the appeals officer, Dr. Rappaport
concluded that [t]here was no objective evidence of worsening of [Ruffner's] condition. On
February 19, 1993, the appeals officer denied Ruffner's requests to reopen his claim for
medical and rehabilitation benefits.
On February 18, 1994, Ruffner filed a petition for judicial review in district court on the
ground that SIIS concealed a memorandum favorable to the issue of reopening and that this
memorandum had not been made available or produced at the hearing before the appeals
officer. The district court remanded the matter to the appeals officer. On May 13, 1994, the
appeals officer affirmed its February 1993 decision, finding reopening unwarranted. Ruffner
filed a petition in district court for judicial review of the appeals officer's May 1994 decision.
The district court denied Ruffner's petition. This appeal followed.
We conclude that the appeals officer considered inappropriate evidence in reaching his
determination, and therefore we reverse the order of the district court.
[Headnote 1]
This court's role in reviewing an administrative decision is to review the evidence before the administrative agency and determine
whether the agency's decision was arbitrary and capricious and therefore an abuse of the agency's discretion. Titanium Metals Corp. v.
Clark County, 99 Nev. 397, 399, 663 P.2d 355, 357 (1983).
[Headnote 2]
In its May 1994 decision, the appeals officer concluded that Ruffner's "unauthorized" VA surgery caused a "dramatic
change in Mr.
Ruffner's unauthorized VA surgery caused a dramatic change in Mr. Ruffner's current
medical condition and constituted an intervening non-industrial event that has superseded
the liability of the insurer in the administration of Mr. Ruffner's claim. Ruffner argues that
the appeals officer improperly considered the VA surgery in denying his claim. He contends
that the surgery is irrelevant to the determination of his claim because it did not occur until
October 1992, eight months after he requested SIIS to reopen his claim. We agree.
We conclude that the appeals officer improperly considered the VA surgery in determining
whether evidence of a worsening condition existed. The appeals officer concluded [t]hat the
dramatic change in Mr. Ruffner's current medical condition is the result of the [VA] surgery.
(Emphasis added.) Ruffner's claim closed in July 1989; he requested SIIS to reopen his claim
in January 1992 on the basis of changed circumstances. Thus, the relevant time period to
determine whether Ruffner's condition worsened was between the closing of his claim in
1989 and when he requested SIIS to reopen it in 1992. It appears from the record that the
appeals officer consolidated the instant case with a separate appeal from the denial of a July
1993 request to reopen Ruffner's claim. The second appeal concerned whether the VA surgery
resulted in a worsened condition and whether the lack of authorization severed SIIS's liability.
These issues were not before the appeals officer and the appeals officer improperly
consolidated the two matters.
[Headnote 3]
The fact that the surgery was unauthorized is also extraneous to the determination of Ruffner's January 1992 claim. The issue before
the appeals officer was not whether the surgery was authorized but, rather, whether Ruffner could demonstrate a comparative change in
circumstances relating to his injury by a preponderance of the evidence. See SIIS v. Hicks, 100 Nev. 567, 569, 688 P.2d 324, 325 (1984).
The appeals officer looked beyond the relevant time frame and therefore considered inappropriate evidence in reaching his decision.
We conclude that the appeals officer abused his discretion by addressing collateral issues and by reviewing irrelevant evidence.
Therefore, we need not reach the other issues raised on appeal. We reverse the district court's order denying the petition for judicial review
and remand this case to the district court. Upon remand, the district court shall instruct the appeals officer to reexamine Ruffner's claim,
considering the appropriate evidence.
____________
113 Nev. 885, 885 (1997) Evans v. State
TODD EVANS, Appellant, v. THE STATE
No. 27832
August 28, 1997 944 P.2d 253
Appeal from judgment of conviction pursuant to jury verdicts on separate counts of
first-degree murder with the use of a deadly weapon, false imprisonment, first-degree
kidnapping, and battery with the use of a deadly weapon. Second Judicial District Court,
Washoe County; Deborah A. Agosti, Judge.
The supreme court held that: (1) corroborating evidence was sufficient to permit
conviction based upon testimony of alleged accomplices; (2) conviction of first-degree
murder under jury instructions which did not require jury to unanimously agree on one of
alternative theories of premeditated murder, felony murder, and aiding and abetting murder
did not violate defendant's right to due process; and (3) sufficient evidence supported
kidnapping in first degree conviction.
Affirmed.
Goodman, Chesnoff & Keach, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard Gammick, District
Respondent.
1. Criminal Law.
Corroborating evidence sufficient to allow conviction based on testimony of accomplice need not in itself be sufficient to establish
guilt. Evidence will satisfy statute if it merely tends to connect accused to offense. NRS 175.291(1).
2. Criminal Law.
Corroborating evidence was sufficient to allow convictions based on testimony of alleged accomplices for murder, false
imprisonment, battery with deadly weapon, and kidnapping arising out of incident in which victim was beaten at defendant's house,
transported to mine shaft, and shot. Eyewitness testimony that vehicle was on defendant's lawn at 6:15 a.m. and convenience store
receipt stamped at 6:30 a.m. corroborated accomplices' version of events and contradicted defendant's testimony, and another witness'
testimony that he saw clean vehicle being driven in erratic manner in direction of mine shaft at about 6:30 a.m. and that driver had
blonde hair also corroborated accomplices' testimony. NRS 175.291(1), 200.030, 200.310(1).
Conviction of first-degree murder under jury instructions that did not require jury unanimity on each of three alternative theories
of premeditated murder, felony murder, and aiding and abetting murder did not violate defendant's right to due process. Actual intent
to kill during commission of kidnapping, the underlying felony, could reasonably be construed as moral equivalent of
premeditation, and there was sufficient evidence to prove that defendant intended to kill victim, even if
accomplice actually committed murder, such that defendant's mental state in course of aiding and abetting
accomplice could be considered equivalent of malice aforethought.
113 Nev. 885, 886 (1997) Evans v. State
construed as moral equivalent of premeditation, and there was sufficient evidence to prove that defendant intended to kill victim, even
if accomplice actually committed murder, such that defendant's mental state in course of aiding and abetting accomplice could be
considered equivalent of malice aforethought. NRS 195.020, 200.030(1).
4. Criminal Law.
When considering challenge to sufficiency of evidence to support conviction, relevant inquiry is whether, after viewing evidence
in light most favorable to prosecution, any rational trier of fact could have found essential element of crime beyond reasonable doubt.
5. Kidnapping.
Sufficient evidence supported conviction of kidnapping in first degree, where defendant told accomplice that accomplice would
shoot victim at mine shaft, defendant directed accomplice to load victim into vehicle, defendant drove to mine shaft, defendant forced
accomplice to shoot victim even after victim had been buried, and medical evidence suggested that victim was still alive at time of
shooting. NRS 200.310(1).
OPINION
Per Curiam:
Todd Evans was convicted at trial of murder, false imprisonment, battery with a deadly
weapon and kidnapping. We affirm these convictions.
FACTS
In the early morning of April 4, 1995, Tracy Wilkinson was brutally beaten over a period
of several hours at the residence of Todd Evans on Plumb Lane in Reno, Nevada. Wilkinson
was then thrown into a mine shaft on Peavine Mountain and shot several times.
The convictions in this case were primarily based on the testimony of Larry Hall and
Glenn Rasco. During the trial, Evans implicated Hall and Rasco as the perpetrators. All three
agreed that, on the day of the murder, Hall, Rasco, Evans and Wilkinson arrived at Evans'
house at about 3:30 a.m. The events following their arrival at the home were in contention.
1
Rasco's and Hall's Testimony
Rasco and Hall gave the following account of the events in question.
According to Rasco, he had neither met nor seen Hall before the night of April 3, 1995.
Both Hall and Rasco indicated that, after arriving at Evans' house, Evans was extremely
upset with Wilkinson.
__________

1
Hall and Rasco testified for the prosecution and Evans testified in his own behalf. At trial, Rasco and Hall
recounted similar events leading up to Wilkinson's murder. Evans' testimony was in direct conflict with their
testimony.
113 Nev. 885, 887 (1997) Evans v. State
after arriving at Evans' house, Evans was extremely upset with Wilkinson. Evans was so
angry that he pointed a gun at Wilkinson and threatened to kill him. Thereafter, Evans
repeatedly struck Wilkinson with his fists, his feet, and with blunt objects over the next two
hours. Wilkinson lapsed in and out of consciousness during this continuing series of assaults.
At one point during the beatings, Rasco threw Wilkinson off of Evans' couch and told him
to quit bleeding on the furniture. Rasco also threatened to kill Wilkinson (he admits kicking
Wilkinson in the head). Rasco claimed that he complied with Evans' demands, and even
pretended to participate in the beating, because he was terrified that Evans would kill him as
well. Hall also testified that he was afraid for his life.
On Evans' instructions, after it appeared that Wilkinson would not regain consciousness,
Rasco tied Wilkinson's hands with a length of leather shoestring and Hall retrieved some
electrical cord and a pillow case. Rasco then tied the pillow case over Wilkinson's head with
the cord and rolled him up in a tarp that either Evans or Hall had retrieved from the garage.
Evans then directed Hall and Rasco to place Wilkinson in the back of his white Jeep
Cherokee that had been backed up to the front door. Hall testified that he and Rasco carried
Wilkinson out to the truck. (Rasco denies this.) Evans then ushered Hall and Rasco into the
Jeep.
It was about 6:00 a.m when they loaded the Jeep and approximately 6:15 a.m. when they
departed from the Evans residence. Evans said that they had to leave before 6:30 a.m. because
he was expecting his father.
Evans told Rasco and Hall that they were going to the mine shaft. Not long into the trip,
the three pulled into a 7-11 store on McCarran Boulevard for gas. Hall pumped the gas and
Evans went inside to pay. When Rasco saw that Hall did not have the gun, he ran away. Hall
testified that, although he too wanted to escape, he could not do so because of his physical
condition and because he was afraid of being caught.
Rasco ran to a nearby house, knocked on the door, told the inhabitant that he had just
witnessed a murder and to call 911, and then hid between the houses until the police arrived.
The man in the house testified that Rasco's clothes were covered with blood, and that Rasco
was frantic, looked scared to death, and kept repeating that they're chasing me.
The police officer that responded to the call testified that Rasco wanted her to talk with
him between the houses and was reluctant to come into the front yard. Rasco told her that
they have guns, they are going to kill me. He also stated that they had killed Wilkinson
and that "they" were at the 7-11.
113 Nev. 885, 888 (1997) Evans v. State
Wilkinson and that they were at the 7-11. Rasco identified they as Todd Evans and
Frank.
2
When Evans returned to the Jeep after paying for the gas, he asked Hall where Rasco had
gone. Upon being told of Rasco's flight, Evans argued in favor of finding Rasco to avoid
being discovered. However, when they got back into the Jeep, they drove directly to the mine
shaft on Peavine Mountain. Hall testified that the drive took about ten minutes.
Upon their arrival at the mine, Evans backed the Jeep up to the mine entrance, opened the
back hatch to the Jeep and pushed Wilkinson down into the hole. Upon Evans' orders, Hall
took a shovel into the shaft and pushed some loose dirt and snow over the body. Evans then
instructed Hall to shoot Wilkinson. Hall responded: He's dead. He's been dead for over an
hour. Leave him alone. However, after being threatened by Evans, Hall shot Wilkinson's
buried body and threw the gun back to Evans. Evans also fired four shots into the hole, after
which the two left the scene.
When they returned to McCarran Boulevard, they encountered a police cruiser and a chase
ensued. Evans sped away and eventually turned down a dead-end street, where he and Hall
abandoned the Jeep. They then obtained a ride to Evans' home. Later that morning, Evans and
Hall set out for Sacramento, California. At his first opportunity, Hall escaped in their vehicle
and drove back to Reno. The next day, Hall directed the police to the mine shaft.
Evans' Testimony
Evans claims that, upon arriving at his house prior to the time of the homicide, he and Hall
went into the garage and discussed where they could purchase methamphetamine. When
Evans heard a scuffle in the house, he proceeded to the living room area, where he found
Rasco and Wilkinson fighting. In the process of stopping the fight, Evans hit Rasco and
injured his hand. Evans then instructed Hall to watch over Rasco and Wilkinson while he was
out purchasing methamphetamine.
Evans returned to the house sometime after 5:00 a.m., at which time he found the couch
tipped over and Hall mopping up a pool of blood. At the same time, he noticed that Rasco
was stressed out and really agitated. When Evans asked where Wilkinson was, Hall told
him that it was personal between Rasco and Wilkinson, that Wilkinson was in the Jeep, and
that they were going to take Wilkinson to the home of Wilkinson's girlfriend.
__________

2
Hall's first name is Larry.
113 Nev. 885, 889 (1997) Evans v. State
girlfriend. Evans claims that he remained behind at the house to clean up after the other two
left with Wilkinson.
A short time later, in response to a call from Hall, Evans left his home to meet Hall and
Rasco at a Bank of America parking lot across from the 7-11 store on McCarran Boulevard.
When Evans arrived, Hall was in the driver's seat of the Jeep and Rasco was talking to Hall
through the driver's side window. Neither Hall nor Rasco would tell Evans where Wilkinson
was at that time. Evans also noticed that the Jeep had mud on its side, but had been clean
when they left the house.
After driving the Jeep from the lot to the 7-11 store, Evans went inside to pay for the
gasoline and to purchase a drink.
3
When he returned to the Jeep, Rasco was gone. Evans then
noticed a .45 caliber pistol in the car.
Thereafter, while looking for Rasco on McCarran Boulevard, a police car attempted to
effect a stop of their vehicle. Because Evans is an ex-felon and knew he would be arrested if
found armed, he tossed the weapon out of the window and sped away. Eventually, after
abandoning the Jeep, he and Hall were able to acquire a ride home utilizing a ruse that their
car had broken down.
Evans claims that he and Hall then drove to Sacramento on business. While there, Evans
called his father and discovered that he was a suspect in Wilkinson's murder. While on the
phone, Hall left and Evans never saw him again.
Other Witnesses
Evans' neighbor, a school teacher named Robert Deruse, drove by Evans' house at about
6:15 a.m. on April 4th, on his way to school. He saw a Jeep parked on the grass and backed
up to the front door. The back hatch of the Jeep was open and the headlights were on. The
front door of the house was also open.
Kenneth Caywood was on McCarran Boulevard, at about 6:30 a.m. on April 4th, when he
saw a white Jeep Cherokee pull away from the 7-11 store on McCarran. The Jeep accelerated
quickly and was being driven in an erratic manner. He saw two men in the Jeep, one of whom
had blond hair.
4
He was also sure that the Jeep was extremely clean, immaculate, and had
a car dealer's plate on the back.
5
__________

3
A receipt from the 7-11 store was time stamped 6:30 a.m., April 4, 1995. It was admitted into evidence
without objection.

4
Evans has blond hair, while Rasco, Hall and Wilkinson all have dark hair.

5
The Jeep did not have license plates.
113 Nev. 885, 890 (1997) Evans v. State
The Reno police officer, Michael Lessman, who pursued Evans and Hall on McCarran
Boulevard and eventually found the abandoned Jeep also testified at trial. He stated that he
received a report at 6:39 a.m. that a white Jeep with a dead body in it was stopped at a nearby
7-11 store. At 6:59 a.m., he saw a white Jeep Cherokee with no front license plates heading
southbound on McCarran at a high rate of speed. Lessman chased the Jeep and located it,
abandoned, at 7:04 a.m. At trial, Lessman identified Evans as the driver of the Jeep.
Margaret Carson testified that several days after Wilkinson's death, Hall told her that he
and Rasco had taken Wilkinson's body to the mine and that Evans later met them at the 7-11
store on McCarran Boulevard. Carson stated that Hall said that Evans wanted him to take
him up there, he was scared by that time so he took him up there, him and Glenn took him up
there.
The coroner testified that Wilkinson's blood was still circulating when the gunshot wound
to the head occurred. He also testified that, although not likely, Wilkinson could have
survived the blunt trauma to his head, but that the gun shot would certainly have been fatal.
The cause of death was listed as blunt force trauma to the head in combination with the
gunshot wound.
Evans was charged with one count of first-degree murder based on allegations of
premeditated murder, felony-murder (kidnapping), and aiding and abetting Hall in the
premeditated murder of Wilkinson. Evans was also charged with false imprisonment,
kidnapping with a deadly weapon in the first degree for the purpose of killing, and battery
with a deadly weapon.
The jury found Evans guilty on all charges. He was sentenced to three consecutive terms
of life in prison without the possibility of parole for first-degree murder, for using a deadly
weapon in the commission of the murder, and for kidnapping. He was also sentenced to six
years in prison for false imprisonment; he received no additional sentence for battery. This
appeal ensued.
Evans presents three arguments: (1) that there was insufficient evidence at trial to
corroborate the testimony of the two accomplices, Hall and Rasco, (2) that the district court
erred in failing to require a unanimous jury verdict on the theories of first-degree murder, and
(3) that there was insufficient evidence to prove that Evans kidnapped Wilkinson with the
intent to kill or inflict substantial bodily harm.
DISCUSSION
Corroboration of Accomplice Testimony
NRS 175.291(1) provides that
[a] conviction shall not be had on the testimony of an accomplice unless he is
corroborated by other evidence which in itself, and without the aid of the testimony
of the accomplice, tends to connect the defendant with the commission of the
offense; and the corroboration shall not be sufficient if it merely shows the
commission of the offense or the circumstances thereof.
113 Nev. 885, 891 (1997) Evans v. State
which in itself, and without the aid of the testimony of the accomplice, tends to connect
the defendant with the commission of the offense; and the corroboration shall not be
sufficient if it merely shows the commission of the offense or the circumstances
thereof.
Evans argues that both Hall and Rasco were accomplices and that there is insufficient
evidence in the record to corroborate their testimony. Without their testimony, he claims that
there is insufficient evidence to support his conviction of murder, kidnapping and false
imprisonment. Although conceding that Hall was an accomplice because he admitted to
aiding in Wilkinson's murder, the State argues that Rasco was not an accomplice.
Interpreting NRS 175.291(2),
6
this court has held that an accomplice is one who is liable
to prosecution for the identical offense charged against the defendant . . . or who is culpably
implicated in, or unlawfully cooperates, aids or abets in the commission of the crime
charged. Orfield v. State, 105 Nev. 107, 109, 771 P.2d 148, 149 (1989). In addition, some
sort of bad state of mind is required as well. Id. (quoting W. LaFave, A. Scott, Criminal
Law, 176 (1972)).
Rasco testified that he kicked Wilkinson and tied his hands together. Hall testified that
Rasco threw Wilkinson off of Evans' couch and said: Quit bleeding on Todd's furniture.
Hall also testified that Rasco told Wilkinson: Shut up or we'll kill you. Further, Hall
testified that Rasco helped carry Wilkinson to the Jeep. Rasco testified that he did not intend
to hurt Wilkinson, but cooperated with Evans under the threat of being killed.
Because the jury returned a general verdict, it is unclear whether it concluded that Rasco
was an accomplice. If the jury found that Rasco was not an accomplice, it could have
believed his testimony and convicted Evans on that testimony alone. However, based on the
foregoing evidence, it could have believed that Rasco aided in kidnapping Wilkinson by tying
his hands together and helping Hall carry him to the Jeep with the intent required for
accomplice liability. If the jury found that Rasco was an accomplice, the issue becomes
whether there is sufficient evidence in the record to corroborate Hall's and Rasco's testimony.
[Headnote 1]
Corroborative evidence need not in itself be sufficient to establish guilt'it will satisfy the statute if it merely tends to connect the
accused to the offense.' Heglemeier v. State, 111 Nev. 1244, 1250, 903 P.2d 799, S03 {1995) {citing Cheatham v.
__________

6
NRS 175.291(2) provides that, [a]n accomplice is . . . defined as one who is liable to prosecution, for the identical offense charged
against the defendant on trial in the cause in which the testimony of the accomplice is given.
113 Nev. 885, 892 (1997) Evans v. State
Nev. 1244, 1250, 903 P.2d 799, 803 (1995) (citing Cheatham v. State, 104 Nev. 500, 504-05,
761 P.2d 419, 422 (1988)).
Corroborating evidence, however, must independently connect the defendant with the
offense; evidence does not suffice as corroborative if it merely supports the
accomplice's testimony. If there is no independent, inculpatory evidenceevidence
tending to connect the defendant with the offense, there is no corroboration, though
the accomplice may be corroborated in regard to any number of facts sworn to him.
Id. (quoting Austin v. State, 87 Nev. 578, 585, 491 P.2d 724, 728-29 (1971)). In addition,
where the connecting evidence shows no more than an opportunity to commit a
crime, simply proves suspicion, or is equally consonant with the reasonable explanation
pointing toward innocent conduct on the part of the defendant, the evidence is to be
deemed insufficient.'
Id. at 1250-51 (quoting State v. Dannels, 734 P.2d 188, 194 (Mont. 1987) (quoting State v.
Mitchell, 625 P.2d 1155, 1158 (Mont. 1980)).
[Headnote 2]
In the present case, the two strongest pieces of corroborative evidence that contradict Evans' version of these events are (1) testimony
of the eye witness who saw the Jeep on Evans' lawn at about 6:15 a.m., and (2) the 7-11 receipt stamped at 6:30 a.m.
Evans recounts that Hall and Rasco left the house without him, went to the mine shaft without him, got out of the Jeep, carried
Wilkinson to the mine shaft, dumped the body, shot Wilkinson, returned to the Jeep, drove to the Bank of America near the 7-11 on
McCarran, noticed they were low on gas and money, and called Evans from an unidentified telephone. According to Evans, he did not leave
the house until he received that telephone call. He claims that he then got into another car, drove to the Bank of America, got out of his car,
went over to the Jeep, had a conversation with Hall and Rasco, got into the Jeep, drove to the 7-11 store, pumped gas, and paid for it.
However, according to the corroborating evidence, all of the above events must have occurred within 10 to 20 minutes, i.e., the time the
witness saw the Jeep on the front lawn (between 6:10 and 6:20 a.m.) until Evans bought the gas at 7-11 at 6:30 a.m.
Additional testimony indicated that, if all of the lights were green, it would take about six or seven minutes to reach the 7-11 from
Evans' house. From there, it would take another ten minutes to reach the mine, which is about one mile off of a paved road
on Peavine Mountain.
113 Nev. 885, 893 (1997) Evans v. State
to reach the mine, which is about one mile off of a paved road on Peavine Mountain.
Assuming a similar time frame to return from the mine, in addition to the time it took to shoot
and dispose of the body, the version of events Evans described simply could not have taken
place in 10 to 20 minutes.
Further, Deruse's testimony, when considered in conjunction with the 7-11 receipt,
corroborates the versions of Hall and Rasco. Hall testified that they all left the Plumb Lane
house at about 6:15 a.m. and that it took about ten minutes to get from the 7-11 store to the
mine. Thus, if Deruse saw the Jeep at about 6:15 a.m., just before they left, they would have
arrived at the 7-11 at about 6:22 a.m. Thus, by the time the gas and Gatorade purchase was
completed, it would have been about 6:30 a.m. This, of course, is consistent with the 7-11
receipt.
Further, Caywood's testimony corroborates the Hall-Rasco version of these events, to wit:
that he saw an extremely clean, immaculate white Jeep Cherokee coming from the
direction of the 7-11 heading north, toward the mine shaft, on McCarran Boulevard at about
6:30 a.m. on April 4, 1995; that the Jeep was being driven in an erratic manner; that there
were two men in the Jeep; and that, although he did not see their faces, he was sure one of the
men had blond hair. (Evans is the only person among the group of persons present that night
that has blond hair.) By contrast, Evans testified that by 6:30 a.m., when he found Hall and
Rasco at the 7-11, the sides of the Jeep were covered with mud.
In addition, the person who called 911 for Rasco testified that Rasco was frantic, looked
scared to death, and kept repeating that they're chasing me. The officer who responded to
the call claims that Rasco told her that they have guns, they are going to kill me. He told
her that they had killed Wilkinson and that they were at the 7-11.
Based on the foregoing, we conclude that there was independent, implicating evidence that
corroborated the version of events recounted by Rasco and Hall, which was not equally
consonant with Evans' version of these events. Therefore, even if the jury found that Rasco
and Hall were accomplices, there was sufficient corroborating evidence to sustain the
convictions herein.
Jury Unanimity
The information alleged three different theories under which Evans could be found guilty
of first-degree murder: (1) first-degree murder based upon allegations that he personally
killed Wilkinson with malice aforethought, deliberation, and premeditation; (2) first-degree
murder based upon allegations that Evans or an accomplice killed Wilkinson "in the
perpetration of a kidnapping from 1475 West Plumb Lane, Reno, to the southwest face of
Peavine Mountain" in violation of NRS 200.030; and {3) that Evans "did aid or abet Larry
Hall who did willfully and unlawfully, and with malice aforethought, deliberation, and
premeditation, kill and murder Tracy Wilkinson."
113 Nev. 885, 894 (1997) Evans v. State
Evans or an accomplice killed Wilkinson in the perpetration of a kidnapping from 1475
West Plumb Lane, Reno, to the southwest face of Peavine Mountain in violation of NRS
200.030; and (3) that Evans did aid or abet Larry Hall who did willfully and unlawfully, and
with malice aforethought, deliberation, and premeditation, kill and murder Tracy Wilkinson.
The district court instructed the jury as follows:
All verdicts returned in this case must be unanimous. In considering Count I,
Murder, the State has alleged three theories of First Degree Murder. The three theories
of Murder in the First Degree alleged by the State in Count I are:
(1) Premeditated and deliberate murder; or
(2) That the murder was perpetrated in the furtherance of a kidnapping; or
(3) That the defendant did aid and/or abet another in murder.
However, you need not be unanimous in finding that the murder was premeditated
and deliberate, or that it was perpetrated in the furtherance of a kidnapping or that the
defendant did aid or abet another in the murder.
Thus, 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 returned a general verdict that stated: We the jury in the above-entitled matter
find the defendant, Todd Evans, Guilty of Count I: Murder.
Evans contends that the district court violated his right to due process in not requiring jury
unanimity on each of the three theories of criminality because each requires a different mens
rea.
NRS 200.030(1) provides that murder in the first degree is murder which is:
(a) Perpetrated by means of poison, lying in wait, torture or child abuse, or by any
other kind of willful, deliberate and premeditated killing;
(b) Committed in the perpetration or attempted perpetration of . . . kidnapping . . . .
The Supreme Court of the United States has addressed this issue as it relates to
premeditated murder and felony murder perpetrated during the commission of a robbery. In
Schad v. Arizona, 501 U.S. 624, 632 (1995), the Supreme Court concluded that the trial court
did not err in failing to require a jury to agree on a single theory of first-degree murder.
Quoting from Schad:
113 Nev. 885, 895 (1997) Evans v. State
That is not to say, however, that the Due Process Clause places no limits on a State's
capacity to define different courses of conduct, or states of mind, as merely alternative
means of committing a single offense, thereby permitting a defendant's conviction
without jury agreement as to which course or state actually occurred. . . . Thus it is an
assumption of our system of criminal justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental, . . . that no person may be punished
criminally save upon proof of some specific illegal conduct.
Id. at 632-33 (quoting Speiser v. Massachusetts, 357 U.S. 513, 523 (1958)).
The Court went on to state that, when the differences in mens rea or intent become so
important that those differences may not reasonably be viewed as alternatives to a common
end, the Constitution requires them to be treated as separate offenses subject to separate jury
findings. Id. at 633.
If, then, two mental states are supposed to be equivalent means to satisfy the mens rea
element of a single offense, they must reasonably reflect notions of equivalent
blameworthiness or culpability, whereas a difference in their perceived degrees of
culpability would be a reason to conclude that they identified different offenses
altogether.
Id. at 643.
Schad further reasons that it is not whether premeditated murder is necessarily the moral
equivalent of felony murder in all possible instances. Id.
Whether or not everyone would agree that the mental state that precipitates death in the
course of robbery is the moral equivalent of premeditation, it is clear that such
equivalence could reasonably be found, which is enough to rule out the argument that
this moral disparity bars treating them as alternative means to satisfy the mental
element of a single offense.
Id., at 644-45; see also State v. Mangana, 33 Nev. 511, 517, 112 P. 693, 696 (1910) (felony
murder carries with it a conclusive presumption of malice); 3 J. Stephen, History of the
Criminal Law of England 21-22 (1883) (the intent to kill and the intent to commit a felony
are alternative aspects of the single concept of malice aforethought).
[Headnote 3]
In this case, Evans was charged with first-degree kidnapping with the intent to kill or inflict substantial bodily injury. We hold that
the Constitution does not require separate instructions or jury unanimity on the alternative theories of
premeditated and felony murder in this case because actual intent to kill during the commission of a
kidnapping can reasonably be considered the "moral equivalent of premeditation."
113 Nev. 885, 896 (1997) Evans v. State
that the Constitution does not require separate instructions or jury unanimity on the
alternative theories of premeditated and felony murder in this case because actual intent to
kill during the commission of a kidnapping can reasonably be considered the moral
equivalent of premeditation.
Next, we must determine an issue not addressed by Schad, to wit, whether the jury should
have been separately instructed on aiding and abetting murder. The State argues that the
legislature has left no room for speculation. One who aids and abets is a principal and
subject to the same penalties as the shooter. NRS 195.020. NRS 195.020 provides that a
principal is any:
person concerned in the commission of a felony, . . . 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 . . . shall be
proceeded against and punished as such.
We undertake this inquiry . . . with a threshold presumption of legislative competence to
determine the appropriate relationship between means and the ends in defining the elements
of a crime. Schad, 501 U.S. at 637-38. Under NRS 195.020, the legislature has made its own
determination of moral equivalence between aiding and abetting and actual physical
perpetration of an offense.
The record in this case contains competent testimony that Evans beat Wilkinson nearly to
death, threatened to kill him several times, planned to kill him at the mine shaft, transported
him to Peavine Mountain, and then commanded Hall to shoot him. We hold that, even if
Wilkinson was not dead before Hall used the weapon, there was sufficient evidence in the
record to prove that Evans intended to kill Wilkinson. Therefore, Evans' mental state in the
course of aiding and abetting Hall can reasonably be considered the equivalent of malice
aforethought.
Accordingly, we hold that the district court did not err in failing to separately instruct the
jury on premeditated murder, felony murder, and aiding and abetting murder; or to require
unanimity on any one of the individual theories of culpability.
First-Degree Kidnapping
[Headnote 4]
Evans argues that there was insufficient evidence to support a conviction of kidnapping in the first degree. When a criminal defendant
challenges the sufficiency of the evidence, [t]he relevant inquiry for this 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."' Koza v.
113 Nev. 885, 897 (1997) Evans v. State
vant inquiry for this 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.' Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).
A person who willfully seizes, confines, inveigles, entices, decoys, abducts,
conceals, kidnaps or carries away a person by any means whatsoever . . . for the
purpose of killing the person or inflicting substantial bodily harm upon him, . . . is
guilty of kidnapping in the first degree which is a category A felony.
[Headnote 5]
In this case, Rasco testified that Evans told Hall early in the course of events that Hall would shoot Wilkinson at the mine shaft.
Thereafter, Evans directed Hall to load Wilkinson in the Jeep, and then Evans drove Wilkinson to the mine shaft. Once at the mine, Hall
testified that Evans forced him to shoot Wilkinson even after Wilkinson was buried.
Evans argues that, according to the evidence, Wilkinson had been dead for over an hour at the time of the shooting. Thus, Evans could
not have intended to kill Wilkinson when he was placed into the Jeep. This contention is without merit. The fact that Evans directed Hall to
shoot Wilkinson and that Evans fired several bullets into the shaft is sufficient evidence to prove that Evans did not believe Wilkinson was
dead when he was loaded into the Jeep. Further, the medical evidence in the case suggests that Wilkinson was still alive at the time of the
shooting.
We therefore hold that there was sufficient evidence in the record to prove that Evans kidnapped Wilkinson for the purpose of killing
him.
Based on the foregoing, we uphold Evans' conviction.
____________
113 Nev. 897, 897 (1997) Cunningham v. State
JAMIE CUNNINGHAM, Appellant, v. THE
No. 27796
August 28, 1997 944 P.2d 261
Appeal from a conviction for second degree murder with use of a deadly weapon and a
sentence of life in prison without the possibility of parole. Eighth Judicial District Court,
Clark County; Nancy A. Becker, Judge.
The supreme court held that: (1) photographic lineup was not impermissibly suggestive;
(2) letter adopted by witness was nonhearsay; (3) prosecutor did not commit misconduct in
closing arguments; and (4) evidence supported verdict.
Affirmed.
and James Tufteland and Lynn Robinson, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Photographic lineup shown to highway patrol officer was not impermissibly suggestive, though defendant was only short-haired
person in photographic lineup and detective asked before arranging lineup if it was possible driver was light-skinned black man, as
officer testified that identification was not based on statements made by detective and that he relied on facial features and not skin
color or hair length in making identification, and defendant was not only light-skinned black man in lineup.
2. Criminal Law.
Statement made by unidentified man to victim's husband that man had seen murder victim at house of defendant's brother was
nonhearsay, as it was offered toward husband's state of mind as to what husband thought about victim's whereabouts and explained
why husband did not file missing person's report earlier, it was not offered to prove truth of matter asserted, and limiting instruction
was given to jury. NRS 51.035.
3. Criminal Law.
Letter from unidentified man describing defendant's confession to murder was nonhearsay statement adopted by witness who was
present with man during defendant's confession, as witness signed his name on letter as evidence of adoption shortly after it was
written and also adopted statement while on witness stand. Although witness testified that he could not remember conversation, he
contradicted himself by stating that letter did accurately reflect his memory of what defendant told him about his involvement in
murder, and evidence was admitted that at time of first adoption, witness did remember defendant's statements. NRS 51.035(3)(b).
4. Criminal Law.
Statements made by party and adopted by witness who heard statements are admissible as nonhearsay under Rules of Evidence,
though statement was not adopted by party and rule specifically addresses statements made by another which party has adopted. NRS
51.035(3)(b).
5. Criminal Law.
Prosecutor's statements in closing argument of murder case, discussing manslaughter, were not argument for crimes for which no
jury instruction was offered and were not prosecutorial misconduct, though defendant was not charged with manslaughter. Argument
merely set up structure of how prosecutor believed crime to be first-degree murder and explained to jury that case was not
manslaughter case, and defendant did not show he was prejudiced by prosecutor's argument.
explained to jury that case was not manslaughter case, and defendant did not show he was prejudiced by prosecutor's argument.
6. Criminal Law.
Defendant must show that he was prejudiced by any alleged prosecutorial misconduct during closing arguments.
7. Criminal Law.
It is within domain of legitimate argument for prosecutor to state his deductions or conclusions drawn from evidence.
8. Criminal Law.
Prosecutor's reference in closing argument to defendant's being in prison rather than in jail was not prosecutorial misconduct as
reference to inadmissible evidence of other crime for which defendant was imprisoned, as remark was mere slip of tongue which was
immediately corrected by court and prosecutor, and remark did not rise to level of reasonable inference regarding defendant's prior
criminal history. NRS 48.045(2).
9. Criminal Law.
Test for determining if reference to defendant's prior criminal history occurred is whether juror could reasonably infer from facts
presented that accused had engaged in prior criminal activity. NRS 48.045(2).
10. Criminal Law.
Defendant could not complain that evidence at trial was insufficient to support jury's verdict because evidence supported
first-degree murder but he was convicted of second-degree murder, as jury may have adopted its conclusion as act of clemency and
error did defendant no harm.
11. Homicide.
Evidence supported conviction for second-degree murder, as highway patrol officer had no doubt that defendant was driving
victim's car one week after she disappeared, defendant bragged to three people that he had killed victim, and defendant made remark to
victim's husband about taking victim to desert, where she was later found dead.
OPINION
Per Curiam:
After the dead body of Suzette Ceci (Suzette) was discovered in the desert, a police
investigation led to appellant Jamie Cunningham (Cunningham) as Suzette's murderer.
Cunningham was convicted of second degree murder with use of a deadly weapon and
sentenced to life without the possibility of parole as a habitual criminal pursuant to NRS
207.010.
On appeal, Cunningham first argues that a photographic lineup identification by a highway
patrolman who witnessed him driving Suzette's car one week after her disappearance was
unduly suggestive and should have been excluded. Second, Cunningham argues that a
statement made by Suzette's friend to Suzette's husband should not have been admitted
because it was hearsay.
Third, Cunningham argues that a letter written to the police by a fellow inmate, revealing
Cunningham's alleged confession, should have been excluded as hearsay. Next, Cunningham
contends that certain statements made by the prosecutor during closing arguments amounted
to prosecutorial misconduct requiring reversal of his conviction. Finally, Cunningham alleges
that the evidence submitted at trial was insufficient to support his conviction.
We conclude Cunningham's contentions are without merit and affirm the conviction.
FACTS
On August 17, 1992, at 12:30 p.m., Tom Ceci (Tom) arrived home from work to see his
wife, Suzette, after she called Tom's business partner to accuse Tom of embezzling funds
from the business. He found Suzette on their bed in a fetal position, displaying symptoms of
crack cocaine withdrawal.
One hour later, at 1:30 p.m., Cunningham, who was Suzette's friend, arrived at the Ceci
apartment. By that time, Suzette had become violent and hysterical.
1
Cunningham showed
Tom his gun which he had allegedly brought to the apartment, and said, Do you want me to
take her out to the desert? Tom thought he was joking and refused.
At 6:00 p.m., after Suzette calmed down, she and Cunningham left the apartment in
Suzette's car. They went to the house of Cunningham's brother because Suzette wanted to sell
him some personal items.
At 9:30 p.m., Cunningham arrived back at the Ceci apartment without Suzette. He told
Tom that Suzette freaked out and left his brother's house in her car. Cunningham told Tom
that he did not know where Suzette was.
On August 20, 1992, a dead female body was found in the desert four miles southwest of
Las Vegas. Her hands were tied and she was stabbed fifteen times.
On August 24, 1992, at 10:30 p.m., Nevada Highway Patrol Officer Christopher Perry
(Perry) was stopped at a red light when he noticed that the car in the left lane, next to him,
was stopped several feet back from the light. Perry turned around to look at the driver through
the windshield. When the light turned green, Perry waited until the car passed him. At the
next red light, the same thing happened and Perry again looked back at the driver's face. Then
the driver of the car made an illegal right turn from the left lane in front of Perry's patrol car.
Perry attempted to conduct a traffic stop, but the driver refused to stop.
__________

1
Tom testified that she was probably going through withdrawal because he stopped providing her with money
to supply her crack habit.
conduct a traffic stop, but the driver refused to stop. A chase ensued. The car eventually
crashed into a chain-link fence, and the driver exited the vehicle and ran away. Perry was
unable to capture the driver. In his report, Perry described the driver as a white man with
collar-length curly hair.
The car was registered to Suzette and was the same car that Tom last saw her in on August
17, 1992. After Perry identified the car, he went to Tom's apartment late that night. Tom told
Perry that Suzette had been missing for about a week, but he thought she was just trying to
get sober. Perry suggested that Tom file a missing person's report, which Tom did the next
day, August 25, 1992, after picking up the car from the impound lot.
Based on suspicions that the car and the body found in the desert were related, on August
26, 1992, Homicide Detective Roy Chandler (Chandler) re-impounded Suzette's car to
search for evidence. On August 27, 1992, the body was positively identified as Suzette
through dental records.
In January 1993, Chandler called Perry for a photographic lineup to identify the driver of
Suzette's car on August 24, 1992. Although Perry had previously identified the driver as
white, Chandler asked Perry if it were possible that the man was, in fact, a light-skinned black
man. Perry answered that it was possible. Pursuant to this conversation, Chandler put together
a photo lineup of three white men and three light-skinned black or hispanic men.
On January 11, 1993, Chandler presented Perry with the photo lineup. On the back of the
display was a pre-printed message stating that hair length and facial hair can easily change.
Chandler repeated this message to Perry, as required by the photographic identification
guidelines, and left the room. Perry immediately identified Cunningham, a light-skinned
black man, as the driver of Suzette's car. Cunningham's was the only photograph displaying
short hair, while the other five photo subjects had longer length hair.
In May 1993, Cunningham was arrested for murdering Suzette. On December 6, 1993, a
preliminary hearing was held, and on December 17, 1993, an information was filed. On
August 10, 1994, pursuant to Cunningham's motion to exclude the photographic lineup
identification, an evidentiary hearing was conducted. Upon considering the testimony of
Chandler and Perry, the district court denied the motion.
The trial commenced one year later on August 15, 1995, and concluded August 23, 1995.
At trial, respondent State of Nevada (the State) presented the testimony of three people to
whom Cunningham allegedly confessed murdering Suzette. Tim Bradley (Bradley) had a
taped conversation with Chandler on March 17, 1993.
March 17, 1993. Because Bradley was uncooperative on the stand, portions of the March 17,
1993 conversation were read at trial. This information revealed that Cunningham told Bradley
that he was involved in a high speed chase with the Nevada Highway Patrol and he ran from
the car. He also allegedly told Bradley that he killed Suzette because she was tripping and
that she had to go.
Stanley Wright (Wright) was incarcerated with Cunningham in 1993 after Cunningham
was arrested for the current charge. Cunningham allegedly told Wright, in the presence of a
man known only as Oldtimer,
2
that he stabbed Suzette and put her body in the desert.
Oldtimer took notes of this conversation (hereinafter the Oldtimer letter) and sent them to
Chandler. On June 10, 1993, Chandler had a taped conversation with Wright about the
information in the Oldtimer letter. Chandler also requested that Wright sign the Oldtimer
letter if it accurately reflected Wright's memory of his dialogue with Cunningham. Wright
signed the top of the letter.
Because Wright was uncooperative on the stand, portions of his conversation with
Chandler were read at trial, specifically:
Q. Were you asked this question:
Q. How did he [Cunningham] tell you that he killed her [Suzette]?
And did you give this answer:
A. He told me that they were going and riding around in her car, and she had so
much money on her, and she wanted some crack. And he's a crack head. So what he
did, he took the money and he sold her the dope and he went down by Jean towards
California, stabbed her and put her in the desert.
(Emphasis added.) In addition, over defense counsel's hearsay objection, the Oldtimer letter
was admitted as an adoptive statement by Wright.
Steve Patzig (Patzig), who had been incarcerated with Cunningham in June 1994,
3
testified that Cunningham told him about Suzette and Tom and that he had killed Suzette.
Also at trial, Tom testified that when he was initially looking for Suzette, her friend,
known only as Nelson, told Tom that he saw her at the house of Cunningham's brother on
August 20, 1992.
__________

2
Oldtimer was never identified.

3
Cunningham was in prison on another felony charge. However, since this information was prejudicial, the
attorneys and the judge took great care to hide this fact from the jury. Instead, the jury was informed that
Cunningham was in jail pending the current charges.
1992. This statement was admitted over defense counsel's hearsay objection.
The jury instructions required the jury to decide whether Cunningham was guilty of first
degree murder with or without a deadly weapon, second degree murder with or without a
deadly weapon, or not guilty. On August 23, 1995, the jury returned a verdict of second
degree murder with use of a deadly weapon. On October 18, 1995, Cunningham was
sentenced as a habitual criminal to life in prison without the possibility of parole. On October
20, 1995, Cunningham filed his notice of appeal.
DISCUSSION
The photographic lineup identification
[Headnote 1]
Cunningham argues that Perry's identification at the photographic lineup conducted by Chandler should have been suppressed because
it was overly suggestive. He asserts that when Chandler asked Perry a week before the lineup if the driver of Suzette's car could have been a
light-colored black man, Chandler was suggesting that the suspect was black and not white.
4
Further, shortly before presenting the photographs, Chandler told Perry that hair length can change. Cunningham avers that this was
suggestive because Cunningham's picture was the only one portraying short hair.
5
Perry testified at the August 10, 1995 evidentiary hearing and at trial that he chose Cunningham based on his facial features and not his
race or hair length. Perry further testified that he had no doubt that Cunningham was the driver of Suzette's car on August 24, 1992.
Based on Perry's and Chandler's testimony at the hearing, the district court denied Cunningham's motion to suppress the photographic
identification. Specifically, the judge stated,
[T]aking into account all the attendant circumstances surrounding this lineup that it can be concluded fairly that it was objectively
given and the selection was fairly made. . . . [W]e're making too much out of a little matter here.
__________

4
The photographic lineup contains three white men and three light-colored black or hispanic men. Therefore, even if Chandler was
suggesting that the suspect was black, Perry had three men to choose from.

5
Pre-printed on the back of the photo array was a statement that hair length and facial hair can easily change. Chandler testified that he
always repeats this statement to witnesses.
Simmons v. United States, 390 U.S. 377, 383 (1967), requires a court to consider the
totality of surrounding circumstances as to whether a photographic identification procedure
was so unduly prejudicial as to fatally taint [the defendant's] conviction. Simmons held a
photographic identification must be set aside only if the photographic identification
procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification. Id. at 384.
In the present case, after a review of the photograph array in the record, we conclude that
the district court did not err by admitting Perry's photographic lineup identification of
Cunningham. The facts indicate that Perry did not identify Cunningham based on any
statements made by Chandler. We further conclude that Chandler did not unduly suggest to
Perry that Cunningham was the suspect Chandler had in mind. As Cunningham was not the
only light-skinned black man in the photograph array and as the pre-printed guidelines stated
that hair length can change, we conclude that Cunningham's argument lacks merit.
Tom's testimony of Nelson's statements
[Headnote 2]
At trial, Tom testified as to the events surrounding Suzette's disappearance. This testimony included the fact that he called several of
Suzette's friends to request their help in determining Suzette's whereabouts. Tom testified that one man, known only as Nelson, told Tom
that he would try to find information about Suzette. Nelson later called Tom back to tell him that he saw Suzette at the house of
Cunningham's brother on or about August 20, 1992. Defense counsel objected to the admission of both Nelson's statements to Tom. The
district court overruled the objections finding that the statements were non-hearsay because they were not offered to prove the truth of the
matter asserted (whether Suzette was, in fact, at the house of Cunningham's brother); rather, they went toward Tom's state of mind as to
what Tom thought about Suzette's whereabouts and explained why Tom did not file a missing person's report earlier. The court then
instructed the jury as to the limited use of the statements. Cunningham now contends that the district court erred in this ruling.
We conclude that the district court was correct in its ruling that the statements were not hearsay statements because they were not
offered for the truth of the matter asserted. See Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227 (1990) (holding that if a statement
was merely offered to show that the statement was made and the listener was affected by it, then the statement was not offered for the
truth and is admissible as non-hearsay); Beddow v. State, 93 Nev. 619, 623
offered for the truth and is admissible as non-hearsay); Beddow v. State, 93 Nev. 619, 623,
572 P.2d 526, 529 (1977) (same).
Beddow further held that a limiting instruction as to the purpose of the statement
minimizes any prejudice. Id. Since the district court supplied such a limiting instruction, we
conclude that the district court did not err in allowing Tom to repeat Nelson's statements.
The Oldtimer letter
[Headnote 3]
The Oldtimer letter, which reflects the conversation between Cunningham and Wright while they were in jail, states in part, The
victim scratched [Cunningham's] back up pretty good fighting for her life before she was stabbed to death in the chest and stomach 27
times in the area of Goodsprings and her body was hidden under some brush and branches heading for the California line! As evidence of
his adoption of the letter, Wright signed it at the top when the police presented it to him.
At trial, although Wright declared that he could not remember the conversation with Cunningham, he stated that the Oldtimer letter
accurately reflected his memory of that conversation. Wright also expressed on the stand that he adopted the letter as his own. Additionally,
portions of Wright's taped conversation with the police were read at trial. Wright's recorded statements reflect the fact that Cunningham had
told Wright that Cunningham stabbed [Suzette] and put her in the desert.
The Oldtimer letter was admitted into evidence over the defense's objection. The district court overruled the objection stating,
Mr. Wright has already testified that he saw a copy of that letter. It was shown to him by Detective Chandler. It was read to him,
and then he adopted it as his statement; and then in evidence of the adoption of it, he signed his name at the top . . . . I have no
problem with the fact that it is an adoptive statement, and it could be admitted under that nature, all right? Despite the fact that
the person who originally wrote it [Oldtimer] is not present for cross-examination, if it was read to [Wright], and he's testified that
he adopted it, then it could be admitted.
(Emphasis added.)
Cunningham now appeals, alleging that the document is a hearsay statement by Oldtimer, who is unavailable as a witness. We disagree
and hold that because the statements were originally made by Cunningham and Wright had previously adopted Oldtimer's recording of
those statements, the letter is admissible as an adoptive statement.
timer's recording of those statements, the letter is admissible as an adoptive statement.
[Headnote 4]
NRS 51.035(3) provides that a statement is not hearsay if [the] statement is offered against a party and is: . . . (b) [a] statement of
which he has manifested his adoption or belief in its truth. This statute specifically addresses statements made by another which the party
has adopted. However, we find no legislative prohibition against admitting statements made by the party and adopted by a witness who
heard the statements. To the contrary, we note that the Federal Rules of Evidence specifically allow statements made by another and
adopted by the witness to be admitted as past recollection recorded. See Fed. R. Evid. 803(5).
Here, Wright adopted the statement by signing his name on the Oldtimer letter shortly after it was written, when the conversation was
fresh in Wright's memory. In addition, Wright adopted the statement while on the stand. Although Wright testified that he could not
remember his conversation with Cunningham, he contradicted himself by stating that the Oldtimer letter did accurately reflect his memory
of what Cunningham told him about Cunningham's involvement in Suzette's murder. Plus, evidence was admitted that at the time of
Wright's first adoption, he did remember Cunningham's statements. Therefore, Wright was subject to cross-examination and was competent
to testify. His allegedly deficient memory of exactly what Cunningham stated to him is an issue of credibility left solely within the province
of the jury. See Gaitor v. State, 106 Nev. 785, 790, 801 P.2d 1372, 1375-76 (1990). Accordingly, we conclude that the Oldtimer letter,
reflecting Cunningham's assertion to Wright and adopted by Wright when his memory was intact, was admissible as an adoptive statement.
Prosecutorial misconduct with respect to discussing manslaughter
[Headnote 5]
During closing arguments, the prosecutor evaluated the evidence and discussed why he believed it amounted to first degree murder. In
doing so, the prosecutor attempted to eliminate other types of homicide. After he started to discuss manslaughter, the defense objected,
claiming that the prosecution was arguing crimes for which no instruction was offered.
In response, the prosecutor explained,
Your Honor, when [the jury is] getting to first degree, I want to tell them why first degree is the only appropriate one, and to do
that I am taking away those considerations that involved an accident and involuntary manslaughter.
involved an accident and involuntary manslaughter. I'm going to be very short on those,
but I think I have the right to take [the jury] through that to see the step
progressionhow we came to first degree and why it should be first degree.
The judge agreed that this argument merely set up the structure of how the prosecutor
believes this to be first degree murder. We conclude that the district court did not err in
allowing the prosecutor to discuss manslaughter and explain to the jury that this is not a
manslaughter case.
[Headnote 6]
In People v. Calpito, 88 Cal. Rptr. 64, 70 (Ct. App. 1970), the court held that an appellant must show that he was prejudiced by any
alleged prosecutorial misconduct during closing arguments. Here, Cunningham makes no attempt to allege any prejudice resulted, nor does
he provide any authority for this alleged error. Rather, he merely states that the elements of manslaughter were not before the jury and of no
application to the case at hand.
[Headnote 7]
In addition, Calpito, 88 Cal. Rptr. at 70, holds that [i]t is within the domain of legitimate argument for a prosecutor to state his
deductions or conclusions drawn from the evidence. We conclude that the prosecutor's argument consisted of mere deductions and was not
improper. Accordingly, Cunningham's argument is without merit.
Prosecutorial misconduct regarding the reference to Cunningham being in prison
[Headnote 8]
During closing arguments, the prosecutor discussed the testimony of Patzig, a fellow prison inmate, with whom Cunningham allegedly
spoke about the murder. To prevent potential prejudice that might have arisen if the jury had known Cunningham was in prison for another
felony, the jury was led to believe that Cunningham was in jail pending the current charges when the discussion occurred.
The offensive comment and resulting interchange was:
[Prosecutor]: Mr. Patzig told you, there were only four people in prison who bragged to him about their murders.
[Defense counsel]: Objection, your Honor.
THE COURT: I believe his testimony was thatthe testimony was that Mr. Cunningham was not in prison, Counsel, the
other three were. That he was arrested and . . .
[Prosecutor]: That's correct. I'm sorry.
THE COURT: . . . went to the Detention Center, or something like that with Mr. Cunningham. . . . So the jury is instructed
to disregard that. Mr. Cunningham wasn't in prison at the time of the conversation allegedly with Mr.
instructed to disregard that. Mr. Cunningham wasn't in prison at the time of the
conversation allegedly with Mr. Patzig, but he was in custody in another facility.
[Prosecutor]: And I'm sorry for being imprecise there.
(Emphasis added.)
Cunningham argues on appeal that this reference to Cunningham being in prison violated
NRS 48.045(2), which states in part, 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. He proceeds to argue that the prosecution may not introduce evidence of other
criminal acts of the accused. We conclude that Cunningham's argument lacks merit.
[Headnote 9]
The test for determining if a reference to a defendant's prior criminal history occurred is whether a juror could reasonably infer from
the facts presented that the accused had engaged in prior criminal activity.' Manning v. State, 99 Nev. 82, 86, 659 P.2d 847, 850 (1983)
(quoting Commonwealth v. Allen, 292 A.2d 373, 375 (Pa. 1972)). See also Emmons v. State, 107 Nev. 53, 59, 807 P.2d 718, 722 (1991).
After reviewing the reference to prison and the interchange immediately afterward, we conclude that the prosecutor's inadvertent comment
does not rise to the level of a reasonable inference regarding Cunningham's prior criminal history.
Moreover, in White v. State, 95 Nev. 159, 162, 591 P.2d 266, 268 (1979), the prosecutor mistakenly stated that the defendant, rather
than the victim, provided a certain comment at trial. The prosecutor immediately realized his mistake and corrected himself. The appellant
argued on appeal that this was a comment of his failure to testify on his own behalf. This court held that those words . . . amount to
nothing more than a slip of the tongue which counsel promptly corrected. Id. Likewise, in the present case, the prosecutor's reference to
prison was a mere slip of the tongue which was immediately corrected by the court and the prosecutor. Therefore, no error occurred.
Sufficiency of the evidence
[Headnote 10]
Cunningham claims that the evidence at trial establishes first degree murder, not second degree murder; therefore, insufficient evidence
exists to support the jury's verdict. We conclude that this contention is without merit.
In Brinkman v. State, 95 Nev. 220, 592 P.2d 163 (1979), appellant argued that the evidence amounted to robbery with a deadly
weapon; therefore, the jury's verdict of robbery without a deadly weapon was not supported by the evidence.
deadly weapon; therefore, the jury's verdict of robbery without a deadly weapon was not
supported by the evidence. This court held,
[W]here a jury relieves a defendant of punishment for a greater offense . . . and
convicts him of a lesser included offense . . . the jury may have adopted its conclusion
as an act of clemency. In such a case, the defendant cannot complain because the error
does him no harm.
Id. at 224, 592 P.2d at 165 (quoting State v. McCorgary, 543 P.2d 952, 960 (Kan. 1975), cert
denied, 429 U.S. 867 (1976)).
Similarly, in the present matter, [f]or whatever reason, the jury saw fit to convict
appellant [here, Cunningham] of the lesser included offense of second degree murder, rather
than first degree murder. Id. at 223-24, 592 P.2d at 165. Accordingly, Cunningham cannot
now complain that he was not convicted of first degree murder.
[Headnote 11]
We further hold that sufficient evidence exists overall to support his murder conviction. Although Cunningham contested the evidence
and presented impeachment witnesses, [s]uch conflicting testimony addresses the sound discretion of the jury . . . . The jury is at liberty to
reject the defendant's version of events. Porter v. State, 94 Nev. 142, 146, 576 P.2d 275, 278 (1978). Additionally, this court has held that
circumstantial evidence alone may sustain a conviction. Deveroux v. State, 96 Nev. 388, 391, 610 P.2d 722, 724 (1980); see also United
States v. Thurston, 771 F.2d 449, 452 (10th Cir. 1985) (holding that [c]ircumstantial evidence is entitled to the same weight as that given
to direct evidence in determining the sufficiency of the evidence to support a verdict of conviction).
Here, Tom testified that Cunningham made the remark about taking Suzette to the desert. Perry testified that he had no doubt that
Cunningham was driving Suzette's car one week after she disappeared. Evidence was presented that Cunningham bragged to Bradley,
Wright, and Patzig that he had killed Suzette. Even without the Oldtimer letter, the jury still had plenty of properly admitted evidence to
consider and reasonably believed that Cunningham did, indeed, make these statements. Consequently, after a thorough review of the record,
we conclude that sufficient evidence supports Cunningham's conviction for second degree murder.
Accordingly, we affirm Cunningham's conviction for second degree murder with use of a deadly weapon.
____________
113 Nev. 910, 910 (1997) Boehm v. State
STEPHEN MICHAEL BOEHM, Appellant, v.
No. 27871
August 28, 1997 944 P.2d 269
Appeal from a judgment of conviction pursuant to a jury trial of one count of robbery with
a deadly weapon and one count of conspiracy to commit robbery. Third Judicial District
Court, Churchill County; Mario G. Recanzone, Judge.
The supreme court held that: (1) conversation between defendant and cellmate, who was
wired and deliberately placed in defendant's cell as agent of police, was functional
equivalent of express custodial interrogation; (2) since defendant had invoked right to
counsel, interrogation by cellmate was forbidden reapproach of defendant in violation of
right to counsel; and (3) erroneous admission of recording and transcript of jailhouse
conversation was not harmless.
James F. Sloan, Fallon, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Kevin L. Pasquale, District
Attorney and Carl E. Anderson, Deputy District Attorney, Churchill County, for Respondent.
1. Criminal Law.
Jailhouse questioning of suspect by another inmate placed in suspect's cell with instructions to obtain incriminating statements
amounts to custodial interrogation which, in absence of prior Miranda warning, violates suspect's state constitutional right against
self-incrimination. Const. art. 1, 8.
2. Criminal Law.
Conversation between defendant and cellmate, who had been acting as jailhouse law clerk for other inmates and who was wired
and deliberately placed in defendant's cell as agent of police, was functional equivalent of express custodial interrogation under state
constitution. Police knew that cellmate's position as legal advisor to other inmates would allow him to ask defendant questions about
casino robbery without drawing undue suspicion. Const. art. 1, 8.
3. Criminal Law.
After suspect has invoked Fifth Amendment right to counsel, if police continue their interrogation, suspect's statements are
presumed involuntary and are inadmissible as substantive evidence at trial, unless suspect initiates further communication with police.
Const. art. 1, 8; U.S. Const. amend. 5.
4. Criminal Law.
Defendant who, upon attempted interrogation by police officer, was unwilling to give statement and requested presence of
attorney, invoked Fifth Amendment right to counsel, and thus subsequent custodial interrogation by cellmate wearing wire
was forbidden "reapproach" of defendant in violation of right to counsel.
113 Nev. 910, 911 (1997) Boehm v. State
rogation by cellmate wearing wire was forbidden reapproach of defendant in violation of right to counsel. U.S. Const. amend. 5.
5. Criminal Law.
Erroneous admission in trial for armed robbery of recording and transcript of jailhouse conversation between defendant and
cellmate was not harmless; testimony of casino bartender who was robbed, and who was later charged as accessory after fact in casino
robbery, was of questionable credibility, and defendant was never identified as one of the armed robbers by eyewitnesses. Const. art. 1,
8; U.S. Const. amend. 5.
OPINION
Per Curiam:
At approximately 5:00 a.m. on December 28, 1994, two masked men robbed a bartender at
the Depot Casino in Fallon, Nevada, of more than $2,700 in gaming tokens, coins, and cash.
One of the men had a knife and the other had a gun. Later the same morning, Jackie Brogan
(Brogan), the Depot Casino bartender who had been robbed, spoke with appellant Stephen
Michael Boehm (Boehm), who intimated that he was involved in the robbery. Boehm was
also later identified by employees of the Silverado Casino in Fernley, Nevada, as having
played or cashed in tokens from the Depot Casino.
On January 27, 1995, Boehm was incarcerated in the Churchill County Jail on charges
unrelated to the Depot Casino robbery. At that time, Detective Lieutenant Raymond Dolan
(Lt. Dolan) of the Fallon Police Department attempted to interrogate Boehm. It appears that
Lt. Dolan inquired about the casino robbery only. Boehm refused to give a statement and
requested the presence of an attorney.
On February 16, 1995, Boehm was still incarcerated in the Churchill County Jail.
Investigation of the casino robbery was ongoing and no charges related to that robbery had yet
been filed against him. At that time, Deputy Public Defender Paul Drakulich was representing
Boehm on at least one of the unrelated charges. Boehm did not have legal counsel on the
Depot Casino crime.
Lt. Dolan contacted an inmate at the jail, Michael Hart (Hart), and asked him to wear a
wire and to acquire incriminating statements from Boehm. Apparently, officials promised
that a letter would be written to the parole board on Hart's behalf if he cooperated. Hart, who
had some familiarity with legal matters and often aided fellow inmates with their cases, had
met Boehm previously. Hart agreed to the proposal and then engaged Boehm in conversation
while wearing the wire. Hart asked Boehm numerous questions about the casino robbery
during their forty-five minute discussion.
113 Nev. 910, 912 (1997) Boehm v. State
during their forty-five minute discussion. Boehm, who was unaware of the wire, made
extensive incriminating statements linking him to the Depot Casino robbery and to other
crimes. Lt. Dolan monitored and recorded the entire conversation.
On May 4, 1995, the State filed a complaint charging Boehm with the Depot Casino
robbery. During the trial, Hart refused to testify. Thereafter, outside the presence of the jury,
the district court held two evidentiary hearings concerning admission of the recording of the
Hart-Boehm conversation. Ultimately, the court permitted the jury to listen to the taped
conversation, but deleted all references to the unrelated crimes. The court also furnished the
jury with a transcript of the tape.
The jury convicted Boehm of robbery with a deadly weapon and conspiracy to commit
robbery. The district court sentenced Boehm to ten years for the count of robbery, ten years
for using a firearm, and five years for the conspiracy count.
DISCUSSION
On appeal, Boehm first contends that Hart's custodial interrogation violated Boehm's
privilege against self-incrimination guaranteed by the federal and state constitutions.
The State contends that Boehm's statements were voluntary, made without compulsion,
and thus admissible.
Under the self-incrimination clause of the Fifth Amendment to the United States
Constitution, statements made by a suspect during police interrogation are inadmissible
unless the suspect received a prior Miranda warning. Miranda v. Arizona, 384 U.S. 436,
467-68 (1966); Holyfield v. State, 101 Nev. 793, 797, 711 P.2d 834, 836-37 (1985).
In Holyfield, the defendant was incarcerated for a previous crime. The police placed
another inmate in the defendant's cell with instructions to obtain incriminating statements. At
trial, the informant testified as to the incriminating statements allegedly made by the
defendant. Holyfield, 101 Nev. at 796, 711 P.2d at 835-36.
[Headnote 1]
We held that such jailhouse questioning amounts to custodial interrogation which, without a prior Miranda warning, violates both the
Fifth Amendment to the United States Constitution and article 1, section 8 of the Nevada Constitution. Id. at 804, 711 P.2d at 841.
Focusing upon our determination that such illicit questioning does not aid the truth-finding function, we stated that this brand of custodial
interrogation intentionally subverts a suspect's constitutional rights. Id. at 804, 711 P.2d at 841. Thus, we deemed the suspect's statements
inadmissible. Id. at 805, 711 P.2d at 841.
113 Nev. 910, 913 (1997) Boehm v. State
In a later decision, we explained that:
this court has disapproved of the practice of an inmate and law enforcement striking an
agreement whereby the inmate is placed with an accused, solicits information to be
used against the accused and then have the inmate testify against the accused
concerning any admission secured, all in exchange for concessions by law enforcement
to the charges pending against the inmate.
Thompson v. State, 105 Nev. 151, 154, 771 P.2d 592, 594-95 (1989) (citing Holyfield, 101
Nev. at 793, 711 P.2d at 835). Today, we reaffirm Holyfield.
1
To determine whether custodial interrogation without prior warning in contravention of
the Nevada Constitution has occurred, this court examines whether the suspect was (1) in
custody, (2) being questioned by an agent of the police, and (3) subject to interrogation. See
Holyfield, 101 Nev. at 798-99, 711 P.2d at 837. First, a suspect incarcerated on other charges
is in custody for purposes of the above test. Id. at 798, 711 P.2d at 837. Second, a fellow
inmate agreeing to foster police efforts to inculpate the subject of the investigation qualifies
as an agent of the police. Id., 711 P.2d at 837. Third, factors tending to indicate that
questioning by a fellow inmate constitutes the functional equivalent of express police
interrogation, see id. at 799, 711 P.2d at 838, citing Rhode Island v. Innis, 446 U.S. 291,
300-01 (1980), occur where (a) the police deliberately place the interrogator next to the
subject in the hope of gaining incriminating testimony, (b) interrogator and subject are
previously acquainted, and (c) it is plausible that the subject will talk. See Holyfield, 101
Nev. at 799-800, 711 P.2d at 838-39.
[Headnote 2]
We conclude that Boehm's right against self-incrimination as guaranteed by article 1, section 8 of the Nevada Constitution was
violated. Each of the Holyfield custodial interrogation factors has been met. First, as Boehm was incarcerated in the Churchill County Jail
at the time of the jailhouse conversation, he was in custody. Second, as admitted by Lt. Dolan and as shown by Hart's extensive, voluntary
cooperation with police, Hart was acting as an agent of the police. Finally, Hart's talk with Boehm amounted to the functional equivalent of
express custodial interrogation because (1) Fallon police approached Hart to set up the "sting," {2) Hart was previously
acquainted with Boehm, {3) Hart questioned Boehm extensively without giving him a Miranda warning, and {4)
the police knew that Hart's position as a "legal advisor" to inmates would allow him to ask Boehm questions
about the casino robbery without drawing undue suspicion.
__________

1
We recognize that that portion of the Holyfield decision interpreting federal law has been abrogated by Illinois v. Perkins, 496 U.S.
292, 300 (1990). However, we hold that our interpretation of the Nevada Constitution in Holyfield remains valid. See Holyfield, 101 Nev.
at 804 n.10, 711 P.2d at 841 n.10.
113 Nev. 910, 914 (1997) Boehm v. State
sting, (2) Hart was previously acquainted with Boehm, (3) Hart questioned Boehm
extensively without giving him a Miranda warning, and (4) the police knew that Hart's
position as a legal advisor to inmates would allow him to ask Boehm questions about the
casino robbery without drawing undue suspicion. Under these circumstances, it was plausible
that Boehm would reveal incriminating information. We find it particularly egregious that
police used a jailhouse law clerk, a person to whom suspects and defendants are bound to
afford substantial trust and reliance, to conduct the questioning. Accordingly, we conclude
that the questioning of Boehm in the Churchill County Jail on February 16, 1995, constituted
an unlawful custodial interrogation under article 1, section 8 of the Nevada Constitution. See
id. at 804, 711 P.2d at 841. Boehm's confession should thus have been excluded.
Boehm also contends that his right to counsel was violated because Hart elicited
incriminating statements from Boehm after Boehm had requested the presence of an attorney.
The State contends that Boehm had no right to counsel at the time of the jailhouse
conversation because he had not yet been charged with the Depot Casino robbery.
Miranda and its progeny have established a Fifth Amendment right to counsel that arises
at the time of a (pre-indictment) custodial interrogation. See McNeil v. Wisconsin, 501 U.S.
171, 176 (1991); accord Sechrest v. State, 101 Nev. 360, 364, 705 P.2d 626, 629 (1985).
Once a suspect asserts his right to counsel during custodial questioning, the current
interrogation must cease and he may not be approached for further interrogation until
counsel has been made available to him (i.e., until counsel is present). Edwards v. Arizona,
451 U.S. 477, 484-85 (1981); see also Minnick v. Mississippi, 498 U.S. 146 (1990); Sechrest,
101 Nev. at 364-65, 705 P.2d at 629. This Edwards rule . . . is not offense-specific: Once a
suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may
not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson,
486 U.S. 675 (1988)
2
, cited in McNeil, 501 U.S. at 177 (emphasis added).
__________

2
In Roberson, police arrested a suspect on a burglary charge and the suspect invoked his right to counsel.
Three days later, while the suspect was still in custody, a different officer advised the suspect of his Miranda
rights and interrogated him about a different crime. The officer obtained incriminating statements about that
crime. The Court held that the Edwards rule applies to bar police attempts to reinitiate custodial interrogation on
any crime following an incarcerated suspect's request for counsel. Thus, in that situation, an agent of the police
conducting an investigation of a separate crime may not interrogate the suspect as to the separate crime outside
the presence of counsel. 486 U.S. at 678, 680-88.
113 Nev. 910, 915 (1997) Boehm v. State
[Headnote 3]
To invoke the Fifth Amendment right to counsel, the suspect must make known his wish for the sort of lawyerly assistance
contemplated by Miranda. McNeil, 501 U.S. at 178 (citing Edwards, 451 U.S. at 484). Thus, the suspect must make some statement that
can reasonably be construed to be an expression of a desire for the presence of an attorney in dealing with custodial interrogation by the
police. McNeil, 501 U.S. at 178 (emphasis in original). If the police continue their interrogation after a suspect has requested counsel, the
suspect's statements are presumed involuntary and are inadmissible as substantive evidence at trial, id. at 177, unless the suspect initiates
further communication with police. Sechrest, 101 Nev. at 364-65, 705 P.2d at 630.
Here, the record shows that on January 27, 1995, Lt. Dolan attempted to interrogate Boehm while he was incarcerated in the Churchill
County Jail on charges unrelated to the Depot Casino robbery. Boehm had not yet been charged with the casino robbery. It appears that Lt.
Dolan attempted to interrogate Boehm on the subject of the casino robbery only. At that time, Deputy Public Defender Paul Drakulich was
representing Boehm on his previous, unrelated crimes.
[Headnote 4]
Lt. Dolan testified that Boehm was unwilling to give a statement and requested the presence of an attorney. We conclude that Boehm's
request for counsel amounted to a desire for the presence of an attorney in dealing with custodial interrogation by police. See McNeil, 501
U.S. at 178; Edwards, 451 U.S. at 484-85. Thus, Boehm invoked his Fifth Amendment right to counsel.
Once a suspect invokes his Fifth Amendment right to counsel, he may not be reapproached regarding any offense unless counsel is
present. Roberson, 486 U.S. at 680-88. As explained previously, Holyfield prohibits police-initiated jailhouse interrogation by an informant
without a prior warning because it amounts to custodial interrogation contravening the Nevada Constitution. Accordingly, we conclude that
Hart's conversation with Boehm violated Boehm's right to counsel because it constituted a custodial interrogation (i.e., a reapproach)
subsequent to Boehm's request for counsel three weeks prior.
As there is no evidence that Boehm waived his Fifth Amendment right to counsel at any time prior to the jailhouse interrogation,
evidence of that conversation should have been excluded from the trial. See McNeil, 501 U.S. at 177. Accordingly, we conclude that the
district court erred by allowing the jury to hear the recording and read the transcript of Hart's conversation with Boehm.
113 Nev. 910, 916 (1997) Boehm v. State
The State contends that even if Boehm's constitutional rights were contravened, those
violations amounted to harmless error in light of the overwhelming evidence of guilt.
The record shows that (1) Boehm revealed his participation in the crime to Brogan a few
hours after the robbery and later to witness Jason Horn (Horn), (2) items matching those
carried by the robbers were found in Boehm's residence, (3) Brogan's testimony was detailed,
and (4) a videotape shows Boehm playing a slot machine in the Silverado Casino in Fernley
in which Depot Casino tokens were discovered shortly thereafter. This evidence was properly
admissible against Boehm.
[Headnote 5]
While considerable, this evidence is not overwhelming. The testimony of Brogan, who was later charged as an accessory after the fact
in the casino robbery, and Horn are of questionable credibility. Boehm was never identified as one of the armed robbers by the eyewitnesses
to the casino robbery. Moreover, the incriminating evidence provided by Boehm during his conversation with Hart was both extensive and
detailed and was likely relied upon heavily by the jury. See generally, Holyfield, 101 Nev. at 805, 711 P.2d at 841-42.
Accordingly, we conclude that admission of the recording and transcript of Hart's conversation with Boehm amounted to more than
harmless error. We reverse Boehm's conviction and remand this case to the district court for a new trial.
____________
113 Nev. 916, 916 (1997) Funches v. State
MARRITTE FUNCHES, Appellant, v. THE
No.23638
MARRITTE FUNCHES, Appellant, v. THE
No. 25803
August 28, 1997 944 P.2d 775
Consolidated appeals from a judgment of conviction, pursuant to a jury verdict, of one
count of first-degree murder and one count of being an ex-felon in possession of a firearm
and from an order denying a motion for new trial. Second Judicial District Court, Washoe
County; Mills Lane, Judge.
The supreme court, Rose, J., held that: (1) overruling LaPena v. State, 96 Nev. 43, 604
P.2d 811 (1980) and Lemberes v. State, 97 Nev. 492
97 Nev. 492, 634 P.2d 1219 (1981), co-defendant who invoked Fifth Amendment was
unavailable to testify; (2) his testimony from preliminary hearing was thus admissible
hearsay; and (3) newly discovered evidence of co-defendant's admission to jailhouse
informants did not entitle defendant to new trial.
Affirmed.
Shearing, C. J., and Springer, J., dissented.
Michael R. Specchio, Public Defender and John Reese Petty, Deputy Public Defender,
Attorney and Gary H. Hatlestad, Chief Appellate Deputy District Attorney, Washoe County,
for Respondent.
1. Criminal Law.
Three elements are necessary before witness's preliminary hearing testimony is admissible under hearsay rule: (1) defendant had
counsel to represent him at preliminary hearing; (2) counsel cross-examined witness; and (3) witness is actually unavailable at trial.
NRS 171.198(6)(b).
2. Criminal Law.
Co-defendant who invoked Fifth Amendment privilege against self-incrimination was unavailable, and, thus, his testimony at
preliminary hearing during which he was represented by counsel and cross-examined was admissible hearsay, even though
co-defendant remained available under statute permitting admission of preliminary hearing testimony when witness is sick, out of state,
dead, or persistent in refusing to testify despite judicial order; overruling LaPena v. State, 96 Nev. 43, 604 P.2d 811 (1980); Lemberes
v. State, 97 Nev. 492, 634 P.2d 1219 (1981). U.S. Const. amend. 5; NRS 50.115(4), 51.055, 171.198(6)(b).
3. Criminal Law.
Trial court deciding admissiblity of testimony from preliminary hearing may consider general provisions of evidence code when
determining unavailability of witness. Court is not limited to grounds of unavailability stated in statute permitting admission of
preliminary hearing testimony when witness is sick, out of state, dead, or persistent in refusing to testify despite judicial order or when
personal attendance cannot be had in court. NRS 51.055, 171.198(6)(b).
4. Criminal Law.
Newly discovered evidence of co-defendant's statement to jailhouse informants that co-defendant killed victim did not entitle
defendant to new trial in prosecution for first-degree murder. NRS 176.515(1).
5. Criminal Law.
Grant or denial of new trial on basis of newly-discovered evidence is within trial court's discretion and will not be reversed on
appeal absent its abuse. NRS 176.515(1).
6. Criminal Law.
For new trial on basis of newly-discovered evidence, the evidence must be newly discovered; material to defense; incapable of
discovery and production even with exercise of reasonable diligence; noncumulative; capable of rendering different result
probable upon retrial; more than attempt to contradict, impeach, or discredit former witness, unless
witness is so important that different result would be reasonably probable; and the best evidence case
admits.
cumulative; capable of rendering different result probable upon retrial; more than attempt to contradict, impeach, or discredit former
witness, unless witness is so important that different result would be reasonably probable; and the best evidence case admits. NRS
176.515(1).
OPINION
FACTS
A jury convicted appellant Marritte Funches of the first-degree murder of Kevin Jones.
The facts presented to the jury were as follows: On the night of March 27, 1991, Funches and
his codefendant, Edward Shafer, entered Jones's taxicab outside the Circus Circus Casino in
Reno. Funches sat in the back seat behind Jones, and Shafer sat in the front seat. Funches
requested Jones to drive them to Stead, Nevada. When Jones refused unless he received his
money first, Funches placed a handgun to Jones's head and shot him.
After a secret witness led police to Shafer, Shafer fully implicated Funches in the murder.
The State charged Funches with first-degree murder and being an ex-felon in possession of a
firearm. At first, the police did not criminally charge Shafer; he was the State's primary
witness at Funches' preliminary hearing. Shafer's testimony placed Funches at the scene of the
crime, identified Funches as the person who shot Jones, and provided significant crime
details. Upon cross-examination at the preliminary hearing, Shafer denied any involvement in
the murder, asserting complete ignorance as to Funches' possession of a gun that night and the
potential occurrence of any crime.
The State reinterrogated Shafer in January 1992, a month before Funches' scheduled trial
date. At that time, Shafer admitted that he knew Funches had a gun with him that night and
that Funches wanted to rob the cab driver. Shafer stated that the cab driver gave him money at
Funches' insistence, but he denied knowing that Funches would shoot the cab driver. After
this statement, the State charged Shafer with robbery and first-degree murder on a
felony-murder theory.
The district court joined Shafer's and Funches' cases for trial. At trial, the district court
permitted the State to introduce Shafer's preliminary hearing testimony by reading it to the
jury. The jury acquitted Shafer of robbery and first-degree murder. However, the jury
convicted Funches of first-degree murder and being an ex-felon in possession of a firearm.
Funches was sentenced to two consecutive terms of life imprisonment without the possibility
of parole for first-degree murder with use of a deadly weapon and to a concurrent six
years of imprisonment for being an ex-felon in possession of a firearm.
possibility of parole for first-degree murder with use of a deadly weapon and to a concurrent
six years of imprisonment for being an ex-felon in possession of a firearm.
Thereafter, Funches made a motion for new trial based upon newly discovered evidence
from a jailhouse informant, Kenneth Viser, who stated that Shafer admitted to him that he
(Shafer) had shot the cab driver. The district court denied the motion. Then, Funches made a
second motion for new trial also based upon newly discovered evidence. Funches presented
another jailhouse informant, Charles Fritsche, who overheard the conversation between Viser
and Shafer when Shafer admitted to killing Jones. The district court granted the motion for
new trial, determining that there was a reasonable probability of a different result if the jury
heard the conflicting evidence.
The story does not end there, however, because the State then filed a motion to reconsider
the order granting a new trial supported by the testimony of its own jailhouse informant,
Stephen Kingsley, who was allegedly with Funches on the day Funches learned that the
district court had granted his motion for new trial. Funches supposedly danced on cloud
nine proclaiming that he and his partner, Shafer, had pulled a scam on the court. Because
Shafer had been acquitted of first-degree murder, jeopardy attached and he could not be
retried. Thus, Shafer's claim that he killed the cab driver would result in an acquittal for
Funches upon retrial and perhaps a one to six year sentence for perjury for himself.
Upon hearing Kingsley's statement, the district court issued an order rescinding its
previous order granting the new trial. Funches filed a petition for writ of mandamus with this
court, and after this court vacated both of the district court's orders, the district court entered a
new order denying Funches' second motion for new trial. In this order, the district court
reasoned that it does not matter if Shafer shot the cab driver because Funches would still be
culpable of first-degree murder on a felony-murder theory. Appellant timely appealed his
conviction to this court.
DISCUSSION
Witness/defendant unavailability to testify
Funches contends that the district court erred in admitting Shafer's preliminary hearing
testimony at their joint trial. Funches argues that the statutory requirements governing the
admission of preliminary hearing testimony set forth in NRS 171.198(6)(b) were not met.
Specifically, Funches claims that Shafer was not unavailable under the terms of the statute
because he was in court as a defendant and asserting his Fifth Amendment privilege. Funches
cites Lemberes v. State, 97 Nev. 492, 634 P.2d 1219 {19S1), and LaPena v. State, 96 Nev.
43
P.2d 1219 (1981), and LaPena v. State, 96 Nev. 43, 604 P.2d 811 (1980), in support of his
position.
[Headnote 1]
NRS 171.198(6)(b) codifies the former testimony exception to the hearsay rule. It provides that preliminary hearing testimony may be
used:
By the state if the defendant was represented by counsel or affirmatively waived his right to counsel, upon the trial of the cause,
and in all proceedings therein, when the witness is sick, out of the state, dead, or persistent in refusing to testify despite an order
of the judge to do so, or when his personal attendance cannot be had in court.
(Emphasis added.) Although NRS 171.198(6)(b) does not impose a cross-examination requirement for the admissibility of such testimony
at a criminal trial, this court imposed such a requirement in Drummond v. State, 86 Nev. 4, 7, 462 P.2d 1012, 1014 (1970), stating:
[T]he transcript of the testimony of a material witness given at the preliminary examination may be received in evidence at the trial
if three preconditions exist: first, that the defendant was represented by counsel at the preliminary hearing; second, that counsel
cross-examined the witness; third, that the witness is shown to be actually unavailable at the time of trial.
Accord Anderson v. State, 109 Nev. 1150, 865 P.2d 331 (1993); Aesoph v. State, 102 Nev. 316, 721 P.2d 379 (1986). Thus, there are three
elements necessary before a witness's preliminary hearing testimony may be admitted as evidence at trial: (1) the defendant must have
counsel to represent him at the preliminary hearing; (2) counsel cross-examined the witness; and (3) the witness is actually unavailable at
trial. Drummond, 86 Nev. at 7, 462 P.2d at 1014.
[Headnote 2]
On appeal, Funches contends that the third factor, the unavailability of Shafer, was not satisfied in the instant case in light of this
court's holdings in LaPena v. State, 96 Nev. 43, 604 P.2d 811 (1980), and Lemberes v. State, 97 Nev. 492, 634 P.2d 1219 (1981).
In LaPena, a State's witness, Weakland, refused to testify at trial claiming to have no recollection. LaPena, 96 Nev. at 47, 604 P.2d at
812. The district court ruled Weakland unavailable as a witness because he was persistent in refusing to testify,' NRS 51.055(1)(b), and
admitted his preliminary hearing testimony under the former testimony exception to the hearsay rule, NRS 51.325." Id.
at 45, 604 P.2d at S13.
under the former testimony exception to the hearsay rule, NRS 51.325. Id. at 45, 604 P.2d at
813. In LaPena, this court held that when admitting preliminary hearing testimony of an
unavailable witness, the grounds for unavailability are governed by the specific provisions of
NRS 171.198(6)(b) (formerly NRS 171.198(7)) and not the more general provisions of the
evidence code. This court stated that NRS 171.198(6)(b) deals specifically with the subject
at issue [and] prevails over the general evidence code provision. Id. Accordingly, this court
remanded the case to the district court for its determination of the admissibility of Weakland's
testimony under NRS 171.198(6)(b).
In Lemberes, this court reversed the convictions of two Sparks city councilmen, Peter
Lemberes and James Vernon, stemming from their alleged attempt to bribe a fellow
councilman to vote against a gaming license for a truck stop. Lemberes, 97 Nev. 492, 634
P.2d 1219. Appellants raised the issue of whether the preliminary hearing testimony of
Ronald Averett, Vernon's superior at the time the alleged bribery occurred, was properly
admitted at trial. Id. at 498, 634 P.2d at 1222. Upon review, this court stated:
At the time of trial, Averett testified in open court, out of the presence of the jury,
stating his intention to claim the privilege of the Fifth Amendment with regard to all
matters upon which he had testified at the preliminary examination. He then refused to
answer the specific questions from the preliminary examination as propounded to him
by counsel. The trial court thereupon permitted portions of the previous testimony to be
read to the jury. The state has conceded that under LaPena v. State, 96 Nev. 43, 604
P.2d 811 (1980), it was error for the district court to admit such testimony. The state
argues, however, that LaPena should be overruled, or, alternatively, that Averett's
testimony did not incriminate appellants. We are not persuaded by either of these
contentions.
Id. Thus, this court affirmed the State's concession that it was error to admit Averett's
testimony under LaPena. The Lemberes court reiterated that in LaPena we held that it was
error for the district court to admit preliminary hearing testimony under the general evidence
code provisions governing admission of prior testimony, NRS 51.325, and unavailability,
NRS 51.055(1)(b), rather than abiding by the specific requirement of NRS 171.198(7)
governing admission of preliminary hearing testimony as substantive evidence in a criminal
trial. Id. Thus, LaPena and Lemberes have stood for the proposition that NRS 171.198(6)(b)
is to be strictly construed to determine whether a witness is unavailable for the purpose of
admitting his or her preliminary hearing testimony.
The instant case presents a unique circumstance in that Shafer was a codefendant at trial
but a witness at the preliminary hearing who was subject to cross-examination at that time.
We conclude that the first two factors enunciated in Drummond and NRS 171.198(6)(b) are
met. It is clear from the record that Funches was represented by counsel at his preliminary
hearing and that Funches' counsel cross-examined Shafer. However, as the parties point out,
whether Shafer was unavailable within the meaning of NRS 171.198(6)(b) is at issue. As
stated above, unavailability under this statute is when the witness is sick, out of the state,
dead, or persistent in refusing to testify despite an order of the judge to do so, or when his
personal attendance cannot be had in court. NRS 171.198(6)(b). Yet, Shafer's unavailability
at trial was not due to any of the enumerated reasons, but due to his invocation of the Fifth
Amendment.
1
Nevada has codified this prohibition in NRS 50.115(4), which states that the
prosecution may not call the accused in a criminal case. Here, Shafer did not choose to
testify, and the State could not call him as a witness because he was a defendant.
Having reviewed our previous decisions in LaPena and Lemberes and being faced with the
peculiar facts of this case, we are persuaded that we have construed NRS 171.198(6) too
narrowly and erred in not considering the additional grounds of unavailability set forth in
NRS Chapters 50 and 51. NRS 171.198(6) and the case law governing the use of prior
testimony are designed to ensure that the earlier testimony is reliable and the declarant truly
unavailable. While it may appear that the definition of unavailability in NRS 171.198(6) is
inclusive, this and prior cases dealing with the issue of witness unavailability demonstrate
that the statute does not cover a number of situations where a defendant is effectively
unavailable to testify. In some situations a witness can determine the admissibility of earlier
testimony by how the witness asserts or creates his or her unavailability. By looking only to
NRS 171.198(6) to determine witness unavailability, we have provided some witnesses or
defendants with a sword to strike down prior reliable testimony, and this obstructs the search
for truth rather than advancing it.
[Headnote 3]
We hereby overrule our previous holdings in LaPena and Lemberes. We conclude that in addition to the specific grounds for
unavailability enumerated in NRS 171.198(6), the district court may also consider NRS 51.055,2 which defines
unavailability, and the more general provisions of the evidence code when determining a witness's
unavailability in order to admit the witness's preliminary hearing testimony at trial.
__________

1
No person . . . shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V.
court may also consider NRS 51.055,
2
which defines unavailability, and the more general
provisions of the evidence code when determining a witness's unavailability in order to admit
the witness's preliminary hearing testimony at trial. In the instant case, Shafer was not
unavailable within the meaning of NRS 171.198(6)(b). However, Shafer was unavailable to
testify due to NRS 50.115(4) because as a defendant, the prosecution could not call him as a
witness. Because Shafer was unavailable under NRS 50.115(4), we conclude that Shafer was
unavailable for the purposes of admitting his preliminary hearing testimony at trial and that
the district court correctly admitted the prior testimony.
Motion for new trial
[Headnote 4]
Funches also contends on appeal that the district court abused its discretion in denying his second motion for new trial. He argues that
the district court employed the wrong standard of review. Specifically, Funches asserts that the district court based its decision upon an
erroneous belief that it was unnecessary to find that Funches actually shot Kevin Jones because if he was a participant to the robbery, he
would be equally culpable under the felony murder rule. We disagree.
[Headnotes 5, 6]
A district court may grant a new trial on the ground of newly discovered evidence. NRS 176.515(1). The grant or denial of a new trial
on this ground is within the trial court's discretion and will not be reversed on appeal absent its abuse. Sanborn v. State, 107 Nev. 399, 406,
812 P.2d 1279, 1284 (1991). To establish a basis for a new trial on this ground, the evidence must be: newly discovered; material to the
defense; such that even with the exercise of reasonable diligence it could not have been discovered and produced for
trial; non-cumulative; such as to render a different result probable upon retrial; not only an attempt to
contradict, impeach, or discredit a former witness, unless the witness is so important that a different result
would be reasonably probable; and the best evidence the case admits.
__________

2
NRS 51.055 states:
1. A declarant is unavailable as a witness if he is:
(a) Exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of his statement;
(b) Persistent in refusing to testify despite an order of the judge to do so;
(c) Unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(d) Absent from the hearing and beyond the jurisdiction of the court to compel appearance and the proponent of his statement
has exercised reasonable diligence but has been unable to procure his attendance or to take his deposition.
2. A declarant is not unavailable as a witness if his exemption, refusal, inability or absence is due to the procurement or
wrongdoing of the proponent of his statement for the purpose or preventing the witness from attending or testifying.
exercise of reasonable diligence it could not have been discovered and produced for trial;
non-cumulative; such as to render a different result probable upon retrial; not only an attempt
to contradict, impeach, or discredit a former witness, unless the witness is so important that a
different result would be reasonably probable; and the best evidence the case admits. Id.
In its order denying Funches' second motion for new trial, the district court stated:
[T]he new evidence as presented by the defendant is insufficient to satisfy the standard
for granting a new trial as articulated in Pacheco v. State, 81 Nev. 639 (1965). Further,
the jury could properly find Mr. Funches guilty of First Degree Murder either under the
theory of Felony Murder Rule or under a premeditated theory. Thus, the evidence
presented by the defense in their Motion for New Trial would not satisfy the Pacheco
standard.
Therefore, I do not believe it is critical that I find beyond a reasonable doubt that Mr.
Funches or Mr. Shaefer committed the murder. But I must find beyond a reasonable
doubt that it was a murder committed in a willful, deliberate, and premeditated manner,
or in the perpetration of a felony. I do not believe from all of the evidence,
contradictory and otherwise, that any jury, based upon the evidence that would be
presented in this case, would find that this murder was not a murder committed during
the perpetration of a robbery.
The district court clearly found that the newly discovered evidence was insufficient to
require a new trial and specifically cited the case that sets forth the quantum of evidence
necessary to grant a new trial. Unfortunately, it also opined that the evidence at trial would
have been sufficient to convict Funches of felony murder.
3
However, the district court
considered all the newly discovered evidence, was well aware of the burden placed on a
defendant seeking a new trial and expressly held that Funches did not meet that burden. We
conclude that the district court did not err in denying Funches' second motion for a new trial.
We affirm the judgment of conviction and the district court's order denying the motion for
new trial.
__________

3
Funches was charged in the information with premeditated first degree murder, and Shafer was charged with
felony murder. The jury instructions pertaining to murder dealt with Shafer and Funches separately. The
instructions specifically pertaining to Funches dealt with premeditated, deliberate murder, and Shafer's
instructions concerned only felony murder. The evidence tending to establish felony murder implicated both
Funches and Shafer, but the jury acquitted Shafer of the felony murder charge. The instructions and jury verdicts
certainly indicate that the jury rejected the felony murder theory and convicted Funches on premeditated,
deliberate first degree murder.
Shearing, C. J., dissenting:
I would reverse the judgments of the conviction and remand the case for a new trial on the
basis of the introduction of evidence at trial in violation of NRS 171.198(6)(b).
I do not agree that this court should overrule LaPena v. State, 96 Nev. 43, 604 P.2d 811
(1980), and Lemberes v. State, 97 Nev. 492, 634 P.2d 1219 (1981). NRS 171.198(6)(b) sets
forth with specificity the requirements for admitting preliminary hearing testimony as
substantive evidence at a subsequent criminal trial. The legislature has stated that the
testimony is admissible when the witness is sick, out of state, dead, or persistent in refusing
to testify despite an order of the judge to do so, or when his personal attendance cannot be
had in court. NRS 171.198(6)(b).
If preliminary hearing testimony is to be allowed under additional circumstances than
those listed in NRS 171.198(6)(b), the legislature should be the one to set forth those
additional circumstances. This court is not the proper body to change the statute. I do not see
the policy reason for not admitting preliminary hearing testimony in this case when the
witness at trial invokes his Fifth Amendment rights under the United States Constitution.
However, we should not overturn the policy set by the legislature and approved by a line of
our own cases. If change is to be made, it should be made by the legislature.
I agree with Justice Shearing that this court should not expand the circumstances in which
preliminary hearing testimony may be admitted under NRS 171.198. The legislature has
enumerated the circumstances under which such testimony is admissible, these circumstances
being, when the witness is sick, out of state, dead, or persistent in refusing to testify despite
an order of the judge to do so, or when his personal attendance cannot be had in court. NRS
171.198(6)(b). The statute does not state that the testimony is admissible when the declarant
is unavailable as defined in NRS 51.055. Unavailability includes being exempted by
ruling of the judge on the ground of privilege. NRS 51.055(1)(a). We should not, in my
opinion, overturn a line of our own cases and add to the defined statutory circumstances
under which preliminary hearing testimony is admissible when a witness invokes the Fifth
Amendment privilege.
I would reverse the judgments and remand the case based on the improper introduction of
evidence at trial in violation of NRS 171.198(6)(b).
____________
113 Nev. 926, 926 (1997) Bally's Grand Hotel & Casino v. Reeves
BALLY'S GRAND HOTEL & CASINO, Appellant, v.
SUSAN REEVES, Respondent.
No. 25600
November 26, 1997* 948 P.2d 1200
Appeal from a district court order reversing an administrative appeals officer's denial of an
industrial insurance claim. Eighth Judicial District Court, Clark County; John S. McGroarty,
Judge.
Workers' compensation claimant appealed administrative appeals officer's decision
denying benefits. The district court set aside decision and remanded for reconsideration by
self-insured employer's claims administrator. Employer sought review. After establishing
jurisdiction, 112 Nev. 1487, 929 P.2d 936 (1996) the supreme court, Springer, J., held that:
(1) remand was warranted by irregularities in manner that claim was handled by administrator
and hearing officer; (2) appeals officer's decision was not supported by substantial evidence;
(3) claimant was not required to present objective medical evidence to support claim for soft
tissue injury; and (4) administrator, hearing officer, and appeals officer were required to
determine whether industrial accident was a cause of aggravation.
Affirmed.
Schreck, Jones, Bernhard, Woloson & Godfrey and F. Edward Mulholland II, Las Vegas,
for Appellant.
Pearson & Patton and Douglas M. Rowan, Las Vegas, for Respondent.
Remand of workers' compensation claim to self-insured employer's claims administrator was warranted by irregularities in
handling of claim by administrator and hearing officer. Record was not clear as to whether administrator considered claimant's
proffered excuse for failure to timely give notice or file written claim, hearing officer made decision on grounds that claimant did not
assert in request for hearing, and hearing officer did not consider all medical data available. NRS 616.500(6).
Under statute governing judicial review of final decision of administrative agency, supreme court is authorized to correct errors of
law and to review evidence presented to agency to determine whether agency's decision was arbitrary or capricious and was
thus abuse of agency's decision.
__________
*Editor's Note: This opinion was originally issued August 28, 1997. In light of the inadvertent application of the incorrect standard
with respect to the industrial aggravation of previous non-industrial injuries, the opinion filed August 28, 1997, was withdrawn. This
substitute opinion was filed November 26, 1997, in its place.
decision was arbitrary or capricious and was thus abuse of agency's decision. NRS 233B.135.
Decision of administrative agency will be affirmed only if there is substantial evidence to support decision.
Substantial evidence supporting agency decision is that which reasonable mind might accept as adequate to support a
conclusion.
Appeals officer's decision, that nonindustrial rear-end automobile accident was sole cause of workers' compensation claimant's
present injuries, was not supported by substantial evidence.
Workers' compensation claimant was not required to present objective medical evidence to support claim for soft tissue injury
suffered by reason of typical cervical sprain/strain.
Under standard in effect prior to enactment of statute governing preexisting conditions, in case of industrial aggravation of
preexisting nonindustrial disease or condition, workers' compensation claimant had burden of showing that claimed disability or
condition was caused or triggered or contributed to by industrial injury and not merely the result of natural progression of preexisting
disease or condition. NRS 616C.175.
Under standard in effect prior to enactment of statute governing preexisting conditions, for industrially related accident to be
compensable through workers' compensation, it did not have to be the cause of injury or death, but merely a cause; if claimant's job
precipitated or accelerated the condition, a causal connection with the work could be found. NRS 616C.175.
Under standard in effect prior to enactment of statute governing preexisting conditions, where workers' compensation claimant
claimed to suffer from both new industrial injury and aggravation of preexisting nonindustrial injury, claims administrator, hearing
officer, and appeals officer were required to determine whether claimant's industrial accident was a cause of aggravation, with respect
to those injuries thought by competent medical authority to have been aggravation of preexisting condition. NRS 616C.175.
OPINION
The subject matter of this case is the denial of respondent Susan Reeves' claim for
industrial insurance benefits. At every administrative level, Ms. Reeves was denied benefits
on the ground that she did not comply with the formal claim-filing requirements of NRS
616.500 and on the ground that all of her claimed injuries were sustained as a result of a
previous non-industrial accident.
The district court set aside the administrative appeals officer's decision which denied
industrial insurance benefits to Ms. Reeves and ordered that this matter be remanded for
reconsideration of Susan Reeves' claim by Bally's self-insured administrator.
1
Because of the
irregularities in the handling of the claim by Bally's administrator and the hearing officer, and
because of error on the part of the appeals officer, we affirm the district court's judgment.
Two issues recur in this case. One issue is whether claimant Reeves should be excused
for her noncompliance with the formal claim-filing requirements of NRS 616.500; the other
issue is whether Ms. Reeves should be deprived of benefits for injuries suffered in her
industrial accident because she was involved in a previous, non-industrial accident. We
conclude that the district court was correct in remanding the matter to the self-insured
administrator because the record does not reveal adequate consideration by the administrator
of the first issue, namely, whether Ms. Reeves was entitled to be excused for her failure to
comply with the formal requirements of NRS 616.500. The district court was also correct in
remanding the matter to Bally's administrator because of the manner in which Ms. Reeves'
claim was denied on its merits; in effect, the hearing officer ruled that the sole cause of her
present complaint was a previous non-industrial accident.
WHETHER CLAIMANT SHOULD BE EXCUSED FOR
HER FAILURE TO COMPLY WITH THE
FORMALITIES OF NRS 616.500
Ms. Reeves' claim was denied by the administrator, by the hearing officer and, ultimately,
by the appeals officer, on the ground that Ms. Reeves failed to file a timely written claim in
the manner required by NRS 616.500. Ms. Reeves admits that she failed to conform to the
formal requirements of the statute; and, consequently, the only issue that remains is whether
there is sufficient reason to excuse this failure.
Under NRS 616.500(6),
2
an industrial accident insurer may excuse a claimant's failure to
comply with the formalities of NRS 616.500{1), the claims statute, where there is
"sufficient reason" for doing so, principally in cases in which a claimant has an excuse
based upon "mistake or ignorance of fact or of law."
__________

1
This court confirmed that jurisdiction may rest in this court despite the remand language in the district
court's order. See Bally's Grand Hotel v. Reeves, 112 Nev. 1487, 929 P.2d 936 (1996).

2
At the time of the claimant's industrial accident, NRS 616.500(6) read as follows:
6. Failure to give notice or to file a claim for compensation within the time limit specified in this
section is a bar to any claim for compensation under this chapter, but such failure may be excused by the
insurer on one or more of the following grounds:
excuse a claimant's failure to comply with the formalities of NRS 616.500(1), the claims
statute, where there is sufficient reason for doing so, principally in cases in which a
claimant has an excuse based upon mistake or ignorance of fact or of law. We have held
that an employer's knowledge of an industrial injury or an injured employee's giving actual
notice of the injury to the employer may excuse a failure to abide by the formal written notice
requirements of NRS 616.500.
3
Brocas v. Mirage Hotel & Casino, 109 Nev. 579, 854 P.2d
862 (1993); Industrial Commission v. Adair, 67 Nev. 259, 217 P.2d 348 (1950). This, of
course, is a matter to be dealt with on remand.
On May 25, 1989, the administrator denied, in writing, Ms. Reeves' late-filed claim
based on NRS 616.500 paragraph 1. Notice of the injury for which compensation is
payable under this chapter must be given to the insurer as soon as practicable, but
within 30 days after the happening of the accident.
When the insurer denied the claim, it arguably concluded at the same time that no
sufficient reason existed under NRS 616.500(6) to excuse Ms. Reeves' failure to conform
to formal filing requirements. It is not clear from this record, however, whether the insurer
actually considered Ms. Reeves' excuse or rejected it for lack of sufficient cause. We see no
reason to disturb the trial court's order remanding the matter to the administrator for
reconsideration of all issues. On remand, the administrator will be required to consider the
excuse presented by Ms. Reeves and to notify her as to whether her excuse will be allowed
under NRS 616.500(6).
4
__________
(a) That notice for some sufficient reason could not have been made.
(b) That failure to give notice will not result in an unwarrantable charge against the state insurance
fund.
(c) That failure to give notice was due to the employee's or beneficiary's mistake or ignorance of fact
or of law, or of his physical or mental inability, or to fraud, misrepresentation or deceit.
See 1989 Nev. Stat., ch. 161, 2 at 332.

3
Ms. Reeves claims that she gave notice orally to her supervisors that she had suffered an on-the-job injury
and that her employer was on notice of her claim thereafter. Ms. Reeves also explains that at the time in question
there was in progress a transfer of interest from MGM to Bally's and that she was advised that it would not be
necessary to take any action on her claim until the transfer was completed. This would appear to be a prima facie
case of mistake or ignorance of both fact and law; but we leave these matters for administrative reconsideration
on remand.

4
NRS 616.500(6) gives broad discretionary powers to employers as to whether they should accept or reject
employees' excuses for failing to comply. According to the statute such failure may be excused by the
WHETHER THE CLAIM SHOULD HAVE BEEN DENIED
ON THE GROUND THAT ITS SOLE ETIOLOGY IS
A PRIOR, NON-INDUSTRIAL ACCIDENT
Ms. Reeves' claim arises from a rear-end collision that occurred in Bally's parking lot on
September 25, 1988. On July 20, 1987, some fourteen months before the subject work-related
injury, Ms. Reeves was involved in a similar, nonindustrial accident. Ms. Reeves claims that
the first accident caused physical injuries which to some degree overlap her present injuries.
She claims that by the time she was involved in the accident in the Bally's parking lot, she
had almost entirely recovered from the headaches and vertigo suffered in the first accident.
Ms. Reeves contends that the industrial accident both aggravated her previous injuries and
caused injuries independent of the previous injuries. As will be discussed, ample medical
evidence is present to support Ms. Reeves' contentions.
5
As stated above, Bally's denied Ms. Reeves' claim on the ground that it was not properly
and timely filed. On June 30, 19S9, Ms.
__________
insurer. (Emphasis added.) The insurer, then, may or may not find that there is sufficient reason to permit the
excuse and thus allow a formally noncomplying claim to proceed. The wording of the statute would appear to
make the granting or rejecting of an employee's excuse a matter of grace that lies completely within the
discretion of the employer. This cannot, and does not, mean, however, that the insurer's decision is inviolate.
This is especially true in cases of self-insured employers, who are interested parties when they make decisions as
to whether an employee should be excused by the insurer under NRS 616.500(6). It is clear, for example, that
an insurer's arbitrary decision not to excuse an employee's failure, in a case where a clear and justifiable
mistake or ignorance of fact or law exists, may not properly be allowed to bar claimant's pursuit of an
otherwise legitimate industrial claim. A self-insured's decision to deny an excuse under NRS 616.500(6) is
reviewable de novo by a hearing officer, who must decide whether the proffered excuse is covered by one of the
grounds enumerated in the statute. The statute requires that the first decision in these matters must be made by
the insurer.

5
Ms. Reeves' physician treated her with regard to both accidents. This physician, Dr. Barton Becker, verifies
Ms. Reeves' statements, pointing out that after the first accident Ms. Reeves show[ed] progressive improvement
in her symptoms, such as decreased vertigo and headaches. When Dr. Becker examined Ms. Reeves for injuries
sustained in the second, September, 1988, accident, the doctor noted increased neck pain and tenderness,
headaches, and postural vertigo . . . left ear tinnitus [ringing in the ear]. Dr. Becker reported that after the
second accident an audiogram reveals a mild bilateral sensorineural loss, worse in the right ear. Dr. Becker's
conclusion relative to injuries resulting from the industrial accident is:
Mrs. Reeves has not done well since her second accident. She may have permanent neck problems and
vertigo.
Dr. David Toeller prepared an independent medical exam dated June 1, 1989, in which he furnished the
following diagnosis:
1989, Ms. Reeves filed a Request for Hearing, with the Hearing Division. Her request for
hearing, understandably, addressed only the issue on which her claim was denied, her failure
to comply with the formal filing requirements of NRS 616.500(1). Ms. Reeves explained in
her Request for Hearing that she had given oral notice to her supervisor at the time of her
accident and noted in this document that [b]oth managers and asst. managers knew of the
accident. Ms. Reeves has maintained throughout that, at the time of the accident, she did not
understand that the notice had to be in writing. She also maintains that when she made
inquiries to Bally's management about what was required to complete her claim, she was told
that appropriate forms and documents were in the process of being re-supplied, that
everything was being changed over from MGM to Bally's and that the claims procedure
would be taken over later.
On September 18, 1989, a hearing was set to review the denial of Ms. Reeves' claim based
on noncompliance with formal claim-filing requirements; however, for some reason not
evident in this record, the hearing officer, sua sponte determined that the claimant had
sustained two separate automobile accidents and that the claimant was experiencing similar
symptoms to those that she sustained in a previous non-industrial accident. On September
19, 1989, the hearing officer determined, based on an independent review of the record, that
Ms. Reeves' claim must be remanded to the administrator to have the claimant's claim
opened under medical investigation, with the objective of determining the probability
that the claimant's now presenting symptoms owe their etiology to the most recent
automobile accident of September 25, 1988.
The next step in these proceedings was the hearing officer's issuance of an ex parte Order
of Correction, issued sua sponte by the hearing officer on October 27, 1989. In this order,
the hearing officer made it clear that jurisdiction was retained and that Ms. Reeves' rights to
appeal were suspended, pending receipt of a medical investigation that the hearing officer
ordered Bally's to complete.
In response to the hearing officer's October 27, 1989 order, Bally's claims administrator
submitted its medical investigation" in the form of a note subscribed by Bally's "medical
adviser," Dr.
__________
1. Cervical sprain/strain syndrome with no objective neurological or orthopedic findings.
2. The two motor vehicle accidents were not close enough together to justify a diagnosis of a second
injury syndrome.
3. The patient has positional dizziness assumed to be a vestibular irritation or eustachian tube
dysfunction related to her cervical soft tissue injuries.
tion in the form of a note subscribed by Bally's medical adviser, Dr. Vincent Cedarblade.
In transmitting Dr. Cedarblade's handwritten note, Bally's claims administrator did not deny
Ms. Reeves' claim, but did advise the hearing officer that the insurer's medical advisor did
not think that [Bally's] should accept responsibility for a pre-existing condition. Dr.
Cedarblade's note read as follows:
9-25-89. It appears she was treated for dizziness and headaches and postural problems
stemming from a previous accident in 1987 and has continued to do so after her
accident in the parking lot at Bally's. Therefore I don't think you have to accept liability
for a pre existing problemV. Cedarblade
Other than the previously mentioned September 18, 1989, hearing, the record does not
reveal any further hearings by the hearing officer. Between the time of the September 18,
1989, hearing and the hearing officer's sua sponte order, no testimony was presented before
the hearing officer. Apparently, however, after the September 18, 1989, hearing and before
the hearing officer's decision in the matter, the hearing officer received additional evidence in
the form of the aforementioned note written by Dr. Cedarblade and an excerpt from a report
prepared by Dr. Fredrick Boulware, dated December 12, 1989, which read as follows:
This 37 year-old lady was previously evaluated in January of this year because of
complaints of headache and dizziness which had persisted since an automobile accident
which occurred on July 20, 1987.
On November 30, 1989, based on the foregoing medical investigation, which Bally's
was ordered to complete, the hearing officer ruled that all of Ms. Reeves' problems owe their
etiology to a non industrial accident of July 20, 1987. Ms. Reeves filed an appeal from the
hearing officer's decision, contending that she had asked for a hearing to review Bally's denial
of her claim for failure to abide by formal filing requirements. Ms. Reeves complained that
her claim was denied by the hearing officer on other, substantive grounds, namely, that the
injuries upon which her claim was based owed their etiology to her non-industrial accident
and were not, therefore, covered by Bally's insurance. On March 26, 1991, an appeals officer
affirmed the hearing officer's decision. Thereafter, the district court granted Ms. Reeves'
petition for judicial review.
[Headnote 1]
We conclude that the district court properly granted Ms. Reeves' petition.
Reeves' petition. Not only was Ms. Reeves blind sided by having the hearing officer base
the decision on grounds that Ms. Reeves did not assert, it does not appear that the hearing
officer considered Ms. Reeves' arguments or all of the pertinent medical data that was
available at the time. The record before us, and especially the wording of Ms. Reeves'
hand-written appeal referred to below, reveals that Ms. Reeves was not given an opportunity
before the hearing officer to respond to whatever it might have been that inexplicably led the
hearing officer to conclude that Ms. Reeves' physical problems owe their etiology to a
non-industrial accident of July 20, 1987. In other words, the hearing officer concluded that
Ms. Reeves' September 25, 1988, industrial accident was not related to her present
complaints. This is an extreme and untenable position, a position that is not supported by this
record.
At the time of Ms. Reeves' hearing before the hearing officer it had been conceded, and is
still conceded, that Ms. Reeves' injuries arose out of and in the scope of her employment. She
had no reason to suspect when she filed her Request for Hearing that the hearing officer was
going to launch an inquiry into causation or the so-called etiology issue, an issue that was
conjured by the hearing officer herself. In her appeal, Ms. Reeves makes it clear that she was
very much aware of and troubled by the unfairness and confusion inherent in the hearing
officer's changing the hearing from a review of the question of whether she was entitled to
pursue her claim despite her failure to make a timely written claim into a medical
investigation that would ultimately result in a denial of her claim on its merits.
In her handwritten appeal document, Ms. Reeves writes that the reason for her appeal
was that the hearing officer had withdrawn Ms. Reeves' stated ground for review (which
was, of course, that she had an excuse for noncompliance with formal notice requirements)
and had substituted a totally new issue, the etiology issue. Ms. Reeves complained in her
appeal document that if she was going to be
denied on other grounds [that is, the etiology grounds] I should have had due time for
all of my evidence. The SIS [sic] did not send me to any medical doctors for
determination and only pick and chose [sic] lines on certain papers of my doctors,
which I supplied. Long before the hearing date I have evidence of my greatly improved
condition that I was unable to bring up due to it was not on my hearing denial of
9/18/89.

[
6
] The grounds for Ms.
__________

6
Ms. Reeves is referring to a hearing upon which the September 19, 1989, Order of Remand was based, the
hearing in which the hearing officer decided to make the etiology of Ms. Reeves' physical problems the issue
rather than the untimely written notice grounds for denial stated by the insurer.
The grounds for Ms. Reeves' appeal, then, are: (1) that her failure to file timely written
notice was improperly and sua sponte withdrawn by the hearing officer, presenting her with
an entirely new, uncharged basis for denial of her claim on its merits; (2) that she was not
given an adequate opportunity to present evidence in opposition to the newly-framed medical
issues before the hearing officer; and (3) that the hearing officer engaged in a biased and
unfair selection of medical data, relying on the insurer's medical advisor and an isolated,
virtually meaningless excerpt from a report of another physician.
Although we approve of the district court's remand of this matter to Bally's administrator,
we perceive that all of Ms. Reeves' grounds for appeal have substance. Giving credence to
Ms. Reeves' contentions (aside from the bias inherent in the hearing officer's having put such
great stock in the report of Bally's medical advisor) is the fact that neither Dr. Cedarblade nor
Dr. Boulware provided the hearing officer with an acceptable basis for denying Ms. Reeves'
industrial accident claim. Dr. Cedarblade correctly reported that Ms. Reeves had been treated
for dizziness, and headaches and postural problems stemming from a previous accident. Dr.
Cedarblade noted that Ms. Reeves continued to suffer from the mentioned types of problems;
but Dr. Cedarblade did not contend that Ms. Reeves did not suffer any additional or
aggravating injuries as a result of the later, industrial accident. Dr. Boulware wrote nothing of
import regarding whether Ms. Reeves suffered a compensable injury in her second accident.
Dr. Boulware referred only to one of Ms. Reeves' headache and dizziness, and merely
stated that these symptoms had persisted since the former accident. Again, Dr. Boulware
did not state that Ms. Reeves suffered no additional or aggravating injuries in the second
accident or that the entire etiology of Ms. Reeves' complaints was the non-industrial
accident.
The November 30, 1989, decision of the hearing officer does not mention another
significant medical record that was available at that time, namely, Dr. Toeller's independent
medical exam. In this independent examination, Dr. Toeller diagnoses Ms. Reeves' injuries
relative to the stated date of loss: 9/25/88 (the industrial accident), as being cervical
sprain/strain syndrome and rules out second injury syndrome.
7
In the presence of an
independent medical examination describing the nature of injuries sustained by Ms.
__________

7
It is not entirely clear what the doctor meant when he wrote of a second injury syndrome. When Dr.
Toeller denied that Ms. Reeves was suffering from a second injury syndrome, he appears to be saying, in support
of Ms. Reeves' claim, that the two injuries were separate and had an independent existence. We make no
conclusions on the subject, however, and leave this matter for proper inquiry on remand.
independent medical examination describing the nature of injuries sustained by Ms. Reeves in
the subject industrial accident, and in the absence of any medical opinion that Ms. Reeves
suffered no injury or aggravation arising out of the industrial accident, it is not easy to
understand how the hearing officer could have denied this claim.
8
The hearing officer was
clearly acting in an arbitrary and capricious manner in deciding to deny this claim on the
ground that Ms. Reeves' injuries owe their etiology to a previous, non-industrial accident.
ERROR ON THE PART OF THE APPEALS OFFICER
We have reviewed several irregularities in the manner that this claim was handled by Bally's
administrator and by the hearing officer, and have come to the conclusion that these irregularities are sufficient
in themselves to warrant the remand to the administrator ordered by the district court. This appeal, however, is
from the district court's order setting aside the decision of the appeals officer.
[Headnotes 2-4]
NRS 233B.135 governs judicial review of the final decision of an administrative agency, in this case represented by the decision of the
appeals officer. Under this statute, the supreme court is authorized to correct errors of law and
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.
Clements v. Airport Authority, 111 Nev. 717, 721, 896 P.2d 458, 460 (1995). Further, the decision of an administrative agency will be
affirmed only if there is substantial evidence to support the decision. SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987).
Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion."'
__________

8
The only hearing held by the hearing officer was on September 18, 1989, and the only business conducted at that hearing was the
hearing officer's deciding to open up the etiology question and to rule that the matter should be remanded to the administrator to have
the claimant's claim opened under medical investigation. If Ms. Reeves was going to be denied on medical grounds rather than on the
ground of noncompliance with NRS 616.500(1), she should have been given, as she requested, due time for all of [her] medical evidence
to be marshalled. Ms. Reeves told everyone that would listen to her that she had received some new injuries and that her previous injury
had been aggravated. No adjudicator could have denied this claim without concluding that Ms. Reeves was not being truthful, despite the
fact that this conclusion would be inconsistent with all of the available medical evidence. Nothing in the record indicates that Ms. Reeves
was anything other than a completely sincere and believable claimant.
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
(1971)).
[Headnote 5]
We conclude that the district court was quite correct in its decision to set aside the appeal officer's ruling on the ground that the
record was without substantial evidence to support the decision of the appeals officer. From our discussion relating to the hearing
officer's decision in this case, no substantial evidence exists that is adequate for a reasonable mind to accept the conclusion that the
non-industrial accident was the sole cause of Ms. Reeves' present injuries and complaints. We therefore affirm the district court's judgment
in this regard.
[Headnote 6]
Additionally, the appeals officer made an erroneous conclusion of law when she concluded that the objective medical evidence does
not establish a change in Claimant's condition between the first serious automobile accident and the second minor accident and that
objective medical evidence did not support a finding of a medical condition causally related to the September 25, accident. The appeals
officer made an error of law by requiring objective medical evidence to support a claim for the kind of soft tissue injury suffered by Ms.
Reeves by reason of a typical cervical sprain/strain. Such injuries rarely manifest themselves in objective terms, confirmable by x-ray or
other physical means of establishing objective physical harm. If we were to accept the appeals officer's conclusion of law and declare that
soft tissue injuries must, in industrial accident claims cases, be established by objective evidence, we would work a great mischief indeed
to workers' compensation law. The kinds of injuries sustained by Ms. Reeves can be reliably established by any reasonable and probable
medical testimony, independent of objective evidence of the injury.
The hearing officer, by ruling that Ms. Reeves' problems owe their etiology to a previous accident, appears to have accepted a
determination made by the insurer's medical advisor that the claimant had a pre-existing condition which was not exacerbated by the
most recent incident. The appeals officer affirmed this ruling of the hearing officer. As discussed above, Ms. Reeves was not required to
establish her injuries by objective medical evidence. Additionally, at the time that Ms. Reeves' industrial claim arose, we had recognized
that preexisting illness normally will not bar a claim if the employment aggravates, accelerates or combines with the disease to trigger
disability or death.' State Industrial Insurance System v. Kelly, 99 Nev. 774, 775, 671 P.2d 29, 29-30 {19S3) {quoting Spencer
v. Harrah's, Inc.,
P.2d 29, 29-30 (1983) (quoting Spencer v. Harrah's, Inc., 98 Nev. 99, 101, 641 P.2d 481, 482
(1982)).
[Headnotes 7, 8]
In Kelly, we adopted the rule that the claimant has the burden of showing that the claimed disability or condition was in fact caused or
triggered or contributed to by the industrial injury and not merely the result of the natural progression of the preexisting disease or
condition. Id. at 775-76, 671 P.2d at 30 (citing Arellano v. Industrial Commission, 545 P.2d 446, 452 (Ariz. 1976)). We further
recognized in Kelly that [t]he fact that industrial aggravation may have been but one of several causes producing the symptomatic
condition is of no moment. An industrially related accident does not have to be the cause of injury or death, but merely a cause. If the job
is said to precipitate or accelerate the condition, a causal connection with the work can be found.' Id. at 776, 671 P.2d at 30 (quoting
Harbor Insurance Company v. Industrial Commission, 545 P.2d 458, 461 (Ariz. 1976)). This was the standard in effect at the time that Ms.
Reeves' industrial claim arose.
9
[Headnote 9]
The medical records in this case indicate that Ms. Reeves claims to suffer from both new injuries and aggravating injuries. With
respect to those injuries thought by competent medical authority to have been an aggravation of a preexisting condition, the claims
administrator, the hearing officer and the appeals officer should have determined whether Ms. Reeves' industrial accident was a cause of
the aggravation.
For all of the reasons discussed herein, the judgment of the district court is affirmed; and the matter will, in accordance with the order
of the district court, be remanded for reconsideration by Bally's self-insured administrator.
Shearing, C. J., and Rose, Young, and Maupin, JJ., concur.
__________

9
In 1993, the legislature adopted NRS 616.50185, now codified as NRS 616C.175, and changed the applicable standard. With respect
to the claims that arise after the enactment of this statute, the claimant is not entitled to compensation for job-related accidents that
aggravate[], precipitate[], or accelerate[] a preexisting condition, unless the industrial accident is the primary cause of the resulting
injury or disability. See Ross v. Reno Hilton, 113 Nev. 228, 931 P.2d 1366 (1997); NRS 616C.175. Here, however, as Ms. Reeves' claim
arose in 1988, the provisions of NRS 616C.175 (formerly NRS 616.50185) do not apply. See Ranieri v. Catholic Community Servs., 111
Nev. 1057, 1063 n.1, 901 P.2d 158, 162 n.1 (1995) (concluding, with respect to an industrial injury that arose in 1989, that the Kelly
standard applied and that NRS 616.50185 was inapplicable).
____________
113 Nev. 938, 938 (1997) Canada v. State
CLAUDIA LYNN CANADA, Appellant, v.
No. 27438
GARY WAYNE SCHERER, Appellant, v.
No. 27439
August 28, 1997 944 P.2d 781
Consolidated appeals from judgments of conviction pursuant to jury verdicts of conspiracy
to commit murder, burglary, robbery of a victim over sixty-five years of age, and first degree
murder with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Joseph
T. Bonaventure, Judge.
The supreme court held that: (1) trial court abused its discretion in failing to find that juror
had intentionally concealed information during voir dire, and (2) juror's misconduct
warranted new trial.
Christopher R. Oram, Las Vegas, for Appellant Canada.
Potter Law Offices, Las Vegas, for Appellant Scherer.
and James Tufteland, Chief Deputy District Attorney, and Clark A. Peterson, Deputy District
1. Criminal Law.
Where juror has failed to reveal potentially prejudicial information during voir dire, relevant inquiry is whether juror is guilty of
intentional concealment, and answer to question must be left to trial court's sound discretion.
2. Criminal Law.
Denial of mistrial based upon juror misconduct will not be disturbed on appeal in the absence of a clear showing of abuse.
3. Jury.
Trial court abused its discretion in failing to find intentional concealment of information by juror who had stated during voir dire
that neither he, nor member of his family, nor close friend had been victim of a crime, but who stated repeatedly during deliberations
that his father had been murdered when he was young and that his diaper businesses had been stolen by organized crime, had
intentionally concealed information.
4. Criminal Law.
In cases of juror misconduct, new trial must be granted unless it appears, beyond a reasonable doubt, that no prejudice has
resulted.
5. Criminal Law.
Factors to be considered in determining whether juror misconduct constituted harmless error include whether issue of innocence or
guilt is close, quantity and character of error, and gravity of crime charged.
6. Criminal Law.
Misconduct of juror who intentionally concealed facts that his father had been murdered and that he had been victim of organized
crime during voir dire, but who repeatedly raised fact of father's murder during deliberations, warranted new trial in murder
prosecution; issue of guilt or innocence was close enough that court could not say beyond a reasonable doubt that defendants were not
prejudiced by misconduct.
OPINION
Per Curiam:
Claudia Canada, Gary Scherer, and Ann Schuck were arrested on the charges of
conspiracy to murder Harold Dice Goodwine, burglary of Goodwine's apartment, robbery of
Goodwine, who was sixty-nine years old, and the murder of Goodwine with a deadly weapon.
On the eve of trial, Schuck pleaded guilty to second degree murder in exchange for her
testimony against Canada and Scherer. Schuck claimed that Scherer solicited her to help
Canada kill Goodwine and that Schuck had accompanied Canada and witnessed the murder.
Beginning March 27, 1995, Canada and Scherer were jointly tried before a jury and
subsequently convicted on all charges. Scherer and Canada theorized that Schuck, alone or
with the help of one or more other witnesses who testified that Scherer and Canada had
solicited them to kill Goodwine, had perpetrated the crime. Both parties appeal their
convictions asserting numerous errors. Because we conclude that there was prejudicial juror
misconduct during Canada and Scherer's joint trial, we reverse their convictions and remand
the case to the district court for retrial.
Retrial is mandated due to prejudicial juror misconduct
During voir dire and on the jury questionnaire, the ninth juror, seventy-four year old
Robert Gordon, was asked whether he, a family member, or a close friend had ever been a
victim of a crime. He answered, Thank God, No and Never. Following the conclusion of
Scherer and Canada's trial, an investigator for Canada interviewed several members of the
jury.
The investigator's affidavit stated that during the interview, several jurors, including the
foreperson, told him that there had been a strong (five person) contingent to acquit Canada.
However, one of the interviewees stated that Canada's acquittal could never have materialized
because Juror Gordon would have insisted on conviction even if the jury had favored
acquittal by an eleven to one vote.
insisted on conviction even if the jury had favored acquittal by an eleven to one vote. These
interviewees further stated that Juror Gordon repeatedly and unequivocally stated his
feelings about a crime of this nature, and he informed the other jurors, both during the trial
and penalty phases, that his own father had been murdered when he was an infant.
Scherer and Canada moved for a mistrial based on these revelations regarding Juror
Gordon, and several evidentiary hearings were subsequently held. At the first evidentiary
hearing, Juror Gordon admitted that, during deliberations, he had drawn parallels between the
instant case and his own situation (i.e., losing his father to murder), noting that Goodwine's
son was the real victim. He admitted that he was one of the strongest supporters of Scherer
and Canada's conviction and the imposition of the harshest possible sentence.
In explaining his failure to reveal his father's murder, Juror Gordon stated that he did not
get along with his mother and did not know whether his father was dead or alive until he
found an article about the murder after his mother died. On his jury questionnaire, he stated
that his mother died in 1978, but later testified that she had actually died in 1969. Although
he claimed that he did not learn of his father's death until his mother's death, he testified that
he had investigated the murder in 1961 and on at least one other occasion. At this first
evidentiary hearing, Juror Gordon testified that he did not remember that his father had been
murdered, yet listed his father's 1922 death on the questionnaire, when he had a flash of
memory. He then stated that the reason he denied any family member had ever been a victim
of a crime was because he did not consider his father part of his family because the murder
had occurred when Juror Gordon was an infant. During this first evidentiary hearing, Juror
Gordon also mentioned that organized crime groups had stolen seven of his Los Angeles
diaper businesses over a period of eight or nine years.
Because of the repeated references during trial to Scherer's organized crime connections as
a member, hit man, and enforcer, the defense sought an additional evidentiary hearing on
Juror Gordon's allegations of organized crime victimization. Juror Gordon asked the court to
delete his name and any mention of his former Los Angeles diaper business from any records
connected to this case because he feared retribution by organized crime guerrillas. At the
second evidentiary hearing, Juror Gordon testified to specific instances wherein the mob had
burned down his business, extorted money from him, and threatened to kill him, along with
his wife and stepdaughter.
[Headnotes 1-3]
In Lopez v. State, 105 Nev. 68, 89, 769 P.2d 1276, 1290 (1989), this court held that where a juror has failed to reveal potentially
prejudicial information during voir dire, the relevant inquiry is whether the juror is guilty of intentional concealment; the answer to this
question must be left to the trial court's sound discretion. The denial of a mistrial based upon juror misconduct will not be disturbed on
appeal in the absence of a clear showing of abuse. Lane v. State, 110 Nev. 1156, 1163, 881 P.2d 1358, 1363-64 (1994). The trial court
concluded that there had been no juror misconduct because Juror Gordon had not intentionally concealed any information during the jury
selection process. We disagree. We conclude that given the numerous, major crimes of which Juror Gordon claimed that he and his family
were victims, the trial court abused its discretion in failing to find intentional concealment.
[Headnotes 4, 5]
We must next consider whether the misconduct amounted to harmless or prejudicial error. Geary v. State, 110 Nev. 261, 265, 871 P.2d
927, 930 (1994), vacated on other grounds by Geary v. State, 112 Nev. 1434, 930 P.2d 719 (1996). [A] new trial must be granted unless it
appears, beyond a reasonable doubt, that no prejudice has resulted. Lane, 110 Nev. at 1164, 881 P.2d at 1364. Prior to Lane, this court
stated that factors to be considered when determining whether juror misconduct constituted harmless error include whether the issue of
innocence or guilt is close, the quantity and character of the error, and the gravity of the crime charged.' Rowbottom v. State, 105 Nev.
472, 486, 779 P.2d 934, 943 (1989) (quoting Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289 (1985)).
[Headnote 6]
The character of the errorconcealing repeated crime victimization during jury selection, yet repeatedly raising the fact that his father
was murdered during deliberation, and the considerable organized crime references in this caseweighs in favor of a finding of prejudice.
The gravity of the crimes charged (first degree murder) also weighs in favor of such a finding. Finally, having reviewed the evidence, we
conclude that the issue of Scherer and Canada's guilt or innocence was close enough such that we cannot say, beyond a reasonable doubt,
that Canada and Scherer were not prejudiced by this juror misconduct.
CONCLUSION
We conclude that the juror misconduct in this case was so pervasive as to taint the fairness of Scherer and Canada's
convictions.
pervasive as to taint the fairness of Scherer and Canada's convictions. Accordingly, we
reverse and remand this case to the district court for a new trial.
____________
113 Nev. 942, 942 (1997) State, Dep't Mtr. Veh. v. Root
SAFETY, Appellant, v. MICHAEL ALLAN ROOT, Respondent.
No. 27708
August 28, 1997 944 P.2d 784
Appeal from a district court order reversing a hearing officer's decision upholding the
revocation of respondent's driving privileges. Eighth Judicial District Court, Clark County;
Joseph T. Bonaventure, Judge.
Motorist appealed suspension of his driving privileges. The district court reversed
suspension. Department of Motor Vehicles and Public Safety (DMV) appealed. The supreme
court held that: (1) statutory protections provided to DUI suspects under state law satisfy due
process; (2) motorist's failure to cause measurable reading on breath machine constituted
refusal to submit under implied consent laws; and (3) motorist's failure to submit to chemical
sobriety test at city detention center constituted sufficient basis for revoking his driving
privileges.
Reversed.
Frankie Sue Del Papa, Attorney General, and Matthew T. Dushoff and Jon M. Okazaki,
Deputy Attorneys General, Carson City, for Appellant.
John G. Watkins, Las Vegas, for Respondent.
Revocation of driver's license implicates protectable property interest entitling license holder to due process. U.S. Const. amend.
14.
To determine requirements of procedural due process, court must balance (1) private interest that will be affected by official
action, (2) risk of erroneous deprivation of that private interest through procedures used and probable value, if any, of additional or
substitute procedural safeguards, and (3) government's interest, including function involved and fiscal and administrative burdens that
additional or substitute procedural requirements would entail. U.S. Const. amend. 14.
3. Automobiles; Constitutional Law.
Statutory protections provided to driving under the influence (DUI) suspects under state law satisfy due process requirements. U.S.
Const. amend. 14; NRS 233B.150, 484.379-484.387.
Supreme court's role in reviewing administrative decision is identical to that of district court: to review evidence before agency so
that a determination can be made as to whether agency decision was arbitrary, capricious, or an abuse of discretion. NRS 233B.135(3).
Supreme court must affirm decision by agency that is supported by substantial evidence in record. NRS 233B.135(3).
Although courts have broad supervisory power to ensure that all relevant evidence is examined and considered by hearing officer,
findings and ultimate decisions of those officers should not be disturbed unless clearly erroneous or otherwise arbitrary and capricious.
NRS 233B.135(3).
District court may not substitute its own judgment for that of hearing officer. NRS 233B.135(3).
8. Automobiles.
Motorist's initial refusal to take chemical sobriety test is final; motorist cannot cure this refusal by making subsequent request to
take test. NRS 484.382 (1994).
9. Automobiles.
Good faith but unsuccessful effort to complete chemical sobriety test is insufficient and thus constitutes refusal to submit under
implied consent statutes. NRS 484.382 (1994).
10. Automobiles.
Motorist's failure to cause measureable reading on breath machine constituted refusal to submit under implied consent laws, even
though motorist testified that he attempted to blow into machine but had insufficient breath to do so. NRS 484.382 (1994).
11. Automobiles.
Motorist's initial refusal to consent to preliminary breath test could not be cured by his alleged subsequent decision to submit to
testing, and constituted sufficient grounds for state to revoke his license to drive. NRS 484.382 (1994).
12. Automobiles.
Motorist's failure to submit to evidentiary chemical sobriety test at city detention center constituted sufficient basis for revoking
his driving privileges. NRS 484.382 (1994).
13. Automobiles.
In light of sufficient grounds for state to revoke driver's license for refusal to submit to chemical sobriety test, fact that motorist
wrote I have on license revocation form at city detention center had no legal significance, notwithstanding motorist's claim that he
was attempting to preserve record on form. NRS 484.382 (1994).
OPINION
Per Curiam:
On April 13, 1993, Las Vegas Metropolitan Police Department Officer Kai Degner
(Degner) stopped and detained respondent Michael Allan Root (Root) for suspicion of
driving under the influence of alcohol.
influence of alcohol. Degner testified that he gave Root a three-part field sobriety test and
then asked Root to submit to a preliminary breath test. Degner testified that he gave Root
three attempts to blow into the breath device, but Root responded that he did not have enough
air to do so. Root testified that he blew air into the device, but that no readings were
registered. Degner then transported Root to the city detention center where he read Root the
Nevada implied consent warning. At the detention center, Root's driver's license was
revoked. Root subsequently appealed the revocation to the Department of Motor Vehicles and
Public Safety (DMV).
At the hearing, Root testified that, at the detention center, Degner asked him to consent to
a blood test. Root testified that he told Degner that he had an extreme fear of needles and
would therefore prefer to take a breath test. Root testified that Degner cut him off and said,
If you don't agree to a blood test, we're going to revoke your license for a year.
According to Degner, Root said:
[H]e was not going to refuse but he was not going to take a test. He said . . . he already
gave a breath test because he tried to take the preliminary breath test. I informed him
that the preliminary breath test was not an evidentiary test and that he was still required
by the DMV to take an evidentiary test consisting of blood or a breath test. He would
not give me either, continuing to state that he already attempted to take one out in the
field, the preliminary breath test.
Root testified that Degner then directed him to initial a notice of revocation [of driving
privileges] form (DLD-45). Root then placed his initials in spaces next to five separate
statements on the form. Those statements notified Root that he was required to submit to a
breath or blood test, that his refusal to submit would result in the revocation of his driving
privileges for one year, and that if he selected the breath test he would have to provide at least
two samples. The form, which is signed by Degner, indicates that Root failed to submit to an
evidentiary test.
Below the space for Root's name and address, and above the spaces for initialing, the
words I have are handwritten on the form. Root, an attorney familiar with DUI matters,
contends that he was attempting to preserve a record on the form and explain that he was not
refusing a breath test. Root testified that Degner prevented Root from completing his written
comments.
In his findings of fact, conclusions of law, and decision issued on January 14, 1995, the
DMV hearing officer determined (1) that Root had failed to submit to an evidentiary chemical
sobriety test, and (2) that Root's testimony that he was not refusing to submit to a test was
contradicted by his conduct which "spoke louder than words."
submit to a test was contradicted by his conduct which spoke louder than words. The
hearing officer affirmed the revocation of Root's driver's license.
Root appealed the hearing officer's decision to the district court. On August 22, 1994, the
district court remanded the matter to the hearing officer to specifically address the statement
I have written on the form, Root's testimony that he would have submitted to a breath test,
and Degner's testimony that he did not remember seeing Root write I have on the notice
form or remember ordering Root to cease writing.
On March 28, 1995, a second administrative hearing was held before the same hearing
officer. Root reiterated his previous testimony. On cross-examination, Root stated that he had
initialed the consent form and that Degner had warned Root that, by signing, he would lose
his driving privileges. Degner indicated that he stopped Root from writing on the notice form
because suspects are not permitted to write on the form, except to initial in the spaces
provided.
In his second written decision, the hearing officer determined that the words I have
represented a non-issue . . . or at least a non-crucial issue which had no legal
significance. He found that even if Root had finished the sentence he had allegedly wanted
to write, the result would not change. The hearing officer explained:
[Root] had already made his statement to the [police] officer that he was not taking any
tests. Merely because [Root] wanted to begin preparing his defense for the hearing or
trial that would follow, by writing exculpatory remarks on the DLD-45 form, does not
alter the fact that he had already refused, and failed to submit to required testing.
The hearing officer again affirmed the withdrawal of Root's driving privileges. Root appealed
this decision to the district court.
On September 18, 1995, the district court issued a decision and order reversing the hearing
officer. The court rested its reversal on a determination that the hearing officer's finding that
the words I have written on the form were meaningless and of no legal significance
constituted an arbitrary and capricious action. The court also noted that the DLD-45
revocation form is one-sided because it does not provide a petitioner with a safeguard against
the word of the police nor a space where a person could express himself. The court stated
that the lack of such safeguards may violate due process.
Appellant State Department of Motor Vehicles and Public Safety (DMV) has timely
appealed the district court's order.
DISCUSSION
Root contends that the Nevada statutory scheme relating to driving under the influence
(DUI) matters violates due process because (1) inadequate procedural safeguards exist to
protect drivers who do not submit to chemical sobriety tests from having their licenses
unjustly revoked and (2) DUI suspects are not permitted to preserve a written record on
license revocation forms.
[Headnotes 1, 2]
The revocation of a driver's license implicates a protectable property interest entitling the license holder to due process. State, Dep't
Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986). To determine the requirements of procedural due process,
a court must balance (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of
that private interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards,
and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirements would entail.
Id. at 236-37, 720 P.2d at 1211-12 (citing Matthews v. Eldridge, 424 U.S. 319, 334-35 (1976)). 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. Vezeris, 102 Nev. at 237, 720 P.2d at 1212.
[Headnote 3]
DUI suspects are given the opportunity to take chemical sobriety tests to determine their blood alcohol content. NRS 484.382-.385.
Driving privileges are subject to summary revocation if suspects refuse to submit to required testing or if testing reveals intoxicants in the
bloodstream in excess of legal limits. NRS 484.379-.386. Suspects may challenge this revocation in a hearing before the DMV. NRS
484.387. The determination of the DMV may be appealed to the district court. NRS 484.387(3). The district court's decision may be
appealed to this court. NRS 233B.150. We conclude that the statutory protections provided to DUI suspects under Nevada law satisfy due
process requirements. See generally Vezeris, 102 Nev. at 236-37, 720 P.2d at 1211-12. Allowing DUI suspects like Root to write upon
driver's license revocation forms does not afford them substantial additional protection from erroneous deprivation.
Root was afforded an opportunity to relate his story to a quasi-judicial officer during a full
hearing on the matter. The record shows that all other required procedures were followed.
Accordingly, we conclude that Root's due process rights were not violated.
1
The DMV contends that the hearing officer's decision is supported by substantial evidence
and therefore that the district court erred by reversing that decision.
[Headnotes 4-7]
This court's role 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. Ruggles
v. Public Service Comm'n, 109 Nev. 36, 40, 846 P.2d 299, 301 (1993) (citation omitted); see also NRS 233B.135(3). This court must
affirm a decision by the agency that is supported by substantial evidence in the record. Mishler v. State, Bd. of Med. Examiners, 109 Nev.
287, 292, 849 P.2d 291, 294 (1993). While the courts have broad supervisory power to ensure that all relevant evidence is examined and
considered by the hearing officer, the findings and ultimate decisions of those officers should not be disturbed unless clearly erroneous or
otherwise arbitrary and capricious. See NRS 233B.135(3); Maxwell v. SIIS, 109 Nev. 327, 331, 849 P.2d 267, 271 (1993). The district
court may not substitute its own judgment for that of the hearing officer. State, Dep't of Motor Vehicles v. Torres, 105 Nev. 558, 561-62,
779 P.2d 959, 961 (1989).
At the time of Root's offense, NRS 484.382 provided that a DUI suspect
shall be deemed to have given his consent to a preliminary test of his breath for the purpose of determining the alcoholic content of
his breath when the test is administered at the direction of a police officer . . . , if the officer has an articulable suspicion to believe
the person to be tested was driving [while intoxicated].
NRS 484.382(2)(1991)(amended 1995).
2
Failure to submit to such a preliminary breath test results in the revocation of the
suspect's driver's license.
__________

1
Root also argues that the district court has final appellate jurisdiction over administrative matters. We considered and rejected this
argument in the recent case of State, Dep't Mtr. Veh. v. Bremer, 113 Nev. 805, 942 P.2d 145 (1997) (holding that the supreme court has
final appellate review of agency decisions).

2
In 1995, NRS 484.382 was revised to substitute the term reasonable grounds for an articulable suspicion. 1995 Nev. Stat., ch. 546,
2 at 1883.
such a preliminary breath test results in the revocation of the suspect's driver's license. Id.
[Headnotes 8, 9]
An initial refusal to take such a chemical sobriety test is final; the suspect cannot cure this refusal by making a subsequent request to
take a test. Schroeder v. State, Dep't of Motor Vehicles, 105 Nev. 179, 182, 772 P.2d 1278, 1280 (1989). Moreover, a good faith but
unsuccessful effort to complete such a test is insufficient and thus constitutes a refusal to submit under the implied consent statutes.
State Dep't Mtr. Veh. v. Jenkins, 99 Nev. 460, 463, 663 P.2d 1186, 1188 (1983).
[Headnote 10]
Degner testified that at the time of the stop, Root stated that he wanted to perform a breath test. It appears that Root, while on the side
of the highway, attempted to blow into the machine but had insufficient breath to do so. Root's failure to cause a measurable reading on
the breath machine constitutes a refusal to submit under the implied consent laws. See id. Consequently, Root cannot now argue that there
is insubstantial evidence to revoke his license. See id.
[Headnotes 11-13]
Moreover, Root's initial refusal to consent to a preliminary breath test could not be cured by his alleged subsequent decision to submit
to testing, and constituted sufficient grounds for the State to revoke his license to drive. See Schroeder, 105 Nev. at 182, 772 P.2d at 1280.
Further, under the version of NRS 484.383 in effect at the time of the license revocation at issue, Root's failure to submit to an evidentiary
chemical sobriety test at the city detention center also constituted a sufficient basis for revoking his driving privileges. NRS 484.383(2)
(1991) (amended 1995). Given these circumstances, we conclude that the hearing officer correctly determined that the written I have on
the revocation form had no legal significance.
The record shows that, during the second hearing, the hearing officer considered all the evidence presented by Root. At both hearings,
Root conveyed his version of events and testified that he wanted to write on the revocation form that he was afraid of needles and would
have submitted to a breath test. The hearing officer apparently gave little weight to this testimony. See Greeson v. Barnes, 111 Nev. 1198,
1202, 900 P.2d 943, 946 (1994) (the weight and credibility of testimony is within the sole discretion of the trier of fact). The DLD-45
notice form contains Root's initials acknowledging that he had failed to take the test, and the form states that this refusal would result in a
revocation of his driver's license. See Jenkins, 99 Nev. at 463, 663 P.2d at 11SS {failure to perform required test constitutes a
"refusal to submit").
1188 (failure to perform required test constitutes a refusal to submit). In sum, the
testimonial and documentary evidence indicates that Root refused to take a proper chemical
sobriety test. Accordingly, we conclude that substantial evidence supports the decision of the
hearing officer.
Despite the district court's determination that the hearing officer's decision was arbitrary
and capricious, there is substantial evidence to support the administrative decision and no
indication that the hearing officer made any errors of law. We conclude that the district court
erred in disturbing the decision of the hearing officer, which was supported by substantial
evidence. See Torres, 105 Nev. at 560, 779 P.2d at 961. Accordingly, we reverse the order of
the district court and reinstate the decision of the hearing officer.
____________
113 Nev. 949, 949 (1997) Clark v. Robison
MARK BRYAN CLARK, Appellant, v. KENT ROBISON, Individually and d/b/a
ROBISON, BELAUSTEGUI, ROBB AND SHARP, and DAVID McELHINNEY,
Individually and as Partner, Employee and Agent of ROBISON, BELAUSTEGUI,
ROBB AND SHARP, Respondents.
No. 27744
August 28, 1997 944 P.2d 788
Appeal from an order granting summary judgment. Second Judicial District Court,
Washoe County; Peter I. Breen, Judge.
Client brought legal malpractice action against attorney who had represented him in
murder prosecution. The district court granted attorney's motion for summary judgment on
statute of limitation grounds. Client appealed. The supreme court held that malpractice action
did not accrue until supreme court granted post-conviction relief, and thus complaint filed
within four years of that order was timely.
Skelly & Sheehan, Reno, for Appellant.
Laxalt and Nomura, Reno; C. Frederick Pinkerton, Reno; Robison, Belaustegui, Robb &
Sharp, Reno, for Respondents.
1. Judgment.
Summary judgment is only appropriate when no genuine issues of material fact remain for trial and moving party is entitled to
judgment as matter of law.
2. Judgment.
Summary judgment is proper when cause of action is barred by statute of limitations.
In determining whether statute of limitations has run against an action, time must be computed from day the cause of action
accrued; cause of action accrues when suit may be maintained thereon.
Damages for attorney malpractice are premature and speculative until conclusion of underlying lawsuit in which professional
negligence allegedly occurred; therefore, statute of limitations begins to run when underlying litigation is concluded. NRS 11.207.
In legal malpractice case arising from criminal defense, proximate cause does not exist until post-conviction or appellate relief is
granted. Plaintiff must plead that he or she has obtained appellate or post-conviction relief in order to overcome motion for summary
judgment or motion to dismiss.
Legal malpractice claim arising from representation on murder charge did not accrue until supreme court granted post-conviction
relief, regardless of plaintiff's prior assertions of ineffective assistance at sentencing hearing and on direct appeal; thus, malpractice
claim filed within four years of supreme court's order was within statute of limitations. NRS 11.207.
OPINION
Per Curiam:
Mark Bryan Clark was convicted of murder with use of a deadly weapon in 1986, and the
conviction was affirmed on direct appeal in 1987. In 1988, Clark petitioned the district court
for post-conviction relief on the ground that he was denied effective assistance of counsel
because, at the time of his murder trial, his defense counsel was suing him in an unrelated
civil action. In 1990, the district court denied Clark's petition. This court, in 1992, reversed
the order of the district court and granted Clark post-conviction relief. In 1993, Clark was
acquitted on retrial.
Clark subsequently brought a legal malpractice action against his trial counsel. The district
court granted the trial counsel's motion for summary judgment on the ground that the
four-year statute of limitations had expired. Clark now appeals from the order granting
summary judgment.
[Headnotes 1, 2]
Summary judgment is only appropriate when no genuine issues of material fact remain for trial and the moving party is entitled to
judgment as a matter of law. Bird v. Casa Royale West, 97 Nev. 67, 624 P.2d 17 (1981). Summary judgment is proper when a cause of
action is barred by the statute of limitations.
cause of action is barred by the statute of limitations. Charleson v. Hardesty, 108 Nev. 878,
839 P.2d 1303 (1992).
[Headnotes 3, 4]
NRS 11.207 outlines the statute of limitations period for legal malpractice as four years from the time the plaintiff sustains damages
and discovers or should have discovered the material facts contributing to the cause of action. In determining whether a statute of
limitations has run against an action, the time must be computed from the day the cause of action accrued. White v. Sheldon, 4 Nev. 280,
288-89, 3-4 Nev. 739, 747-48 (1868). A cause of action accrues when a suit may be maintained thereon. Black's Law Dictionary at 19
(5th ed. 1979). Damages for attorney malpractice are premature and speculative until the conclusion of the underlying lawsuit in which the
professional negligence allegedly occurred; therefore, the statute of limitations begins to run when the underlying litigation is concluded.
K.J.B. v. Drakulich, 107 Nev. 367, 811 P.2d 1305 (1991).
[Headnote 5]
In a legal malpractice case arising from criminal defense, however, proximate cause does not exist until post-conviction or appellate
relief is granted. Morgano v. Smith, 110 Nev. 1025, 1029, 879 P.2d 735, 737 (1994). [T]he plaintiff must plead that he or she has
obtained appellate or post conviction relief in order to overcome a motion for summary judgment or a motion to dismiss. Id.
[Headnote 6]
Robison argues that Clark had discovered the malpractice at least by the time he claimed ineffective assistance of counsel at his
sentencing hearing and on direct appeal. Robison contends that this discovery coupled with the damages Clark sustained by being
convicted and imprisoned commenced the running of the statute of limitations under NRS 11.207.
Criminal defendants claiming attorney malpractice are in a distinct circumstance with regard to statutes of limitation in that their
causes of action do not accrue or become actionable until they are granted appellate or post-conviction relief.
1
See Morgano, 110 Nev.
1025
__________

1
In Day v. Zubel, we concluded that the statute of limitations commenced on the final termination of a criminal proceeding in the
claimant's favor. 112 Nev. 972, 922 P.2d 536 (1996). The final termination of Day's proceedings occurred after his petition for a writ of
habeas corpus was granted, a new trial was ordered and all criminal charges were reversed. We held that prior to [the date the conviction
was reversed], it was impossible for Day to file his claim for wrongful arrest, conviction and incarceration because he was still subject to
retrial and could have been re-convicted on the underlying [] claim. Such a conviction would have eviscerated his civil rights claims. Id.
The rationale for commencing the statute of limitations only after relief is obtained applies equally to the instant case.
Morgano, 110 Nev. 1025, 879 P.2d 735. Prior to gaining such relief, a cause of action for
legal malpractice lacks the essential element of proximate causation and therefore would not
survive a motion for summary judgment or a motion to dismiss.
Other states have addressed this issue, holding that a litigant's malpractice claim is not ripe
until post-conviction or appellate relief is granted. Once relief is granted, the statute of
limitations for legal malpractice begins to run. Shaw v. State Dept. of Admin., PDA, 816 P.2d
1358 (Alaska 1991); Stevens v. Bispham, 851 P.2d 556, 561, 566 (Or. 1993)(for a convicted
criminal to maintain a legal malpractice action against former defense counsel, plaintiff must
allege exoneration of the underlying offense through reversal on direct appeal,
post-conviction relief or other means). This court specifically adopted this no relief-no
harm approach in Morgano.
The district court's order granting summary judgment states:
I adopt the holding and reasoning in Bailey v. Tucker, 621 A.2d 108 (Pa. 1993). The
starting point for the running of the statute of limitations is when the aggrieved party
becomes aware of the malpractice. In this case, plaintiff clearly was aware of the
alleged malpractice by November 14, 1988 when he filed his post-conviction pleading
alleging ineffective counsel. This action was commenced June, 1994, two years beyond
the requirement of the statute of limitations.
We conclude that the district court's ruling is in direct contravention of Morgano. Because
Clark filed his action within four years of obtaining post-conviction relief, Robison was not
entitled to judgment as a matter of law based on the expiration of the statute of limitations.
Accordingly, we conclude that the district court erred by granting Robison's motion for
summary judgment. We therefore reverse the order of the district court and remand this case
for further proceedings.
____________
113 Nev. 952, 952 (1997) Barrios-Lomeli v. State
RUBEN BARRIOS-LOMELI, Appellant, v.
No. 27484
August 28, 1997 944 P.2d 791
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of
trafficking in a controlled substance. First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
The supreme court held that: (1) failure to obtain anticipatory warrant supported by
probable cause does not trigger prophylactic remedy of suppression of seized evidence, and
(2) no exigency existed which justified warrantless search of defendant's automobile.
Rehearing denied. Barrios-Lomeli v. State, 114 Nev.
------
,
------
P.2d
------
(Adv.
Op. No. 87, July 28, 1998)
Steven G. McGuire, State Public Defender, and James P. Logan, Chief Appellate Deputy
Public Defender, and Timothy O'Toole, Appellate Deputy Public Defender, Carson City, for
Appellant.
and John C. Eck, Deputy District Attorney, Carson City, for Respondent.
Had police applied for anticipatory search warrant, there would have been probable cause based on information from known
informant, including physical description of suspect, model and color of car he would be driving, and time and place of his arrival.
U.S. Const. amend. 4.
2. Criminal Law.
Failure to obtain anticipatory warrant supported by probable cause does not trigger prophylactic remedy of suppression of seized
evidence; such a bright line rule would place overwhelming burden on law enforcement and increase likelihood of abuse in obtaining
warrants. U.S. Const. amend. 4.
State law requires exigent circumstances to justify warrantless automobile search.
No exigency existed which justified warrantless search of defendant's automobile; officers detaining defendant for further felony
investigation could detain defendant and his automobile up to 60 minutes, during which time they could have procured telephonic
warrant. NRS 171.123(4), 179.045.
OPINION
Per Curiam:
On March 21, 1995, Adrian Obeso-Hernandez (Hernandez) was arrested for the sale of a
controlled substance. He subsequently agreed to cooperate with the Tri-Net Narcotics Task
Force (Tri-Net)
1
and provide substantial assistance in arresting other narcotic
traffickers.
__________

1
Tri-Net is a state and local narcotics task force serving Lyon County, Douglas County, and the Carson City
area.
arresting other narcotic traffickers. In exchange for his cooperation, Hernandez would receive
favorable consideration at his sentencing hearing.
On March 23, 1995, at 1:30 p.m., Hernandez telephoned appellant Ruben Barrios-Lomeli
(Lomeli) at his home in Stockton, California. Hernandez requested that Lomeli deliver four
ounces of methamphetamine to him in Carson City.
2
Lomeli agreed and informed Hernandez
that he would drive to Carson City that day and telephone him when he arrived in the
WalMart parking lot around 7:30 p.m. Lomeli further informed Hernandez that he would be
driving a red sedan with California license plates. Hernandez described Lomeli as a short,
heavy-set, five-foot-tall, 160-pound Hispanic male with short dark hair in his early to
mid-twenties.
At 6:30 p.m. on March 23, 1995, Tri-Net forces staked out the WalMart parking lot. After
waiting an hour and one-half, Lomeli had not yet arrived. At 8 p.m., Hernandez received a
phone call at his home from Lomeli who explained that he could not cross the Sierras because
of inclement weather. Hernandez then relayed this message to the police and the surveillance
was canceled.
The next day, March 24, 1995, at 10:30 a.m., Hernandez advised the police that Lomeli
had just called him at home and stated that he would be arriving in the Carson City area
within a few hours. Approximately ten officers were dispatched to the WalMart parking lot
where they awaited Lomeli's arrival.
At 12:30 p.m., a red Monte Carlo sedan with California license plates pulled into the
WalMart parking lot. Tri-Net agents immediately ran a check of the vehicle and discovered it
was registered to Sylvia Catalan of Stockton, California. The driver of the vehicle matched
the description of Lomeli. Hernandez was then brought to WalMart for identification
purposes.
While the police waited for Hernandez to arrive, the driver of the red sedan entered
WalMart with a female passenger and infant. Once inside, the driver immediately used the
telephone. The driver then ordered lunch at the McDonald's restaurant located inside
WalMart.
The driver had been sitting in the McDonald's eating area with his female companion and
the infant for fifteen minutes when four police officers approached and requested
identification. The driver produced a California identification card with the name Ruben
Barrios-Lomeli. The officers then requested that Lomeli exit the store with them to discuss
the possible delivery of methamphetamine. At that point, the officers were detaining Lomeli
for further felony investigation.
__________

2
Hernandez was familiar with Lomeli's involvement in drug sales through prior transactions.
Accordingly, Lomeli left WalMart with the officers. By that time, Hernandez had arrived
at the WalMart parking lot in an undercover police vehicle with tinted windows. As Lomeli
walked outside, Hernandez positively identified Lomeli as his source for methamphetamines.
Police then conducted a pat-down search of Lomeli but found nothing. Although Tri-Net
agents told Lomeli to identify his vehicle, he did not give consent for its search. Furthermore,
the police had no search warrant nor was there any contraband in plain view. However, the
police thoroughly searched the vehicle and discovered four ounces of methamphetamine
behind the dashboard and removable stereo. Thereafter, Lomeli was arrested for trafficking in
a controlled substance.
Following a preliminary hearing, Lomeli filed a written motion to suppress all evidence
seized from the warrantless search of his vehicle. Lomeli argued that the police should have
obtained an anticipatory search warrant. Additionally, Lomeli contended that the search was
unconstitutional because no exigency existed which justified circumventing the judicial
mechanisms for obtaining a warrant. Respondent State of Nevada (State) argued that the
warrantless search was lawful under United States Supreme Court case law and it was not
reasonably practicable to obtain an anticipatory warrant.
On June 8, 1995, the district court conducted a hearing on the motion to suppress and
denied the motion. The basis of the lower court's ruling was that probable cause existed to
search the vehicle. However, the trial court expressed no opinion about facts giving rise to
exigent circumstances.
Lomeli then entered into a plea bargain, whereby he pleaded guilty to the felony charge,
but reserved his right to appeal the lower court's ruling on the motion to suppress. In
exchange, the State recommended the minimum sentence of ten years.
Whether the State should have obtained an anticipatory search warrant
In Derouen v. State, 85 Nev. 637, 640 n.3, 461 P.2d 865, 867 n.3 (1969), this court
recognized the well-settled principle that search warrants for automobiles should be obtained
whenever reasonably practicable. In State v. Parent, 110 Nev. 114, 867 P.2d 1143 (1994), this
court, for the first and only time to date, expressly approved the concept of anticipatory
search warrants. In doing so, this court stated:
[T]he purposes of the fourth amendment are best served by permitting government
agents to obtain warrants in advance if they can show probable cause to believe that the
contraband will be located on the premises at the time that the search takes place. . . .
search takes place. . . . Anticipatory search warrants . . . in the proper circumstances,
may be an effective tool, both to fight criminal activity, and to protect individual fourth
amendment rights.
Parent, 110 Nev. at 117, 867 P.2d at 1145 (quoting United States v. Garcia, 882 F.2d 699,
703 (2nd Cir.), cert. denied sub nom., Grant v. United States, 493 U.S. 943 (1989)).
Taking the warrants-when-practicable policy in conjunction with this court's approved
practice of anticipatory warrants, Lomeli argues that the Tri-Net officers should have
obtained an anticipatory search warrant prior to searching his car. The State responds that (1)
an anticipatory search warrant never would have issued in this matter because probable cause
could not be supported solely by an informant's testimony, and (2) federal and state law
simply does not require obtaining an anticipatory search warrant.
We conclude that the State's first counter-argument, that probable cause did not exist to
support an anticipatory warrant, is without merit. In Parent, the police received an
anonymous call that Parent would be arriving at the airport with cocaine concealed in a baby
powder bottle in his luggage. Parent, 110 Nev. at 115, 867 P.2d at 1143-44. The anonymous
informant gave the police a physical description of Parent, the date and airline upon which
Parent would arrive, his social security number, FBI number, and date of birth. Based on this
information, a detective was able to confirm Parent's arrival on the date and airline. A search
warrant was issued.
[Headnote 1]
Here, Hernandez gave the police a detailed physical description of Lomeli, the model (sedan) and color of the car he would be driving,
and the time and place of his arrival. Additionally, the accuracy of the information supplied by Hernandez had a heightened degree of
credibility due to Hernandez's familiarity with Lomeli through prior drug dealings and Hernandez stood to benefit much from his
substantial assistance. Finally, unlike the informant in Parent, Hernandez was not anonymous to the police. Therefore, we conclude that
probable cause existed to support an anticipatory search warrant.
[Headnote 2]
The State asserts that even if probable cause existed to support an anticipatory search warrant, neither federal nor state law requires
police to do so. Although the State is correct in its assertion, its position does not comport with the strong public policy favoring warrants
when practicable. However, Lomeli fails to cite any authority, binding or otherwise, which supports the proposition that failure to
obtain an anticipatory warrant supported by probable cause triggers the prophylactic remedy of suppression.
the proposition that failure to obtain an anticipatory warrant supported by probable cause
triggers the prophylactic remedy of suppression. Cunningham v. State, 94 Nev. 128, 130, 575
P.2d 936, 937 (1978) (declining to entertain novel propositions of law unsupported by
relevant authority).
Further, if this court fashioned such a bright line rule, we would place an overwhelming
burden on law enforcement and increase the likelihood of abuse in obtaining warrants. See
United States v. Garcia, 882 F.2d 699, 703-04 (2nd Cir. 1988). This we decline to do.
Accordingly, we conclude that although the State could have obtained an anticipatory search
warrant, its failure to do so does not require suppression of the seized evidence.
Whether exigent circumstances existed to justify a warrantless search of Lomeli's vehicle
Warrantless searches are per se unreasonable under the Fourth Amendment subject only
to a few specifically established and well delineated exceptions. Katz v. United States, 389
U.S. 347, 357 (1967). In Carroll v. United States, 267 U.S. 132, 151-52 (1925), the Supreme
Court carved out one of those exceptions by holding that warrantless searches of automobiles
were permitted when two criteria were satisfied: (1) the police had probable cause to believe
that evidence of a crime was present in the vehicle, and (2) exigent circumstances existed to
believe the car would be removed from the area.
[Headnote 3]
The State correctly notes, and Lomeli concedes, that the United States Supreme Court abandoned the exigency requirement in
California v. Carney, 471 U.S. 386 (1985). However, Nevada, like other state high courts,
3
continues to adhere to the requirement that
exigent circumstances must be present to justify a warrantless automobile search. State v. Harnisch, 113 Nev. 214, 222, 931 P.2d 1359,
1365 (1997).
As recently as January 1997, this court held in Harnisch that exigent circumstances did not exist to justify a warrantless search of an
automobile because the car was not readily movable. Harnisch, 113 Nev. at 213, 931 P.2d at 1365. Thus, it is clear that Nevada still
requires a showing of exigent circumstances. Therefore, in the present matter, the lower court's reliance exclusively on federal law to uphold
the warrantless search was error. Michigan v. Long, 463 U.S. 1032, 1041 (1983); Bowyer v. Taack, 107 Nev. 625, 628-29, 817 P.2d 1176,
1178 (1991).
__________

3
See, e.g., State v. Miller, 630 A.2d 1315, 1322-26 (Conn. 1993); State v. Kock, 725 P.2d 1285, 1287 (Or. 1986); State v. Larocco, 794
P.2d 460, 469 (Utah 1990); and State v. Patterson, 774 P.2d 10, 11-12 (Wash. 1989).
Nevertheless, this court may still uphold the warrantless search of Lomeli's car if exigent
circumstances are present in the record. Thus, the dispositive issue in this case is whether the
narcotics, located in Lomeli's car, were evanescent when his vehicle was searched. In other
words, were the drugs likely to disappear before a warrant could be secured.
The only offer of exigency advanced by the State was that Lomeli's girlfriend could have
driven the vehicle out of the WalMart parking lot. In contrast, Lomeli argues that the vehicle,
like himself, was seized for further felony investigation.
NRS 171.123(3) states that any peace officer lawfully detaining an individual under this
statute may do so only to ascertain his identity and the suspicious circumstances
surrounding his presence abroad. (Emphasis added.) In State v. Wright, 104 Nev. 521, 523,
763 P.2d 49, 50 (1988), this court recognized that a vehicle may be detained if the officer
reasonably believes it is involved in criminal activity. Furthermore, the Nevada Attorney
General advocates that a police officer may detain individuals while a search warrant is
secured. Nev. Op. Atty. Gen. No. 88-3 (3-29-1988).
In this case, it is undisputed that Lomeli was being detained for further felony
investigation. When the pat-down search of Lomeli failed to reveal the presence of narcotics,
the police immediately focused on the vehicle. Pursuant to NRS 171.123 and Wright the
police were justified in detaining Lomeli and his automobile for a maximum of sixty
minutes. Thus, no individual could get in the car, drive away, and carry off the narcotics.
[Headnote 4]
Under these circumstances, we conclude that no exigency existed which justified a warrantless search of Lomeli's car. The one-hour
statutory period prescribed in NRS 171.123(4) should have provided the Tri-Net agents with an opportunity to procure a telephonic warrant
pursuant to NRS 179.045.
4
If, however, one hour would have been insufficient to secure a warrant, an exigency may have arisen.
Nevertheless, this issue is never reached because it is undisputed that Tri-Net agents did not even attempt to obtain a search warrant.
Because this omission is wholly inconsistent with the well-grounded policy encouraging warrants when feasible, we cannot condone such
behavior. Therefore, we conclude that the trial court erred in failing to grant Lomeli's motion to suppress.
Accordingly, we remand this matter to the district court for further proceedings not inconsistent with this opinion.
__________

4
NRS 179.045(2) provides in relevant part: In lieu of the affidavit required by subsection 1, the magistrate may take an oral statement
given under oath . . . . (Emphasis added.)
I agree that the failure to obtain an anticipatory search warrant did not require suppression
of the evidence seized in this case. I do not agree, however, that the evidence should have
been suppressed for lack of exigent circumstances.
____________
113 Nev. 959, 959 (1997) Reeves v. State
VICTOR LEE REEVES, Appellant, v. THE
No. 25242
August 28, 1997 944 P.2d 795
Proper person appeal from an order of the district court denying a petition for
post-conviction relief. Sixth Judicial District Court, Humboldt County; Richard Wagner,
Judge.
Defendant who had been convicted of second-degree murder following entry of guilty plea
petitioned for post-conviction relief on basis of ineffective assistance of counsel. The district
court denied petition, and defendant appealed. The supreme court held that: (1) statute
governing guilty pleas did not allow defendant to withdraw plea of guilty to murder charge,
and (2) alleged ineffectiveness by counsel in allowing judge to enter into plea negotiations
did not prejudice defendant.
Affirmed.
Victor Lee Reeves, In Proper Person, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; R. Michael McCormick, District
Attorney, Humboldt County, for Respondent.
1. Criminal Law.
To state claim of ineffective assistance of counsel sufficient to invalidate judgment of conviction based on guilty plea, defendant
must demonstrate that his counsel's performance fell below an objective standard of reasonableness, and also must demonstrate
reasonable probability that, but for counsel's errors, defendant would not have pleaded guilty and would have insisted on going to trial.
U.S. Const. amend. 6.
2. Criminal Law.
Under statute governing guilty pleas, provisions governing plea of guilty to crime divided into degrees, or to charge of first-degree
murder, applied to the exclusion of former provision governing other offenses, under which withdrawal of plea by defendant was
allowed, and thus, if plea was for charge of crime divided into degrees or for first-degree murder, defendant could not withdraw plea if
term greater than that recommended was imposed. NRS 174.065(3) (Repealed).
3. Criminal Law.
Allegedly ineffective assistance by counsel in allowing judge to enter into plea negotiations by rejecting proffered plea agreement
and amending it did not prejudice defendant, and thus did not entitle defendant who had entered guilty plea to murder charge to relief
based on ineffective assistance of counsel. It was highly unlikely that defendant would have insisted on going to trial absent alleged
error, in light of fact that he was apprehended with murder weapon, admitted being with victim earlier on evening of murder, and was
in possession of money taken from victim. U.S. Const. amend. 6.
OPINION
Per Curiam:
On March 2, 1992, the district court convicted appellant, pursuant to a guilty plea, of one
count of second degree murder. The district court sentenced appellant to serve a term of life
in the Nevada State Prison with the possibility of parole after five years. Pursuant to a
stipulation by the parties, this court dismissed appellant's direct appeal. Reeves v. State,
Docket No. 23119 (Order Dismissing Appeal, July 15, 1992). Appellant filed a petition for
post-conviction relief on November 17, 1992. The district court appointed counsel and
conducted an evidentiary hearing, after which appellant's petition was denied. Appellant
contends that the district court erred by denying his petition.
[Headnote 1]
In his petition, appellant contended that, at the time of the entry of his plea and during his direct appeal, his counsel was ineffective. To
state a claim of ineffective assistance of counsel sufficient to invalidate a judgment of conviction based on a guilty plea, appellant must
demonstrate that his counsel's performance fell below an objective standard of reasonableness. Further, appellant must demonstrate a
reasonable probability that, but for counsel's errors, appellant would not have pleaded guilty and would have insisted on going to trial. See
Hill v. Lockhart, 474 U.S. 52 (1985); Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004 (1985).
First, appellant argued that counsel was deficient because she allowed modification of the plea agreement. Appellant was charged with
assault with a deadly weapon, open murder, and conspiracy to commit murder. Pursuant to the plea agreement, the state agreed to dismiss
the assault and conspiracy charges and appellant agreed to plead guilty to second degree murder. The plea agreement further stated that the
state would recommend a sentence of fifteen years in the Nevada State Prison, and [p]ursuant to NRS 174.065{3)[1] if the Court
rejects the recommendation of fifteen {15) years and wishes to impose a greater penalty then the defendant
may withdraw his plea."
suant to NRS 174.065(3)

[
1
] if the Court rejects the recommendation of fifteen (15) years
and wishes to impose a greater penalty then the defendant may withdraw his plea. At the
arraignment, the district court informed appellant that the district court did not intend to be
bound by the recommendation of the state. The district court reasoned that NRS 174.065(3)
did not apply in the instant case, because appellant was charged with a crime divided into
degrees. The district court concluded that NRS 174.065(1) applied, to the exclusion of NRS
174.065(3). Accordingly, the district judge amended the plea agreement by interlineation so
that it provided that appellant could not withdraw his plea in the event of imposition of a
sentence greater than that recommended.
The district court then allowed a five minute recess so that appellant could confer with his
counsel and decide whether he still wished to enter a guilty plea. After the recess, appellant
informed the district court that he still wished to plead guilty pursuant to the agreement.
[Headnote 2]
Appellant contended below that his counsel should have argued against the district court's refusal to be bound by the agreement.
However, we conclude that the district court's analysis regarding the application of NRS 174.065(3) was correct. NRS 174.065(3) stated
that it applied [o]n a plea of guilty or nolo contendere to another offense . . . . (emphasis added). We hold that this wording means that if
subsection one (applying to crimes divided into degrees) and subsection two (applying only to first degree murder) do not apply, then
subsection three comes into play.
__________

1
NRS 174.065 formerly provided:
Except as otherwise provided in NRS 174.061:
1. On a plea of guilty to an information or indictment accusing a defendant of a crime divided into degrees, when consented
to by the prosecuting attorney in open court and approved by the court, the plea may specify the degree, and in such event the
defendant shall not be punished for a higher degree than that specified in the plea.
2. On a plea of guilty to an indictment or information for murder of the first degree, when consented to by the prosecuting
attorney in open court and approved by the court, the plea may specify a punishment less than death. The specified punishment, or
any lesser punishment, may be imposed by a single judge.
3. On a plea of guilty or nolo contendere to another offense, the defendant and the district attorney may agree to recommend
an appropriate punishment. The court may defer its decision upon the recommendation until it has considered the presentence
report. If the court accepts the recommendation, it shall impose the specified punishment or a lesser punishment. If the court
rejects the recommendation, the defendant may withdraw the plea.
On June 24, 1993, section 3 of NRS 174.065 was repealed.
This court has previously considered NRS 174.065(3) in two published opinions: Stahl v.
State, 109 Nev. 442, 851 P.2d 436 (1993); Lovie v. State, 108 Nev. 488, 835 P.2d 20 (1992).
Stahl dealt with a plea of guilty to being under the influence of a controlled substance, and
Lovie dealt with a plea of guilty to third offense driving under the influence. The offenses in
Stahl and Lovie were other offenses within the meaning of NRS 174.065(3), so this court
has never addressed the issue of whether NRS 174.065(3) applied to a crime which is also
included within subsection one. Because the district court correctly interpreted the statute,
appellant's attorney's failure to object to the interpretation did not constitute sub-standard
performance.
[Headnote 3]
Reeves also argues that his attorney was ineffective because she allowed the judge to modify the plea agreement. In essence, the district
judge entered into the plea negotiations, by rejecting the proffered plea agreement and amending it. We conclude that even if Reeves'
attorney's performance was deficient because she failed to object, Reeves cannot show prejudice. It is highly unlikely that appellant would
have insisted on going to trial, in light of the fact that appellant was apprehended with the murder weapon, he admitted having been with
the victim earlier in the evening of the murder, and he was in possession of money taken from the victim's wallet.
Appellant also argued that his counsel was deficient because she stipulated to dismiss appellant's direct appeal without informing
appellant or obtaining his permission. We conclude that this argument is belied by the record. At the evidentiary hearing, counsel testified
as to her conversation with appellant regarding the dismissal of the appeal, and also provided phone records which showed a thirty minute
collect phone call from appellant less than a week before the stipulation to dismiss was filed with this court.
In light of the above, we conclude that the district court did not err in denying appellant's petition. Because appellant cannot
demonstrate error on appeal, briefing and oral argument are not warranted. Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911
(1975), cert. denied, 423 U.S. 1077 (1976). Accordingly, the judgment of the district court is affirmed.
2
__________

2
Although appellant has not been granted permission to file documents in this matter in proper person, see NRAP 46(b), we have
received and considered appellant's proper person documents. We conclude that the relief requested is not warranted.
____________
113 Nev. 963, 963 (1997) Anderson v. Baltrusaitis
NELS WALDO ANDERSON, Appellant, v.
JOSEPH BALTRUSAITIS, Respondent.
No. 26632
August 28, 1997 944 P.2d 797
Appeal from an order of the district court granting summary judgment in a personal injury
action. Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Pedestrian sued motorist for injuries sustained when he was struck, outside of unmarked
crosswalk, by vehicle while crossing street at intersection. The district court granted summary
judgment for motorist. Pedestrian appealed. The supreme court held that: (1) pedestrian's
violation of statute requiring that pedestrians crossing highway outside of unmarked
crosswalk yield right of way to vehicles did not preclude his recovery since statute was not
intended to protect motorists from careless pedestrians, and (2) genuine issues of fact as to
whether motorist had statutory duty to decrease his speed, whether duty was breached, and
whether pedestrian was comparatively negligent precluded summary judgment for motorist.
Perry & Spann and Douglas J. Gardner, Las Vegas, for Appellant.
Pearson & Patton, Las Vegas, for Respondent.
1. Automobiles.
Pedestrian's violation of statute providing that pedestrian crossing highway at point other than within crosswalk at intersection
shall yield right of way to all vehicles did not automatically preclude pedestrian's recovery for injuries sustained when he was struck by
motorist's vehicle while crossing street outside unmarked crosswalk' at intersection; statute was intended to increase safety of
pedestrians crossing in unmarked crosswalks, and thus motorist was not member of class of persons statute was intended to protect.
NRS 484.327(3).
2. Negligence.
Liability under negligence per se theory is in general a question of fact for jury.
3. Judgment.
Genuine issues of fact as to whether motorist had statutory duty to decrease his speed as he approached intersection located beside
casino, whether motorist breached any duty, and whether pedestrian was comparatively negligent precluded summary judgment for
motorist in pedestrian's action for injuries sustained when he was struck by vehicle as he crossed street five to ten feet outside
unmarked crosswalk area. NRS 41.141(1), 484.327(1), 484.363.
4. Negligence.
Party's negligence is generally considered issue of fact for jury to decide.
OPINION
Per Curiam:
On January 2, 1993, at approximately 6:40 p.m., appellant was struck and injured by
respondent's vehicle as he crossed a street at an intersection. The crosswalk at the intersection
where the accident occurred was not marked by lines or other markings.
1
Respondent and
appellant were the only eyewitnesses to the accident; however, appellant's injuries have left
him unable to care for himself or communicate about the accident.
On June 18, 1993, appellant filed a complaint for negligence against respondent.
Depositions were taken of respondent, the investigating police officers, and appellant's expert
witness. The deposition testimony, police report, and respondent's expert witness's report all
indicated that appellant was approximately five to ten feet outside the unmarked crosswalk
area when he was struck by respondent. On September 8, 1994, respondent filed a motion for
summary judgment, contending that no genuine issues of material fact existed, and that
respondent was entitled to judgment as a matter of law pursuant to NRS 484.327,
2
which
requires that pedestrians yield to motor traffic outside of marked or unmarked crosswalk
areas.
The district court granted respondent's motion for summary judgment by order entered
November 30, 1994. The district court concluded that appellant failed to yield to respondent
outside of an unmarked crosswalk area, and that this causal negligence rises above the 50%
level. This appeal followed.
Summary judgment is only appropriate when, after a review of the record viewed in a light
most favorable to the non-moving party, there remain no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law.
__________

1
Crosswalk defined. Crosswalk means:
1. That part of a highway at an intersection included within the connections of the lateral lines of the
sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the
edges of the traveled portions of highways; or
2. Any portion of a highway at an intersection or elsewhere distinctly indicated for pedestrian
crossing by lines or other markings on the surface.
The parties' references to the unmarked crosswalk area thus refer to the part of the road at the intersection
defined as a crosswalk under NRS 484.043(1).

2
1. Every pedestrian crossing a highway at any point other than within a marked crosswalk or within
an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the highway.
party, there remain no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Harrington v. Syufy Enterprises, 113 Nev. 246, 248, 931 P.2d
1378, 1379 (1997) (citing Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663
(1985)). The party opposing summary judgment must set forth specific facts showing that
there is a genuine issue for trial. Michaels v. Sudeck, 107 Nev. 332, 334, 810 P.2d 1212,
1213-14 (1991) (citing Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 415, 633 P.2d
1220, 1221 (1981)). This court is generally reluctant to affirm the granting of summary
judgment in negligence cases. Harrington, 113 Nev. at 248, 931 P.2d at 1380; Riley v. OPP
IX L.P., 112 Nev. 826, 830, 919 P.2d 1071, 1074 (1996). Generally, the question of whether
a defendant was negligent in a particular situation is a question of fact for the jury to resolve.
Zugel v. Miller, 100 Nev. 525, 528, 688 P.2d 310, 313 (1984).
Appellant contends that the district court erred in concluding that no genuine issues of
material fact existed, and that respondent was entitled to judgment as a matter of law. After
reviewing the record on appeal, we conclude that appellant is correct.
Respondent asserted below that he is within the class of persons that NRS 484.327(1) is
intended to protect; thus, according to respondent, appellant's failure to yield to respondent in
an unmarked crosswalk constituted negligence per se and entitled respondent to judgment as
a matter of law. The district court apparently agreed with respondent in concluding that the
Plaintiff pedestrian failed to yield and that this causal negligence rises above the 50% level.
However, appellant's apparent violation of NRS 484.327(1) does not bar his recovery as a
matter of law.
[Headnotes 1, 2]
In Ashwood v. Clark County, 113 Nev. 80, 86, 930 P.2d 740, 744 (1997), this court held as follows:
A violation of statute establishes the duty and breach elements of negligence only if the injured party belongs to the class of
persons that the statute was intended to protect, and the injury is of the type against which the statute was intended to protect.
Sagebrush Ltd. v. Carson City, 99 Nev. 204, 208, 660 P.2d 1013, 1015 (1983).
NRS 484.327(1) was enacted to increase the safety of pedestrians crossing in unmarked crosswalks, not to protect motorists from careless
pedestrians. Thus, respondent is not a member of the class of persons that NRS 484.327(1) was intended to protect, and appellant's
violation of that statute does not automatically preclude his recovery for injuries caused by respondent's negligence. Further, liability under
a negligence per se theory . . . is in general a question of fact for a jury."
in general a question of fact for a jury. Zugel, 100 Nev. at 527, 688 P.2d at 312 (citations
omitted). Accordingly, summary judgment should not have been granted based on appellant's
apparent violation of NRS 484.327(1).
[Headnote 3]
In the present case, appellant was struck as he crossed the street at an intersection. Further, the evidence in the record on appeal
indicates that the intersection is located beside a casino, and that the casino lights may have made pedestrians crossing the intersection
particularly visible to motorists. NRS 484.363 provides in pertinent part:
Duty of driver to decrease speed under certain circumstances. The fact that the speed of a vehicle is lower than the prescribed
limits does not relieve a driver from the duty to decrease speed when approaching and crossing an intersection . . . or when special
hazards exist or may exist with respect to pedestrians or other traffic.
Thus, respondent may have had a duty under NRS 484.363 to decrease his speed as he approached the intersection.
In two somewhat similar cases, Johnson v. Brown, 77 Nev. 61, 359 P.2d 80 (1961), and Fennell v. Miller, 94 Nev. 528, 583 P.2d 455
(1978), both of which arose before the adoption of comparative negligence in NRS 41.141, this court held that summary dismissal of the
pedestrian plaintiffs' actions against the defendant drivers was appropriate. In both cases, this court concluded that the drivers had no
reason to anticipate that pedestrians might be crossing a darkened street in the middle of a block. Johnson, 77 Nev. at 66, 359 P.2d at 82;
Fennell, 94 Nev. at 531, 583 P.2d at 457. First, as Johnson and Fennell were decided before application of comparative negligence, their
analysis does not provide guidance in a comparative negligence case.
3
Further, although in the instant case no evidence suggested that
respondent was speeding or violating any other traffic laws when he struck appellant, respondent hit appellant while he was crossing near
an intersection. Accordingly, unlike Johnson and Fennell, it cannot be said that respondent could not have anticipated pedestrian traffic at
that intersection. It is only when different minds can reasonably arrive at but one result that a fact issue becomes a question of law,
justifying a district court in taking the issue from the jury. Nehls v. Leonard, 97 Nev. 325, 329, 630 P.2d 258, 261 (1981) {citing
Montgomery v. Morgenson, 515 P.2d 746, 74S {Kan.
__________

3
Under the doctrine that existed prior to the enactment of NRS 41.141, any negligence on the plaintiff's part would bar recovery. Thus,
if this were a pre-comparative negligence case, the trial court would have been correct in granting summary judgment.
(citing Montgomery v. Morgenson, 515 P.2d 746, 748 (Kan. 1973)).
Additionally, the fact that respondent was not speeding or violating other traffic laws at the
time of the accident does not preclude a finding that respondent's actions constituted a breach
of his duty of care. In Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 1104, 864 P.2d 796,
801 (1993), this court held:
The determination of whether there has been a breach of duty is generally a question for
the jury. This court has stated [l]itigants are not to be deprived of a trial on the merits
if there is the slightest doubt as to the operative facts. Perez v. Las Vegas Medical
Center, 107 Nev. 1, 4, 805 P.2d 589, 590 (1991).
[Headnote 4]
NRS 41.141(1) provides that the comparative negligence of a plaintiff does not bar recovery if that negligence was not greater than the
negligence of a defendant. See Harrington, 113 Nev. At 249, 931 P.2d at 1380. In Nevada, a party's negligence is generally
considered an issue of fact for the jury to decide. Shepard v. Harrison, 100 Nev. 178, 180, 678 P.2d 670, 672 (1984); see also NRS
41.141(2) (judge shall instruct jury to determine comparative negligence of the parties). Under the circumstances presented here, the district
court erred in finding as a matter of law that appellant was more than fifty percent negligent.
We conclude, therefore, that genuine issues of material fact exist concerning respondent's duty to appellant and potential breach thereof
and appellant's comparative negligence; thus, respondent is not entitled to judgment as a matter of law. This conclusion is consistent with
our reluctance to affirm summary judgment in negligence cases and our policy of deciding cases on their merits. Riley v. OPP IX L.P., 112
Nev. at 832, 919 P.2d at 1075. Accordingly, we reverse the order of the district court granting respondent's motion for summary judgment
and remand this matter to the district court for further proceedings.
____________
113 Nev. 967, 967 (1997) Reingold v. Wet 'n Wild Nevada, Inc.
RONALD J. REINGOLD, Appellant, v. WET 'N WILD
NEVADA, INC., a Nevada Corporation, Respondent.
No. 27684
August 28, 1997 944 P.2d 800
Appeal from a judgment pursuant to a jury verdict. Eighth Judicial District Court, Clark
County; Addeliar D. Guy, Judge.
Patron sued owners of waterpark for injuries sustained in slip and fall in pool. Upon jury
verdict, the district court entered judgment for waterpark. Patron appealed. The supreme
court, Shearing, C. J., held that: (1) evidence of subsequent accidents at waterpark were not
admissible to prove waterpark's knowledge of dangerous condition, and (2) waterpark's
deliberate destruction of records concerning prior accidents at waterpark before statute of
limitations had run on incidents described in records was willful suppression of evidence,
such that patron was entitled to requested instruction that jury could draw adverse inference
from destruction.
Young, J., dissented.
Jason A. Awad & Associates and John P. Kelleher, Las Vegas, for Appellant.
William B. Palmer, II, Las Vegas, for Respondent.
1. Negligence.
Evidence of subsequent accidents may not be admitted to demonstrate defendant's knowledge of condition prior to instant
accident.
2. Evidence.
Evidence of subsequent accidents at waterpark were not admissible for purpose of proving waterpark's knowledge of dangerous
condition in patron's action for personal injuries sustained in slip and fall in pool.
3. Trial.
Waterpark's destruction of records concerning prior accidents at park before statute of limitations had run on incidents described
in those records was willful suppression of evidence, even though records were destroyed pursuant to waterpark's normal policy, such
that patron was entitled to requested instruction that jury could draw adverse inference against waterpark from destruction in personal
injury action arising out of waterpark accident. NRS 47.250(3).
4. Evidence.
Generally, when relevant evidence is destroyed, trier of fact may draw adverse inference from destruction. NRS 47.250(3).
5. Evidence.
Trial court has broad discretion to permit trier of fact to draw adverse inference from party's destruction of relevant evidence. NRS
47.250(3).
OPINION
In early July 1989, appellant Ronald J. Reingold (Reingold) and his son, Kevin Reingold
(Kevin), visited Las Vegas from their home in New York.
their home in New York. On the morning of July 6, 1989, Reingold, Kevin, and two friends
arrived at the waterpark owned by respondent Wet 'N Wild Nevada, Inc. (Wet 'N Wild).
After enjoying two waterpark rides, the group decided to go on The Flumes, which was a very
steep slide. After Reingold descended the slide, he landed in the catch pool at the bottom and
proceeded to walk toward the edge of the pool to exit. The outermost part of the pool consists
of an upward incline ending at the top of the pool in a rolled edge, leading to the concrete
sidewalk surrounding the pool. A railing is situated on the sidewalk a few feet from the edge
of the pool.
As he was walking up the incline toward the edge of the pool, Reingold was looking ahead
when he suddenly slipped and fell, causing excruciating pain on his left side. When he tried to
get up, the pain was so bad, he fell again, scraping his left knee on the concrete. He yelled for
Kevin, who helped him over to the railing. Wet 'N Wild personnel took Reingold to the first
aid station until an ambulance arrived and took him to the hospital. Reingold had suffered a
broken left hip which required surgery that evening.
Reingold filed a complaint against Wet 'N Wild for negligence. After a trial in March,
1995, the jury returned a verdict for Wet 'N Wild and against Reingold, finding that Reingold
was eighty percent at fault while Wet 'N Wild was only twenty percent negligent. Reingold
appealed. The principal issues for this court to consider concern records of other accidents at
Wet 'N Wild. In view of our decision on these issues, it is unnecessary to consider the
remaining arguments.
Before trial, Reingold filed a motion titled Motion in Limine as to Defendant's
Knowledge of Existence of Dangerous Condition, asking the district court to admit evidence
of both prior and subsequent accidents occurring at Wet 'N Wild. Both the title of the motion
and the cases cited in support of the motion focused on the evidence being necessary to show
the defendant's prior knowledge of a dangerous condition. Subsequent accidents are irrelevant
on the issue of prior notice. Consequently, the district court denied the admission of evidence
regarding subsequent accidents. Reingold now argues that the district court's refusal to admit
the evidence of the subsequent accidents was error.
[Headnotes 1, 2]
This court has previously held that evidence of subsequent, similar accidents involving the same condition may be relevant on the
issues of causation and whether there is a defective and dangerous condition. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 415, 470 P.2d
135, 139 (1970). However, evidence of subsequent accidents may not be admitted to demonstrate a defendant's knowledge of the
condition prior to the instant accident. See id.; B.E.
knowledge of the condition prior to the instant accident. See id.; B.E. Witkin, California
Evidence 353 (2d ed. 1966). Since Reingold's motion sought to introduce evidence of
subsequent accidents for the purpose of proving Wet 'N Wild's knowledge of the dangerous
condition, the trial court was correct in denying the admission of the subsequent accidents as
irrelevant on that issue.
Before trial, Reingold propounded interrogatories upon Wet 'N Wild regarding any slip
and fall accidents occurring between July 1984 and July 6, 1989. At trial, Gary Daning, the
general manager of Wet 'N Wild, testified that any first aid logs are routinely destroyed every
season. Therefore, the logs for 1989 and prior would have already been destroyed well before
Wet 'N Wild received the July 3, 1991 complaint commencing suit.
At trial Reingold asked for the following jury instruction:
Where relevant evidence which would properly be part of the case is within the control
of the party whose interest it would naturally be to produce it, and he fails to do so,
without satisfactory explanation, the jury may draw an inference that such evidence
would have been unfavorable to him.
[Headnote 3]
The district court refused to give the proffered instruction on the grounds that there was no intent to willfully suppress the logs. NRS
47.250(3) does provide for a disputable presumption [t]hat evidence willfully suppressed would be adverse if produced. The district court
apparently believed that willful suppression requires more than following the company's normal records destruction policy. We disagree.
There is no dispute that the records were willfully or intentionally destroyed. Wet 'N Wild claimed that all records are destroyed at the end
of each season. This policy means that the accident records are destroyed even before the statute of limitations has run on any potential
litigation for that season. It appears that this records destruction policy was deliberately designed to prevent production of records in any
subsequent litigation. Deliberate destruction of records before the statute of limitations has run on the incidents described in those records
amounts to suppression of evidence. If Wet 'N Wild chooses such a records destruction policy, it must accept the adverse inferences of the
policy.
[Headnote 4]
Generally, when relevant evidence is destroyed, a trier of fact may draw an adverse inference from the destruction. Akiona v. U.S., 938
F.2d 158, 161 (9th Cir. 1991).
[Headnote 5]
A trial court has broad discretion to permit such an adverse inference. Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). In
Glover, a jury instruction appeared to state that a finding of bad faith was a prerequisite to drawing an adverse inference. The Ninth Circuit
noted that simple notice of potential relevance to the litigation' was sufficient, and ordered the trial court to clarify the instruction on
remand. Id. at 1329-30 (quoting Akiona, 938 F.2d at 161).
There are two policy rationales for the adverse inference. First, the evidentiary rationale springs from the notion that a party with
notice of an item's possible relevance to litigation who proceeds nonetheless to destroy it is more likely to have been threatened by the
evidence than a party in the same position who does not destroy it. Welsh v. U.S., 844 F.2d 1239, 1246 (6th Cir. 1988). The second
rationale acts to deter parties from pretrial spoliation of evidence and serves as a penalty, placing the risk of an erroneous judgment on the
party that wrongfully created the risk. Id. (quotation omitted). Both rationales seem to apply to Wet 'N Wild.
For the foregoing reasons, we reverse the judgment of district court and remand for a new trial.
Springer and Maupin, JJ., concur.
Rose, J., concurring:
I concur with the majority and find two additional reasons why this case should be reversed and remanded for a new trial. First, the trial
court refused to admit evidence of two accidents subsequent to the incident in question; and second, the nurse employed by Wet 'N Wild
deliberately informed the jury that Reingold was receiving Medicare benefits after specifically being told by the court and her attorney not
to mention this collateral source of assistance.
This court has held that evidence of subsequent, similar accidents involving the same [condition] are relevant to causation and a
defective and dangerous condition. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 415, 470 P.2d 135, 139 (1970). However, this holding was
in reference to a strict product liability claim, not a negligence claim as is the one in the present matter. See id. In reaching its conclusion
regarding subsequent accidents, this court was persuaded by the discussion in a California treatise which did not limit subsequent
occurrences to only strict liability cases: "The relevancy of other accidents, whether prior or subsequent, depends on
the purpose for which the evidence is offered.
The relevancy of other accidents, whether prior or subsequent, depends on the purpose
for which the evidence is offered. A subsequent accident would not be relevant on the
issue of knowledge or notice of a possibly dangerous condition at the time of the injury
giving rise to the action. But a subsequent accident at the same or a similar place, under
the same or similar conditions, is just as relevant as a prior accident to show that the
condition was in fact dangerous or defective, or that the injury was caused by the
condition.
Id. (quoting B.E. Witkin, California Evidence 353 (2d ed. 1966)); see also B.E. Witkin,
California Evidence 389 (3d ed. 1986).
Additionally, Ault v. International Harvester Company, 528 P.2d 1148, 1153 (Cal. 1974),
held that the lower court did not err by admitting evidence of both prior and subsequent
accidents to prove a defective condition or cause of the accident. The court noted that the
purpose of providing evidence of the other accidents was to show that all the accidents,
including the one in litigation, occurred due to the dangerous condition. Id.
The United States Supreme Court stated that:
[The other accidents] were proved simply as circumstances which, with other evidence,
tended to show the dangerous character of the sidewalk . . . . The frequency of accidents
at a particular place would seem to be good evidence of its dangerous characterat
least, it is some evidence to that effect.
District of Columbia v. Arms, 107 U.S. 519, 524-25 (1883) (emphasis added). Although the
Court did not indicate whether the other accidents were prior or subsequent, I believe that the
occurrence of either type of accident should be good evidence of its dangerous character.
Id.
Reingold was receiving Medicare benefits that covered some of the expenses for his
injuries, and Wet 'N Wild's attorney instructed its on-site nurse not to mention this fact when
she testified. When she was asked what Reingold listed as his occupation, she responded, He
said he was disabled. And his insurance was Medicare. This statement was both
non-responsive and in violation of the court's order. Post-trial, three of the eight jurors
indicated that Medicare was openly discussed in jury deliberations. When a witness
representing one of the parties deliberately violates a court order and brings before the jury
evidence that is prejudicial to the other party, serious sanctions should be imposed. In this
case, the reversal of the judgment in Wet 'N Wild's favor would be appropriate.
Reversal and retrial of this case is mandated because of the reason stated by the majority
and the additional errors made by the trial court that I have cited.
Young, J., dissenting:
Because I believe the district court did not err in refusing to supply the adverse inference
jury instruction, I respectfully dissent.
The majority correctly points out that a disputable presumption, evidence willfully
suppressed would be adverse if produced, exists in our statutory scheme. NRS 47.250(3).
Therefore, if the trial court finds that relevant evidence is willfully suppressed, the
presumption arises. Thus, a trial court . . . has the broad discretionary power to permit a jury
to draw an adverse inference from the destruction or spoliation against the party or witness
responsible for that behavior. Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993)
(emphasis added). I emphasize that the trial court possesses broad discretion in determining
whether it finds that an adverse inference jury instruction is warranted under the specific
facts of a case.
The majority seemingly superimposes its judgment over that of the district court by
concluding that simple housecleaning removal of apparently unimportant first aid logs is a
willful suppression of documents necessary to Reingold's litigation. I cannot join the
majority in usurping the district judge's role in implementing his discretion and view of the
facts. See Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 595
(1990) (holding that a trial court's findings of fact will not be overturned absent clear error).
Willful is defined as done deliberately and intentional. Webster's Ninth New
Collegiate Dictionary 1350 (1983). To me, willfully suppressing the logs means that Wet 'N
Wild purposely, deliberately, knowingly, intentionally sought to frustrate Reingold's efforts at
a successful litigation against Wet 'N Wild. I do not believe that the record reflects this type
of conduct. Rather, I am in agreement with the lower court, which had the opportunity to
observe the demeanor and evaluate the credibility of the witnesses, that Wet 'N Wild
innocently chose to routinely destroy the first aid logs.
Additionally, the logs contain mostly information about all minor scrapes, cuts, and
bruises relating to any patron of the waterpark throughout the entire season. As the majority
points out, the United States Court of Appeals for the Ninth Circuit requires only simple
notice of potential relevance to the litigation' as a prerequisite to the adverse inference
jury instruction.
tion. Glover, 6 F.3d at 1329-30 (quoting Akiona v. United States, 938 F.2d 158, 161 (9th Cir.
1991)).
I submit that these logs, by themselves, do not contain the potential relevance to the
litigation necessary to give Wet 'N Wild simple notice sufficient to require continued
possession of the logs for this particular lawsuit. I find it especially noteworthy the logs were
destroyed as long as two years before Reingold filed his complaint. The record does not
indicate that Reingold gave Wet 'N Wild any other notice of his litigation prior to the routine
destruction of the logs.
By destroying records of these minor injuries, I seriously doubt that Wet 'N Wild had any
intent specifically to thwart Reingold's litigation. As these logs were totally unrelated to
Reingold's accident, I believe their destruction had little, if any, impact on the success of his
lawsuit. This is especially persuasive in light of the fact that the jury found Reingold to be as
much as eighty percent at fault for his own injuries.
1
Further, Reingold's purpose in requesting the logs during the discovery phase of the
lawsuit was to inquire about other similar accidents occurring in the same area. Therefore, I
submit reversal of this case is unwarranted because Reingold did present ample evidence of
prior accidents, and, although not presented at trial, he did have information regarding
subsequent accidents.
Accordingly, I respectfully submit that the district court did not abuse its discretion by
refusing to provide the adverse inference instruction.
____________
113 Nev. 974, 974 (1997) Chambers v. State
ROGER MORRIS CHAMBERS, Appellant, v.
No. 25683
August 28, 1997 944 P.2d 805
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
first-degree murder with the use of a deadly weapon and a sentence of death. Second Judicial
District Court, Washoe County; Mark Handelsman, Judge.
The supreme court, Shearing, C. J., held that: (1) evidence supported district court's
determination that defendant's post-Miranda custodial confession to police was voluntarily
given and that defendant knowingly and intelligently waived his Miranda rights; {2)
reasonable doubt instruction did not diminish prosecution's burden of proof so as to
violate defendant's due process rights; {3) district court did not violate statute requiring
that jurors be admonished at each adjournment when it failed to fully admonish jury
before certain short recesses; {4) substantial evidence supported aggravating
circumstance of prior conviction of felony involving use or threat of violence; {5) evidence
did not support finding of aggravating circumstance that murder involved torture; and {6)
death penalty was excessive, and supreme court would instead impose sentence of life
without possibility of parole.
__________

1
In light of the strong jury verdict in favor of Wet 'N Wild, I believe that had the instruction been required, as
the majority contends, the district court's failure to give it was harmless error and reversal is unnecessary. See
NRCP 61.
Miranda custodial confession to police was voluntarily given and that defendant knowingly
and intelligently waived his Miranda rights; (2) reasonable doubt instruction did not diminish
prosecution's burden of proof so as to violate defendant's due process rights; (3) district court
did not violate statute requiring that jurors be admonished at each adjournment when it failed
to fully admonish jury before certain short recesses; (4) substantial evidence supported
aggravating circumstance of prior conviction of felony involving use or threat of violence; (5)
evidence did not support finding of aggravating circumstance that murder involved torture;
and (6) death penalty was excessive, and supreme court would instead impose sentence of life
without possibility of parole.
Affirmed in part and reversed in part.
Young, J., dissented in part.
Michael Specchio, Public Defender, and John Reese Petty, Chief Appellate Deputy Public
Respondent.
1. Criminal Law.
Evidence supported district court's determination that murder defendant's post-Miranda custodial confession to police was
voluntarily given and that defendant knowingly and intelligently waived his Miranda rights, despite contention that defendant's desire
to talk with police was product of his intoxication and that defendant was incompetent to waive his rights. Defendant walked into
hospital and started telling anyone who would listen that there was dead body in his hotel room, defendant indicated several times that
he wanted to talk to police to make his self-defense case known, and defendant appeared to have been relatively coherent and to have
had understanding of what was going on in interacting with police. U.S. Const. amend. 5.
2. Criminal Law.
Confession is inadmissible unless freely and voluntarily given.
3. Criminal Law.
To be voluntary, confession must be product of rational intellect and free will.
4. Criminal Law.
In determining whether confession is product of free will, supreme court employs totality-of-the-circumstances test, under which
court must consider effect of totality of the circumstances on will of defendant.
5. Criminal Law.
Under totality-of-the-circumstances test for determining whether confession was freely and voluntarily given, factors to be
considered include: youth of 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, and use of
physical punishment such as deprivation of food or sleep.
include: youth of 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, and use of physical punishment such as deprivation of food or sleep.
6. Criminal Law.
Question of admissibility of confession is primarily factual question addressed to district court; when that determination is
supported by substantial evidence, it should not be disturbed on appeal.
7. Criminal Law.
Ultimate issue in case of alleged involuntary confession must be whether will of accused was overborne by government agents.
Instruction, that reasonable doubt is such doubt as would govern or control person in the more weighty affairs of life, did not
diminish prosecution's burden of proof in murder prosecution so as to violate defendant's due process rights, where judge instructed
jury that prosecution had burden of proving both act and intent beyond a reasonable doubt and that prosecution must establish proof of
every element of crime beyond a reasonable doubt. U.S. Const. amend. 14; NRS 175.211.
9. Criminal Law.
District court did not violate statute requiring that jurors be admonished at each adjournment when it failed to fully admonish jury
before certain short recesses during which jury adjourned in murder prosecution, where court fully admonished jury before every recess
of any major length of time and, in subject instances, court was allowing recess of only a few minutes and court reminded jury that its
prior admonishments continued to apply to even brief recesses. NRS 175.401.
10. Homicide.
Substantial evidence supported aggravating circumstance of prior conviction of felony involving use or threat of violence, in
penalty phase of murder prosecution; evidence included record of defendant's two prior robbery convictions and testimony of victim of
prior robbery that defendant had committed. NRS 177.055(2).
11. Homicide.
Evidence did not support finding of aggravating circumstance that murder involved torture, in penalty phase of murder
prosecution, despite evidence of 17 stab wounds on victim's body. There was no evidence of any intent by defendant to torture victim,
evidence was far more consistent with fight between defendant and victim after defendant came upon victim burning heroin on
defendant's chef's knives, which were defendant's professional tools, victim had stabbed defendant, and pathologist testified that only
two stab wounds on victim's body were significant. NRS 177.055(2).
12. Homicide.
Death penalty was excessive in prosecution for first-degree murder with use of deadly weapon, and supreme court would instead
impose sentence of life without possibility of parole. Evidence did not support finding of aggravating circumstance that murder
involved torture, remaining aggravating factor of prior conviction of felony involving use or threat of violence referred to crimes
occurring 18 years before verdict in present case and when defendant was 18 years old, and defendant could well have been reacting in
anger at time of murder and overreacted in view of his intoxicated state. NRS 177.055(2).
OPINION
Appellant Roger Morris Chambers was convicted of the murder of Henry Chacon. In
addition to convicting Chambers, the jury determined that the State had proven two
aggravating circumstances and that the aggravating circumstances were not outweighed by
mitigating circumstances. Chambers was sentenced to death.
Chambers now appeals, claiming that the district court erred in failing to suppress his
confession to police, that Nevada's reasonable doubt instruction is unconstitutional, that the
district court failed to properly admonish the jury, and that the death penalty is excessive in
this case. We disagree with Chambers' contentions that the district court erred at trial, and we
affirm the conviction. However, we vacate the sentence of death and impose a sentence of life
imprisonment without the possibility of parole.
FACTS
On September 28, 1993, at approximately 9:30 a.m., Chambers entered the emergency area
of Washoe Medical Center in Reno. He approached Michelle Lee Moore, a triage assistant in
the emergency room, and asked to see a Dr. Rasul. When asked why he was there, Chambers
stated: There's a dead body in the room. He then stated that he did not mean to do it.
Mary Jane Driskill, a security officer at Washoe Medical Center, was called to the triage
desk, where Chambers was waiting. Because he appeared to be unsteady on his feet, he was
taken to a psychiatric room in the emergency department. Driskill patted down Chambers, but
no weapons were found. As he was being patted down, Chambers talked about stabbing
someone. Driskill thought Chambers was intoxicated, as he was unsteady and his eyes were
bloodshot. Driskill saw an open wound on Chambers' left arm. Chambers said that he was
defending himself when he had been stabbed.
Helen Mooney, a registered nurse in the emergency department of Washoe Medical
Center, testified that she checked Chambers into the hospital. He told her he had come to the
hospital seeking a psychiatric evaluation. Because Mooney smelled alcohol on Chambers'
breath and noted that his speech was rapid and a little disjointed, she became concerned about
the level of Chambers' blood alcohol. Mooney asked Chambers "alert and oriented"
questions.
alert and oriented questions. Chambers knew who and where he was but thought that the
year was 1984 instead of 1993. Mooney administered a breathalyzer test, which showed a
blood alcohol level of 0.27 percent.
At about 9:50 a.m., Reno Police Officer Tom Reid was dispatched to Washoe Medical
Center. Upon arrival, he met with Mooney. Mooney told Reid that Chambers had asked to see
Dr. Rasul and stated that there was a dead body and he did not mean to do it. Officer Reid
went to speak with Chambers. When Reid walked into Chambers' room, he could smell
alcohol. Chambers initiated a dialogue with Officer Reid when Reid's fellow officers, Officer
Adam Wygnanski and Reserve Officer Paul Sevscik, entered the room. Chambers said that he
had killed someone, that the victim was in the bathtub, and that there was blood everywhere.
At first Chambers could not remember the name of the victim but later recalled that it was
Hank (Chacon). Chambers said that he had stabbed Hank multiple times.
Officer Reid testified that Chambers told him that he had caught a bus in San Francisco
and that Chacon got on the bus when it stopped in Sacramento. While on the bus, Chambers
and Chacon drank some alcohol and inhaled some cocaine. They ended up at Circus Circus in
Reno, where they rented one room to share. Chambers told Officer Reid that they went to the
room together, but that he went back downstairs and played poker. When he returned to the
room he found Chacon smoking heroin. Chambers said he got mad at seeing this, and that
Chacon stabbed him with a knife. Officer Sevscik testified that Chambers told him that the
knife Chacon used to stab him was part of a set of knives which were found in the room at
Circus Circus. Chambers, a cook by trade, owned the knives and used them in his profession.
Chambers told Officer Reid that he got the knife away from Chacon and stabbed him back.
Chambers repeatedly told the officers that he had stabbed Chacon in self-defense.
Based on Chambers' statements at the hospital, Officer Wygnanski went to Circus Circus,
where he met with a security chief and other hotel personnel. They located the room
registered in Chambers' name, and with the use of the security chief's master card key, they
entered the room. Officer Wygnanski went to the bathroom and saw a man's body slumped in
the bathtub and blood everywhere. He left the room and secured the scene. After obtaining a
search warrant, Officer Wygnanski re-entered the room with forensics personnel.
Reno Police Detective Joseph Depczynski was also present at the crime scene. He located
a black canvas bag with several pockets holding knives and other kitchen utensils next to the
sink on the counter in the bathroom. Also next to the sink he found two crossed
black-handled knives.
two crossed black-handled knives. There was some sooty deposit on the crossed knife blades
suggesting that they were used to smoke heroin. Additionally, there was a hollow tube that
appeared to be paraphernalia used to inhale or sniff drugs.
On the same morning, Reno Police Detective Steve Reed also met with Chambers.
Chambers told Detective Reed that Chacon was smoking heroin on his knives and they got
into a fight. Around 11:30 a.m., Detective Reed took Chambers into custody and transported
him to the Reno Police Department. After placing Chambers in an interview room, the
detective made arrangements for a drug recognition expert (DRE) officer to evaluate him.
Detective Reed began questioning Chambers at approximately 12:30 p.m. that day. Prior
to questioning him, Detective Reed read Chambers his Miranda rights. Chambers waived his
rights. Following that, a DRE officer, Detective John Catalano, came in and examined
Chambers. Detective Catalano checked Chambers' eyes and found that Chambers was
incapable of crossing his eyes to follow an object. He also found Chambers' sluggish reaction
to light to be unusual. Detective Catalano testified that Chambers' speech appeared slow and
deliberate. Chambers' pulse was above normal, his blood pressure was high, and his throat
was red and irritated, which would be consistent with inhaling either methamphetamine or
crack cocaine. During the examination, Chambers told Detective Catalano that he had
smoked some heroin and had consumed about five ounces of vodka and a beer chaser at
approximately 8:00 that morning. Detective Catalano noted that, though Chambers' eyes
looked like he had been drinking, Chambers did not seem to be that intoxicated.
Based on the examination, Detective Catalano concluded that Chambers was under the
influence of a central nervous system stimulant. Despite Chambers' assertion, Detective
Catalano could find nothing to support Chambers' admission that he had smoked heroin. At
the conclusion of the test Detective Reed and Detective Catalano spoke briefly, then
Detective Reed, along with another detective, began questioning Chambers. Chambers was
questioned for approximately four hours. During this time, he was provided with cigarettes,
water, and coffee, and was offered food, which he rejected. The police department made a
videotape and an audiotape of this interview. The district court and the jury viewed relevant
portions of the videotape at trial.
After questioning, Chambers was formally booked into the Washoe County jail by Reno
Police Department Detective Phillip Jenkins. Detective Jenkins testified that at approximately
3:45 that afternoon he obtained a urine sample from Chambers. At about 4:20 p.m., an officer
drew blood from Chambers. At approximately 4:50 p.m. an officer drew more blood, and
did so again at 5:20 p.m.
approximately 4:50 p.m. an officer drew more blood, and did so again at 5:20 p.m. Chambers'
blood alcohol level was 0.27 percent right after questioning, and four hours later it was 0.19
percent and descending. Chambers' urine was found to contain amphetamine,
methamphetamine, a trace of morphine, and marijuana metabolite. There were no narcotics
found in Chambers' blood.
Dr. Ellen Clark, a specialist in anatomical, clinical, and forensic pathology, reviewed the
autopsy protocol and diagrams of injuries relating to Chacon's death prepared by her partner
Dr. Laubscher. At trial, Dr. Clark testified that Chacon had suffered blunt force injuries and
had seventeen stab wounds on his body. Although most of the stab wounds were superficial,
she concluded that two were significant: one in the front chest that cut through a portion of
the rib, passed through the lung and the sack covering the heart, and one in the back that also
passed into the chest and into a lung lobe causing bleeding and the collapse of the lung. The
autopsy also indicated that Chacon had ingested heroin or morphine, within two to three
hours of his death.
At trial, Chambers was found guilty of first-degree murder. Chambers was sentenced to
death based on two aggravating factors: (1) Chambers, who at the time of the trial was
thirty-eight years old, had been convicted of two counts of robbery when he was nineteen
years old, felonies involving the use or threat of violence, and (2) the murder of Chacon
involved torture.
This appeal followed.
DISCUSSION
Admission of Chambers' confession to police
[Headnote 1]
Prior to trial, Chambers filed a motion to suppress his post-Miranda statements to police, claiming that his statements were not
voluntarily given in light of the fact that he was questioned for four hours after having been stabbed, that he was not well rested, and that he
was intoxicated. The district court observed the videotape of the confession and heard testimony at a hearing on the matter. The district
court found that at the time Chambers made his statements to police, he did not appear to be under the influence of either alcohol or drugs
to such a point that he was unable to understand the questions directed to him and unable to formulate intelligent, logical answers. The
district court further found that Chambers knowingly and voluntarily signed the Miranda waiver presented to him. Accordingly, the district
court denied the motion to suppress. Chambers argues that the district court erred in failing to suppress his confession to police.
[Headnotes 2-6]
A confession is inadmissible unless freely and voluntarily given. Echavarria v. State, 108 Nev. 734, 742, 839 P.2d 589, 595 (1992);
Rowbottom v. State, 105 Nev. 472, 482, 779 P.2d 934, 940 (1989). In order to be voluntary, a confession must be the product of a
rational intellect and a free will.' Passama v. State, 103 Nev. 212, 213-14, 735 P.2d 321, 322 (1987) (quoting Blackburn v. Alabama, 361
U.S. 199, 208 (1960)). In determining whether a confession is the product of a free will, this court employs a totality of the circumstances
test:
[t]he court must consider the effect of the totality of the circumstances on the will of the defendant. See Schneckloth v.
Bustamonte, 412 U.S. 218, 226-227 (1973). The question in each case is whether the defendant's will was overborne when he
confessed. Id. at 225-226. Factors to be considered include: the 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. Id. at 226.
Passama, 103 Nev. at 214, 735 P.2d at 323. The question of the admissibility of a confession is primarily a factual question addressed to
the district court: where that determination is supported by substantial evidence, it should not be disturbed on appeal. Echavarria, 108 Nev.
at 743, 839 P.2d at 595.
Chambers was not subject to any physical coercion or emotional overreaching, since he was given coffee, cigarettes, water, and the
offer of food, and was able to articulate reasons why he wished to talk with the officers. He was treated politely by the officers, and the
transcript of the interview reveals that no coercive interrogation techniques were employed.
[Headnote 7]
The ultimate issue in the case of an alleged involuntary confession must be whether the will of the accused was overborne by
government agents. See Passama, 103 Nev. at 213-14, 735 P.2d at 323. Chambers' position is not that his will was overborne but that his
desire to talk with police was the product of his intoxication and that he was incompetent to waive his rights. In Colorado v. Connelly, 479
U.S. 157 (1986), a mentally ill individual approached a police officer and confessed to murder. The Supreme Court held that the confession
was voluntary because it was not the product of police coercion but was the product of the defendant's personal compulsion. Id. at 167.
Similarly, Chambers walked into the hospital and started telling anyone who would listen that there was a dead body in his hotel room.
Moreover, Chambers indicated several times that he wanted to talk to police in order to make
his self-defense case known.
Chambers appears to have been relatively coherent and to have had an understanding of
what was going on, often talking legalese with police. Substantial evidence supports the
district court's determination that Chambers' statements were voluntarily given and that he
knowingly and intelligently waived his Miranda rights. Therefore, we conclude that the
district court did not err in admitting Chambers' confession to police.
The constitutionality of Nevada's statutory reasonable doubt instruction
[Headnote 8]
During the settlement of jury instructions, Chambers objected to the proposed reasonable doubt instruction, which was based on the
provisions of NRS 175.211. The instruction informed the jury that reasonable doubt is such doubt as would govern or control a person
in the more weighty affairs of life. Chambers asserts that this portion of the reasonable doubt instruction is unconstitutional on the grounds
that the instruction involves a risk-taking analysis that is wholly unlike the decision that a jury must make in a criminal case. Chambers
compares this language to the hesitate to act language, of which Justice Ginsburg stated:
A committee of distinguished federal judges . . . has criticized this hesitate to act formulation
because the analogy it uses seems misplaced. In the decisions people make in the most important of their own affairs,
resolution of conflicts about past events does not usually play a major role. Indeed, decisions we make in the most important
affairs of our liveschoosing a spouse, a job, a place to live, and the likegenerally involve a very heavy element of
uncertainty and risk-taking. They are wholly unlike the decisions jurors ought to make in criminal cases.
Victor v. Nebraska, 511 U.S. 1, 24, (1994) (Ginsburg, J., concurring) (quoting Federal Judicial Center, Pattern Criminal Jury Instructions
18-19 (1987) (commentary on instruction 21)). Chambers argues that the same can be said of Nevada's weighty affairs of life formulation
of reasonable doubt. Chambers asserts that the instruction tends to diminish the prosecution's burden of proof and that the giving of this
instruction thus violated his due process rights.
This court has addressed the constitutionality of Nevada's statutory instruction on reasonable doubt many times, concluding that
it meets constitutional standards.
cluding that it meets constitutional standards. See Hutchins v. State, 110 Nev. 103, 112, 867
P.2d 1136, 1142 (1994); Echavarria, 108 Nev. at 742, 839 P.2d at 594; Riley v. State, 107
Nev. 205, 214, 808 P.2d 551, 556 (1991); Lord v. State, 107 Nev. 28, 40, 806 P.2d 548, 556
(1991). Chambers cites no case law which compels another result. The judge instructed the
jury that the prosecution had the burden of proving both act and intent beyond a reasonable
doubt and that the prosecution must establish proof of every element of the crime beyond a
reasonable doubt. Accordingly, we conclude that Chambers' argument lacks merit.
The district court's failure to admonish the jury on four occasions
[Headnote 9]
The trial transcript reveals several instances where the district court failed to fully admonish the jury when the jury adjourned.
Chambers argues that the district court committed reversible error by failing to admonish the jury before each adjournment, as required by
NRS 175.401.
1
The record shows that the district court did fully admonish the jury before every recess of any major length of time in this eight-day
trial. In the four instances pointed out by Chambers, the district court was allowing a recess of only a few minutes, and the court reminded
the jury that its prior admonishments continued to apply to even brief recesses. Thus, we conclude that contrary to Chambers' assertions,
the district court complied with the provisions of NRS 175.401 and that the failure to fully admonish the jury before the noted recesses does
not warrant reversal.
Penalty phase
Under NRS 177.055(2), this court is obligated to review the sentence of death to determine whether the evidence supports the finding
of aggravating circumstances, whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor,
and whether the sentence of death is excessive, considering both the crime and the defendant.
__________

1
NRS 175.401 states, in relevant part:
At each adjournment of the court . . . [the jurors] 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.
[Headnote 10]
The jury found two aggravating circumstances: (1) Chambers had previously been convicted of a felony involving the use or threat of
violence, and (2) the murder involved torture. The first aggravating circumstance was supported by substantial evidence, including a record
of Chambers' two prior convictions for robbery and the testimony of the victim of a robbery that Chambers committed in 1975.
[Headnote 11]
However, the evidence presented does not support a finding beyond a reasonable doubt that the murder involved torture.
There was no evidence of any intent by Chambers to torture Chacon. In Domingues v. State, 112 Nev 683, 702, 917 P.2d 1364, 1377
(1996), this court held that torture can be found only if there is specific intent to inflict pain for pain's sake or for punishment or sadistic
pleasure. There is no dispute that Chambers killed Chacon, and the evidence certainly supports a conclusion that Chambers was in a
murderous rage, but that evidence does not show beyond a reasonable doubt that Chambers had a specific intent to torture Chacon.
The evidence is far more consistent with there having been a fight between Chambers and Chacon after Chambers came upon Chacon
burning heroin on Chambers' chef's knives, his professional tools. The evidence showed not only that Chacon had been stabbed by
Chambers, but that Chacon had also stabbed Chambers. Although the pathologist testified that there were seventeen stab wounds on
Chacon's body, she said most of them were superficial, only two being significant. The evidence of the type of knife wounds on Chacon
and the fact that Chambers also suffered knife wounds was consistent with there having been a fight between Chambers and Chacon, as
Chambers maintained, not with any desire or attempt on the part of Chambers to torture Chacon.
[Headnote 12]
Pursuant to our obligation under NRS 177.055(2) to review the record independently, we see no evidence that the sentence of death
was imposed under the influence of passion, prejudice or any arbitrary factor. However, under our obligation to review the record to
determine whether the sentence of death is excessive considering the crime and the defendant, we conclude, after comparing the
circumstances of the murder and the defendant in this case with the circumstances in other cases in which this court has affirmed the death
penalty, that imposition of the death penalty here is excessive.
One factor contributing to our conclusion that the death penalty is excessive is that one of the aggravating
circumstances was not supported by the evidence.
is excessive is that one of the aggravating circumstances was not supported by the evidence.
Also, the other aggravating factor, the prior convictions, referred to crimes that occurred
eighteen years before the verdict in question, when Chambers was eighteen years old. This
hardly shows a pattern of violence sufficient to justify the death penalty.
The circumstances in this case are much more similar to those in Biondi v. State, 101 Nev.
309, 699 P.2d 1062 (1985), and Haynes v. State, 103 Nev. 309, 739 P.2d 497 (1987), in
which this court found the death penalty excessive, than to any of the numerous death penalty
sentences which this court has upheld.
Apparently, a drunken Chambers came upon Chacon burning heroin on Chambers' chef's
knives, his professional tools, at which Chambers became angry. According to Chambers'
testimony, when he confronted Chacon, Chacon stabbed Chambers with a knife. Chambers
was able to get the knife away and responded by stabbing Chacon. The physical evidence
appears to be consistent with most of Chambers' version of events, although there was
certainly sufficient evidence for the jury to conclude that the killing was not justified as
self-defense. It appears that he could well have been reacting in anger, and overreacted in
view of his intoxicated state. Voluntary intoxication certainly does not excuse a vicious
crime, but it does indicate that the murder was not planned in advance and that it resulted
from the emotionally charged confrontation in which Chambers was wounded and his
professional tools were being ruined.
Chambers certainly deserves to be punished for his crime, but, based on the strict
standards that have been adopted for the imposition of the death penalty, capital punishment
is excessive. In Haynes, this court stated:
The United States Supreme Court has observed that under contemporary standards
of decency death is viewed as an inappropriate punishment for a substantial portion of
convicted first-degree murderers.
Id. at 319-20, 739 P.2d at 504 (quoting Woodson v. North Carolina, 428 U.S. 280, 296
(1976)). Given the unique circumstances of this case, a sentence of life without the possibility
of parole is more appropriate than a death sentence.
For the foregoing reasons, we affirm the judgment of conviction, vacate the sentence of
death and impose a sentence of life without the possibility of parole.
Springer and Rose, JJ., concur.
2

__________

2
Young, J., concurring in part, dissenting in part:
Although I concur with my colleagues' conclusion to affirm Chambers' conviction, I
dissent from their decision to vacate his death sentence to life without the possibility of
parole.
The majority relies on Biondi v. State, 101 Nev. 252, 699 P.2d 1062 (1985), and Haynes v.
State, 103 Nev. 309, 739 P.2d 497 (1987), to support its conclusion that the death sentence is
excessive and does not support the aggravating factor of torture. However, it does not appear
that Biondi or Haynes controls the instant matter.
In Biondi, the defendant was convicted of first-degree murder and sentenced to death after
stabbing the victim once in the chest. Although this court did mention that the defendant was
drunk at the time of the killing, the basis for vacating the death sentence was the disparity in
sentencing between Biondi and his codefendant. Biondi, 101 Nev. at 259, 699 P.2d at
1066-67. This court stated,
Even more strikingly significant, however, is the comparison between Biondi, who was
sentenced to death, and codefendant Phillips, who was sentenced to life in prison with
the possibility of parole, for the very same crime. . . . This is a case where similar
defendants were sentenced differently for the identical crime. For this reason, and for
the reasons discussed above, we hold the death penalty imposed on Biondi is
disproportionate.
Id. at 259-60, 699 P.2d at 1067 (emphasis in original).
Here, Chambers acted alone. Thus, there was no codefendant to whom we may look for
disparate treatment. As for Chambers being intoxicated at the time of the killing, this court
has stated that once a defendant has been convicted of the crimes charged, it is not for this
Court to diminish [] punishment because of a . . . defendant's mental deficiencies. Ford v.
State, 102 Nev. 126, 137, 717 P.2d 27, 35 (1986).
In Haynes, the defendant, a mentally disturbed homeless person who had been in and out
of mental institutions, was convicted of first-degree murder and sentenced to death after
striking the victim twice on the back of the head with an iron pipe. Haynes, 103 Nev. at 311,
314, 739 P.2d at 498, 500. In vacating the death sentence to life without the possibility of
parole, this court characterized the murder as a crazy,' motiveless killing. Id. at 319, 739
P.2d at 503.
In contrast, Chambers was not mentally disturbed at the time of the killing; he was simply
drunk. However, when he discovered his cooking knives were being used by Chacon to burn
heroin, Chambers proceeded to stab Chacon seventeen times.1 One of the investigating
officers described the bathroom where Chacon's body was found as "one of the bloodiest
crime scenes I've ever been involved with."
heroin, Chambers proceeded to stab Chacon seventeen times.
1
One of the investigating
officers described the bathroom where Chacon's body was found as one of the bloodiest
crime scenes I've ever been involved with. Although the majority characterizes many of
Chacon's stab wounds as superficial, the examining pathologist testified that each of these
superficial wounds penetrated at least three inches into Chacon's body. This evidence
supports the jury's conclusion that Chambers did not act in self-defense. Simply stated, the
evidence demonstrates that Chambers acted in a ferocious murderous rage.
Therefore, I conclude, as did the jury, that seventeen stab wounds amounted to torture.
Moreover, under the facts and circumstances of this case, I cannot agree with my colleagues'
holding that the death penalty is excessive. See Jones v. State, 113 Nev. 454, 473, 937 P.2d
55, 67 (1997) (death penalty held not excessive where victim was stabbed thirty-five times);
Leonard v. State, 108 Nev. 79, 83, 824 P.2d 287, 290 (1992) (death penalty held not
excessive where victim was stabbed twenty-one times).
Accordingly, I would affirm the sentence of death.
____________
113 Nev. 987, 987 (1997) Statz v. State
DAVID ALAN STATZ, Appellant, v. THE
No. 25597
August 28, 1997 944 P.2d 813
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of murder
and one count of larceny from the person not amounting to robbery. Second Judicial District
Court, Washoe County; James A. Stone, Judge.
The supreme court, Young, J., held that: (1) at sentencing hearing, prosecutor violated plea
agreement to stipulate to certain sentence by calling victim's father to testify and commenting
on circumstances of crime; (2) state's stipulation in plea agreement as to appropriate
sentences and its failure to reserve right to present facts or argument did not preclude it from
cross-examining defendant at sentencing hearing after defendant testified that victim had
attacked him; and (3) specific performance of plea agreement before different judge was
appropriate remedy for violation of plea agreement.
__________

1
I note that the defendants in Biondi and Haynes inflicted only one and two blows to their victims,
respectively.
113 Nev. 987, 988 (1997) Statz v. State
plea agreement before different judge was appropriate remedy for violation of plea
agreement.
Sentences vacated; remanded for resentencing.
Shearing, C. J., and Maupin, J., dissented.
Michael R. Specchio, Public Defender, and John Reese Petty, Deputy Public Defender,
Attorney and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
Murder defendant's direct appeal, asserting that state breached plea agreement at sentencing hearing, was properly before supreme
court, despite contention that appeal raised factual issues which should be addressed first in district court.
2. Criminal Law.
Claim that state breached plea agreement at sentencing should be pursued on direct appeal to avoid waiver of issue.
3. Criminal Law.
State's violation of either terms or spirit of plea agreement requires reversal.
4. Criminal Law.
If government agrees in plea agreement only to retain right to present facts and argument pertaining to sentencing, such limited
commitment should be made explicit.
5. Criminal Law.
Plea agreement to keep judge ignorant of pertinent sentencing information is not enforceable because sentencing court must be
allowed to consider any and all information that reasonably bears on proper sentence for defendant and crime.
6. Criminal Law.
Government's plea agreement not to make sentencing recommendation cannot be interpreted to preclude it from providing
probation agency with factual information on defendants, and when government promises not to make sentencing recommendation,
providing such presentence information cannot amount to indirect form of sentence recommendation.
7. Criminal Law.
To determine whether state breached plea agreement to stipulate to certain sentence when prosecutor at sentencing hearing called
victim's father to testify, cross-examined defendant, and commented on circumstances of crime, supreme court had to determine
whether defendant could have reasonably understood plea agreement to allow prosecutor at sentencing to present evidence and make
comments in question.
8. Criminal Law.
At sentencing hearing, prosecutor violated plea agreement to stipulate to certain sentence for murder defendant by calling victim's
father to testify and commenting on circumstances of crime. Defendant reasonably understood plea agreement to preclude
state from presenting testimony or commenting in regard to murder sentence other than to recommend
agreed-upon sentence, prosecutor never qualified his remarks or evidence so as to influence only separate
larceny sentence, and prosecutor expressed his opinion and provided disparaging information already in
court's possession.
113 Nev. 987, 989 (1997) Statz v. State
bly understood plea agreement to preclude state from presenting testimony or commenting in regard to murder sentence other than to
recommend agreed-upon sentence, prosecutor never qualified his remarks or evidence so as to influence only separate larceny sentence,
and prosecutor expressed his opinion and provided disparaging information already in court's possession.
9. Criminal Law.
For purposes of determining whether state breached plea agreement to stipulate to certain sentence when prosecutor at sentencing
hearing called victim's father to testify, cross-examined defendant, and commented on circumstances of crime, defendant reasonably
understood plea agreement to preclude state from presenting testimony or commenting in regard to murder sentence other than to
recommend agreed-upon sentence, in prosecution for murder and larceny, where plea memorandum required state to stipulate to life
with possibility of parole on murder count, prosecution did not explicitly retain right to comment on crimes or defendant's past conduct
or to present evidence, and defense counsel stated at arraignment that plea bargain allowed parties to argue in regard to length of
sentence for larceny charge.
10. Criminal Law.
State is held to the most meticulous standards in performing plea bargain.
11. Criminal Law.
State's stipulation in plea agreement as to appropriate sentences for murder and larceny and its failure to reserve right to present
facts or argument did not preclude it from cross-examining defendant at sentencing hearing after defendant testified that victim had
attacked him; such cross-examination constituted proper effort by prosecution to present relevant factual information and correct
possible misstatements by defense.
12. Criminal Law.
Specific performance of plea agreement before different judge was appropriate remedy for prosecutor's violation of plea agreement
to stipulate to certain sentence when prosecutor at sentencing hearing called victim's father to testify and commented on circumstances
of crime.
13. Criminal Law.
Violation of plea bargain by state requires reversal.
14. Criminal Law.
Supreme court orders specific performance of plea agreement where it will implement parties' reasonable expectations and there is
no new information or change of circumstances which would bind sentencing court to unsuitable disposition.
OPINION
Appellant David Alan Statz pleaded guilty to murder and larceny from the person not
amounting to robbery pursuant to a plea bargain in which the state stipulated to a sentence
of life imprisonment with the possibility of parole for the murder and a concurrent sentence
for the larceny.
113 Nev. 987, 990 (1997) Statz v. State
concurrent sentence for the larceny. At Statz's sentencing the prosecutor called the victim's
father as a witness and commented on Statz and the nature of the crime. Because the state did
not explicitly reserve the right to present facts or argument at the sentencing, we conclude
that the prosecutor's actions violated the plea agreement. We therefore vacate Statz's
sentences and remand for resentencing.
FACTS
The state charged Statz by amended information with one count of murder and one count
of larceny from the person not amounting to robbery. On February 24, 1994, Statz signed a
plea memorandum and pleaded guilty, pursuant to North Carolina v. Alford, 400 U.S. 25
(1970), to both charges before the district court, Judge Jerry Carr Whitehead presiding. The
plea memorandum provided: The State will stipulate to life with the possibility of parole on
Count I, and stipulate that Count II will run concurrently with Count I.
During the plea canvass, defense counsel told the district court that Statz was pleading
guilty because the state possessed sufficient evidence to convict him and he wanted to avoid
the possibility of greater punishment. The court had defense counsel advise Statz on the
record of the rights he was waiving by pleading guilty. Defense counsel further stated that the
plea bargain was that Statz would receive a sentence of life with the possibility of parole on
the murder charge and, regarding the larceny charge, the state could argue for a ten-year
prison term, the defense could argue for less, and the sentence would be concurrent. The
courtand the plea memoranduminformed Statz that the court was not bound to follow the
parties' agreement on sentencing.
The district court had the prosecutor inform Statz of the elements of each offense which
the state would have to prove at trial. The prosecution then summarized the competent
evidence it was prepared to present. The bartender at a local bar could testify that Statz
entered the bar on the evening of May 23, 1993; struck up a conversation with the victim,
Robert Simons, while speaking in an Australian accent; and left the bar with Simons. A
cabdriver could testify that he dropped Statz and Simons at Simons' apartment that night. The
roommate of Simons could testify that late that night or early the next morning he came home
and found Simons dead. An autopsy showed that Simons was killed by a screwdriver wound
to the chest and had suffered numerous bruises to his face, neck, and shoulders. A police
detective could testify that Statz admitted in an interview that he had struck Simons and
stabbed him with a screwdriver and then left the apartment with a telephone and Simons'
watch.
113 Nev. 987, 991 (1997) Statz v. State
apartment with a telephone and Simons' watch. Following this summary of the evidence, the
court accepted Statz's plea.
The district court, Judge James A. Stone presiding, sentenced Statz on April 6, 1994.
Defense counsel objected to an allegation in the presentence report by the victim's father that
his son said 27 days before he was killed that he feared for his life. Counsel said that this was
irrelevant because Statz and Simons first met on the day of Simons' death. The prosecutor
countered that this was no basis for a factual correction to the report and said that he would
call the father to testify under oath. Robert Simons testified that 24 or 27 days prior to his
son's death, his son told him that he feared that a big guy with an Australian accent was going
to kill him. Mr. Simons also told the court that Statz should never get out of prison and that if
he got out, he would do it again.
Following this testimony, the prosecutor alluded to a written statement by Statz to the
court in which Statz apparently claimed that Simons attempted to stab him, the two struggled,
and he then stabbed Simons. The prosecutor said that the evidence at the scene did not
support this claim. He said that there were two people that knew what went on in that room;
one person is able to tell you this morning what happened, and another person isn't. The
prosecutor described the severity of Simons' wounds and said that Statz took the telephone so
that Simons could not call for help and assistance as he lay gurgling in the last minutes of his
life.
Statz testified and denied knowing Simons before the night of the killing. He said that
Simons attacked him with the screwdriver and that he did not intend to kill Simons. The
prosecutor cross-examined Statz mainly in regard to the inconsistent statements he made to
police investigators.
In his argument, defense counsel reminded the district court that the plea agreement called
for a sentence of life with the chance of parole for the murder and a concurrent sentence for
the larceny. The prosecutor then told the court that
the plea agreement and the plea memorandum filed in this case certainly indicate the
state's position in this case and the realities that it faced.
My point in both my cross-examination of Mr. Statz and the statements that I have
made to the court were specifically designed to address apparently the comments and
the position of the defendant before this court that this was a matter of self-defense.
An officer of the Division of Parole and Probation told the court that the Division
recommended a sentence of life without the chance of parole for the murder because, based
on Statz's own statement, it appeared that Statz could have left the apartment before
violence occurred, that Statz continued to beat Simons even after stabbing him, that
Simons was still alive when Statz left with Simons' phone, and that Statz was not
forthcoming in speaking with detectives.
113 Nev. 987, 992 (1997) Statz v. State
own statement, it appeared that Statz could have left the apartment before violence occurred,
that Statz continued to beat Simons even after stabbing him, that Simons was still alive when
Statz left with Simons' phone, and that Statz was not forthcoming in speaking with detectives.
The Division recommended a concurrent sentence for the larceny because it was part and
parcel of the murder.
The district court sentenced Statz to a term of life in prison with the possibility of parole
for the murder and a consecutive prison term of ten years for the larceny and ordered him to
pay $1,000 in restitution.
DISCUSSION
[Headnotes 1, 2]
Statz contends that in calling the victim's father to testify, in cross-examining Statz, and in commenting on the circumstances of the
crime, the state violated its agreement to stipulate to a sentence of life with the possibility of parole for murder and a concurrent prison term
for larceny. The state asserts that the prosecutor simply informed the district court of the nature of the offenses to show that the larceny
warranted a lengthy concurrent sentence.
1
[Headnote 3]
The United States Supreme Court has held that when a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Santobello v. New York,
404 U.S. 257, 262 (1971). This court has held that when the state enters a plea agreement, it is held to the most meticulous standards of
both promise and performance. Citti v. State, 107 Nev. 89, 91, 807 P.2d 724, 726 (1991). Violation of either the terms or the spirit of the
agreement requires reversal. Id.
In Kluttz v. Warden, 99 Nev. 681, 682, 669 P.2d 244, 244 (1983), the prosecutor agreed to seek a sentence of no more than two years
in exchange for the defendant's guilty plea. However, at the sentencing hearing the prosecutor stated that his office was unaware of the
defendant's prior record when the plea agreement was struck, and he provided details of that record. Id. at 682-83, 669 P.2d at 244-45. This
court concluded that the prosecutor here did not expressly violate the plea bargain.
__________

1
The state also asserts that this appeal raises factual issues which should be addressed first in the district court. However, this appeal is
properly before this court. A claim that the state breached the plea agreement at sentencing should be pursued on direct appeal to avoid
waiver of the issue. Franklin v. State, 110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994).
113 Nev. 987, 993 (1997) Statz v. State
the prosecutor here did not expressly violate the plea bargain. Nevertheless, in advising
the sentencing judge that the state had entered into the plea bargain without knowledge
of all of the salient facts, the prosecutor implicitly was seeking a sentence in excess of
two years. The vice in the state's conduct was not that it mentioned Kluttz's prior
criminal record, but its insinuation that the plea bargain should not be honored.
Id. at 684, 669 P.2d at 245 (citation omitted). Therefore, the court concluded that the
comments violated the spirit of the plea agreement and ordered a resentencing. Id. at 684, 669
P.2d at 246.
This court also ordered resentencing in Wolf v. State, 106 Nev. 426, 794 P.2d 721 (1990),
where the prosecutor acknowledged that he could not argue for a sentence of more than five
years, but after detailing the defendant's criminal history implicitly argued for the presentence
report's recommendation of nine years, and in Doane v. State, 98 Nev. 75, 639 P.2d 1175
(1982), where the prosecution violated an agreement to stand silent at sentencing when it
asked the court if the sentences for multiple counts were consecutive.
[Headnote 4]
Federal courts construe plea agreements according to what a defendant reasonably understood when the defendant entered the plea.
United States v. Jimenez, 928 F.2d 356, 363 (10th Cir.), cert. denied, 502 U.S. 854 (1991); United States v. Shorteeth, 887 F.2d 253, 256
(10th Cir. 1989). If the government agrees only to refrain from recommending a specific sentence and intends to retain the right to present
facts and argument pertaining to sentencing, such a limited commitment should be made explicit. United States v. Casamento, 887 F.2d
1141, 1181 (2d Cir. 1989), cert. denied, Palazzolo et al. v. United States, 495 U.S. 933 (1990); United States v. Diamond, 706 F.2d 105,
106 (2d Cir. 1983).
[Headnotes 5, 6]
An agreement to keep a judge ignorant of pertinent sentencing information is not enforceable because a sentencing court must be
allowed to consider any and all information that reasonably bears on the proper sentence for the defendant and the crime. United States v.
Williamsburg Check Cashing Corp., 905 F.2d 25, 28 (2d Cir. 1990). The Fifth Circuit Court of Appeals has explained that
an agreement to stand mute or take no position prohibits the Government from attempting to influence the sentence by
presenting the court with conjecture, opinion, or disparaging information already in the court's
possession.
113 Nev. 987, 994 (1997) Statz v. State
presenting the court with conjecture, opinion, or disparaging information already in the
court's possession. Efforts by the Government to provide relevant factual information or
to correct misstatements are not tantamount to taking a position on the sentence and
will not violate the plea agreement.
United States v. Block, 660 F.2d 1086, 1091 (5th Cir. 1981), cert. denied, 456 U.S. 907
(1982). Nor can the government's agreement not to make a sentencing recommendation be
interpreted to preclude it from providing a probation agency with factual information on the
defendants. Williamsburg, 905 F.2d at 28. But when the government promises not to make a
sentencing recommendation, providing such presentence information cannot amount to an
indirect form of sentence recommendation. United States v. Stemm, 847 F.2d 636, 639 (10th
Cir. 1988).
[Headnotes 7, 8]
In light of this Nevada and federal case law, we must determine whether Statz could have reasonably understood the plea agreement to
allow the prosecutor at sentencing to present the evidence and make the comments in question. A corollary inquiry is whether the
prosecutor's actions were an improper attempt to influence the sentence by presenting the court with conjecture, opinion, or disparaging
information already in the court's possession or were a proper effort to provide relevant factual information or correct misstatements.
[Headnote 9]
The plea memorandum required the state to stipulate to life with the possibility of parole on Count I, and stipulate that Count II will
run concurrently with Count I. In the memorandum, the prosecution did not explicitly retain a right to comment on the crimes or Statz's
past conduct or to present evidence. However, defense counsel stated at Statz's arraignment that the plea bargain allowed the parties to
argue in regard to the length of the concurrent sentence for the larceny charge. We conclude that Statz reasonably understood the plea
agreement to preclude the state from presenting testimony or commenting in regard to the murder sentence, other than to recommend the
agreed upon sentence.
[Headnote 10]
The state contends that the prosecutor's actions at the sentencing were aimed at influencing only the larceny sentence. However, the
prosecutor never qualified his remarks or the evidence in this way. Since the state is held to the most meticulous standards in performing a
plea bargain and may not violate either its terms or spirit, we conclude that the prosecutor's actions were not justified on this ground. This
leads to the inquiry whether his actions were a proper effort to correct misstatements and provide relevant factual
information or an improper attempt to influence the sentencing court by presenting conjecture, opinion, or
disparaging information already in the court's possession.
113 Nev. 987, 995 (1997) Statz v. State
actions were a proper effort to correct misstatements and provide relevant factual information
or an improper attempt to influence the sentencing court by presenting conjecture, opinion, or
disparaging information already in the court's possession.
[Headnote 11]
The prosecutor explained to the sentencing court that his statements and his cross-examination of Statz were designed to address Statz's
claim of self-defense. We distinguish the cross-examination of Statz from the prosecution's presentation of testimony by the victim's father
and its remarks concerning Statz and the crimes. The state's stipulation regarding appropriate sentences and its failure to reserve the right to
present facts or argument did not preclude it from cross-examining Statz after he testified under oath that the victim had attacked him. Such
cross-examination constituted a proper effort by the prosecution to present relevant factual information and correct possible misstatements
by the defense.
However, under the plea agreement the prosecutor acted improperly in calling the victim's father to testify
2
and commenting on Statz
and the crimes. The father's testimony included a suggestion based on hearsay of prior bad acts by Statz. Even assuming that this
information was relevant, it was cumulative to the same information in the presentence report. The prosecutor also questioned Statz's
credibility and emphasized the brutality of the crime. We conclude that the prosecutor expressed his opinion and provided disparaging
information already in the court's possession. Since the state had agreed on a recommended sentence without reserving the right to present
evidence or argument and the presentence report had informed the sentencing court of the relevant evidence, the prosecutor violated the
plea agreement.
[Headnotes 12-14]
The violation of a plea bargain by the state requires reversal. Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216 (1986).
This court orders specific performance of a plea agreement where it will implement the parties' reasonable expectations and there is no new
information or change of circumstances which would bind the sentencing court to an unsuitable disposition. Id. at 244, 720 P.2d at
1216-17. We conclude that specific performance of the plea agreement before a different judge is appropriate here.
__________

2
This opinion, of course, does not limit a prosecutor's duty to give victims reasonable notice of the sentencing hearing, nor does it limit
a victim's right to appear personally before the sentencing court and reasonably express views concerning the impact of the crime. See NRS
176.015(3) and (4). We understand that in most cases where a victim impact statement is made orally, the prosecutor calls the victim to
testify and questions the victim. However, nothing in NRS 176.015 requires the participation of the prosecutor for introduction of a victim's
testimony.
113 Nev. 987, 996 (1997) Statz v. State
performance of the plea agreement before a different judge is appropriate here. If the new
judge imposes a sentence that exceeds the one imposed by Judge Stone, it must be reduced to
conform with the earlier, lesser sentence. Citti, 107 Nev. at 94, 807 P.2d at 727.
CONCLUSION
The state entered a plea agreement in which it stipulated to certain recommended
sentences in return for Statz's guilty plea. Although the state did not explicitly reserve the
right to present facts or argument at the sentencing, the prosecutor presented evidence and
commented on Statz and the nature of the crimes. We conclude that these actions violated the
plea agreement. We therefore vacate Statz's sentences and remand to the district court for
resentencing before a different judge (since it is possible that Statz could receive a lighter
total sentence in the form of concurrent sentences). We direct the state to strictly comply with
the terms of the plea agreement. If the new judge imposes a sentence that exceeds the earlier
one imposed by Judge Stone, the new sentence must be reduced to conform with the earlier,
lesser sentence.
3
Springer and Rose, JJ., concur.
Shearing, C. J., with whom Maupin, J., joins, dissenting:
I do not agree that the prosecutor violated the plea agreement by presenting evidence to the
court at sentencing to rebut the defendant's contentions.
Statz contends that the prosecutor's presentation of evidence at the sentencing hearing
violated his agreement to stipulate to the sentence. I disagree. The evidence that the
prosecutor presented was in response to Statz's attempt to minimize his own culpability. The
prosecutor, as an officer of the court, is obligated to present any information that reasonably
might bear on the sentence for the defendant. United States v. Williamsburg Check Cashing
Corp., 905 F.2d 25, 28 (2d Cir. 1990). The prosecutor's action in this case is of the type
specifically approved in United States v. Block, 660 F.2d 1086, 1091 (5th Cir. 1981), cert.
denied, 456 U.S. 907 (1982), where the Court said, Efforts by the Government to provide
relevant factual information or to correct misstatements are not tantamount to taking a
position on the sentence and will not violate the plea agreement."
__________

3
Statz in proper person has moved this court for permission to file a supplemental brief. We note that Statz is
represented by counsel in this appeal and that the issues raised in the proposed supplemental pleadings should be
addressed by the district court in the first instance. Therefore, we deny this motion. See NRAP 46(b); Lyons v.
State, 105 Nev. 317, 319, 775 P.2d 219, 220 (1989).
113 Nev. 987, 997 (1997) Statz v. State
correct misstatements are not tantamount to taking a position on the sentence and will not
violate the plea agreement.
The prosecutor presented the testimony of the victim's father to corroborate a statement in
the presentence report to which Statz objected. When the defendant denies an allegation, and
the prosecution has evidence to support the allegation, the prosecution is obligated to present
that evidence to the court.
Similarly, when a defendant in Statz's position attempts to deny his own culpability in a
murder, despite a guilty plea, I see nothing improper in permitting the prosecutor to inform
the court of the evidence as he views it.
In this instance, the stipulation of the State and the evidence, as presented by both the
prosecutor and the defendant, came before the court. The district court could and did properly
consider both in determining the appropriate sentence. Therefore, I would affirm the
judgment of conviction.
____________
RICHARD TANKSLEY, Appellant, v. THE
No. 27264
August 28, 1997 946 P.2d 148
Appeal from a judgment of conviction pursuant to a jury trial on one count of arson. First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
Defendant was convicted in the district court of arson, and was sentenced as habitual
offender. Defendant appealed. The supreme court, Young, J., held that: (1) district court's
denial of defendant's request to act as his own attorney did not violate defendant's right to
self-representation; (2) juror misconduct occurring when one juror set mattress stuffing on
fire during deliberations to test if it was flammable did not prejudice defendant; and (3)
adjudicating defendant a habitual criminal based on his three prior felony convictions was not
abuse of discretion.
Affirmed.
Mark B. Jackson, Gardnerville, for Appellant.
and Robert F. Bony, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
District court's denial of defendant's request to act as his own attorney at arson trial did not violate defendant's right to
self-representation, in view of defendant's disruptive behavior, both during pretrial proceedings and during related extortion trials at
which defendant represented himself. U.S. Const. amend. 6.
2. Criminal Law.
Defendant has unqualified right to represent himself or herself at trial so long as his or her waiver of counsel is intelligent and
voluntary. U.S. Const. amend. 6.
3. Criminal Law.
In assessing waiver of counsel, question before district court is not whether defendant can competently represent himself or herself,
but whether he or she can knowingly and voluntarily waive the right to counsel. In order for defendant's waiver of right to counsel to
withstand constitutional scrutiny, judge need only be convinced that defendant made the decision with clear comprehension of
attendant risks. U.S. Const. amend. 6.
4. Criminal Law.
Request for self-representation may not be denied solely because court considers defendant to lack reasonable legal skills or
because of inherent inconvenience often caused by pro se litigants.
5. Criminal Law.
Defendant may be denied right to self-representation where defendant's request is untimely, request is equivocal, request is made
solely for purpose of delay, defendant abuses his or her right by disrupting judicial process, or defendant is incompetent to waive the
right to counsel. U.S. Const. amend. 6.
6. Criminal law.
Defendant may be denied the right of self-representation if he or she is unable or unwilling to abide by rules of courtroom
procedure. Defendant's right to self-representation does not allow him to engage in uncontrollable and disruptive behavior in the
courtroom. U.S. Const. amend. 6.
7. Criminal Law.
Trial judges have obligation to control courtroom proceedings, in determining whether to deny defendant right of
self-representation. U.S. Const. amend. 6.
8. Criminal Law.
In determining whether possibility of disruptive behavior exists, on motion for self-representation, defendant's pretrial activity is
relevant if it affords strong indication that defendant will disrupt proceedings in courtroom. U.S. Const. amend. 6.
9. Criminal Law.
Supreme court will not substitute its evaluation of potential courtroom disruption for that of district court's own personal
observations and impressions, when reviewing denial of motion for self-representation. U.S. Const. amend. 6.
10. Criminal Law.
Juror misconduct occurring when one juror set mattress stuffing on fire during deliberations to test if it was flammable did not
prejudice defendant in arson prosecution arising when defendant allegedly set fire to mattress stuffing in his jail cell, although results
of juror's test reinforced state's case; other 11 jurors had already voted guilty at time test was conducted, and juror did not
immediately change his vote after conducting test.
test was conducted, and juror did not immediately change his vote after conducting test.
11. Criminal Law.
Not every incidence of juror misconduct requires grant of new trial. New trial need not be granted if it appears beyond reasonable
doubt that no prejudice occurred.
12. Criminal Law.
Determination that juror misconduct did not prejudice defendant is question of fact for court and will not be reversed on appeal
absent abuse of discretion.
13. Criminal Law.
Adjudicating defendant a habitual criminal based on his three prior felony convictions was not abuse of discretion, although the
felonies were over five years old, and two of the prior convictions were non-violent. NRS 207.010.
14. Criminal Law.
Purpose of habitual criminal statute is to increase sanctions for recidivist and to discourage repeat offenders. NRS 207.010.
OPINION
While awaiting trial on charges of extortion and obtaining money under false pretenses
(the extortion case), appellant Richard Tanksley (Tanksley) was incarcerated in the
Carson City jail. On October 30, 1993, the jail deputies attempted to give Tanksley his dinner
meal. According to the deputies, Tanksley refused to take his meal and, when instructed,
refused to return to his cell. Tanksley was then physically restrained and placed in a solitary
lockdown cell. Shortly thereafter, a deputy saw smoke coming from Tanksley's lockdown
cell. While the remainder of the inmates in the cell block were being evacuated, a deputy saw
Tanksley in his cell, lying on his stomach and yelling Fire! Tanksley was removed from his
cell, and the deputies identified the source of the smoke as Tanksley's mattress, which had
been cut open, the stuffing pulled out, and set afire. Tanksley was subsequently charged with
one count of arson.
Attorney Sharon Claassen (Claassen), Tanksley's court-appointed attorney in the
extortion case, was also appointed as Tanksley's counsel in the instant case. Claassen was
permitted to withdraw from both cases based on the fact that Tanksley refused to
communicate or cooperate with her. The trial court then appointed attorney Erik Johnson
(Johnson) as Tanksley's attorney for both cases. Johnson was permitted to withdraw from
the arson case based on a conflict of interest. The trial court then appointed attorney Nathan
Young (Young) as Tanksley's counsel in the arson case.
Tanksley's extortion case went to trial on February 21, 1995. Johnson, who at that time
was still Tanksley's counsel, informed the court that Tanksley did not want assistance of
counsel. After canvassing Tanksley, the district court granted Tanksley's motion to waive
representation by counsel and allowed Tanksley to represent himself at trial.
In the instant case, Young filed a motion on March 3, 1995, twelve days prior to the
commencement of the arson trial, seeking to withdraw as counsel on the grounds that
Tanksley would not communicate or cooperate with him and that Tanksley wished to
represent himself. The district judge denied the motion, stating:
This Court in the prior trial which was last month observed the Defendant's conduct
in representing himself and to say the least it was pathetic and it was disruptive.
Furthermore, the district court concluded that Tanksley had been given ample opportunity
to retain private counsel and failed to do so, that the court had appointed counsel for Tanksley
three times (Claassen, Johnson, and Young), and that Tanksley had refused to cooperate with
both Claassen and Young (Johnson withdrew based on a conflict of interest).
At the conclusion of the trial, Tanksley was found guilty of first degree arson. The judge
adjudicated him a habitual criminal pursuant to NRS 207.010 and sentenced him to life in
prison with the possibility of parole. Tanksley now appeals his conviction and sentence. We
conclude that Tanksley's arguments have no merit and affirm the judgment below.
Right to self-representation
[Headnote 1]
Tanksley contends that his right to self-representation was violated when the district court denied his request to act as his own attorney
at his arson trial.
1
[Headnotes 2-4]
A criminal defendant has an unqualified right to represent himself at trial so long as his waiver of counsel is intelligent and
voluntary. Baker v. State, 97 Nev. 634, 636, 637 P.2d 1217, 1218 (1981) (citing Faretta v. California, 422 U.S. 806 (1975)), overruled on
other grounds by Lyons v. State, 106 Nev. 438, 796 P.2d 210 (1990). In assessing a waiver, the question before the district court is not
whether the defendant can competently represent himself, but whether he can knowingly and voluntarily
waive his right to counsel. "[T]he defendant's technical knowledge is not the relevant inquiry.
__________

1
We find it interesting to note that Tanksley has appealed the same district court judge's decision to grant Tanksley's request for
self-representation in the extortion trial.
court is not whether the defendant can competently represent himself, but whether he can
knowingly and voluntarily waive his right to counsel. [T]he defendant's technical knowledge
is not the relevant inquiry. In order for a defendant's waiver of right to counsel to withstand
constitutional scrutiny, the judge need only be convinced that the defendant made his decision
with a clear comprehension of the attendant risks. Graves v. State, 112 Nev. 118, 124, 912
P.2d 234, 238 (1996) (citing Faretta, 422 U.S. at 835-36). Furthermore, a request for
self-representation may not be denied solely because the court considers the defendant to lack
reasonable legal skills or because of the inherent inconvenience often caused by pro se
litigants. Lyons, 106 Nev. at 444 n.1, 796 P.2d at 217 n.1.
[Headnote 5]
However, a defendant may be denied his right to self-representation where his request is untimely, the request is equivocal, the request
is made solely for the purpose of delay, the defendant abuses his right by disrupting the judicial process, or the defendant is incompetent to
waive his right to counsel. Lyons, 106 Nev. at 443-44, 796 P.2d at 213.
[Headnotes 6-8]
Here, the district court denied Tanksley his request to represent himself because he was disruptive. A defendant may be denied his right
of self-representation if he or she is unable or unwilling to abide by rules of courtroom procedure. Savage v. Estelle, 924 F.2d 1459, 1464
(9th Cir. 1990); see also McKastle v. Wiggins, 465 U.S. 168, 173 (1984). A defendant's right to self-representation does not allow him to
engage in uncontrollable and disruptive behavior in the courtroom. United States v. Flewitt, 874 F.2d 669, 674 (9th Cir. 1989). Trial
judges have the obligation to control courtroom proceedings. Howard v. State, 106 Nev. 713, 724, 800 P.2d 175, 181 (1990) (Steffen, J.,
dissenting). In determining disruption, the defendant's pretrial activity is relevant if it affords a strong indication that the defendants will
disrupt the proceedings in the courtroom. Flewitt, 874 F.2d at 674.
[Headnote 9]
In the present case, the lower court judge had the opportunity to observe Tanksley's demeanor and conduct throughout these
proceedings and was in the best position to determine if Tanksley was disruptive. While [t]he cold record is a poor substitute for demeanor
observation, Graves, 112 Nev. at 124, 912 P.2d at 238, we conclude that the record supports the district court's determination. For
example, at a September 27, 1994 status hearing, Tanksley talked back to the judge and behaved so disrespectfully and
contemptuously that the judge found him in contempt and was forced to tape Tanksley's mouth shut for the
remainder of the hearing.
spectfully and contemptuously that the judge found him in contempt and was forced to tape
Tanksley's mouth shut for the remainder of the hearing. The judge further warned Tanksley
that if he behaved the same way at another appearance, the judge would tape his mouth shut
again. This court will not substitute its evaluation for that of the district court judge's own
personal observations and impressions. Kobinski v. State, 103 Nev. 293, 296, 738 P.2d 895,
896 (1987). Therefore, if the district court decided that Tanksley's pretrial activity was a
strong indication that Tanksley's self-representation would disrupt the arson trial, we will not
overturn that factual determination.
Additionally, when the lower court denied Tanksley's request, it stated that Tanksley's
self-representation in the extortion trial was disruptive. The extortion trial concluded only one
week prior to the filing of the motion for Tanksley's counsel to withdraw. The judge made his
ruling on the matter only nineteen days after the extortion trial ended. Plus, during the course
of both the extortion and the arson cases, the judge conducted some hearings on both matters
at the same proceeding. Because the two cases were so intertwined, we cannot expect the
judge to completely block from his mind related information and impressions he obtained in
an associated judicial proceeding. See Goldman v. Bryan, 104 Nev. 644, 653, 764 P.2d 1296,
1301 (1988) (holding that a judge's knowledge and awareness of facts acquired through
participation in a related judicial proceeding, while acting in one's official judicial capacity,
does not require disqualification from a subsequent proceeding).
Accordingly, we conclude that Tanksley's right to self-representation was not violated.
Juror misconduct
[Headnote 10]
During deliberations, the jury voted on the case and eleven jurors voted guilty, while one juror, Dave Bacon (Bacon), voted not
guilty. During a dinner break shortly after this vote, Bacon went home, ignited some mattress stuffing to test if it was flammable, and upon
returning from the break informed the jury that the mattress stuffing ignited immediately.
The jury continued to deliberate. Another vote was taken with the same results as prior to the break; Bacon was the only juror to vote
not guilty. Shortly thereafter, Bacon left the jury room for approximately ten minutes. Apparently, during his absence, the other jurors
discussed the possibility of contacting the judge if Bacon returned with a not guilty verdict. Two juror affidavits stated that Bacon was
unaware of the jury's intent to inform the judge of Bacon's misconduct.
When Bacon returned to the jury room to continue deliberations, another vote was taken
wherein all twelve jurors voted guilty.
On April 6, 1995, Tanksley filed a motion for a new trial premised on the juror
misconduct. The district judge denied the motion, stating that the misconduct was harmless
beyond a reasonable doubt.
[Headnotes 11, 12]
Not every incidence of juror misconduct requires the grant of a new trial. Barker v. State, 95 Nev. 309, 313, 594 P.2d 719, 721
(1979). This court has held that a new trial need not be granted if it appears beyond a reasonable doubt that no prejudice occurred. Id. Such
a determination is a question of fact for the court and will not be reversed on appeal absent an abuse of discretion. McCabe v. State, 98
Nev. 604, 608, 655 P.2d 536, 538 (1982).
We conclude that the district court did not err by concluding the juror misconduct was harmless beyond a reasonable doubt. Our
dissenting colleague states, It seems probable to me that the juror's independent test on the mattress stuffing influenced his vote, and it
may have reinforced the opinion of the other jurors when he communicated the test results to them. With all due respect, we conclude it is
improbable that the juror's test had the supposed effect the dissent contemplates.
First, after Bacon had performed the experiment, the results of which reinforced the State's case, Bacon again voted not guilty when he
returned from the dinner break. It was only after further deliberations that Bacon changed his vote to guilty. Therefore, the experiment
seemed to play no role in Bacon's decision.
Second, prior to the experiment, eleven other jurors voted guilty. Therefore, Bacon's experiment did not induce any of the jurors to
change their vote to guilty. Accordingly, we conclude the misconduct did not prejudice Tanksley and the district court did not err in
denying Tanksley's motion for a new trial.
Adjudication as a habitual criminal
[Headnote 13]
Based on the fact that Tanksley had three prior felonies, the district court adjudicated Tanksley a habitual criminal pursuant to NRS
207.010 and sentenced him to life in prison with the possibility of parole. Tanksley was convicted of criminal mischief
2
in 1977,
aggravated assault3 in 19S2, and being an ex-felon in possession of a firearm in 1990.
__________

2
This conviction resulted from Tanksley intentionally damaging and destroying plumbing fixtures and glass windows while
incarcerated in a Texas jail.
1977, aggravated assault
3
in 1982, and being an ex-felon in possession of a firearm in 1990.
Tanksley appeals his status as a habitual criminal, contending that his prior three felonies are
old and stale, and two of the prior convictions are non-violent.
We have held, One facing adjudication as a habitual criminal . . . is at the mercy of the
court and is thus subject to the broadest kind of judicial discretion. Clark v. State, 109 Nev.
426, 428, 851 P.2d 426, 427 (1993) (emphasis added). The statute contains no express
limitation on the judge's discretion. French v. State, 98 Nev. 235, 237, 645 P.2d 440, 441
(1982).
[Headnote 14]
The purpose of the habitual criminal statute is to increase sanctions for the recidivist and to discourage repeat offenders. Odoms v.
State, 102 Nev. 27, 32, 714 P.2d 568, 571 (1986). Tanksley was convicted of three prior felonies and, therefore, fulfills the requirements of
NRS 207.010. Accordingly, we conclude that the district court did not abuse its very broad discretion in determining that a habitual
criminal adjudication would serve the purpose of discouraging this repeat offender.
We have considered Tanksley's other issues on appeal and find them to be without merit. Accordingly, we affirm Tanksley's judgment
of conviction.
Shearing, C. J., and Maupin, J., concur.
I dissent because I believe the jury verdict was infected by juror misconduct, there were insufficient grounds to strip Tanksley of his
right to self-representation, and that Tanksley was improperly sentenced as a habitual criminal.
One juror had doubts about Tanksley's guilt apparently because he was not convinced the bed stuffing in Tanksley's cell could have
been flammable. During the dinner recess, the juror ignited some mattress stuffing he had at home and found that it caught fire easily.
When deliberations resumed, he informed the other jurors of the test, and shortly thereafter he changed his vote from not guilty to guilty. A
unanimous guilty verdict was returned soon thereafter.
In Rowbottom v. State, 105 Nev. 472, 779 P.2d 934 (1989), a juror in a murder case conducted her own independent investigation into
whether the victim could have exited the vehicle with her hands bound as the state claimed, and she also measured the
driving times between locations to determine if the defendant had time to return to his apartment and obtain
the murder weapon and ligatures before meeting the victim.
__________

3
The record on appeal does not provide the facts surrounding the assault; however, the State's answering brief claims that Tanksley
sharpened a toothbrush into a shiv and attacked someone with it. Tanksley alleges that he threatened a man with the shiv, but did not injure
him.
her hands bound as the state claimed, and she also measured the driving times between
locations to determine if the defendant had time to return to his apartment and obtain the
murder weapon and ligatures before meeting the victim. The juror also examined gravel at the
scene and compared it with gravel in photos taken when the victim's body was discovered.
While the juror did not disclose the independent tests she conducted to the other jurors in the
guilt phase, we reversed the entire case because the extra-judicial investigations may well
have influenced her vote. As we explained:
Even if the offending juror did not disclose her conclusions to the others during the
guilt phase, she returned to and participated fully in the jury deliberations while being
influenced, in whole or in part, by her out of court investigations. We cannot say
beyond a reasonable doubt that in so participating she did not inject opinions developed
as a result of her particularly egregious misconduct and thus infect the other jurors in
their deliberations.
Id. at 486-87, 779 P.2d at 943 (footnote omitted). Our judicial system guarantees every
defendant a fair trial with impartial jurors deciding a case only on admissible evidence
presented in court. Conduct which erodes these basic tenets will be presumed prejudicial. Id.
It seems probable to me that the juror's independent test on the mattress stuffing influenced
his vote, and it may have reinforced the opinion of the other jurors when he communicated
the test results to them. We have no idea whether the mattress stuffings were similar or
equally flammable and thus cannot determine the reliability of the stuffings' comparison. I
cannot say that the independent test was harmless beyond a reasonable doubt, and following
the Rowbottom precedent, I would reverse and remand for a new trial on this ground.
Additionally, Tanksley had requested the right to represent himself at trial. He had been
given this right in his first trial on other charges (extortion) that preceded this trial by several
weeks. When denying Tanksley's request, the district court stated that Tanksley's
self-representation in the earlier extortion case was pathetic, disruptive, self-defeating,
and ineffective. The district court denied Tanksley his right to represent himself in the
arson case based solely on his conduct in the extortion case. While a defendant's right to
self-representation can be denied because he or she was or is unduly disruptive, I find
insufficient evidence to support the district court's denial on this basis.
The district court gave no specific examples of why Tanksley's representation in the
extortion case warranted a ruling denying him his right to self-representation in the arson
case. Furthermore, neither the district court nor the parties incorporated the extortion case's
trial transcript into the record in the arson case. As such, there is nothing in the record in the
arson case to support the district court's ruling. At the September 27, 1994 status hearing,
Tanksley disagreed with the district court; however, his conduct was hardly so disrespectful
and contemptuous as to warrant denial of his right to self-representation. Three of the district
court's bases for denying Tanksley's motion to represent himselfpathetic, ineffective,
and self-defeatingare clearly irrelevant pursuant to Lyons v. State, 106 Nev. 438, 444 n.1,
796 P.2d 210, 217 n.1 (1990). Therefore, disruption was the only valid basis for the district
court's decision, and I believe that Tanksley's disruption alone was insufficient to deny him
his constitutional right to self-representation.
Illinois v. Allen, 397 U.S. 337, 346 (1970), clearly explains that behavior will be
considered disruptive only if it is of an extreme and aggravated nature. In Allen, the
defendant, during trial, threatened to kill the judge, argued with the judge in an abusive and
disrespectful manner, threatened to disrupt the proceedings by constantly talking, and
answered the judge's questions with abusive and vile language. The judge repeatedly warned
the defendant about his behavior and then expelled the defendant from the proceedings. Id. at
339-41. The United States Supreme Court concluded that Allen's actions were of such an
extreme and aggravated nature as to justify the judge's remedial actions. Id. at 346.
Tanksley's actions at the prior extortion trial were not nearly as egregious as were those of
the defendant in Allen, and the majority has failed to explain why Tanksley's actions were so
extreme and aggravated that they warranted the district court's ruling stripping Tanksley of
a constitutional right. Tanksley made numerous objections without legal basis, asked legally
improper questions during direct examinations, requested to wear sunglasses in court,
requested a delay to subpoena witnesses and examine documents, and testified on his own
behalf at length in a rambling fashion. Additionally, the district judge did not give Tanksley
the same warnings that the judge issued in Allen. Finally, the district court took no remedial
action in the extortion case and permitted Tanksley to represent himself throughout the case,
thereby indicating that Tanksley's representation in the extortion case was not overly
disruptive. Therefore, it is clear that Tanksley's actions were not of such an extreme and
aggravated nature as to be considered serious and obstructionist conduct" pursuant to
Faretta and Allen.
conduct pursuant to Faretta and Allen. Rather, they were merely an inherent
inconvenience caused by a pro se defendant. Lyons v. State, 106 Nev. 438, 444 n.1, 796 P.2d
210, 217 n.1 (1990). I conclude that the district court erred in denying Tanksley's motion for
self-representation.
I also believe that the district court abused its discretion in adjudicating Tanksley a
habitual criminal and sentencing him to a term of life imprisonment with the possibility of
parole.
The version of NRS 207.010(2) effective at the time of Tanksley's conviction provided for
an additional term of life imprisonment with or without the possibility of parole for a
habitual criminal, which was defined as a person who has previously been three times
convicted, whether in this state or elsewhere, of any crime which under the laws of the situs
of the crime or of this state would amount to a felony. However, NRS 207.010(4), which
was also in effect at the time of Tanksley's conviction and which has since been renumbered,
1
stated that [t]he trial judge may, at his discretion, dismiss a count under this section which is
included in any indictment or information. The purpose of this provision is to permit
dismissal when the prior offenses are stale or trivial, or in other circumstances where an
adjudication of habitual criminality would not serve the purposes of the statute or the interests
of justice.' Sessions v. State, 106 Nev. 186, 190, 789 P.2d 1242, 1244 (1990) (quoting
French v. State, 98 Nev. 235, 237, 645 P.2d 440, 441 (1982)).
The habitual criminality statute exists to enable the criminal justice system to deal
determinedly with career criminals who pose a serious threat to public safety. Sessions, 106
Nev. at 191, 789 P.2d at 1245. It may be an abuse of discretion for the court to enter a
habitual criminal adjudication when the convictions used to support the adjudication are
nonviolent and remote in time. Id.
I conclude that sentencing Tanksley as a habitual offender was an abuse of discretion
because his crimes do not prove that he was a career criminal who posed a serious threat to
society and sentencing him as such does not serve the interests of justice. The court based its
habitual criminal sentence on the fact that Tanksley previously had been convicted for
criminal mischief, assault, and being an ex-felon in possession of a firearm. However, the
assault, which was Tanksley's only violent crime, occurred eleven years prior to the arson,
and no evidence was presented that he actually injured anybody. Additionally, the criminal
mischief charge was for breaking a toilet and some glass and occurred sixteen years prior to
the arson; this was a stale, trivial, non-violent crime. Finally, the ex-felon in possession of a
firearm conviction occurred three years prior to the arson, and while it posed a potential
for violence, it was not in itself a violent crime.
__________

1
This section was renumbered as NRS 207.010(2).
firearm conviction occurred three years prior to the arson, and while it posed a potential for
violence, it was not in itself a violent crime. I believe that at the very least, the district court
should not have considered the criminal mischief charge and likely should not have
considered the assault charge in assessing Tanksley eligibility for habitual criminal status.
Even if Tanksley is considered a career criminal, he does not appear to be a violent
criminal who poses a threat to public safety. Tanksley obviously suffers from serious
mental illness and most likely belongs in a mental hospital, not prison; therefore, sentencing
him as a habitual criminal does not serve the interests of justice and was an abuse of
discretion.
____________
113 Nev. 1008, 1008 (1997) Williams v. State
ANTOINE LIDDELL WILLIAMS, Appellant, v.
No. 28394
August 28, 1997 945 P.2d 438
Appeal from a judgment of conviction of first-degree murder, victim sixty-five years of
age or older; first-degree murder with use of deadly weapon, victim sixty-five years of age or
older; burglary, robbery, victim sixty-five years of age or older; robbery with use of deadly
weapon, victim sixty-five years of age or older; possession of stolen vehicle; and possession
of controlled substance, and a sentence of death. Eighth Judicial District Court, Clark County;
Joseph T. Bonaventure, Judge (guilt and penalty phases); Joseph T. Bonaventure, Judge,
Steven R. Kosach, Judge, Jerry V. Sullivan, Judge (three-judge panel: sentencing phase).
The supreme court held that: (1) defendant's confession was knowingly and voluntarily
made; (2) two photographs of victims were admissible; (3) prosecution's comments were not
prosecutorial misconduct; and (4) defendant was not entitled to argue last during penalty
phase.
Affirmed.
Morgan D. Harris, Public Defender, Robert L. Miller, Deputy Public Defender, Flora
Eichacker, Deputy Public Defender, Clark County, for Appellant.
James Tufteland, Chief Deputy District Attorney, David Roger, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Court's implied credibility finding that defendant had not invoked his right to counsel was not clear error, despite defendant's
testimony that he had asked for counsel when he was first advised of his Miranda rights, where arresting officers testified that he was
advised of his rights and never requested counsel, and state produced waiver of rights form signed by defendant prior to his confession.
2. Criminal Law.
Determining issues of credibility is within province of trier of fact, and supreme court will not reverse credibility finding absent
clear error.
3. Criminal Law.
Defendant knowingly and intelligently waived his rights before participating in custodial interrogation, despite defendant's
statement to police detectives that whatever he said should be used in his best interests, where at end of custodial interrogation in
which defendant confessed, detectives asked him on tape recording whether his statements were made voluntarily, and whether any
promises or deals had been proposed to encourage his confession, and defendant stated that detectives had made it clear that he did not
have to say anything to incriminate himself, that he knew discussion could be stopped at any time and that no deals or offers had been
made.
4. Criminal Law.
Decision to admit or exclude evidence, after balancing prejudicial effect against probative value, is within discretion of trial judge.
NRS 48.035.
5. Criminal Law.
Trial court's determination regarding admission of evidence will not be overturned absent manifest error.
6. Criminal Law.
In murder prosecution, trial court did not abuse its discretion in finding that probative value of two photographs, one of each of the
victims at crime scene, outweighed its prejudicial effect, despite defendant's argument that photos were unnecessarily and
extraordinarily gruesome.
7. Homicide.
Defendant was not entitled to proposed jury instruction separately defining deliberate, despite contention that without proposed
definition, jury could not distinguish between malice aforethought and premeditation/deliberation.
8. Criminal Law.
When no objection to prosecutorial misconduct is made in district court, issue is not preserved on appeal and appellate review is
generally precluded unless constitutional questions are raised.
9. Criminal Law.
Trial court has duty to ensure that defendant receives fair trial, and to this end, court must exercise its discretionary power to
control obvious prosecutorial misconduct sua sponte. U.S. Const. amend. 6.
In determining if prosecutorial misconduct deprived defendant of fair trial, relevant inquiry is whether prosecutor's comments are
so unfair as to deprive defendant of due process. U.S. Const. amends. 5, 6.
11. Criminal Law.
Prosecutor's statements during rebuttal closing argument in death penalty phase of murder prosecution that when defendant asks
for mercy and says he throws himself at mercy of court, jury should consider the mercy he gave his two victims, and should look at
pictures of victims and what he did to them when determining what mercy is appropriate did not amount to prosecutorial misconduct,
where defense raised issue of mercy and state was responding to that comment.
12. Criminal Law.
Prosecutor's statements during closing argument in death penalty phase of murder prosecution that the system failed victims once
because it did not hold defendant in custody, and that if the system failed in this instance it would take away meaning and dignity of
victims' lives, merely asked jury to set a standard or make statement to community through its verdict, and statements were not
prosecutorial misconduct.
13. Criminal Law.
Prosecutor's statements during closing argument in penalty phase of murder prosecution directing jury to imagine physical and
mental pain that two victims went through in final moments of their lives did not amount to a golden rule argument that asks jury to
place themselves in shoes of victim and argument was not prosecutorial misconduct.
14. Criminal Law.
Prosecutor's statement during closing argument in penalty phase of murder prosecution that the next step was for jury to make
decision as to appropriate punishment and that jury was not the last step, although not recommended, was not prosecutorial
misconduct, as it did not in any way reduce jury's appreciation of gravity of its task.
15. Criminal Law.
Prosecutor's statement during closing argument in penalty phase of murder prosecution that he agreed with district attorney that
the possibility that defendant would be a positive role model for other inmates and youth was suspect was not prosecutorial
misconduct, where prosecutor was responding to defendant's argument that he could become a model prisoner by referring to opening
remarks made by district attorney, and defendant did not argue that those opening remarks were improper.
16. Criminal Law.
It is improper for prosecutor to interject his personal opinion in closing argument.
17. Criminal Law.
Prosecutor's statement during closing argument in penalty phase of murder prosecution, that if jury finds that the aggravating
circumstances tip the scale more, then the death penalty is an appropriate sentence, was not prosecutorial misconduct; prosecutor did
not state that the death penalty was the jury's only option and, in any event, prosecutor can argue, after a review of all the evidence, that
the only appropriate penalty is death.
18. Criminal Law.
Prosecutor's statements during closing argument in death penalty phase of murder prosecution regarding deterrence
and message that jury should send to others who prey on senior citizens were not improper pleas regarding
societal concerns and did not constitute prosecutorial misconduct.
phase of murder prosecution regarding deterrence and message that jury should send to others who prey on senior citizens were not
improper pleas regarding societal concerns and did not constitute prosecutorial misconduct.
19. Criminal Law.
Defendant was not entitled to argue last during penalty phase of murder prosecution under statute mandating that state open and
close argument. NRS 175.141.
OPINION
Per Curiam:
On December 1, 1994, Antoine Liddell Williams was charged with the commission of
seven felonies, including: first-degree murder, victim sixty-five years of age or older;
first-degree murder with use of deadly weapon, victim sixty-five years of age or older;
burglary, robbery, victim sixty-five years of age or older; robbery with use of deadly weapon,
victim sixty-five years of age or older; possession of stolen vehicle; and possession of
controlled substance.
On December 5, 1994, the State filed a notice of intent to seek the death penalty, alleging
the following aggravating circumstances: Williams committed the murders during a burglary,
during a robbery, to avoid or prevent a lawful arrest, and to receive money or any other thing
of monetary value and he has been convicted of more than one offense of murder in the first
degree.
In October 1995, a jury found Williams guilty on all seven counts. The penalty hearing
began on October 23, 1995, but the jury was unable to reach a unanimous verdict. Over
Williams' objection, a three-judge panel was convened, and a second penalty hearing was
conducted. The three-judge panel, concluding that the aggravating factors outweighed any
mitigating factors, sentenced Williams to death on both first-degree murder counts. On March
29, 1996, the court entered the judgment of conviction and warrant of execution.
Williams appeals, challenging both his convictions and sentences of death, alleging that
the district court erroneously admitted his confession, admitted unduly prejudicial
photographs, failed to give adequate jury instructions, denied his motion to empanel a new
jury for sentencing, denied him a fair trial due to prosecutorial misconduct, and denied his
motion to argue last at the penalty hearing.
We conclude that Williams' arguments are without merit and affirm both his convictions
and sentences.
FACTS
Antoine Liddell Williams, a resident of Illinois, had been staying at his girlfriend's
apartment a few doors away from the residence of William and Alice Nail in Las Vegas. On
August 17, 1994, Kathleen Dupree reported a maroon Datsun 280-Z stolen from in front of
her home in Las Vegas. On August 26, 1994, Williams drove William Nail to the Las Vegas
airport in Dupree's stolen car. Because his own car would not start due to a problem with the
battery, Mr. Nail had requested the ride to the airport to pick up his son, James Nail. At the
airport, Mr. Nail and his son rented a car to return to the Nails' residence. Mr. Nail thereafter
told his son that he had given Williams $20.00 for the ride to cover the cost of gasoline.
Three days later, Williams knocked at the Nails' front door. Williams asked about the
condition of Mr. Nail's car and asked to see the new battery. Mr. Nail invited Williams in and
escorted him through the house into the garage. While alone in the garage with Mr. Nail,
Williams asked for and received a $40.00 loan.
On Friday, September 2, 1994, Williams decided that he needed money to purchase drugs,
but that he was not willing to rob a store. He thought he could get the cash from the Nails.
Williams took a lamp cord from the apartment where he was staying, and went to the Nails'
apartment. Williams knocked on the front door and was invited in by Mr. Nail. The two men
went into the garage, where Williams asked Mr. Nail for another loan. After Mr. Nail refused
the loan, Williams removed the lamp cord from his pocket and strangled Mr. Nail. Mr. Nail
fell to the floor, and Williams kicked him in the head to ensure that he would not recover.
Williams then entered the kitchen where Mrs. Nail was preparing a meal. When she turned
her back, Williams used the same lamp cord to strangle Mrs. Nail. As she struggled, Williams
took a knife from the kitchen counter and stabbed Mrs. Nail in the throat. When she fell to the
floor, Williams kicked her in the head.
Williams took Mr. Nail's wallet, Mrs. Nail's purse and a radio, and placed them in a
container. He left the Nails' home with a VCR, and closed the door behind him. When he
realized he had forgotten the container with the other items, Williams kicked in the Nails'
front door to regain entry. He also took some jewelry boxes.
Upon leaving the Nails' home, Williams pawned the VCR, using his own name, and
received $35.00. He then purchased cocaine. At some later time, he found an ATM card and
personal identification codes in Mr.
identification codes in Mr. Nail's wallet, and withdrew as much money as the bank allowed
from Mr. Nail's account.
On September 4, 1994, Williams rented a room at a Las Vegas motel, using his own name.
That evening, a police officer watched Williams and two women walk out of the motel and
around the corner. The officer then saw the same three people leave the parking lot in a
maroon Datsun 280-Z. The officer checked the license number and was advised that the car
had been reported stolen. He called for backup and then pulled over the car. After the stop,
Williams exited the car and was handcuffed. A back-up officer read Williams his Miranda
rights. The arresting officer heard Williams acknowledge that he understood his rights. A
cursory search of the vehicle resulted in the officers' finding numerous ATM receipts, an
ATM card and other identification bearing Mr. Nail's name, and a free-base kit used for
smoking crack cocaine.
An officer transported Williams to the Clark County Detention Center, and, en route,
Williams initiated a conversation regarding the possible charges against him.
1
The officer
responded by listing several possible charges, among them possession of a controlled
substance.
A subsequent search of the vehicle revealed an Excedrin bottle containing a substance later
identified as cocaine, two jewelry boxes, keys, an electrical cord, two rolls of tape and a pair
of Fila tennis shoes. Credit cards, telephone cards, ATM cards and an automobile registration
in the name of James Nail and William Nail were also found.
Two officers attempted to reach the owner of the ATM card, Mr. Nail. The officers went
to the Nail residence and observed that the door had been kicked in. They entered the
apartment and found Mrs. Nail's body in the kitchen and Mr. Nail's body in the garage.
A forensic pathologist determined that Mr. Nail died as a result of asphyxiation due to
ligature strangulation and a fractured skull due to blunt trauma to the head. The pathologist
reported that Mrs. Nail died as a result of asphyxiation due to ligature strangulation, a stab
wound to the neck and blunt trauma to the head.
At the Clark County Detention Center, Williams again was advised of his Miranda rights,
and he voluntarily signed a waiver form. He then spoke freely with the detectives without
expressing a desire to have an attorney present, and subsequently confessed to entering the
Nails' residence, taking property from them, and killing them.
__________

1
The officer testified that Williams asked either What are the charges? or What am I charged for?
DISCUSSION
Suppressing the confession
A. Request for Counsel
[Headnote 1]
Williams contends that he invoked his right to counsel at the time of his arrest, when he was first advised of his Miranda rights. See
Miranda v. Arizona, 384 U.S. 436, 475 (1966). Williams argues that after being arrested and transported to the detention center, detectives
unlawfully approached him and undertook a custodial interrogation despite his former request for counsel. Edwards v. Arizona, 451 U.S.
477, 484-85 (1981) (Invoking the right to counsel bars further interrogation unless the accused himself initiates further communication,
exchanges or conversations with the police.). In the course of the custodial interrogation, Williams voluntarily confessed to entering the
Nails' residence, taking property, and killing them.
Both arresting officers testified that Williams was informed of his rights and that at no time did Williams indicate he wanted an
attorney present. The State produced a waiver of rights form, signed by Williams prior to his confession.
[Headnote 2]
Determining issues of credibility is within the province of the trier of fact. Howard v. State, 106 Nev. 713, 722, 800 P.2d 175, 180
(1990). On matters of credibility, this court will not reverse a trial court's finding absent clear error. Id. Ruling on Williams' motion to
suppress, the district court stated that there were:
some inconsistencies that Mr. Williams has with the witnesses, but all things being equal the Court is going to deny the motion to
suppress the confession because I feel that it was freely and voluntarily given and given properly.
The ruling implies that the court found the two officers' testimony that Williams did not request counsel more credible than Williams'
testimony that he did request the presence of an attorney. Had the district court found otherwise, it could not have properly denied the
motion. See Edwards, 451 U.S. 477. We conclude that the district court acted within its discretion by finding the officers' testimony more
credible than Williams', and that the court's implied finding that Williams had not invoked his right to counsel does not constitute error.
B. Knowing and Intelligent Waiver
[Headnote 3]
Williams argues that, even if he did not ask for an attorney, he did not knowingly and intelligently waive his rights. In Anderson v.
State, 109 Nev. 1129, 1133
v. State, 109 Nev. 1129, 1133, 865 P.2d 318, 320 (1993), this court held that the validity of a
waiver must be decided on a case-by-case basis, considering the accused's background,
experience and conduct, and the facts and circumstances surrounding the waiver.
At the end of the custodial interrogation in which Williams confessed, the detectives
prompted Williams to state, on the tape recording, whether the statements he made were
voluntary, and whether any promises or deals had been proposed to encourage his confession.
Williams stated that the detectives had made it clear that he did not have to say anything to
incriminate himself, that he knew the discussion could be stopped at any time and that no
deals or offers had been made. He also said, You're making sure that whatever I say will be
used in my best interests. (Emphasis added.)
Prior to the initiation of questioning, police must fully apprise the suspect of their intention
to use any statement to secure a conviction. Moran v. Burbine, 475 U.S. 412, 420 (1986).
Moran requires that a voluntary waiver of rights be made with full awareness of both the
nature of the right being abandoned and the consequences of the decision to abandon it. Id.
at 421.
The State argues that Williams was read his rights, including the portion which states that
anything he said could be used against him in a court of law, twice: once at his initial arrest,
and again immediately prior to his confession. He also signed a waiver card which again
stated that his statements could be used against him. Williams argues, however, that his
comment about using his statement, in [his] best interests, is evidence that he
misunderstood the intentions of the law enforcement officers to whom he confessed.
Williams contends that since the misunderstanding shows that his waiver was not knowingly
and intelligently made, the confession must be suppressed as having been taken in violation
of his rights.
Applying the rule from Anderson v. State, 109 Nev. 1129, 1133, 865 P.2d 318, 320
(1993), we must consider that Williams stated that he was familiar with Miranda rights from
having been arrested previously and from seeing them depicted on television and in movies.
Following his arrest, Williams indicated that he understood his rights each time they were
read to him. The detective who took Williams' confession described him as being calm and
well-spoken. The State argues that, taken as a whole, these facts and circumstances do not
demonstrate that Williams misunderstood his rights. We conclude that, despite Williams'
statement, the district court did not err in finding that he understood his rights and knowingly
and intelligently waived them prior to participating in the custodial interrogation.
Admission of photographs
[Headnotes 4, 5]
The decision to admit or exclude evidence, after balancing the prejudicial effect against the probative value, is within the discretion of
the trial judge. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985); see also NRS 48.035.
2
The trial court's determination will
not be overturned absent manifest error. Petrocelli, 101 Nev. 46, 692 P.2d 503.
[Headnote 6]
Williams argues that two photographs, one of each of the victims at the crime scene, were unnecessarily and extraordinarily gruesome
and that their prejudicial effect outweighed any probative value. The State contends that the photographs accurately depict the crime scene
and were probative to demonstrate the positions of the victims, footwear impressions, and other circumstances of the homicide.
After reviewing the two photographs, we conclude that the district court did not abuse its discretion in finding that the probative value
of the photographs outweighed any prejudicial effect, and in admitting the photographs into evidence.
Jury instructions
[Headnote 7]
Williams asserts that the trial court erred by failing to instruct the jury adequately regarding the distinction between malice
aforethought and premeditation/deliberation. Williams had proposed to modify Jury Instruction No. 17 by adding the language, Deliberate
means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed
cause (course) of action. He argues that without the proposed instruction, the jury was unable to understand, analyze or distinguish
between malice aforethought and premeditation/deliberation.
In essence, Williams is asking this court to overrule Powell v. State, 108 Nev. 700, 838 P.2d 921 (1992), regarding premeditation as an
element of first-degree murder. Powell states that so long as the jury instruction comports with the standard outlined in Briano v. State, 94
Nev. 422, 581 P.2d 5 (1978),
3
deliberateness" need not be defined separately.
__________

2
NRS 48.035 states, in relevant part, that although relevant, evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury.

3
The Briano standard states:
In order to make a case of murder in the first degree, the state must prove that a design to kill was distinctly and rationally formed
in the mind of the perpetrator, at or before the time that the fatal blows were
ness need not be defined separately. This rule was affirmed in Doyle v. State, 112 Nev. 879,
921 P.2d 901 (1996). Therefore, we conclude that the trial court properly rejected Williams'
proposed instruction.
Motion to empanel a new sentencing jury
Williams contends that the three-judge panel process outlined in NRS 175.556
4
violates a
defendant's right to an impartial tribunal and to due process of law by not providing a
mechanism for challenging the selection and qualification of panel members, and by returning
death sentences more often than juries do. This precise argument has been decided by this
court on numerous occasions, and found to be without merit.
5
As in Colwell and Riker,
Williams' counsel failed to provide any not-before-considered arguments to persuade this
court to overrule its holding in Paine.
Williams argues that using a three-judge panel to impose a sentence in a capital case
violates the Eighth and Fourteenth Amendments. He argues that the selection process invites
volunteers, and that the panels are arbitrary and capricious and act as tribunals organized to
return a verdict of death. Williams contends that the absence of procedural protections in the
selection and qualification of the three-judge jury violates a defendant's right to an impartial
tribunal, due process and a reliable sentence. Each of these arguments has been addressed,
considered and dismissed in recent Nevada Supreme Court cases.
6
Applying these holdings
to the case at bar, we conclude that Williams' arguments lack merit.
__________
struck. The state need not prove motive. Nor does it matter how short a time existed between the
formation of the design to kill and the killing itself.
Briano, 94 Nev. at 425, 581 P.2d at 7 (citations omitted).

4
If a jury is unable to reach a unanimous verdict upon the sentence to be imposed, the supreme court
shall appoint two district judges from judicial districts other than the district in which the plea is made,
who shall with the district judge who conducted the trial, or his successor in office, conduct the required
penalty hearing to determine the presence of aggravating and mitigating circumstances, and give sentence
accordingly.

5
See, e.g., Colwell v. State, 112 Nev. 807, 919 P.2d 403 (1996); Riker v. State, 111 Nev. 1316, 1326, 905
P.2d 706, 712 (1995), cert. denied,
------
U.S.
------
, 116 S. Ct. 1687 (1996); Paine v. State, 110 Nev. 609,
617-18, 877 P.2d 1025, 1030-31 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1405 (1995).

6
See, e.g., Colwell, 112 Nev. at 813-14, 919 P.2d at 407; Riker, 111 Nev. at 1326, 905 P.2d at 712, cert.
denied,
------
U.S.
------
, 116 S. Ct. 1687 (1996); Paine, 110 Nev. at 617-18, 877 P.2d at 1030-31, cert. denied,
514 U.S. 1038, 115 S. Ct. 1405 (1995); Beets v. State, 107 Nev. 957, 821 P.2d
Applying these holdings to the case at bar, we conclude that Williams' arguments lack merit.
Prosecutorial misconduct
[Headnotes 8-10]
When no objection is made in the district court, the issue is not preserved on appeal and appellate review is generally precluded unless
constitutional questions are raised. McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983). However, the trial court has a duty
to ensure that a defendant receives a fair trial. Witter v. State, 112 Nev. 908, 921 P.2d 886 (1996). To this end, the court must exercise its
discretionary power to control obvious prosecutorial misconduct sua sponte. Id. The relevant inquiry is whether a prosecutor's comments
are so unfair as to deprive the defendant of due process. Id.
Williams contends that multiple instances of prosecutorial misconduct in the penalty phase of his trial contributed to the jury's being
unable to return a unanimous sentence, causing sentencing to be undertaken by a three-judge panel which ultimately imposed a death
sentence. Absent such improper statements, Williams argues, the jury might well have reached consensus, possibly returning a life sentence
verdict.
The State argues that during the penalty phase, Williams objected to only one instance of alleged prosecutorial misconduct, and the
trial court exercised its discretion in overruling the objection. Further, the State argues that Williams' allegations are moot because the jury
did not impose his sentence at allthe three-judge panel did.
We will review the alleged errors to see if substantial error did occur. But before we would reverse this case because of prosecutorial
misconduct, it would have to be shown that the errors were of constitutional dimension and so egregious that they denied Williams his
fundamental right to a fair jury trial. See Ross v. State, 106 Nev. 924, 803 P.2d 1104 (1990).
A. Mercy as a Sentencing Factor
[Headnote 11]
During the State's penalty phase rebuttal closing argument, the prosecutor stated:
[Counsel for the defense] talks about mercy and leniency for the defendant. He suggest[s] that is a mitigating circumstance as
well. Perhaps it is. But if the punishment is supposedly to mete out justice then the punishment must fit the
crime.
__________
1044, cert. denied, 506 U.S. 838 (1991); McKenna v. State, 101 Nev. 338, 705 P.2d 614, cert. denied, 474 U.S. 1093 (1986).
supposedly to mete out justice then the punishment must fit the crime. When Antoine
Williams asks you for mercy and he says that he throws himself at the mercy of the
Court, consider the mercy that he gave his two victims.
(Emphasis added.)
Defense counsel's objection to the argument was overruled by the trial court. The
prosecutor continued:
When you take a look at these pictures and you look at what he did to these two
victims then you determine what mercy is appropriate.
Williams argues that it is improper for a prosecutor to ask a jury to show the defendant the
same sympathy that he showed his victim, citing Lesko v. Lehman, 925 F.2d 1527, 1545 (3d
Cir. 1991) (A prosecutor who implores a jury to make a death penalty determination in the
cruel and malevolent manner shown by defendant goes beyond the bounds of permissible
advocacy.). In this case, Williams' attorney raised the issue of mercy, and the State was
responding to that comment. The Lesko case is inapplicable to the facts of this case, and we
see no impropriety in the State responding as it did.
B. Community Standards
[Headnote 12]
The prosecutor made the following remarks in the penalty phase closing argument:
He [Williams] had advantages from the system and he took advantage of the system. The system failed William and Alice Nail
once because we didn't hold him in custody so he couldn't commit the unspeakable. Do not let the system fail them again. When
we failed them in the first instance it cost them their lives. Should we fail in this instance it will take away the meaning and
dignity of their lives.
(Emphasis added.) Williams argues that the prosecutor implied that the system's failure cost the Nails their lives, and that the jury carried
the burden of ensuring proper functioning of the criminal justice system in its sentencing of Williams. Williams interprets the prosecutor's
remarks as equating failure of the criminal justice system with returning less than a death penalty.
This court recently stated:
In commenting that anything less than the death sentence would be disrespectful to the dead, we conclude that the prosecutor
was merely pointing out to the jury that our society values human life, one who takes a human life in the manner that Witter
did should have to pay for his crime with his own life.
manner that Witter did should have to pay for his crime with his own life.
Witter v. State, 112 Nev. 908, 924, 921 P.2d 886, 897 (1996). Further, Mazzan v. State, 105
Nev. 745, 750, 783 P.2d 430 (1989), indicates that 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. We conclude that the prosecutor's statement is substantially similar to the
prosecutor's statements in Witter. Accordingly, we hold that this statement was proper, and
does not constitute prosecutorial misconduct.
C. Alleged Plea for Jury to Place Themselves in Victim's Position
[Headnote 13]
The prosecution continued its penalty phase argument by stating:
He didn't have to kill these people under any scenario that you can conjure up. Imagine the pain that they went through both
physically and mentally. Mr. Nail, knowing that his life is being snuffed out and worried about his wife in the other room, he
doesn't know what happened, he never did know that she was murdered. And Mrs. Nail the same. Somebody strangling her from
behind and she doesn't know what happened in the garage and she's dying and she knows she's dying but she doesn't even know
what happened to her husband and will never know.
(Emphasis added.) A Golden Rule argument asks the jury to place themselves in the shoes of the victims, and has repeatedly been
declared to be prosecutorial misconduct. See, e.g., Howard v. State, 106 Nev. 713, 719, 800 P.2d 175, 178 (1990); Jacobs v. State, 101
Nev. 356, 359, 705 P.2d 130, 132 (1988). Here, the prosecutor asked the jury to imagine the final moments of the victims' lives, and we do
not consider this a Golden Rule argument. See Witter v. State, 112 Nev. 908, 921 P.2d 886 (1996). Further, the prosecutor's remarks were
reasonable inferences from the evidence presented.
D. Diminished Responsibility for the Sentencing Verdict
[Headnote 14]
The prosecutor included the following remarks in his penalty phase closing argument to the jury:
The next step in the long process of justice is the jury makes a decision as to what is an appropriate punishment. You are not
the last step. You are the next step.
(Emphasis added.)
In Caldwell v. Mississippi, 472 U.S. 320 (1985), prosecutorial misconduct took the form
of informing the jury that its decision would be reviewed, therefore lessening the jury
members' sense of duty. The State contends that the prosecutor's statement is accurate, in that
the next logical step is carrying out the jury's decision. The State argues that the prosecutor
did not imply that a review of the verdict would be the next step. The State also contends that,
regardless of the statement, the jury was instructed to presume that if it returned a death
sentence, it must assume that the sentence would be carried out.
In Mazzan v. State, 103 Nev. 69, 733 P.2d 850 (1987), the prosecutor referred to the
process of criminal appeals in murder cases and the possibility of a murder verdict being
overturned. In considering this alleged error, we stated:
Mazzan argues that the prosecutor's remarks mandate reversal. We disagree. Mere
reference to the process of appellate review does not invalidate a death sentence. The
criminal defendant must also show that because of the nature of the prosecutor's
reference to the process of appellate review, the capital sentencing jury failed to
apprehend the gravity of its task in determining whether death is the appropriate
punishment.
Id. at 72, 733 P.2d at 851. We do not believe this one remark in any way reduced the jury's
appreciation of the gravity of its task. While prosecutors would be better off refraining from
remarks about the future criminal processing of the case, an isolated reference to future steps
in the case does not amount to prosecutorial error.
E. Prosecutor's Expression of Personal Beliefs
[Headnote 15]
At the penalty hearing, Williams argued for a life imprisonment sentence based on the concept that he could provide a positive role
model for other inmates and for youth who were on the threshold of a criminal lifestyle. Attacking that argument, the prosecution stated:
The question becomes this: It's a balancing decision. On the one hand you have the possibility that this defendant can become
a role model, and I agree with [the District Attorney], that is suspect.
(Emphasis added.)
[Headnote 16]
It is improper for a prosecutor to interject his personal opinion in closing argument. Ross v. State, 106 Nev. 924, 803 P.2d 1104
{1990).
(1990). However, in this case, the deputy district attorney was responding to the argument
that Williams could become a model prisoner by referring to the opening remarks made by
the district attorney, who was also prosecuting the case. Williams has not argued that the
remarks made by the first district attorney were improper, and we find no error in referring to
those remarks.
F. Misrepresentation of the Law
[Headnote 17]
In arguing the weighing process the jury must undertake regarding aggravating and mitigating circumstances, the prosecutor stated:
And if you find that the aggravating circumstances in this case tip the scale more, then the death penalty is an appropriate
sentence.
Williams argues that telling the jury that if it finds the aggravating circumstances outweigh the mitigating factors, then the death penalty is
the appropriate penalty is blatant misconduct. Williams' argument relies on Bennett v. State, 106 Nev. 135, 787 P.2d 797, cert. denied, 498
U.S. 925 (1990), holding that such a finding merely opens the door for the jury to consider the death penalty as a possible sentencing
option.
The State argues that the prosecutor did not state that the death penalty was the jury's only option. The prosecutor's own words reveal
that he stated that the death penalty was an appropriate sentencenot the appropriate sentence. But after a review of all the evidence, the
prosecutor is permitted to argue that the only appropriate penalty is death. Domingues v. State, 112 Nev. 683, 698-99, 917 P.2d 1364, 1375
(1996). Therefore, we conclude that Williams' argument lacks merit.
G. Duty to Society at Large
[Headnote 18]
Williams argues that the prosecution committed misconduct by overshadowing the jury's proper role and imposing an ethereal duty
involving society at large. References to the jury acting as the conscience of the community and as having to be angry unto death with a
defendant to qualify as a moral community have been identified as improper arguments amounting to prosecutorial misconduct. Haberstroh
v. State, 105 Nev. 739, 782 P.2d 1343 (1989); Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985), cert. denied, 486 U.S. 1036 (1988).
Williams challenges the following statements by the prosecutor as being improper pleas regarding societal concerns. He contends that
the prosecutor's remarks ask the jury to send a message to society at large, rather than determining the proper
punishment for this defendant for committing this crime.
that the prosecutor's remarks ask the jury to send a message to society at large, rather than
determining the proper punishment for this defendant for committing this crime. The
prosecutor stated:
And then there is deterrence. What is the message that we are to send other
individuals that prey on senior citizens? What is the message that we are to send to
other Antoine Williams that are going to prey upon senior citizens because they are
easy marks. By what happens here today sends a message to those other people.
Deterrence is an important function in your decision in this case.
And then finally the question becomes one of commitment. Each and every one of
you came before the Court in jury selection, you said that if the circumstances were
appropriate you would have to resolve the commitment, the determination to do your
legal duty. I suggest to you that the evidence is compelling, the viciousness of this
crime cries out for one punishment.
The United States Supreme Court has held that it is permissible to argue in favor of the
purposes of the death penalty, including the objectives of retribution and deterrence. See
Gregg v. Georgia, 428 U.S. 153, 183-87 (1976) (opinion of Stewart, Powell, and Stevens,
JJ.). This court has taken the same position that the prosecutor may go beyond the evidence
to discuss general theories of penology such as the merits of punishment, deterrence and the
death penalty. Witter v. State, 112 Nev. 908, 924, 921 P.2d 886, 897 (1996). In prior death
penalty cases, we have permitted the prosecutor reasonable latitude in doing this. See Atkins
v. State, 112 Nev. 1122, 923 P.2d 1119 (1996); Witter, 112 Nev. 908, 921 P.2d at 886;
Domingues v. State, 112 Nev. 683, 917 P.2d 1364 (1996). Therefore, the above argument was
proper.
We conclude that no prosecutorial error occurred in this trial as Williams claims and that
the prosecutors' remarks in no way deprived him of a fair hearing.
Motion to argue last at the penalty hearing
[Headnote 19]
Williams contends that NRS 200.030(4)
7
shifts the burden of proof to the defendant to prove that mitigating circumstances outweigh
aggravating circumstances. Citing Griffin v. Illinois, 351 U.S. 12, 2S {1956), Williams argues that those charged with
capital offenses must be granted special consideration.
__________

7
NRS 200.030(4) states, in relevant part, that a person convicted of murder of the first degree . . . shall be punished: (a) By death, only
if one or more aggravating circumstances are found and any mitigating circumstance or circumstances which are found do not outweigh the
aggravating circumstance or circumstances.
351 U.S. 12, 28 (1956), Williams argues that those charged with capital offenses must be
granted special consideration. He argues that the district court should have allowed him to
argue last during the closing arguments of the penalty hearing. As the State points out, this
court recently rejected this same contention in Witter v. State, 112 Nev. 908, 921 P.2d 886
(1996).
8
NRS 175.141
9
mandates that the State open and close the argument. The district court is
bound by statute and does not have the authority to allow Williams to argue last. See Witter,
112 Nev. at 923, 921 P.2d at 896. Therefore, we conclude that the district court did not err
when it denied Williams' request to argue last during the penalty phase.
The death sentence was not imposed under the influence of passion, prejudice or any
arbitrary factor
Williams does not raise this issue on appeal, however NRS 177.055(2) requires this court
to address it. We conclude that the record contains sufficient evidence for the panel to have
found that the aggravating factors outweighed the mitigating circumstances, and thus
rendered a death sentence without passion, prejudice or other arbitrary factor.
CONCLUSION
We conclude that the district court was within its discretion to admit Williams' confession
as well as the photographs of the crime scene into evidence. We also conclude that the district
court provided the jury with adequate instructions regarding malice aforethought and
premeditation/deliberation. We conclude that the district court properly denied Williams'
motion to empanel a new jury for sentencing and his motion to argue last at the penalty
hearing. Finally, we conclude that no prosecutorial misconduct occurred. Therefore, we
conclude that Williams' arguments are without merit and affirm in all respects the judgment
of convictions and the sentences imposed thereon.
10
__________

8
In Witter, 112 Nev. at 923, 921 P.2d at 896, we stated:
First, we read NRS 200.030(4) as stating that the death penalty is an available punishment only if the
state can prove beyond a reasonable doubt at least one aggravating circumstance exists, and that the
aggravating circumstance or circumstances outweigh the mitigating evidence offered by the defendant.
The statute does not shift the burden of proof to the defendant.

9
NRS 175.141 states, in relevant part, that when the evidence is concluded . . . the district attorney, or other
counsel for the state, must open and must conclude the argument.

10
____________
113 Nev. 1025, 1025 (1997) Riverboat Hotel Casino v. Harold's Club
RIVERBOAT HOTEL CASINO, Appellant, v.
HAROLD'S CLUB, Respondent.
No. 28817
August 28, 1997 944 P.2d 819
Appeal from an order of the district court denying a petition for judicial review in a State
Industrial Insurance System matter. Second Judicial District Court, Washoe County; Brent T.
Adams, Judge.
Workers' compensation claimant's full-time employer, for which claimant worked as
blackjack dealer, petitioned for review of hearing officer's decision that full-time employer,
rather than part-time concurrent employer for which claimant also worked as blackjack
dealer, was fully responsible for claimant's hand and wrist injuries. The district court
affirmed. Full-time employer appealed. The supreme court held that: (1) last injurious
exposure rule did not apply to concurrent employers, and (2) apportionment of employers'
responsibility on basis of each employer's responsibility for wages was appropriate.
Piscevich and Fenner, Reno, for Appellant.
Perry and Spann and Douglas R. Rands, Reno, for Respondent.
Function of supreme court in reviewing administrative decision is identical to district court's.
Reviewing court shall not substitute its judgment for that of agency in regard to question of fact.
Standard for reviewing administrative agency's factual finding is whether finding was clearly erroneous or arbitrary abuse of
discretion.
Administrative agency decisions on questions of law are reviewed de novo.
Under last injurious exposure rule, full liability is placed upon workers' compensation carrier covering risk at time of most recent
injury that bears causal relation to disability.
Application of last injurious exposure rule in workers' compensation proceeding forestalls any determination regarding which
employment was primary cause of work-related disease or injury.
Last injurious exposure rule did not apply to determination of which of workers' compensation claimant's employers was
responsible for her injury, where claimant worked for employers simultaneously rather than successively,
performing a job for each that could have caused her injuries.
injury, where claimant worked for employers simultaneously rather than successively, performing a job for each that could have caused
her injuries.
Employers' responsibility for workers' compensation claimant's hand and wrist injuries would be apportioned on basis of each
employer's responsibility for wages, where claimant worked for both employers concurrently as blackjack dealer for a total of 64 to 72
hours per week, and her condition was result of overuse.
OPINION
Per Curiam:
Febe Gothro (Gothro) worked full-time for appellant Riverboat Hotel Casino (Riverboat)
dealing double-deck blackjack and part-time with respondent Harold's Club dealing
single-deck blackjack. While working for both Riverboat and Harold's Club, Gothro began to
experience work-related pain in her left wrist. She filed a notice of injury with Riverboat in
July, 1993; however, she did not seek medical treatment until March, 1994, when she filed
claims for compensation with Riverboat, Harold's Club, and the State Industrial Insurance
System (SIIS). Her claims were denied, and she requested a hearing. A hearing officer
affirmed Harold's Club and SIIS's denial of Gothro's claims, but reversed Riverboat's
determination, ordering it to assume full responsibility for Gothro's claim. An appeals officer
affirmed the hearing officer's decision. Riverboat petitioned the district court for judicial
review; the district court denied Riverboat's petition and affirmed the appeals officer's
decision. We conclude that the appeal's officer erred and that liability for Gothro's claim
should have been apportioned between Riverboat and Harold's Club on the basis of each
employer's responsibility for wages.
FACTS
On October 11, 1992, Gothro began working full-time (forty hours per week) for
Riverboat dealing double-deck blackjack. On April 20, 1993, Gothro also began dealing
single-deck blackjack part-time (twenty-four to thirty-two hours per week) at Harold's Club,
working three or four eight-hour shifts a week. In July of 1993, Gothro filed an injury report
with Riverboat, complaining of pain in her left wrist. The report was forwarded to SIIS,
which was Riverboat's industrial insurer in July, 1993. Gothro did not seek medical treatment
at this time. On March 7, 1994, Gothro filed another injury/occupational disease report with
Riverboat, complaining of pain in both wrists and the backs of her hands. By this time,
Riverboat had become self-insured.
1
That same day, Gothro sought medical care for her
condition. Dr. Lex Simpson found that she had tendinitis caused by repetitive use in
dealing and shuffling cards and completed a "C-4" form for submission to SIIS.
__________

1
Harold's Club was self-insured during the period Gothro worked for it.
Gothro sought medical care for her condition. Dr. Lex Simpson found that she had tendinitis
caused by repetitive use in dealing and shuffling cards and completed a C-4 form for
submission to SIIS. On March 29, 1994, Gothro filed a claim with SIIS asking it to reopen
her case. On April 19, 1994, Gothro's attorney asked SIIS to determine the compensability of
her claim. On June 15, 1994, SIIS responded that since no claim had been filed with SIIS
while it had insured Riverboat (SIIS had only received an injury notice in July, 1993), it could
not render a determination.
Meanwhile, on May 5, 1994, Gothro filed an injury report with Harold's Club, after
presenting Dr. Simpson's diagnosis to a Harold's Club supervisor in April, 1994. In the report,
Gothro claimed that she had attempted to file an injury report with her pit boss and various
supervisors in July, 1993, but had been refused. However, Gothro testified before the
appeals officer that she did not talk to anyone at Harold's Club about her injuries until
December, 1993. In December, 1993, Gothro complained to a Harold's Club pitboss, Linda
Limbrada, and several supervisors that her hands hurt. Limbrada asked Gothro if she had
injured her hands/wrists at work. Gothro said no because she did not know if the pain had
been caused by the job. Allegedly, Limbrada then stated that since the injury was not
work-related, a report could not be filed. Gothro testified that she had thought that Limbrada
was asking her whether she had had an accident at work, like dropping something on her
hands or slamming them in a door, and that was why Gothro said that her injury was not job
related. On May 23, 1994, Harold's Club denied Gothro's claim as a preexisting condition
due to [her] primary employment with the Riverboat Hotel & Casino, citing the fact that she
had first filed an injury report with Riverboat, and not Harold's Club, in July, 1993two
months after starting work at Harold's Club.
On June 9, 1994, another physician, Dr. Steven Atcheson, sent a letter to Riverboat's
insurance administrator, Nevada Administrators. In the letter, Dr. Atcheson confirmed Dr.
Simpson's diagnosis of industrially caused use-related hand and wrist pain. Of interest, Dr.
Atcheson also stated the following:
[Gothro] is working what sounds like almost two full time jobs dealing twenty-one and
I think I would be rather stunned if she did not have some degree of hand and wrist
pain.
. . . .
I do believe that she can continue in her current position as a double deck twenty-one
dealer, but that is going to cause her more pain than dealing single deck.
. . . .
It is impossible for me to state which job is the more proximate cause of her current
discomfort. I would guess that both are about equally involved in contributing to her
pain, excepting that shuffling the double deck is more painful to her than the single
deck.
(Emphasis added.)
In an earlier letter sent to Riverboat's attorney, Dr. Atcheson stated, among other things:
I believe that [Gothro's] pain has arisen as a result of working two separate jobs as a
dealer. . . . I cannot state which job contributed more to her symptoms. I would note
that she did not have any symptoms of hand pain when she was working a single
40-hour per week job. . . . Her symptoms apparently did not arise until her dual
employment commenced.
(Emphasis added.) Notwithstanding Dr. Atcheson's correspondence, on June 20, 1994,
Riverboat denied Gothro's claim as untimely because she had reported the injury in July,
1993, but did not seek medical treatment until March 7, 1994.
Gothro timely filed an appeal of SIIS's, Harold's Club's, and Riverboat's determinations to
deny coverage. According to Gothro, she quit working for Harold's club in August, 1994, due
to the pain in her hands and wrists; she continued working full-time for Riverboat. On August
4, 1994, a hearing officer affirmed SIIS's and Harold's Club's denial of Gothro's claims,
2
but
reversed Riverboat's determination, finding that Gothro's job duties performed at [Riverboat]
proximately caused the bilateral overuse syndrome. There was no specific determination as
to whether Gothro's condition preexisted her employment with Harold's Club.
On March 24, 1995, an appeals officer affirmed the hearing officer's decision. The appeals
officer noted that all parties agreed that Gothro's injury was industrially caused. Before the
appeals officer, Riverboat argued that Harold's Club bore sole responsibility for Gothro's
condition pursuant to the last injurious exposure rule. Alternatively, Riverboat contended
that if it was at all responsible for Gothro's claim, such responsibility arose in July, 1993
(when Gothro first filed a notice of injury but did not seek medical treatment), when
Riverboat was still insured by SIIS.
In its findings of fact, the appeals officer stated:
__________

2
Technically speaking, SIIS did not deny Gothro's claim because it maintains that there was no claim filed
with it.
[T]here is no medical reporting which supports finding either Harolds Club [sic] or the
Riverboat primarily responsible for claimant's condition and the hypothesis that
double-deck dealing at the Riverboat was more causative than single-deck dealing at
Harolds Club [sic] or that claimant did not suffer problems until she undertook
employment beyond the standard 40-hour work weeks is just thathypothesis by
counsel which expert physician[s] are unwilling to make.
(Footnote omitted.) The appeals officer concluded that pursuant to the last injurious exposure
rule, Riverboat was solely responsible for Gothro's claim and that the date of the claim
(March 7, 1994) rather than the date of her first report of injury (July 12, 1993) was
determinative. Accordingly, the appeals officer ordered Riverboat, as a self-insured employer,
to assume full responsibility for Gothro's claim.
On June 6, 1995, Riverboat petitioned the district court for judicial review. The district
court denied Riverboat's petition and affirmed the appeals officer's decision. On appeal to this
court, Riverboat argues that the appeals officer erred in concluding that under the last
injurious exposure rule it, and not Harold's Club, was responsible for Gothro's
industrially-caused condition. Riverboat asserts that the appeals officer's finding that there
was not any medical evidence to support the position that Gothro did not suffer any
symptoms until she began working two jobs was not supported by substantial evidence in the
record. In the alternative, Riverboat asserts that, because this case involved concurrent rather
than successive employers, the appeals officer abused her discretion by failing to apportion
liability for Gothro's industrial injury between Riverboat and Harold's Club.
3
DISCUSSION
[Headnotes 1-4]
The function of this court in reviewing an administrative decision is identical to the district court's. A reviewing court shall not
substitute its judgment for that of an agency in regard to a question of fact. The standard for such review is whether the agency's decision
was clearly erroneous or an arbitrary abuse of discretion. However, questions of law are reviewed de novo. Collett Electric v. Dubovik, 112
Nev. 193, 196, 911 P.2d 1192, 1195 (1996).
[Headnotes 5, 6]
The last injurious exposure rule is a judicial creation which provides a means of assigning liability when two successive
employers are both potentially liable for a claimant's injury or occupational disease.
__________

3
On October 29, 1996, we granted Riverboat's motion to remove SIIS as a respondent.
provides a means of assigning liability when two successive employers are both potentially
liable for a claimant's injury or occupational disease. The rule states: Full liability is placed
upon the carrier covering the risk at the time of the most recent injury that bears a causal
relation to the disability. SIIS v. Swinney, 103 Nev. 17, 19, 731 P.2d 359, 360 (1987).
Application of the rule forestalls any determination regarding which employment was the
primary cause' of a work-related disease or injury. Collett, 112 Nev. at 197, 911 P.2d at
1195.
[Headnote 7]
In the instant case, the appeals officer concluded that the rule conferred full responsibility on Riverboat as Gothro's last
employer-insurer-carrier . . . at the time of the most recent injury that bears a causal relationship to the disability.' However, the last
injurious exposure rule has previously been applied only in the context of successive employer cases. See, e.g., SIIS v. Jesch, 101 Nev. 690,
696, 709 P.2d 172, 176 (1985). The instant situation is distinguishable in that the injury arose during simultaneous or concurrent
employment; on the date of Gothro's most recent injury, Gothro was working forty hours per week with Riverboat while simultaneously
working twenty-four to thirty-two hours per week with Harold's Club.
We conclude that the last injurious exposure rule is not applicable in the concurrent employment context. In Colwell v. Trotman, 615
P.2d 1094, 1096 (Or. Ct. App. 1980), the court reasoned:
[T]he last injurious exposure rule was judicially created . . . ; it represents a policy decision to place responsibility for
compensation upon an identifiable employer rather than placing disabled workers in the untenable position of proving which of
two or more equally likely possibilities is true and/or of being barred by limitation periods from recovering compensation because
an occupational disease may have been contracted in the service of a prior employer. The rule makes complete sense in the context
of successive employments which contribute to an occupational disease; it makes little sense in the present context, where the
worker was exposed to conditions which contributed to her occupational disease in two separate but simultaneous employments.
(Emphasis added.)
Although Riverboat and Harold's Club each argue that if the last injurious exposure rule applies it places full liability on the other, we
conclude that it was error for the appeals officer to apply the rule in this situation. Here, the injury occurred while Gothro was
simultaneously working forty hours per week for Riverboat and twenty-four to thirty-two hours per week for Harold's
Club, performing a job at both places that could have caused her hand and wrist problems.
Riverboat and twenty-four to thirty-two hours per week for Harold's Club, performing a job at
both places that could have caused her hand and wrist problems.
[Headnote 8]
We further conclude that apportionment of responsibility is the most equitable way to deal with concurrent employment situations. It
appears from the record that Gothro probably would not have injured her wrists had she just worked forty hours for the Riverboat or
twenty-four to thirty-two hours per week at Harold's Club. Her condition was a result of overuse, and it manifested itself while she was
working sixty-four to seventy-two hours per week dealing cards for two employers.
There is case law from other states in support of apportionment in concurrent employment scenarios. In Colwell, a dental hygienist
worked for one dentist on Tuesdays of each week, and worked Wednesdays, Thursdays, and Fridays of each week for a second dentist.
While working for both dentists, she developed a work-related condition in her elbow, which necessitated her quitting both positions. Id.
She made claims against both dentists; the Wednesday through Friday employer accepted her claim, but the Tuesday employer denied her
claim. Id. A referee upheld the Tuesday employer's determination, stating that although the hygienist's condition was contributed to by both
employments, her last work day had been for the Wednesday through Friday employer, and thus, the last injurious exposure rule was
applicable, placing full liability on that employer. Id. The referee apparently adopted an argument almost identical to Harold's Club's
contention that Riverboat continued to employ Gothro after she quit working for Harold's Club, and was thereby her last employer.
On appeal, the court reversed the referee's determination and concluded that apportionment was not precluded in this concurrent
employment situation. Id. at 1097. However, the court did not consider how liability should be apportioned between both employers and
remanded that issue to the Workers' Compensation Board. Id.; see also Clemmer v. Carpenter, 648 P.2d 341, 347-48 (N.M. Ct. App. 1982)
(holding that if employee is injured while providing services to concurrent employers and injury cannot be attributed to a specific
employer, but . . . services [are] performed for both employers, then both employers are liable).
Apportionment of liability between concurrent employers is a factual determination. 1B Arthur Larson, Worker's Compensation Law
48.50 (1996). Other jurisdictions dealing with concurrent employment contexts have held that an employee's award should be paid by each
employer in the same proportion as wages were paid to the employee.
were paid to the employee. See Sirkin and Levine v. Timmons, 652 A.2d 1079, 1080 (Del.
Super. Ct. 1994) (affirming Industrial Accident Board's apportionment of payments based on
responsibility for wages of each of two concurrent employers); Holdren v. Lease
Management, Inc., 233 N.W.2d 59 (Mich. Ct. App. 1975) (holding concurrent employers
liable for employee's injury and apportioning damages according to the amounts the two
employers had contributed to the employee's overall income); Koch v. Horseshoe Stables,
261 N.Y.S.2d 123 (App. Div. 1965) (holding that where employee was paid $60 by one
employer and $15 by the other, the concurrent employers should pay the award in the same
proportion). We conclude that in concurrent employment situations, apportionment on the
basis of each employer's responsibility for wages is appropriate and that Harold's Club and
Riverboat are responsible for Gothro's claim in the same proportion as they contributed to her
overall wages.
CONCLUSION
Financial responsibility for Gothro's claim should be apportioned between Harold's Club
and Riverboat on the basis of each employer's responsibility for wages to Gothro at the time
of her March 7, 1994 injury. Therefore, we reverse and remand this case to the district court
for further proceedings consistent with this opinion.
____________
113 Nev. 1032, 1032 (1997) Worldcorp v. State, Dep't Tax.
WORLDCORP, WORLDCORP LEASING, INC., WORLDCORP LEASING II, INC., and
KEY AIRLINES, INC., Appellants, v. THE STATE OF NEVADA, DEPARTMENT
OF TAXATION, an Agency of the State of Nevada, Respondent.
No. 28135
August 28, 1997 944 P.2d 824
Appeal from an order of the district court denying appellant's claim for a refund of sales
and use taxes. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Taxpayers appealed decision of Department of Taxation denying sales and use tax refund
claim. The district court dismissed appeal and taxpayers appealed. The supreme court held
that: (1) taxpayers who were parties to airplane lease transaction had standing to challenge
revocation of exemption for airplane sales, and (2) statute exempting gross receipts from sale
of aircraft to air carrier if air carrier maintains central office in state violated commerce
clause.
carrier if air carrier maintains central office in state violated commerce clause.
Hale, Lane, Peek, Dennison, Howard, Anderson & Pearl and Robert C. Vohl, Reno; and
Graham & James LLP and James P. Kleier, San Francisco, California, for Appellants.
Frankie Sue Del Papa, Attorney General, Kerry L. Schomer and John S. Bartlett, Deputy
Attorneys General, Carson City, for Respondent.
1. Statutes.
When statutory language is clear on its face, its intention must be deduced from such language.
2. Taxation.
Statute exempting gross receipts from sale of aircraft to air carrier from sales and use taxation applied to gross receipts of aircraft
lease transaction and exempted lease transaction itself, not parties to transaction. NRS 372.317.
3. Taxation.
Statute exempting from sales and use tax gross receipts from airline lease payments if air carrier holds certificate to engage in air
transportation, bases majority of its aircraft in state and maintains central office in state did not require seller or lessor of aircraft to
hold air transportation certificate. 49 U.S.C. 1371; NRS 372.317.
Both parties to airplane lease transaction benefitted from sales and use tax statute exempting gross receipts from sale or lease of
aircraft to qualified air carrier and, thus, had standing to challenge constitutionality of allegedly wrongful revocation of exemption.
NRS 372.317.
5. Commerce; Taxation.
Sales and use tax statute exempting gross receipts from sale of aircraft to air carrier which holds air transportation certificate only
if air carrier maintains its central office in state violated commerce clause. U.S. Const. art. 1, 8, cl. 3.
OPINION
Per Curiam:
The facts in this case are brief and undisputed. Indeed, both parties stipulated that only
issues of law exist for this court to decide.
On November 10, 1987, respondent State of Nevada, Department of Taxation
(Department), granted appellant Key Airlines, Inc. (Key) a sales and use tax exemption
on its aircraft pursuant to NRS 372.317. NRS 372.317 states:
There are exempted from the taxes imposed by this chapter the gross receipts from the
sale of aircraft and major components of aircraft, such as engines and other
components made for use only in aircraft, to an air carrier which:
nents of aircraft, such as engines and other components made for use only in aircraft, to
an air carrier which:
1. Holds a certificate to engage in air transportation issued pursuant to 49 U.S.C.
1371 and is not solely a charter air carrier or a supplemental air carrier as described in
Title 49 of the United States Code; and
2. Maintains its central office in Nevada and bases a majority of its aircraft in
Nevada.
At the time of the exemption, Key's central office was located in Las Vegas, and a majority of
its aircraft was stationed in Nevada.
In 1988, appellant Worldcorp (Worldcorp) acquired Key. Thereafter, Key joined
appellants Worldcorp Leasing, Inc. (Leasing I), and Worldcorp Leasing II, Inc. (Leasing
II), as wholly-owned subsidiaries of Worldcorp. Since the central offices of Worldcorp,
Leasing I, and Leasing II were located in Herndon, Virginia, Worldcorp moved Key's
headquarters to Herndon. Thus, Key sent a letter informing the Department of these events.
On May 3, 1988, the Department responded to Key's missive by rescinding the sales and use
tax exemption granted in 1987. The Department's rescission was based on Key's central office
being relocated to Herndon.
1
Key did not protest the Department's determination to rescind
the exemption.
On June 30, 1988, Leasing I purchased six aircraft which were subsequently leased to Key.
On October 5, 1988, Leasing II leased two more aircraft to Key. Key paid Leasing I and
Leasing II $58,000.00 a month for each leased aircraft. The leases were entered into so that
Key could meet its contractual obligations with the Military Airlift Command stationed at
Nellis Air Force Base in Las Vegas. That contract required Key to always have three to five
aircraft in Nevada seven days a week, twenty-four hours a day at the disposal of the Military
Airlift Command. Those planes leased by Key which were not being rotated through Nellis
Air Force Base were used for interstate commerce.
Between July 1, 1989, and June 30, 1992, Worldcorp, Leasing I, Leasing II, and Key
(collectively Taxpayers) paid sales and use tax on the gross receipts of the aircraft lease
payments, which totaled $469,608.60. Nevertheless, on January 28, 1993, the Department
levied an additional assessment of sales and use tax for the period of July 1, 19S9,
through June 30, 1992.
__________

1
The notice of rescission issued by the Department provided in relevant part:
Original information supplied indicated Key Airlines moved its main executive offices to Las Vegas in
October 1985 and was in fact then based in Nevada. Documentation now indicates, Key Airlines has been
acquired by Worldcorp and is now based in Herndon, Virginia. . . . [W]e hereby rescind the exemption
letter issued to Key Airlines and declare Key Airlines has not met the statutory qualification for
exemption.
Department levied an additional assessment of sales and use tax for the period of July 1,
1989, through June 30, 1992. The assessment was based on the gross receipts of the aircraft
lease payments and totaled $156,025.80.
On February 26, 1993, under protest, Taxpayers paid the assessment. On June 30, 1993, a
claim for a refund in the amount of $351,410.40 was submitted to the Department by
Taxpayers. Taxpayers claimed that gross receipts of the lease payments were exempt from
sales and use tax under NRS 372.317. Alternatively, Taxpayers maintained that NRS 372.317
violated the Commerce Clause of the United States Constitution because it unfairly burdened
interstate commerce by exempting from sales and use tax only those entities with central
offices located in Nevada.
On December 29, 1993, the Department rejected Taxpayers' claim for a refund on the basis
that Leasing I and Leasing II lacked standing to sue. Further, the Department noted that
exemption from use taxes in Nevada was found to be constitutional pursuant to Great
American Airways v. Tax Commission, 101 Nev. 422, 705 P.2d 654 (1985).
Taxpayers appealed the Department's decision to the district court. Without reaching the
constitutional issue, the district court dismissed the appeal on the following basis:
3. Leasing I, Leasing II, and Worldcorp do not qualify for an exemption under NRS
372.317 because they do not hold a certificate to engage in air transportation.
Therefore, the Court need not reach the constitutionality of NRS 372.317(2) as applied
to those parties.
4. Key has no rights to assert under NRS 372.317 because it was not assessed a tax
and thus has not been injured as the result of the revocation of its exemption. Therefore,
the Court need not reach the constitutionality of NRS 372.317(2) as applied to Key.
Taxpayers now appeal to this court, arguing essentially the same grounds argued before the
district court.
The district court ruled that Key and Worldcorp lacked standing to challenge NRS 372.317
because they were not responsible for paying the sales and use tax. That obligation fell on
Leasing I and Leasing II. However, the lower court denied Leasing I and Leasing II the
opportunity to challenge the sales and use tax exemption because, as lessors, they did not
possess the proper air transportation certificate required by NRS 372.317. Only Key held the
requisite certificate. We conclude that the trial court erred in its interpretation of NRS
372.317.
[Headnotes 1, 2]
It is well settled in Nevada that when statutory language is clear on its face, its intention must be deduced from such
language.
clear on its face, its intention must be deduced from such language. Cleghorn v. Hess, 109
Nev. 544, 548, 853 P.2d 1260, 1262-63 (1993). Here, the dispositive language in NRS
372.317 for resolution of the standing issue states: There are exempted from the taxes
imposed by this chapter the gross receipts from the sale of aircraft . . . to an air carrier . . . .
(Emphasis added.)
2
From this plain language, it is clear that the sales and use tax exemption
applies to the gross receipts of the lease transaction. Thus, it is the transaction itself which is
exempted, not the parties to the transaction.
[Headnotes 3, 4]
The plain language of NRS 372.317 exempts from sales and use tax the gross receipts from lease payments so long as the air carrier
(and not a seller/lessor) holds a certificate to engage in air transportation pursuant to 49 U.S.C. 1371 (1994), bases a majority of its
aircraft in Nevada, and maintains a central office in Nevada. Since both parties to the transaction benefit from the exemption under NRS
372.317, both have standing to challenge an allegedly wrongful revocation. Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318,
320 n.3 (1977). Therefore, we conclude that the trial court erred in its determination that Leasing I, Leasing II, and Key all lacked standing
to challenge the constitutionality of NRS 372.317.
3
Accordingly, we now turn our discussion to the constitutionality of NRS 372.317.
__________

2
The word sale in NRS 372.317 encompasses a lease. NRS 372.060, the statutory provision defining sale for purposes of NRS
372.317, provides in relevant part:
1. Sale means and includes any transfer of title or possession, exchange, barter, lease or rental, conditional or otherwise, in
any manner or by any means whatsoever, of tangible personal property for a consideration.
2. Transfer of possession, lease, or rental includes only transactions found by the tax commission to be in lieu of a
transfer of title, exchange or barter.
(Emphasis added.)

3
In light of the fact that the recision letter expressly stated that Key's relocation triggered the loss of tax exemption, we are unpersuaded
by Department's argument which attempts to negate Taxpayer's standing by distinguishing between a lease and true lease. See also
Morse v. Morse, 99 Nev. 387, 388, 663 P.2d 349, 350 (1983) (precluding parties from challenging stipulated facts).
The Department also argues that this case has nothing to do with sales tax. Rather, Leasing I and Leasing II were paying use tax on the
leases. However, the plain language of NRS 372.317 exempts all taxes imposed by the Sales and Use Tax Act. NRS 372.317. As use tax
is part of NRS 372 et seq., the exemption must also apply to use tax. Additionally, the Department admitted in the stipulated facts that
Taxpayers' exemption included sales and use tax on the leases.
[Headnote 5]
The Commerce Clause states: The Congress shall have power . . . [t]o regulate Commerce . . . among the several States . . . . U.S.
Const. art. I, 8, cl. 3. The United States Supreme Court has interpreted this language to prevent states from discriminating or burdening
interstate commerce. New Energy Co. of Indiana v. State Tax Comm'n, 486 U.S. 270, 272 (1988). Specifically, the Court has held that no
state may impose a tax which discriminates against interstate commerce . . . by providing a direct commercial advantage to local
business. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457 (1959).
In Armco Inc. v. Hardesty, 467 U.S. 638 (1984), the state of West Virginia imposed a gross receipts tax on businesses selling tangible
property at wholesale prices. However, local manufacturers in West Virginia were exempt from the tax. Id. at 640. Appellant Armco Inc.
(Armco), a steel manufacturer, was an Ohio corporation qualified to do business in West Virginia. Id. at 639. Through its franchisees and
resident salesmen, Armco claimed it was entitled to the gross receipts exemption on the steel it sold in West Virginia. Id. at 640. When the
local tax commission sought to enforce the tax, Armco refused to pay it, claiming the exemption violated the Commerce Clause by
discriminating against interstate commerce. Id. at 641.
The West Virginia Supreme Court upheld the tax, but the U.S. Supreme Court reversed. Id. In striking down the statute as a violation
of the Commerce Clause, the Supreme Court stated:
[A] State may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the
State.
On its face, the gross receipts tax at issue here appears to have just this effect. The tax provides that two companies selling
tangible property at wholesale in West Virginia will be treated differently depending on whether the tax payer conducts
manufacturing in the State or out of it.
Id. at 642.
The instant matter is analogous to Armco. NRS 372.317 provides that two companies will be taxed differently depending on the
domicile of their respective central offices. Those headquartered in Nevada will receive the tax exemption while corporations headquartered
in a foreign jurisdiction will not. Key would have qualified for the tax exemption, but for the simple fact it moved its central office to
Virginia. This disparate treatment between domestic and foreign corporations is precisely the type of economic protectionism prohibited by
the Commerce Clause. As the Supreme Court stated in Bacchus Imports, Ltd. v. Dias, 486 U.S. 263, 273-74 {19SS), "regulatory
measures designed to benefit instate economic interests by burdening out-of-state competitors [violate the
Commerce Clause].
263, 273-74 (1988), regulatory measures designed to benefit instate economic interests by
burdening out-of-state competitors [violate the Commerce Clause].
4
Therefore, we conclude
that NRS 372.317 must be stricken from our statutory scheme because it runs afoul of the
Commerce Clause.
5
When a tax statute is determined to be unconstitutional, the taxpayer is entitled to a refund.
Iowa-Des Moines Nat'l Bank v. Bennet, 284 U.S. 239, 247 (1931). The parties in this case
have stipulated that Leasing I, Leasing II, and Key are entitled to a refund of $156,025.80, if
NRS 372.317 is found unconstitutional. Accordingly, we reverse the district court's order and
remand this matter to the district court. On remand, the district court shall instruct the
Department to refund the stipulated amount.
____________
113 Nev. 1038, 1038 (1997) Jordan v. Bailey
VICTOR JORDAN, Appellant, v.
STANLEY BAILEY, Respondent.
No. 28167
August 28, 1997 944 P.2d 828
Appeal from judgment of the district court in respondent's favor. Second Judicial District
Court, Washoe County; Jerry Carr Whitehead, Judge.
After he was acquitted on criminal trespass charges filed by property owner whose land he
had crossed to reach aqueduct facility, holder of local water rights sued owner for malicious
prosecution, and owner counterclaimed seeking declaration that rights holder had no
right to cross property to maintain system.
__________

4
The Department makes passing reference to the constitutionality of NRS 372.317 based on this court's ruling
in Great American Airways v. Tax Commission, 101 Nev. 422, 705 P.2d 654 (1985). In Great American
Airways, this court upheld a use tax assessed to a Nevada-based air carrier which purchased a plane in Kansas
but used it in Nevada. Id. at 424, 705 P.2d at 656. However, that case is distinguishable in two respects. First,
that case addressed the discriminatory effect of NRS 372.320 on interstate commerce. The language of that
statute varies dramatically from NRS 372.317 in that NRS 372.320 contains no requirements regarding the
maintenance of a central office or a majority of goods in Nevada. Second, the appellant was not unfairly
discriminated against in Great American Airways because all businesses which stored an airplane in Nevada,
regardless of their corporate domicile, were subject to the use tax. In this case, the Department is seeking to levy
a sales and use tax simply because a Nevada-based air carrier has its home office in a foreign state.

5
We need not address Taxpayers' equal protection argument. See, e.g., Director, Dep't Prisons v. Arndt, 98
Nev. 84, 86, 640 P.2d 1318, 1320 (1982) (noting that [i]t is well settled that this court will not address
constitutional issues unless the[y] are requisite to the disposition of a case).
prosecution, and owner counterclaimed seeking declaration that rights holder had no right to
cross property to maintain system. The district court entered judgment for rights holder, and
declared three prescriptive easements. Property owner appealed, and the supreme court held
that: (1) holder failed to establish prescriptive easement over path to sand trap which was part
of aqueduct system; but (2) prescriptive easement existed for roadway and pipeline across
property; and (3) property owner had legally tenable grounds for filing trespass charges.
[Rehearing denied October 2, 1997]
Jeffrey A. Dickerson, Reno, for Appellant.
Marshall, Hill, Cassas & deLipkau, Reno, for Respondent.
District court's determinations of fact will not be set aside unless they are clearly erroneous.
If district court's findings are supported by substantial evidence, they will be upheld.
3. Easements.
Adverse, continuous, open, and peaceable use for a five-year period are requisite elements for claiming easement by prescription.
4. Easements.
Exclusivity is not requisite element of claim of easement by prescription.
5. Easements.
Adverse use of land, as required to establish easement by prescription, is established by asserting a right to use the land.
6. Easements.
Standard of proof in establishing easement by prescription is clear and convincing evidence.
7. Easements.
Holder of local water rights failed to establish by clear and convincing evidence assertion of right to adverse use of path across
property adjacent to aqueduct system in order to reach sand trap which was part of aqueduct system, as required to establish
prescriptive easement. There was no visible path which would provide constructive notice of easement, owner testified that he did not
see path or observe users near path during six-month redemption period following his purchase of land, and recalled seeing persons
crossing property to work on system only twice, and assertion that other means of access were inconvenient could not support
prescriptive easement.
8. Easements.
Adverse use of property sufficient to establish easement by prescription may be inferred where claimant establishes roadway on
another's property.
9. Easements.
Permissive use of property cannot ripen into adverse use absent specific notice to owner of servient estate that such use is
henceforth adverse for purposes of creating prescriptive easement.
Evidence supported determination that use by holders of local water rights of roadway across property, and water pipeline on
property which was part of aqueduct system, was adverse use of property sufficient to establish easement by prescription.
Holders of local water rights had made continuous, peaceable, and open use of roadway across property, and water pipeline on
property which was part of aqueduct system, sufficient to establish easement by prescription, even though use had on several occasions
been interrupted for periods of up to ten days.
12. Malicious Prosecution.
Elements which must be satisfied to establish prima facie case of malicious prosecution are (1) want of probable cause to initiate
prior criminal proceeding, (2) malice, (3) termination of prior criminal proceedings, and (4) damage.
Want of probable cause for initiating prior criminal proceeding, as must be established to support claim of malicious prosecution,
is judged by an objective test, under which it is for court to decide whether reasonable attorney would have considered prior action
legally tenable, ignoring any subjective factors such as attorney's expertise and belief.
Property owner had legally tenable grounds to charge holder of local water rights, who crossed property to reach sand trap which
was part of aqueduct system, with criminal trespass, and thus, holder, who was acquitted of charges, could not establish lack of
probable cause, as required to recover on malicious prosecution claim; subsequent determination was made that no easement by
prescription existed as to route used by holder, and even if easement was found to exist, lack of prior record of it or judicial recognition
would satisfy probable cause requirement.
OPINION
Per Curiam:
This case arises from a neighborhood dispute regarding water rights. Appellant, Victor
Jordan (Jordan), filed criminal trespass charges against Respondent, Stanley Bailey
(Bailey), after Bailey crossed Jordan's property to perform work on an aqueduct system
which services certain water rights along the Ophir Creek near Washoe Valley, Nevada. After
being found not guilty in a local justice court, Bailey commenced this action in district court
for malicious prosecution. Jordan counterclaimed, seeking injunctive and declaratory relief in
connection with his claim that Bailey had no right to traverse Jordan's property to maintain
the system.
Following a three-day bench trial, Bailey was awarded $5,000 in general damages on the
malicious prosecution claim and Jordan was denied any relief. Bailey was also awarded
$10,000 in attorney's fees for successfully defending Jordan's counterclaim. The district court
also declared the existence of three prescriptive easements crossing Jordan's property for the
following purposes: (1) a vehicular access road which cuts across the northern portion of
Jordan's tract, (2) an aqueduct consisting of a pipeline and open ditch running parallel to the
access road which carries water from the diversion dam on Ophir Creek to water rights users,
and (3) a footpath through Jordan's tract leading to a sand trap located on an adjacent parcel
south of Jordan's property.
Jordan maintains that the three routes at issue had not ripened into easements by
prescription. Correspondingly, he argues that the malicious prosecution award and the award
of attorney's fees should be vacated and reversed.
STATEMENT OF FACTS
For many years, a concrete diversion structure or dam has diverted water from the Ophir
Creek, southward through an aqueduct system to eight or nine holders of local water rights.
This water diversion and aqueduct system is generally referred to as the Twaddle Ditch. In
1983, a catastrophic landslide and flood destroyed the original diversion structure. Thereafter,
with federal assistance, the diversion site was relocated and the water supply re-established.
The Twaddle Ditch users, including Bailey, gained access to the pre-flood diversion
structure by crossing the northern edge of what became the Jordan tract in 1989. The old path
to the pre-flood diversion structure was impassable by vehicle.
Robert Rusk (Rusk), a local water rights holder, was instrumental in organizing the
Twaddle Ditch users and in obtaining federal assistance to design and rebuild the new
diversion structure after the 1983 landslide. The project entailed building an access road and
pipeline traversing the northern portion of the Jordan tract and extending approximately 250
feet beyond his property line to the west. Rusk gave conflicting testimony as to whether the
previous owner of the Jordan tract gave permission to install the pipeline and reconstruct the
access road on his property.
Following the 1983-84 reconstruction project, water was piped from the diversion
structure across the entirety of the northern portion of the Jordan tract to an open ditch
situated twenty to thirty feet to the east of Jordan's property. The Twaddle Ditch users would
access the dam, pipe and ditch via the newly constructed road.
The ditch then turns in a semi-circle around the Jordan property to the south and west to a
sand trap located approximately 400 feet southeast of Jordan's house. The sand trap
captures and removes large accumulations of sand and decomposed granite. The water users
must regularly remove accumulated debris from the sand trap to ensure that the water reaches
their property. This occurs at intervals ranging from several times in one day to only once a
month.
When Jordan purchased the tract in 1989, he did not obtain water rights. He testified that
he was not aware of the sand trap's existence when he began construction on his barn in 1989,
which he completed in 1991. Construction on his home began soon thereafter and was
completed in November 1992. The house itself is located near the southeast corner of his
parcel.
The holders of Twaddle Ditch water rights have traditionally used four different routes to
reach the sand trap. First, from a location near the Bowers' Fire Station, they can climb in a
northerly direction to the sand trap. The second route starts at the northeast border of Jordan's
tract and runs in a southerly direction through Richard Smithson's (Smithson) tract which
abuts Jordan's property to the east. From there, users follow the open ditch to the sand trap.
The third and subject route runs south through the Jordan property within six feet of Jordan's
house. The fourth route begins near Smithson's residence and runs in a southerly direction to
the sand trap. According to Bailey's testimony at trial, this route is safe and convenient, but
permission to use it is revocable at any time by Smithson.
1
Testimony indicated that access to the diversion structure was interrupted in June of 1985
for a period of three days when a nearby property owner installed underground electrical
lines, and for a few days in June of 1987 when the bridge across Ophir Creek was washed
out. Smithson testified that access to the diversion structure was also blocked for a separate
period of ten days when he ran underground power to his home.
Jordan testified that he personally inspected his property and researched the title to his
tract before purchasing it from the federal government.
2
During his repeated visits before and
after purchasing the property, prior to commencing construction, Jordan never witnessed
anyone crossing his property to reach the sand trap.
__________

1
Smithson testified at trial that water users have used this route since he purchased the property in 1985 or
1986.

2
It may be inferred that Jordan did not rely on the services of a title company.
During the construction of his home in 1991, Jordan first learned that water users crossed
his property to access the sand trap. It was then that he encountered a neighbor walking
southbound on the property. In a cordial twenty-minute conversation, the neighbor mentioned
that he was going to work on his water system. Unaware of what this meant, Jordan
indicated that, once his home was completed, foot travel near his home would no longer be
allowed.
Uncontroverted testimony indicates that Jordan first encountered Bailey on November 9,
1992, while working in a long and deep trench on his property. Bailey, after stopping his
vehicle and introducing himself, claimed that the trench was blocking his access and that he
wanted to take a route near Jordan's house to the sand trap. Jordan advised against such a
route because of the danger created by a series of open trenches on the property and, also,
because he valued his privacy. As Bailey continued walking near Jordan's house in disregard
of the admonition, he informed Jordan that he had a 140-year history of water rights. At that
point, Jordan called the sheriff and lodged a trespass complaint.
Bailey was tried in justice court for criminal trespass on April 1, 1993. After explaining
that the other routes were practically inaccessible, he was acquitted of the criminal trespass
charge.
Jordan built a fence in the summer of 1994 to prevent people from wandering into his yard
and to keep his animals in an enclosed area. Although it did not impede foot traffic, the fence
blocked vehicular access to the diversion structure on Ophir Creek. Three months after
completion of the fence, Bailey filed a complaint against Jordan for malicious prosecution.
Jordan counterclaimed for declaratory relief seeking an adjudication that no easements
encumbered his property. He also sought injunctive relief. Bailey unsuccessfully sought a
temporary restraining order to preclude Jordan from blocking access to the diversion structure
with the fence.
At trial, Bailey testified that the only reasonable route to the sand trap passed within
several feet of Jordan's house. Relying on an aerial photograph, Bailey referred to this path as
a white trail. He also testified that he had used this path for many years until the trespass
incident. Jordan maintains that a close examination of the aerial photograph reveals that the
white trail is actually a drift of white boulders, and that no other trial witnesses described
such path leading to the sand trap.
Bailey testified that, at the time of the trespass incident, he was unaware of the fourth route
running east of Jordan's property near Smithson's house to the sand trap, and stressed again
that the routes from the fire station and along the open ditch are not impossible to traverse,
but are practically inaccessible.
At the conclusion of the trial, the district court awarded Bailey judgment on all issues.
Jordan appeals.
DISCUSSION
Standard of Review
[Headnotes 1, 2]
A district court's determinations of fact will not be set aside unless they are clearly erroneous. Hermann Trust v. Varco-Pruden
Buildings, 106 Nev. 564, 566, 796 P.2d 590, 591-92 (1990). If the district court's findings are supported by substantial evidence they will
be upheld. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 25, 866 P.2d 1138, 1139 (1994).
The Three Prescriptive Easements
3
[Headnotes 3-6]
In Nevada, adverse, continuous, open and peaceable use for a five-year period are the requisite elements for claiming an easement by
prescription. Stix v. La Rue, 78 Nev. 9, 11, 368 P.2d 167, 168 (1962). Exclusivity is not a requisite element. Id. at 14, 368 P.2d at 169.
Adverse use is established by asserting a right to use the land. Michelsen v. Harvey, 107 Nev. 859, 863, 822 P.2d 660, 663 (1991). The
standard of proof in establishing an easement by prescription is clear and convincing evidence. Wilfon v. Hampel 1985 Trust, 105 Nev.
607, 608, 781 P.2d 769, 770 (1989). Bailey argues that he and his predecessors in interest perfected the easements before Jordan acquired
his property in 1989.
__________

3
In its Findings of Fact, Conclusions of Law and Judgment entered January 11, 1996, the district court declared:
8. Bailey has, for more than five years, utilized or traversed the Jordan property for the following lawful purposes:
(a) a vehicular road to access a water diversion dam jointly owned by Bailey and others, located several hundred feet west of
the Jordan property and upstream of the Ophir Creek.
(b) an aqueduct consisting of a pipeline and open ditch, allowing the flow of water out of the diversion dam, across a portion
of the Jordan property into a concrete sand trap located on land owned by a third party, immediately adjacent to the south of the
boundary line of the Jordan property.
(c) a pedestrian path or trail across the Jordan property allowing Bailey access to the sand trap.
9. The use of these three easements by Bailey over the Jordan property has been, for more than five years, adverse,
continuous, open and peaceable.
. . . .
12. That Bailey's claim of prescriptive easements in and to the above three uses of Jordan's property is supported by clear and
convincing evidence.
Bailey maintains that Twaddle Ditch users exercised their water rights from 1856 until the
flood of 1983 destroyed the old diversion dam. Because the flood required the construction of
a new diversion structure, access road and pipeline, Bailey was attempting to acquire
easements by prescription along post-1983 routes. Bailey maintains that the Twaddle Ditch
water users openly, continuously and adversely crossed the Jordan tract without interruption
from 1983 until 1992, when Jordan started to block their access. Thus, the factual dispute was
when and if these routes were adversely, continuously, openly and peaceably used for a
five-year period.
A. Adverse Use
1. The route to the sand trap
[Headnote 7]
The most vigorously contested alleged easement is the route to the sand trap which passes within six feet of the Jordan home near the
southeast corner of his property. Jordan maintains that the record below does not contain clear and convincing evidence supporting the trial
court's finding that a prescriptive easement crossing the southeastern portion of his property had been established. We agree.
First, there was insufficient proof of adverse use prior to Jordan's purchase of the property in 1989. Further, there was no visible path
along the southeast corner of Jordan's property that would provide constructive notice that an easement existed. At trial, Jordan testified
that he did not see a human path near his home leading south to the sand trap. Nor did Jordan witness anyone using the path during the
six-month redemption period following the purchase of his property. Other than his encounter with Bailey, he claims that he recalls only
one other Twaddle Ditch water user crossing his property to work on the water system.
Bailey does not contend that the Twaddle Ditch water users have acquired these easements by necessity. Nevertheless, his argument
has such overtones, particularly when he maintains that the other methods of reaching the sand trap were practically inaccessible. In
Jackson v. Nash, 109 Nev. 1202, 866 P.2d 262 (1993), we examined the problems presented by claims of easement by necessity. There we
noted that:
Although Jackson may prefer the more convenient road through the Nashes' property, this preference is not sufficient for this court
to impose an easement. An easement ought not be implied merely as a matter of convenience, especially when an acceptable and
practical route constituting a lesser burden on the servient estate is available.
Jackson, 109 Nev. at 1212, 866 P.2d at 269 (citation omitted). While we do not conclude that
an easement by necessity was established, we believe that the reasoning in Jackson should
apply by analogy to the creation of easements by prescription.
Bailey testified that the other routes to the sand trap from the diversion dam, in particular,
the route heading north from the Bowers' Fire Station, involved arduous climbing and undue
consumption of time. In line with Jackson, we conclude that Bailey may not bootstrap a
prescriptive easement along the southeastern portion of Jordan's property simply by claiming
that, because of inconvenience, it is an integral part of the Twaddle Ditch system. This is
especially true in light of the fact that there is a fourth, albeit revocable, convenient route.
Bailey's ignorance of the route does not change its existence.
Accordingly, we conclude that Bailey failed to proffer clear and convincing evidence that
his use of the southeastern route running within six feet of Jordan's home was adverse. Thus,
an easement by prescription was not established.
2. The access road and pipeline
[Headnotes 8, 9]
In Chollar-Potosi Mining Co. v. Kennedy & Keating, 3 Nev. 328 (1867), this court held that an adverse use may be inferred where a
claimant establishes a roadway on another's property. Id. at 340; Wilfon, 105 Nev. at 609, 781 P.2d at 770. A permissive use cannot ripen
into an adverse use absent specific notice to the owner of the servient estate that such use is henceforth adverse for purposes of creating a
prescriptive easement. Green v. Stansfield, 886 P.2d 117, 120-21 (Utah Ct. App. 1994).
[Headnote 10]
Although permission to use another's property negates adverse use, we agree with Bailey that adversity was created by the existence
of the roadway on the northern portion of Jordan's property. See Chollar-Potosi, 3 Nev. at 340.
In addition, Rusk gave conflicting testimony as to whether the previous owner of the Jordan tract gave permission to install the new
diversion works and access road across the northern section of the property. Here, the trial court was free, as the finder of fact, to accept
whatever version given by Rusk was the most credible. In this determination, it was appropriate to conclude that the construction and use of
the road was not obtained via permission from the prior owner. Thus, the trial court acted within its discretion when it concluded that the
utilization of the northern portion of Jordan's property was adverse.
The remaining question to resolve is whether these two routes satisfy the other elements of an easement by prescription.
B. Continuous, open and peaceable use for a five-year period
[Headnote 11]
We are not persuaded by Bailey's argument that Jordan would have been apprised of the existence of the water rights to the appurtenant
properties had he obtained title insurance or diligently examined the records of the Nevada State Engineer. Even if Jordan had obtained title
insurance and searched the records of the Nevada State Engineer, he would not have been alerted to the existence of the alleged easements
because there was no record of them.
Jordan argues that the several instances following the 1983 flood when the easements were inaccessible prevent the establishment of
these easements by prescription. Jordan recounts that, in 1985, access to the diversion structure was blocked for a period of three days
while a nearby landowner installed underground electrical lines; that in 1987 or 1988, access to the diversion structure was blocked for one
week during the reconstruction of the Ophir Creek bridge; and that access was interrupted for a period of ten days when Smithson installed
underground power lines. Jordan maintains that these incidents disrupted the required five years of continuous use.
4
However, no authority
is cited in support of the proposition that these brief interruptions negated the requisite element of continuity for purposes of acquiring an
easement by prescription.
We conclude that easements by prescription were satisfactorily established with respect to the access road and the portion of the water
system traversing the northern section of Jordan's property.
The Malicious Prosecution Claim
[Headnote 12]
The following elements must be satisfied to establish a prima facie case of malicious prosecution: (1) want of probable cause to initiate
the prior criminal proceeding; (2) malice; (3) termination of the prior criminal proceedings; and (4) damage. Chapman v. City of Reno, 85
Nev. 365, 369, 455 P.2d 618, 620 (1969).
[Headnote 13]
Want of probable cause is judged by an objective test as set forth by the California Supreme Court in Sheldon Appel Co. v. Albert &
Oliker, 765 P.2d 498, 511 (Cal. 1989); see also Dutt v. Kemp, 111 Nev. 567, 573, 894 P.2d 354, 358 (1995). Under this test, it is for the
court to decide whether a reasonable attorney would have considered the prior action legally tenableignoring any
subjective factors such as the attorney's expertise and belief.
__________

4
Actually, these interruptions, if significant, would only have affected the road, not the pipeline itself.
would have considered the prior action legally tenableignoring any subjective factors such
as the attorney's expertise and belief. Id. at 573-74, 894 P.2d at 358.
[Headnote 14]
In light of our finding that an easement by prescription did not exist as to the route running by his home from the access road to the
sand trap, it follows that Jordan, at least technically, had probable cause to charge Bailey with trespass. (Our finding compels the
conclusion that Bailey had no right to walk across the Jordan property near the Jordan home.) Further, even if we were to uphold the
easement, the lack of any prior record of it and the fact that the easement had not been judicially recognized as of the alleged trespass
incident would satisfy the probable cause requirement.
5
Under the objective standard articulated in Sheldon Appel, we hold that a reasonable attorney would have found legally tenable
grounds to charge Bailey with criminal trespass. Accordingly, we conclude that the district court erred in finding that Jordan was liable for
malicious prosecution of Bailey.
The Award of Attorney's Fees
Jordan challenges the district court's order awarding Bailey the sum of $10,000 in attorney's fees in its judgment against Jordan on his
counterclaim for declaratory relief.
6
Because Jordan has been given relief from one of the three easements found below, and because we
conclude that no award on any claim is warranted, the fee award is vacated. This ruling is based on the fact that these parties have both
failed and succeeded on principal issues in the case.
CONCLUSION
There was an absence of clear and convincing evidence supporting a finding that Bailey was entitled to an easement by prescription
over Jordan's property running south to the sand trap. Accordingly, we reverse the judgment entered below with regard to this easement.
A different result, however, is compelled as to the two northern routes. The Twaddle Ditch water users have continuously utilized
various routes to access their water rights for over 140 years. After an exhaustive review of the record below we conclude
that there is clear and convincing evidence establishing that the two post-flood routes which traverse the
northern portion of Jordan's tract ripened into easements by prescription.
__________

5
We make no comment on the social utility of resorting to the criminal courts in this manner, or on any of the other interactions
between these parties.

6
Although permitted under NRS 18.010, no fee award was made by the district court in connection with the malicious prosecution
claim.
After an exhaustive review of the record below we conclude that there is clear and convincing
evidence establishing that the two post-flood routes which traverse the northern portion of
Jordan's tract ripened into easements by prescription. Accordingly, we affirm the ruling of the
court below with respect to these two easements.
In addition, for the reasons discussed above, we reverse the district court's judgment with
regard to the malicious prosecution claim, and vacate the district court's order awarding
attorney's fees on Jordan's counterclaim.
____________
113 Nev. 1049, 1049 (1997) Desert Irrigation, Ltd. v. State of Nevada
DESERT IRRIGATION, LTD., a Nevada Corporation, Appellant, v. THE STATE OF
NEVADA and R. MICHAEL TURNIPSEED, State Engineer of Nevada, Respondents.
No. 28217
August 28, 1997 944 P.2d 835
Appeal from an order of the district court denying a petition for judicial review. Fifth
Judicial District Court, Nye County; John P. Davis, Judge.
Developer sought review of decision of state engineer cancelling uncommitted water
rights. The district court affirmed. Developer appealed. The supreme court held that: (1)
noncontiguous 160-acre parcel was not land being developed within meaning of statute
establishing criteria that state was to consider in making decision on proof of beneficial use
(PBU) time extension application; (2) mere statement of intent to put water to beneficial use,
uncorroborated with any actual evidence, after nearly 20 years of nonuse, was insufficient to
justify sixteenth PBU time extension; (3) permitted water rights, once cancelled, revert to
public domain and are available for further appropriation; but (4) developer was entitled to
opportunity to put cancelled water rights to beneficial use.
Affirmed in part, reversed in part, and remanded with instructions.
James, Driggs & Walch, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and David C. Creekman, Deputy Attorney
General, Carson City, for Respondents.
Appropriative right is state administrative grant that allows use of specific quantity of water for specific beneficial purpose if
water is available in source free from claims of others with earlier appropriations.
State engineer was not free to choose land being developed or area being served in making decision to grant or deny proof of
beneficial use (PBU) time extension application for permitted water use; word or, which separated two phrases in statute establishing
criteria that engineer was to consider when granting or denying PBU extension, meant either and or or, depending on stage of
development. NRS 533.380(4)(b).
3. Statutes.
Strict interpretation of statutory word or should be avoided if it leads to potentially dubious result.
4. Statutes.
When statute is ambiguous or susceptible to more than one reasonable interpretation, supreme court shall endeavor to determine
legislative intent.
Land being developed, within meaning of statute establishing criteria that state engineer was to consider in making decision to
grant or deny proof of beneficial use (PBU) time extension application for permitted water use, did not include developer's
noncontiguous 160-acre parcel located six miles from originally proposed area for permitted water use. NRS 533.380(4)(b).
Mere statement of intent to put water to beneficial use, uncorroborated with any actual evidence, after nearly 20 years of nonuse,
was insufficient to justify sixteenth proof of beneficial use (PBU) time extension. NRS 533.395(5).
No permittee shall be entitled to the use of quantity of water in excess of that actually needed for which appropriation was made.
Administrative agencies are not bound by stare decisis.
9. Water and Water Courses.
Denial of developer's sixteenth application for proof of beneficial use (PBU) time extension for permitted water use did not
amount to disparate treatment between developer and prior successful applicants for PBU time extensions. Prior applicants' cases
involved developments in which all permitted water was committed to specific use from outset, while developer allowed uncommitted
water within development to remain unapplied to specific use for almost 20 years. NRS 533.395(5).
Underlying certificated base right refers to original certificate granted by state after party perfects water right appropriation.
Permitted water rights, once cancelled, revert to public domain and are available for further appropriation. NRS 533.395.
Developer was entitled to opportunity to put partially cancelled permitted water rights to beneficial use, where developer's agent
sought advice from state engineer's office regarding protection and perfection of all permitted water rights,
engineer dispatched detailed missive discussing scenarios under which developer could establish beneficial
use, engineer noted that permitted water rights would revert to developer's certificate for irrigation use in
event that permit was cancelled for untimely proof of beneficial use, and developer proceeded to perfect
appropriation on specific representation as to reversion.
advice from state engineer's office regarding protection and perfection of all permitted water rights, engineer dispatched detailed
missive discussing scenarios under which developer could establish beneficial use, engineer noted that permitted water rights would
revert to developer's certificate for irrigation use in event that permit was cancelled for untimely proof of beneficial use, and developer
proceeded to perfect appropriation on specific representation as to reversion. NRS 533.395.
OPINION
Per Curiam:
On November 22, 1971, Paul Simpkins (Simpkins), a land developer, filed an
application to change the manner and place of use of the water rights granted under
Certificate 4663. On July 24, 1972, respondent State Engineer of Nevada (State Engineer)
granted Permit 26358 which allowed 2.625 cubic feet per second (c.f.s.) for 665 acre-feet
annually (a.f.a.) to be pumped into a proposed residential area in the Pahrump Basin.
Specifically, Simpkins' Permit 26358 stated, The water will be used to serve approximately
204 individual metered residential lots, approximately 100 ft. x 180 ft. in size; six
commercial lots ranging from 1.52 acres to 6.28 acres totaling 34.63 acres; and a 8.81 acre
recreational park. Today, this development is commonly known as Allen Estates.
[Headnote 1]
The permitted use was for quasi-municipal purposes, and construction was due to begin on or before January 24, 1973. Pursuant to
Permit 26358, Simpkins was required to demonstrate on or before February 24, 1977, that the water was being put to beneficial use.
1
On
March 21, 1977, Simpkins filed with the State Engineer his first time extension application for proof of beneficial use (PBU). Simpkins
requested the extension because he was waiting for loan proceeds which were earmarked for water improvements. Subsequently, Simpkins
requested and received two additional PBU extensions.
In 1980, Simpkins formed a partnership with appellant Desert Irrigation, Ltd. (DI) due to financial and logistical difficulties with the
water system at Allen Estates.
2
Over the following thirteen years, DI requested and received fourteen PBU time extensions. Although the
basis of the requests for extensions during those years is not particularly relevant to the instant matter, it is significant
to note that no extension application ever referenced or discussed DI's intent to divert uncommitted water at
Allen Estates to another residential development six miles away.
__________

1
Nevada, like most western states, is a prior appropriation state. An appropriative right may be described as a state administrative
grant that allows the use of a specific quantity of water for a specific beneficial purpose if water is available in the source free from the
claims of others with earlier appropriations. Frank J. Trelease & George A. Gould, Water Law Cases and Materials 33 (4th ed. 1986).

2
On January 18, 1983, Simpkins quitclaimed Permit 26358 to DI.
during those years is not particularly relevant to the instant matter, it is significant to note that
no extension application ever referenced or discussed DI's intent to divert uncommitted water
at Allen Estates to another residential development six miles away.
Together, Simpkins and DI progressed in the development of Allen Estates. The progress
of their work was reflected in the numerous subdivision map filings with Nye County and
requests for PBU time extensions. By March 21, 1990, the latest PBU extension application
reflected that Allen Estates had eighty-four customers utilizing water and fourteen more in
need of service. DI stated in its PBU time extension application that it would be another year
before Allen Estates was operating at full capacity. Consequently, the request for an extension
was granted.
In April 1991, Reagan Morin (Morin) of DI had several conversations with Christine
Theil (Theil) of the State Engineer's office in which Theil informed Morin that DI should
file an actual PBU because no more PBU time extensions would be granted. Based on these
representations, DI filed a PBU on April 25, 1991. However, DI formally withdrew the PBU
in a May 31, 1991 letter after seeking advice from legal counsel. DI filed its fifteenth
application for a PBU time extension on May 29, 1991, which was granted by the State
Engineer.
On December 6, 1991, DI filed an application to change the point of diversion and place of
use for permitted but uncommitted water in the Allen Estates development. DI realized that
its original permitted water rights were in excess of the a.f.a. necessary to supply all units at
Allen Estates. Morin stated that the reason DI filed the application was to utilize the balance
of the water rights [at Allen Estates] into another piece of property.
The property to which DI desired diversion was a 160 acre parcel of undeveloped land in
the Pahrump Basin, six miles from Allen Estates. DI intended to develop the area for 1,196
mobile homes, recreational buildings, and a swimming pool. Although the diversion
application was due for disposition on March 22, 1992, the State Engineer decided to
withhold a determination when it received DI's sixteenth request for a PBU time extension,
filed March 13, 1992. The State Engineer's failure to act on DI's request to divert water from
Allen Estates was also prompted by the earlier withdrawal of the April 25, 1991 PBU.
The State Engineer's investigation of the water supply at Allen Estates revealed that the
amount of water permitted for use under Permit 26358 was substantially in excess of the
required amount for Allen Estates to function at maximum capacity. The State Engineer
concluded that DI was not "proceeding in good faith and with reasonable diligence" to put
the uncommitted water to beneficial use.
Engineer concluded that DI was not proceeding in good faith and with reasonable diligence
to put the uncommitted water to beneficial use. Pursuant to NRS 533.395(1),
3
366.85 a.f.a. of
DI's 665 a.f.a. water rights were cancelled under Permit 26358. However, to ensure that DI
had a sufficient supply of water regarding the undeveloped parcels at Allen Estates, the State
Engineer granted DI a PBU extension for the remaining 298.15 a.f.a.
DI requested an administrative hearing to appeal the cancellation. On December 16, 1992,
DI presented evidence of its good faith and due diligence in developing Allen Estates.
However, beyond Morin's testimony stating that DI intended to develop the noncontiguous
160 acre parcel, no evidence of good faith and due diligence was offered with respect to that
property.
The absence of any evidence to develop the 160 acre parcel served as the basis for the
State Engineer R. Michael Turnipseed (Turnipseed) to affirm the cancellation letter:
The evidence and testimony regarding the progress made over the years applied only to
the development of Allen Estates. In the fifteen requests for extension of time, the
owner of record never mentioned any other water commitment beyond that which was
required for Allen Estates. The State Engineer finds that there is no evidence or
testimony on the record showing that the quantity of water beyond that which was
required for Allen Estates, had ever been committed to any purpose.
Turnipseed was also unpersuaded by DI's introduction of five case studies where the State
Engineer granted PBU time extensions despite the fact that not all water was committed to a
use. In distinguishing the five case studies from the instant matter, Turnipseed noted that DI's
application sought diversion to property in an unapproved subdivision, six miles from Allen
Estates, and outside the service area approved by the Public Service Commission.
__________

3
In pertinent part, NRS 533.395(1) states:
If, at any time in the judgment of the state engineer, the holder of any permit to appropriate the public
water is not proceeding in good faith and with reasonable diligence to perfect the appropriation, the state
engineer shall require the submission of such proof and evidence as may be necessary to show a
compliance with the law. If, in his judgment, the holder of a permit is not proceeding in good faith and
with reasonable diligence to perfect the appropriation, the state engineer shall cancel the permit, and
advise the holder of its cancellation. The failure to provide the proof and evidence required pursuant to
this subsection is prima facie evidence that the holder is not proceeding in good faith and with reasonable
diligence to perfect the appropriation.
(Emphasis added.)
and outside the service area approved by the Public Service Commission.
DI filed a petition for judicial review of Turnipseed's decision in the district court. DI
claimed that Turnipseed's findings were contrary to the law in light of DI's intent to develop
the 160 acre parcel. Although the district court did not reverse Turnipseed's ruling on March
8, 1994, it remanded the matter. The district court stated:
The Court rejects the arguments of [DI] save for one. . . . The Court is more troubled
with the State Engineer's failure to address whether NRS 533.380(4) should apply as to
a proposed transfer of the rights to a non-contiguous parcel and to which the petitioner
sought to remove the water.
On remand, the State Engineer discussed DI's efforts to put the permitted water to
beneficial use in the context of NRS 533.380(4). However, the ruling only addressed DI's
work at Allen Estates. The State Engineer refused to consider DI's claim that it intended to
put the excess water to beneficial use at a development six miles from Allen Estates.
Specifically, the State Engineer held that the 160 acre parcel cannot be considered in
determining whether to approve or deny the application for extension of time filed under
Permit 26358. Thus, the State Engineer affirmed its prior cancellation of the uncommitted
water rights.
DI again filed a petition for judicial review. On November 16, 1995, the State Engineer's
ruling was then affirmed in its entirety. The district court agreed that NRS 533.380(4) could
not be read so broadly as to include a noncontiguous parcel of land situated six miles from
Allen Estates. From this ruling, DI now appeals.
DI argues that when it submitted its sixteenth PBU time extension application, the State
failed to consider DI's intent to develop a 160 acre parcel located six miles from Allen
Estates. DI relies on the language in NRS 533.380(4)(b) which establishes the criteria the
State must consider when granting or denying a PBU time extension:
[T]he State Engineer shall, in determining whether to grant or deny the extension,
consider, among other factors:
. . . .
(b) The number of parcels and commercial or residential units which are contained
in or planned for the land being developed or the area being served . . . .
(Emphasis added.)
In this case, DI claims that the land being developed is the 160 acre parcel, while the
area being served is Allen Estates. Because the statutory language does not distinguish
between contiguous and noncontiguous land being developed or served, DI asserts that
Turnipseed violated the mandate in NRS 533.3S0{4){b) by refusing even to consider the
land being developed, the 160 acre parcel.
contiguous and noncontiguous land being developed or served, DI asserts that Turnipseed
violated the mandate in NRS 533.380(4)(b) by refusing even to consider the land being
developed, the 160 acre parcel.
More specifically, DI interprets the disjunctive phrase, the land being developed or the
area being served, as mutually exclusive. In other words, DI asserts that the land being
developed or the area being served must always mean two separate and distinct parcels of
land. DI reasons that if the contested statutory phrase is interpreted any other way, the land
being developed would always subsume the area being served and, thus, render the area
being served language in the statute nugatory. See One 1978 Chev. v. County of Churchill,
97 Nev. 510, 512, 634 P.2d 1208, 1209 (1981). We conclude that this argument belies the
facts of the instant matter and the realities of residential development.
DI admits that during the construction of Allen Estates, some residential lots were
occupied while others were being built. Thus, a situation existed where land in a permitted
area, Allen Estates, was simultaneously being developed and served. Therefore, DI's assertion
that the land being developed always subsumes the area being served is inaccurate.
[Headnote 2]
In contrast, respondent State of Nevada (State) argues that if the statute requires interpretation, Turnipseed correctly treated the
disjunctive choices, the land being developed and the area being served, as precatory. That is, Turnipseed was free to choose either
criteria in making his decision to grant or deny the PBU time extension request. We disagree.
Allowing the State Engineer merely to choose between the land being developed and the area being served when making a decision
to extend a PBU time application lends itself, at the very least, to an impression of capriciousness and unfairness. In Nevada, no
administrative body may arbitrarily select a statutory basis for its decision. See NRS 233B.135(3)(f).
We conclude that the or separating the two phrases, the land being developed and the area being served, means either and or
or, depending on the stage of construction in the development. For example, if a development is in its early construction phase, then the
only criterion appropriate for the State Engineer to review is the land being developed. If, however, a development has occupants but still
requires additional construction of lots, the State Engineer must review both the land being developed and the area being served when
granting or denying a PBU time extension.
[Headnote 3]
Interpreting or as either and or or is an accepted practice in questions of statutory construction. [T]here has been a great laxity
in the use of terms and' and or' such that the terms are interchangeable and one may be substituted for the other . . . . 1A C. Dallas Sands,
Sutherland Statutory Construction 21.14 (4th ed. 1985). Moreover, a strict interpretation of or should be avoided if it leads to a
potentially dubious result. Wisconsin v. Duychak, 395 N.W.2d 795, 800 (Wis. 1986). Thus, the arguments of both DI and the State fail to
resolve the central issue in this case: whether the land being developed includes a parcel of land outside the originally permitted area.
[Headnote 4]
It is well settled that when a statute is ambiguous or susceptible to more than one reasonable interpretation, this court shall endeavor to
determine the legislative intent. Cleghorn v. Hess, 109 Nev. 544, 548, 853 P.2d 1260, 1262 (1993). Here, NRS 533.380(4)(b) does not
indicate whether the land being developed includes a noncontiguous parcel of land, located outside the permitted area. Thus, we turn to
legislative history for guidance.
Preliminarily, we note that neither the State nor DI offers any evidence of legislative intent in their briefs.
4
However, a review of the
minutes from a hearing before the Committee on Economic Development and Natural Resources reveals that the phrase the land being
developed or the area being served refers only to parcels of land within a subdivision. While discussing the portion of Assembly Bill 16
which eventually added NRS 533.380(4)(a)-(d), senior research analyst of the Legislative Counsel Bureau, Fred Welden, explained the
meaning of each proposed criteria:
[NRS 533.380(4)(a)-(d)] provides that the State Engineer can give the municipal and quasi municipal uses extensions of time if
they don't prove to be beneficial uses. It gives four criteria that he must consider before he grants them an extension of time. . . .
[NRS 533.380(4)(b)] speaks to the number of parcels in the subdivision, for instance if there are a great number of parcels maybe
there better [sic] reasons why he could not put it to beneficial use . . . .
Hearing on A.B. 16 before the Assembly Comm. on Economic Development and Natural Resources, 61st Leg. 0031, 0032 (Nev. February
10, 1981) (emphasis added).
Based on these minutes, we conclude that the phrase in the subdivision denotes a contiguous parcel of land sectioned into various
lots.
__________

4
Indeed, DI claims that none exists.
various lots. Indeed, subdivision is defined as [a] tract of land surveyed and divided into
lots for purposes of sale. Webster's Third New International Dictionary 2274 (1971). Given
this definition and the context in which the phrase is used, we cannot interpret the number of
parcels in the subdivision so broadly as to include a noncontiguous 160 acre parcel, located
six miles from the originally proposed area for water use under Permit 26358.
[Headnote 5]
This determination leads to the inescapable conclusion that the legislature intended the land being developed to mean the area within
which a permittee has a right to put water to beneficial use. Since Permit 26358 did not encompass the 160 acre parcel proposed for
development by DI, Turnipseed and the district court properly refused to consider the 160 acre parcel as land being developed.
Next, DI claims that in filing its sixteenth PBU time extension application, it made the requisite showing of good faith and due
diligence to justify an extension of all its permitted water rights. However, the State Engineer cancelled the portion of DI's water rights
which constituted the amount of water in excess of that necessary to operate Allen Estates at maximum capacity. We conclude that the State
Engineer did not abuse its discretion.
[Headnote 6]
Until its most recent PBU declarations, DI was unable to present any evidence of good faith and due diligence to support a PBU time
extension with regard to uncommitted water at Allen Estates. In fact, no evidence was presented for almost twenty years that DI ever
considered putting the excess water at Allen Estates to beneficial use. It was not until the sixteenth PBU time extension application that DI
expressed its intent to develop a 160 acre parcel of land some six miles from Allen Estates. A mere statement of intent to put water to
beneficial use, uncorroborated with any actual evidence, after nearly twenty years of nonuse is insufficient to justify a sixteenth PBU
extension. See People v. City of Thornton, 775 P.2d 11, 18-19 (Colo. 1989).
DI incorrectly assumes that a showing of good faith and due diligence toward any amount of permitted water is sufficient to preserve
all water rights under a permit. However, NRS 533.395(5) provides in relevant part, [T]he measure of reasonable diligence is the steady
application of effort to perfect the appropriation in a reasonably expedient and efficient manner under all the facts and circumstances.
(Emphasis added.)
[Headnote 7]
Given the fact that DI knew for several years that a significant portion of water under Permit 2635S was uncommitted at
Allen Estates and nothing was done for almost twenty years to put all permitted water to beneficial use, DI did
not steadily pursue the perfection of its water rights under Permit 2635S.
portion of water under Permit 26358 was uncommitted at Allen Estates and nothing was done
for almost twenty years to put all permitted water to beneficial use, DI did not steadily pursue
the perfection of its water rights under Permit 26358. No permittee shall be entitled to the
use of a quantity of water in excess of that actually needed for which the appropriation was
made.' Orr v. City and County of Denver, 572 P.2d 805, 808 (Colo. 1977) (quoting New
Mercer Ditch Co. v. Armstrong, 40 P. 989, 992 (Colo. 1895)). Accordingly, we conclude that
the State did not abuse its discretion in canceling a portion of DI's water rights under Permit
26358.
At the administrative hearing, DI presented five case studies in which applications for
PBU extensions were granted. DI claims that the PBU extension applications in these cases
are factually similar to DI's sixteenth request for an extension. DI further asserts that the
State's denial amounts to disparate treatment. DI cites Bailey v. State of Nevada, 95 Nev. 378,
385, 594 P.2d 734, 739 (1979), for the proposition that the State Engineer must grant PBU
time extensions to similarly situated parties when no extenuating circumstances exist. We
conclude that DI's argument lacks merit and misapprehends the holding in Bailey.
[Headnote 8]
First, in the context of reviewing requests for PBU time extensions, Bailey, 95 Nev. at 385, 594 P.2d at 738, states that the facts and
circumstances of each case are to be considered on an individual basis, taking into account the nature of the task and the difficulties
encountered. Moreover, even if the [agency] has failed to follow some of its prior decisions, the [agency] has not thereby abused its
discretion. In Nevada, administrative agencies are not bound by stare decisis. Motor Cargo v. Public Service Comm'n, 108 Nev. 335, 337,
830 P.2d 1328, 1330 (1992). Thus, no binding effect is given to prior administrative determinations.
[Headnote 9]
Second, we note that the cases offered by DI are distinguishable in one important respect. Those cases involved developments in which
all permitted water was committed to a specific use from the outset. Here, DI allowed uncommitted water within Allen Estates to remain
unapplied to a specific use for almost twenty years. Accordingly, we conclude that no disparate treatment occurred among DI and prior
applicants for PBU time extensions.
[Headnote 10]
Finally, DI claims that because it holds Certificate 4663, the underlying certificated base right5 to Permit 2635S, any
portion of water cancelled under Permit 2635S reverts to DI's possession.
underlying certificated base right
5
to Permit 26358, any portion of water cancelled under
Permit 26358 reverts to DI's possession. The State Engineer responds that various NRS
provisions require cancelled water rights to revert to the public domain. We agree.
Initially, we note that although NRS 533.395 authorizes the State Engineer to cancel
permitted water rights, it fails to provide for the disposition of the cancelled water rights.
NRS 534.090 states that permitted water which is forfeited or abandoned reverts to the
public. However, both parties agree that NRS 534.090 does not apply to the instant matter
because the State Engineer did not work a forfeiture nor deem an abandonment. Rather, the
State Engineer cancelled DI's permitted water rights pursuant to NRS 533.395. Thus, we are
left with a narrow question of law which resolves the issue of seisin when permitted water
rights are cancelled pursuant to NRS 533.395.
We begin our analysis with the most fundamental tenet of Nevada water law, [t]he water
of all sources of water supply within the boundaries of the state whether above or beneath the
surface of the ground, belongs to the public. NRS 533.025 (emphasis added). Indeed, even
those holding certificated, vested, or perfected water rights do not own or acquire title to
water. They merely enjoy the right to beneficial use. NRS 533.030.
The concept of beneficial use is singularly the most important public policy underlying the
water laws of Nevada and many of the western states. In fact, the principle of beneficial use is
so well entrenched in our legal lexicon that the Nevada Legislature declared almost a century
ago that [b]eneficial use shall be the basis, the measure and the limit of the right to the use of
water. NRS 533.035.
Each time an individual undertakes an appropriation, the permittee must put the water to
beneficial use or risk losing their inchoate usufructuary right. NRS 533.395. Not until the
prospective appropriator fulfills the strict conditions imposed by our statutory scheme will a
certificate issue for the new use. NRS 533.425. Because the language of NRS 533.395(1)
does not distinguish between original permittees and those permittees with prior certificated
rights, all permittees are subject to the same requirements.
For those permittees, like DI, who hold a certificated water right but seek a permit to
change the point of diversion, place or manner of use, NRS 533.040 discusses the legal
effect a change permit has on prior certificated water rights.
__________

5
An underlying certificated base right refers to the original certificate granted by the State after a party
perfects a water right appropriation. In this case, DI's underlying certificated base right to Permit 26358 is
Certificate 4663.
manner of use, NRS 533.040 discusses the legal effect a change permit has on prior
certificated water rights.
All water used in this state for beneficial purposes shall remain appurtenant to the
place of use; provided:
1. That if for any reason it should at any time become impracticable to use water
beneficially or economically at the place to which it is appurtenant, the right may be
severed from such place of use and simultaneously transferred and become appurtenant
to other place or places of use . . . without losing priority of right heretofore established
. . . .
NRS 533.040 (emphasis added).
The plain language of NRS 533.040 severs all existing water rights under a prior
certificated use. Thus, a former certificated holder must begin the water certification process
anew. See Sun Vineyards, Inc. v. Luna County Wine Dev. Corp., 760 P.2d 1290, 1292-93
(N.M. 1988). Once the newly permitted use supplants the old use, the only residual interest is
the right to claim the original priority date.
Since the legislature expressly granted the certificated holder with the right to claim an
original priority date under NRS 533.040 but chose not to grant a reversionary right should
the permittee fail to show beneficial use, we are reluctant to do so because of the maxim
expressio unius est exclusio alterius, the expression of one thing is the exclusion of another.
Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246 (1967). Moreover, if we conclude
that a reversionary right exists in our statutory scheme, a formula would be provided for the
clever certificated appropriator to hold water rights in perpetuity when it was not being put to
beneficial use. This result simply cannot be reconciled with our well-grounded policy
mandating beneficial use. Las Vegas Sun v. District Court, 104 Nev. 508, 511, 761 P.2d 849,
851 (1988) (interpretation of statutes should be reasonable and avoid illogical results).
[Headnote 11]
Accordingly, we now hold that permitted water rights, cancelled pursuant to NRS 533.395, revert to the public domain and are
available for further appropriation. This holding is consistent with the legislative pronouncements of NRS 533.025, 533.035, 533.040,
533.395, and 534.090 which we read in pari materia, giving effect to all controlling legal provisions. SNEA v. Lau, 110 Nev. 715, 718-19,
877 P.2d 531, 534 (1994).
[Headnote 12]
However, under the facts presented in this case, we find it manifestly unfair to uphold the State Engineer's partial cancellation of DI's
water rights. In 1979, Morin went to the State Engineer's office specifically seeking advice regarding protection and perfection of all
its permitted water rights.
and perfection of all its permitted water rights. In response, Brian A. Randall (Randall), an
engineer in the State Engineer's office, dispatched a detailed missive to Morin discussing
several scenarios under which DI could establish beneficial use. In conclusion, Randall noted:
In the event Proof of Beneficial Use is not timely filed under Permit 26358 by the
current deadline established, the permit will be cancelled for failure to comply with the
terms of the permit. In that case, the water rights allowed under Permit 26358 would
revert to Certificate 4663, which is a certificate for irrigation use. Before water could
then be used for service to a quasi-municipal development a new permit would be
required to change the manner and place of use.
(Emphasis added.)
Randall's representations are consistent with an internal policy memorandum of the State
Engineer's office obtained by DI. The memorandum, drafted in 1971 and reviewed in 1987,
contains diagrams unequivocally illustrating that cancelled water rights revert to the holder of
the underlying certificated base right. The State Engineer does not argue, nor does it cite any
evidence in the administrative record, that the representations made to DI were ever
inaccurate or repudiated. Thus, DI proceeded to perfect its appropriation on the specific
representation that if it failed, the cancelled water rights would revert to its irrigation
certificate.
6
In Bailey, we stated that the State Engineer has been charged with the statutory duty of
administering the complex system of water rights within the state. We believe that lay
members of the public are entitled to rely upon its advice as to the procedures to be followed
under the state water law. Bailey, 95 Nev. at 382, 594 P.2d at 737. Accordingly, we remand
this matter to the district court. On remand, the district court shall instruct the State Engineer
to allow DI the opportunity to put the cancelled water rights under Permit 26358 to beneficial
use.
7
__________

6
The State Engineer repeatedly asserts that DI knew all along the permitted water rights were subject to
cancellation, and therefore, DI should not be surprised that it completely lost its rights to the formerly permitted
water. This argument is not compelling. The issue in this case is not whether DI knew it would lose its permitted
water rights by way of cancellation but whether, in the future, DI would ultimately retain further appropriative
rights as holder of Certificate 4663.

7
We note that our decision to grant DI further time in which to prove beneficial use is grounded in this court's
equitable powers and limited to the unusual facts of this case. See State Engineer v. American Nat'l Ins. Co., 88
Nev. 424, 426, 498 P.2d 1329, 1330 (1972).
____________
113 Nev. 1062, 1062 (1997) Peke Resources, Inc. v. District Court
PEKE RESOURCES, INC., Petitioner, v. THE FIFTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Esmeralda, and THE
HONORABLE JOHN P. DAVIS, DISTRICT JUDGE, Respondents, and TULE
CANYON GOLD PARTNERS, LTD., SUMMIT MINERALS MANAGEMENT,
INC., PALMETTO RESOURCES, INC., JAMES McCOWN, Individually, CARL
BENSON, Individually, and LLOYD GRAY, Individually, Real Parties In Interest.
No. 30001
August 28, 1997 944 P.2d 843
Petition for a writ of prohibition or mandamus challenging respondent judge's order
directing Equistar, one of the defendants in the underlying action, to deposit with the court
monies payable to defendant-petitioner Peke Resources, Inc. Fifth Judicial District Court,
Esmeralda County; John P. Davis, Judge.
Subsequent gold mining lease assignee-lessee, which acquired lessor's interest in mine and
entered into agreement to sell its rights in mine to purchaser, petitioned for writ of
mandamus, challenging authority and jurisdiction of the district court to require purchaser to
deposit mine purchase payments with district court in prior assignees' underlying action
against subsequent assignee and purchaser. The supreme court, Shearing, C. J., held that: (1)
district court manifestly abused its discretion by ordering purchaser to deposit mine purchase
payments with district court under deposit-in-court rule, absent admission by purchaser or
subsequent assignee that it owed purchase payments to prior assignees, and (2) subsequent
assignee was entitled to writ of mandamus directing district court to vacate its order requiring
mine purchaser to deposit mine purchase payments with district court.
Petition granted.
Woodburn & Wedge and W. Chris Wicker, Reno; Mark L. Mosley, Amarillo, Texas, for
Petitioner.
Peter L. Knight, Las Vegas; Jeppson & Lee, Reno; Underwood, Wilson, Berry, Stein &
Johnson and Don M. Dean, Amarillo, Texas, for Real Parties in Interest.
1. Deposits in Court.
Court may order deposit into court under deposit-in-court rule governing case in which party possesses money or thing belonging
to or due to another party only if all of the following questions are answered in the affirmative: whether
nonmovant against whom order is to be entered has admitted that it owes any or all of funds at issue to
another party; whether nonmovant has money in its possession; whether money is subject of the litigation;
and whether funds belong to or are due to another party, or nonmovant holds funds as trustee for another
party.
due to another party only if all of the following questions are answered in the affirmative: whether nonmovant against whom order is to
be entered has admitted that it owes any or all of funds at issue to another party; whether nonmovant has money in its possession;
whether money is subject of the litigation; and whether funds belong to or are due to another party, or nonmovant holds funds as
trustee for another party. NRCP 67(2).
District court manifestly abused its discretion by ordering gold mine purchaser to deposit mine purchase payments with district
court under deposit-in-court rule, absent admission by purchaser or subsequent assignee-lessee of gold mining lease that it owed money
to prior assignees, in prior assignees' action against subsequent assignee, which had acquired lessor's interest in mine, and purchaser
for breach of lease and related covenants, arising from subsequent assignee's entry into agreement to sell its rights in mine to purchaser;
both subsequent assignee and purchaser expressly denied viability of prior assignees' claims, and there had not yet been judicial
determination of which parties were entitled to future purchase payments. NRCP 67(2).
Deposit-in-court rule governing case in which party possesses money or thing belonging to or due to another party is meant to
apply in narrow, unique situations and, thus, district courts do not have broad discretion to order deposits in court when movants under
rule appear to have strong likelihood of success on the merits or when movants allege that they will be unable to recover any judgment
received absent such order. NRCP 67(2).
4. Mandamus.
Mandamus is extraordinary remedy, and decision as to whether petition for writ of mandamus will be entertained lies within
supreme court's discretion.
5. Mandamus.
Writ of mandamus is available to compel performance of act which law requires as duty resulting from office, trust, or station, or
to control arbitrary or capricious exercise of discretion. NRS 34.160.
6. Mandamus.
Subsequent assignee-lessee of gold mining lease was entitled to writ of mandamus directing district court to vacate its order under
deposit-in-court rule requiring mine purchaser to deposit mine purchase payments with district court in prior assignees' action against
subsequent assignee and purchaser, alleging breach of lease and related covenants; court manifestly abused its discretion by directing
purchaser to deposit purchase payments absent admission by purchaser or subsequent assignee that it owed money to prior assignees,
and subsequent assignee had no plain, adequate, and speedy remedy at law. NRS 34.160, 34.170.
OPINION
This case involves a placer gold mine in Tule Canyon, Esmeralda County, Nevada. In
1977, Oro Corporation (Oro), a Nevada corporation and then-owner of the mine, entered
into a mining lease with lessee Robert Scarth.
mining lease with lessee Robert Scarth. Oro leased its mining, mineral, water, and land
(millsite) rights. In exchange, Oro received $600 and retained a production royalty of seven
percent in all minerals extracted from the mine. The lease also contained provisions by which
both lessor and lessee could terminate the agreement.
Between 1983 and 1993, the lease was subsequently individually assigned in succession to
each of the real parties in interest in this case (collectively plaintiffs). As consideration for
the various assignments, each of the plaintiffs retained a production royalty, royalty
interest, or other similar interest in the mining operation tied to ongoing mineral production
or mine proceeds.
1
In late July 1993, petitioner Peke Resources, Inc. (Peke), then known as PW Resources,
became the newest assignee of the lease by entering into an agreement with Palmetto
Resources, Inc. (Palmetto), the last real party in interest to hold the lease interest. Like its
predecessors, Palmetto retained a financial interest in mine operations as part of the
consideration for the lease conveyance. The agreement also noted that TNT Corporation
(TNT) was Oro's successor in interest and that TNT had acquired Oro's remaining
production royalty in the mining claim.
On November 1, 1994, TNT conveyed its interest in the mine to Peke. This conveyance
effectively left Peke as the lessor-owner of the mining claim, the water and mineral rights,
and the millsite, as well as the last assignee of the lease.
On May 8, 1995, Peke, acting in its role as assignee-lessee of the mining lease, issued a
notice of lease termination to the lessor (i.e., to itself) pursuant to the termination provision of
the original lease. When the notice period expired thirty days later, Peke believed that it had
extinguished all of the plaintiffs' retained interests in the mining lease pursuant to the doctrine
of merger, and therefore that Peke controlled an undisturbed one hundred percent interest in
the mine, minerals, land, and water rights.
In September 1995, Peke entered into an option and placer agreement to sell its mining
claims, mining equipment, leases, and water rights in the mine to Equistar Holding
Corporation (Equistar) for a total consideration of $7,500,000.
On December 11, 1995, plaintiffs filed a complaint against Peke seeking, inter alia, a
declaratory judgment that their respective interests in the mining lease had not been
extinguished and that Peke had breached the lease and related contractual covenants.
__________

1
It appears that real party in interest Summit Minerals Management, Inc., received a royalty interest in the
mine's production without ever having been an assignee of the lease. Further, under its contract of conveyance,
real party in interest Tule Canyon Gold Partners, Inc. also allegedly retained 10% of the gross sales price of
monies received if [the mine] is sold.
tive interests in the mining lease had not been extinguished and that Peke had breached the
lease and related contractual covenants. On July 11, 1996, plaintiffs filed a second amended
complaint naming Equistar and Parry Williams, the owner of Peke, as defendants.
On October 7, 1996, Equistar filed an answer to the second amended complaint and filed a
counterclaim against plaintiffs and a cross-claim against Peke. In paragraph VIII of its
answer, Equistar stated that it
is entitled to have entered a decree of interpleader
2
permitting Equistar to deposit future
payments under its agreement with Peke, or such proportion thereof as the Court shall
determine, into Court to be held pending the rendition of final judgment whether any
portion of such funds should be turned over to Plaintiffs if any of their claims have
merit (which is denied) and, if so, the amount thereof . . . .
(emphasis added).
On November 27, 1996, plaintiffs filed a motion pursuant to NRCP 67(2) to require that
the remaining purchase payments from Equistar to Peke be deposited with the court pending a
final resolution of the case. By the time of the filing of that motion, Peke had already received
$2,950,000 of the $7,500,000 purchase price from Equistar, and installment payments were
coming due. According to plaintiffs, Peke had disposed of all purchase payments shortly after
receipt. Reversing the position taken in its answer, Equistar announced that the question of
whether any money is due to Plaintiffs is disputed and that it opposed any order requiring a
deposit in court of any future purchase payments.
On January 27, 1997, the district court entered a written order directing Equistar to deposit
into the registry of the court any future payments it intended to make to Peke pursuant to the
placer and option agreements. The court noted, however, that its order did not preclude
Equistar from exercising any contractual rights it retained to suspend payments to Peke. The
written order contains no factual findings.
On February 20, 1997, Peke filed the instant petition for a writ of mandamus or
prohibition challenging the district court's authority and jurisdiction to require Equistar to
deposit purchase payments with the court.
__________

2
Nevada interpleader provision NRCP 67(1) states:
In an action in which any part of the relief sought is a judgment for a sum of money or the disposition
of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every
other party, and by leave of court, may deposit with the court all or any part of such sum or thing to be
held by the clerk of the court subject to withdrawal, in whole or in part, at any time thereafter upon order
of the court.
authority and jurisdiction to require Equistar to deposit purchase payments with the court.
DISCUSSION
Peke contends that plaintiffs failed to meet all of the factors necessary to require a deposit
under NRCP 67(2). Plaintiffs contend that the district court properly exercised its discretion
in granting the motion.
3
NRCP 67(2) provides:
When it is admitted by the pleading or examination of a party, that he has in his
possession or under his control, any money or other thing capable of delivery, which,
being the subject of litigation, is held by him as trustee for another party, or which
belongs or is due to another party, the court may order the same, upon motion, to be
deposited in court, or delivered to such party, upon such conditions as may be just,
subject to the further direction of the court.
The proper application of this deposit in court rule has been explained by a California
Court of Appeal as follows:
The right of the court to make an order for deposit or delivery depends on the facts
as shown to the court. A party to a controversy involving a right to a certain sum of
money or thing cannot be required to deposit that money or thing in court unless it is
either clearly admitted in his pleading or shown in some proceeding in the cause that
he has himself no right to retain it and that the other party to the action is entitled to it
or at least has an absolute interest in it. In all cases it must appear that the party holds
the money as trustee, or that it belongs or is due to another party. If the party alleged to
hold as trustee claims title or right to all or part of the funds in his possession, the court
is without jurisdiction to compel him to surrender them by ordering a deposit in court,
since this constitutes an issue which should not be tried in this summary manner, but
one which requires a judicial determination, on the hearing of all the facts, that he has
no right to the funds. If it appears from the proceedings that the right of the other party
is dependent on his performance of some condition, or if the party applying for the
order does not claim an immediate right to the money, or disputes the existence of the
condition, the court will not order the money to be deposited before a hearing and
judicial determination, in order to avoid the gross injustice of putting a party to
great inconvenience before finding his view of the case to be correct.
__________

3
Plaintiffs' argument relies heavily upon out-of-state case law granting broad discretion to trial courts to
compel deposits in court under rules identical to NRCP 67(1). However, Equistar did not follow through with its
opportunity to utilize NRCP 67(1). Thus, that provision is not at issue and the cases cited by plaintiffs are largely
irrelevant.
disputes the existence of the condition, the court will not order the money to be
deposited before a hearing and judicial determination, in order to avoid the gross
injustice of putting a party to great inconvenience before finding his view of the case to
be correct.
The statute does not authorize an order unless it is shown that a party to the action
actually has a fund or property in his possession or under his control. Furthermore, an
order is not authorized if the fund or property is not the subject of the litigation, but its
payment is merely an incident thereto dependent on the judgment to be rendered, as in
the case of an action for redemption, specific performance, accounting, rescission, or
the like.
In re Elias, 25 Cal. Rptr. 739, 747-48 (Ct. App. 1962) (emphasis added) (interpreting Cal.
Civ. Proc. Code 572 which was, at that time, identical in wording to NRCP 67(2), and
quoting 23 Cal. Jur. 2d, Funds and Deposits in Court, 5, at 568-69); accord Rainier Nat'l
Bank v. McCracken, 615 P.2d 469, 476 (Wash. Ct. App. 1980).
[Headnote 1]
Applying section 572, the In re Elias court examined the following questions: (1) whether the party against whom the order is to be
entered (nonmovant) has admitted that it owes any or all of the funds at issue to another party; (2) whether the nonmovant has the money
in its possession; (3) whether the money is the subject of the litigation; and (4) whether the funds belong to or are due to another party, or
the nonmovant holds the funds as trustee for another party. In re Elias, 25 Cal. Rptr. at 745. The court may only order a deposit into court if
all four questions are answered in the affirmative.
This court's decision in Florence-Goldfield Mining Co. v. District Court, 30 Nev. 391, 97 P. 49 (1908), supports the In re Elias
formulation of the language in NRCP 67(2). See In re Elias, 25 Cal. Rptr. at 745 (interpreting 3240 of the Nevada Compiled Laws, now
codified as NRCP 67(2)). Moreover, it appears that Cal. Civ. Proc. Code 572 served as the model for the Nevada rule. See 4 NCL 8748,
at 2606-07 (1930) (referring to Cal. Civ. Proc. Code 572); see also Moody v. Manny's Auto Repair, 110 Nev. 320, 327, 871 P.2d 935,
940 (1994) (stating that decisions of foreign courts will be used as a guide where Nevada legislature patterned statute at issue after that of
the foreign jurisdiction). Accordingly, we adopt the In re Elias construction.
[Headnote 2]
With respect to the first factor necessary to satisfy NRCP 67(2), Peke argues that because Equistar has not admitted that it owes the
purchase payments without qualification to plaintiffs, plaintiffs have no right to have those payments
deposited into court.
owes the purchase payments without qualification to plaintiffs, plaintiffs have no right to
have those payments deposited into court. We agree.
In the case at bar, neither Peke nor Equistar has admitted that any or all of the purchase
payments are owed to plaintiffs. Indeed, both Peke and Equistar expressly denied in their
respective answers the viability of plaintiffs' claims. The record shows that plaintiffs, Peke
and Equistar either directly or indirectly, claim interests in the remaining payments. There has
not yet been a judicial determination of which parties are entitled to the future purchase
payments under the Peke-Equistar contract. Because ownership of the funds remains in
dispute, the district court should not have ordered a deposit in court pursuant to NRCP 67(2).
See In re Elias, 25 Cal. Rptr. at 745
4
; see also Florence-Goldfield Mining, 30 Nev. at 400, 97
P. at 51 (lessor's virtual admission that funds held by him belonged to lessee afforded
district court jurisdiction to order deposit in court).
[Headnote 3]
We reject plaintiffs' arguments that district courts should have broad discretion to order deposits in court where NRCP 67(2) movants
appear to have a strong likelihood of success on the merits, or where those movants allege that absent such an order they will be unable to
recover any judgment received. These factors are not relevant to the NRCP 67(2) analysis. This court's discussion of the rule makes clear
that it is meant to apply in narrow, unique situations. See generally Florence-Goldfield Mining, 30 Nev. at 396-401, 97 P. at 49-52.
Plaintiffs' use of NRCP 67(2) as a vehicle to preserve assets to satisfy a potential judgment was inappropriate.
As we have determined that the first NRCP 67(2) factor has not been met, we need not examine the remaining factors. We conclude
that the district court manifestly abused its discretion in ordering Equistar to deposit with the court any future purchase payments it intends
to make.
5
__________

4
In In re Elias, a subcontractor filed a breach of contract action against a general contractor and its surety. Pursuant to a motion filed by
the surety, the court issued an order requiring the general contractor to deposit with the court $39,000 in contested funds. 25 Cal. Rptr. at
743. The California Court of Appeal reversed the order of the district court, stating that neither the surety nor the general contractor had
admitted that the general contractor owed that money to the plaintiff. Id. at 745. Thus, the court concluded that until it had been proven by
trial that such sum was in fact due, a deposit to the court pursuant to Cal. Civ. Proc. Code 572 was inappropriate. Id. at 745-48; accord
26A C.J.S. Deposits in Court 1(d)(2) (1956).

5
During oral argument before this court, Equistar sought to introduce new evidence not contained in the record. Matters outside the
record on appeal
[Headnotes 4, 5]
Mandamus is an extraordinary remedy, and the decision as to whether such a writ petition will be entertained lies within the discretion
of this court. Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982). A writ of mandamus is available to compel the
performance of an act which the law requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an arbitrary or
capricious exercise of discretion. Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). This writ shall
be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170.
[Headnote 6]
We conclude that the district court manifestly abused its discretion by directing Equistar to deposit purchase payments with the court
because neither Equistar nor Peke has admitted, or virtually admitted, that it owes money to plaintiffs. Peke has no plain, adequate and
speedy remedy at law. Accordingly, we grant the instant petition and direct the clerk of this court to issue a writ of mandamus directing the
district court to vacate its deposit order.
The issue here is whether the trial court abused its discretion in ordering, pursuant to NRCP 67(2), that certain moneys be deposited in
court. I do not believe that the trial court abused its discretion and, therefore, dissent to the order that a writ of mandamus issue.
The trial court's ruling is based on the provision of NRCP 67(2) and, necessarily, upon the trial court's conclusion that Equistar had
admitted by the pleading or examination that it had under its possession . . . or control money that was due to another party. It is
rather clear from the Peke-Equistar contract that there was money due from a party (Equistar) to another party (Peke); and it does not
seem to me that the trial court abused its discretion in concluding that this fact was admitted.
As noted in the majority opinion, Equistar asked the court in a formal pleading that it be permitted to deposit future payments under
its agreement with Peke.
__________
may not be considered by an appellate court and reference to such matters is improper. See Grey v. Grey, 111 Nev. 388, 390 n.1, 892 P.2d
595, 597 n.1 (1995); State, Emp. Sec. Dep't v. Weber, 100 Nev. 121, 123, 676 P.2d 1318, 1319 (1984).
under its agreement with Peke. (Emphasis added.) Equistar thereby admitted by the
pleading that it had agreed to pay money to another party. No one denies the
Equistar-Peke contractual obligation; and the district court's NRCP 67(2) order merely
preserves this asset until the court can resolve whether the money should ultimately be paid to
Peke or to the real parties in interest.
Equistar admitted its obligation to Peke when it filed its answer and asked the court to
permit it to deposit in the court future payments owing under its agreement with Peke. The
fact (as stated in the majority opinion) that Equistar later revers[ed] the position taken in its
answer and announced that Equistar opposed any order requiring a deposit in court of any
future purchase payments is immaterial. Equistar's later joining forces with Peke is certainly
not the same as denying its contractual obligation to Peke; and, as I see it, it cannot be denied
that Equistar admitted by the pleading that it had money which was due to another party.
1
Even if there were a substantial question relating to Equistar's obligation to Peke under the
sales contract, the trial judge's order provides that nothing in its order would prevent Equistar
from exercising any right that it might have retained to suspend payments to Peke under the
terms of the sales contract. I can see no reason at all for interfering with the trial court's
proper exercise of discretion under NRCP 67(2); and, certainly, the trial judge has not, as
maintained by the majority, manifestly abused its discretion.
____________
113 Nev. 1070, 1070 (1997) Abeyta v. State
RODERICK TYRONE ABEYTA, aka RODERICK ABETYA, Appellant, v. THE STATE
No. 28927
August 28, 1997 944 P.2d 849
Appeal from a judgment of conviction, pursuant to jury verdicts, on separate counts of
burglary, robbery with use of a deadly weapon and first-degree murder with use of a deadly
weapon.
__________

1
The majority mentions Equistar's late-in-the-day assertion that the question of whether any money is due to
Plaintiff is disputed. The general statement, in the passive voice, that the Equistar-Peke contractual obligation is
disputed is not the same as saying that no money is owing. Whether there is some dispute as to the amount owing
does not take away from the fact that there remains in the record an admission by the pleading that there is
money owing that is subject to impound during this litigation.
weapon. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
Defendant was sentenced to death. The supreme court held that: (1) evidence supported
robbery conviction; (2) defendant's actions satisfied elements of robbery, rather than merely
burglary, despite contention that victim was sleeping at time defendant allegedly shot her; (3)
trial judge's interaction with jury in connection with juror's note that asked who resided at
certain location was not improper ex parte interaction, despite contention that judge did not
advise counsel of contents of note; (4) error, if any, in trial judge's failure to answer question
presented by juror in note as to who resided at certain location was not prejudicial; (5) trial
judge was not required to resolve alleged confusion immediately after juror sent judge note
during guilt phase requesting clarification as to whether defendant was being tried for robbery
as well as for murder; (6) error, if any, in trial judge's reaction to juror note concerning
whether fingerprints were identified as those of defendant was not reversible error; and (7)
death sentence was not excessive.
Affirmed.
Theodore J. Manos and Associates and Laura L. Melia, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Gerald J. Gardner, Deputy District
1. Criminal Law.
When sufficiency of the evidence is challenged on appeal in criminal case, relevant inquiry is whether, after viewing evidence in
light most favorable to prosecution, any rational trier of fact could have found essential elements of crime beyond a reasonable doubt.
2. Criminal Law.
When there is sufficient evidence to support jury's verdict, it will not be disturbed on appeal.
3. Robbery.
Evidence supported conviction for robbery with use of deadly weapon, despite confusion in testimony as to whether items that
defendant and accomplice took were from victim's apartment or another individual's residence; witness who was victim's former
roommate confirmed that several items which defendant's wife identified as having been at apartment of defendant and wife belonged
to victim. NRS 200.380.
4. Robbery.
Defendant's actions satisfied elements of robbery, rather than merely burglary, despite contention that victim was sleeping at time
defendant allegedly shot her, as reasonable jury could find that victim's knowledge of taking of her
property was prevented by use of deadly force, where defendant went back to kill victim before removing
victim's personal property from victim's residence.
defendant allegedly shot her, as reasonable jury could find that victim's knowledge of taking of her property was prevented by use of
deadly force, where defendant went back to kill victim before removing victim's personal property from victim's residence. NRS
200.380, 205.060(1).
5. Robbery.
Taking constitutes robbery where use of force follows the taking, and where the forcible conduct is part of continuous
transaction. NRS 200.380.
6. Criminal Law.
Trial judge's interaction with jury in connection with juror's note to judge during guilt phase of prosecution for murder and robbery
that asked who resided at certain location was not improper ex parte interaction so as to violate defendant's right to be present at all
critical stages of trial and his right to fair trial and impartial jury, despite contention that judge did not advise counsel of contents of
note; although attorneys were free to make inquiry regarding contents of note, none was made of record, and problem was evident to
counsel because when and what was taken from where was one of primary questions litigated in connection with robbery charge. NRS
200.380.
7. Criminal Law.
Error, if any, in trial judge's failure to answer question presented by juror in note during guilt phase of murder and robbery
prosecution as to who resided at certain location was not prejudicial, given attention that was paid during trial to issue of location and
timing of takings, despite contention that judge's failure to answer violated defendant's right to fair trial and impartial jury; although
attorneys were free to make inquiry regarding contents of note, none was made of record, and problem was evident to counsel because
when and what was taken from where was one of primary questions litigated in connection with robbery charge. NRS 200.380.
8. Criminal Law.
Trial court need not answer all questions that jurors ask.
9. Criminal Law.
Trial judge was not required to resolve alleged confusion immediately after juror note was sent to judge during guilt phase of
murder and robbery prosecution requesting clarification as to whether defendant was being tried for robbery as well as for murder,
despite contention that judge violated defendant's right to fair trial and impartial jury, where jury was given complete instructions on
charged crimes at conclusion of evidence and defendant was unanimously convicted of robbery charge. NRS 200.380.
10. Criminal Law.
Error, if any, was not prejudicial in interchange between trial judge and jury in guilt phase of murder prosecution in which juror
sent judge note requesting clarification of hearsay rule and judge indicated on the record in response that jury was not to be concerned
with judge's evidentiary rulings and that jury was to decide facts based on law that jury instructions were to set forth at end of case, as
interchange was of no consequence, despite contention that judge violated defendant's right to fair trial and impartial jury. NRS
178.598.
11. Criminal Law.
Error, if any, in trial judge's reaction to juror note during guilt phase of murder prosecution concerning whether fingerprints on
fingerprint cards were identified as those of defendant was not reversible error, despite contentions that trial
court might have responded to jury ex parte or might have ignored note so as to violate defendant's right
to be present at all critical stages of trial or his right to fair trial and impartial jury, where all fingerprint
cards were identified, jury was advised that not all latent "lifts" would result in match, and all positive
comparisons were revealed to jury.
cards were identified as those of defendant was not reversible error, despite contentions that trial court might have responded to jury ex
parte or might have ignored note so as to violate defendant's right to be present at all critical stages of trial or his right to fair trial and
impartial jury, where all fingerprint cards were identified, jury was advised that not all latent lifts would result in match, and all
positive comparisons were revealed to jury.
12. Criminal Law.
It is supreme court's responsibility on appeal to ensure that jury instructions stated existing law.
13. Homicide.
Death sentence was not excessive in prosecution for first-degree murder with use of deadly weapon, in light of gravity of offense
and defendant, where defendant shot victim, with whom defendant had previously had affair and who was in bed sleeping, in head
while committing robbery at victim's residence. NRS 177.055(2)(d).
OPINION
Per Curiam:
Roderick Tyrone Abeyta (Abeyta) was found guilty of burglary, robbery with use of a
deadly weapon, and murder with use of a deadly weapon, all in connection with the shooting
death of Donna Martin.
After a penalty hearing on the murder conviction, the jury voted to impose the death
penalty. In addition, the trial court sentenced Abeyta to fifteen years in the Nevada
Department of Prisons for robbery, an additional fifteen years for the weapon enhancement,
and ten years for burglary. All sentences were imposed consecutively. Abeyta now appeals.
FACTS
During the late night or early morning hours of October 20-21, 1989, Donna Martin was
fatally shot in the head at close range as she lay sleeping in her apartment at 740 North Ninth
Street, Las Vegas, Nevada. Abeyta had been involved with Martin during a temporary
estrangement from his wife, Barbara Abeyta (hereinafter Barbara).
Abeyta and Barbara were married for about five years when, sometime in 1989, they began
experiencing marital difficulties. Abeyta moved out of their apartment on East Bonanza Road
in Las Vegas, and moved in with Martin for about one month. Shortly before Martin's demise,
Abeyta and Barbara reconciled and he moved back to the marital residence. It is undisputed
that these relationships were quite tumultuous.
Evidence introduced at trial indicates that, after a brief visit to family in the state of
Minnesota, Abeyta returned to Las Vegas on October 16, 19S9, with his half-brother, Casey
Korsmo, and a .25 caliber semiautomatic handgun.
October 16, 1989, with his half-brother, Casey Korsmo, and a .25 caliber semiautomatic
handgun.
On the night preceding the murder, Abeyta confronted Vicky Sherman, Martin's former
roommate, at a local bar. Abeyta angrily inquired as to why they had told Barbara of his affair
with Martin. Sherman testified to threats by Abeyta that Martin and Sherman were going to
get what was coming to [them] and that she and Martin would end up with bullets in their
brains.
Korsmo, the State's primary witness, testified to the following account. Abeyta and
Barbara had argued at their apartment on the night of Martin's murder. Barbara then sedated
herself with Percodan, after which Korsmo and Abeyta left to purchase liquor. After about an
hour, they went to Martin's house, initially with the intention of purchasing narcotics. They
parked one-half to three-quarters of a block away, approached Martin's front door, knocked
and looked in. Although no one answered, Korsmo could see someone's feet at the end of a
couch located in the apartment living room. At that point, Abeyta allegedly said that he
wanted to rob Martin of drugs he believed were in the house. Abeyta also told Korsmo that
Martin had become a problem to his household and that he'd just like to really hurt her
sometimes. Korsmo was unaware at the time that Abeyta was carrying a handgun.
Both men entered the apartment after breaking a bedroom window in the back of the
house. Before entering, Abeyta told Korsmo that Martin would be sleeping heavy because
she had been awake for three or four days on crank (methamphetamine). As Korsmo stood by
the bedroom window in the darkened house, Abeyta went through the apartment. Sometime
later, Abeyta returned to the bedroom with a satchel-like purse and a checkbook. Korsmo
subsequently learned that some brass owl figurines and a little teapot-looking thing had
been taken.
Korsmo went on to testify that, upon returning with the purse and other items, Abeyta told
him to return to the car. This order notwithstanding, Korsmo chose to remain inside the house
by the bedroom window. At that point, Abeyta went back to the living room area. As Korsmo
waited, he could hear Abeyta quietly cursing because he could not find the drugs. Korsmo
then heard two gunshots. Shortly thereafter, both men exited the house through the window.
Once inside the car, Abeyta said, I killed the bitch and if you tell anybody I'll kill you, too.
Abeyta also described the actual killing by saying that he sat on Martin's back as she laid on
her stomach, grabbed her by the hair, told her he would get her, and then shot her.
After returning to Abeyta's apartment and ingesting methamphetamine, Abeyta and
Korsmo again left for a period of hours during which Abeyta burglarized several mobile
homes while Korsmo waited in the car.
during which Abeyta burglarized several mobile homes while Korsmo waited in the car.
Items taken during these later events included collector's plates and an antique clock. Korsmo
testified that they returned to Abeyta's apartment at about 6:00 a.m. on October 21.
According to Barbara, at approximately 3:00 a.m. on October 21, she awoke to find
Abeyta and Korsmo entering their apartment with various items. These included a clock with
chimes, a huge mosaic, a pink-looking clock, plates depicting birds and wildlife, and
numerous brass items consisting of bells, scissor holders, owls, clowns and a teapot. Abeyta
told his wife that the items had been obtained in exchange for a $250 debt.
Barbara went on to testify that, on October 23, 1989, Abeyta placed a plastic bag
containing the handgun and a buck knife into her rented storage unit. Then, on October 24,
1989, Barbara learned of Martin's death. Becoming suspicious, she contacted Sherman to
determine what had been stolen from Martin's residence. Sherman advised that among the
missing items were some brass objects and a buck knife. Barbara then contacted the Las
Vegas Metropolitan Police Department Secret Witness program. After taking Barbara's
information and accompanying her to the storage unit to retrieve the plastic bag, handgun and
buck knife, the police arrested Abeyta on the aforementioned charges.
Other testimony came from Diane Guitterriz, an acquaintance of Abeyta. She testified that
her trailer was burglarized on the evening of the murder. Missing were brass items, plates
depicting dogs, birds and different wildlife scenes, an anniversary clock, a 110-year-old Seth
Thomas mantle clock and clown figurines.
The jury convicted Abeyta on all charges and unanimously voted to impose the death
penalty. Abeyta appeals, claiming that the robbery conviction is infirm; that certain
communications by the jurors to the district court via five jury notes violated his right to be
present at critical stages of the proceedings; and that the jury was improperly instructed on
malice, premeditation and reasonable doubt.
DISCUSSION
Robbery
Count II of the Information, which charged Abeyta with robbery with use of a deadly
weapon, reads as follows:
[Defendant] did between October 20, 1989, and October 21, 1989, then and there
wilfully, unlawfully, and feloniously take personal property, to-wit: one (1) brass
teapot, one (1) brass bell, (1) brass scissors in a holder, three (3) brass owls and a purse
and contents, from the person of DONNA MARTIN, or in her presence, by means of
force or violence, or fear of injury to, and without the consent and against the will of
the said DONNA MARTIN, said Defendant using a deadly weapon, to-wit: a firearm,
during the commission of said crime.
lence, or fear of injury to, and without the consent and against the will of the said
DONNA MARTIN, said Defendant using a deadly weapon, to-wit: a firearm, during
the commission of said crime.
Abeyta argues that the robbery conviction should be overturned because it was not
supported by sufficient evidence and because the State did not, as a matter of law, establish
all of the elements of robbery.
[Headnotes 1, 2]
When sufficiency of the evidence is challenged on appeal in a criminal case, [t]he relevant inquiry . . . 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.' Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original)). Where there is sufficient evidence to support the jury's verdict, it will not be disturbed on appeal.
Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 937 (1978).
[Headnote 3]
Abeyta contends that it was unclear whether the items Korsmo and Abeyta took were from Martin's apartment or Guitterriz's mobile
home, thus clouding the jury's ability to find him guilty beyond a reasonable doubt.
He points to the testimony of Lois Gonnelly, an acquaintance of Guitterriz, during which Gonnelly identified several of the recovered
items as being taken from Guitterriz's trailer; whereas, Sherman identified some of the same objects as belonging to Martin. Abeyta also
refers to the fact that Barbara listed several items taken from Guitterriz as having been at her apartment at 3:00 a.m. on October 21, 1989,
while Korsmo stated that these items were not taken until later that morning.
Although there was some confusion in this regard, the jury could reasonably have resolved these questions beyond a reasonable doubt
in favor of a theft having occurred at Martin's apartment. Sherman identified several articles as belonging to Martin. Most notable were the
brass scissors and three brass owls. Sherman also testified that the police recovered a brass teapot exactly like the one that was in
[Martin's] home. Although Sherman was unable to tie many of the stolen items to Martin, she confirmed that several of the items
identified by Barbara belonged to Martin.
We therefore hold that Abeyta's conviction for robbery is supported by sufficient evidence.
[Headnote 4]
Abeyta also claims that the State failed to establish each of the statutory elements necessary to uphold a conviction for robbery. NRS
200.380 states, in pertinent part:
1. Robbery is the unlawful taking of personal property from the person of another, or in his presence, against his will, by
means of force or violence or fear of injury, immediate or future, to his person or property, or the person or property of a member
of his family, or of anyone in his company at the time of the robbery. 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.
The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property. A
taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person
from whom taken, such knowledge was prevented by the use of force or fear.
(Emphasis added.)
Abeyta argues that, as a matter of law, Korsmo's account of the events at Martin's residence proved only that a burglary,
1
as opposed to
robbery, occurred. Abeyta maintains that, because Martin was sleeping at the time of the killing, the State failed to prove beyond a
reasonable doubt that Martin had knowledge of the taking or that her knowledge was prevented by the use of force.
In Sheriff v. Jefferson, 98 Nev. 392, 649 P.2d 1365 (1982), this court upheld a conviction for robbery where the victim was able to
escape from her vehicle before the defendant took her purse from the car. We stated that a taking constitutes robbery even if the taking is
fully completed without the victim's knowledge, if such knowledge is prevented by the use of force or fear. Id. at 394, 649 P.2d at
1366-67.
Unlike the scenario in Jefferson, the use of force in this matter, i.e., the murder, took place after Martin's personal property had been
removed from her presence.
__________

1
NRS 205.060(1) reads as follows:
A person who, by day or night, enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable,
outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car,
with the intent to commit grand or petit larceny, assault or battery on any person or any felony, is guilty of burglary.
[Headnote 5]
We agree with the proposition that a taking constitutes a robbery where the use of force follows the taking, and where the forcible
conduct is part of a continuous transaction. See State v. Holt, 917 P.2d 1332, 1339 (Kan. 1996); State v. Comer, 799 P.2d 333, 341 (Ariz.
1990), cert. denied, 499 U.S. 943 (1991) (noting that a robbery may also be established when the use of force follows the actual taking of
property, so long as the use of force is accompanied with the intent to take another's property).
Thus, we conclude that a reasonable jury could find that Martin's knowledge of the taking of her property was prevented by the use of
deadly force. Most notably, Abeyta went back to kill Martin before removing her personal property from the residence. Thus, Abeyta's
actions in this matter satisfied the elements of a robbery as opposed to burglary.
Jury Notes
Abeyta argues that his right to be present at all critical stages of the trial, and his right to a fair trial and an impartial jury, were
frustrated by the manner in which the judge resolved five notes sent to the trial judge by the jury during the guilt phase of the trial. After
carefully reviewing the record, we conclude that the trial court's interaction with the jury regarding the notes was neither ex parte nor
prejudicial. We will address each note in turn.
[Headnotes 6, 7]
A jury member sent the first note to the judge during the testimony of the first witness in the case. The note asks: Who lives E
Bonanza. The judge simply indicated on the record that the jury had sent a note requesting some information and stated to the jury,
without answering the question, that most questions they might have would be answered through other witnesses. Abeyta argues that the
judge did not advise counsel of the contents of the note and did not answer the question. Abeyta contends that the question was relevant to
the robbery charge.
[Headnote 8]
Although the attorneys were free to make inquiry regarding the contents of the note, none was made of record. See McCullough v.
State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983) (holding that failure to object at trial will bar review of issue on appeal). Further, this
problem was evident to counsel because when and what was taken from where was one of the primary questions litigated in connection
with the robbery charge. Given the attention that was paid to this issue during the trial, the court's failure to answer the question for the jury
is inconsequential. See NRS 17S.59S{any irregularity or variance which does not affect substantial rights shall be
disregarded); see also Farmer v. State, 95 Nev. S49, S53
178.598 (any irregularity or variance which does not affect substantial rights shall be
disregarded); see also Farmer v. State, 95 Nev. 849, 853, 603 P.2d 700, 703 (1979). In any
case, the court need not answer all questions because, until juries are given the right to ask
questions of witnesses and counsel, jury trials are not interactive to the extent Abeyta
impliedly suggests.
[Headnote 9]
Note three,
2
submitted on the third day of a four-day trial, requested clarification as to whether Abeyta was being tried for robbery as
well as murder: I'm sorry for not being clear on this, but are we trying Mr. Abeyta for robbery as well as murder, or just for murder?
In response, the judge indicated that the issue would become clear later in the proceedings. Abeyta argues that the note indicated jury
confusion as to the charges which should have been resolved at that point. We find that this argument is meritless; the jury was given
complete instructions on the crimes charged at the conclusion of the evidence and Abeyta was unanimously convicted of the robbery
charge. See Roland v. State, 96 Nev. 300, 301-02, 608 P.2d 500, 501 (1980).
[Headnote 10]
The fourth note requested a clarification of the hearsay rule. It states: JudgeCould you please explain to us the difference between
heresay,' [sic] & a witness fully answering a question. (When a witness states he said' or she said?!) Thank you
In response, the judge indicated on the record that the jury was not to be concerned with his evidentiary rulings, and that the jury was
to decide the facts based on the law that was to be set forth at the end of the case in the jury instructions. Abeyta argues that his counsel was
not advised of the note's existence. First, the record in its entire context suggests that counsel were present. Second, this interchange is of no
consequence. See Kazalyn v. State, 108 Nev. 67, 71, 825 P.2d 578, 581 (1992).
[Headnote 11]
Note five reads as follows: There were several finger-print cards entered as evidencewere the finger-prints on those cards identified
as the defendant'sor someone elses? The record does not reflect the judge's reaction to this note. While Abeyta concedes that the trial
court may have responded to note five, he contends that the trial court might also have addressed this note to the jury ex parte or,
alternatively, may have ignored it all together.
__________

2
Abeyta concedes that the second note and the circumstances surrounding it are without consequence.
There is no indication in the record that Abeyta's complaints regarding this note have any
merit. The record regarding the fingerprint evidence indicates that all of the cards were
identified, the jury was advised that not all latent lifts will result in a match, and that all of
the positive comparisons were revealed to the jury. Thus, as with the other arguments
addressing these notes, reversible error has not been established. Accordingly, there is no
need to analyze the trial court's interaction with the jury under Isbell v. State, 97 Nev. 222,
626 P.2d 1274 (1981).
3
Jury Instructions
[Headnote 12]
Abeyta attacks the trial court's instructions on malice, premeditation and reasonable doubt. It is this court's responsibility to ensure that
the jury instructions stated existing law. Barron v. State, 105 Nev. 767, 773, 783 P.2d. 444, 450 (1989). Having completed our analysis
under Barron, we conclude that Abeyta's assignments of error regarding these instructions have previously been addressed by this court and
rejected. See Evans v. State, 112 Nev. 1172, 1191-92, 926 P.2d 265, 278 (1996); Wesley v. State, 112 Nev. 503, 916 P.2d 793 (1996);
Witter v. State, 112 Nev. 908, 917-18, 921 P.2d 886, 893 (1996); Guy v. State, 108 Nev. 770, 776-77, 839 P.2d 578, 582-83 (1992), cert.
denied, 507 U.S. 1009, 113 S. Ct. 1656 (1993); Lord v. State, 107 Nev. 28, 38-40, 806 P.2d 548, 552 (1991).
[Headnote 13]
In addition to the foregoing, we also find that the death sentence was not imposed under the influence of passion, prejudice, or any
arbitrary factor, and that the evidence supports the finding of aggravating circumstances. NRS 177.055(2)(b); NRS 177.055(2)(c). Further,
considering both the gravity of this offense and the defendant, we find that the death sentence is not excessive in this case. NRS
177.055(2)(d).
We have carefully reviewed Abeyta's other assignments of
__________

3
In Isbell, this court stated:
Any private communication with a juror in a criminal case on any subject connected with the trial is presumptively prejudicial. . . .
The burden is on the respondent to show that these communications had no prejudicial effect on the jurors. . . . A hearing before
the trial court is the proper procedure to determine whether a communication is or is not prejudicial.
Id. at 226, 626 P.2d at 1276-77 (citing Remmer v. United States, 347 U.S. 227 (1954); Conforte v. State, 77 Nev. 269, 362 P.2d 274
(1961); Parsons v. State, 74 Nev. 302, 329 P.2d 1070 (1958)).
error and conclude they are without merit. Accordingly, the judgment of conviction is
affirmed in its entirety.
____________
113 Nev. 1081, 1081 (1997) Ramos v. State
JUAN RAMOS, Appellant, v. THE
No. 30305
THOMAS GARY WARD, Appellant, v. THE
No. 30554
MICHAEL JOSEPH TRUJILLO, Appellant, v.
No. 30573
August 28, 1997 944 P.2d 856
Appeal from a judgment of conviction of attempted robbery. Eighth Judicial District
Court, Clark County; Sally L. Loehrer, Judge; Docket No. 30305. Appeal from a judgment of
conviction of burglary. Eighth Judicial District Court, Clark County; Jack Lehman, Judge;
Docket No. 30554. Appeal from a judgment of conviction of harassment, malicious
destruction of property, and malicious destruction of private property, greater than $250 in
value but less than $5,000 in value. Eighth Judicial District Court, Clark County; Sally L.
Loehrer, Judge; Docket No. 30573.
Cases were consolidated in which, following conviction, fast track statements were filed
by counsel that stated either there were no genuine issues of fact or law that could be raised
on appeal, accompanied by no presentation of statement of facts, legal issues, or arguments,
or that discussed procedural history of case and stated no issues are presented or legal
arguments made. The supreme court held that: (1) counsel is not obligated to file no merit
affidavit and must argue for their clients without conceding appeal is without merit or
frivolous; overruling Sanchez v. State 85 Nev. 95, 450 P.2d 793 (1969), and (2) in rare cases
where counsel is forced to assert frivolous issues before appellate court, there is exception to
rules of professional conduct to allow that pursuit of frivolous appeal.
Appellants' fast track statements stricken.
113 Nev. 1081, 1082 (1997) Ramos v. State
Morgan D. Harris, Public Defender, Daren B. Richards, Deputy Public Defender,
Douglas P. DeJulio, Deputy Public Defender and Thomas W. Rigsby, Deputy Public
Defender, Clark County, for Appellants.
and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondents.
1. Criminal Law.
Defense attorneys must argue for their clients without conceding an appeal is without merit or frivolous, and counsel's obligation
to file a no merit affidavit is dispatched; overruling Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969).
2. Criminal Law.
Appeal is not frivolous even though defense attorney believes that client's position will ultimately not prevail. Few appeals do not
have at least one issue that is not wholly frivolous as counsel can present any good faith argument on the merits, good faith challenge
to sufficiency of the evidence, or argue in good faith for an extension, modification or reversal of existing law.
3. Criminal Law.
Prohibition precluding defense attorneys from conceding that an appeal is without merit or frivolous may, on rare occasions, force
counsel to assert frivolous issues before the court, and in those cases, there is exception to the rule of professional conduct to allow
pursuit of a frivolous appeal. Defense bar is cautioned that it is still obligated not to deceive or mislead court by, for example,
misstating facts, misapplying law to facts, or deliberately omitting facts or authority that are contrary to counsel's position.
OPINION
Per Curiam:
In Ramos v. State, Docket No. 30305, and Ward v. State, Docket No. 30554, defense
counsel filed fast track statements that explained that after a careful review of the record,
counsel concluded that no genuine issues of fact or law could be raised on appeal. However,
counsel did not present a statement of facts, legal issues or arguments.
In Trujillo v. State, Docket No. 30573, counsel filed a fast track statement that discussed
the procedural history of the case and then stated that no issues are presented or legal
arguments made. Counsel did not make an averment that after a conscientious review of the
record, he concludes that no genuine appellate issues exist.
We conclude that counsel in each appeal failed to comply with the requirements of Anders
v. California, 386 U.S. 738 (1967), and Sanchez v. State, S5 Nev. 95
113 Nev. 1081, 1083 (1997) Ramos v. State
and Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969), and their progeny.
Currently, attorneys attempt to comply with Sanchez in a myriad of ways. Some attempt to
comply by providing a detailed procedural and factual history of a case, raising the most
arguable issues, arguing those issues, and then filing a separate affidavit of no merit. Others
merely state that no issues exist, provide no legal argument, and do not file a no merit
affidavit.
These inconsistent attempts to comply with Sanchez force us to reconsider that holding.
The regime announced in Anders was premised upon counsel's ethical obligation to withdraw
from an appeal if counsel believes that appeal is frivolous. In Sanchez, we dispatched with the
obligation of counsel to file a motion to withdraw in a case counsel believes lacks merit.
Today we dispatch with the obligation of counsel to file a no merit affidavit.
The Anders approach is schizophrenic in nature. An attorney raises issues and arguments
and then is forced to concede that those arguments are without merit. We refuse to accept the
notion that an attorney can file a no merit affidavit without actually advocating against the
merit of his client's appeal, and we recognize that the Anders procedure often entails the
expenditure of more court resources than would be expended upon a meritorious appeal.
The Idaho Supreme Court concluded that it was unable to follow the impractical and
illogical procedure outlined as dictum in Anders. State v. McKenney, 568 P.2d 1213, 1214
(Idaho 1977). The McKenney court concluded that the filing of a no merit appeal cannot but
result in prejudice to the defendant. Id. That court then stated that if a criminal case on
appeal is wholly frivolous, undoubtedly, less of counsel and the judiciary's time and energy
will be expended in directly considering the merits of the case in its regular and due course as
contrasted with a fragmented system outlined by Anders. Id. The McKenney court then
concluded that defense counsel in that state need not file no merit affidavits.
Dissenting to an order granting a motion to withdraw as counsel and dismissing an appeal
deemed frivolous, a District of Columbia judge interpreted the Idaho rule and acknowledged
its superiority over the Anders process. Gale v. United States, 429 A.2d 177, 178-83 (D.C.
1981) (Ferren, J., dissenting), cert. denied, 454 U.S. 893 (1981). Judge Ferren opined that the
Idaho rule would require an attorney to choose the best of the worst of appellant's arguments
on appeal. State v. Cigic, 639 A.2d 251, 253 (N.H. 1994) (discussing Judge Ferren's
dissenting opinion). Then, after the state files a response, the appellate court can decide the
case on the merits of the issue or issues raised rather than undertaking an independent
review of the entire record on appeal.
113 Nev. 1081, 1084 (1997) Ramos v. State
than undertaking an independent review of the entire record on appeal. Id.
Judge Ferren's concern with the Anders process was that when an attorney files a no merit
affidavit, courts feel obliged to spend a substantial amount of time studying the record for a
clue that might arguably support the appeal,' or duplicate undocumented time spent by
counsel or do what counsel should have done but did not. Gale, 429 A.2d at 181 (Ferren, J.
dissenting) (quoting Anders, 386 U.S. at 744). In short, the Anders dictum typically forces
either the court to undertake the role of the lawyer, or the lawyer to undertake the role of the
court. Id. at 182.
New Hampshire embraced the Idaho approach to preserve [] the integrity of the
attorney-client relationship better than strict adherence to Anders. Cigic, 639 A.2d at 253.
The Cigic court concluded that if, in counsel's estimation, an appeal is without merit, counsel
must discuss his or her conclusion with the client and advise the client against pursuing the
appeal. Id. at 254. If a defendant insists on continuing with the appeal, counsel should file a
brief that includes all arguable issues and argues defendant's appeal as well as possible. Id.
Counsel cannot concede that the appeal is frivolous, but if an appeal is truly frivolous,
counsel's accurate summary of the facts and law will make that obvious. Id. (emphasis
added).
We elect to follow Idaho and New Hampshire and opt out of the Anders quagmire. With
respect to cases filed after this opinion, Sanchez is overruled. The soundness of our decision
was stated succinctly by Judge Ferren in Gale.
Some will argue that this court should retain the Anders approach simply because it is
constitutional and saves time of everyone concerned. I believe this view overestimates
the savings and underestimates the principle at stake. (footnote omitted). The adversary
system has served the administration of justice long and well. It is the best system we
know for producing results that are reliable, credible, and fair. . . . Anders [appeals], by
contrast, are agonizing for the lawyer, awkward for the judge, and perceived as
collusive by the appellant. The Anders compromise with our traditional adversary
process has failed to justify itself. It permits a lesser standard of performance for
appointed, in contrast with retained, counsel. This court should renounce it.
Gale, 429 A.2d at 183 (Ferren, J. dissenting).
[Headnotes 1, 2]
Attorneys must argue for their clients without conceding an appeal is without merit. An action is not frivolous even though the
lawyer believes that the client's position will ultimately not prevail.
113 Nev. 1081, 1085 (1997) Ramos v. State
the lawyer believes that the client's position will ultimately not prevail. Indeed, appeals are
few which do not have at least one issue that is not wholly frivolous. Such instances are
sparse because counsel can present any good faith argument on the merits, a good faith
challenge to the sufficiency of the evidence, or argue in good faith for an extension,
modification or reversal of existing law. Cigic, 639 A.2d at 253.
[Headnote 3]
As the Cigic court recognized, this procedure may, on rare occasions, force counsel to assert frivolous issues before the court. In those
rare cases, we create an exception to the rules of professional conduct to allow the pursuit of a frivolous appeal. This mirrors the old
Sanchez regime in which we allowed an attorney to present a frivolous appeal without filing a motion to withdraw as counsel. However, the
defense bar is cautioned that it is still obligated to not deceive or mislead the court by, for example, misstating the facts, misapplying the
law to the facts, or deliberately omitting facts or authority that are contrary to counsel's position.
CONCLUSION
Based on the reasoning in this appeal, appellants' fast track statements are stricken. Appellants' counsel shall, within thirty (30) days of
this opinion, file fast track statements that comply with this opinion's dictates.
____________
113 Nev. 1085, 1085 (1997) Nevius v. Warden
THOMAS NEVIUS, Petitioner, v. WARDEN, NEVADA STATE PRISON, E.K.
MCDANIEL; and ATTORNEY GENERAL OF NEVADA, FRANKIE SUE DEL PAPA,
Respondents.
No. 29027
THOMAS NEVIUS, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 29028
August 28, 1997 944 P.2d 858
Motions to disqualify Supreme Court Justice Young.
Motions were filed to disqualify supreme court justice based, inter alia, on comments
made during election campaign. The supreme court held that comments previously made by
judge during election campaign, when he responded to suggestion that he was soft on crime
by stating that he favored the death penalty in appropriate case and pointed out that he had
voted to uphold the death penalty 76 times, did not give judge any extra-judicial interest
in keeping this tally as high as possible, and did not constitute a disqualifying bias or
appearance thereof.
in appropriate case and pointed out that he had voted to uphold the death penalty 76 times,
did not give judge any extra-judicial interest in keeping this tally as high as possible, and did
not constitute a disqualifying bias or appearance thereof.
Motions denied.
Rehearing denied. Nevius v. Warden, 114 Nev. ___, 960 P.2d 805 (1998).
Terri Steik Roeser, Zephyr Cove; Michael Pescetta, Assistant Federal Public Defender,
Las Vegas, for Petitioner and Appellant.
Clark County, for Respondents.
1. Judges.
Comments previously made by judge during election campaign, when he responded to suggestion that he was soft on crime by
stating that he favored the death penalty in appropriate case and pointed out that he had voted to uphold the death penalty 76 times, did
not give judge any extra-judicial interest in keeping this tally as high as possible, and did not constitute a disqualifying bias or
appearance thereof, such as might require judge's disqualification in capital cases.
2. Judges.
Reasonable latitude must be given to judge or justice to permit him or her to run election campaign and respond to criticism.
3. Judges.
General philosophical orientation, or belief in particular controversial legal position, is not normally a ground for disqualifying
judge.
OPINION
Per Curiam:
Petitioner/appellant Thomas Nevius claims that Justice Cliff Young is disqualified in these
cases because: (1) the Attorney General, whose office represents the State, endorsed and
publicly supported Justice Young in his successful 1996 re-election campaign, and (2) Justice
Young stated that he upheld the death penalty seventy-six times while on the Court. The first
ground for disqualification was made and rejected in State, Dep't of Transp. v. Barsy, 113
Nev. 709, 941 P.2d 969 (1997), and that decision is dispositive of this ground for
disqualification.
[Headnote 1]
During the 1996 election, Justice Young's opponent attacked him for dissenting in a death penalty case. In response, Justice Young
stated that he favored the death penalty in the appropriate case and pointed out that he had voted to uphold the death
penalty seventy-six times.
case and pointed out that he had voted to uphold the death penalty seventy-six times. Nevius
contends that Justice Young has an extra-judicial interest in keeping this tally as high as
possible. We disagree.
[Headnotes 2, 3]
Justice Young was simply responding to an assertion, based on one case, that he was soft on the death penalty and demonstrating to the
electorate that the allegation against him was distorted. We have previously stated that reasonable latitude must be given a judge or justice
to permit him or her to run an election campaign and respond to criticism. See Las Vegas Downtown Redev. Agency v. Hecht, 113 Nev.
644, 940 P.2d 134 (1997). Nevius concedes that a general philosophical orientation, or a belief in a particular controversial legal position,
is not normally a ground for disqualification. See, e.g., Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820-21 (1986); U.S. v. Cooley, 1 F.3d
985 (l0th Cir. 1993). Citing Justice Young's record in upholding the death penalty was nothing more than showing that he will enforce
Nevada law in an area very important to Nevada voters, and this does not constitute a disqualifying bias or the appearance thereof.
Accordingly, the motion to disqualify Justice Young is denied.
1
Rose and Maupin, JJ., concur.
Nevius seeks rehearing principally because of evidence that a prosecutor made the following out-of-court comment to one of Nevius'
attorneys: You don't think I wanted all of those niggers on my jury do you?
In my opinion rehearing should be granted. The judgment of conviction should be reversed, or, at the very least, the matter should be
remanded so that the statement attributed to the prosecutor in this case can be carefully examined by the trial court.
Nevius contends that Justice Young cannot sit fairly in this matter because during the time that Nevius' death-sentence was under
review by this court Justice Young formed a highly-visible political alliance with the State's attorney general, who in numerous campaign
advertisements publicly urged all Nevadans to vote for Justice Young. Nevius claims that in addition to forming a close alliance with the
State's chief prosecutor, Justice Young has publicly taken such a pro-prosecution, anti-accused stance as to make it
impossible for Justice Young to sit in impartial judgment of his case.
__________

1
The Honorable Miriam Shearing, Chief Justice, voluntarily recused herself from participation in the decision of this appeal.
The Honorable Cliff Young, Justice, did not participate in the decision of this matter.
Justice Young has publicly taken such a pro-prosecution, anti-accused stance as to make it
impossible for Justice Young to sit in impartial judgment of his case. For example, not only
did Justice Young describe himself in campaign advertisements as a judge who was tough
on crime
1
he presented himself as being a judge who had a record of fighting crime and
supported his judicial crime-fighting record by claiming that he had [voted] to uphold [the
death penalty] 76 times.
Tough on crime claims made by judges in election campaigns are so common in Nevada
as to go almost unnoticed. Our judicial discipline authorities customarily ignore this kind of
judicial misconduct once the judge becomes elected or re-elected. It goes beyond tough on
crime for a judge to claim that he is a crime fighter, especially when, on top of this, the
judge identifies his principal election supporter as being the State's attorney general. Judges
are supposed to be judging crime not fighting it.
With regard to his alliance with the attorney general, Justice Young, during the pendency
of this case, repeatedly published his appreciation for the attorney general's support and how
much he welcomed her support in his election campaign because of the attorney general's
role as the State's top law enforcement officer. It is understandable that Nevius would feel
aggrieved when he read that one of the judges who was going to decide if he were to live or
die was being this strongly supported by the State's top law enforcement officer. When a
convict who is condemned to death sees that the State's chief law enforcement officer is
publicly presented as the chief ally of one of the judges who is going to decide whether he
will live or die, then, certainly the convict has a legitimate reason for seeking removal of such
a judge from his case.
Candidates for judicial office are, of course, forbidden by Canon 7B to "make pledges or
promises of conduct in office other than faithful and impartial performance of the duties
of the office."
__________

1
Tough on crime claims might be overlooked as being generalized statements; but claiming to be a judicial
crime-fighter is, arguably, in a different category. The problem with tough on crime statements and boasting of
a record of fighting crime is that such statements carry the implication that the judge would act in a biased
manner (that is, in favor of the state) in criminal cases. In Washington, a judge was censured for campaign
statements that he was tough on drunk driving. In re Kaiser, 759 P. 2d 392, 394-96 (1988).
For a general discussion of the failure of our judicial discipline machinery to deal with campaign misconduct
and other serious judicial misconduct see Whitehead v. Comm'n on Jud. Discipline, Table of Disciplinary
Oversights, Concurring Addendum to Order Granting Petition (No. 24598, October 28, 1994). Getting elected to
judicial office seems to create an immunity against discipline proceedings relating to a judge's unethical
campaign practices; but this does not mean that convicts condemned to death cannot raise issues relating to a
judge's pro-prosecution campaign boasts.
Canon 7B to make pledges or promises of conduct in office other than faithful and impartial
performance of the duties of the office. Justice Young's saying that he has a judicial record
of fighting crime and putting forth his 76-death-case record may not be the same as making a
pledge that he will continue to fight crime on the bench or that he will uphold death
penalty judgments in all future cases; nevertheless, if Justice Young enhances his
crime-fighting record by raising his seventy-six death judgments to seventy-seven in this case,
it seems to me that Nevius may have the right to complain that Justice Young should not have
been sitting on his case.
If the public praise and endorsement of Justice Young by the attorney general were not
enough in itself, Justice Young's putting forth his record of fighting crime rather than
judging crime adds up, in my opinion, to an unacceptable appearance of bias in this case. I do
not here contend that Justice Young ought to be disqualified in every case in which his
political ally in law enforcement is counsel of record; however, given the fact that the
Young-Top Law Enforcement Officer alliance was a matter of such widespread public
attention during the pendency of this case and, given Justice Young's public flaunting of his
record of fighting crime during the time that Nevius was watching and waiting the outcome
of his death sentence appeal, I think that Justice Young should be disqualified from making
any further decisions in this death case.
____________
113 Nev. 1089, 1089 (1997) Clark v. Lubritz
ROBERT CLARK, M.D., ALAN FELD, M.D., JACK HIRSH, M.D., and ARMAND
SCULLY, M.D., Appellants, v. JOEL LUBRITZ, M.D., Respondent.
No. 27528
September 5, 1997 944 P.2d 861
Appeal from an amended final judgment in a civil action, entered pursuant to a jury
verdict. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
Physician who had received smaller year-end payments than other physicians in business
they operated in corporate form brought suit alleging breach of contract and fiduciary duty.
The district court awarded compensatory and punitive damages, and attorney fees, and
defendants appealed. The supreme court held that: (1) parties intended oral agreement to
control manner in which physicians were paid by their corporation; (2) defendants breached
their fiduciary duty to plaintiff; {3) breach of fiduciary duty arising from partnership
agreement was separate tort upon which punitive damages could be based; {4) there was
clear and convincing evidence of malice supporting punitive damages award; and {5)
plaintiff was properly awarded attorney fees.
breached their fiduciary duty to plaintiff; (3) breach of fiduciary duty arising from partnership
agreement was separate tort upon which punitive damages could be based; (4) there was clear
and convincing evidence of malice supporting punitive damages award; and (5) plaintiff was
properly awarded attorney fees.
Affirmed.
Morton R. Galane, Las Vegas, for Appellants.
Donald J. Campbell & Associates and J. Colby Williams, Las Vegas, for Respondent.
1. Statutes.
There is general presumption in favor of prospective application of statutes.
2. Corporations.
Statute requiring agreement between stockholders to be in writing did not apply retroactively to stockholders who had no notice of
such requirement when they formed corporation. NRS 78A.080.
3. Corporations.
There was ample evidence to support finding that physicians who formed corporation intended that their earlier oral agreement to
divide year-end profits and losses equally would control manner in which they were paid by the corporation.
4. Partnership.
Partner's motives or intent do not determine whether his actions violate his fiduciary duty.
5. Partnership.
Physicians who used corporate form in their business but regarded each other as partners owed fiduciary duty to one another of full
disclosure of material facts relating to partnership affairs.
6. Partnership.
Physicians who used corporate form for their business but regarded each other as partners breached their duty of full disclosure to
partner by not disclosing that he received smaller share of yearly earnings.
7. Partnership.
Although jury found defendants liable for breach of contract and awarded compensatory damages, breach of fiduciary duty arising
from partnership agreement was separate tort upon which punitive damages could be based. NRS 42.005.
8. Damages.
Under punitive damages statutes, express malice is conduct which is intended to injure a person, and implied malice is
despicable conduct which is engaged in with conscious disregard of rights of others. NRS 42.001(3).
9. Partnership.
There was clear and convincing evidence of express malice, supporting award of punitive damages for partners' breach of their
fiduciary duty in reducing plaintiff's share of earnings and not telling him about the reduction; there was also clear and convincing
evidence of implied malice in form of despicable conduct accompanied by conscious disregard of plaintiff's
rights.
malice in form of despicable conduct accompanied by conscious disregard of plaintiff's rights. NRS 42.001(3).
10. Costs.
Although judgment obtained for years pleaded at time of offers of judgment did not exceed sum of offers served, prevailing
plaintiff was properly awarded attorney fees based on total damage award which exceeded offer and included damages which had
not yet accrued at time of the offers. NRCP 68.
OPINION
Per Curiam:
This is an appeal from a judgment pursuant to a jury verdict for plaintiff-respondent in the
amount of $470,942.17 for breach of contract and breach of fiduciary duty.
Defendants-appellants assign several of the district court rulings as error. We affirm the
district court's judgment.
FACTS
Robert Clark, M.D., Alan Feld, M.D., Joel Lubritz, M.D., Jack Hirsh, M.D., and Armand
Scully, M.D. specialized in different areas of medicine. In 1983, they formed a preferred
provider organization called Nevada Preferred Professionals (NPP).
They agreed orally that they would each initially invest $15,000 in NPP. Lubritz testified
that they agreed to share any profits or losses equally and that if necessary, each would be
liable for another $10,000.
1
Soon after making their initial agreement, the five doctors opted to incorporate NPP. On
June 30, 1983, Lubritz signed the sixty-day list of NPP's officers, directors and agent. He
listed himself as president and each founder as a director. He also represented that NPP's
stockholders owned $2,500 of NPP common stock, but testified at trial that he did not think
stock was ever actually issued to anyone.
The corporation's articles of incorporation were filed and the five doctors adopted bylaws.
2
However, Lubritz testified on direct examination that incorporating did not alter their original
agreement to share profits and losses equally even though NPP actually started business
after the corporation was formed."
__________

1
Although Clark denied entering into any oral agreement, all other appellants admit that the initial agreement
was oral. Furthermore, they seem to agree with Lubritz's testimony regarding the agreement.

2
The bylaws in evidence are a draft copy. However, when asked in his deposition whether that draft appeared
to be the adopted bylaws, Lubritz answered, I would say, yes.
ally started business after the corporation was formed. He claims that NPP was incorporated
for tax and legal reasons only. He also claims that all of the doctors continued to refer to each
other as partners. In fact, at trial, both Scully and Dr. Elias Ghanem testified that after NPP
was incorporated, the five physicians asked Ghanem to be a partner and share equally.
Although Ghanem originally accepted the offer, he left NPP when he was told that he could
not be on the board, but could still receive an equal share because he put in an equal share.
John Busse became NPP's first executive director in June of 1983. Busse testified that he
learned that the physicians are all equal partners, put the same amount in, and were going to
be paid or receive the same benefits. He also testified that Dr. Clark introduced Dr. Scully to
him as one of our partners. Finally, each of the five physicians received an equal year-end
distribution characterized as a consultation fee during NPP's first six years of operation.
Lubritz testified that he, Feld and Clark initially took special interest in the day-to-day
running of the business. In fact, Scully testified that Lubritz worked like a dog, clearly
harder than anyone else in the early years.
3
However, testimony indicated that running the
business was a team effort because Hirsh and Scully contributed highly respected reputations.
In 1986, the doctors began to develop serious differences of opinion regarding the way
NPP's benefit plan should be sold. On August 25, 1986, Lubritz tendered his resignation from
the board in an effort to impress upon the others the gravity of his feelings. Specifically, he
resigned from the board of directors and as president, and anticipated just being a
stockholder. Lubritz claims, and the other doctors agree, that he continued to perform
limited services for NPP after his resignation from the board.
In 1986, 1987, 1988, and 1989, Scully, Feld, Hirsh and Clark (hereinafter referred to as
the appellants) continued to equally divide the year-end proceeds with Lubritz. However, in
1990, the appellants fixed a higher payment for each of themselves and a lower payment for
Lubritz. The appellants, after consulting the bylaws, opted not to inform Lubritz that his share
was significantly less than theirs.
4
Likewise, in 1991 and 1992 the four appellants received
higher year-end payments than did Lubritz.
__________

3
Lubritz testified that in 1985, Feld raised the issue of unequal distribution of profits because Lubritz, Clark
and Feld were doing more work than Hirsh and Scully. However, Lubritz opposed the idea because it violated
the parties' agreement to share any profits or losses equally. Feld and Clark agreed and the topic was set aside.

4
Feld claims that under the bylaws, they had no duty to report a reduction in director compensation. In 1990,
Lubritz received $25,000 while each of the other four doctors received $58,000.
In early 1993, Lubritz learned that his payments were smaller and on March 4, 1993, he
filed a complaint against Scully, Hirsh, Clark, and Feld for one-fifth of the total payments less
the amount he had already received. With the lawsuit pending, the board again distributed the
1993 earnings unequally. This payment was accompanied by a letter which informed Lubritz
that this payment will be the last based on the contributions in terms of time and energy in
the formative years. The appellants claim that the equal distributions were compensation for
Lubritz's extreme contributions in the early years, while the lesser payments reflected
Lubritz's lesser contributions in the latter years.
Lubritz claims that the appellants ignored several sections of their bylaws. Stocks were not
issued, annual shareholders meetings were not held, and officers and directors were not
elected. Lubritz testified that to form the corporation, Clark went to the attorney's office and
simply filled in officers' names. Further, he testified that the parties did not use the bylaws in
operating NPP. Feld testified that although they were not lawyers, they tried to do things as
much as possible within the confines of the bylaws.
On February 1, 1991, the Secretary of State of Nevada revoked NPP's corporate charter for
failure to file its annual list of officers and directors pursuant to NRS 78.175. Apparently, Dr.
Clark, as resident agent, failed to file the list. On September 2, 1993, the charter was
reinstated.
The jury returned a verdict in favor of Lubritz. They awarded a single sum, $195,942.17,
in compensatory damages for both breach of contract and breach of fiduciary duty, $200,000
in punitive damages, and $75,000 in attorney's fees. The appellants unsuccessfully moved for
judgment notwithstanding the verdict, and this appeal ensued.
DISCUSSION
Breach of Contract
The appellants argue that the district court judge erroneously allowed the jury to find a
breach of the oral agreement because it is legally impermissible for a business to be
conducted as a corporation and a partnership at the same time. They claim that the
incorporation of NPP necessarily precludes Lubritz from recovering for breach of contract.
5
We disagree.
This court determines questions of law de novo. City of Reno v. Van Ermen, 79 Nev. 369,
381, 385 P.2d 345, 351 (1963).
__________

5
The essence of appellants' argument is that NRS 78.115 allows a corporate board to set director
compensation. Therefore, Clark, Feld, Hirsh and Scully acted within their authority as directors in reducing
Lubritz's compensation when his contributions to NPP declined.
Although this court has not yet addressed this issue, courts in other states are of the opinion
that when joint adventurers use the corporate form for convenience in carrying out their
project, their mutual rights and liabilities will be determined in furtherance and in harmony
with their joint purpose rather than with the form of their operation, and the corporate entity
will be recognized or ignored accordingly. Shafer v. Eighty-One Hundred Jefferson Avenue
E Corporation, 255 N.W. 324, 327 (Mich. 1934); accord Wabash Ry. Co. v. American
Refrigerator Transit Co., 7 F.2d 335, 343-44 (8th Cir. 1925) (courts will ignore form to
discern the real intent of individuals forming the organization, and, if no third parties are
involved, will give effect to the real purpose of the organization in order to promote square
dealing and effectuate justice); Denny v. Guyton, 40 S.W.2d 562, 570 (Mo. 1931) (joint
venture agreement providing for division among partners of those profits realized from the
operation of their corporation did not unlawfully encroach on corporation's power); Seaboard
Airline Company v. Atlantic Coastline Co., 82 S.E.2d 771, 782-83 (N.C. 1954) (settlement of
disputes among shareholders of joint venture company is to be decided against the
background of their agreement as joint venturers and not necessarily by reference to ordinary
corporate practices).
Additionally, although not in effect when the parties entered the oral agreement, Chapter
78A of the Nevada Revised Statutes is consistent with Nevada law at that time.
NRS 78A.070 states:
1. All shareholders of a close corporation who are entitled to vote may agree in
writing to regulate the exercise of the corporate powers and the management of the
business and affairs of the corporation or the relationship among the shareholders of the
corporation.
2. An agreement authorized by this section is effective even if the agreement:
. . . .
(c) Treats the corporation as a partnership.
In addition, NRS 78A.080 provides:
A written agreement among stockholders of a close corporation . . . that relates to any
phase of the affairs of the corporation . . . is not invalid on the ground that it is an
attempt by the parties to the agreement . . . to treat the corporation as if it were a
partnership or to arrange relations among the stockholders or between the stockholders
and the corporation in a manner that would be appropriate only among partners.
[Headnotes 1, 2]
While NRS 78A.080 requires that the agreement be in writing, [t]here is a general presumption in favor of prospective application of
statutes. McKellar v. McKellar, 110 Nev. 200, 203, 871 P.2d 296, 298 (1994). Therefore, the parties in this case are not subject to the
writing requirement of NRS 78A.080 because in 1983 they had no notice of such a requirement. Based on the foregoing, we hold that the
oral agreement was not invalid per se when the parties formed the corporation. Thus, the district court properly allowed the jury to
determine whether the parties breached the oral agreement.
[Headnote 3]
This court will not disturb a jury's verdict if it is supported by substantial evidence. Steen v. Gass, 85 Nev. 249, 253, 454 P.2d 94, 97
(1969). Lubritz testified that all five physicians expressly agreed to divide the year-end profits or losses equally. Further, Ghanem testified
that the five physicians asked him to join NPP and share the year-end profits equally even after NPP was incorporated. In addition, there
was testimony that the parties continued to refer to their relationship as that of partners after NPP was incorporated. During the first six
years of operation, the parties distributed the profits equally in accordance with the oral agreement. Lastly, there was testimony that the
bylaws were not used in the operation of NPP. Therefore, because there is ample evidence in the record to support a finding that the parties
intended the oral agreement to control the manner in which the five physicians were paid by the corporation, this court will not disturb the
jury's finding that the appellants breached that agreement when they reduced Lubritz's payments to less than one-fifth.
Breach of Fiduciary Duty
The appellants also argue that there was no evidence that they breached a fiduciary duty in not disclosing the unequal distributions to
Lubritz.
[Headnotes 4, 5]
The fiduciary duty that partners owe one another has been described as follows:
The fiduciary duty among partners is generally one of full and frank disclosure of all relevant information for just, equitable and
open dealings at full value and consideration. Each partner has a right to know all that the others know, and each is required to
make full disclosure of all material facts within his knowledge in anything relating to the partnership affairs. The requirement of
full disclosure among partners in partnership business cannot be escaped. . . .
partners in partnership business cannot be escaped. . . . Each partner must . . . not
deceive another partner by concealment of material facts.
59(A) Am. Jur. 2d Partnership 425 (1987). In addition, a partner's motives or intent do not
determine whether his actions violate his fiduciary duty. Id. at 423. Therefore, the
appellants owed Lubritz a fiduciary duty of full disclosure of material facts relating to the
partnership affairs.
[Headnote 6]
In this case, there was sufficient evidence to show that the appellants breached that duty. The evidence clearly indicated that the
appellants did not disclose the unequal distribution. Moreover, as discussed more fully above, there is sufficient evidence upon which a jury
could determine that the appellants desired to conceal the unequal distribution from Lubritz. Therefore, this court will not disturb the jury's
award for breach of fiduciary duty.
Punitive Damages
Under NRS 42.005, punitive damages may be awarded in an action not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied.
Appellants argue that even if they breached their fiduciary duty, any injury claimed to have arisen out of tort arose solely out of a
contractual relationship and, therefore, cannot be the predicate for a punitive damage award.
In Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1530 (5th Cir. 1984), a federal diversity case governed by California law,
the Fifth Circuit reversed a punitive damages award based on fraud in the performance of a contract, stating:
One may not recover punitives for misrepresentation made in the performance of a contract. . . . The plaintiff must prove that his
injuries actually resulted from the fraud and not from the breach of the . . . contract. The injuries must be entirely separate from
those suffered because of breach. Otherwise, there is too great a danger that [plaintiff] is using injuries resulting from the breach
[of contract] as a basis for tacking on punitive damages.
Id. at 1550 (citing Crogan v. Metz, 303 P.2d 1029, 1033 (Cal. 1956); Cal. Civ. Code 3294 (California Punitive Damages Statute))
(emphasis added).
6
__________

6
Nevada's statute on punitive damages is a verbatim copy of the California punitive damages statute . . . . [W]e have adhered to the
rule of statutory
The appellants claim that the tort injuries were not entirely separate from the contract
injuries because
the jury verdicts awarded identical amounts of compensatory damages for alleged
breach of contract and alleged breach of fiduciary duty . . . . There was no evidence of
any distinct tort injury, and the identical amounts awarded by the jury are exactly what
plaintiff requested in his summation. . . . Therefore, punitive damages are precluded.
In this case, the jury was instructed that if it found plaintiff has met his burden of proof
on more than one theory of recovery, plaintiff would still only be entitled to a single sum of
damages. Plaintiff would not be entitled to double or triple recovery or any other form of
compound damages. The jury was also instructed that if it found there was a breach of
fiduciary duty and awarded compensatory damages in some amount against the appellants,
then it was to determine whether there should also be an award for punitive damages.
[Headnote 7]
The jury found that the appellants were liable for breach of contract and awarded compensatory damages in the amount of
$195,942.17. The jury also found that the appellants breached their fiduciary duty to Lubritz, and again awarded compensatory damages in
the amount of $195,942.17. The jury awarded Lubritz $200,000 in punitive damages.
In Amoroso Constr. v. Lazovich and Lazovich, 107 Nev. 294, 810 P.2d 775 (1991), Lazovich sued Amoroso for breach of contract and
for fraud. The jury awarded punitive damages, compensatory damages for breach of contract, and nothing for fraud. The jury found that the
plaintiff was adequately compensated for fraud in the award for breach of contract. Id. at 296, 810 P.2d at 777.
On appeal, this court stated the following:
This jury found fraud which resulted in damages to L&L. However, the verdict contained no fraud damages because the jury
determined that the breach of contract damages adequately compensated for the fraud. Under these circumstances, punitive
damages are statutorily permissible.
Id. at 298, 810 P.2d at 777-78.
As in Amoroso, the jury here awarded a single sum to compensate Lubritz for both breach of contract and breach of fiduciary duty,
apparently because the jury was instructed that Lubritz may not recover more than he actually lost under the
agreement.
__________
interpretation that when a statute is derived from a sister state, it is presumably adopted with the construction given it by the highest court
of the sister state. Craigo v. Circus-Circus Enterprises, 106 Nev. 1, 3, 786 P.2d 22, 23 (1990).
duty, apparently because the jury was instructed that Lubritz may not recover more than he
actually lost under the agreement.
The appellants argue that Amoroso is not controlling because this court did not expressly
decide the entirely separate injury issue raised in Nissho-Iwai. They claim that where a
fiduciary duty arises out of a contract, the injuries must necessarily be intertwined and
punitive damages are inappropriate.
Although not discussed in Amoroso, this court has made such a determination in Topaz
Mutual Co. v. Marsh, 108 Nev. 845, 839 P.2d 606 (1992). There, we stated:
A plaintiff may assert several claims for relief and be awarded damages on different
theories. It is not uncommon to see a plaintiff assert a contractual claim and also a
cause of action asserting fraud based on the facts surrounding the contract's execution
and performance. . . . The measure of damages on claims of fraud and contract are often
the same.
Id. at 851-52, 839 P.2d at 610. We went on to say that the plaintiff is not permitted to
recover more than her total loss plus any punitive damages assessed. Id. Our position in
Topaz is exactly contrary to the one expressed in Nissho-Iwai, where the court explicitly held
that punitive damages for fraud in the performance of a contract are not recoverable.
More on point and in accord with Topaz, is Washington Medical Center v. Holle, 573
A.2d 1269 (D.C. Ct. App. 1990). In an action between members of a partnership, that court
stated:
Despite the contractual source of partners' duties inter se, . . . it is well established that
when a fiduciary duty exists between the parties, and the conduct complained of
constitutes a breach of that duty, the claim sounds in tort regardless of the contractual
underpinnings.
Id. at 1284 n.24 (quoting Wagman v. Lee, 457 A.2d 401, 404 (D.C. 1983)).
7
Therefore, we
conclude that the breach of fiduciary duty arising from the partnership agreement is a separate
tort upon which punitive damages may be based.
Malice
Appellants argue that, as required by NRS 42.005, there is no clear and convincing
evidence of oppression, fraud or malice and that, therefore, the punitive damages award
must be set aside.
__________

7
Accord Froemming v. Gate City Federal Sav. and Loan Ass'n, 822 F.2d 723 (8th Cir. 1987) (affirming
punitive damage award for breach of fiduciary duty arising out of parties' contractual relationship as partners);
PSG Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 417 F.2d 659 (9th Cir. 1969) (under Oregon law
punitive damages may be allowed when a breach of contract merges with a breach of fiduciary duty); Brown v.
Coates, 253 F.2d 36 (D.C. Cir. 1958) (punitive damages may be allowed for breach of agent's fiduciary duty
under contract).
clear and convincing evidence of oppression, fraud or malice and that, therefore, the punitive
damages award must be set aside.
[Headnotes 8, 9]
Under NRS 42.001(3), express malice is conduct which is intended to injure a person; implied malice is despicable conduct
which is engaged in with a conscious disregard of the rights . . . of others. Lubritz did present clear and convincing evidence of express
malice at trial. In this case, there is strong evidence that a conscious decision was made not to inform Lubritz about the decision to reduce
Lubritz's share. For many years appellants pocketed as profit, a disproportionate distribution, by reducing Lubritz's share and not telling
him about the reduction. In addition, appellants concede that the decision not to inform Lubritz of the unequal year-end distribution was
not unconscious or accidental.
Further evidence of intent to injure Lubritz is found in the appellants' testimony. Scully testified:
Dr. Hirsh asked me my opinion, and my opinion was that Dr. Lubritz should be called in and told what was going on, and that
might stimulate him to come back on the board or something of that nature. . . . [Dr. Hirsh] thought maybe that might be a good
idea. . . . Dr. Feld and Dr. Clark didn't feel like there was any responsibility to do that.
Clark also testified that Scully was concerned that nondisclosure would cause a problem. Clark claims that their conversation proceeded as
follows:
I saidand we better tell him. And I said: Are you going to tell him? And [Scully] said: Not me. And I said: Do you want me to
tell him? And the answer to that was: You can if you want.
We conclude that the foregoing is sufficient evidence upon which to base a finding of express malicethat the appellants acted with
the intent to injure Lubritz.
Even if there were not clear and convincing evidence of intent to injure, there is certainly clear and convincing evidence here of
implied malice in the form of despicable conduct accompanied by a conscious disregard of the rights of Lubritz.
Because there is ample evidence to support a punitive damage judgment based on malice, we do not consider it necessary to discuss
fraud or oppression. We therefore affirm the punitive damage award.
Attorney's Fees
[A]ny party may serve upon the adverse party an offer to allow judgment . . . for . . . the offer . . . .
allow judgment . . . for . . . the offer . . . . If the judgment finally obtained by the offeree is not
more favorable than the offer, the offeree shall not recover . . . attorneys' fees, but shall pay
the costs and attorneys' fees . . . of the party making the offer from the time of the offer.
NRCP 68.
In November 1993, Lubritz served each defendant with an offer of judgment for $25,200
(totalling $100,800). Because Lubritz's damages for 1993 and 1994 had not accrued at the
time of the offers, his complaint did not yet ask for those damages.
The jury subsequently determined that Lubritz was entitled to $26,400 in damages for
1990, $36,000 for 1991, $34,400 for 1992, $34,400 for 1993, and $64,742.17 for 1994
(totalling $195,942.17). The district court then granted Lubritz's motion for attorney's fees
because the final judgment obtained by the plaintiff exceeded the offers served.
[Headnote 10]
The appellants argue that the judgment obtained for 1990, 1991 and 1992 (the only years pleaded at the time of the offers) totalled
$96,800 and did not exceed the sum of the four offers served, or $100,800. Accordingly, they argue that under NRCP 68, Lubritz shall not
recover . . . attorney's fees.
In Lutynski v. B.B. & J. Trucking, Inc., 628 A.2d 1 (Conn. Ct. App. 1993), the plaintiff gave the defendant an offer of judgment for
$95,000, which was not accepted. Thereafter, plaintiff amended his complaint and alleged additional damages. The jury awarded plaintiff
$150,000. When the plaintiff moved for attorney's fees and costs, the defendant argued that the amount of judgment obtained was
attributable to facts and increased damages alleged after the initial offer of judgment had expired. In rejecting this argument, the court
stated:
An offer of judgment is an offer to settle the entire case, including claims both known and unknown and both certain and
uncertain. Obviously, if injuries worsen as time passes, damages will increase, and if injuries mend, the damages will decrease.
These are the vagaries of offers of settlement.
Id. at 5.
Lubritz's four offers were offers to settle the entire case, including uncertain future claims. Certainly, a settlement resulting from an
early offer of judgment would have released all liability in the case. NRCP 68 also requires such a result where it calls for the judge to
consider the judgment finally obtained in determining whether attorney's fees are appropriate. Therefore, the district court judge did not
err in awarding attorney's fees to Lubritz.
The district court's judgment in favor of Lubritz is hereby affirmed.
Springer, Rose, and Young, JJ., and Gamble, D. J., concur.
8
____________
113 Nev. 1101, 1101 (1997) Whitacre Inv. Co. v. State, Dep't Transp.
WHITACRE INVESTMENT COMPANY, A GENERAL PARTNERSHIP, Appellant, v.
THE STATE OF NEVADA, on Relation of its Department of Transportation, Respondent.
No. 29401
COUNTY OF CLARK, a Political Subdivision of The STATE OF NEVADA, on Relation of
Las Vegas Convention and Visitors Authority, Appellant, v. BRIANT
BUCKWALTER; JOHN R. REESE; CALIFORNIA FEDERAL SAVINGS AND
LOAN ASSOCIATION, a California Corporation; TOWER ENTERPRISES, a
Partnership; Profit Sharing Plan of ROY R. VALENTINE, D.D.S., a Professional
Corporation; K.W. HOUNSELL; K.W. HOUNSELL, INC., a Profit Sharing Trust;
Profit Sharing Plan of EDGAR F. MUNCSH, D.D.S., a Professional Corporation;
RALPH W. ENGH and CHRISTINE J. ENGH, Husband and Wife, Respondents.
No. 29477
C.B.M., LTD., a Nevada Limited Partnership, Appellant, v. THE STATE OF NEVADA, on
Relation of its Department of Transportation, Respondent.
No. 29549
October 1, 1997 946 P.2d 191
Motions to disqualify Supreme Court Justice Robert Rose.
In appeals of condemnation cases, party filed motions to disqualify supreme court justice.
The supreme court, Young, J., held that: (1) arguments and charges in serial documents
expanding on claim that justice should be disqualified because of alleged animus toward
movants' attorney were procedurally improper and would not be entertained, and (2) justice's
conversations with state legislators concerning statutory definition of term value to be used
in condemnation cases did not constitute advisory opinion or prejudgment of any issue so
as to require his disqualification.
__________

8
The Governor designated the Honorable David R. Gamble, Judge of the Ninth Judicial District Court, to sit
in the place of The Honorable Miriam Shearing, Chief Justice. Nev. Const. art. 6, 4.
to be used in condemnation cases did not constitute advisory opinion or prejudgment of any
issue so as to require his disqualification.
Motions denied.
Springer and Maupin, JJ., dissented.
Law Offices of Kermitt L. Waters, Las Vegas; Laura Wightman FitzSimmons, Las Vegas,
for Whitacre Investment Company, Buckwalter, Reese, California Federal Savings and Loan
Association, Tower Enterprises, Profit Sharing Plan of Valentine, Hounsell, K.W. Hounsell,
Inc., Profit Sharing Plan of Munsch, Engh, and C.B.M., Ltd.
Frankie Sue Del Papa, Attorney General, and John E. Lambert and Leslie A. Nielsen,
Deputy Attorneys General, Carson City, for State of Nevada, Department of Transportation.
Stewart L. Bell, District Attorney, and Dale E. Haley, Deputy District Attorney, Clark
County; Dickerson, Dickerson, Consul & Pocker and Luke Puschnig, Las Vegas, for County
of Clark, Las Vegas Convention and Visitors Authority.
1. Judges.
Arguments and charges in serial documents expanding on claim that supreme court justice should be disqualified because of
alleged animus toward movants' attorney were procedurally improper and would not be entertained by supreme court. Documents
constituted belated and procedurally improper attempts to challenge supreme court's attempts to challenge supreme court's decision in
another case on same issue, to assert arguments that movants previously failed to raise, to abuse appellate processes, to obfuscate
issues, and to delay final resolution of matters. NRAP 35(d).
2. Judges.
Supreme court justice's prior conversations with state legislators concerning statutory definition of term value to be used in
condemnation cases did not constitute advisory opinion or prejudgment of any issue so as to require his disqualification from appeals
in condemnation cases. Justice merely acknowledged in conversations that legislature had power to redefine term and stated that he did
not think court would be offended if legislature did so, but he gave no indication about what he thought definition should be and also
stated that court could be called upon to review legal sufficiency of any new definition. NRS 37.009.
OPINION
The issue of whether Justice Robert Rose is disqualified because of animus toward Laura
FitzSimmons, a party's attorney, was presented and decided in the recent case of Las Vegas
Downtown Redev. Agency v.
was presented and decided in the recent case of Las Vegas Downtown Redev. Agency v.
Hecht, 113 Nev. 644, 940 P.2d 134 (1997). Laura FitzSimmons is one of the attorneys for
appellant Whitacre Investment Company, respondents Buckwalter, et al., and appellant
C.B.M., Ltd. (collectively movants), and they again assert that Justice Rose is disqualified
because of animus toward their attorney. We elect to follow our holding in Hecht, and reject
the motion to disqualify based on animus toward movants' attorney.
On July 17, 1997, movants filed identical motions in each of these appeals seeking leave
to file supplements in support of their motions to disqualify Justice Rose. On August 22,
1997, the clerk of this court received, but did not file, identical supplementary documents
entitled: Real Party Laura FitzSimmons' Reply to Justice Rose's Supplemental Response to
the Motion to Disqualify Him. The additional arguments and charges presented in these
documents expand upon the claim that Justice Rose is disqualified because of animus toward
movants' attorney.
NRAP 35(d) provides that a challenged justice may tender a response in writing to a
motion for disqualification. The rule, however, does not permit the filing of a reply to the
response tendered by a challenged justice. To the contrary, NRAP 35(d) specifically directs
that [s]erial motions or charges, whether entitled as separate challenges, or as supplements,
or entitled in any other way, must not be filed, and will not be entertained. (Emphasis
added.) The rationale behind NRAP 35(d) was stated in Ainsworth v. Combined Ins. Co., 105
Nev. 237, 242-43 n.2, 774 P.2d 1003, 1008 n. 2, cert. denied, 493 U.S. 958 (1989), where this
court observed:
[S]ound judicial policy underlies the absence of any provisions in our rules permitting
the filing of replies to oppositions to motions and petitions without express leave of the
court. See NRAP 27; NRAP 40. No litigant has an unqualified right to inundate a court
with motions, supplements, errata, responses, exhibits and replies belatedly asserting
arguments that it previously failed to raise. Nor do litigants have unfettered license to
utilize such methods to manipulate judicial proceedings and unreasonably delay a final
resolution of litigation.
[Headnote 1]
We hold that the arguments and charges in the serial documents of July 17, 1997, and August 22, 1997, are procedurally improper and
will not be entertained. NRAP 35(d). Moreover, we conclude that these documents constitute belated and procedurally improper
attempts: (1) to challenge this court's decision in Las Vegas Downtown Redev. Agency v.
in Las Vegas Downtown Redev. Agency v. Hecht, 113 Nev. 644, 940 P.2d 134 (1997); (2) to
assert arguments that movants previously failed to raise; (3) to abuse the appellate processes
of this court; (4) to obfuscate the issues; and (5) to delay the final resolution of these matters.
This court simply cannot afford to further dissipate its limited resources on these
disqualification matters. Accordingly, we deny the motions of July 17, 1997, and we decline
to entertain the arguments in that document and the document received by the clerk of this
court on August 22, 1997. The clerk of this court shall return the documents unfiled.
The second ground cited by the movants is that Justice Rose should be disqualified
because in 1993 he allegedly gave an advisory opinion to legislators when they were
considering an amendment to NRS 37.009, the section that defines the term value to be
used in eminent domain cases. We consider that issue in this opinion.
FACTS
Movants assert that Justice Rose is disqualified from participating in these condemnation
cases because of conversations he had with two legislators during the 1993 legislative session
concerning the definition of the term value as contained in NRS 37.009. This definition is
used to determine the compensation to be paid to the person or entities whose property is
taken through eminent domain proceedings. One state senator indicated that he had talked to
then Chief Justice Rose about redefining the term fair market value.
Senator Adler stated he had conferred with Chief Justice Rose regarding this question,
and that Justice Rose stated the Supreme Court does not have a problem with adding to
or changing the definition. The court likes to keep their opinions intact, but the justices
stated the legislature should feel free to implement something believed to be better.
Senator Adler further advised the court was not adverse to changing or adding to the
definition of market value, as long as it was a better definition in the opinion of the
legislature. Senator Smith advised that Chief Justice Rose had similarly assured him.
Justice Rose has explained these telephone conversations in his response filed in
opposition to the motions to disqualify him.
In the winter-spring of 1993, several state legislators called to tell me that the
Legislature would be holding hearings to see if a better definition to the term fair
market value could be achieved. They hoped the Court would not be offended since
we had approved the definition in an opinion.
opinion. I told the legislators that they had the power to redefine the term, and I did not
think anyone would be offended. I recall no conversation of what the new definition
would be. I did state that the Court may well be called upon to review the legal
sufficiency of any new definition. It appeared that the lawyer-legislators who called
were merely extending a courtesy to the Court and its then Chief Justice. I gave no
advice to the legislators and did not defer to them, other than to acknowledge that they
had the power to redefine fair market value.
DISCUSSION
[Headnote 2]
Movants allege that Justice Rose prejudged an issue before the court and gave an advisory opinion concerning NRS 37.009, the
definition of the term value to be used in condemnation cases. Even if we assume that NRS 37.009 plays a role in these cases, we find
nothing in the records to support this allegation of disqualification made by movants. Justice Rose simply acknowledged that the legislature
had the power to redefine the definition of value, and he did not think the court would be offended. Justice Rose gave no indication about
what he thought the definition of value should be and also stated that the court may well be called upon to review the legal sufficiency of
any new definition. While advisory opinions by this court are prohibited by the Nevada Constitution, this was neither an advisory opinion
nor the prejudging of any issue in these cases. See Nev. Const. art. 6, 4; City of No. Las Vegas v. Cluff, 85 Nev. 200, 452 P.2d 461
(1969). We see nothing more in these two conversations than what Justice Rose has stated, that the lawyer-legislators were merely
extending a courtesy to the court and its then Chief Justice and that he responded in an appropriate, non-committal manner.
CONCLUSION
The issue of Justice Rose's disqualification because of animus toward attorney Laura FitzSimmons was decided against the movants'
position in our recent Hecht decision, and this prior ruling disposes of the first ground urged for Justice Rose's disqualification in these
cases. We also conclude that Justice Rose did not give an advisory opinion or prejudge an issue in these cases when he discussed the
general subject of redefining the statutory definition of value. Accordingly, the movants' motions to disqualify Justice Rose are denied.
1
Shearing, C. J., and Papez, D. J.,2 concur.
__________

1
In reaching this result, we have not considered the assertion of Justice Rose that Justice Charles Springer should not participate in
deciding this motion to disqualify.
Shearing, C. J., and Papez, D. J.,
2
concur.
Springer, J., dissenting
1
:
Condemnees have presented to the court documents which, if given due credit, would not
under any circumstances allow for Justice Rose's continued participation in deciding these
consolidated cases. Refusing to deal with the merits of the documents themselves, the court
has simply returned the documents unfiled to condemnees' counsel.
There is no valid excuse for the court's actions, but the excuse offered by the court for
returning the documents is that the documents are serial and thus contrary to NRAP 35(d).
Serial simply means appearing in successive parts; so that if the condemnees had offered a
new, successive motion, such a new motion might be described as being serial. This is not
the case however. The documents returned as being serial merely respond to charges that
became a part of these present proceedings by virtue of Justice Rose's actions, namely, Justice
Rose's filing of his Supplemental Response to condemnees' motion to disqualify him.
Condemnees cannot be expected to sit by and let Justice Rose's supplemental response
stand unchallenged. If Justice Rose's supplemental response is not successive or serial, then
certainly condemnees' reply to Justice Rose is not successive or serial. Plainly and simply, it
is not fair for the court to consider Justice Rose's supplemental document and to return the
condemnees' reply to that document to the condemnees, unfiled.
Justice Rose is clearly disqualified to sit in these condemnation actions by reason of his
admitted and openly-expressed bias against Laura FitzSimmons, who is not only one of the
lawyers for the condemnees but is herself a financially interested party.
__________

2
The Honorable Dan L. Papez, Judge of the Seventh Judicial District Court, was designated by the Governor
to sit in place of The Honorable Robert E. Rose, Justice. Nev. Const. art. 6, 4.

1
Movants' counsel claim that this motion has become moot by reason of the Governor's designations of Judge
Dan L. Papez, issued on June 5, 1997. The Governor's designations (on file in all three of the captioned cases)
recite that Justice Robert E. Rose has voluntarily disqualified himself to sit as a Justice of the Supreme Court of
Nevada in these cases and that Judge Papez was designated to sit in Justice Rose's place. On the face of this
document, it would appear that the motion to disqualify is moot; however, given that the court's request to the
Governor was for a designation only to assist the court in deciding the disqualification motions, it is clear that
Justice Rose disqualified himself only from matters relating to the disqualification motions and, notwithstanding
the language in the Governor's designation, has not disqualified himself in these cases.
Justice Rose has filed a Response and a Supplemental Response in which he maintains
that his bias is against Ms. FitzSimmons alone and not against any of the named condemnees.
Ms. FitzSimmons has lodged with the court a Reply to the Rose documents in which she
establishes her position as an interested party in this lawsuit, thus having the right as a party,
to have Justice Rose removed from these cases. Ms. FitzSimmons' position is firmly
documented and supported by authorities; and there is absolutely no question that Ms.
FitzSimmons' financial interest in the outcome of these cases entitles her to have Justice Rose
removed from the cases. The only way in which Chief Justice Shearing, Justice Young and
Judge Papez could possibly rule in favor of Justice Rose under these circumstances would be
for them to accept Justice Rose's opposition documents and at the same time refuse to file
Ms. FitzSimmons' Reply. Incredibly, the three mentioned jurists have done just this and have
taken the position that although Justice Rose has the right to tender a response in writing to
[the] motion for disqualification, they will not permit the filing of a reply to the response
tendered by a challenged justice. In other words, they will listen to what Justice Rose has to
say, but they will not listen to what Ms. FitzSimmons has to say. Even though they realize
that the FitzSimmons document dictates the granting of condemnees' motion to disqualify
Justice Rose, they decline to entertain the arguments in that document.
Chief Justice Shearing, Justice Young and Judge Papez, after carefully considering the
documents presented by Justice Rose, rule that Ms. FitzSimmons' opposing arguments
obfuscate the issues and delay the final resolution of these mattersinsufficient reason, I
think, for refusing to consider materials which they know would require them to grant the
motion to disqualify rather than to deny it. Rather than give formal recognition to facts that
they are already aware of informally, the three jurists of the majority have ordered the clerk to
return the [FitzSimmons'] documents unfiled.
Chief Justice Shearing, Justice Young and Judge Papez are all on notice of the thrust of
Ms. FitzSimmons' position (namely, that she is a party and that the law requires that Justice
Rose be disqualified by reason of his expressed bias against her) and know that if the
documents were not returned unfiled they would be compelled to grant the motions to
disqualify Justice Rose. The only way that these three could avoid the clear necessity for
disqualifying Justice Rose was to do what they did and to return the documents unfiled.
I will argue in this dissent that even though the mentioned majority of the court has
decided not to consider the dispositive arguments offered by Ms.
majority of the court has decided not to consider the dispositive arguments offered by Ms.
FitzSimmons, the moving documents that the court is willing to consider still demand the
disqualification of Justice Rose because Justice Rose's expressed bias toward Ms.
FitzSimmons, as an attorney, is extreme and because Justice Rose has made impermissible
public comments on the fundamental issue that is before the court in these condemnation
proceedings. The arguments which I present in this dissent do not, however, have nearly the
persuasive value as do the lengths to which Justice Young (who himself was subject to
removal proceedings in these cases, only to be ruled qualified by his colleague, Justice Rose)
and Justice Rose have gone to in order to keep Justice Rose in these cases. This speaks for
itself. That the majority justices would go so far as to refuse to consider the condemnees'
absolute refutation of the arguments made by Justice Rose in his Supplemental Response
should convince any reader that there is something amiss in this whole proceeding. The cloud
of Justice Rose's continuing to act as a judge in these cases should not be allowed to
contaminate these cases and to create questions about the integrity of this court.
The majority's excuse for sending the condemnees' papers back to them is that they are
required to do so by NRAP 35(d). This, to my mind, is pretense; but even if their reliance on
NRAP 35(d) could be seen as being supportable, basic fairness would require that the
condemnees in these cases be heard and that the court not rely entirely upon the unanswered
documents of Justice Rose. Issues of fundamental fairness aside, it is clear that NRAP 35(d)
does not justify their actions. As pointed out in the majority opinion, NRAP 35(d) prohibits
the filing of serial motions or charges. Ms. FitzSimmons presents no serial motions or
charges in these cases. All Ms. FitzSimmons was trying to do was to respond to Justice
Rose's arguments. Justice Rose presented to the court two laborious Responses, arguing that
his bias against Ms. FitzSimmons, as an attorney, was not so extreme as to require his
disqualification. The documents now returned to Ms. FitzSimmons merely point out that
Justice Rose's bias does not have to be extreme if in addition to being an attorney she is a
principal and financially interested in the outcome. There is nothing serial about Ms.
FitzSimmons' natural response to Justice Rose's arguments; and I can see no conceivable
reason for the court's present decision to silence Ms. FitzSimmons and to return her papers
unfiled.
Having stated as my primary disagreement with the order denying condemnees' motion to
disqualify Justice Rose the arbitrary decision by Chief Justice Shearing, Justice Young and
Judge Papez to silence the condemnees' attempts to oppose the arguments that Justice Rose
makes on his own behalf, I will proceed now to discuss the issues that were considered by
the majority, namely, the effect of Justice Rose's making public comments on the ultimate
issue to be decided in these cases and Justice Rose's "extreme" bias against Ms.
the arguments that Justice Rose makes on his own behalf, I will proceed now to discuss the
issues that were considered by the majority, namely, the effect of Justice Rose's making
public comments on the ultimate issue to be decided in these cases and Justice Rose's
extreme bias against Ms. FitzSimmons.
JUSTICE ROSE'S PUBLIC COMMENT ON
PENDING CASES
As appears in the majority opinion, Justice Rose discussed the ultimate issue in these
appeals, namely, that of redefining the term fair market value.' He discussed this subject
in some manner with several legislators. The majority tells us of at least two, Senator Adler
and Senator Smith. Canon 3(B)(9) of the Nevada Code of Judicial Conduct prohibits judges
from making public comments on pending or impending proceedings. As stated in the
majority opinion, certain legislators conferred with Chief Justice Rose regarding this
question. I do not believe that such conferences are permitted by Canon 3(B)(9).
There are two versions of Justice Rose's conference with legislators. As appears from the
majority opinion, the condemnees claim that Justice Rose prejudged an issue before the
court and gave an advisory opinion concerning . . . the definition of the term value' to be
used in condemnation cases. Justice Rose, on the other hand, tells us that the mentioned
conference was comprised of a series of telephone calls from various legislators who were
merely extending a courtesy to Justice Rose as chief justice and discussing forthcoming
plans of the legislature to see if a better definition to the term fair market value' could be
achieved. Justice Rose does not recall a specific conversation of what the new definition
would be.
The conflict in positions between the challenged justice and the condemnees is precisely
the type of conflict that Canon 3(B)(9) was designed to prevent. The Canon tells judges not to
make any public comment that might be expected to impair the fairness of the pending
case. (My emphasis.) If Justice Rose had declined to make any comment on matters that he
knew were pending before this court, he would not have faced this controversy. The majority
resolves the controversy simply by accepting the position of their colleague, Justice Rose, and
by rejecting the position of the condemnees. This is not a fair way to treat litigantsdeciding
controversies of this kind in favor of one of their fellow court-members without any further
exploration of the condemnees' position. Further, it does not matter to me whether Justice
Rose's conference with legislators took place in the manner that he describes it or whether it
took the form claimed by the condemneesin either event, Justice Rose is guilty of making
public comments on pending litigation.
making public comments on pending litigation. To my way of thinking, such a conference
impairs the fairness, or at least the appearance of fairness, in these cases. Justice Rose should
disqualify himself. Based on the application of Canon 3B(9), I dissent to the order denying
the motion to disqualify Justice Rose.
JUSTICE ROSE'S BIAS TOWARD ATTORNEY FITZSIMMONS
Condemnees' motion to disqualify Justice Rose is also based on Justice Rose's biased
attitude toward one of their attorneys, Laura FitzSimmons. The majority states that it will
elect to follow our holding in Las Vegas Downtown Redev. Agency v. Hecht, 113 Nev. 632,
940 P.2d 127 (1997). In Hecht, a motion similar to the one in these cases was filed, in which
the bias of Justice Rose against attorney FitzSimmons was raised. It is not claimed by the
majority that the Hecht case is res judicata or that the condemnees in these cases, different
parties entirely from those in the Hecht case, are precluded from raising the issue here. It is
my belief that the circumstances surrounding Justice Rose's statements and treatment of Ms.
FitzSimmons undeniably call for Justice Rose's removal from these cases.
My dissent is based in large part upon the documents filed by Justice Rose in Whitacre on
February 4, 1997, and in Buckwalter and C.B.M. on February 7, 1997, entitled Response of
Justice Rose to Motion to Disqualify Him and Request that Justice Springer Not Participate in
Deciding the Motion to Disqualify. In the mentioned Response, Justice Rose accuses
condemnees' counsel, Laura FitzSimmons, of being part of an ongoing conspiracy against
Justice Rose, which he calls a Gunderson/Whitehead/Springer/Steffen coalition. The Rose
Response is comprised of a long bill of personal complaints by Justice Rose against Ms.
FitzSimmons and against the mentioned conspiratorial coalition, including charges that Ms.
FitzSimmons was part of a plan to make public sealed criminal charges that had been filed by
a Las Vegas Metropolitan Police officer against Justice Rose, and that, had it not been for Ms.
FitzSimmons and her co-conspirators, these charges would have been kept from the public
eye and remained sealed by order of the district court in Las Vegas.
Ms. FitzSimmons denies that she is part of any such conspiracy; but it is obvious from
Justice Rose's document that he earnestly believes that Ms. FitzSimmons is conspiring to
destroy him. In my judgment, these beliefs and the other charges which Justice Rose makes
against Ms. FitzSimmons create a strong appearance of bias on the part of Justice Rose and
lead to the almost inescapable inference that it is impossible for Justice Rose to sit in
impartial judgment in these cases while Ms.
Rose to sit in impartial judgment in these cases while Ms. FitzSimmons is acting as counsel.
Justice Rose resists his disqualification by claiming that although, under Canon 3(E) of the
Code of Judicial Conduct, a judge can be disqualified for animus toward an attorney,
Justice Rose does not consider his animus to be sufficiently virulent and extreme to
warrant his disqualification. Any reader of Justice Rose's Response will come to the
unhesitating conclusion that Justice Rose's bias against Ms. FitzSimmons is indeed extreme
and that there is virtually no possibility that a judge who feels the way that Justice Rose feels
about Ms. FitzSimmons could possibly sit in fair judgment in these cases.
In the mentioned Response, Justice Rose makes two arguments. The first is that deference
should be given to his own opinion as to bias and that although his past remarks about
Ms. FitzSimmons may have been derogatory and hateful, he has an excuse, namely, Justice
Rose's remarks were made in response to statements or actions of Laura FitzSimmons and
were, for this reason, not evidence of any disqualifying bias.
With regard to Justice Rose's argument that retaliatory remarks made in response to
attorney FitzSimmons' attacks on him do not count, I must say that I have never heard such
an argument before. Justice Rose tells us that because the things he has said about Ms.
FitzSimmons
2
were in retaliation for and in response to the bad things that he claims Ms.
FitzSimmons had done and said about him, his remarks cannot be admitted as evidence of
any disqualifying bias. Although this is a very interesting position for Justice Rose to take, I
fail to see any merit to his claim that he was merely acting in retaliation for past grievances.
Frankly, I cannot understand his claim that his acting in response to perceived indignities
does not constitute evidence of any disqualifying bias. As I see it, Justice Rose's claim that
his retaliatory remarks do not count because he was provoked into making them is just
more evidence that he is truly and extremely
3
biased against Ms. FitzSimmons.
Attorney FitzSimmons' response to the charges made by Justice Rose in his Response is
put this way: Since Justice Rose continues to express his opinion that I am part of a
'coalition'4 that is intent upon harming him politically, a reasonable person would
certainly question whether Justice Rose would hold the balance nice, clear and true."
__________

2
In the motions to disqualify Justice Rose, Ms. FitzSimmons sets out an array of derogatory statements that
Justice Rose has made in public against her over the past several years. I find no need in this opinion to
catalogue these statements and merely note that Justice Rose does not deny making these remarks. His position
is one of confession and avoidanceJustice Rose's remarks were in response to the statements or actions of
Laura FitzSimmons and, therefore, are not evidence of disqualifying bias.

3
See Richard E. Flamm, Judicial Disqualification 124 (1966).
continues to express his opinion that I am part of a coalition'
4
that is intent upon harming
him politically, a reasonable person would certainly question whether Justice Rose would
hold the balance nice, clear and true.
It is worthwhile to examine some of the public charges that Justice Rose has levied against
Ms. FitzSimmons. I might understand Justice Rose's position better if Ms. FitzSimmons had,
as Justice Rose claims, actually slandered Justice Rose or had intentionally provoked him or
taunted him. It would then be much easier to understand Justice Rose's extravagant attack and
the statements that he has made about her. For example, in his Response, Justice Rose
itemizes a number of legal and political actions taken by FitzSimmons against Justice Rose,
including an independent civil action by FitzSimmons against Justice Rose. Still, among
the many actions by Ms. FitzSimmons complained of by Justice Rose I find no untoward or
unfair conduct of any kind on the part of Ms. FitzSimmons; nevertheless, it is understandable,
to a limited degree, why Justice Rose (if he believed all of the reliable sources referred to in
his Response) got so angry at attorney FitzSimmons and why, as he puts it, he has not
appreciated these attacks or her conduct.
5
I believe the key to judging Justice Rose's bias or lack of it in these cases is his assertion
that his responsive statements were "precipitated" {provoked) by "attacks against him"
that became known to him based upon undisclosed "reliable information made available
to him."
__________

4
According to Justice Rose's Response there is a coalition comprised of movants' attorney, Laura
FitzSimmons, former Chief Justice E. M. Gunderson, former Chief Justice Thomas Steffen, former Judge Jerry
Whitehead and, the undersigned, Justice Charles Springer. According to Justice Rose, based on what [he]
considered reliable information, the members of the named conspiracy have been conspiring against him in the
form of legal and political action.

5
While admitting that he has not appreciated all of the things that he claims have been done to him by Ms.
FitzSimmons and despite the tone of ire and displeasure that runs throughout his Response, Justice Rose writes
in his Response that he had always considered [him]self to be a good friend of Laura FitzSimmons. Ms.
FitzSimmons' sworn response to this is as follows:
I do know that I have never considered Justice Rose to be a friend. Indeed the only conversation of a
personal nature that I recall having with Justice Rose was a fund raiser that I hosted for him in Carson
City during his first campaign. The guests left, and Justice Rose and I were sitting outside. He was
complaining about how strenuous the campaign had been. I told him that I thought it would be hard to
campaign for a judgeship, and later resist the temptation, as a judge, to reward friends and punish
enemies. Justice Rose looked me in the eye and replied that he was not one to resist temptation, and he
was looking forward to pay backs. I was uncomfortable with that statement at the time it was made, and
later events have only increased my concern.
precipitated (provoked) by attacks against him that became known to him based upon
undisclosed reliable information made available to him. The information available which
Justice Rose claims to have gotten from unnamed sources might have disclosed to Justice
Rose some conduct which he deemed to be inappropriate on the part of Ms. FitzSimmons; but
there is certainly nothing in the record that would support such a conclusion.
It is apparent from Justice Rose's Response that the perceived attacks by Ms.
FitzSimmons that precipitated Justice Rose's responsive statements against Ms.
FitzSimmons are centered on what Justice Rose describes as Ms. FitzSimmons' filing of a
civil complaint to require the Eighth Judicial District Court in Clark County to make public
certain wiretapped conversations of Justice Rose surrounding the criminal investigation of
Michael and Rhonda Mushkin and Justice Rose. Justice Rose attaches to his Response a
copy of Ms. FitzSimmons' civil complaint, which is a Petition to Unseal Wiretap
Information. This document discloses that a district judge had, in a secret proceeding
entitled DR# 92-0919-1101, ordered that certain police files relating to Justice Rose,
Michael Mushkin and Rhonda Mushkin be sealed and withdrawn from public view. I will not
speculate about what political forces might have been exerted to bring about the unheard-of
action of a district judge's ordering that certain police files be sealed, nor will I speculate on
why the district court did not grant Ms. FitzSimmons' motion to unseal these public
records; but I will say that there does not appear to be anything untoward or provocative
about Ms. FitzSimmons' motion to unseal, which, she advises the court, was made for the
purpose of preparing various documents for filing and was based on the Nevada Public
Records Act (NRS 239.010). What is untoward and what should provoke any citizen is the
fact that Ms. FitzSimmons' request for inspection of public documents was not granted,
especially when the Las Vegas Metropolitan Police and the district attorney of Clark County
consented to the unsealing of these public documents.
In her Reply, Ms. FitzSimmons explains that the purpose for her filing the mentioned
Petition was to obtain documents in support of a complaint to the Nevada Commission on
Judicial Discipline, pursuant to what she believed to be her ethical obligation, and not, as
Justice Rose has asserted, to make public those conversations. Attorney FitzSimmons tells
us that the discipline complaint was held by the Commission, the executive director of which
Justice Rose has described as one of his closest friends, until this court decided Hogan v.
Warden, 112 Nev. 553, 916 P.2d 805 (1996). Thereafter, the complaint was dismissed by the
Commission, which justified the dismissal entirely upon that opinion, in which Justice
Rose sat in judgment of issues relating to his own alleged misconduct.
dismissed by the Commission, which justified the dismissal entirely upon that opinion, in
which Justice Rose sat in judgment of issues relating to his own alleged misconduct.
Part of the information contained in the sealed documents referred to above became public
despite the court order sealing it; and the source of Justice Rose's displeasure with Ms.
FitzSimmons appears to be that he blames her for trying to make public documents public,
documents described by Justice Rose in his Response as being wiretapped conversations in
which I [Rose] was a party concerning the criminal investigation into the activities of
Michael and Rhonda Mushkin. Michael and Rhonda Mushkin were indicted after a lengthy
investigation, and I had one or more conversations with Rhonda that were intercepted by
wiretapped surveillance. These wiretaps were transcribed for the state's prosecution of
Michael Mushkin but were subsequently sealed by the Court.
It is understandable that Justice Rose would have been concerned about these wiretaps'
becoming public knowledge and especially concerned when, for the first time, it appeared in
the newspapers that Justice Rose was the subject of a sworn criminal complaint charging him
with obstruction of public justice and seeking his arrest. Even though the district attorney
refused to prosecute the criminal complaint and Attorney General Del Papa also declined to
prosecute the criminal complaint, if Justice Rose believed that this embarrassing public
disclosure was brought about by the intentional actions of Ms. FitzSimmons and her
coalition, then it does explain why he feels the way that he does about her and explains why
he was moved to make responsive statements about Ms. FitzSimmons. What it does not
explain, however, is how, given the kind of animus against Ms. FitzSimmons that is
demonstrated by Justice Rose in his Response, he can be expected to act fairly and impartially
in these cases.
Justice Rose's public comments on the dispositive issue in these cases and his extreme
animus toward counsel demand that he be disqualified from sitting in these cases.
CONCLUSION
The decision to deny the motion to disqualify Justice Rose is additionally clouded by the
fact that the deciding vote is cast by Justice Young, who, himself, was challenged for bias in
these cases. The way that the challenges against Justice Young and Justice Rose have been
resolved in these cases is simply that Justice Rose casts the deciding vote that Justice Young
is not biased; and now Justice Young casts the deciding vote ruling that Justice Rose is not
biased. This procedure is tainted and unfair on its face, remindful of the time when Justice
Young and Justice Rose decided a case in which they had been previously disqualified.
unfair on its face, remindful of the time when Justice Young and Justice Rose decided a case
in which they had been previously disqualified. Whitehead v. Comm'n on Jud. Discipline,
920 P.2d 491 (1996).
6
__________

6
In arguing at such length that Justice Rose's bias against Ms. FitzSimmons, as an attorney, is extreme and
therefore sufficient to disqualify him, I do not want to leave the impression that I believe that extreme bias is
necessary in these cases. Ms. FitzSimmons is an interested party in these cases and, as such, it is not necessary to
establish extreme bias against her. As I have argued above, if this court were to have given due consideration
to the supplemental motion and supporting documents, as it properly should, the court would have been hard
pressed, in good conscience, to deny the motion to disqualify Justice Rose and thereby permit Justice Rose to
continue to sit in these cases.
By failing to consider the condemnees' supplemental motion, the majority is ignoring a dispositive point raised
by the condemnees, namely, that Ms. FitzSimmons is not only attorney for condemnees, she is, herself,
indisputably, a real party in interest.
In Hecht and in these cases, the court rules in favor of Justice Rose (who calls himself a real party in
interest) on the ground that Justice Rose's frequently-expressed bias and ill-will toward Ms. FitzSimmons was
not so excessive as to be extreme bias. The rule of extreme bias, has, of course, no application to Ms.
FitzSimmons as a real party in interest, and one who is subject to losing large sums of money if Justice Rose's
admitted bias against her is allowed to come into play. (Justice Rose states in his Supplemental Response that
[a]s a practical matter, the real parties in interest are Justice Rose and attorney Laura FitzSimmons . . . .) This
being the case, the majority in these cases acted mistakenly in holding that disqualification was not mandated
except where the bias could be shown to have been extreme.
It is not fair for this court to have decided the present motion without considering the matters which were
called to the court's attention in the supplemental motion that it has refused to consider and returned to the
movants. In addition to calling attention to the fact of Ms. FitzSimmons' being, like Justice Rose, a real party in
interest, the supplemental motion raised a number of other critical matters that should have been considered by
the court. For example, contained in the moving papers is an opinion, in affidavit form, expressed by Richard
Edward Flamm, the leading authority on judicial disqualifications, an opinion which mandate[s] Justice Rose's
disqualification. Mr. Flamm is the author of Judicial Disqualification: Recusal and Disqualification of Judges, a
nationwide treatise published by Little, Brown and Company in 1996. The treatise examines in detail the
principles which have been espoused by the nation's courts in deciding judicial disqualification motions and
appeals. This court relied (incorrectly) on two sections of Mr. Flamm's treatise in its opinion denying the motion
to disqualify Justice Rose in Hecht.
After a careful review of Hecht and of all the pertinent documents in the present case, as well as a host of
cases on point, Mr. Flamm expressed, under oath, the following professional opinions:
I have formed the opinion that Justice Rose's expressed animus towards Ms. FitzSimmons does indeed
mandate his disqualification from this case . . . . I do not believe that this general proposition (that a
judges's bias against an attorney must be extreme) justifies Justice Rose continuing to sit in cases in
which Ms. FitzSimmons represents a
I agree that the conversation between members of the legislature and Justice Rose do not
provide sufficient grounds for his disqualification. However, in most other respects, I cannot
subscribe to either the majority or the dissent in these matters. Based upon my own review of
the record, and without conceding that PETA v. Berosini, 110 Nev. 78, 867 P.2d 1121
(1994), is a correct application of the doctrine surrounding disqualification of judicial
officers, I would grant the instant disqualification motion.
____________
113 Nev. 1116, 1116 (1997) SIIS v. Bokelman
STATE INDUSTRIAL INSURANCE SYSTEM; and DEPARTMENT OF
ADMINISTRATION, APPEALS OFFICE, Appellants, v. WILLIAM BOKELMAN,
Respondent.
No. 28755
October 1, 1997 946 P.2d 179
Appeal from a district court order reversing apportionment of permanent disability award
by SIIS Department of Administration appeals officer. First Judicial District Court, Carson
City; Michael E. Fondi, Judge.
Workers' compensation claimant sought judicial review of determination of State
Industrial Insurance System (SIIS) Department of Administration appeals officer which
apportioned his permanent total disability (PTD) award. The district court reversed. SIIS
appealed. The supreme court held that apportionment of claimant's PTD award was
inappropriate.
Affirmed.
Lenard T. Ormsby, General Counsel, and Bryan L. Stockton, Associate General Counsel,
Carson City, for Appellants.
Nancyann Leeder, Nevada Attorney for Injured Workers, and Ronnie N.
__________
party on a contingent fee basis. . . . In her moving papers Ms. FitzSimmons attested (and Justice Rose did
not deny) that she has a pecuniary interest in the outcome of these proceedings. . . . In my opinion, a real
party who possesses a substantial interest in the outcome of a proceeding has a due process right not to
have that case decided by a court whose membership includes a judge whose impartiality might
reasonably be questioned.
For this court to decide this matter without having considered the vital matters presented in the supplemental
motion is completely without justification.
Ronnie N. Likes, Deputy Nevada Attorney for Injured Workers, Carson City, for Respondent.
On questions of fact, administrative agency's decision is given deference; therefore, reviewing court must confine its inquiry to
determining whether record provides substantial evidence supporting administrative agency's decision.
Although reviewing court may decide pure legal questions without deference to administrative agency's determination, agency's
conclusions of law which are closely related to agency's view of facts are entitled to deference.
3. Statutes.
Statutory construction is question of law which invites independent appellate review of administrative decision.
Workers' compensation claimant is considered an odd-lot if he or she may be capable of holding various jobs from time to time,
but that the kind of work he or she may perform is so limited in quality, dependability or quantity that reasonably stable market for that
work does not exist. NRS 616C.435(2).
In evaluating permanent total disability (PTD) claims, focus of analysis is on degree to which physical impairment has hindered
workers' compensation claimant's earning capacity. NRS 616C.435(2).
Apportionment of workers' compensation claimant's permanent total disability (PTD) award based on his prior non-work-related
head injury was inappropriate, though effects from prior injury combined with claimant's subsequent work-related back injury
prevented him from pursuing alternate employment, where claimant's prior injury was not subject of prior disability award, prior injury
did not contribute to cessation of claimant's employment, and claimant's wage and work status at time of back injury were clearly
influenced by his prior disability. NRS 616C.440(1)(b).
7. Statutes.
Where language of statue is plain and unambiguous, such that legislative intent is clear, court should not add to or alter language
to accomplish purpose not on face of statute or apparent from permissible extrinsic aids such as legislative history or committee
reports.
8. Statutes.
Supreme court will not construe statute to produce unreasonable result when another interpretation will produce reasonable result.
9. Statutes.
Where legislative intent cannot be discerned, statute can be interpreted according to entire statutory scheme.
Regardless of whether workers' compensation claimant's permanent total disability (PTD) derives from scheduled disability or
odd-lot disability, apportionment or offset of PTD award is appropriate where prior permanent partial disability (PPD) award has
been made, and, in absence of prior PPD award, apportionment or offset is appropriate where prior disability, separate and
apart from societal factors causing "odd-lot" disability, plays role in permanently preventing claimant from
returning to work force in some other reasonably constructive capacity.
where prior disability, separate and apart from societal factors causing odd-lot disability, plays role in permanently preventing
claimant from returning to work force in some other reasonably constructive capacity. NRS 616C.435, 616C.440(1)(b).
Where prior disability prevents workers' compensation claimant from seeking other employment, apportionment of claimant's
permanent total disability (PTD) award is only appropriate if, at time of claimant's subsequent injury, his or her wage was not affected
or influenced by the prior disability. NRS 616C.440(1)(b).
OPINION
Per Curiam:
FACTS
William Bokelman sustained severe head injuries in 1970 following an altercation
unrelated to his employment as a firefighter with the city of Reno. Unfortunately, residual
dysphasia and impaired memory forced him to leave that position. For years thereafter, he
was employed with the city of Reno Streets and Parks Department.
Between 1970 and 1989, Bokelman experienced no difficulty performing his job duties.
However, on September 5, 1989, he twisted his back at work while lifting trash. After
attempts at conservative treatment failed, Bokelman underwent back surgery on December
20, 1989. Although Bokelman returned to work after the surgery, his back pain became so
severe that he was forced to retire. On October 10, 1990, Dr. Adolf Rosenauer, M.D., a Reno
neurosurgeon, found that Bokelman was permanently and totally disabled.
On November 12, 1990, using the American Medical Association's Guides To The
Evaluation Of Permanent Impairment, (hereinafter AMA Guides), Dr. Gordon Nitz found
Bokelman to be twelve percent permanently partially disabled on a whole body basis (PPD)
from the back injury. More specifically, seven percent of the disability was attributed to lack
of range of motion and five percent to intervertebral disc disease.
On August 7, 1991, at SIIS' request, Dr. Lynn Gerow, a psychiatrist and neurologist,
examined Bokelman to evaluate his closed-head injury. Using the AMA guides for rating
Whole Person Impairment, Dr. Gerow determined that Bokelman's 1970 head injury
accounted for forty-eight percent of his impairment.
A Permanent Total Disability Panel considered Bokelman for permanent total disability
(PTD) status. On November 1, 1991, after rehabilitation tests and medical reports indicated
that he was not employable, the panel approved Bokelman for PTD status with a
recommendation for apportionment.
he was not employable, the panel approved Bokelman for PTD status with a recommendation
for apportionment. On October 9, 1992, the SIIS Pensions Department notified Bokelman
that his disability had been apportioned as only fifty-two percent industrially related.
Accordingly, Bokelman's monthly compensation of $1412.03 was reduced to $734.26 per
month.
Bokelman appealed this determination. The Department of Administration hearing and
appeals officers affirmed the apportionment. On judicial review, the First Judicial District
Court reversed the appeals officer's decision. The SIIS appeals the ruling of the district court.
DISCUSSION
[Headnotes 1-3]
On questions of fact, an administrative agency's decision is given deference; therefore, a reviewing court must confine its inquiry to
determining whether the record provides substantial evidence supporting the administrative agency's decision. Installation & Dismantle,
Inc. v. SIIS, 110 Nev. 930, 932, 879 P.2d 58, 59 (1994). Although a reviewing court may decide pure legal questions without deference to
an agency determination, an agency's conclusions of law which are closely related to the agency's view of the facts are entitled to
deference. Id. at 932, 879 P.2d at 59. Statutory construction is a question of law which invites independent appellate review of an
administrative decision. Maxwell v. SIIS, 109 Nev. 327, 329, 849 P.2d 267, 269 (1993).
A. Determining eligibility for PTD status
Qualifications for PTD status are determined by NRS 616C.435:
1
Injuries deemed total and permanent.
1. In cases of the following specified injuries . . . the disability caused thereby shall be deemed total and permanent:
(a) The total and permanent loss of sight of both eyes.
(b) The loss by separation of both legs at or above the knee.
(c) The loss by separation of both arms at or above the elbow.
(d) An injury to the spine resulting in permanent and complete paralysis of both legs or both arms, or one leg and one arm.
__________

1
Substituted in revision for NRS 616.575.
(e) An injury to the skull resulting in incurable imbecility or insanity.
(f) The loss by separation of one arm at or above the elbow, and one leg by
separation at or above the knee.
2. The enumeration in subsection 1 is not exclusive, and in all other cases
permanent total disability must be determined by the insurer in accordance with the
facts presented.
[Headnote 4]
If an employee does not have a scheduled injury as provided for in subsection (1) of NRS 616C.435, the employee may be eligible for
PTD status under the residual or catch-all category as provided in NRS 616C.435(2). Awards under subsection (2) implicate what is
commonly referred to as the odd-lot doctrine.
2
[Headnote 5]
In Nevada Indus. Comm'n v. Hildebrand, 100 Nev. 47, 675 P.2d 401 (1984), we noted that consideration of factors other than
physical impairment is necessary to determine whether a nonscheduled injury qualifies the worker for permanent total disability benefits
under the odd-lot doctrine. Such factors may include, among others, the worker's age, experience, training and education. Hildebrand, 100
Nev. at 51, 675 P.2d at 404. In evaluating permanent total disability claims, the focus of the analysis is on the degree to which the physical
impairment has hindered a worker's earning capacity. Id.
SIIS found Bokelman eligible for PTD status under NRS 616C.435(2). Once such a determination is made, NRS 616C.440 mandates
apportionment for preexisting disabilities in existence at the time of the industrial injury which stimulates the onset of disability (referred to
in NRS 616C.440 as the subsequent injury).
B. Determining compensation under NRS 616C.440
If an employee is granted PTD status under NRS 616C.435, NRS 616C.440
3
is determinative of the amount of
compensation.
__________

2
An individual is considered an odd-lot if he may be capable of holding various jobs from time to time,
but that the kind of work he may perform is so limited in quality, dependability or quantity that a reasonably
stable market for that work does not exist . . . . Fancher v. Overhead Doors, Inc., 425 So. 2d 965, 966 (La. App.
1983) (citing Oster v. Wetzel Printing, Inc., 390 So. 2d 1318 (La. 1980)).

3
Substituted in revision for NRS 616.580. Both parties rely on the 1995 amendment to NRS 616.580 and fail
to cite the controlling statute at the time of Bokelman's injury. Bokelman was injured in 1989 and the SIIS
granted Bokelman PTD status in 1992; therefore, the pre-1995 version of NRS 616.580(2) (now, NRS
616C.440(1)(b)) governs. In this case, the appeals officer determined that, when read together, NRS 616.580(2)
and NRS
616C.440. Amount and duration of compensation; limitations; reduction of
compensation of employee who has received compensation in lump sum for
permanent partial disability.
1. Except as otherwise provided in this section and NRS 616C.175 [which governs
aggravation of preexisting injuries], every employee . . . who is injured by accident
arising out of and in the course of employment . . . is entitled to receive the following
compensation for permanent total disability:
(a) In cases of total disability adjudged to be permanent, compensation per month of
66 2/3 percent of the average monthly wage.
(b) If there is a previous disability, as the loss of one eye, one hand, one foot or any
other previous permanent disability, the percentage of disability for a subsequent injury
must be determined by computing the percentage of the entire disability and deducting
therefrom the percentage of the previous disability as it existed at the time of the
subsequent injury, but such a deduction for a previous award for permanent partial
disability must be made in a reasonable manner and must not be more than the total
amount which was paid for the previous award for permanent partial disability.
[Headnote 6]
Having applied subdivision 1(a), the inquiry becomes whether subdivision (b) requires apportionment or reduction in connection with
Bokelman's prior non-industrial injury.
4
__________
616.605(6) (entitled Permanent partial disability: compensation) required apportionment of an odd-lot disability as if it were a
scheduled disability.
The language of NRS 616.580(2) essentially remains unchanged in the renumbering process to 616C.440(1)(b). NRS 616.605(6)
covering permanent partial disabilities also remained unchanged as it became NRS 616.605(7) and, currently, NRS 616C.490(8).
However, NRS 616C.440 as quoted in the text of this opinion, is the result of a 1995 amendment adding language to clarify the scope of
apportionment where the claimant has received a prior workers' compensation award based upon permanent partial disability.
NRS 616.580(2) as written between 1985 and 1993 stated:
Where there is a previous disability, as the loss of one eye, one hand, one foot, or any other previous permanent disability, the
percentage of disability for a subsequent injury must be determined by computing the percentage of the entire disability and
deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.
Although the 1995 amendatory language post-dates the injury sustained by Mr. Bokelman, it is analyzed here because it merely serves to
clarify existing doctrine.

4
The societal factors such as age, experience, training and education that are considered in connection with odd-lot status are not
apportionable.
1. Statutory construction
[Headnotes 7, 8]
Where the language of the statute is plain and unambiguous, such that the legislative intent is clear, a court should not add to or alter
[the language] to accomplish a purpose not on the face of the statute or apparent from permissible extrinsic aids such as legislative history
or committee reports.' Maxwell v. SIIS, 109 Nev. at 330, 849 P.2d at 269 (citations omitted). [This court] will not construe a statute to
produce an unreasonable result when another interpretation will produce a reasonable result. Breen v. Caesars Palace, 102 Nev. 79, 82,
715 P.2d 1070, 1072 (1986).
NRS 616C.440(1)(b), contains three distinct features requiring careful scrutiny. First, the provision applies only where there is a
previous disability. Bokelman's prior injury is not one of the specified injuries (i.e., loss of eyes, arms, legs), but may fall under the
category of any other previous permanent disability.
5
Secondly, it requires that the percentage of the previous disability, as it existed
when the later industrial injury occurred, be deducted from the entire disability. However, the statute fails to provide a formula or guidance
for calculating the percentages. Thirdly, the provision clearly states that a deduction for a previous award is limited by the total amount
paid for the previous award for permanent partial disability.
Read in its entirety, section (1)(b) is susceptible of three inconsistent interpretations. First, a broad reading would require
apportionment of any previous disability. By contrast, a narrow construction would limit apportionment of PTD awards to situations where
the claimant had actually received a previous workers' compensation award for a permanent partial disability. In the absence of a prior
workers' compensation award based upon permanent partial disability, a third construction would more closely examine to what extent, if
any, the prior disability affected the claimant's ability to work at the time of the subsequent injury.
6
2.
__________
Only medical or emotional conditions susceptible of diagnosis by a health care professional are subject to apportionment under NRS
616.580 (now, NRS 616C.440).

5
The statutory language does not explicitly differentiate between industrial and non-industrial disabilities (i.e., it does not unequivocally
make a prior workers' compensation disability award an exclusive precondition of apportionment).

6
Other courts have held that, where a preexisting injury has not been found to impair an employee in his work duties, the preexisting
condition will not be apportioned out of the disability award. See Escambia Cty. Council on Aging v. Goldsmith, 500 So. 2d 626, 636 (Fla.
App. 1986); Newman v. Workers' Compensation Appeals Bd., 199 Cal. Rptr. 422 (Cal. App. 1984).
2. Legislative intent and history
The legislative history of the 1995 PTD offset provisions is silent as to whether
apportionment is permissible absent a previous PPD award. It is clear that, without offset for
a prior workers' compensation award of permanent partial disability, the injured employee
would be overcompensated. Thus, the original intent of NRS 616C.440 (formerly NRS
616.580), particularly in light of the 1995 clarifying amendment, was to establish a
requirement that PPD awards be credited against PTD awards.
The issue of preexisting injuries was not fully addressed until 1993, when the legislature
adopted NRS 616C.175.
7
Under that statute, an employee is not entitled to compensation for
PPD or PTD if:
(a) He has a preexisting condition from a cause or origin that did not arise out of or
in the course of his current or past employment; and
(b) He subsequently sustains an injury by accident arising out of and in the course of
his employment which aggravates, precipitates or accelerates his preexisting condition,
unless information from a physician . . . establishes . . . that the subsequent injury is the
primary cause of the resulting condition.
NRS 616C.440 is prefaced with a reference to this statute, but does not incorporate it since
NRS 616C.175 is a complete bar to compensation. In this case, however, 616C.175, even if
applicable to 1989 injuries, would not bar recovery. Bokelman's employment-related back
injury was the primary cause of the resulting conditionnot his previous head injury.
C. The entire statutory scheme
[Headnote 9]
Where the legislative intent cannot be discerned, a statute can be interpreted according to the entire statutory scheme. See Acklin v.
McCarthy, 96 Nev. 520, 523, 612 P.2d 219, 220 (1980). Apportioning a previous partial disability, whether the subject of a prior workers'
compensation award or not, is consistent with the overall statutory scheme, even in the case of odd-lot disabilities.
SIIS contends that, as a matter of public policy, apportionment of any prior disability is proper because the purpose of Nevada's
workers' compensation statutes is to give the proper amount of compensation, not to provide a panacea for all the ills of society at the
expense of Nevada's employers. While we agree with this statement as a general matter, we believe that compensation
should be designed to address the disability caused by the workplace injury and that the apportionment and
"limitation of benefit" provisions {NRS 616C.440), are intended primarily to avoid duplicate or excess
recoveries where prior permanent disability awards have been paid, or where non-employment related
maladies contribute to the cessation of employment.
__________

7
Substituted in revision for NRS 616.50185.
statement as a general matter, we believe that compensation should be designed to address the
disability caused by the workplace injury and that the apportionment and limitation of
benefit provisions (NRS 616C.440), are intended primarily to avoid duplicate or excess
recoveries where prior permanent disability awards have been paid, or where
non-employment related maladies contribute to the cessation of employment.
[Headnotes 10, 11]
One of the purposes of NRS 616C.440(1)(b) is to ensure in the final analysis that a person will only receive SIIS benefits for injuries
sustained in the course of employment and not otherwise. Thus, in addition to ensuring that no duplication of benefits occurs, NRS
616C.440(1)(b) serves as a causation statute. Accordingly, regardless of whether the PTD derives from a scheduled disability under NRS
616C.435(1), or an odd-lot disability under NRS 616C.435(2), we hold that apportionment or offset is appropriate where a prior PPD
award has been made. In the absence of such an award, we hold that apportionment or offset is appropriate where the prior disability,
separate and apart from the societal factors causing the odd-lot disability, plays a role in permanently preventing the injured worker from
returning to the work force in some other reasonably constructive capacity.
8
We also hold that where the prior disability prevents the
claimant from seeking other employment, apportionment is only appropriate if, at the time of the subsequent injury, the employee's wage
was not affected or influenced by the prior disability.
In the instant case, Bokelman's prior disability was not the subject of a prior disability award, and did not contribute to the cessation of
his employment with the city of Reno. Further, although the sequelae from the prior head injury combined with the work-related back
injury prevents him from pursuing any alternate employment, his wage and work status at the time of the subsequent injury were clearly
influenced by the prior disability. Thus, no duplication of benefits has occurred. In fact, the calculation of benefits for loss of his job was
based presumably on an already reduced salary package, as Bokelman was required to resign his position as a firefighter and take a less
desirable position with the streets and parks department following the prior non-industrial injury. We therefore conclude that SIIS erred in
apportioning forty-eight percent of Bokelman's PTD award.
Based on the foregoing analysis, we affirm the district court's decision to reverse the decision of the appeals officer.
__________

8
See footnote 4, supra.
____________
113 Nev. 1125, 1125 (1997) Rosser v. SIIS
RICHARD ROSSER, Appellant, v. THE STATE OF NEVADA, ex rel., STATE
INDUSTRIAL INSURANCE SYSTEM; DEPARTMENT OF ADMINISTRATION,
HEARINGS DIVISION; DEBORAH SCOTT GALLAGHER, in Her Capacity as
Appeals Officer; and CARSON CITY SCHOOL DISTRICT, Respondents.
No. 27689
October 1, 1997 946 P.2d 185
Appeal from a district court order denying a petition for judicial review. First Judicial
District Court, Carson City; Michael R. Griffin, Judge.
State Industrial Insurance System (SIIS) found claimant to be permanently and totally
disabled, but award was reduced pursuant to statutory provision requiring apportionment of
permanent total disabilities by percentage of previous disability, based on finding that
preexisting heart problems represented a 36 percent disability of the whole person. Claimant
petitioned for judicial review. The district court denied petition, and claimant appealed. The
supreme court held that apportionment of permanent total disability award for preexisting
heart condition would be remanded where apportionment was determined by mechanical
application of the American Medical Association (AMA) Guides to the Evaluation of
Permanent Impairment.
Goedert & Michaels, Reno, for Appellant.
Lenard T. Ormsby, General Counsel, and Glade A. Myler, Associate General Counsel,
Carson City, for Respondent State Industrial Insurance System.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, and Michael Pintar, Carson City,
for Respondent Carson City School District.
Supreme court is free to decide pure legal questions without deference to agency's determination; however, agency's conclusions of
law which are closely related to agency's view of facts are entitled to deference.
2. Statutes.
Statutory construction is a question of law which invites independent appellate review of an administrative decision.
Under the odd-lot doctrine, consideration of factors other than physical impairment is necessary to determine whether a
nonscheduled injury qualifies the worker for permanent total disability benefits; such factors may include,
among others, worker's age, experience, training and education.
113 Nev. 1125, 1126 (1997) Rosser v. SIIS
injury qualifies the worker for permanent total disability benefits; such factors may include, among others, worker's age, experience,
training and education.
American Medical Association Guides to the Evaluation of Permanent Impairment are but one of number of resources that can be
utilized in assessing degree to which apportionment of previous disability from permanent total disability award is appropriate. NRS
616.580(1)(b).
Apportionment of permanent total disability award is proper if, in the absence of a prior industrial disability award, inability to
return to work was caused in part by a prior nonindustrial disability. NRS 616.580(1)(b).
Apportionment of permanent total disability award for preexisting heart condition would be remanded where apportionment was
determined by mechanical application of the American Medical Association (AMA) Guides to the Evaluation of Permanent
Impairment; on remand, State Industrial Insurance System (SIIS) had to support apportionment with documentation comprehensively
addressing scope and nature of claimant's preexisting condition, and had to establish that claimant's heart problems, separate and apart
from societal factors causing odd-lot disability, prevented him from returning to the work force in some other reasonably
constructive capacity. NRS 616.580(1)(b).
OPINION
Per Curiam:
FACTS
Appellant Richard Rosser (Rosser) was hired by the Carson City School District
1
as a
carpenter in 1980. He held that position until May 3, 1988, when the school district promoted
him to the position of acting supervisor.
Rosser suffered from a variety of heart ailments, including a mitral valve prolapse, which
was diagnosed in 1984. He successfully underwent mitral valve surgery on March 6, 1989,
returning to work in April of that year. He experienced no further problems until February of
1990, when further diagnostic procedures revealed occlusive vascular disease in his left leg.
In June of 1990, co-workers, allegedly competitors for his supervisory position, accused
Rosser of misappropriating school building materials for his private cabinet business. A
police investigation ensued of which Rosser was aware. On July 19, 1990, Rosser's heart
ailments resurfaced when doctors detected atrial fibrillations.
__________

1
Hereinafter, respondents, State of Nevada; SIIS; Department of Administration, Hearings Division; Deborah
Scott Gallagher, in her capacity as Appeals Officer; and Carson City School District, are collectively designated
respondents.
113 Nev. 1125, 1127 (1997) Rosser v. SIIS
atrial fibrillations. On August 14, 1990, after experiencing increasing symptoms of congestive
heart failure, Rosser was admitted to Saint Mary's Hospital in Reno for cardioversion to
restore his normal heart rhythm. Then, on September 7, 1990, after being charged with
several felony and misdemeanor offenses in connection with the accusations of his
co-workers, the school district suspended Rosser without pay or benefits.
Contemporaneous with his suspension, Rosser filed an industrial insurance claim arising
from stress aggravated heart palpitations, listing the date of injury as July 16, 1990. In
response, the SIIS determined that Rosser was suffering from post-traumatic stress disorder.
Based upon a review of medical records, Dr. Stephen Savran, an SIIS evaluator, concluded
that Mr. Rosser's heart condition, either the mitral valve prolapse, or the atrial fibrillation on
7/16/90, [was] not a result of his employment by any stretch of the imagination.
Rosser returned to work as a maintenance person at Carson High School following
dismissal of the criminal charges in mid 1991.
2
Unfortunately, after approximately one year,
Rosser found his working situation intolerable because of demands made upon him by his
supervisor.
3
For example, Rosser claims he was expected, as a condition of continued
employment, to master all of the school's heating, ventilation, air conditioning, plumbing,
electrical systems and computers. In March of 1992, at age 62, he resigned and has not
resumed employment.
In April of 1993, the SIIS obtained a second medical evaluation from Dr. Lynn Gerow, a
board-certified psychiatrist and neurologist. Dr. Gerow concluded that Rosser was suffering
from employment related post-traumatic stress disorder, in remission, with residuals on
medication. With regard to pre-existing nonindustrial conditions, Dr. Gerow found that
Rosser was: Status post cardiac bypass surgery with ongoing problems of mitral valve
regurgitation and cardiac arrhythmias requiring multiple hospitalizations for stabilization.
On March 23, 1994, the SIIS found Rosser to be permanently and totally disabled. Dr.
Robert Brown, Chief Medical Advisor to the SIIS, evaluated the medical record and found
that Rosser was suffering from Mitral valve regurgitation with secondary left ventricular
cardiomyopathy and Congestive Heart Failure, stabilized . . . and Atrial fibrillation,
electroconverted . . . . Using the AMA guidelines for valvular heart disease and arrhythmias,
Dr. Brown concluded that the pre-existing heart problems represented a thirty-six percent
disability of the whole person.
__________

2
This was not a demotion. It appears that a subordinate had been given Rosser's former position as a
supervisor during his suspension.

3
The supervisor was allegedly involved in the events leading to Rosser's suspension.
113 Nev. 1125, 1128 (1997) Rosser v. SIIS
represented a thirty-six percent disability of the whole person. Rosser's benefits were
therefore reduced per NRS 616.580 (now, 616C.440), the statutory provision requiring
apportionment of permanent total disabilities (PTD). Rosser appealed this determination on
the ground that the apportionment addressed a non-disabling pre-existing condition, to wit:
the mitral valve prolapse and associated arrhythmias. The hearing officer reversed the
reduction of benefits on grounds that the apportionment was not adequately supported by
documentation. The SIIS, in turn, took the matter to the appeals division of the SIIS
Department of Administration claiming that Nevada Administrative Code (NAC) 616.650
required apportionment. The school district, by and through its agent, filed a separate appeal.
The appeals officer reinstated the initial reduction of the award based upon the apportionment
of Rosser's preexisting, non-industrial heart condition. Rosser now appeals the district court's
denial of his petition for judicial review of the appeals officer's ruling.
DISCUSSION
[Headnotes 1, 2]
This court is free to decide pure legal questions without deference to an agency's determination; however, an agency's conclusions of
law which are closely related to the agency's view of facts are entitled to deference. Installation & Dismantle v. SIIS, 110 Nev. 930, 932,
879 P.2d 58, 59 (1994). Statutory construction is a question of law which invites independent appellate review of an administrative
decision. Maxwell v. SIIS, 109 Nev. 327, 329, 849 P.2d 267, 269 (1993).
Apportionment under NRS 616.580
4

NRS 616.575, at the time of this industrial injury, read as follows:
Permanent total disability: Injuries deemed total and permanent.
1. In cases of the following specified injuries, in the absence of proof to the
contrary, the disability caused thereby shall be deemed total and permanent:
(a) The total and permanent loss of sight of both eyes.
(b) The loss by separation of both legs at or above the knee.
(c) The loss by separation of both arms at or above the elbow.
(d) An injury to the spine resulting in permanent and complete paralysis of both
legs or both arms, or one leg and one arm.
__________

4
Amended in 1995 and recodified as NRS 616C.440.
113 Nev. 1125, 1129 (1997) Rosser v. SIIS
complete paralysis of both legs or both arms, or one leg and one arm.
(e) An injury to the skull resulting in incurable imbecility or insanity.
(f) The loss by separation of one arm at or above the elbow, and one leg by
separation at or above the knee.
2. The enumeration in subsection 1 is not exclusive, and in all other cases
permanent total disability must be determined by the insurer in accordance with the
facts presented.
[Headnote 3]
To qualify for permanent total disability status, a claimant's disability must either fall under one of the scheduled disabilities listed
under NRS 616.575(1),
5
or qualify under the residual catch-all category as provided in NRS 616.575(2) for injuries not specifically
enumerated in subsection (1). Awards of disability under subsection (2) implicate what is commonly referred to as the odd-lot doctrine.
Nevada Indus. Comm'n v. Hildebrand, 100 Nev. 47, 675 P.2d 401 (1984).
6
The parties to this appeal agree that Rosser's disability falls
within the odd-lot category.
Where a claimant is deemed permanently and totally disabled, NRS 616.580 (now NRS 616C.440) requires that, under certain
circumstances, previous disabilities (extant at the time of the subject or subsequent industrial injury) be apportioned from any permanent
total disability award. At the time relevant to this claim, NRS 616.580(1)(b) provided in relevant part:
(b) If there is a previous disability, as the loss of one eye, one hand, one foot or any other previous permanent disability, the
percentage of disability for a subsequent injury must be determined by computing the percentage of the entire disability and
deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.
7
Rosser contends that an apportionment of a permanent total disability is improper if the preexisting condition is non-disabling.
__________

5
Recodified as NRS 616C.435.

6
Under the odd-lot doctrine, consideration of factors other than physical impairment is necessary to determine whether a
non-scheduled injury qualifies the worker for permanent total disability benefits. Such factors may include, among others, the worker's
age, experience, training and education. Hildebrand, 100 Nev. at 51, 675 P.2d at 404.

7
Societal factors such as age, experience, training and education that are considered in connection with odd-lot status are not
apportionable. Only medical or emotional conditions susceptible of diagnosis by a health care professional are subject to apportionment
under NRS 616.580.
113 Nev. 1125, 1130 (1997) Rosser v. SIIS
disabling. He maintains that respondents were not justified in apportioning thirty-six percent
of his PTD award because he was not disabled by his preexisting heart condition. Thus,
Rosser's argument turns on whether his heart condition constituted a disability for purposes
of 616.580(1)(b). He also contends that the AMA Guides should not have been utilized
because they are inapplicable to PTD claims.
Rosser's preexisting heart condition
As support for the proposition that the preexisting heart condition was non-disabling,
Rosser refers us to Dr. Gerow's finding that there was no pre-existing condition which may
have contributed to [his] current condition. Rosser further notes that he worked for the
school district for ten years without any disabling heart complications. He maintains that he
was not disabled until his supervisor told him that he would receive an unfavorable
performance review unless he could master all of the high school maintenance systems.
Respondents rely on numerous entries in the medical record in support of their argument
that Rosser's preexisting heart condition was disabling. Examples include Dr. Savran's
conclusion that Rosser's post-operative atrial fibrillation, which required continued
medications to control, was an expected component of his heart disease; notations that the
February 26, 1990, carotid angiodynography was performed following complaints of
intermittent dyspnea, chest pain, lightheadedness and palpitations; and documentation of
symptoms of congestive heart failure which required Rosser to undergo cardioversion on
August 14, 1990.
Dr. Grant Miller stated in Rosser's March 1992 psychiatric assessment that Rosser's
[r]eturn to work would certainly contribute to him having a major depression and/or cause
cardiac difficulties. Rosser's psychotherapist, Dr. Jack Araza, concluded in his
recommendations to the SIIS that, in addition to the emotional incapacitation, [t]here is the
additional concern for his physical health as he has a heart condition. Thus, respondents
maintain that Rosser's preexisting heart condition compels an apportionment of his PTD
award.
Reliance on the AMA Guidelines
[Headnote 4]
Respondents contend that permanent total disability awards under NRS 616.580(1)(b) should be determined in the same manner as
permanent partial disabilities under NRS 616.605(6),
8
to wit: by utilization of the American Medical Association Guides to the
Evaluation of Permanent Impairment {"AMA Guides").
__________

8
Revised in revision as NRS 616C.490(8).
113 Nev. 1125, 1131 (1997) Rosser v. SIIS
Guides to the Evaluation of Permanent Impairment (AMA Guides). This position is taken
despite the fact that NRS 616.580, the PTD apportionment statute, failed to provide its own
mechanism or formula for the apportionment of prior existing disabilities, and makes no
reference to the methods set forth for permanent partial disabilities (PPD) apportionment
under NRS 616.605. Respondents argue, however, that the PTD and PPD apportionment
provisions are mirror images of one another and must be read together in harmony. They
contend that a harmonious reading of these provisions requires that the same formula be
applied for both PTD and PPD apportionments, and that the omission of a formula from the
PTD provisions manifests legislative intent that, for consistency in enforcement, the AMA
Guides be used in both instances. Further, they argue that using the AMA Guides as required
for PPD purposes, NAC 616.650
9
of the Nevada Administrative Code, the regulation
governing apportionment of permanent partial disabilities, provides parameters for
apportionment of any permanent disability or impairment. Thus, SIIS directs its medical
advisors to rely on NAC 616.650 for apportioning permanent total disabilities, and to utilize
the AMA Guides. Accordingly, Dr. Brown apportioned thirty-six percent of Rosser's PTD
pursuant to the AMA Guides and tables.
__________

9
NAC 616.650 provides in pertinent part:
616.650 Apportionment of impairments.
1. If any permanent impairment from which an employee is suffering following an accidental injury
or the onset of an occupational disease is due in part to the injury or disease, and in part to a preexisting
or intervening injury, disease or condition, the evaluating physician, except as otherwise provided in
subsection 8, shall determine the portion of the impairment which is reasonably attributable to the injury
or occupational disease and the portion which is reasonably attributable to the preexisting or intervening
injury, disease or condition. The employee may receive compensation for that portion of his impairment
which is reasonably attributable to the subsequent injury or occupational disease and may not receive
compensation for that portion which is reasonably attributable to the preexisting or intervening injury,
disease or condition.
. . . .
6. If there are preexisting conditions, such as degenerative arthritis, rheumatoid variants, obesity or
congenital malformations, the apportionment must be supported by documentation concerning the scope
and the nature of the impairment which existed before the industrial injury or the onset of disease.
7. A physician shall always explain the underlying basis of the apportionment as specifically as
possible by citing pertinent data in the medical or other records.
8. If no documentation exists pursuant to subsection 6 or 7, the impairment may not be apportioned.
. . . .
10. The impairment of an upper extremity must be apportioned in accordance with the American
Medical Association's Guides to the Evaluation of Permanent Impairment.
113 Nev. 1125, 1132 (1997) Rosser v. SIIS
percent of Rosser's PTD pursuant to the AMA Guides and tables. Respondents therefore
argue that we should give deference to SIIS' methodology and interpretation of NRS 616.580,
NRS 616.605 and NAC 616.650, given the legislature's silence in this regard. We disagree.
First, we note that the American Medical Association itself has recognized that the AMA
Guides are ill equipped to rate such subjective factors as one's age, training or education.
10
Although the legislature has concluded that the guides are appropriate for evaluation of
partial disabilities, we believe that the omission of the AMA Guides from the PTD provisions
was based on legitimate concerns that such apportionments would be arbitrary or that the
AMA Guides had less validity in the context of PTD awards. Thus, we hold that the Guides
are but one of a number of resources that can be utilized in assessing the degree to which
apportionment is appropriate.
[Headnotes 5, 6]
In SIIS v. Bokelman, 113 Nev. 1116, 946 P.2d 179 (1997), we held that apportionment of a permanent total disability award is proper
if, in the absence of a prior industrial disability award, the inability to return to work was caused in part by a prior non-industrial disability.
Id. at 1124.
11
Here, Rosser's pre-existing heart condition may have played a role in the permanent cessation of employment. In this regard,
we note that he originally claimed to have sustained stress aggravated heart palpitations and obtained a determination from the SIIS that
he was suffering from post-traumatic stress syndrome. In our reading of the record below, we note that Dr. Brown, the physician who
apportioned Rosser's award, could have provided substantive support for apportioning Rosser's PTD at the hearing held before the appeals
officer. However, Dr. Brown gave short shrift to the underlying basis for his decision in his memorandum to SIIS. He merely noted Rosser's
diagnosis and mechanically apportioned his award according to the AMA Guides.
__________

10
The critical problem is that no formula is known by which knowledge about a medical condition can be combined with knowledge
about other factors to calculate the percentage by which the employee's industrial use of the body is impaired. The AMA Guides may help
resolve such a situation but it cannot provide complete and definitive answers. Each administrative or legal system that uses permanent
impairment as a basis for disability ratings should define its own means for translating knowledge about an impairment into an estimate of
the degree to which the impairment limits the individual's capacity to meet personal, social, occupational, and other demands or to meet
statutory requirements. American Med. Ass'n, Guides to the Evaluation of Permanent Impairment 1.5, at 4-5 (4th ed. 1993).

11
NAC 616.650(1) recognizes this condition precedent to apportionment under NRS 616.605.
113 Nev. 1125, 1133 (1997) Rosser v. SIIS
On remand, the SIIS must support its decision to apportion Rosser's PTD award with
documentation comprehensively addressing the scope and nature of Rosser's preexisting heart
condition.
12
SIIS must, per Bokelman, establish that Rosser's heart problems, separate and
apart from the societal factors causing odd-lot disability,
13 14
prevented him from returning
to the work force in some other reasonably constructive capacity.
15
Thus, the SIIS must
provide substantive documentation correlating application of the AMA Guide.
16
We have reviewed all of the other arguments and issues raised by the parties and conclude
that they are without merit.
CONCLUSION
For reasons discussed above, we reverse the order of the district court and remand with
instructions that the district court entertain Rosser's petition for judicial review and remand
the matter to the appeals officer for further proceedings consistent with this opinion.
__________

12
This too is required under NAC 616.650.

13
See footnote 7, supra.

14
Appellant argues that it is improper to apportion non-disabling pre-existing conditions. This is only
partially true. Apportionment is appropriate where (1) the prior condition, while not disabling at the time of the
industrial injury, plays a role in preventing the employee's return to work, and (2) the employee's wage was not
affected by the prior disability. See Bokelman.

15
There is no evidence, and Rosser seems to concede, that his wage at the time of cessation of employment
was unaffected by his heart condition. See Bokelman.

16
The district court below noted that there was substantial evidence in the administrative record to justify
apportionment. This may still hold true following further proceedings at the administrative level. However,
because Bokelman, for the first time, provides specific guidance regarding apportionment of PTD's, and because
our holding today expands on that ruling, the matter must be remanded for a more complete evaluation of the
claim before the appeals officer consistent with this opinion.
We do not need to reach respondents' arguments under NRS 616.110(2). In the event that Rosser's heart
condition is subject to apportionment, no permanent benefits will be paid in connection therewith. If it is not
subject to apportionment, the condition cannot be a cause of the disability.
____________
113 Nev. 1134, 1134 (1997) McDermott v. McDermott
HYDEE McDERMOTT, n/k/a HYDEE MYRES, Appellant, v. BRADLEY McDERMOTT,
Respondent.
No. 29003
October 1, 1997 946 P.2d 177
Appeal from a district court order changing primary custody of a minor child. Eighth
Judicial District Court, Clark County; Frances-Ann Fine, Judge.
Former husband brought motion to modify child custody. The district court ordered
change of custody in favor of former husband. Former wife appealed. The supreme court,
Shearing, C. J., held that trial court was required to consider rebuttable presumption against
sole or joint custody of child by former husband that was created by former husband's
conviction of domestic violence against former wife.
Carol Menninger, Las Vegas, for Appellant.
Paul M. Gaudet, Las Vegas, for Respondent.
1. Infants.
Trial court's determination of custody will not be disturbed unless there has been a clear abuse of discretion, so long as supreme
court is satisfied that determination was made for appropriate reasons.
2. Divorce.
Statutory amendment, under which court must consider whether parent has engaged in domestic violence in determining best
interest of child, applied to former husband's motion for change of custody, even though former husband filed his motion before
effective date of amendment, where act of domestic violence and hearing on motion occurred after effective date of amendment. NRS
125.480(5).
3. Divorce.
In ruling on former husband's motion to modify child custody, trial court was required to consider rebuttable presumption that sole
custody or joint custody of child by former husband was not in child's best interest, in light of former husband's conviction of
misdemeanor battery/domestic violence against former wife. NRS 33.018, 125.480(5).
OPINION
Appellant Hydee McDermott, now Hydee Myres (Hydee), and respondent Bradley
McDermott (Brad) divorced in February 1992 after a two-year marriage.
ary 1992 after a two-year marriage. The decree of divorce gave the couple joint legal custody
of their minor child, Kaylee, and designated Hydee as the primary custodial parent.
On August 1, 1995, Brad filed a motion to modify child custody. On October 4, 1995,
Brad was arrested following an altercation with Hydee and later convicted of misdemeanor
battery/domestic violence.
In late December 1995, the district court conducted an evidentiary hearing to resolve the
child custody dispute. Ultimately, the court ordered a change of custody in favor of Brad
based on Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968), and Truax v. Truax, 110
Nev. 437, 874 P.2d 10 (1994). On appeal, Hydee contends, inter alia, that the district court
erred by modifying custody.
DISCUSSION
Hydee contends that the district court failed to properly consider NRS 125.480 when
making its decision to change custody.
[Headnote 1]
A change in custody is warranted only when: (1) the circumstances of the parents have been materially altered; and (2) the child's
welfare would be substantially enhanced by the change.' Wiese v. Granata, 110 Nev. 1410, 1413, 887 P.2d 744, 746 (1994) (quoting
Murphy, 84 Nev. at 711, 447 P.2d at 665). A trial court's determination of custody will not be disturbed unless there has been a clear abuse
of discretion, so long as this court is satisfied that the determination was made for appropriate reasons. Sims v. Sims, 109 Nev. 1146, 1148,
865 P.2d 328, 330 (1993).
[Headnote 2]
NRS 125.480 provides that, in determining the best interest of the child, the court shall consider whether either parent has engaged in
domestic violence. NRS 125.480(4)(c). On October 1, 1995, NRS 125.480(5) came into effect.
1
Under NRS 125.480(5) and (7),
2
if the
court finds by clear and convincing evidence that one of the parents has committed domestic violence, as defined in
NRS 33.01S, upon "a parent of the child," a rebuttable presumption is created that "sole or joint custody of the
child by the perpetrator of the domestic violence is not in the best interest of the child."
__________

1
In the instant matter, Brad filed his motion to modify custody on August 1, 1995; however, the act of domestic violence and the
hearing on the motion did not occur until after October 1, 1995, the effective date of the amendments to NRS 125.480. Therefore, we
conclude that NRS 125.480(5) applies.

2
5. Except as otherwise provided in subsection 6 or NRS 125A.360, a determination by the court after an evidentiary hearing
and finding by clear and convincing evidence that either parent or any other person seeking custody has engaged in one or more
acts of domestic violence against the child, a parent of the child or any other person residing with the child creates a rebuttable
presumption that sole or joint custody of
evidence that one of the parents has committed domestic violence, as defined in NRS 33.018,
upon a parent of the child, a rebuttable presumption is created that sole or joint custody of
the child by the perpetrator of the domestic violence is not in the best interest of the child.
NRS 33.018 provides that an act of domestic violence occurs when one person commits
battery or assault upon another with whom he or she has a child in common. NRS 33.018.
3
[Headnote 3]
At the custody hearing, Brad testified that, on December 6, 1995, he was convicted of misdemeanor battery/domestic violence. That
conviction stemmed from Brad's battery of Hydee on October 4, 1995, when she arrived at Brad's house to pick up Kaylee. Because Brad
was found guilty beyond a reasonable doubt, we conclude that the incident qualifies as an act of domestic violence under NRS 33.018.
Consequently, the district court should have considered Brad's conviction in light of the rebuttable presumption in NRS 125.480 when
making its decision on the motion for modification of child custody.
The record shows that the district court was aware of Brad's domestic violence conviction. However, the sole references to Brad's
violence and temperament problems in the district court's order were embodied in its findings that: (1) it did not approve of the October 4,
1995 violence, but that it understands the provocation which might have existed; (2) the defendant should attend domestic violence
classes; (3) attendance at these classes will be ordered by the court unless Brad voluntarily goes; (4) the October 4, 1995, behavior will not
be tolerated in the future; (5)
__________
the child by the perpetrator of the domestic violence is not in the best interest of the child. Upon making such a determination, the
court shall set forth:
(a) Findings of fact that support the determination that one or more acts of domestic violence occurred; and
(b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or
other victim of domestic violence who resided with the child.
. . . .
7. As used in this section, domestic violence means the commission of any act described in NRS 33.018.

3
Domestic violence occurs when a person commits one of the following against or upon another to whom he is related by blood or
marriage, with whom he is or was actually residing, with whom he had or is having a dating relationship or with whom he has a
child in common, or upon his minor child or a minor child of that person:
1. A battery.
2. An assault.
. . . .
the court will revisit its order if Brad fails to comply with the suggested treatment; and (6)
Brad must complete the suggested programs within the school year.
There is no indication that the district court gave due weight to, or even considered, the
rebuttable presumption in NRS 125.480(5) that sole custody or joint custody of the child by
the perpetrator is not in the best interest of the child. Accordingly, we conclude that the
district court abused its discretion by failing to expressly consider all necessary components
of NRS 125.480.
We reverse the order of the lower court and remand this case so that the court may
reconsider its child custody modification order in light of the rebuttable presumption in NRS
125.480.
4
In 1995, the legislature added subsections 5 and 6 to NRS 125.480, which provide in some
detail procedures that must be followed by the court in custody disputes in which a
prospective custodian is charged with acts of domestic violence against a child or person
residing with the child. The two new subsections spell out the manner in which the court
must deal with these matters and create a rebuttable presumption against the violent party.
The mentioned amendments present substantial changes in the law. These changes became
effective after Brad (as the majority so familiarly calls him) instituted these proceedings. At
no time did either party call the trial court's attention to the substantial changes in the statute,
and neither relied in any way on the statute in its amended form. None of the appellate briefs
makes mention of the added subsections 5 and 6. Under these circumstances, I do not think it
is proper to reverse the judgment of the trial court, based upon a statute that was never
mentioned by the parties and upon points that were not raised in this appeal.
The record shows that although the trial court did not consider subparagraphs 5 and 6, it
did give careful attention and sufficient consideration to the charges of domestic violence that
were made in this case. Overall, the decision in this matter appears to me to be well within
the discretion given to trial courts in domestic matters. I would affirm the judgment of the
trial court.
__________

4
The district court should also make findings pursuant to NRS 125.480(5)(b), discussing how visitation
arrangements would be made to adequately protect Kaylee and Hydee.
____________
113 Nev. 1138, 1138 (1997) Hopper v. Hopper
JAYME HOPPER, Appellant, v. STEVEN
HOPPER, Respondent.
No. 28650
October 1, 1997 946 P.2d 171
Appeal from an order of the district court changing primary physical custody of a minor
child from the mother to the father. Eighth Judicial District Court, Clark County; Steven E.
Jones, Judge.
The supreme court, Rose, J., held that parents' circumstances had not materially changed
after divorce so as to warrant change of custody.
Bruce I. Shapiro, Las Vegas, for Appellant.
Lillian J. Sondgeroth, Las Vegas, for Respondent.
Change in custody is warranted only when circumstances of parents have been materially altered and child's welfare would be
substantially enhanced by change.
2. Infants.
It is presumed that trial court has properly exercised its discretion in determining child's best interest, and thus, trial court's
determination of custody will not be disturbed unless there has been clear abuse of discretion, so long as supreme court is satisfied that
such determinations were made for appropriate reasons.
3. Divorce.
Parents' circumstances had not materially changed since entry of final custody order some six months earlier so as to warrant
changing custody of child from mother to father; stated grounds for finding material change in circumstancesnamely mother's
excessive yelling at child, mother's failure to facilitate relationship between child and father, and mother's lack of transportationall
existed at time of final custody order.
4. Infants.
Party seeking change in child custody must show that circumstances have substantially changed since most recent custodial order,
and events that took place before proceeding are inadmissible to establish change of circumstances.
5. Divorce; Husband and Wife.
Alleged oral agreement which conditioned divorce decree's award of primary custody of child to mother upon mother's getting help
for her yelling, not living in California, and giving father greater visitation than that provided for in divorce decree involved issues of
such magnitude that agreement should have been reduced to writing, and alleged oral agreement should not have been
accepted by trial judge in change of custody proceeding as placing conditions on mother beyond those
stated in parenting plan and divorce decree.
agreement should not have been accepted by trial judge in change of custody proceeding as placing conditions on mother beyond those
stated in parenting plan and divorce decree.
OPINION
Jayme and Steve Hopper divorced in August, 1995. The decree of divorce vested primary
physical custody of Steve and Jayme's six-year-old daughter, Anna Hopper, with Jayme. In
February, 1996, following a change of custody hearing, the trial court concluded that Steve
had shown that a material change in circumstances justified switching custody from Jayme to
him, and that it would be in Anna's best interest to live with Steve. We conclude that the trial
court erred in changing custody from Jayme to Steve because no evidence of changed
circumstances existed.
FACTS
Jayme and Steve were married in California on July 20, 1989, and their daughter, Anna,
was born August 17, 1989. Jayme, Steve, and Anna had lived in Nevada since 1992. Jayme
and Steve separated on October 18, 1994, and around that time Jayme and Anna moved to
California; Jayme and Steve dispute whether or not Jayme had Steve's consent to take Anna
out of Nevada. On November 22, 1994, Steve filed for divorce and on November 28, 1994,
he petitioned the court for (among other things) temporary physical custody, temporary child
support, and an order directing Jayme to return Anna to Nevada. In support of his motion,
Steve alleged that Jayme had been physically and verbally abusive to Anna since 1991.
After a series of continuances due to an apparent inability to serve Jayme with process, the
parties came before the district court on January 17, 1995. At this time Steve and Jayme were
referred to the Family Mediation and Assessment Center (FMAC) for a marathon conflict
resolution to negotiate a parenting plan. This attempt at mediation was unsuccessful so the
matter was set for a January 24, 1995 evidentiary hearing, wherein it would be determined
whether Jayme should return Anna to Nevada. At the hearing, Steve testified that Jayme had
been Anna's primary caretaker throughout the marriage. Upon the conclusion of the hearing,
the court ordered Jayme to return Anna to Nevada, but provided that if Jayme accompanied
Anna, Jayme would be awarded temporary primary physical custody. In ordering Jayme to
return to Nevada, the court noted that Jayme "is unemployed, has no transportation, and
has not demonstrated a desire or intent to maintain a relationship between [Steve] and
[Anna]."
is unemployed, has no transportation, and has not demonstrated a desire or intent to maintain
a relationship between [Steve] and [Anna].
Subsequently, Steve and Jayme entered into a Parenting Plan in which Steve agreed to
Jayme having primary custody of Anna, subject to his specified visitation rights. However,
when the parties presented the plan to the court on May 3, 1995, Steve had a change of heart
and repudiated the plan, claiming that he did not fully understand the plan in its entirety. In
response, the court ordered another full assessment with FMAC, but ordered that the rejected
parenting plan govern the terms of visitation in the interim.
On August 2, 1995, Steve and Jayme informed the court that they had resolved all
outstanding issues and that they were ready to prove it up and get . . . divorced. At this
time, the parties filed a second parenting plan which also provided that Jayme would have
primary physical custody of Anna and stipulated that Jayme could return to California with
Anna.
1
Subsequently, the court entered a formal Decree of Divorce, filed August 11, 1995.
Prior to entry of the divorce decree, Jayme's father, Allen Katzman, and step-mother,
Elizabeth Katzman, filed a motion to establish visitation with Anna. Jayme opposed the
motion on procedural and substantive grounds. The court heard the grandparents' motion for
visitation on August 9, 1995, and referred the matter to Family Specialist, Marjorie DiOrio.
By a report dated August 24, 1995, DiOrio stated that there was nothing found that would
prohibit Allen and Elizabeth Katzman from spending time with their granddaughter, Anna
and further stated, without elaboration, that she was very concerned that Jayme did not
mediate in good faith and that it would be in Anna's best interest for an assessment to be
conducted. At a September 6, 1995 hearing to review DiOrio's FMAC report, Elizabeth and
Allen's attorney, purportedly acting on Steve's behalf, advised the court that Steve wanted a
second full FMAC assessment, as recommended by DiOrio. Accordingly, the court ordered
the second assessment and set the matter for a January 8, 1996 hearing to review the results.
After hearing argument regarding the completed second FMAC assessment report, the
court stated:
I share the concerns of that [sic] are raised in the FMAC report. I don't like one, the
change in the disposition or demeanor of the child and coupled withif not the
alienation, I guess the frustration of the relationship between the child and the
father.
__________

1
Jayme and Anna returned to an apartment in Hollywood, California, where they had lived before Jayme had
been ordered to return Anna to Nevada, prior to entry of the divorce decree.
tion, I guess the frustration of the relationship between the child and the father. Because
the possibility would involve a change of custody, I'm not going to do that absent a
hearing.
An evidentiary hearing on the issue of changing primary physical custody of Anna from
Jayme to Steve was held on February 1, 8, and 9, 1996. Jayme, her sister, Tina Katzman, their
natural mother, and Jayme's cousin testified on Jayme's behalf, while Steve, DiOrio, and
Allen testified in support of changing custody to Steve.
At the custody hearing, DiOrio testified extensively on Jayme's tendency to yell and
scream at Anna. Steve testified that Jayme's yelling had always been a problem, and stated
that the only reason he had accepted the second parenting plan and divorce decree vesting
Jayme with primary physical custody was because Jayme had orally promised to get help for
her yelling. He also claimed that Jayme had promised that she would not live in Hollywood
with Anna, and that she would allow him to visit Anna more often than was set forth in the
divorce decree.
On February 15, 1996, the court issued a Minute Order stating, in pertinent part, that:
While the Court may not have ruled initially in [Jayme's] favor had the issue of
custody been contested, an order addressing the custody was nevertheless entered. The
court must necessarily consider Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968),
and determine whether [Steve] has met the requisite burden thereby entitling him to the
relief requested.
. . . .
The evidence clearly showed that [Jayme] had a problem with her temper and
corresponding behavior towards Anna . . . . Such behavior clearly has an effect on a
child and continued exposure to such an environment is not in a child's best interest.
The Court finds [Steve] was in fact concerned with this and, although not written, was
told by [Jayme] that counseling would be obtained so as to alleviate this concern. In
addition, [Steve] was told his contact and involvement with the minor child would be
greater than that which was set forth in the Parenting Plan. Notwithstanding the above
representations, they were not complied with.
This Court further finds that [Jayme's] actions demonstrate a continuing problem
with her disciplining and interaction with the minor child. . . . The Court finds that
[Jayme] does not encourage any type of relationship between [Jayme's] father and the
child as well. Additionally, the fact that [Jayme's] vehicle was, and continues to be,
inoperable, is suspect at best.
is suspect at best. This clearly renders any exercise of visitation more difficult.
. . . The distance now between the parties, coupled with the frustration of
maintaining a relationship between [Steve] and his child are additional changes
recognized by this Court. Lastly, the Court cannot ignore the environment and
circumstances the child has been subjected to and continues to endure while in
[Jayme's] custody.
. . . .
Based upon the above, the Court finds there to be a material change of circumstances
and that a change of custody is in fact in the best interest of the minor child.
A written order incorporating the minute order was issued on February 23, 1996. Jayme
appeals from this order changing primary physical custody of Anna from her to Steve.
DISCUSSION
[Headnotes 1-3]
A change in custody is warranted only when: (1) the circumstances of the parents have been materially altered; and (2) the child's
welfare would be substantially enhanced by the change.'
2
Wiese v. Granata, 110 Nev. 1410, 1413, 887 P.2d 744, 746 (1994) (quoting
Murphy v. Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1968)). It is presumed that the trial court has properly exercised its discretion in
determining a child's best interest, and a trial court's determination of custody will not be disturbed unless there has been a clear abuse of
discretion, so long as this court is satisfied that such determinations were made for appropriate reasons. Sims v. Sims, 109 Nev. 1146,
1148, 865 P.2d 328, 330 (1993); Primm v. Lopes, 109 Nev. 502, 504, 853 P.2d 103, 104 (1993); Atkins v. Atkins, 50 Nev. 333, 338-39,
259 P. 288, 289 (1927). We conclude that the trial court abused its discretion in determining that the circumstances of the parents had been
materially altered since entry of the final custody order (the divorce decree) in August, 1995.
__________

2
We distinguish Truax v. Truax, 110 Nev. 437, 438-39, 874 P.2d 10, 11 (1994), wherein this court explained that the Murphy change
of circumstances criterion would not apply to the modification of joint physical custody orders. Where custody is shared, the best interest of
the child is the single dispositive factor governing modification. Id.; codified at NRS 125.510(2).
Steve and Jayme's divorce decree provides that they shall share joint legal care of Anna, but that Jayme shall have primary physical
custody. Therefore, we interpret the decree as requiring a showing of both of the Murphy criteria to justify a change of custody.
The circumstances of the parents had not been materially altered so as to justify a change of
custody
[Headnote 4]
To establish this criterion, [t]he moving party in a custody proceeding must show that circumstances . . . have substantially changed
since the most recent custodial order. . . . Events that took place before the proceeding [are] inadmissible to establish a change of
circumstances.' McMonigle v. McMonigle, 110 Nev. 1407, 1408, 887 P.2d 742, 743 (1994) (quoting Stevens v. Stevens, 810 P.2d 1334,
1336 (Or. Ct. App. 1991)).
Primary physical custody was awarded to Jayme pursuant to the August 11, 1995 divorce decree. Jayme argues that the district court's
stated grounds for finding a material change in circumstanceJayme's excessive yelling at Anna, Jayme's failure to facilitate a relationship
between Anna and Steve, and Jayme's lack of transportationall existed at the time of the most recent custodial order, the August 11, 1995
divorce decree. We agree.
Steve referred to Jayme's verbal abuse of Anna in his November, 1994 motion seeking the return of his daughter from California. At
the trial below, Steve testified that Jayme's yelling and excessive discipline had been a major problem during their marriage and that he
believed that Jayme needed psychiatric help for her yelling when he met her seven years ago. Clearly, Steve was aware of Jayme's alleged
inability to control her anger around Anna, nonetheless, he agreed, pursuant to the second parenting plan and divorce decree, that Jayme
should have primary physical custody of Anna. Likewise, the trial court's February 3, 1995 order that Anna be returned to Nevada professed
that Jayme had no transportation and was not facilitating a relationship between Anna and Steve. Nonetheless, the trial court improperly
relied on these circumstances as grounds for finding a material change justifying a change of custody from Jayme to Steve one year later.
[Headnote 5]
Furthermore, we conclude that Steve's claim, and the trial court's finding, that the divorce decree's award of primary custody to Jayme
was in some way conditioned upon an alleged agreement between the parties that Jayme would get help for her yelling, would not live in
Hollywood, and would give Steve greater visitation than that provided for in the divorce decree, is not supported by any evidence.
Steve signed two parenting plans (although the first one was repudiated, the second accepted version was nearly identical to the first)
and accepted the divorce decree, none of which made any mention of the alleged supplemental oral agreement of the parties.
parties. While avoiding a protracted analysis of the application of the parol evidence rule (not
raised by the parties), we conclude that the alleged oral agreement involved issues of such a
magnitude that they should have been reduced to writing in one of the three documents which
all granted Jayme primary physical custody of Anna; the last two (the second parenting plan
and the divorce decree) expressly provided that Jayme could move with Anna to California.
Notwithstanding the high level of deference to be afforded to the trial judge's conclusions
following review of the testimony and evidence, we conclude that it was error for the judge to
accept the alleged oral agreement between Jayme and Steve as placing conditions on Jayme
beyond those stated in the parenting plan and decree of divorce. Cf. Khaldy v. Khaldy, 111
Nev. 374, 377, 892 P.2d 584, 586 (1995) (Although it might be desirable for a child support
obligor to raise voluntarily his/her child support payments beyond that ordered by the district
court, it is unrealistic to expect such behavior and unfair to penalize the obligor for failing to
live up to this ideal.).
Accordingly, we conclude that there was no material change in the parents' circumstances
that would warrant changing Anna's custody from Jayme to Steve. Because Steve failed to
satisfy this necessary first prong of the Murphy standard governing changes of custody, we
need not reach the other issues raised on appeal.
CONCLUSION
We conclude that, as a matter of law, the change of custody was inappropriate because
there were no material changes in Jayme and Steve's circumstances in the time between the
initial award of primary custody to Jayme and the change of custody to Steve, some six
months later. Therefore, we conclude that the trial court abused its discretion in changing
custody of Anna from Jayme to Steve. Accordingly, we reverse the lower court's order, and
remand this case to the district court with instructions to reinstate Jayme as primary physical
custodian of Anna.
3
Shearing, C. J., and Young, J, concur.
The trial court made a specific finding that there was a material change of circumstances
relating to the custody of Anna. The trial court is, of course, in a far better position than this
appellate court to judge whether there had been such a change. It is only in rare and
exceptional cases that an appellate court can rightly involve itself in the subtle
decision-making processes employed by a trial court in making judgments relating to
when custodial circumstances have changed and when they remain the same.
__________

3
rightly involve itself in the subtle decision-making processes employed by a trial court in
making judgments relating to when custodial circumstances have changed and when they
remain the same. This is not one of those cases.
As I see the facts in this case, there is really very little question but that there has been a
material change of circumstances. As evidenced in the majority opinion itself, the trial judge
attended meticulously to the need for finding a material change of circumstances before
amending the custody decree. In addition to making specific findings of the escalating,
continuing problem with [the mother's] disciplining and interaction with the minor child,
the court specifically noted additional changes in circumstances that centered on evidence
in the hearing that the mother does not encourage any type of relationship between . . . [the]
father and the child (described by the trial judge as a frustration of the relationship between
the child and the father). Added to this is the court's finding that there was now (as
distinguished from before) a difficult-to-overcome distance . . . between the parties and
the court's finding that circumstances the child has been subjected to and continues to endure
while in [the mother's] custody were not in the child's best interests.
The mother's frustration of the relationship between the child and her father is perhaps
the most visible of many palpable changes in custodial circumstances that are manifested in
this record. As pointed out in Mosley v. Figliuzzi, 113 Nev. 51, 930 P.2d 1110 (1997), NRS
125.480(3)(a) requires that the court shall consider which parent is more likely to allow the
child to have frequent associations and a continuing relationship with the noncustodial
parent. There is nothing in the record that would cast doubt on the trial judge's finding that
the mother's frustration of the father-daughter relationship should, in fact, be characterized as
a material change in circumstances. The mother's frustration of the father-daughter
relationship was a late-developing condition that arose after the entry of the previous decree;
however, even if it were a condition that, although present earlier, became materially
aggravated during the interim period, the trial judge was still warranted in concluding that
this kind of change, of itself, justified a change of custody in the best interests of the child.
There is ample evidence in the record that there was a steady degradation of the child's
welfare as she continued to live with her mother. It is plain that there are new changed
circumstances that warranted the trial court's decision that a material worsening of previous
conditions justified the court's intervention in the best interests of the child. For example, the
trial court would have been justified in concluding that the mother's constant yelling and
screaming at her daughter continued to escalate until it finally reached a level of
intolerability that had an adverse effect on the welfare of the child.
stant yelling and screaming at her daughter continued to escalate until it finally reached a
level of intolerability that had an adverse effect on the welfare of the child. This alone could
be seen as being a material change of circumstances. Similarly, even if there had been
previous frustration of the father-daughter relationship, it would be a change of
circumstances if these frustrations had become more and more intense until they materially
and adversely affected the child's welfare. The changes in circumstances are so apparent and
so numerous in this case that, in my view, it would have been error for the trial judge not to
have found that a material change in circumstances existed.
1
It is obvious from the record that the trial judge was very much concerned about an
ever-changing, ever-worsening condition in the life of the child, a changed situation which
culminated in custodial conditions that gave the judge no choice other than to change
custody. The trial judge was there. The trial judge lived with this case over a period of time
and understood the children and the parents. The trial judge knew the parties and heard their
testimony and the testimony of their witnesses. The trial judge knows this case; we do not.
For this court to step in, a year and one-half later, and contradict the trial judge's
well-supported findings, and tell him that there were, in fact, no material changes in the
circumstances of the custodial environment is, in my estimation, a gross abuse of appellate
power. I dissent from the judgment of this court that returns this poor child to her mother, to
live under conditions which the trial judge rightly concluded were not in the child's best
interests.
__________

1
One of the persuasive indications of change in this case is found in the testimony of family specialist
Marjorie DiOrio, who testified that the child's emotional state has changed over time from the beginning when I
first saw her to the last time I saw her. . . . She seems more agitated and more tense, more fragile over all. (My
emphasis.)
____________
113 Nev. 1147, 1147 (1997) Real Estate Fund v. Buhecker
ADMINISTRATOR OF THE REAL ESTATE EDUCATION, RESEARCH AND
RECOVERY FUND, in His Official Capacity, NEVADA STATE REAL ESTATE
DIVISION, STATE OF NEVADA, Appellant, v. VAL S. BUHECKER and TERRI L.
BUHECKER, Respondents.
No. 28033
October 1, 1997 945 P.2d 954
Appeal from an order of the district court granting summary judgment in an action seeking
reimbursement from a state fund for fraudulent real estate practices. Eighth Judicial District
Court, Clark County; Don P. Chairez, Judge.
Husband and wife, joint owners of property that was lost in fraud scheme by two real
estate agents, filed petition for recovery from Real Estate Education, Research and Recovery
Fund (ERRF), after obtaining uncollectible default judgments against agents. The district
court granted summary judgment to plaintiffs, finding that each of them were entitled to
recover $10,000 against each agent. ERRF appealed. The supreme court held that joint
owners of property with joint judgments against two agents were entitled to only two awards
from ERRF.
Frankie Sue Del Papa, Attorney General, Joe S. Rolston, IV, Deputy, Carson City, for
Appellant.
Garcia-Mendoza & Associates, and Luther Snavely, III, Las Vegas, for Respondents.
1. Brokers; Husband and Wife.
Husband and wife, as joint owners of property that was lost in real estate fraud scheme perpetrated by two real estate agents,
shared common claims for relief against each real estate agent, and thus their uncollectible default judgments against agents were not
separable between them, but were joint in nature, therefore entitling them to only two awards up to statutory limit from Real Estate
Education, Research and Recovery Fund (ERRF), one for each original defendant. NRS 645.844(1).
2. Statutes.
Intent of legislature is controlling factor in statutory interpretation, and amendment of statute is persuasive evidence of what
legislature intended by original statute.
3. Brokers.
Liability of Real Estate Education, Research and Recovery Fund (ERRF) is specifically limited to set statutory amount per
judgment that remains unpaid, not same amount per claimant or cause of action. NRS 645.844(1).
OPINION
Per Curiam:
From 1976 to 1992, respondents Val S. Buhecker and Terri L. Buhecker (the
Buheckers), husband and wife, owned and resided on a five-acre parcel of land in Clark
County, Nevada. However, in 1992, several individuals, including two licensed Nevada real
estate agents, defrauded the Buheckers out of the equity in their property through a real estate
fraud scheme. The property was foreclosed upon, and the Buheckers were evicted.
The Buheckers filed a complaint and on December 19, 1994, received a default judgment
against the two licensed real estate agents, Stanley E. Knobeloch and Magdalene S. Higgins.
The district court awarded the Buheckers $280,000.00 in general damages, $350,000.00 in
punitive damages, $35,000.00 in attorney's fees, and $166.00 in costs, for a total judgment of
$665,166.00. However, writs of execution against both agents were returned unsatisfied.
Further, asset checks on the agents revealed no assets which could be levied upon to satisfy
the judgment. Both agents later filed Chapter 7 bankruptcies.
On July 6, 1995, the Buheckers filed their petition for recovery from the Real Estate
Education, Research and Recovery Fund (ERRF) with the district court. The ERRF allows
petitioners to recover money pursuant to NRS 645.844(1), which states in relevant part:
[W]hen any person obtains a final judgment in any court of competent jurisdiction
against any licensee or licensees under this chapter, upon grounds of fraud,
misrepresentation or deceit with reference to any transaction for which a license is
required under this chapter, that person, upon termination of all proceedings, including
appeals in connection with any judgment, may file a verified petition in the court in
which the judgment was entered for an order directing payment out of the fund in the
amount of the unpaid actual damages included in the judgment, but not more than
$10,000 per judgment. The liability of the fund does not exceed $20,000 for any person
licensed pursuant to this chapter.
(Emphasis added.)
The Buheckers requested $40,000.00, claiming that each of them had separate judgments
against each of the two licensed real estate agents. Appellant defended, arguing the
Buheckers' recovery was limited to $10,000.00 or $20,000.00, but not $40,000.00.
On October 2, 1995, the Buheckers filed a motion for summary judgment. Appellant again
defended, arguing the statutory language limited the Buheckers' recovery to $10,000.00 or
$20,000.00 because they received one or two judgments, but not four.
On December 5, 1995, the district court granted summary judgment in favor of the
Buheckers, finding each of them was entitled to recover $10,000.00 against each of the real
estate agents, for a total recovery of $40,000.00 from the ERRF. Appellant filed its notice of
appeal on December 26, 1995.
DISCUSSION
Appellant contends the district court erred in determining what a judgment was in the
context of NRS 645.844(1). Appellant asserts that, at most, two and not four judgments exist
against the two real estate agents. The Buheckers argue that NRS 645.844(1) is a remedial
statute and should be construed liberally.
Previous application of NRS 645.844(1)
The Buheckers urge this court to liberally construe NRS 645.844(1) so as to allow them a
maximum amount of recovery. They cite to Colello v. Administrator, Real Estate Division,
100 Nev. 344, 347, 683 P.2d 15, 16 (1984), where we held that the primary purpose of the
ERRF is to aid victims of real estate fraud. In Colello, we also held statutes with a protective
purpose should be liberally construed in order to effectuate the benefits intended to be
obtained. Id. at 347, 683 P.2d at 17. However, the issue considered in Colello is
distinguishable from the current appeal, and the underlying facts of Colello support the
interpretation that joint owners of property receive one judgment.
In Colello, we considered whether a victim's $10,000.00 recovery under the ERRF waived
the right to recover any remaining judgment should the original defendants later acquire
collectable assets. Id. at 346, 683 P.2d at 16. The district court found that once a claimant
received the $10,000.00 under the ERRF, any rights to excess judgment were assigned to the
Real Estate Division. Id. We reversed and concluded that a claimant had the right to collect
any remaining judgment should the original defendants later become solvent. Id. at 348, 683
P.2d at 17.
However, it is noteworthy that the claimants in Colello were husband and wife and joint
owners of the property. They had a judgment of $46,394.95 against one real estate licensee.
Id. at 346, 683 P.2d at 16. The amount awarded to the couple was $10,000.00. Id.
[Headnote 1]
Consistent with Colello is the principle of law that a judgment in favor of joint plaintiffs should be joint if their cause of action is
joint. 49 C.J.S. Judgments 33 (1997). Here, as in Colello, the Buheckers shared common claims for relief against each of the real estate
agents. There is no indication that Mr. Buhecker's causes of action are somehow different and separate from Mrs. Buhecker's. This is
supportive of a finding that the Buheckers' judgment is not separable between them, but is joint in nature, therefore affording them two
awards of $10,000.00 from the ERRF, one for each original defendant.
Legislative history
Appellant argues the legislative history of NRS 645.844(1) illustrates that the Nevada Legislature intended recovery to be limited to
$10,000.00 per final judgment in cases of multiple plaintiffs. The Buheckers cite several other states' real estate recovery funds and case
law, arguing this court should liberally construe NRS 645.844(1) so as to allow maximum recovery. We find that legislative history of the
statute is persuasive of appellant's interpretation and that other states' recovery fund provisions are distinguishable for purposes of this case.
[Headnote 2]
We have held that the intent of the legislature is the controlling factor in statutory interpretation. Cleghorn v. Hess, 109 Nev. 544,
548, 853 P.2d 1260, 1262 (1993). Further, the amendment of a statute is persuasive evidence of what the legislature intended by the
original statute. Sheriff v. Smith, 91 Nev. 729, 734, 542 P.2d 440, 443 (1975).
In 1985, the Nevada Legislature amended NRS 645.844(1). S.B. 268, 63d Leg. (Nev. 1985). The amount recoverable from the fund
was changed to $10,000.00 per judgment, rather than per claimant. S.B. 268, 63d Leg. (Nev. 1985). This is evidence that the legislature
intended to limit joint claimants' recovery to $10,000.00 per judgment they received, and not to each claimant. Thus, the number of
claimants in a joint action is irrelevant; only the number of judgments they received together is determinative of their recovery under the
ERRF. Under the Buheckers' analysis, judgment is each plaintiff's separate right to recover, which is precisely the interpretation S.B. 268
rejected. Therefore, we conclude that the Buheckers could not have four judgments against only two real estate agents.
The only reference to S.B. 268 outside the actual amendment is an overview of the bill prepared by then Administrator of the Real
Estate Division, Lynn Luman (Luman). Minutes of the Assembly Committee on Commerce, 63d Leg. at 2 {Nev.,
Assembly Committee on Commerce, 63d Leg. at 2 (Nev., May 22, 1985). Luman described
the amendment to NRS 645.844(1) as a clarification of the liability limit of the ERRF. Id.,
Exhibit C at 3. Thus, the amendment was not a change in the legislature's intent, but a
clarification of the statute's liability limitations.
[Headnote 3]
The Buheckers argue that California, Colorado, and Hawaii cases applying similar statutes are supportive of their position that the
statute should be liberally interpreted. Indeed, we also have stated that the ERRF recovery statute should be interpreted liberally. See
Colello, 100 Nev. at 347, 683 P.2d at 17. However, as discussed above, the actions of the Nevada Legislature and our prior holdings make
it clear that the liability of the fund is to be specifically limited to $10,000.00 per judgment, not $10,000.00 per claimant or cause of action.
Additionally, the district court's finding that each of the Buheckers had separate judgments against the real estate agents does not
comport with logic. Had either of the real estate agents been able to appeal the judgment, that appeal would not be only from Mr.
Buhecker's judgment or Mrs. Buhecker's judgment. Rather, any appeal would have been from the final judgment of the Buheckers together
against either of the agents. Therefore, we conclude the Buheckers jointly had judgments against each of the two real estate agents, for a
total recovery from the ERRF in the amount of $20,000.00.
CONCLUSION
Based on the reasoning discussed above, we reverse the district court's summary judgment order and remand for judgment to be
entered for the Buheckers to recover a total of $20,000.00 from the ERRF.
____________
113 Nev. 1151, 1151 (1997) NGA #2 Ltd. Liab. Co. v. Rains
NGA #2 LIMITED LIABILITY COMPANY, Appellant, v. ROBERT O. RAINS, JR.,
Trustee of the Rains 1992 Trust Dated December 14, 1992, Respondent.
No. 28246
October 1, 1997 946 P.2d 163
Appeal from an order of the district court denying appellant's motion for summary
judgment, granting respondent's motion for summary judgment and granting respondent's
motion to expunge lis pendens. Eighth Judicial District Court, Clark County; John S.
McGroarty, Judge.
Purchaser sued vendor for specific performance of real estate purchase agreement and filed
notice of lis pendens. The district court granted vendor's motions for summary judgment and
expungement of lis pendens, and purchaser appealed. The supreme court held that: (1) vendor
made prima facie showing that purchaser had breached contract and excused vendor's duty to
perform, but (2) fact questions regarding estoppel and waiver precluded summary judgment,
and (3) lis pendens should not have been expunged.
Goold Patterson Devore & Rondeau, Las Vegas; Curran & Parry, Las Vegas, for
Appellant.
Marquis & Aurbach and John D. Carver and Terry A. Coffing, Las Vegas, for Respondent.
1. Judgment.
In deciding whether summary judgment is appropriate, evidence must be viewed in light most favorable to party against whom
summary judgment is sought, and factual allegations, evidence, and all reasonable inferences in favor of that party must be presumed
correct. NRCP 56(c).
Construction of contractual term is question of law as to which reviewing court is obligated to make its own independent
determination, and court should not defer to trial court's determination.
3. Contracts.
In interpreting contract, court must effectuate intent of parties, which may be determined in light of surrounding circumstances if
not clear from contract itself.
4. Deposits and Escrows.
Parties to real estate purchase agreement considered all contingencies removed when they became bound by contract after
expiration of due diligence period, and recordation of parcel map was merely condition precedent to closing, so that 90-day deadline
for closing of escrow was not extended by failure to record map.
5. Contracts.
Condition precedent to obligation to perform calls for performance of some act after contract is entered into, upon which
corresponding obligation to perform immediately is made to depend.
Where escrow agreement specifies definite time for performance, performance must be made within time limit of agreement, and
escrow agent is without power to deliver deed thereafter.
Under real estate purchase agreement providing that time was of the essence, purchaser's failure to record parcel map by end of
grace period for closing of escrow, and failures thereafter to obtain extensions of grace period, operated prima facie as discharge of
vendor's duty to convey property.
8. Estoppel.
Equitable estoppel operates to prevent party from asserting legal rights that, in equity and good conscience, they
should not be allowed to assert because of their conduct.
rights that, in equity and good conscience, they should not be allowed to assert because of their conduct.
9. Estoppel.
Elements of equitable estoppel are: party to be estopped must be apprised of true facts; he must intend that his conduct shall be
acted upon or must so act that party asserting estoppel has right to believe it was so intended; party asserting estoppel must be ignorant
of true state of facts; and he must have relied to his detriment on conduct of party to be estopped.
10. Judgment.
In action for specific performance of real estate purchase agreement which was contingent on recordation of parcel map by
purchaser before date set for closing, fact questions as to whether vendor was apprised of true facts concerning purchaser's belief
regarding validity of agreement after expiration of deadline for closing of escrow, and whether vendor knew purchaser would rely to his
detriment on vendor's silence, precluded summary judgment on defense that vendor was estopped to assert that purchaser breached
contract by not timely recording parcel map.
11. Contracts.
Individual who voluntarily prevents occurrence of condition established for his or her benefit is estopped from seeking relief from
contract on grounds that condition precedent to his obligation failed to occur.
12. Judgment.
In action for specific performance of real estate purchase agreement which was contingent on recordation of parcel map by
purchaser before date set for closing, fact question as to whether vendor failed to cooperate and assist purchaser in obtaining approval
of parcel map from city precluded summary judgment on defense that vendor was estopped to assert that purchaser breached contract
by not timely recording parcel map.
Performance of condition of escrow may be waived, and breach of condition of delivery or closure of escrow can be ratified
directly or indirectly by escrow depositor.
14. Judgment.
Fact question as to whether vendor abandoned escrow agreement and waived strict compliance with its terms precluded summary
judgment on defense to specific performance based on purchaser's failure to timely record parcel map.
15. Lis Pendens.
Purchaser seeking specific performance of real estate purchase agreement was entitled to file lis pendens; it seemed likely that
purchaser would be able to perform any condition precedent to transfer of ownership, purchaser had fair chance of success, and
hardship on purchaser from expungement of lis pendens would be greater than on vendor. NRS 14.015(2), (3).
OPINION
Per Curiam:
In December of 1994, Robert Rains contracted to sell a parcel of property in Henderson,
Nevada, to Notre Dame Development, Inc. (hereinafter Notre Dame). The contract
consisted of an "Offer and Acceptance Agreement" as well as a "Counter Proposal."
Offer and Acceptance Agreement as well as a Counter Proposal.
The agreement provided that time was of the essence and that Rains would retain two and
one-half acres of the parcel. It also stated that [e]xact dimensions and legal description and
recordation of a parcel map, at Buyer's expense, to be completed prior to the Close of
Escrow. The parties also agreed that escrow would close 90 days following Buyer's
removal of all contingencies.
The contract provided for a due diligence period during which Notre Dame had the
opportunity to investigate all matters relating to title of the property, the uses to which it may
be put, to conduct and review all tests and surveys, and to institute and complete all studies . .
. . Under that clause, Notre Dame could
terminate [the] Agreement for any reason whatsoever by delivering a written notice of
termination to the escrow officer, within (45) days from the Buyer's receipt of a
preliminary title report and commitment in Buyer's name. . . . If the Buyer does not give
notice of termination on or before the end of the Due Diligence Period the Buyer shall
be deemed to have approved all tests and investigations undertaken by the Buyer and
the parties shall thereafter be obligated to perform the terms and conditions of this
Agreement and the title company shall pay and release to the Seller the earnest money
in the amount of $10,000.
Both parties agree that the due diligence period expired on April 12, 1995, at which time
they became obligated to perform the terms and conditions of [the] Agreement. The escrow
company then sought authorization to disburse the earnest money deposit. The written
authorization included language stating that Buyer and Seller acknowledge . . . the
recordation of a parcel map at Buyer's expense is a condition precedent to the close of
escrow. Both Notre Dame and Rains signed the Authorization. Under the contract, Notre
Dame had the option of extending the close of escrow for four thirty-day periods for
$10,000.00 deposit per extension.
The contract provided that Rains was to cooperate and assist Buyer in obtaining tentative
and final map approvals from the City of Henderson. On February 22, 1995, the president of
Notre Dame, Andy Flaherty, wrote a letter to Rains informing him that Flaherty would like to
start on a parcel map as soon as Rains notified him of the parameters of the 2.5 acres that
Rains wished to retain. Flaherty insists that Rains did not respond to this request; thus, he sent
further requests for the dimensions on March 24, 1995, and again on March 31, 1995. He
claims that he also made several verbal requests for the dimensions. Rains contends that he
verbally responded to each of Notre Dame's requests.
contends that he verbally responded to each of Notre Dame's requests. He claims he
explained to Flaherty that the retained land would be bounded by Stephanie to the East, and
was to be configured so as to afford the maximum frontage on Stephanie, between the
Northeast property corner and Pantera Street, with 2.5 net acres.
On May 26, 1995, Notre Dame prepared a parcel map and NGA #2 Limited Liability
Company (hereinafter NGA), sent it to Rains for his approval.
1
The map indicated that
Rains would retain 2.5 acres from the gross acreage of the property. On July 5, 1995, Rains
objected to the map and provided specific dimensions of the portion of the property he
wished to retain.
2
On July 6, 1995, Flaherty wrote a letter to Rains stating:
As we discussed yesterday, although our agreement provides that escrow shall close
[90] days
3
after the removal of all contingencies (the recording of the parcel map being
one such contingency), NGA shall close escrow as soon as practical after it is notified
that the parcel map has recorded. Any delay in closing escrow is only due to delays in
preparing and processing the parcel map, which delays have been beyond our control.
Therefore, assuming that the escrow closes as provided above, no formal extension of
the escrow nor the payment of any extension fees is currently required. Of course, if
NGA requires any extension of escrow after the parcel map is recorded, it shall pay the
necessary extension fees required by the Agreement.
Rains did not respond to the letter.
On July 20, 1995, NGA submitted the parcel map to the City of Henderson (hereinafter
the City). The City returned the map to NGA and requested certain changes. NGA had the
changes made and sent the map to Rains on September 26, 1995, for his signature. Rains
signed the map, and it was resubmitted to the City on September 28, 1995.
On November 1, 1995, the City requested additional changes. These were made and the
map was submitted to the City for the third time on November 2, 1995.
__________

1
On May 19, 1995, Notre Dame assigned all of its rights, title and interest in the contract to NGA. Flaherty
remained with NGA and continued to oversee the transaction.

2
Rains claims he sent the revised map to NGA on June 2, 1995, and cites Volume 8 of the record for support.
However, the record on appeal is comprised of only three volumes. Further, NGA points out that even though
the actual map is dated June 2, the stamp on the facsimile transmission reads July 5, 1995.

3
NGA mistakenly stated in the letter that escrow shall close 45 days after the removal of all contingencies.
These were made and the map was submitted to the City for the third time on November 2,
1995. On November 6, 1995, Rains directed the escrow agent to immediately cancel escrow.
He claimed that NGA breached the contract because escrow failed to close in accordance
with the agreement. On November 8, 1995, Flaherty directed the agent to continue with the
escrow. The agent then informed Flaherty and Rains that he would hold the file open until he
received mutually written instructions or a court order instructing him on the conditions under
which he was to proceed.
On December 8, 1995, NGA was notified that the map had been approved by the City and
would be released for recordation as soon as an improvement bond was posted. NGA's
general manager stated that, given the dispute, the bond would be posted upon a judicial
declaration that the contract was enforceable.
NGA claims that it expended time and money on the property after the date Rains claims
escrow should have closed. It created a parcel map, and worked to get the property rezoned as
of August 1995. NGA claims that it also investigated and remedied an improper excavation
that took place on the property, and that it informed Rains of its post-July 12th activity, either
verbally or by fax, and Rains did not object.
NGA filed a complaint in district court seeking specific performance and then filed a
notice of lis pendens in the Clark County Recorder's Office. The district court determined that
NGA breached the contract and granted Rains' countermotion for summary judgment. It also
granted Rains' motion to expunge the lis pendens.
DISCUSSION
NGA claims that the district court improperly granted Rains' motion for summary
judgment because there were genuine issues of material fact to be resolved at trial. We agree.
NRCP Rule 56(c) provides that summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.
The burden of establishing the non-existence of any genuine issue of fact is on the movant.
Pacific Pools Construction Co. v. McClain's Concrete Inc., 101 Nev. 557, 559, 706 P.2d 849,
851 (1985). The burden is discharged by demonstrating that there is an absence of evidence
supporting one or more of the prima facie elements of the non-moving party's case. Celotex
Corp. v. Catrett, 477 U.S. 317, 391 (1986).
[Headnote 1]
In deciding whether summary judgment is appropriate, the evidence must be viewed in the light most favorable to the party against
whom summary judgment is sought; the factual allegations, evidence, and all reasonable inferences in favor of that party must be presumed
correct. Ferreira v. P.C.H. Inc., 105 Nev. 305, 306, 774 P.2d 1041, 1042 (1989). A litigant has a right to a trial when there remains the
slightest doubt as to remaining issues of fact. Clauson v. Lloyd, 103 Nev. 432, 435, 743 P.2d 631, 632 (1987). However, the non-moving
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. Posadas v. City of Reno, 109 Nev. 448, 452, 851 P.2d 438, 442 (1993).
The contract contained a due diligence provision which allowed the buyer to terminate the agreement, with notice, anytime within
forty-five days from the Buyer's receipt of a preliminary title report and commitment in [the] Buyer's name. The parties concede that the
due diligence period expired and that they were bound by the contract on April 12, 1995.
The issues to be resolved on appeal thus center around three provisions: (1) that escrow would close 90 days following removal of all
contingencies; (2) that [e]xact dimensions and legal description and recording of a parcel map, at buyer's expense, [was] to be completed
prior to the Close of Escrow; and (3) that closing of escrow could be extended.
Because the agreement requires closing within ninety days following the removal of all contingencies, the issue is whether the failure to
record the map involved a contingency, or simply a condition precedent to closing.
NGA argues that recording the parcel map was a contingency to be removed before the ninety-day grace period could begin to run. It
also argues, in the alternative, that even if recordation cannot properly be interpreted as a contingency, the district court erred in applying
the law regarding conditions precedent. It claims that the contract contained a condition precedent (i.e., recordation of the map) that had not
yet been performed, and thus, escrow was not due to close.
Rains argues that recordation was not a contingency. He claims that all contingencies were removed at the expiration of the due
diligence period when the parties became bound by the contract. He contends that NGA had a duty at that point to either perform the
conditions precedent (recording the map) within the next ninety days or pay for an extension of the closing date. Thus, Rains argues that
NGA was obliged under the contract to record a map by July 12, 1995, or pay $10,000 for a thirty-day extension of the
closure date.
map by July 12, 1995, or pay $10,000 for a thirty-day extension of the closure date. Since
NGA did neither, Rains claims NGA breached the contract.
1. Was recordation a contingency or a condition precedent to closing?
The district court concluded that recordation of the map was not a contingency and, thus,
the ninety-day grace period began to run on April 12, 1995. It further concluded that NGA
breached the contract by failing to perform the condition precedent on or before July 12,
1995, the date set for closing.
[Headnotes 2, 3]
Construction 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. Clark Co. Public Employees v. Pearson, 106 Nev. 587, 590, 798 P.2d 136,
137 (1990). 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 . . . . Davis v. Nevada National Bank, 103 Nev. 220, 223, 737 P.2d 503,
505 (1987) (citations omitted).
[Headnote 4]
The parties in this case characterized recordation of the map in the April 12, 1995 Authorization to Disburse Funds, as a condition
precedent to closing. That description was made four months after they entered into the contract that specifically stated the ninety-day
grace period would begin to run after the removal of all contingencies. Thus, if the parties had originally intended for recordation to be a
contingency, they could have labeled it as such in the Authorization. Accordingly, we conclude that the parties considered all contingencies
removed when they became bound by the contract on April 12, 1995, and that the district court was correct in so finding.
2. Did the district court properly apply the law of conditions precedent?
NGA argues, in the alternative, that escrow can only close upon the performance of the condition precedent, irrespective of any time
limitation. Rains argues that the provision requiring recordation of the parcel map did not give NGA an unlimited amount of time to record
the map and circumvent the terms of the contract.
[Headnote 5]
A condition precedent to an obligation to perform calls for the performance of some act after a contract is entered into,
upon which the corresponding obligation to perform immediately is made to depend.
performance of some act after a contract is entered into, upon which the corresponding
obligation to perform immediately is made to depend. New Orleans v. Texas & Pacific
Railway, 171 U.S. 312, 333 (1897); see also 17A Am. Jur. 2d Contracts 469 (1997).
In Goldston v. AMI Investments, Inc., 98 Nev. 567, 655 P.2d 521 (1982), this court held
that:
[a] seller of land pursuant to a contract of sale is justified in cancelling the contract if
the purchaser has failed to perform a material part of the contract which is a condition
concurrent or precedent to the seller's obligation to perform. . . . Failure to tender timely
performance can constitute a material breach of contract. . . . Additionally, if neither
party tenders performance by the date set for closure under a contract that provides time
is of the essence, the duties of both parties are discharged by passage of that date.
Id. at 569, 655 P.2d at 523 (citations omitted).
[Headnote 6]
Where the escrow agreement specifies a definite time for performance, performance must be made within the time limit of the
agreement, and the escrow agent is without power to deliver a deed thereafter. Pothast v. Kind, 24 P.2d 771, 772 (Cal. 1933). It is well
settled that performance must be made within the time limit of the escrow agreement. Id.
[Headnote 7]
In this case, time was of the essence and NGA failed to timely record the parcel map before the date set for closing. Thus, under
Goldston, NGA's failure to record by July 12, 1995, and failures thereafter to obtain extensions, operated prima facie as a discharge of
Rains' duty to convey the property. See Roberts v. Osburn, 589 P.2d 985, 989 (Kan. Ct. App. 1979) (holding that legal title does not pass to
the grantee until all conditions are performed and the deed is released from escrow).
The issue then becomes whether NGA was relieved from complying with the July closing deadline under theories of waiver or estoppel.
Estoppel
[Headnote 8]
The doctrine of [e]quitable estoppel operates to prevent a party from asserting legal rights that, in equity and good conscience, they
should not be allowed to assert because of their conduct. Nevada State Bank v. Jamison Partnership, 106 Nev. 792, 799, 801 P.2d 1377,
1382 (1990).
NGA argues that there are questions of fact regarding whether Rains was estopped to
assert that it breached the contract. According to NGA, Rains remained silent after the July
deadline, and continued to act as if the contract had not been breached until he attempted to
cancel escrow in November. NGA also contends that the recordation delay was caused in part
by Rains' breaches of the contractual requirement that he assist in obtaining map approval
from the City. Thus, NGA argues that questions of fact exist as to whether Rains should be
estopped from claiming that NGA breached the contract.
1. Silence
[T]his court has noted that silence can raise an estoppel quite as effectively as can
words. Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 614, 655 P.2d 996, 998-99
(1982).
[Headnote 9]
The elements of estoppel are as follows:
(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 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.
Id. Whether these elements are present, so that the doctrine of equitable estoppel should be applied, depends upon the particular facts and
circumstances of a given case. Id.
[Headnote 10]
There is evidence that Rains knew NGA was working to record the map with the City after the July deadline. Rains admits that he
received NGA's July 6th letter stating its belief that escrow would not close until after it removed the contingency of recording the map.
Further, Rains signed the draft map in September of 1995 for resubmission to the City. Thus, there is a question of fact regarding whether
Rains was apprised of the true facts surrounding NGA's belief regarding the validity of the contract after the July deadline.
Additionally, because Rains admitted receiving the July 6th letter, but failed to respond, we conclude that whether Rains knew NGA
would act on his silence is also a question of fact. NGA also presented evidence that it was ignorant of the true state of facts and that it
relied on Rains' conduct to its detriment in expending time and money on the property after the July deadline.
We hold that NGA set forth prima facie evidence in support of each of the elements of its
estoppel theory. Thus, summary judgment was inappropriate.
2. Rains' Breach of Contract
NGA also claims Rains should be estopped from asserting its breach as a defense because
Rains failed to assist it in filing the map and actually caused its delay.
[Headnote 11]
[A]n individual who voluntarily prevents the occurrence of a condition established for his or her benefit is estopped from seeking
relief from a contract on the grounds that the condition precedent to his obligation failed to occur. Broussard v. Hill, 100 Nev. 325, 330,
682 P.2d 1376, 1379 (1984). In Goldston, this court stated:
Where time was of the essencethat is, where performance by the plaintiff within a specified time was a condition precedent to
the defendant's duty to perform his partif the plaintiff has been caused to delay his performance beyond the specified time by the
request or agreement or other conduct of the defendant, the plaintiff can enforce the contract in spite of his delay. This assumes
that the non-performance of the condition was not caused by plaintiff's own inability to perform, and that but for the defendant's
request, agreement, or other conduct, the plaintiff would have performed the condition. If the defendant later repudiates or
otherwise breaks the contract, he cannot use the plaintiff's failure to perform on time as a defense. 2 Corbin, Corbin on Contracts
310, at 112 (1950).
Goldston, 98 Nev. at 569-70, 655 P.2d at 523.
Here, the contract provides that Rains agreed to cooperate and assist Buyer in obtaining tentative and final map approvals from the
City of Henderson . . . . NGA insists that it could not submit a parcel map to the City earlier because, after several requests, Rains
repeatedly failed to give NGA the dimensions of the parcel he was to retain. Thus, it argues that Rains should not be able to use NGA's
failure to perform as a defense because, but for his own conduct, NGA would have been able to perform.
[Headnote 12]
Rains claims that [s]hortly after opening escrow, Rains called NGA and explained that the retained land would be bounded by
Stephanie to the East, and was to be configured so as to afford maximum frontage on Stephanie, between the Northeast property corner
and Pantera Street, with 2.5 'net' acres."
corner and Pantera Street, with 2.5 net' acres. Because this description is arguably
ambiguous (Rains did not approve NGA's first attempt at satisfying Rains' preferences in this
regard), there is a genuine issue of fact regarding whether Rains breached the contract and,
thus, whether that breach estops him from using NGA's failure to perform as a defense.
Waiver
NGA also argues that there is a question of fact regarding whether Rains waived his right
to assert its breach as a defense because Rains continued to work toward closing the
transaction for four months after he believed NGA breached the contract. Rains claims that
his silence was intended to give NGA every opportunity to close escrow.
[Headnote 13]
The performance of the condition of an escrow may be waived. Kosinski v. Gallt, 294 N.Y.S.2d 602, 605 (1968). The weight of
authority overwhelmingly supports the proposition that the breach of a condition of delivery of an escrow can be ratified directly or
indirectly by the escrow depositor. Id. (emphasis added). This court has recognized this principal and expanded it to allow the conduct of
the depositor to ratify the breach of a condition of closure of escrow. Holmby, Inc. v. Dino, 98 Nev. 358, 362-63, 647 P.2d 392, 394-95
(1982).
In Carcione v. Clark, 96 Nev. 808, 618 P.2d 346 (1980), the buyer claimed that the seller failed to clear a lis pendens on the property to
be sold. This court noted that the buyers were bound by the contract because they chose to proceed with the purchase despite the failure of
this condition which may have discharged them from that duty. Id. at 810, 618 P.2d at 347. Likewise, in Goldston, the buyer did not
deposit the purchase money into escrow by the deadline. Notwithstanding, both parties continued to try to close the transaction. This court
held that escrow was extended in such a situation. Goldston, 98 Nev. at 568, 655 P.2d at 522.
In Kosinski, the seller did not assert a breach of escrow until eight months after the breach took place. During those months, the seller
repeatedly indicated that he had a working agreement with the buyer. That court held, between November 14, 1962 and June 17, 1963,
when the first written claim was made for the breach of escrow agreement, [seller] abandoned the escrow agreement and waived strict
compliance with its terms. He conducted himself as if he had a different arrangement with the [buyer]. Kosinski, 294 N.Y.S. 2d at 604.
In this case, both parties took steps toward closing the transaction after the ninety-day grace period had expired.
tion after the ninety-day grace period had expired. NGA continued to work on an acceptable
parcel map and Rains signed a map for submission to the City in September of 1995.
[Headnote 14]
Further, Rains cancelled the contract on November 6, 1995, which is about 120 days, or approximately the time allotted under the
contract for all four extensions of the closing date. Thus, we conclude that there is an issue of fact regarding whether Rains abandoned the
escrow agreement and waived strict compliance with its terms.
The Lis Pendens
NGA claims that the district court erred as a matter of law in expunging the lis pendens recorded against the property. The party
seeking to uphold a lis pendens must establish the following:
(a) The action . . . affects the title or possession of the real property described in the notice;
(b) The action was not brought in bad faith or for an improper motive;
(c) He will be able to perform any conditions precedent to the relief sought in the action insofar as it affects the title or
possession of the property; and
(d) He would be injured by any transfer of an interest in the property before the action is concluded.
NRS 14.015(2).
Rains claims that because NGA failed to perform within the time period required by the contract, NGA cannot satisfy the conditions
precedent to the relief it seeks. See NRS 14.015(2)(c).
In light of our opinion today, it seems likely that NGA will be able to perform any conditions precedent to the relief sought.
Under NRS 14.015(3), NGA must also establish to the satisfaction of the court either:
(a) That he is likely to prevail in the action; or
(b) That he has a fair chance of success on the merits in the action and the injury described in paragraph (d) of subsection 2
would be sufficiently serious that the hardship on him in the event of a transfer would be greater than the hardship on the
defendant resulting from the notice of pendency, and that if he prevails he will be entitled to relief affecting the title or possession
of the real property.
[Headnote 15]
Based on the foregoing, we hold that NGA has established that it has a fair chance of success on the merits in the action.
Additionally, the hardship on NGA is probably greater than on Rains if the lis pendens is
expunged because NGA has expended time and money on the property and is still willing to
perform, while Rains' sole risk stems from the possible loss of a transaction with another
buyer.
4
Therefore, we hold that the district court erred in expunging the lis pendens.
CONCLUSION
Because we conclude that the parties did not intend for the recordation of the map to be a
contingency, escrow was due to close on or about July 12, 1995. Thus, under the contract,
NGA had a duty to record the map within ninety days or pay an extension fee. Since NGA did
neither, Rains has made a prima facie showing that NGA breached the contract and excused
Rains' duty to perform.
Nevertheless, there are genuine issues of material fact regarding whether Rains is estopped
from asserting such a breach as a defense as well as whether he waived that right. There are
also, however, issues of fact as to whether the parcel map was made satisfactory for
recordation within a reasonable time after Rains provided adequate dimensions and thus,
whether the failure to post extension fees excused Rains' performance under the agreement.
Additionally, we conclude that the district court erred in expunging the lis pendens because
NGA has shown that it can perform the condition precedent and that there is a fair chance it
will prevail at trial.
We therefore reverse the district court's order granting summary judgment and remand for
proceedings consistent with this opinion.
__________

4
NGA claims that Rains has secured another buyer, R-S Development Co. This court granted NGA's motion
to add R-S Development Co. as an indispensable party and stayed enforcement of the district court's order
pending further order of this court.
____________
113 Nev. 1165, 1165 (1997) Ciaffone v. District Court
LINDA CIAFFONE, JOSEPH CIAFFONE and CARLA CIAFFONE, Individually, and
KATHLEEN HORNBROOK as Special Administratrix, on Behalf of the ESTATE
OF JOSEPH RONALD CIAFFONE, the Deceased, Petitioners, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the
County of Clark, and THE HONORABLE JEFFREY D. SOBEL, District Judge,
Respondents, and SKYLINE RESTAURANT & CASINO, a Nevada Corporation,
Real Party in Interest.
No. 29872
October 1, 1997 945 P.2d 950
Original petition for writ of mandamus challenging an order of the district court
disqualifying the law firm of Gillock, Koning, Markley & Killebrew, P.C. Eighth Judicial
District Court, Clark County; Jeffrey D. Sobel, Judge.
Counsel for defendant in wrongful death action sought to disqualify counsel for plaintiffs,
on ground that legal secretary formerly employed by defense counsel was subsequently hired
by counsel of record for plaintiffs. The district court granted motion to disqualify. Plaintiffs in
underlying action petitioned for writ of mandamus requiring reinstatement of counsel. The
supreme court held that nonlawyer employees of law firms are subject to same rules as are
lawyers governing imputed disqualification.
Petition denied.
Gillock, Koning, Markley & Killebrew, Las Vegas, for Petitioners.
Leland Eugene Backus & Associates, Ltd. and John S. Delikanakis, Las Vegas, for Real
Party in Interest.
1. Mandamus.
Mandamus is appropriate remedy in lawyer disqualification matters, and may be used to challenge orders disqualifying attorneys
from representing parties in actions pending in district courts.
Nonlawyer employees of law firms are subject to same rules as are lawyers governing imputed disqualification, and
disqualification is therefore required where nonlawyer employee in possession of privileged information accepts employment with firm
who represents client with materially adverse interests. SCR 160(2), 187.
If nonlawyer employee changes law firms, new employer need not in all cases be disqualified from matters on which employee's
previous employer was also engaged as adverse party; if nonlawyer employee never obtained confidential
information, no ethical problem arises requiring disqualification, and even if employee had access to
privileged information, former employer and its client may waive disqualification if satisfied present
employer is adequately screening nonlawyer employee.
employer was also engaged as adverse party; if nonlawyer employee never obtained confidential information, no ethical problem arises
requiring disqualification, and even if employee had access to privileged information, former employer and its client may waive
disqualification if satisfied present employer is adequately screening nonlawyer employee. SCR 156, 159, 160(2), (4), 187.
OPINION
Per Curiam:
On May 27, 1993, petitioners Linda Ciaffone, Joseph Ciaffone, and Carla Ciaffone,
individually, and Kathleen Hornbrook as Special Administratrix, on behalf of the estate of
Joseph Ronald Ciaffone, the deceased, (Ciaffones) filed a wrongful death action against
Skyline Restaurant & Casino (Skyline) for the shooting of Joseph Ciaffone.
1
The law firm
of Gillock, Koning, Markley & Killebrew, P.C. (Gillock firm) represented the Ciaffones
while Skyline retained the law firm of Thorndal, Backus, Armstrong & Balkenbush
(Thorndal firm). The case was scheduled for trial in April 1996, but was continued until
December 30, 1996.
On February 11, 1995, Ingrid Decker (Decker) was employed by the Thorndal firm
through a temp agency and worked in the word processing unit. On March 25, 1995,
Decker was hired directly by the Thorndal firm to serve as a legal secretary to attorney David
Clark (Clark). Although Clark was not assigned to the Ciaffone v. Skyline Restaurant &
Casino (Ciaffone v. Skyline) litigation, Decker admits that she performed some work on
Ciaffone v. Skyline in a limited overflow secretarial capacity.
After Clark left the Thorndal firm, Decker remained for several months. Decker sat from
March 18, 1996, to March 25, 1996, as a floating secretary to attorney of record in Ciaffone v.
Skyline, Janiece Marshall (Marshall). Although Decker claims she did not do any work on
Ciaffone v. Skyline while working for Marshall, she does admit that she may have done some
work on Ciaffone v. Skyline in her brief duties as a word processor at the Thorndal firm.
On September 9, 1996, Decker began her employment at the Gillock firm as a secretary to
Julie A. Mersch (Mersch), attorney of record in Ciaffone v. Skyline. The Gillock firm made
efforts to screen Decker from any involvement in the Ciaffone v. Skyline case; the trial
court found these efforts sufficient, despite some minor involvement by Decker with the
case.
__________

1
Less than eighteen seconds after walking into the Skyline Restaurant & Casino, Stephen Knapp (Knapp)
shot and killed the closest person to the door, Joseph Ronald Ciaffone. Knapp told psychiatrists that the decedent
was giving off bad vibes and that the killing was not wrong because Mr. Ciaffone was hurting him, like
killing an insect which was biting him.
efforts to screen Decker from any involvement in the Ciaffone v. Skyline case; the trial court
found these efforts sufficient, despite some minor involvement by Decker with the case.
On November 25, 1996, the Thorndal firm moved to disqualify the Gillock firm based on
Decker's involvement in Ciaffone v. Skyline and the absence of any authority in Nevada
recognizing nonlawyer screening. Judge Sobel, based on written motions, affidavits, and an
informal hearing, ruled as follows:
The Motion to Disqualify poses at least two significant issues.
First, should screening be allowed where a nonlawyer is involved? I think it
should be permitted, but there is a complete absence, as far as I can tell, of applicable
Nevada law permitting it. . . .
Second, was the screening effective with respect to Ingrid Decker? I believe that the
screening was effective in this case, and that Decker did not, after taking her new
employment, have the significant participation in the case that the nonlawyer had in
[Smart Industries Corp. v. Superior Court, 876 P.2d 1176 (Ariz. Ct. App. 1994)].
However, I feel constrained as a trial judge to find that neither by rule or case has
our state yet recognized screening. . . .
I believe if screening is to take place with respect to nonlawyers in Nevada, in the
face of rules that apparently do not permit it, it should be the Supreme Court, the maker
of Supreme Court rules, and not me, who gives permission for screening.
The Motion to Disqualify is therefore granted reluctantly.
Ciaffones then petitioned this court for a writ of mandamus ordering the district court to
reinstate the Gillock firm as attorneys of record.
2
[Headnote 1]
Preliminarily, we note that mandamus is an appropriate remedy in lawyer disqualification matters. In Cronin v. District Court, 105
Nev. 635, 639 n.4, 781 P.2d 1150, 1152 n.4 (1989), this court stated: Mandamus is used properly to challenge orders disqualifying
attorneys from representing parties in actions that are pending in the district courts.
Skyline argues that regardless of the efforts taken by the Gillock firm to screen Decker from participation in Ciaffone v. Skyline, no
statute or case law exists in Nevada permitting nonlawyer screening.
__________

2
Five days before oral arguments were heard, petitioners filed a motion to expedite our decision. Real parties in interest filed a joinder
in this motion on the day of oral arguments. We deny this motion as moot.
nonlawyer screening. Skyline further contends that because Nevada law does not authorize
screening when lawyers move from one private firm to another, nonlawyers should be held to
the same standard. We conclude that Skyline's argument correctly states Nevada law.
Although Nevada has not addressed the problem of nonlawyer screening, this court has
taken the position in SCR 160(2) that lawyer screening is prohibited. In part, SCR 160(2)
provides:
When a lawyer becomes associated with a firm, the firm may not knowingly represent a
person in the same or a substantially related matter in which that lawyer, or a firm with
which the lawyer was associated, had previously represented a client whose interests
are materially adverse to that person and about whom the lawyer had acquired
information protected by Rules 156 and 159(2) that is material to the matter.
SCR 156 and 159(2) address the disclosure of confidential and privileged information
between the attorney and client.
Additionally, SCR 187 requires lawyers to hold nonlawyer employees to the same
professional standards. In relevant part, SCR 187 states:
With respect to a nonlawyer employed or retained by or associated with a lawyer:
1. A partner in a law firm shall make reasonable efforts to ensure that the firm has
in effect measures giving reasonable assurance that the person's conduct is compatible
with the professional obligations of the lawyer;
2. A lawyer having direct supervisory authority over the nonlawyer shall make
reasonable efforts to ensure that the person's conduct is compatible with the
professional obligations of the lawyer. . . .
[Headnote 2]
When SCR 187 is read in conjunction with SCR 160(2), nonlawyer employees become subject to the same rules governing imputed
disqualification. To hold otherwise would grant less protection to the confidential and privileged information obtained by a nonlawyer than
that obtained by a lawyer. No rationale is offered by Ciaffones which justifies a lesser degree of protection for confidential information
simply because it was obtained by a nonlawyer as opposed to a lawyer. Therefore, we conclude that the policy of protecting the
attorney-client privilege must be preserved through imputed disqualification when a nonlawyer employee, in possession of privileged
information, accepts employment with a firm who represents a client with materially adverse interests.
[Headnote 3]
Attorney disqualification of counsel is part of a court's duty to safeguard the sacrosanct privacy of the attorney-client relationship
which is necessary to maintain public confidences in the legal profession and to protect the integrity of the judicial process. Panduit Corp.
v. All States Plastic Mfg. Co., 744 F.2d 1564, 1576 (D.C. Cir. 1984). Moreover, a client must be secure in the knowledge that any
information he reveals to counsel will remain confidential. United States v. Schell, 775 F.2d 559, 565 (4th Cir. 1985) (emphasis added).
Therefore, we decline to carve out an exception allowing screening of nonlawyers in situations where lawyers would be similarly
disqualified.
3
In contrast, Ciaffones cite Smart Industries Corp. v. Superior Court, 876 P.2d 1176 (Ariz. Ct. App. 1994), for the proposition that
jurisdictions may expressly prohibit lawyer screening while allowing nonlawyer screening. In justifying this seemingly contradictory
position, the Smart Industries court adopted the rational of ABA Informal Opinion 88-1526 (June 22, 1988): Imputed Disqualification
Arising From Change in Employment by Nonlawyers Employees.
It is important that nonlawyer employees have as much mobility in employment opportunity as possible consistent with the
protection of clients' interest. To so limit employment opportunities that some nonlawyers trained to work with law firms might be
required to leave the careers for which they are trained would disserve clients as well as the legal profession. . . .
Smart Industries, 876 P.2d at 1183.
The reasoning of Smart Industries implicitly recognizes that a nonlawyer's employment opportunities or mobility must be weighed
against client confidentiality before disqualification occurs. While this approach may appear fairer to the paralegal/secretary, it has been
roundly criticized for ignoring the realities of effective screening and litigating that issue should it ever arise. For example, one
commentator explained that a majority of courts have rejected screening because of the uncertainty regarding the effectiveness of
the screen, the monetary incentive involved in breaching the screen, the fear of disclosing privileged
information in the course of proving an effective screen, and the possibility of accidental disclosures. M. Peter
Moser, Chinese Walls: a Means of Avoiding Law Firm Disqualification When a Personally Disqualified Lawyer
Joins the Firm, 3 Geo. J. Legal Ethics 399, 403, 407 {1990).
__________

3
This does not mean that anytime a nonlawyer employee changes law firms that the new employer must be disqualified under SCR 160.
First, if the nonlawyer employee never obtained confidential information as defined by SCR 156 and 159, no ethical problem arises
requiring disqualification. Second, even if a nonlawyer employee had access to privileged information, SCR 160(4) provides that the
former law firm and its client may waive disqualification if they are satisfied the present employer law firm is adequately screening the
nonlawyer employee.
ing the effectiveness of the screen, the monetary incentive involved in breaching the screen,
the fear of disclosing privileged information in the course of proving an effective screen, and
the possibility of accidental disclosures. M. Peter Moser, Chinese Walls: a Means of Avoiding
Law Firm Disqualification When a Personally Disqualified Lawyer Joins the Firm, 3 Geo. J.
Legal Ethics 399, 403, 407 (1990). Accordingly, we conclude that adherence to the existing
SCR scheme is the better rule. We, therefore, refrain from creating an exception to the
imputed disqualification rule embodied in SCR 160. Thus, we conclude a writ of mandamus
is not warranted.
4
____________
113 Nev. 1170, 1170 (1997) Tinch v. State
SHARMARLO TINCH, Appellant, v. THE
No. 28064
October 1, 1997 946 P.2d 1061
Appeal from a judgment of conviction, entered pursuant to a jury verdict, of murder with
the use of a deadly weapon and conspiracy to commit murder, both with the intent to
promote, further, or assist a criminal gang. Eighth Judicial District Court, Clark County; Lee
A. Gates, Judge.
The supreme court held that: (1) juror's testimony prior to penalty phase did not require
declaration of mistrial; (2) defendant was not entitled to mistrial based upon state's failure to
provide copy of handwritten statement of prosecution witness; and (3) prior bad act evidence
indicating defendant's gang affiliation was admissible.
Affirmed.
Christopher R. Oram, Las Vegas, for Appellant.
and James Tufteland, Chief Deputy District Attorney, and Bill A. Berrett, Deputy District
1. Criminal Law.
As general rule, jurors may not impeach their own verdict.
2. Criminal Law.
It is not supreme court's prerogative to determine credibility of witnesses below.
__________

4
113 Nev. 1170, 1171 (1997) Tinch v. State
3. Criminal Law.
Juror's testimony, prior to penalty phase of murder trial, to effect that she had told bailiff prior to reading of verdict that she wanted
to change her verdict and that bailiff had told her that she could not do so, did not require declaration of mistrial, where juror did not
repudiate her verdict at time jury was polled and bailiff's testimony as to his conversation with juror conflicted with juror's testimony.
4. Criminal Law.
Murder defendant was not entitled to mistrial based upon state's failure to provide copy of handwritten statement of prosecution
witness, absent any indication that state withheld or suppressed information intentionally or in bad faith.
5. Criminal Law.
For prior bad act of defendant to be deemed admissible, trial court must determine, outside presence of jury, that: incident is
relevant to crime charged; act is proven by clear and convincing evidence; and probative value of evidence is not substantially
outweighed by danger of unfair prejudice.
6. Criminal Law.
Evidence that murder defendant flashed gang signs at two members of rival gang and fired gun at victim the next day was
admissible evidence of prior bad act; evidence was relevant to gang enhancement charge and could show motive, testimony concerning
prior incidents provided clear and convincing evidence of their occurrence, and gang-affiliation evidence was not per se prejudicial or
inflammatory of jury's passions. NRS 48.045(2).
OPINION
Per Curiam:
Appellant Sharmarlo Tinch was convicted of first degree murder with the use of a deadly
weapon and conspiracy to commit murder, both with gang enhancements, for the drive-by
shooting and murder of a rival gang member. Tinch appeals his conviction on the grounds
that a mistrial should have been granted because one juror allegedly told the bailiff, prior to
being polled, that she wished to change her verdict to not guilty and because the State
violated the rules of discovery. Tinch further asserts that evidence of his prior bad acts was
erroneously introduced at trial.
FACTS
Omar Walls testified for the State at Tinch's trial. According to Walls, on February 28,
1994, he saw Tinch shoot and fatally injure Kentral Boobie Washington in a gang-related
shooting. Washington and Walls were members of the Comstock 40s street gang, and
Tinch was a member of a rival gang, the Rolling 60s. Walls testified that he and
Washington were talking on Lawry Street near the corner of Comstock Street in Clark
County; at approximately 1:00 p.m., Walls noticed a white four-door Honda make a U-turn
on Comstock Street and then turn onto Lawry Street.
113 Nev. 1170, 1172 (1997) Tinch v. State
four-door Honda make a U-turn on Comstock Street and then turn onto Lawry Street.
According to Walls, Tinch was sitting on the Honda's passenger side door with his upper
body outside of the Honda. Tinch made a Rolling 60s gang sign as the car first passed
Washington and Walls, who responded with a Comstock 40s gang sign.
1
As the Honda drove
by again after making its U-turn, Tinch fired a gun at Walls and Washington; Walls started
firing a gun at the Honda and ran across the street while Washington hid behind a car parked
in front of a house on the corner. The Honda then made another U-turn and pulled up in front
of the house where Washington was hiding. Walls stated that Tinch then began shooting at
Washington, who moved from behind the parked car and began running across the corner
house's yard. Tinch killed Washington with a gunshot to the neck.
Another Comstock 40s gang member, Tony McCullum, testified that he was about half a
block away from where Washington and Walls had been talking on Lawry Street. McCullum
claimed to have seen the white Honda pull up in front of the corner house where Washington
was hiding; McCullum saw Tinch, who was sitting on the passenger side door of the Honda,
aim and fire a handgun. McCullum then saw Washington lying on the ground in the area
where Tinch had fired.
Timothy Crane testified for the defense as an alibi witness. Crane stated that Tinch had
been with him at Crane's girlfriend's house almost the entire day of the shooting. According to
Crane, Tinch came to his girlfriend's house between 9:30 and 10:00 a.m., so that Crane could
cut Tinch's hair. Tinch left at approximately 11:00 a.m. and returned at approximately 12:15
p.m. Crane claimed that sometime after Tinch returned, he overheard a neighbor say that
someone had been shot.
During cross-examination of Crane, the State attempted to impeach him with an earlier
handwritten statement wherein Crane had listed February 26, 1994, rather than February 28,
1994, as the date that he had been with Tinch. The defense objected on the grounds that, in
violation of discovery rules, it had not received the statement, and the State indicated that it
was unaware that the defense had not received a copy. The trial court ruled that the State
would not be permitted to use Crane's written statement because it had not been provided to
the defense. The defense then called Crane's girlfriend, LaTonya Houston. Houston testified
that when she came home on February 28, 1994, at 2:00 p.m., Tinch was sleeping at her
home. Houston stated that she was sure of the date because it was the same date she had
gone to get her child's social security card and the "Geraldo" show was on the television.
__________

1
There was testimony that the flashing of gang signs is a form of intimidation, used to represent your
neighborhood.
113 Nev. 1170, 1173 (1997) Tinch v. State
stated that she was sure of the date because it was the same date she had gone to get her
child's social security card and the Geraldo show was on the television.
At the beginning of trial, the State attempted to introduce several of Tinch's prior
uncharged acts. The trial court allowed evidence of the following two incidents.
Approximately two weeks before the shooting, Walls, McCullum, and another friend were
walking when Tinch and several others drove by in the white Honda involved in the shooting.
Words were exchanged between the two groups and gang signs were flashed. The second
incident occurred the following day; Washington, Walls, and another Comstock 40s gang
member were in Rolling 60s turf. Tinch saw the three Comstock 40s gang members and
shot at them as they ran away.
On September 14, 1995, the jury convicted Tinch of one count of murder with the use of a
deadly weapon with the intent to promote, further, or assist a criminal gang and conspiracy to
commit the same. The jury was polled after the verdict was read, and all members supported
the verdict. However, the following week one of the jurors, Ms. Grieve, contacted the trial
court's secretary and stated that the verdict of guilty was not her verdict. Prior to the penalty
phase, the district court held an evidentiary hearing to address the issue. At the hearing,
Grieve told the court that she had been the only juror who thought Tinch should be acquitted
and that she did not agree with the guilty verdict. Apparently, the first verdict forms had been
filled out incorrectly, so the jury went back to correct the forms. According to Grieve, before
returning to the courtroom for the second time, she asked [the bailiff] . . . if I could change
[the verdict]. He says no.
The bailiff testified that the following occurred:
[BAILIFF]: The second time we went back to the jury room to change the forms, as
we were coming into the courtroom, [Grieve] indicated, what if I change my mind?
And I says, well, we have to go in now.
So we came in. And myin retrospect I should have immediately went to the judge
and told him that. However, I did not do so. But after the jury was polled, I thought
[Grieve] would speak up.
THE COURT: Did you tell her that she couldn't change her verdict?
[BAILIFF]: I didn't say she could not change her verdict. I told [Grieve] we have to
go in now. This is when we were coming in.
[PROSECUTOR]: Was it after that that she then was polled and said that was her
verdict? . . . In other words, after this conversation with you, then [Grieve] came into
court and the verdict was read?
113 Nev. 1170, 1174 (1997) Tinch v. State
after this conversation with you, then [Grieve] came into court and the verdict was
read?
[BAILIFF]: Exactly.
[PROSECUTOR]: And that's when [Grieve] stood upthe defense or the judge had
each of the jurors stand up and asked if that was their verdict, and she said that was her
verdict?
[BAILIFF]: That's correct.
The testimony further indicated that although Grieve stated upon being polled that her verdict
was guilty, Grieve was crying at the time.
2
At the close of the evidentiary hearing, Tinch
moved for a mistrial based upon Ms. Grieve's testimony. Following a subsequent hearing, the
trial court denied Tinch's motion for mistrial. After the penalty phase, Tinch was sentenced to
life with the possibility of parole, plus an identical consecutive term for the deadly weapon
enhancement, concurrent with six years for the conspiracy conviction plus six years
consecutive for the conspiracy gang enhancement.
Tinch now appeals the lower court's denial of his motion for mistrial based upon Ms.
Grieve's testimony and the State's failure to provide Tinch with Crane's handwritten
statement. Tinch further challenges the district court's decision to admit evidence of Tinch's
prior uncharged acts. We conclude that Tinch's arguments are without merit and affirm his
convictions and sentences.
DISCUSSION
The district court did not err in denying the motion for mistrial based on Grieve's testimony
or the State's alleged discovery violation
There is a factual dispute as to the nature of the dialogue between Grieve and the bailiff
which occurred on the jury's way into the courtroom to deliver its verdict on the corrected
forms. Grieve testified that she told the bailiff that she wanted to change her verdict, and the
bailiff told her that she could not. According to the bailiff, Grieve simply asked what would
happen if she changed her mind, and he responded that she had to go into the courtroom at
that time.
[Headnotes 1-3]
As a general rule, jurors may not impeach their own verdict. Pinana v. State, 76 Nev. 274, 288, 352 P.2d 824, 832 (1960).
__________

2
The court responded that Ms. Grieve was crying . . . before she even went out to deliberatewhile she was deliberating or whatever. I
mean, none of that is unusual. It happens all the time where people get emotional during the stress of trying to decide upon a verdict.
113 Nev. 1170, 1175 (1997) Tinch v. State
Accordingly, it was incumbent upon Grieve to repudiate her verdict when polled by the court.
Tinch asserts that the fact that Ms. Grieve supported the verdict when polled is irrelevant
because the bailiff had told her that she could not change her verdict. However, the district
court apparently adopted the bailiff's account of what transpired. It is not this court's
prerogative to determine the credibility of witnesses below. Doyle v. State, 112 Nev. 879,
891-92, 921 P.2d 901, 910 (1996). Therefore, we conclude that the district court's failure to
declare a mistrial on the basis of Ms. Grieve's testimony was not error.
[Headnote 4]
Tinch further asserts that a mistrial should have been granted because the State violated the rules of discovery by failing to produce
Crane's witness statement. Even though the district court decided that the State could not use Crane's handwritten statement to impeach him
as Tinch's alibi witness, Tinch asserts that the jury nonetheless heard that Crane may have earlier stated that he was with Tinch on February
26, 1994, rather than February 28, 1994the day of the shooting. Tinch contends that a mistrial was the only appropriate remedy because
the State suppressed or intentionally withheld information from the defense.
In Lopez v. State, 105 Nev. 68, 79, 769 P.2d 1276, 1283 (1989), we concluded that the trial court did not err in denying a defense
motion for mistrial where there was no evidence of suppression or that the State intentionally withheld information from the defense. Tinch
has not shown any intentional or bad faith suppression by the State; the prosecutor responded to Tinch's initial objection with a statement
that he wasn't aware that counsel didn't have it. Accordingly, we conclude that the trial court did not err in denying a mistrial based on
the State's alleged discovery violation.
3
The district court did not err in admitting evidence of two prior, uncharged acts
[Headnote 5]
Finally, Tinch contends that evidence of two prior incidents, which occurred two weeks before the murder (i.e., Tinch flashing gang
signs at Walls and McCullum and firing a gun at Washington the next day), was improperly admitted. We disagree. The trial court
conducted a hearing outside of the presence of the jury on the State's motion in limine to introduce several uncharged acts
against Tinch.
__________

3
Tinch further asserts, very briefly, that the State sandbagged the defense by failing to introduce two of its eyewitnesses until after the
jury was empaneled. Tinch's argument is cryptic, at best, and no authority in support of this argument is cited. We will not address this
issue. See McKinney v. State, 93 Nev. 70, 71, 560 P.2d 151, 151 (1977).
113 Nev. 1170, 1176 (1997) Tinch v. State
the State's motion in limine to introduce several uncharged acts against Tinch.
4
To be deemed
an admissible bad act, the trial court must determine, 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
Walker v. State, 112 Nev. 819, 824, 921 P.2d 923, 926 (1996).
[Headnote 6]
We conclude that the evidence was relevant to the gang enhancement charge and could show motive pursuant to NRS 48.045(2).
Further, the testimony of McCullum and Walls concerning these prior incidents provided clear and convincing evidence of the occurrence
of the prior acts. With regard to whether the evidence was overly prejudicial, Tinch argues that it simply inflame[d] the passions of the
jury to convict a man based upon his status as [a] gang member. We disagree. Other state and federal courts have found gang-affiliation
evidence relevant and not substantially outweighed by unfair prejudice when it tends to prove motive. Lay v. State, 110 Nev. 1189, 1196,
886 P.2d 448, 452 (1994) (concluding that gang affiliation evidence was not unfairly prejudicial and was relevant to show motive to shoot
rival gang members). Accordingly, we conclude that the trial court did not err in permitting the State's introduction of Tinch's prior
uncharged acts.
CONCLUSION
We conclude that the district court properly refused to grant a mistrial based upon the juror's claim that the verdict was not her own and
the alleged discovery violations. We further conclude that Tinch's remaining argument concerning the admission of prior bad acts is
without merit. Accordingly, Tinch's convictions and sentences are affirmed.
__________

4
Tinch objected that the State's motion was untimely because it waited almost a week after calendar call to file the motion. However,
Tinch has not provided this court with any support for his untimeliness argument; therefore, we will not consider this issue. McKinney, 93
Nev. at 71, 560 P.2d at 151.

5
We acknowledge that some of our prior cases have misstated this third prong as the evidence is more probative than prejudicial. See,
e.g., Cipriano v. State, 111 Nev. 534, 541, 894 P.2d 347, 352 (1995); Berner v. State, 104 Nev. 695, 697, 765 P.2d 1144, 1146 (1988).
These cases are modified to reflect the correct standard as set forth in this opinion.
____________
113 Nev. 1177, 1177 (1997) Collins v. State
ROBERT J. COLLINS, Appellant, v. THE
No. 27695
ROBERT J. COLLINS, Appellant, v. THE
No. 27810
October 1, 1997 946 P.2d 1055
Consolidated appeals from judgments of conviction entered pursuant to jury verdicts for
burglary (Docket No. 27965), and presenting false information for insurance benefits,
conspiracy to provide false information for insurance benefits, and obtaining money or
property by false pretenses (Docket No. 27810). Second Judicial District Court, Washoe
County; Peter I. Breen, Judge.
The supreme court held that officer had probable cause to arrest defendant.
Affirmed.
Dennis E. Widdis, Reno; Richard F. Cornell, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, and Ronda Clifton, Deputy Attorney General,
Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy
District Attorney, Reno, for Respondent.
1. Arrest.
Probable cause for arrest requires that law enforcement official have trustworthy facts and circumstances which would cause
person of reasonable caution to believe that it is more likely than not that person will disregard written promise to appear.
2. Automobiles.
Police officer had probable cause to arrest motorist. Motorist's hostility toward officer, his initial refusal to produce his driver's
license, evidence of insurance, or registration, and his deliberate crumpling of citation would cause person of reasonable caution to
believe that motorist would disregard citation. NRS 484.795(1).
3. Automobiles.
Statute providing that law enforcement officers may arrest individual where they have reasonable and probable grounds to believe
that person will disregard written promise to appear after citation has been issued if person repudiates written promise to appear. NRS
484.795(1).
In deciding whether to impound vehicle, question is not what could have been achieved, but whether Fourth
Amendment requires such steps.
have been achieved, but whether Fourth Amendment requires such steps. U.S. Const. amend. 4.
Police officer did not act unreasonably in having arrestee's car taken to more secure location. Car was in unsecured parking lot,
there was no evidence that car or its valuables would remain safe, and officer testified that car was in aisleway, suggesting that it was
not in designated parking space.
Police have duty to inventory contents of impounded automobile to protect against claims of theft and to protect storage bailee
against false charges; however, inventory search must not be ruse for general rummaging in order to discover incriminating evidence.
If search is for purpose of inventory of personal effects and not exploratory, articles found as result of search which supply
foundation for reasonable suspicion on part of police are not subject to unlawful search and seizure, and this is so because police are in
place where they have right and obligation to be when they find objects of seizure.
8. Automobiles.
Police officer's request that investigator from another department examine items that officer found during inventory search of
arrestee's impounded vehicle to determine if they were, in fact, incriminating did not violate Fourth Amendment's prohibition against
unreasonable searches. Officer found items when he was in place where he had right and obligation to be. U.S. Const. amend. 4.
Police did not exceed scope of inventory search when they read notebook and listened to tape, which were found in arrestee's
impounded car.
Regardless of presentation of inadmissible evidence, indictment will be sustained if there is slightest sufficient legal evidence.
Although defendant alleged that prosecuting attorney presented prejudicial and inadmissible hearsay statements to grand jury,
majority of objected to statements were not hearsay, but, rather, were properly offered as explanations of officers' conduct, and
sufficient legal evidence existed to uphold burglary indictment.
12. Larceny.
Proprietary information falls within definition of personal property for purposes of larceny offense. NRS 193.021.
13. Larceny.
By copying down and recording security access code to storage unit, defendant deprived company of property interest, for
purposes of larceny offense, because his knowledge of numbers resulted in loss of numbers' value. NRS 193.021.
14. Witnesses.
Defendant's wife's testimony that defendant physically abused her was relevant to her credibility, which had been attacked, and,
thus, was admissible in prosecution of defendant for insurance fraud and obtaining money by false pretenses.
15. Witnesses.
In prosecution of defendant for insurance fraud and obtaining money by false pretenses, hearsay rule was not violated
by admission of police officer's testimony that defendant's wife made allegations of physical abuse, as
testimony was admissible to address attacks on wife's credibility.
by false pretenses, hearsay rule was not violated by admission of police officer's testimony that defendant's wife made allegations of
physical abuse, as testimony was admissible to address attacks on wife's credibility. NRS 51.035.
16. Witnesses.
Attorney-client privilege did not protect statements that defendant made to his wife's former attorney because there was no
evidence that defendant was either speaking to attorney as his wife's representative or engaged in joint defense with wife. NRS 49.075,
49.095.
17. Criminal Law.
Appellate court would not address defendant's claim that trial court improperly restricted subject matter of voir dire, where
defendant failed to object to limitation at trial.
18. Criminal Law.
Police officers' testimony was admissible because their opinions were rationally based on what they saw in home and helpful to
determine whether house was actually burglarized. NRS 50.265.
19. Criminal Law.
Figurines which were produced five years after alleged burglary were properly admitted in burglary prosecution, absent evidence
indicating that figurines were not in substantially same condition as when crime was committed.
20. Criminal Law.
Defendant's conviction for obtaining money by false pretenses was compatible with his conviction for insurance fraud, and there
was sufficient evidence to support each conviction. NRS 686A.291.
OPINION
Per Curiam:
On September 11, 1989, Jeanne Collins reported to the Washoe County Sheriff's
Department that her home had been burglarized. Thereafter, she and her husband, Robert
Collins, collected reimbursement for the stolen items from Farmers Insurance Company
(Farmers).
On February 3, 1991, Nevada Highway Patrol (NHP) Trooper Ken Gager pulled over
and ultimately arrested Mr. Collins. A subsequent search of the car revealed, among other
things, a spiral notebook and a tape recorder containing secret access codes to a secured
storage unit (The Vault) in Reno, vice grips, a blank key, two-way radios, electronic gear
and two rare coins that were ultimately determined to be the subject of the insurance claim
lodged with Farmers.
The next day, Reno Police executed a search warrant for a fine arts locker that Mr. and
Mrs. Collins had rented at The Vault. Several of the items seized matched the items reported
stolen in September of 1989.
In August 1995, after a jury found Mr. Collins guilty of burglary, the district court
sentenced him to four years in the Nevada Department of Prisons. This conviction is the
subject of appeal No.
appeal No. 27695. In September 1995, a different jury convicted Mr. Collins of insurance
fraud. The judge sentenced him to six years in prison for presenting false information for
insurance benefits, six years for conspiracy to provide false information for insurance
benefits, and eight years for obtaining money or property by false pretenses to run
concurrently. He was also ordered to pay restitution. These convictions are the subject of
appeal No. 27810.
Seizure of evidence from the Collins vehicle and The Vault
[Headnote 1]
Prior to both trials, the district court denied a pretrial motion to suppress the evidence found in Mr Collins' car. Mr. Collins argues that
the seizure was tainted by numerous instances of police misconduct. He first contends that his arrest was unlawful because the police did
not have probable cause to arrest him. Probable cause requires that law enforcement officials have trustworthy facts and circumstances
which would cause a person of reasonable caution to believe that it is more likely than not that the person will disregard a written promise
to appear. See Keesee v. State, 110 Nev. 997, 1002, 879 P.2d 63, 66 (1994). NRS 484.795(1) authorizes a peace officer to arrest an
individual who has committed a misdemeanor traffic violation when the officer has reasonable and probable grounds to believe the person
[cited] will disregard a written promise to appear in court.
[Headnote 2]
We conclude that Mr. Collins' hostility toward Trooper Gager, his initial refusal to produce his driver's license, evidence of insurance
or registration and his deliberate crumpling of the citation would cause a person of reasonable caution to believe that Mr. Collins would
disregard the citation. Thus, we conclude that the district court did not err in finding that Trooper Gager had probable cause to arrest Mr.
Collins.
[Headnote 3]
Mr. Collins next contends that Trooper Gager's authority to arrest him ceased when he gave Mr. Collins a copy of the citation. NRS
484.795(1) provides that law enforcement officers may arrest an individual where they have reasonable and probable grounds to believe
that the person will disregard a written promise to appear in court. NRS 484.795(1). (Emphasis added.) NRS 484.795 clearly authorizes
an officer to arrest a person after a citation has been issued if the person repudiates the written promise to appear. Therefore, we conclude
that Mr. Collins' argument lacks merit.
[Headnotes 4, 5]
Mr. Collins contends that the NHP improperly impounded his car. He argues that Trooper Gager failed to ask him whether he had a
preference as to where his car should remain until he could post bail. In deciding whether to impound a vehicle, the question is not what
could have been achieved,' but whether the Fourth Amendment requires such steps. . . . The reasonableness of any particular government
action does not necessarily or invariably turn on the existence of alternative or less intrusive means.' Colorado v. Bertine, 479 U.S. 367,
374 (1987) (quoting Illinois v. Lafayette, 462 U.S. 640, 647 (1983)). Mr. Collins' car was in an unsecured parking lot and no evidence
exists that the car or its valuables would remain safe. Mr. Collins' daughter, who was not yet of driving age, was present, and Trooper Gager
testified that there were people gathered around the parking area. Further, Trooper Gager testified that the car was in the aisleway,
suggesting that it was not in a designated parking space. Accordingly, we conclude that Trooper Gager did not act unreasonably in having
the car taken to a more secure location.
[Headnote 6]
Mr. Collins further argues that the evidence found in his car should have been suppressed because the search of his car was an
improper inventory search. The police have a duty to inventory the contents of an automobile to protect against claims of theft and to
protect the storage bailee against false charges. Heffley v. State, 83 Nev. 100, 103, 423 P.2d 666, 668 (1967). However, an inventory
search must not be a ruse for general rummaging in order to discover incriminating evidence. Florida v. Wells, 495 U.S. 1, 4 (1990).
[Headnote 7]
As Trooper Gager conducted the search, he came across items that he thought might be indicative of criminal activity and called a
detective to examine the inventoried items.
If the search is for the purposes of inventory of personal effects and not exploratory, articles found as a result which supply the
foundation for a reasonable suspicion on the part of the police are not subject to unlawful search and seizure. This is so because
the police are in a place where they have a right and obligation to be, . . . when they find the objects of seizure.
Heffley, 83 Nev. at 103, 423 P.2d at 667.
[Headnote 8]
Trooper Gager found the items when he was in a place where he had a right and obligation to be. Thus, we conclude that his request
that an investigator from another department examine the items to determine if they were, in fact,
incriminating did not violate the Fourth Amendment's prohibition against unreasonable searches.
request that an investigator from another department examine the items to determine if they
were, in fact, incriminating did not violate the Fourth Amendment's prohibition against
unreasonable searches.
[Headnote 9]
Mr. Collins argues that the police exceeded the scope of a proper inventory search when they read the contents of the spiral notebook
and listened to the tape. We conclude that the scope of the inventory search was proper. See Michigan v. Thomas, 458 U.S. 259 (1982)
(noting that once an inventory search reveals contraband, warrantless search may be properly expanded without showing exigent
circumstances); see also United States v. Arango-Correa, 851 F.2d 54 (2d Cir. 1988) (opening of notebooks during inventory search
analogous to permissive inventory of closed container); State v. Weber, 471 N.W.2d 187 (Wis. 1991) (playing unmarked music cassette
tape to properly document it on inventory form within scope of proper inventory search).
Mr. Collins argues that the search warrant for The Vault locker was faulty because it was based on evidence found in the car. Because
we conclude that Mr. Collins' arrest was lawful, and that the impoundment and inventory search of his car was valid, we conclude that the
search warrant to search the locker was valid. Accordingly, the district court did not err by denying the motion to suppress.
Grand jury proceedings
On appeal from the burglary conviction, Mr. Collins contends that the prosecuting attorney presented prejudicial and inadmissible
hearsay statements to the grand jury.
[Headnote 10]
The grand jury can receive none but legal evidence, and best evidence in degree, to the exclusion of hearsay or secondary evidence.
NRS 172.135(2); Sheriff v. Frank, 103 Nev. 160, 165, 734 P.2d 1241, 1245 (1987). However, regardless of the presentation of
inadmissible evidence, the indictment will be sustained if there is the slightest sufficient legal evidence. Robertson v. State, 84 Nev. 559,
561-62, 445 P.2d 352, 353 (1968).
[Headnote 11]
We conclude that the majority of statements objected to by Mr. Collins were not hearsay but were properly offered as explanations of
the officers' conduct. See Wallach v. State, 106 Nev. 470, 796 P.2d 224 (1990). We also conclude that sufficient legal evidence exists to
uphold the indictment.
Security codes as personal property
[Headnotes 12, 13]
Mr. Collins argues that security codes are not personal property and therefore cannot be the subject of larceny. NRS
205.005-205.980 cross-references the definition of personal property to NRS 193.021. Although NRS 193.021 does not specifically include
intangible property in its definition, we conclude that the legislature intended proprietary information to fall within the definition. See, e.g.,
Dreiman v. State, 825 P.2d 758, 761 (Wyo. 1992) ( [P]roperty in a thing consists not merely in its ownership and possession, but in the
unrestricted right of use, enjoyment, and disposal. ' (quoting Laberton v. General Casualty Co., 332 P.2d 250, 255 (Wash. 1958)
(quoting Gasque v. Town of Conway, 8 S.E.2d 871 (S.C. 1940))). We also conclude that by copying down and recording the security
access codes, Mr. Collins deprived The Vault of a property interest because his knowledge of the numbers resulted in a loss of the numbers'
value.
Other assignments of error
On appeal from the insurance fraud and obtaining money by false pretenses convictions, Mr. Collins assigns several of the district
court's rulings as error and complains that the convictions are inconsistent.
[Headnotes 14, 15]
Mr. Collins contends that the district court improperly admitted evidence that Mr. Collins physically abused Mrs. Collins. We disagree.
Mrs. Collins' testimony regarding abuse was relevant to her credibility. Nor did the district court violate the hearsay rule in allowing Officer
Dreher to testify that Mrs. Collins made allegations of physical abuse to him. His testimony was likewise admissible to address attacks on
her credibility. See NRS 51.035 (hearsay means a statement offered to prove the truth of the matter asserted).
1
We also hold that the district
court did not abuse its discretion in determining that the probative value outweighed the prejudicial effect of the physical abuse evidence.
See Daly v. State, 99 Nev. 564, 567, 665 P.2d 798, 801 (1983).
[Headnote 16]
Mr. Collins argues that the convictions should be reversed because the district court admitted statements that Mr. Collins made to Mrs.
Collins' former attorney, Annabelle Hall, in violation of the attorney-client privilege.
__________

1
Even if Officer Dreher's testimony can be considered inadmissible hearsay, any error in its admittance at trial was harmless because
Mrs. Collins testified to the same account.
tion of the attorney-client privilege. The privilege does not protect such statements because
there is no evidence that Mr. Collins was either speaking to Hall as Mrs. Collins'
representative, or engaged in a joint defense with Mrs. Collins. See NRS 49.095; NRS
49.075; Naum v. State, 630 P.2d 785, 788 (Okla. Ct. App. 1981) (holding that there must be
evidence the representative is empowered to act for the client upon any advice rendered by
counsel); United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989), cert. denied, 502
U.S. 810 (1991); Eisenberg v. Gagnon, 766 F.2d 770, 787 (3d Cir. 1985) (protecting only
communications made in the course of an on-going and joint effort to set up a common
defense strategy).
Mr. Collins also claims that his statements to Hall should have been suppressed because
Hall violated S.C.R. 182 when she spoke to Mr. Collins without first obtaining his attorney's
consent. Because there is no evidence that Hall spoke to Mr. Collins about the subject of his
representation (he initiated the contact and tried to influence Ms. Hall's defense of Mrs.
Collins), we hold that Hall did not violate S.C.R. 182.
[Headnote 17]
Mr. Collins argues that the case should be reversed because the district court improperly restricted the subject-matter of voir dire.
Because Collins failed to object to the limitation at trial, we decline to address this issue. See McCullough v. State, 99 Nev. 72, 74, 657
P.2d 1157, 1158 (1983).
[Headnote 18]
Next, Mr. Collins asserts that Officers Eyhardle and Blakeslee improperly gave expert opinions. Neither officer was offered to the court
as an expert nor treated as such during examination. Thus, we hold that the witnesses were not testifying as experts. Because the officers'
opinions were rationally based on what they saw in the home and helpful to determine whether the house was actually burglarized, the
testimony was admissible under NRS 50.265.
[Headnote 19]
Mr. Collins also argues that certain figurines were improperly admitted because they were not produced until five years after the
alleged burglary, thus causing chain of custody problems. Because there was no evidence indicating that the figurines were not in
substantially the same condition as when the crime was committed, we hold that they were properly admitted. See United States v.
Dickerson, 873 F.2d 1181, 1185 (9th Cir. 1988).
Mr. Collins contends that the district court erred in admitting certain portions of Mrs. Collins' testimony because it referenced marital
communications. We disagree. All of the testimony at issue described actions and observations rather than marital
communications.
issue described actions and observations rather than marital communications. See NRS
49.295(1)(b); see also Petition of Fuller, 63 Nev. 26, 37, 159 P.2d 579, 584 (1945) (holding
the fact that transactions took place during marriage is insufficient to show that knowledge of
them was derived from communications made by one's spouse).
[Headnote 20]
Finally, Mr. Collins argues that his conviction for obtaining money by false pretenses should be overturned because it is incompatible
with his convictions for insurance fraud under NRS 686A.291. We hold that the convictions are compatible and that there is sufficient
evidence in the record to support each conviction.
We have thoroughly reviewed all other arguments on appeal and conclude that they are meritless. Accordingly, we affirm both district
court judgments.
____________
113 Nev. 1185, 1185 (1997) Wheeler v. Upton-Wheeler
JOHN WHEELER, Appellant, v. RUTHANN
UPTON-WHEELER, Respondent.
No. 27073
October 1, 1997 946 P.2d 200
Proper person appeal from a judgment in a divorce proceeding and from an order of the
district court denying appellant's motion for a new trial. Second Judicial District Court,
Washoe County; James A. Stone, Judge.
Husband appealed from judgment in divorce proceeding before the district court. The
supreme court held that: (1) custodial parent's alleged physical abuse of noncustodial parent
during marriage was not ground for reduction or elimination of noncustodial parent's child
support obligation, and (2) husband's physical abuse would support unequal division of
community property only if it had adverse financial consequences.
John Wheeler, In Proper Person, Reno, for Appellant.
Jarold M. Young, Reno, for Respondent.
1. Divorce.
Calculating child support obligation at lower amount than that supported by obligor parent's own testimony was error. NRS
125B.070(1)(b)(1).
2. Divorce.
Custodial parent's abuse of noncustodial parent was not ground to release noncustodial parent from any child support obligation or
to deviate from child support guidlelines. NRS 125B.080(4), (9).
3. Divorce.
Assuming that grounds for unequal distribution of marital property existed, unequal distribution could not be accomplished by
reducing or eliminating noncustodial parent's obligation to pay child support. NRS 125B.080.
4. Divorce.
Trial court's error in calculating amount of child support did not entitle custodial parent to new trial where trial court on remand
could make appropriate determination of amount required by mandatory child support guidelines based on evidence presented at trial.
NRS 125B.080.
5. Divorce.
Except for consideration of economic consequences of spousal abuse or marital misconduct, evidence of spousal abuse or marital
misconduct does not provide compelling reason for making unequal disposition of community property. NRS 125.150(1)(b).
6. Divorce.
Husband's alleged physical abuse of wife would support unequal division of their property only to extent that abuse had economic
impact on wife. NRS 125.150(1)(b).
OPINION
Per Curiam:
FACTS
Appellant John Wheeler and respondent Ruthann Upton-Wheeler were married on
December 21, 1982. The parties have one child, Lindsay Wheeler, born on August 28, 1978.
On July 21, 1993, Ruthann filed a complaint for divorce. A trial was held on September 30,
1994. At the trial, photographs of Ruthann depicting numerous bruises allegedly inflicted by
John were admitted into evidence over the objection of John's counsel. The district court
indicated that the photographs would be admitted for the limited purpose of determining
whether Ruthann's request for an unequal division of community property should be granted.
A judgment was entered on February 24, 1995, granting joint legal custody of Lindsay to
both parties and physical custody of Lindsay to John. Ruthann was granted liberal visitation
rights. The court further ordered that Ruthann's child support obligation would be $436 per
month, payable until Lindsay turned eighteen in two years. The parties' residence was
awarded to John, with John paying Ruthann $18,500 for her fifty-percent portion of the net
equity in the house. John was ordered to pay Ruthann $10,000 by November 15, 1994.
Regarding the remaining $S,500, the court stated that "[Ruthann] shall additionally
receive credit from [John] in an amount equivalent to [Ruthann's] obligation to pay child
support determined at the rate of $436.00 per month which would otherwise have been
paid until the parties' child emancipates."
$8,500, the court stated that [Ruthann] shall additionally receive credit from [John] in an
amount equivalent to [Ruthann's] obligation to pay child support determined at the rate of
$436.00 per month which would otherwise have been paid until the parties' child
emancipates. The district court further stated:
The Court finds that a compelling reason exists to make an unequal disposition of the
community property. The Court bases this finding on a review of the evidence and finds
that an abusive relationship existed between the parties in which the Plaintiff suffered
from Defendant's conduct. Therefore, the Court makes the following division of
property . . . .
As an additional consequence to John for the alleged abuse, the district court determined that
whatever child support obligation remained after the $8,500 payment for the house was
satisfied, Ruthann would not be required to pay. Thus, Ruthann would pay absolutely no child
support.
On March 6, 1995, John filed a proper person motion to set aside the judgment and order a
new trial pursuant to NRCP 59 and 60. Ruthann filed an opposition to John's motion. On
April 11, 1995, the district court entered an order denying John's motion to set aside the
judgment and order a new trial. John appeals from the final judgment and the order denying
his motion for a new trial.
CHILD SUPPORT
John contends that the district court abused its discretion by not following the mandatory
guidelines for a determination of child support. Specifically, John contends that based upon
Ruthann's wage statement, child support should have been awarded at the maximum amount
of $500 per month, rather than $436 per month. John further contends that the district court
abused its discretion in releasing Ruthann from any support obligation because of alleged
fault of John, specifically, his alleged abuse of Ruthann. John argues that this is in clear
violation of Nevada statutes.
[Headnote 1]
We conclude that the district court erred in determining that $436 per month was the appropriate amount of child support based on
Ruthann's income. Under NRS 125B.070(1)(b)(1), a parent's obligation for support for one child is equal to eighteen percent of the parent's
gross monthly income, but not more than $500 per month per child. According to the fourteen-week wage stub admitted at the trial,
Ruthann's monthly income from the MGM Grand was $5,419. Ruthann testified, however, that the wage stub was not an accurate reflection
of her income because Barbara Streisand had appeared at the MGM Grand during that period, and, therefore,
Ruthann's tips were higher than normal.
Barbara Streisand had appeared at the MGM Grand during that period, and, therefore,
Ruthann's tips were higher than normal. Ruthann testified that her weekly income was
actually between $600 and $700. Based on this testimony, Ruthann's monthly income was
$2600 ($600 x 52 weeks/12 months) to $3033 ($700 x 52 weeks/12 months). Even using the
lower estimation of $2600, Ruthann's monthly child support obligation should have been
$468 (18% of $2600). The district court did not provide any basis for its calculation and did
not set forth findings of fact to justify a deviation from the statutory amount. See NRS
125B.080(6)(a). Accordingly, the district court erred in calculating child support at a lower
amount than that amount which was supported by Ruthann's own testimony.
[Headnote 2]
The district court further erred in releasing Ruthann from any support obligation because of John's alleged abuse. NRS 125B.080(4)
states that the minimum amount of support that may be awarded by a court in any case is $100 per month per child, unless the court
makes a written finding that the obligor is unable to pay the minimum amount. NRS 125B.080(9) provides a number of factors which the
court may consider when adjusting the amount of child support, but does not include one parent's physical abuse of the other parent. The
child support portion of the district court judgment in this case states as follows:
The Court finds that based upon Plaintiff's income, child support pursuant to the statutory formula would be approximately
$436.00 per month, payable until the child is emancipated. However, Plaintiff is released from this obligation as part of the
unequal distribution of property justified by the Defendant's abusive conduct towards Plaintiff.
The district court did not cite an appropriate reason to deviate from the mandatory child support guidelines.
[Headnote 3]
Even if a legitimate compelling reason existed to support an unequal distribution of property, such unequal distribution could not be
accomplished by reducing or eliminating Ruthann's obligation to pay child support. In Westgate v. Westgate, 110 Nev. 1377, 887 P.2d 737
(1994), the district court reduced the father's child support obligation in half to penalize the mother for violating the father's visitation
rights. We determined that the district court erred in reducing the father's child support obligation because NRS 125B.080 does not list
punishment for failure to comply with a visitation agreement as a reason to reduce child support. Id. at 1380, 887 P.2d at 739.
Similarly, in the case at hand, the district court did not simply reduce, but completely eliminated Ruthann's child
support obligation because John allegedly abused Ruthann.
reduce, but completely eliminated Ruthann's child support obligation because John allegedly
abused Ruthann. NRS 125B.080 does not list punishment for alleged abuse of a spouse as a
reason to decrease the child support obligation of the abused spouse. Additionally, by
completely releasing Ruthann from any child support obligation, the district court violated
NRS 125B.080(4), which requires that child support be awarded at a minimum of $100 per
month per child, unless the court finds that the obligor is unable to pay the minimum amount.
The district court did not cite any reason, other than the alleged abuse, for releasing Ruthann
from her child support obligation. Consequently, the district court erred in releasing Ruthann
from her obligation.
[Headnote 4]
John further contends that the district court erred in denying his motion for a new trial on this issue. The decision to grant or deny a
motion for a new trial rests within the sound discretion of the trial court and will not be disturbed on appeal absent palpable abuse. Pappas
v. State, Dep't Transp., 104 Nev. 572, 574, 763 P.2d 348, 349 (1988). We conclude that, although the district court erred in calculating the
amount of child support to be awarded, a new trial is not warranted. Accordingly, the district court did not abuse its discretion in denying
John's motion for a new trial on this issue. We remand this issue to the district court for a determination, based on the evidence presented at
trial, of the appropriate amount of child support to be awarded pursuant to the mandatory child support guidelines.
UNEQUAL DISTRIBUTION OF COMMUNITY PROPERTY
John contends that the district court violated NRS 125.150 by making an unequal distribution of community property based on its
assessment that John had physically abused Ruthann during the course of their marriage. NRS 125.150(1)(b) provides that:
In granting a divorce, the court:
(b) Shall, to the extent practicable, make an equal disposition of the community property of the parties, except that the court
may make an unequal disposition of the community property in such proportions as it deems just if the court finds a compelling
reason to do so and sets forth in writing the reasons for making the unequal disposition.
(Emphasis added.) Thus, the issue in this case is whether spousal abuse constitutes a compelling reason to make an unequal distribution
of property.
In 1993, the legislature amended NRS 125.150(1)(b) to provide for an equal division of community property, rather than an equitable
division. See 1993 Nev. Stat., ch. 135, 1, at 240. It appears that in amending NRS 125.150{1){b), the legislature wanted
to ensure that Nevada would remain a no-fault divorce state.
appears that in amending NRS 125.150(1)(b), the legislature wanted to ensure that Nevada
would remain a no-fault divorce state. Prior to the amendment, the district court could
consider the respective merits of the parties in making a just and equitable disposition of
the parties' community property. In amending NRS 125.150(1)(b), the legislature provided
that the district court shall make an equal disposition of the community property, unless the
court finds a compelling reason to make an unequal division. The legislature, however, did
not define the compelling reasons exception to equal division. The legislature did
determine that in divorce proceedings, testimony regarding the relative faults of the parties
could have an adverse effect on the children and could increase the expense of litigation.
Hearing on A.B. 247 Before the Senate Committee on Judiciary, 67th Leg. (Nev., May 10,
1993, and April 30, 1993).
[Headnote 5]
Accordingly, we conclude that, except for a consideration of the economic consequences of spousal abuse or marital misconduct,
evidence of spousal abuse or marital misconduct does not provide a compelling reason under NRS 125.150(1)(b) for making an unequal
disposition of community property. If spousal abuse or marital misconduct of one party has had an adverse economic impact on the other
party, it may be considered by the district court in determining whether an unequal division of community property is warranted.
[Headnote 6]
Consequently, to the extent that it relied on evidence of spousal abuse as it related to the respective merits of the parties, rather than
whether the abuse had an economic impact, the district court erred in making an unequal division of property. We therefore remand this
issue to the district court for a determination, based on the evidence presented at trial, of whether spousal abuse had an adverse economic
impact on Ruthann which would warrant an unequal distribution of the community property. We conclude that no new evidence is
necessary for a determination of this issue and that a new trial on this issue is not warranted. Accordingly, the district court did not abuse
its discretion in denying John's motion for a new trial on this issue. See Pappas, 104 Nev. at 574, 763 P.2d at 349.
CONCLUSION
The district court erred in calculating the amount of child support to be awarded and in relying on evidence of spousal abuse in the
determination of child support. Further, to the extent that it relied on evidence of spousal abuse as it relates to the respective merits of
the parties, rather than whether the abuse has had an economic impact, the district court erred in making an
unequal division of property.
respective merits of the parties, rather than whether the abuse has had an economic impact,
the district court erred in making an unequal division of property. Accordingly, we reverse the
district court's judgment and remand for further proceedings consistent with this opinion.
1
____________
113 Nev. 1191, 1191 (1997) Cooley v. State, Dep't Hum. Res.
MARLA BLANCHARD COOLEY, Appellant, v. THE DIVISION OF CHILD AND
FAMILY SERVICES OF THE NEVADA STATE DEPARTMENT OF HUMAN
RESOURCES, Respondent.
No. 28890
October 1, 1997 946 P.2d 155
Appeal from a termination of a mother's parental rights. First Judicial District Court,
Carson City; Michael R. Griffin, Judge.
Division of Child and Family Services filed petition to terminate parental rights of
teenaged mother. The district court ordered termination, and mother appealed. The supreme
court, Young, J., held that: (1) grounds of abuse, neglect, failure of parental adjustment, and
only token efforts at complying with social worker's case plan supported termination of
parental rights, and (2) consideration of best interests of child supported termination of
parental rights, due to child's confusion and distress caused by mother's immaturity,
selfishness, and indifference.
Affirmed.
Erik R. Johnson, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Donald W. Winne, Jr., Deputy, Carson City, for
Respondent.
1. Infants.
Termination of parental rights requires clear and convincing evidence of both jurisdictional ground, some specific fault or
condition directly related to parent, and dispositional grounds, evaluation of child's best interests.
__________

1
We have considered John's remaining contentions and conclude that they are without merit. Although appellant has not been granted
permission to file documents in this matter in proper person, see NRAP 46(b), we have received and considered appellant's proper person
documents. We deny appellant's motion to proceed in proper person. We further deny appellant's motion to supplement the record and for
sanctions.
directly related to parent, and dispositional grounds, evaluation of child's best interests. NRS 128.105(2).
2. Infants.
Jurisdictional grounds of abuse, neglect, failure of parental adjustment, and only token efforts at complying with social worker's
case plan supported termination of parental rights of teenaged mother. NRS 128.105(2).
3. Infants.
Consideration of best interests of child supported termination of parental rights of teenaged mother, due to child's confusion and
distress caused by mother's immaturity, selfishness, and indifference. NRS 128.105(2).
OPINION
This is an appeal from a district court's order to terminate a mother's parental rights. We
conclude that jurisdictional and dispositional grounds were met and affirm the decision
below.
FACTS
On July 28, 1993, sixteen-year-old Marla Blanchard Cooley (Marla) gave birth to
Christina Ann Louise Blanchard (Christina). The father is Terry James Valladon (Terry).
On July 18, 1995, the Division of Child and Family Services (DCFS) filed a petition to
terminate Marla's parental rights. Trial was conducted on April 10, 1996. On May 17, 1996,
the district court ordered termination of Marla's parental rights.
Shortly after Christina was born, she and Marla moved in with Terry and his mother,
Sheila Bowen (Sheila). They continued to live there until November 1993. While living
there, Marla attended New Horizons, a school for young mothers. Sheila testified at trial that
at least several times a week she received a call from the school because Marla was
unprepared for class. Sheila also testified that during this time period, Terry took primary care
of Christina and that Marla would often forget to feed or change the baby. In addition, the
baby would frequently cry out in pain when she was alone with Marla. Several times Marla
would leave Christina on the sofa unattended where the baby could easily fall off.
In November 1993, Marla took Christina and moved into her mother's rented mobile
home. Sheila testified that Marla called Terry at all hours of the day and night and left
threatening messages. Marla had also filed fraudulent rape and spousal battery charges
against Terry. Sheila was concerned for her family's safety because of Marla's bad temper.
In January 1994, Marla and her family were evicted from their mobile home due to
property damage and nonpayment of rent.
mobile home due to property damage and nonpayment of rent. Melvin Tehle, the landlord,
testified that Marla's family moved into the home in October 1993. Despite the short amount
of time living there, the family completely destroyed the place. He described the condition of
the home as filthy. The toilets were backed up since before Christmas 1993 and contained
feces and urine. The bathtub also contained feces and urine. There was filth underneath the
kitchen sink and all over the kitchen. The carpet had candle wax imbedded into the fibers.
The brand new blinds were destroyed by an animal. There was several months worth of
garbage outside the house. The sewer was leaking in the backyard. He also testified that many
people came and went from the residence. Several animals and as many as nine people lived
there at once, despite the fact that the lease allowed only four people.
In March 1994, Marla contacted DCFS for help taking care of Christina. On March 23,
1994, Marla entered into a homemaker services contract with Susan Hutchinson
(Hutchinson) through DCFS. The goals of the contract were for Marla to learn basic
homemaking, budgeting, and parenting skills. The contract required weekly meetings
between Marla and Hutchinson. However, Marla did not keep many of these appointments.
She would either not show up or would call with an excuse. Eventually, in May 1994,
Hutchinson had to terminate the contract due to Marla's noncompliance.
When Hutchinson visited Marla's home in March 1994, she found it to be absolutely filthy.
She testified at trial that the home was inappropriate and dangerous for a baby. There were
cigarette butts, greasy car parts, and heavy boxes lying around, within easy reach of Christina.
In addition, a handgun was kept on the coffee table.
Around March 30, 1994, Marla entered into a voluntary six-month agreement with DCFS
to give up custody of Christina until Marla complied with a case plan. At the time DCFS
obtained custody, Christina was dirty and sick with a fever and a runny nose. She was placed
into a foster home. On April 28, 1994, after gradually increased visitation, Christina was
placed with Terry, her father. This is where she currently resides.
During Marla's visits with Christina, Marla would display inappropriate behavior.
Specifically, she would introduce her new boyfriends to the baby as daddy, and she would
compete with Christina for toys and affection. On occasion, Marla would throw Christina up
into the air and almost not catch her or she would pick her up by only one of Christina's arms.
Hutchinson also testified that Marla had a bad temper, and when she did not get her way, she
would curse loudly, storm around Hutchinson's office, and slam the door.
Maureen Martin (Martin), Marla's social worker since April 1994, also testified that
Marla's house was filthy and trashed and that Marla had a bad temper. In addition, Martin
testified that Marla's hygiene was so bad that during Marla's visits to the DCFS office, the
other staff members requested Marla's visits take place outside because Marla had severely
offensive body odor.
In July 1994, Marla and Martin had an argument in Martin's office which resulted in Marla
demanding Christina back from DCFS. Martin determined this was not in Christina's best
interest. Although the March 1994 custody agreement allowed Marla the right to take
Christina back anytime, on July 7, 1994, DCFS filed a petition to retain custody of Christina.
In its petition, DCFS alleged that Marla was not complying with the agreement or the case
plan. Specifically, Marla failed to (1) obtain an income, either from a job or welfare; (2)
obtain a decent place to live; (3) attend parenting classes; and (4) comply with the
homemaker contract (which had previously terminated in May 1994 due to Marla's
noncompliance). Martin testified that DCFS tried to provide Marla with the help she needed,
but that Marla simply did not do anything to enable herself to provide care and support for
Christina.
Even after DCFS filed the petition, Marla still did not comply with the case plan. She
made a few minor attempts, but never finished anything she started. Not one item in the case
plan was ever accomplished. After Marla failed to show up for the first two evidentiary
hearings regarding custody, the district court finally heard the matter on September 16, 1994.
The court determined that Marla was unable to provide for Christina's needs; therefore,
Christina was made a ward of the court.
At the termination trial, another former landlord testified that Marla and her family moved
into his mobile home on July 1, 1994. Within approximately one week, he visited the home
and observed that they had not yet turned on the electricity, despite the fact that children,
including infants, lived there. He also noticed that although only one week had passed, the
place was already unsanitary and in disrepair. This included the presence of feces, dirt, and a
terrible stench. On one occasion, he told Marla to clean the place. The landlord testified that
Marla became abusive and used foul language while yelling at him. Although he evicted the
family very shortly after they moved in, the place was damaged to the extent that it cost him
$350.00 for cleaning and repair. This was in addition to the $720.00 they still owed him for
rent. All together, Marla and her family lived there for twenty-five days before being evicted.
At the end of July 1994, DCFS found out that Marla was pregnant and not obtaining
prenatal care.
pregnant and not obtaining prenatal care. Therefore, DCFS attempted to help Marla obtain
welfare so she could receive prenatal care. However, Marla failed to keep her appointments
with the welfare office. On October 6, 1994, the district court finally ordered Marla to obtain
Medicaid through welfare in order to have prenatal care.
1
On August 24, 1994, Marla entered into a second homemaker contract with Hutchinson.
This contract provided for extensive training and commitment by Marla. However, Marla still
failed to comply with this contract and showed up only occasionally to the twice weekly
meetings. Marla also did very poorly on tests that Hutchinson administered during their
sessions despite Hutchinson's thorough review of the material with Marla. Marla told
Hutchinson that she knew how to raise Christina and that she did not believe her living
conditions were harmful to Christina.
In August 1994, Marla told Martin that she was considering giving Christina up for
adoption. Martin testified that Marla discussed this option on and off with her, although
Martin never initiated the subject.
In October 1994, Marla married James Cooley (James). In December 1994, Marla and
James moved to Ely. At this time, the second homemaking contract was terminated. In
February 1995, Marla gave birth to her son, Christopher, in Reno. He was six weeks
premature. Marla eventually relinquished her parental rights regarding him because she did
not want the burden of a special needs baby, despite the fact that there was no evidence that
he required special need. While Marla was in the hospital in Reno, Hutchinson took Christina
to visit Marla. Marla cut this visit short because she preferred to play Nintendo video games.
Marla did not visit with Christina again until September 1995 when she started once per
month visitation.
Because James had difficulty finding steady work, he and Marla moved back to Carson
City in approximately June 1995. There, according to James, they bounc[ed] around . . .
from place to place. At trial, the district court questioned James about whether he or Marla
had ever paid child support for Christina. James testified that they never paid anything
because they have rent and everything else to pay. After pressing the matter, the court
observed that Marla and James had money to feed their several dogs and cats, but no money
to pay support for Marla's daughter.
At trial, Martin testified that Christina's best interest is to terminate Marla's parental rights
and leave Christina in the custody of her father, Terry. Terry is gentle, responsive and aware
of Christina's health, mental, and support needs.
__________

1
The record does not indicate whether Marla complied with this order.
Christina's health, mental, and support needs. Martin specifically testified that she foresees no
problem with Terry being a single parent. She also testified that Christina needs to get on
with her life. Terry fears that he cannot protect Christina from Marla because she has
threatened to take Christina and run away to California. Martin also testified that there is a
great risk of Marla neglecting Christina if allowed to continue her relationship with her
daughter. Finally, Martin testified that Marla was just as immature and incapable of taking
care of a child at the time of trial as she was when she first approached DCFS for assistance
two years prior.
Marla testified at trial. In response to the question as to why her parental rights should not
be terminated, Marla responded,
Cuz I gave up my childhood for that child. . . . I gave up my childhood. I got pregnant at
15, had her at 16, and I tried my best with her. . . . I was 15. And after I got pregnant, I
went through nine months. I was in the hospital half my pregnancy . . . . [A]fter
Christina was born, I was basically just getting up in the mornings, in the middle of the
night, five times, five times a night, and that's the way I figured to myself, that's how I
figured I gave up my childhood, because I lost a lot of sleep. I lost a lot of things.
On May 17, 1996, the district court filed the order terminating Marla's parental rights. The
court found that beyond any doubt Marla is presently and in the foreseeable future unable to
care for Christina, lacks parental skills, and cannot provide a stable home. The court
concluded that beyond all doubt Marla abandoned Christina, by providing no monetary or
emotional support. The court also concluded that more than clear and convincing evidence
established that Marla abused and neglected Christina by placing her in an unsanitary and
dangerous environment. The court specifically pointed out that Marla is immature, selfish,
and indifferent. It also found that termination is in Christina's best interest because the
continuing needs of a child for proper physical, mental, and emotional growth and
development . . .' are not, and will not, be met by Marla. See NRS 128.005(2)(c). The court
also pointed out that Marla seems to resent Christina more than love her. Finally, the district
court stated that Christina needs parenting now, and should not defer her needs until Marla
decides she wants to be a parent. On June 14, 1996, Marla filed a notice of appeal.
DISCUSSION
[Headnote 1]
Termination of parental rights requires satisfaction of two grounds: jurisdictional and dispositional. Champagne v. Welfare Division,
100 Nev. 640, 646
Division, 100 Nev. 640, 646, 691 P.2d 849, 854 (1984). Jurisdictional grounds require that
some specific fault or condition directly related to the parent be found. Id. NRS 128.105(2)
sets forth the conditions as (a) abandonment; (b) neglect; (c) unfitness of the parent; (d)
failure of parental adjustment; (e) risk of serious physical, mental, or emotional injury to the
child if he remains with the parent; or (f) only token efforts by the parent. At least one of
these conditions need exist for the jurisdiction requirement to be satisfied. NRS 128.105(2).
Dispositional grounds require an evaluation of the child's best interest. Champagne, 100 Nev.
at 646, 691 P.2d at 854. Clear and convincing evidence of these two grounds must exist to
terminate a parent's rights. Id. at 648, 691 P.2d at 854.
Jurisdictional grounds
The district court found that jurisdictional grounds to terminate Marla's rights were
abandonment, abuse, neglect, failure of parental adjustment, and only token efforts. The judge
also specifically pointed out that Marla lacks basic parenting skills and is unable to provide
care for Christina.
With regard to abuse and neglect, Marla argues that since Christina had been in DCFS's
custody since March 1994, Marla could not have abused or neglected her during that period
of time. However, Marla offers no argument to dispute whether she abused and neglected
Christina when she was in her care, or whether Marla would not abuse or neglect her child in
the future if her rights are not terminated.
After a thorough review of the facts in the record, we conclude that the district court did
not abuse its discretion by finding clear and convincing evidence of abuse and neglect.
With regard to the failure of parental adjustment, Marla's only allegation against this
ground is that the [DCFS] wants to terminate their [custody] case because they are frustrated
by dealing with an immature teenager who will not do what she is told and the desire to
punish her for her disobedience. (Emphasis added.) Marla does not dispute that she has
failed to comply with her case plan; rather, she admits it in the previous quote from her
appellate brief.
We conclude that the district court did not err in finding failure of parental adjustment, as
Marla never accomplished one goal in either of her homemaking contracts or the case plan.
Additionally, Marla would not follow through on any task for which DCFS provided her with
assistance. This includes attending an appointment with welfare to receive ADC, Medicaid,
and prenatal care.
In her brief, Marla does not dispute, nor even mention, the abandonment ground or the
token efforts ground. She instead argues that DCFS did not put forth enough reasonable
efforts to help Marla comply with her case plan.
argues that DCFS did not put forth enough reasonable efforts to help Marla comply with her
case plan. Marla states that the only efforts by DCFS were the two brief periods of
homemaker intervention. She then argues that in light of the fact that she is immature, only
sixteen years old, and comes from a dysfunctional family, DCFS's services were inadequate.
Martin and Hutchinson both testified as to the efforts they put forward in helping Marla
comply with her case plan. They testified that Marla had a very short attention span and
would never finish anything she started. Hutchinson also testified that she has worked with
other sixteen-year-old mothers who put forth reasonable efforts to take care of their babies;
therefore, Marla's age should not be an excuse.
[Headnote 2]
Accordingly, we conclude that the court could reasonably have found clear and convincing evidence that jurisdictional grounds exist.
Dispositional grounds
The district court found that Christina's best interests requires termination of Marla's parental rights. Specifically, the court stated that
Marla is unable or unwilling to provide for Christina's needs for physical, mental, and emotional development. Currently, Christina is living
with her father, Terry. Both Martin and Sheila testified at trial that Terry takes good care of Christina and meets all her needs. They also
testified that Christina needs to get on with her life and not live in fear that Marla is going to abduct her and leave the state, as Marla had
already indicated she would do. The court found that Christina's confusion and distress were caused by Marla's immaturity, selfishness,
and indifference.
Marla disputes that Christina's best interests are served by termination of Marla's parental rights. She argues that one day Terry,
Christina's father, may develop significant failings that render him unfit; therefore, Christina would became a legally created orphan if
Marla's rights have been terminated. However, she has presented no evidence, nor even mere allegations, that Terry is not a good father or
will not continue to be one in the future. On the contrary, Martin specifically testified that Terry is a good father to Christina and she has
confidence that he will continue to be a good father in the future. Consequently, we are not persuaded by Marla's argument.
Marla next argues that although she is currently too immature to be a good parent for Christina at the present time, she may one day in
the future achieve the maturity necessary for parenting. According to her, if that day comes, she will want to be a good parent for
Christina, who will need a mother.
parent for Christina, who will need a mother. Therefore, she avers that there is no harm in
keeping this case open for periodic review until that day comes. She alleges that it would be
more harmful to terminate her rights now because then she will never have a chance in the
future to be a mother to Christina.
We remain unconvinced that Marla's immaturity should be an excuse to provide minimal
efforts, at best, in being a parent to Christina. Marla bases her whole reasoning on a mere
possibility that one day she might decide to be a parent. We agree with the district court that
Christina needs a parent now.
[Headnote 3]
Additionally, when asked at trial why her rights should not be terminated, she did NOT answer that she loves Christina or wants the
chance to be a good parent. Instead, she stated that she gave up a lot of sleep and her childhood for Christina. The district court determined
that resentment does not make for a good parent, either now or in the future. We agree.
Our dissenting colleague alleges that our decision in this case has added the new ground, immaturity.' He bases this contention on
the fact that Marla was fifteen years old when Christina was born.
2
We dispute the dissenter's accusation that we are affirming termination
of Marla's parental rights based on her immaturity. On the contrary, her age was not a factor in our decision, nor was her level of maturity.
Rather, our review of the record revealed that Marla's conduct and behavior with respect to Christina rises to the level of clear and
convincing evidence that the stated jurisdictional grounds exist and that termination is in Christina's best interest.
Therefore, we wish to make clear that immaturity, poverty, and disability, the alleged new grounds our fellow justice points out in his
dissent, are not factors for our decision in this case, nor have they been factors in other termination of parental rights cases. We understand
our colleague's concern in these tragic cases. However, we emphasize that we do not take these cases lightly.
Accordingly, we conclude that the district court did not err in finding clear and convincing evidence of the requisite jurisdictional and
dispositional grounds for termination of Marla's parental rights. Therefore, we affirm.
3
Shearing, C. J., and Rose, J., concur.
__________

2
However, the dissenting justice does not state whether he would still dissent to this decision had Marla been an adult throughout this
matter.

3
I have had occasion to file dissents in termination of parental rights cases five times in the
past fourteen months.
1
In these dissents I have noted what appears to be a new public policy
instituted by the State in these matters. The State's policy appears to have led to an escalating
number of termination cases brought by the State, particularly with respect to parents who are
poor or disabled. What strikes me as being most troublesome about the State's new policy is
that termination of parental rights in each of the five mentioned cases in which I have
dissented has been unnecessary and contrary to the best interest of the children as well as the
parents. It is one thing to remove a child, in the child's best interest, from the home of poor or
mentally disabled parents; it is quite another thing to sever the natural parents' rights just
because the children have been placed in what state welfare officials see as a better home.
In none of the five cases in which I have dissented has the court made a specific finding in
accordance with Champagne v. Welfare Division, 100 Nev. 640, 652, 692 P.2d 849, 858
(1984), that under no reasonable circumstances [can] the child's best interest be served by
sustaining the parental tie. What the State seems to be doing, time after time, is simply
weighing the new foster home against the home of the poverty-stricken or handicapped
natural parents and pleading to the court that it is in the best interest of the child that the child
be given some new parents.
In at least some among the rash of recent termination cases I have been satisfied that the
welfare of the children would probably be best served by permitting the children to remain for
the time in the foster home, but this fact certainly does not justify severing all parental ties
with the natural parents, forever.
The present case presents perhaps the most pernicious example of the consequences of the
State's new parental termination policy. In this case, with no conceivable benefit to the
mother or child, the State terminated the mother's parental rights. The consequence of the
termination was that the child had a father but no mother. As in all of the other mentioned
cases in which I have dissented, I find no advantage to the child that can result from the
elimination of one of its parents.
__________

1
Matter of the Parental Rights of Gonzales, 113 Nev. 324, 933 P.2d 198 (1997) (parent temporarily
indisposed and unable to attend to parental duties); Matter of Parental Rights as to Bow, 113 Nev. 131, 930 P.2d
1128 (1997) (abject poverty); Matter of Parental Rights as to Deck, 113 Nev. 124, 930 P.2d 760 (1997)
(schizophrenic parent); Matter of Parental Rights as to Bush, 112 Nev. 1298, 929 P.2d 940 (1996) (mentally
deficient parents); Matter of Parental Rights as to Weinper, 112 Nev. 710, 918 P.2d 325 (1996) (fraudulently
presenting duplicate of prior welfare report in lieu of current status report and not informing court of events
during review period denies parent opportunity to comply with reunification plan).
elimination of one of its parents. Permanently dissolving the mother-child relationship in this
case because the mother was immature just happens to be the most horrible example of the
excesses being engaged in by the State in the name of the best interests of children.
Ms. Cooley, the former mother of the now-motherless child in this case, is not a vampire,
she is just an immature teenager. We have here an unmarried teenage mother who loves her
child but who was forced to give up custody of her child while she was struggling for
existence in the grossly inadequate home of her mother. As I see it, we are witness in this
case to the development of a new virtual ground for termination of parental rights. Added
to the customary grounds of poverty and disability we now have the new judicially-created
ground for termination, immaturity.
2
This mother was only fifteen when she gave birth to
her daughter Christina; and, rather than give this teenage mother a chance to grow into a state
in which she could have responsibly assumed the duties of motherhood, the State rushed to
take her motherhood away from her and, with the help of this court, has vested exclusive
parenthood in the mother's teenage boyfriend, the father of the child.
__________

2
The actual, stated grounds employed in this case and in the other poverty/disability cases that are of concern
to me are not, of course, poverty and disability but, rather, euphemisms for poverty and disability, words like
abandonment, neglect, and failure to provide token efforts to support. In her opening brief, this mother
describes the grounds for termination used by the State against her as boiler plate, and I agree. In all of these
cases the State contrives some kind of abandonment as a grounds for termination and attempts to show that the
mother has failed to support her child and that, therefore, the parental relationship should be severed. I find it
interesting that all of the legal grounds for termination pleaded by the State in this case are incidents of this
mother's immaturity or her abject poverty; e.g., that she has not even provided any token efforts to support
Christina, that she has not provided emotional support for Christina, that she has not nurtured Christina,
and, most significantly, that she is unable or unwilling to provide for Christina's proper physical . . .
development. (State's Answering Brief at 8; my emphasis.) As is shown in the text, during most of the time after
the birth of her child this mother was forced to live in squalid conditions of ground-down poverty. It is true that
for a period of time neither Ms. Cooley nor her mother (with whom she and the child lived) were financially able
to provide for the child, physically or otherwise. What I find to be wrong about this case is that the trial court
adjudicated this mother to be permanently immature and poor, groundlessly predicting and ruling that she will
continue in the future to neglect Christina. (Id.)
With particular reference to immaturity as a ground for termination, I note that the trial court made a
specific conclusion of law that this mother caused distress to her child by reason of the mother's
immaturity, selfishness and indifference. One of the principal witnesses for the State, Susan Hutchinson,
Visiting Homemaker III, answered in the affirmative when she was asked if it was [f]air to say that what you
were dealing with waswell, immaturity, to a large extent? Perhaps the majority is not, as it claims, affirming
termination . . . based on [the mother's] immaturity; still, it is clear to me that the trial court based its conclusion
of law on immaturity, to a large extent.
motherhood away from her and, with the help of this court, has vested exclusive parenthood
in the mother's teenage boyfriend, the father of the child.
When I refer to the ground of immaturity as being added to the customary grounds of
poverty and disability, I am, of course, being rhetorical. I realize that poverty, disability
and immaturity do not, in these terms, provide statutory grounds for termination of the right
of a natural parent; I am merely saying that in actuality poverty, disability or immaturity are
being successfully used by the State as de facto grounds for termination in case after case that
I have observed coming before this appellate court. This being said, I will go on to describe
how poverty and temporary immaturity (temporary unless we agree with the trial court that
this teenage mother is permanently immature) have caused this child to be separated from her
mother forever.
A closer examination of the facts in this case reveals the tragedy of having permanently
taken this child away from her mother. I take the following facts directly from the State's
brief. The State tells us that Ms. Cooley and her family have a record of poverty and a long
history with the Division. Ms. Cooley and her family were being evicted shortly after
Christina was born, and Cooley had no place to go with the baby. After the eviction, Ms.
Cooley and her child temporarily lived with her boyfriend's mother, after which Ms. Cooley
and her child moved back in with Ms. Cooley's mother. According to the State, Ms. Cooley
and her child were there exposed to appalling living conditions and overcrowded
conditions. There were as many as nine people living in the mobile home, including two
girls with infants. Backed-up toilets remained unrepaired, and the place was generally a
disaster. One observer saw candle wax on the carpet, where some one burned a candle on
the rug, apparently in a feeble attempt to acquire some light or heat in the place.
The condition of Ms. Cooley's mother's abode and non-payment of rent caused the
family to be evicted again in January of 1994, when Christina was only five months old.
Where Christina and her mother lived for the next several months is not clear; but, on
April 6, 1994, because Cooley signed a voluntary placement agreement admitting she could
not care for the child and needed some help, state welfare officials removed Christina from
Ms. Cooley's custody.
After Christina's removal Ms. Cooley continued to live with her mother in the worst of
circumstances, often without electricity, and in circumstances in which the child could not
properly be immediately returned to her mother. The State did make some attempts to
reunite Ms. Cooley with her daughter, principally by ordering her to attend parenting and
Homemaker sessions. The State's account of its attempt to make a suitable mother and
homemaker out of the homeless Ms.
The State's account of its attempt to make a suitable mother and homemaker out of the
homeless Ms. Cooley shows, understandably, that very little progress was made along these
lines. The record shows that the immature Ms. Cooley often giggled during training
sessions and did not pay enough attention to learn what was presented to her.
I have no reason to question the State's judgment that at the time this young mother was
fifteen and sixteen years old and forced to live with her mother in the squalid conditions that I
have described, placement of Christina with her mother, at least temporarily, was
inappropriate. It may have been in this child's best interest that she be removed from her
mother's custody for a while. What is clearly not in the best interest of the child or the best
interest of the mother is the permanent severance of the mother's parental rights. This point is
well made by Ms. Cooley in her Reply Brief:
If [Ms. Cooley's boyfriend] fails as a parent and this termination is affirmed,
Christina essentially will become an orphan who will be raised by her grandmother or
in foster care. She would be precluded from being raised by her mother who, by then,
may have learned from her mistakes and corrected her shortcomings.
On the other hand, what harm is done to Christina by reversing the termination and
allowing Marla [Cooley] to continue to be a party to Christina's NRS 432B case? As
was emphasized in the Opening Brief and ignored by the State, this is not a custody
battle. Unless future circumstances warrant it, Christina's placement with her father
will not change. There is no reason that any adjustments in Christina's placement
cannot be properly resolved by future custody hearings. So long as [Ms. Cooley's
boyfriend] is a fit parent and until Marla matures and realizes the need to develop her
parenting skills, the father would retain physical custody of Christina. DCFS would
only need to deal with Marla once every six months at a review hearing until such time
as she decided to actively pursue her case plan and become a responsible parent.
Normally, termination is necessary to free the child for adoption, but that is not the
case here as Christina is not being adopted. All termination would accomplish for
Christina is to limit her options in the future by eliminating any possibility of contact
with her mother until adulthood. The permanent severance from her mother is not in
this young girl's best interests.
It is also difficult to understand why the State wants to terminate Marla's
responsibility to support her daughter. The State apparently assumes that Marla will
be an immature teenager forever.
The State apparently assumes that Marla will be an immature teenager forever. The
State is, therefore, willing to forgo the possibility of any support payments that
otherwise would accrue over the next fourteen to fifteen years. That seems to be a
substantial price to pay to remove Marla from the DCFS caseload.
(Emphasis in original.)
I would not, as does quoted counsel, go so far as to blame Ms. Cooley's tragic loss of her
daughter (termed by this court as the Capital Punishment of Welfare Law) on the State's
desire to reduce its caseload; but I simply cannot find any benefit to either the child or the
child's mother to be derived from adjudicating Ms. Cooley's boyfriend to be the sole parent of
the child born to Ms. Cooley.
Termination in this case meets neither the jurisdictional grounds nor the dispositional
grounds set out in Champagne v. Welfare Division, 100 Nev. 640, 692 P.2d 849 (1984); and,
more importantly, Ms. Cooley's constitutional rights, state and federal, have been violated by
the State's groundless permanent severance of her parental rights.
____________
113 Nev. 1204, 1204 (1997) Matter of Davis
In the Matter of THE HONORABLE GARY J. DAVIS, Municipal Court Judge, for the City
of North Las Vegas, County of Clark, State of Nevada.
No. 27757
October 1, 1997 946 P.2d 1033
Appeal from final report of proceedings, findings of fact, conclusions of law, and decision
of the Nevada Commission on Judicial Discipline removing appellant from his judicial office
as municipal court judge for the City of North Las Vegas.
Municipal court judge appealed decision of the Nevada Commission on Judicial Discipline
removing him from office. The supreme court, Rose, J., held that: (1) there is no due process
right to period of limitations within which judicial discipline complaint must be filed; (2)
Commission was entitled to consider fact that judge wrongfully asserted his Fifth
Amendment privileges during disciplinary hearing before the Commission; and (3) removal
from office was appropriate discipline for borrowing money from court employees, publicly
endorsing and campaigning for candidate for justice of the peace, using chambers to conduct
personal business, suggesting that criminal defendants contribute money to charities, and
failing to comply with zoning law.
conduct personal business, suggesting that criminal defendants contribute money to charities,
and failing to comply with zoning law.
Affirmed.
Leonard I. Gang, General Counsel and Executive Director, and Frank Cremen, Special
Prosecutor, Nevada Commission on Judicial Discipline, Carson City, for Nevada
Commission on Judicial Discipline.
Davidson & Myers, Las Vegas, for Gary J. Davis.
1. Judges; Justices of the Peace.
Although amendment to constitutional provision facially expanded scope of powers of Commission on Judicial Discipline to
include municipal court judges and justices of the peace, in actuality, amendment simply clarified legislature's then existing authority
to render those judicial officers subject to Commission discipline, and thus, legislature's promulgation of statute giving Commission
exclusive jurisdiction over censure, removal, and involuntary retirement of justices of the peace and municipal court judges was within
its constitutional prerogatives. Const. art. 6, 21(9)(d); NRS 1.440(1).
2. Judges.
Commission on Judicial Discipline had jurisdiction to either remove or impose any measure of discipline, including removal, on
municipal court judge. Const. art. 6, 21(9)(d); art. 7, 4.
3. Constitutional Law; Judges.
Absence of limitations period for filing complaint with Commission on Judicial Discipline did not violate municipal court judge's
due process rights. Commission took practical approach in considering date of alleged misconduct and whether judge had cured the
misconduct, and Commission did not consider remote acts unless they were part of recurring pattern of conduct. U.S. Const. amend.
14.
4. Judges.
Commission on Judicial Discipline was entitled to consider fact that municipal court judge wrongfully asserted his Fifth
Amendment privileges during disciplinary hearing before the Commission, along with the severity of the alleged offenses, when
determining extent and type of appropriate discipline. U.S. Const. amend. 5.
5. Judges.
Commission on Judicial Discipline could consider municipal court judge's demeanor at disciplinary hearing in process of
determining appropriate sanctions to be imposed.
6. Judges.
Fact that some members of Commission on Judicial Discipline previously had found there was probable cause to believe
municipal court judge had committed perjury did not necessarily establish bias on Commission's part and did not require that
Commissioners be disqualified from participating in formal disciplinary hearing.
7. Judges.
In reviewing findings of fact of Commission on Judicial discipline, supreme court is confined to determination of whether
evidence in record as a whole provides clear and convincing support for Commission's findings.
8. Judges.
Factual findings of Commission on Judicial Discipline may not be disregarded on appeal merely because circumstances involved
might also be reasonably reconciled with contrary findings of fact; however, supreme court is not bound by Commission's conclusions
of law.
9. Judges.
Evidence clearly and convincingly established that municipal court judge publicly endorsed candidate for public office in violation
of Code of Judicial Conduct. Videotape showed judge approaching and knocking on door of house while wearing campaign shirt,
homeowner testified that she did not know judge, and he was seen with a group of people going door-to-door and personally erecting
campaign signs. Code of Jud. Conduct, Canon 5(A)(1)(b).
10. Judges.
Evidence established that municipal court judge conducted personal business in his chambers in violation of Code of Judicial
Conduct, although judge alleged that there was insufficient evidence to establish a business. Photographs depicted a vast inventory
of antiques, and judge's testimony that he merely enjoyed having them displayed was virtually beyond belief. Code of Jud. Conduct,
Canons 2, 4(D(1)(a).
11. Judges.
Municipal court judge's ill-advised conduct in taking two uniformed marshals to automobile dealership where he berated and
intimidated an employee with threat that city would never purchase another vehicle from dealership because court had not yet received
ordered vehicles did not constitute a sufficiently serious violation of Code of Judicial Conduct canon, providing that public confidence
in judiciary is eroded by irresponsible or improper conduct by judges, to warrant discipline. Code of Jud. Conduct, Canon 2.
12. Judges.
Municipal court judge's using court employee to drive him to work, to perform translating services at his mother's nursery
business, and to accompany him while he looked for antiques violated Code of Judicial Conduct canon prohibiting judge from
engaging in conduct that interferes with proper performance of judicial duties but did not violate Code of Judicial Conduct canons
requiring judge respect and comply with law and to not demean judicial office. Code of Jud. Conduct, Canons 2(A), 4(A)(2), (3).
13. Judges.
Municipal court judge violated Code of Judicial Conduct canon prohibiting judge from participating in solicitation of funds, or
other fund-raising activities, when judge suggested that criminal defendants contribute money to charities on a list he had prepared in
lieu of paying fines to city. Code of Jud. Conduct, Canon 4(C)(3).
14. Judges.
Clear and convincing evidence established that municipal court judge violated Code of Judicial Conduct canons, requiring judge
to uphold integrity and independence of judiciary and requiring judge to avoid impropriety, when he failed to comply with the law
even after he had been advised of zoning violations. Code of Jud. Conduct, Canons 1, 2(A).
15. Judges.
Nevada Constitution expressly authorizes supreme court to reverse sanction imposed by Commission on Judicial Discipline or take
any alternative action; thus, on appeal, supreme court is specifically enjoined by constitution to exercise its independent judgment
regarding appropriate sanction warranted by factual findings properly adduced by Commission. Const. art. 6, 21(1).
16. Judges.
Removal of municipal court judge from office was appropriate discipline for borrowing money from court employees, publicly
endorsing and campaigning for candidate for justice of the peace, using chambers to conduct personal business, suggesting that
criminal defendants contribute money to charities, and failing to comply with zoning law. Code of Jud. Conduct, Canons 1, 2 2(A),
4(C)(3), (D)(1)(a); Commission on Judicial Discipline Rule 11 (3).
OPINION
Appellant Gary J. Davis appeals findings of fact, conclusions of law, and the decision of
the Nevada Commission on Judicial Discipline (Commission) removing him from his
judicial office as a municipal court judge. We conclude that the Commission properly acted
within its discretion and affirm its determination in the matter.
FACTS
On November 22, 1993, two complaints were filed with the Commission against appellant
Gary J. Davis, municipal court judge for the City of North Las Vegas.
1
Following a
confidential probable cause hearing on August 2, 1995, the Commission found that there was
probable cause for disciplinary action. Thereafter, a ten-count formal statement of charges
was filed
2
on October 2, 1995: 1.
__________

1
The complaints were filed by Georgia Nunez and Marilyn Bell. Nunez had been working at the municipal
court as a clerk when appellant first took office. Over time, appellant promoted Nunez until she became the court
administrator in 1988; however, on October 7, 1993, appellant fired Nunez. Marilyn Bell had worked in various
positions, including court clerk, at the municipal court. She began working there before appellant took office,
and she retired on January 31, 1995. Bell and Nunez were close friends. Nunez also has a civil suit pending
against appellant and the City of North Las Vegas.

2
The Commission hired Frank J. Cremen to act as the special prosecutor; he filed the formal statement of
charges as a public document, as required by the Administrative and Procedural Rules for the Nevada
Commission on Judicial Discipline (ARJD) Rule 16. At that point, as specified by the rule, all confidentiality
ceased.
1. That in violation of ARJD 11(3) and Canons 4(D)(1)(a) and 4(D)(1)(b),
[appellant] borrowed money from court employees, including, but not limited to,
Marilyn Bell, on January 24, 1985, the sum of $2,500.00; Linda Stiles, in August of
1993, the sum of $500.00; Don Cola, in August of 1993, the sum of $450.00; and
Georgia Nunez, on repeated occasions, various sums including the sum of $500.00 on
September 11, 1992, the sum of $260.00 on June 7, 1991, and the sum of $100.00 on
February 21, 1991.
2. That in violation of ARJD 11(3) and Canon 5(A)(1)(b) of the Code of Judicial
Discipline, [appellant], on or about August 5, 1994, publicly endorsed and campaigned
for Robert Archie, a candidate for judicial office in the City of North Las Vegas.
3. That in violation of ARJD 11(3) and Canons 2, 4(D)(1)(a) and (b), [appellant]
did, between the years of 1981 through 1993, conduct a personal business from [his]
chambers in the North Las Vegas Municipal Court building by storing antiques therein
and selling those antiques to persons likely to come before the court.
4. That in violation of ARJD 11(3) and Canons 2 and 4(D)(1)(a) and (b), [appellant]
did, between 1981 and 1983, deliver [his] personal checks to the office of the clerk of
[his] court and take cash from fines collected through the court, utilizing those funds
for [his] own benefit for several days, and thereafter redeeming [his] personal check
from the court.
5. That in violation of ARJD 11(3) and Canon 2(A), [appellant] did, from 1991
through 1993, cause to be played, from a jukebox in [his] chambers in the North Las
Vegas Municipal Court building, inappropriate songs such as Jail House Rock and
other songs related to being in prison or jail in the presence of prisoners waiting for
arraignment before the court.
6. That in violation of ARJD 11(3) and Canon 2(A), [appellant] did, sometime
between December 9, 1992 and February 23, 1993, take Georgia Nunez of [his] court
clerk's office and two uniformed court marshals to the automobile sales business of
Friendly Ford in Las Vegas, Nevada, and there berate and intimidate an employee of
that company because of [his] anger at not having yet received automobiles ordered for
the court by the City of North Las Vegas, and that [he] did threaten that employee with
never purchasing another vehicle from Friendly Ford.
7. That in violation of ARJD 11(3) and Canon 2(A) and Canon 4(A)(2) and (3),
[appellant] did, between 1981 and 1993, on multiple occasions, direct court
employees, including, but not limited to Georgia Nunez and Linda Roybal, during
business hours, to leave the North Las Vegas Municipal Court premises and go to the
nursery business owned by [his] mother to provide Spanish translating services,
and that [he] did direct other court employees, including Don Cola and Linda Stiles,
to perform other personal errands for [him] during court hours.
1993, on multiple occasions, direct court employees, including, but not limited to
Georgia Nunez and Linda Roybal, during business hours, to leave the North Las Vegas
Municipal Court premises and go to the nursery business owned by [his] mother to
provide Spanish translating services, and that [he] did direct other court employees,
including Don Cola and Linda Stiles, to perform other personal errands for [him]
during court hours.
8. That in violation of ARJD 11(3) and Canons 1, 2(A) and 4(C)(3)(b)(i) & (iv),
[appellant] did, from March, 1991 through February, 1992, direct or suggest to persons
appearing before the North Las Vegas Municipal Court and having been found guilty by
that court, to contribute to certain charities in lieu of paying fines to the City of North
Las Vegas, thereby diverting money from the city treasury of North Las Vegas, which
diversion was ordered partially for the purpose of enhancing [his] electability.
9. That in violation of ARJD 11(3) and Canons 2 and 3(B)(7), [appellant] did, on
the 29th day of May, 1990, conduct an ex parte meeting with Patricia Brown, a
defendant appearing before [him] that day, outside of the presence of the City Attorney
of North Las Vegas, prior to the matter being heard in open court.
10. That in violation of ARJD 11(2) and ARJD 11(3) and Canons 1 and 2(A),
[appellant] did, commencing in December 1993 and continuously thereafter, willfully
and deliberately use property owned in part by [appellant] in North Las Vegas, Nevada
that was zoned for residential purposes, for commercial purposes, after having been
personally advised in writing by the Community Planning and Development
Department of the City of North Las Vegas on July 14, 1993 of the proper zoning for
that property. Further in conjunction with [the] commercial usage of this property, [he]
did willfully and deliberately trespass on the property of the adjoining property owner
for the purposes of hooking up water and sewer lines.
A formal hearing convened on November 2, 1995, and concluded the following day. The
Commission then issued its final report, findings of fact, conclusions of law, decision, and
imposition of discipline on December 4, 1995. The Commission found that clear and
convincing evidence supported the factual allegations contained in each count of the formal
statement of charges, with the exception of Count 9 (ex parte communication with defendant
Patricia Brown). Additionally, the Commission concluded that these facts established
violations of the specific provisions of the Nevada Code of Judicial Conduct (NCJC)
alleged in each count and that these violations constituted grounds for discipline.
in each count and that these violations constituted grounds for discipline.
The Commission also concluded that, although the conduct alleged in Count 4 (check
cashing) had been established, appellant had discontinued the practice in a timely fashion;
therefore, discipline would be inappropriate. The Commission was particularly concerned
with Count 10, which it described as particularly egregious because appellant deliberately
and knowingly violated the very ordinances that he is obligated to enforce. Additionally, the
Commission considered appellant's conduct at the formal hearing as clearly and
convincingly demonstrat[ing] his contumacious and contemptuous behavior towards the
Commission.
3
By a vote of six of the seven Commissioners, the Commission ordered
appellant's immediate removal from office.
Commissioner Michael R. Griffin filed a dissent to the imposition of discipline. Although
Commissioner Griffin agreed with the Commission's findings, he concluded that removal
from judicial office was unduly severe. Instead, he suggested that appellant's misconduct
warranted substantial sanctions including a censure, attendance at an ethics course, and a fine.
However, Commissioner Griffin stated there is a serious question whether the Commission
could impose lesser types of discipline on a Municipal Court Judge for conduct which
occurred before the adoption of the recent amendments to the Nevada Constitution
concerning the powers of the Commission.
On appeal, appellant seeks relief from the Commission's decision based upon the
following grounds: (1) that the Commission lacked jurisdiction to impose discipline on a
municipal judge; (2) that the Commission's rules violated his due process rights because there
is no limitations period prescribing the time within which a complaint must be filed; (3) that
the Commission improperly considered his assertion of a blanket Fifth Amendment privilege
in deciding the appropriate discipline; (4) that the Commissioners who participated in the
probable cause hearing were prejudiced against him and, therefore, should not have
participated in the formal hearing and decision; (5) that the charges were not established by
clear and convincing evidence; (6) that the charges did not constitute violations of the NCJC;
and (7) that the discipline imposed was excessive.
__________

3
Appellant asserted a blanket Fifth Amendment right to refuse to answer virtually all questions addressed to
him by the Commission. Given the extent to which appellant withheld his cooperation in the hearing, it is readily
understood why his actions were viewed as being disdainful of the Commission.
DISCUSSION
We initially address the threshold issue of the Commission's jurisdiction to discipline a
municipal court judge. The constitutional provision approved by the voters in 1976 created
the Commission and provided that [a] justice of the supreme court or a district judge may . .
. be censured, retired or removed by the Commission on judicial discipline. Nev. Const. art.
6, 21(1) (emphasis added). In 1977 the legislature enacted NRS 1.440(1), which provides:
1. The Commission on judicial discipline has exclusive jurisdiction over the
censure, removal and involuntary retirement of justices of the peace and judges of
municipal courts which is coextensive with its jurisdiction over justices of the supreme
court and judges of the district courts and must be exercised in the same manner and
under the same rules.
(Emphasis added.) In 1994, paragraph 1 of section 21 of article 6 of the Nevada Constitution
was amended to read: A justice of the supreme court, a district judge, a justice of the peace
or a municipal judge may . . . be censured, retired, removed or otherwise disciplined by the
commission on judicial discipline. (Emphasis added.)
Appellant contends that the Commission lacked jurisdiction over municipal court judges
prior to the 1994 constitutional amendment and, therefore, the Commission lacked authority
to discipline him for conduct prior to 1994. Appellant's contention rests upon two
assumptions: (1) NRS 1.440 was unconstitutional; and (2) retroactive application of the 1994
constitutional amendment to pre-1994 conduct violates the prohibition against ex post facto
laws.
Constitutionality of NRS 1.440
The legislative history of NRS 1.440 is silent regarding the legislature's authority to enact
the legislation.
4
The Commission contends that subparagraph 9(d) of section 21 of article 6 of
the Nevada Constitution provides adequate constitutional authority for the legislature to
enact NRS 1.440.
__________

4
Testimony before both judiciary committees of the Assembly and Senate in support of the legislation
indicated the intent was to bring the courts of limited jurisdiction under the Commission's jurisdiction as a step
toward a uniform court system. See Assembly Judiciary Committee Minutes on S.B. 453, 59th Legislative
Session, at 3 (April 20, 1977) (testimony of Judge Richard Minor, justice of the peace and president of the
Nevada Judges Association); Senate Judicial Committee Minutes on S.B. 453, 59th Legislative Session, at 797
(April 12, 1977) (same).
for the legislature to enact NRS 1.440. The referenced provision states that the Commission
may [e]xercise such further powers as the legislature may from time to time confer upon it.
Nev. Const. art. 6, 21(9)(d). The Commission compares this provision to article 6, section
8, which allows the legislature to define the jurisdiction of the justices' courts. The
Commission also contends that subparagraph 9(d) should be read to allow the legislature to
give the Commission the power to discipline municipal court judges because municipal
courts are legislatively created.
5
Appellant contends that subparagraph 9(d) of section 21 of article 6 may not be read to
permit the legislature to expand the constitutionally-defined jurisdiction of the Commission.
6
Appellant further argues that the 1994 constitutional amendment supports his interpretation
of the legislature's lack of authority because the amendment would only have been necessary
if NRS 1.440 were unconstitutional. We disagree.
[Headnote 1]
The interpretation of article 6, section 21(9)(d) is a question of first impression for this court. Although the 1994 amendment thereto
facially expands the scope of the Commission's powers to include municipal court judges and justices of the peace, in actuality, the
amendment simply clarified the legislature's then existing authority to render these judicial officers subject to Commission discipline. Thus,
the promulgation of NRS 1.440(1) by the 1977 Nevada legislature was within its constitutional prerogatives.
[Headnote 2]
While article 6, section 21, in its original form, clearly and unambiguously vested the Commission with authority to discipline supreme
court justices and district court judges, article 7, section 4 of the Constitution gave the legislature the mandate to provide for the
removal from office any civil officer other than those in "this article previously specified" for malfeasance or
nonfeasance in the performance of official duties.
__________

5
Pursuant to section 1 of article 6 of the Nevada Constitution, [t]he Legislature may also establish, as part of the system, Courts for
municipal purposes only in incorporated cities and towns.

6
Appellant also argues that reading subparagraph 9(d) to allow the legislature to expand the Commission's jurisdiction would be a
delegation of power in violation of the separation of powers doctrine. Appellant cites City of North Las Vegas v. Daines, 92 Nev. 292, 550
P.2d 399 (1976), and Dunphy v. Sheehan, 92 Nev. 259, 549 P.2d 332 (1976), in support of his position. Both cases provide general
statements about the separation of powers doctrine; however, neither case is particularly assistful in this analysis. In Daines, this court held
that a municipal judge possessed the inherent power to dismiss the municipal court administrator. In Dunphy, this court noted, out of
deference to the doctrine, that the legislature excluded members of the judiciary from the Ethics in Government Law. We conclude that
appellant's separation of powers argument is meritless.
provide for the removal from office any civil officer other than those in this article
previously specified for malfeasance or nonfeasance in the performance of official duties.
This court has interpreted article 7, section 4 as authorizing the legislature to provide by
statute for the removal of district, county and township officers. Robison v. District Court, 73
Nev. 169, 172, 313 P.2d 436, 438 (1957). In Gay v. District Court, 41 Nev. 330, 336, 171 P.
156, 157 (1918), this court relied upon section 4 of article 7 in upholding a statute giving
district courts authority to remove certain public officers. Further, under this authority, the
legislature had the option of setting removal guidelines. Thus, when article 6, section 21(9)(d)
and article 7, section 4 are read together, it is apparent that the legislature was free to utilize
the Commission as a medium for that purpose. Because the power of removal in this
particular context also implies authority in the Commission to impose lesser sanctions, we
hold that the Commission did have jurisdiction to either remove or impose any measure of
discipline, including removal, in this matter. This is consistent with the opinion of the
Attorney General's office that Nevada Constitution article 7, section 4 provided ample
authority for the legislature to enact NRS 1.440. Op. Nev. Att'y. Gen. No. 81-4, at 20 (March
3, 1981). The 1994 amendment to the Nevada Constitution served the important purpose of
clarifying the powers of the Commission as they existed as of the enactment of NRS 1.440.
7
Appellant also contends that constitutional prohibitions against ex post facto application of
laws prohibits the imposition of discipline for conduct predating the 1994 constitutional
amendment. Because we hold that the Commission's power stems from the 1977 legislative
enactment of NRS 1.440, we decline to reach this issue.
8
Having concluded that there are no ex post facto issues to be resolved in this controversy,
and having held that the 1977 enactment governs these proceedings, it follows that appellant
may be disciplined under the specifications of charges unless the conduct in question has
been rendered invulnerable to Commission review by prescription. The ARJD do not include
a period of limitations within which a complaint must be filed with the Commission.
__________

7
Even though the ballot question explanation stated the purpose of the amendment was designed to add
justices of the peace and municipal judges to the ambit of Commission authority, the explanation does not have
the force of law.

8
We would note that the prohibitions against ex post facto laws generally are not implicated by non-criminal
proceedings such as these.
In contrast to Commission proceedings, [f]ormal disciplinary proceedings shall not be
commenced against an attorney for alleged misconduct occurring more than 4 years prior to
the filing of the complaint by bar counsel. SCR 106. Appellant argues that the failure to
observe any reasonable limitation of actions violated his right to due process.
9
As sole
authority for his premise, appellant cites Bowen v. New York, 476 U.S. 467, 481 n.13 (1986),
wherein the Supreme Court explained that statutory limitation periods are a recognition that
the right to be free of stale claims in time comes to prevail over the right to prosecute them.
Appellant further suggests that the two-year limit set forth in NRS 11.190(4)(b)
10
would be
appropriate because judicial discipline is in essence a penalty or forfeiture.
The Commission disagrees, contending that: (1) NRS 11.190(4)(b) is wholly inapplicable
because a disciplinary proceeding before the Commission is not the same as a civil cause of
action upon a statute for a penalty or forfeiture; (2) there is no constitutional right to a
reasonable limitations period; and (3) the judicial office is so important that all conduct
while in office must be subject to scrutiny. Finally, the Commission notes that it took into
consideration the remote occurrence of some of the alleged conduct and did not discipline
appellant for charges based solely on distant conduct.
Appellant's reliance on Bowen is misplaced. Bowen is not directly on point; it does not
stand for the proposition that due process requires a limitations period. Rather, courts have
recognized that statutory limitation periods are measures of public policy entirely subject to
the will of the legislature. See, e.g., State v. Numm, 768 P.2d 268 (Kan. 1989); State v.
Hodgson, 740 P.2d 848 (Wash. 1987), cert. denied, 485 U.S. 938 (1988). Moreover,
according to one treatise, most states do not have a limitations period that would proscribe the
investigation of a judge's conduct occurring in the distant past. Judith Rosenbaum et al.,
Practices and Procedures of State Judicial Conduct Organizations ch. 2, at 15 (1991).
[Headnote 3]
Although the doctrine of laches could be indiscriminately applied in the absence of an express limitations period, the Commission took
an appropriately practical approach in considering the date of the alleged misconduct and whether appellant had cured
the misconduct.
__________

9
Pursuant to ARJD 26, the respondent [judge] must be accorded due process of law.

10
NRS 11.190(4)(b) imposes a two-year statute of limitations for [a]n action upon a statute for a penalty or forfeiture, where the action
is given to a person or the state, or both, except when the statute imposing it prescribes a different limitation.
ering the date of the alleged misconduct and whether appellant had cured the misconduct. The
Commission did not consider remote acts unless they were a part of a recurring pattern of
conduct. We are convinced that this approach addresses and resolves any fundamental due
process concerns. We therefore conclude that the absence of a limitations period did not
violate appellant's due process rights.
Fifth Amendment Concerns
[Headnote 4]
At the formal hearing, the special prosecutor called appellant as a witness. After initially refusing to take the oath, appellant was sworn
and then asserted a blanket Fifth Amendment privilege. Even after his attorney and the Commission directed him to answer the
non-incriminating questions, appellant continued to refuse to answer most of the questions posed to him, including non-incriminating
questions such as, When were you first elected?
The Commission made the following relevant finding of fact:
That [appellant], while testifying at the Formal Hearing on November 3, 1995, wrongfully asserted his Fifth Amendment right by
refusing to answer simple, nonincriminating questions . . . . [Appellant's] behavior and attitude displayed when called to testify at
the Formal Hearing was both contumacious and contemptuous.
Based on these facts, the Commission concluded that appellant's conduct violated ARJD 4, ARJD 11(3) and Canon 2(A). Additionally, the
Commission dedicated almost two pages of its decision to a discussion of appellant's conduct at the formal hearing and concluded by
stating that he should be removed from office. The final paragraph of the Commission's decision in the final report states:
The Commission emphasizes that in determining that the appropriate discipline for [appellant's] offenses is removal from
office, it has not taken into consideration [appellant's] wrongful assertion of a blanket Fifth Amendment privilege. Since Rule 11
which establishes the grounds for discipline does not provide that a wrongful assertion of a blanket Fifth Amendment privilege is
disciplinable conduct, the Commission would not discipline [appellant] for doing so without first giving him the opportunity to
remedy that conduct. However, the Commission deems it appropriate to inform the judiciary that not only does a judge not have
the right to assert a blanket Fifth Amendment privilege and refuse to cooperate with the Commission or testify when called as a
witness before it, but that in the event a judge does so in the future, the Commission will deem such
non-cooperation to be an act of misconduct, subjecting the judge to discipline.
witness before it, but that in the event a judge does so in the future, the Commission
will deem such non-cooperation to be an act of misconduct, subjecting the judge to
discipline. The Commission has taken into consideration the manner in which
[Appellant] behaved in wrongfully asserting a blanket Fifth Amendment privilege, but
not the fact that he wrongfully refused to testify in determining that removal is the
appropriate discipline to be imposed.
(Emphasis added.)
Appellant impliedly argues that it was improper for the Commission to consider the
manner in which he asserted his Fifth Amendment rights in determining the appropriate
disciplinary action to take. Thus, appellant suggests that the only issue on review is whether
[APPELLANT] was required to humble himself before the Commission and whether his
failure to do so should have been considered as a part of the ultimate decision.
The Commission concedes that appellant would have a Fifth Amendment right to refuse to
testify on a question-by-question basis where he had a plausible claim of self-incrimination.
The Commission further concedes that it would be inappropriate to consider the rightful
invocation of Fifth Amendment rights, see Spevack v. Kline, 385 U.S. 511 (1967), but that
the Commission could, although it did not, consider the wrongful assertion of Fifth
Amendment rights. See State v. Malone, 692 S.W.2d 888 (Tex. Ct. App. 1985).
Having found in the context of the formal hearing that appellant wrongfully asserted his
Fifth Amendment privileges, the Commission was entitled to consider that fact along with the
severity of the offenses in determining the extent and type of appropriate discipline. Thus, the
Commission was not restricted to a consideration of the manner in which Judge Davis
behaved in wrongfully asserting a blanket Fifth Amendment privilege. In this connection, we
find that all of appellant's due process rights were protected by the Commission when it
considered the issue and ultimately determined that the assertion of the privilege was
wrongful.
[Headnote 5]
Additionally, we conclude that the Commission rightfully considered appellant's demeanor at the hearing in the process of determining
the appropriate sanctions to be imposed.
In this case, the Commission could have reasonably concluded that appellant's sophomoric and arrogant behavior was calculated to
poison the well so that the fairness and validity of the Commission proceedings would be obscured on review. His contention on appeal
that he is entitled to relief because he was required to humble himself is a clear sign that he had, to a degree, lost touch with a
proper sense of his public trust and decorum.
degree, lost touch with a proper sense of his public trust and decorum. Certainly, he would
never have tolerated such behavior in any proceeding over which he was charged with
presiding. His approach to the hearing, whether or not a predetermined strategy, cannot be
condoned. While we believe that his general behavior and the specific manner in which he
invoked his Fifth Amendment privilege should have been disregarded in terms of whether
imposition of discipline was justified on any specified charge, appellant's behavior was
relevant, to a limited degree, to the deliberations over the nature of discipline imposed.
Commission Bias
[Headnote 6]
Pursuant to ARJD 3(6), the respondent judge may challenge any member of the Commission for cause. The Commission must hear the
challenge and
may disqualify any Commissioner who by reason of actual or implied bias would . . . either be prevented from adjudicating the
matter in a fair and impartial manner or, by reason of facts creating an appearance of impropriety, be prevented from adjudicating
the matter in a manner consistent with maintenance of public confidence in the Commission.
Id. A challenge for implied bias must be allowed on a showing of any of the grounds relating to jurors which are enumerated in NRS
16.050. ARJD 3(7).
Prior to the formal hearing, appellant filed a motion to disqualify Commission members Frank Brusa, Drennan A. Clark, Billy Gene
Fuller, Michael R. Griffin, Alan J. Lefebvre and Sally Loehrer. The Commission denied the motion.
On appeal, appellant contends that because the Commissioners who sat at the preliminary hearing determined that perjury charges
should be investigated and filed against him based upon his testimony at the preliminary hearing,
11
they could not reasonably be
perceived to be unbiased.
__________

11
On October 2, 1995, two months after appellant testified at the preliminary hearing, the special prosecutor filed a motion to amend
the findings of probable cause to add an additional count accusing appellant of perjury when he offered testimony concerning the
circumstances of his repayment of the loan to Marilyn Bell. On October 24, 1995, the Commission issued an order finding that the
evidence presented at the August 2, 1995 hearing established a reasonable probability that the evidence available for introduction at a later
formal hearing could clearly and convincingly establish grounds for disciplinary action for willfully giving false testimony under oath at
[the preliminary hearing].
Additionally, the Commission ordered the special prosecutor to file a formal complaint charging appellant with perjury. After the
Commission rendered its judgment on the first formal complaint and ordered appellant's
The Commission disagrees, arguing that in the absence of actual bias, there is nothing
improper about combining investigatory, prosecutorial and adjudicatory powers in one body.
The Commission cites Withrow v. Larkin, 421 U.S. 35 (1975), wherein the Supreme Court
held that the combination of investigatory, prosecutorial and adjudicatory powers in a medical
discipline panel did not violate the Administrative Procedure Act or due process of law. The
Larkin Court explained:
Judges repeatedly issue arrest warrants on the basis that there is probable cause to
believe that a crime has been committed and that the person named in the warrant has
committed it. Judges also preside at preliminary hearings where they must decide
whether the evidence is sufficient to hold a defendant for trial. Neither of these pretrial
involvements has been thought to raise any constitutional barrier against the judge's
presiding over the criminal trial and, if the trial is without a jury, against making the
necessary determination of guilt or innocence.
Id. at 56.
However, in his reply brief, appellant's position was clarified as follows:
Contrary to the Commission's understanding of the argument, [APPELLANT] does not
contend that the Commission was inevitably biased against him simply because it
combines investigative, prosecutorial and adjudicative functions. Instead, it was the
facts and circumstances of this particular case which realized the potential for
unfairness identified by this Court in Rudin v. Nevada Real Estate Advisory
Commission, 86 Nev. 562, 565, 471 P.2d 658, 660 (1970).
The Commission's conclusion that there was probable cause to believe appellant had
committed perjury during the probable cause hearing does not necessarily demonstrate actual
or implied bias on the part of the Commissioners who made the probable cause
determination. Probable cause determinations are by no means a determination of guilt. Proof
by clear and convincing evidence that appellant had committed perjury would still be required
at the formal adjudicatory level. Thus, the fact that some of the Commissioners previously
had found there was probable cause to believe appellant had committed perjury does not
require that they be disqualified from participating in the formal hearing.
__________
removal from office, it determined that the perjury complaint had been rendered moot. The Commission
dismissed that complaint without prejudice. Thus, the Commission is free to proceed with that charge.
Whether findings were supported by clear and convincing evidence
Appellant argues that the Commission's factual findings were not supported by clear and
convincing evidence and that he did not violate the Nevada Code of Judicial Conduct.
12
Standard of Review
[Headnotes 7, 8]
In reviewing the Commission's findings of fact, this court is confined to a determination of whether the evidence in the record as a
whole provides clear and convincing support for the Commission's findings. Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev.
251, 267, 830 P.2d 107, 118 (1992); see ARJD 27. Moreover, [t]he Commission's factual findings may not be disregarded on appeal
merely because the circumstances involved might also be reasonably reconciled with contrary findings of fact. Goldman, 108 Nev. at 267,
830 P.2d at 118. However, this court is not bound by the Commission's conclusions of law. Id. Thus we turn to an analysis of the charges at
issue.
Count 1: Loans from employees
The Commission concluded that appellant's practice of borrowing money from court employees violated NCJC Canon 4(D)(1)(a) and
constituted grounds for discipline under ARJD 11(3). On appeal, appellant contends that it was common practice within the North Las
Vegas Municipal Court to loan money to coworkers, and that his conduct was not a violation of NCJC Canon 4(D)(1)(a)
13
because none of
the employees testified that appellant exploited his position to obtain loans. Appellant also argues that the allegations are not grounds for
discipline under ARJD 11(3) because his conduct was not in the performance of judicial or administrative duties.
The Commission contends that the evidence clearly and convincingly demonstrates that appellant was exploiting his position by
requesting employees to loan him money. The Commission specifically points to Marilyn Bell's testimony that appellant was late in
repaying a loan from her and that, after her husband threatened to involve the media, appellant repaid the loan with
2,500 one-dollar bills.
__________

12
The particular Canons of the NCJC which the Commission found to have been violated by appellant, and the provisions of the ARJD
used as grounds for discipline, are reproduced in an appendix to this opinion.

13
Appellant also argues that his conduct was not a violation of NCJC Canon 4(D)(1)(b). Although the formal complaint alleged that the
loans violated this canon, the Commission did not so find.
husband threatened to involve the media, appellant repaid the loan with 2,500 one-dollar
bills. We conclude that the evidence presented gives the Commission a substantial basis to
find by clear and convincing evidence that Canon 4D(1)(a) was violated by appellant using
his position to secure substantial loans for lengthy periods of time without paying interest and
refusing to repay the loan when requested.
Count 2: Political campaigning
[Headnote 9]
The Commission found that appellant publicly endorsed and campaigned on behalf of Robert Archie, a candidate for justice of the
peace of the North Las Vegas Township, in violation of NCJC Canon 5(A)(1)(b).
Our review of the record reveals that the evidence clearly and convincingly establishes that appellant publicly endorsed Archie for
public office in violation of Canon 5(A)(1)(b). A videotape in evidence shows appellant approaching and knocking on the door of a house
on Tonopah Street in North Las Vegas while wearing an Archie campaign shirt. The homeowner in question testified that she did not know
appellant. Additionally, appellant was seen with a group of people going door-to-door and personally erecting campaign signs. Appellant
explained, unconvincingly, that he merely walked his neighborhood with Archie, introducing Archie to people he knew. Clearly, he was
doing more than just privately voicing his support for a candidate.
Pursuant to ARJD 11(3), grounds for discipline include [a]ny acts or omissions in the performance of judicial or administrative
duties which contravene express provisions of the [NCJC]. The NCJC proscribes conduct relating to both judicial activities and
extra-judicial activities. Despite the ambiguity existing in ARJD 11(3) referring to acts or omissions in the performance of judicial or
administrative duties, we interpret the rule to include extra-judicial activities proscribed under the NCJC. We therefore conclude that
appellant's campaign activities violated ARJD 11(3).
Count 3: Personal business in chambers
[Headnote 10]
The Commission found that appellant used his chambers to conduct personal business by storing antiques in the courthouse, by selling
those antiques to persons with whom he came in contact at the courthouse, and by using court employees to move antiques. The
Commission concluded that this conduct violated NCJC Canons 2 and 4(D)(1)(a). Appellant contends that the record does not support the
finding of a violation of the canons because there was insufficient evidence to establish a business {i.e., the testimony established
four or five sales over 16 years), and there was no evidence demonstrating that he was perceived to be
exploiting his judicial position.
(i.e., the testimony established four or five sales over 16 years), and there was no evidence
demonstrating that he was perceived to be exploiting his judicial position.
Photographs admitted into evidence depict a vast inventory of antiques. Further, his
testimony that he merely enjoyed having them displayed is virtually beyond belief. Although
testimony established only a few sales to court employees and an attorney who saw one of
appellant's pieces at an antique shop and discussed a purchase with appellant in chambers, we
conclude that sufficient evidence was presented in support of this charge.
Count 6:
14
Incident at Friendly Ford
[Headnote 11]
The Commission found that appellant took two uniformed marshals to Friendly Ford where he berated and intimidated an employee
with a threat that the City of North Las Vegas would never purchase another vehicle from Friendly Ford because the court had not yet
received ordered vehicles. The Commission concluded that this constituted a violation of NCJC Canon 2 and was grounds for discipline
under ARJD 11(3).
Appellant argues that there was insufficient evidence to support the finding that he berated and intimidated the Friendly Ford
employee. He also contends that his conduct was not a violation of Canon 2 because, as chief purchasing agent for his court, he did nothing
other than express his dissatisfaction with the dealership's performance. Appellant thus insists that his conduct did not impugn public
confidence in the integrity and impartiality of the judiciary.
Georgia Nunez testified that it was her perception that appellant berated and intimidated the dealership's employee and that after the
incident appellant had said that he probably overreacted. The commentary to NCJC Canon 2 states, Public confidence in the judiciary is
eroded by irresponsible or improper conduct by judges. . . . A judge must expect to be the subject of constant public scrutiny.
Additionally, the commentary explains that [t]he test for appearance of impropriety is whether the conduct would create in reasonable
minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.
15
However, keeping in mind the thrust of ARJD 11{3) that the NCJC is to be read strictly in favor of the judicial officer,
and the preamble to the NCJC providing that not all violations of the code warrant discipline, we conclude that
appellant's ill-advised conduct does not constitute a sufficiently serious violation of NCJC Canon 2 to warrant
discipline.
__________

14
The Commission concluded that there was no violation as to Count 4 because Judge Davis had corrected his conduct in a timely
fashion. The Commission also concluded that Count 5 demonstrated poor judgment but was not a violation of the NCJC.

15
We recognize that the presence of the two uniformed marshals and appellant's threats probably had a significant influence on the
employee. We also recognize that appellant does not appear to recognize the significance of this type of behavior.
the thrust of ARJD 11(3) that the NCJC is to be read strictly in favor of the judicial officer,
and the preamble to the NCJC providing that not all violations of the code warrant discipline,
we conclude that appellant's ill-advised conduct does not constitute a sufficiently serious
violation of NCJC Canon 2 to warrant discipline.
Count 7: Using court employees for personal business
[Headnote 12]
The Commission found that appellant used court employees to drive him to work, to perform translating services at his mother's
nursery business, and to accompany him while he looked for antiques. The Commission concluded that this conduct violated NCJC Canons
2, 2(A), 4(A)(2), and 4(A)(3).
Appellant contends that the alleged conduct should not be construed as a violation of NCJC Canon 2(A), i.e., that the conduct
demeaned the judicial office or interfered with the proper performance of judicial duties. He points to the following testimony as support.
Don Cola, an employee of the court, testified that over a year and a half before the hearing, appellant stopped taking him to look at
antiques. Linda Stiles testified that she only ran errands for the judge on her own time.
16
Yolanda Roybal testified that she went to the
nursery to interpret for a Spanish-speaking employee once in the early 1980's as a favor to appellant, and that it could have been on her
lunch break, although she could not remember. Georgia Nunez testified that she translated at the nursery three or four times in 16 years.
Marshal Kevin Nitzschke testified that he drove the judge to work for security reasons.
Although some of the testimony indicated that personal errands were undertaken during lunch breaks, there was also competent
testimony that the excursions relating to antiques would last up to two hours several times a week. Accordingly, we conclude that clear and
convincing evidence established that this conduct constituted a violation of NCJC Canon 4(A)(3). However, we are not persuaded that
these activities constituted a violation of NCJC Canons 2(A) and 4(A)(2). Such conduct does not clearly demonstrate that appellant did not
respect or comply with the law or that this behavior demeaned the judicial office.
Count 8: Contributions in lieu of fines
[Headnote 13]
The Commission found that appellant suggested that criminal defendants contribute money to charities on a list he had prepared in
lieu of paying fines to the City of North Las Vegas and that he did so, in part, to enhance his electability.
__________

16
Ms. Stiles actually stated that it was during work hours, but on her personal breaks or lunch hour.
in lieu of paying fines to the City of North Las Vegas and that he did so, in part, to enhance
his electability. The Commission concluded that this conduct violated NCJC Canons 1, 2,
2(A), and 4(C)(3)(b)(i) & (iv), and constituted grounds for discipline under ARJD 11(3).
Appellant contends that no evidence was presented in support of the finding that he used
this practice to enhance his electability. He further argues that he did not believe it was a
violation of Canon 4(C)(3) because the defendants had a choice as to whether to contribute
and which charity would receive the contribution. Finally, appellant points out that he
discontinued the practice after he was informed that an opinion of the Attorney General stated
that it was unethical and that the Nevada Supreme Court did not approve of the procedure.
We conclude that appellant's conduct violated NCJC Canon 4(C)(3). The rule addresses
the dual fears that potential donors either may be intimidated into making contributions when
solicited by a judge, or that they may expect future favors in return for their largesse. Jeffrey
M. Shaman et al., Judicial Conduct and Ethics 9.06, at 289 (2d ed. 1995). This treatise also
directs our attention to unreported decisions wherein judges were disciplined for conduct
similar to that presently under scrutiny. In one case, the judge disposed of cases by requiring
the defendant to contribute stated amounts to charities named by the judge. In another, the
judge allowed defendants to make voluntary contributions to law enforcement services in
exchange for dismissal of traffic infractions. Id. at 290 nn.40-41. Accordingly, we conclude
that appellant violated NCJC Canon 4(C)(3). Further, this conduct violated the other canons
identified by the Commission.
Count 10: Zoning violation and trespassing
[Headnote 14]
The Commission found that appellant willfully and knowingly used property which he partly owned for commercial purposes when
said property was zoned for residential use, and that he caused his agent (a subcontractor) to trespass on adjoining property to hook up
water and sewer lines.
The Commission also found that appellant testified falsely during the probable cause hearing as to who owned the trees stored at the
property in question. The Commission concluded that appellant's conduct violated NCJC Canons 1, 2, and 2(A) and constituted grounds for
discipline under ARJD 11(2) and 11(3). Appellant contends that there was no evidence that the trees stored on the property belonged to him
and that he never intended to use the property as a commercial growing yard. Appellant also insists that he did not instruct his
subcontractor in any way regarding the water and sewer hookup and assumed that all permits had been obtained
by the subcontractor.
any way regarding the water and sewer hookup and assumed that all permits had been
obtained by the subcontractor. Finally, he maintains that his conduct did not violate the
canons and that he did not trespass on the adjoining property.
The evidence adduced on this charge is somewhat equivocal. The Davis Family Trust
purchased a parcel of real property located at West Craig Road in North Las Vegas in which
appellant and his mother each owned a one-half interest. The property is zoned for residential
use only. Appellant's brother, Don Davis, testified that the property was purchased in the hope
that it would later be zoned commercial and could then be resold.
17
According to Don Davis, he offered to purchase property in Moapa in May of 1993, which
he wanted to use as a growing yard; however, the purchase did not close until February 1995.
As part of a joint venture, his mother purchased trees in November 1993, which Don Davis
hoped to grow on the Moapa property. The trees were delivered to the Craig Road property in
the spring of 1994 because the Moapa property had not closed and was not ready to receive
the trees.
In response to an inquiry by appellant, Don Brown, the developing director for the City of
North Las Vegas, notified appellant in July 1993 that the Craig Road property was zoned
residential and opined that the property would not be eligible for rezoning. Thereafter, Brown
received a complaint from Harry Segal, an adjoining landowner (a developer), that the Craig
Road property was being used as a nursery. Brown investigated and concluded that the
allegations were unfounded. Nevertheless, Brown continued to drive by the property
periodically and eventually began to suspect that the property was being used for purposes
other than residential use. In December 1993, Brown informed appellant that a complaint had
been filed. Appellant complied with a settlement agreement with Chief Deputy City Attorney
Mark Zaloras for the removal of the trees (approximately 1,100)
18
over a period of time.
Zaloras testified that there was nothing unusual about the case and that he did not perceive
that appellant tried to use his status as municipal court judge in the jurisdiction where Zaloras
practiced. The Commission found appellant's conduct with regard to the zoning violation and
two-year delay
19
in removing the trees to be particularly egregious because he was
violating the very ordinances which he was charged with enforcing.
__________

17
An application filed with the Department of Business Industry's Division of Agriculture lists the Craig Road
land as a growing yard for the Davis Nursery, owned by appellant's mother.

18
Photographs in the record depict a veritable forest of boxed of potted trees located over the entirety of the
subject property.

19
Zaloras testified that most of the delay was caused by a problem with getting a judge assigned to the case,
but he did feel that there was some delay by appellant at the outset by asking for 12 months, not removing them,
even though [Zaloras had] requested it be done.
ing the trees to be particularly egregious because he was violating the very ordinances which
he was charged with enforcing.
As to the trespass, Don Davis testified that he never gave his contractor permission to
connect a sewer line or to break through a wall on his property to do so. The Engineering
Projects Coordinator for the City of North Las Vegas testified that when she pulled the permit
she was not aware that appellant was involved and that she mistakenly indicated on the
permit that it was pulled for Segal's development. She also testified that she did not think a
private right-of-way would have been necessary. Mr. Segal testified that sometime after the
Craig Road property was being investigated based upon Segal's complaint, appellant
approached him, asked him to support rezoning the Craig Road property, and then asked for a
$5,000 campaign contribution.
20
Appellant allegedly told Segal that he was going to make the
property a nursery and said, I can do everything in Las Vegas. Las Vegas is in my small
pocket. I can do whatever I wish. He also threatened to put pigs and chickens on his property
if Segal did not support the rezoning effort.
We conclude that the evidence regarding the trespass is inconclusive. However, the
Commission obviously believed the testimony of Segal and his account of the events and
statements by Davis; and this establishes that appellant abused and impugned his judicial
office. With respect to the zoning issue, clear and convincing evidence establishes that
appellant violated NCJC Canons 1 and 2(A) by failing to comply with the law even after he
had been advised of the zoning violations. Despite any problems with his brother's Moapa
property, appellant should not have allowed the zoning violation to occur in the first place.
Thus, his conduct does tend to implicate the integrity of the judiciary. We therefore conclude
that the Commission's findings and conclusions with respect to the zoning violation are
supported by clear and convincing evidence and that the conduct warranted discipline.
Appropriate sanctions
[Headnote 15]
As the Goldman court recognized, the Nevada Constitution expressly authorizes this court to reverse the sanction imposed by the
Commission or take any alternative action provided in this subsection. Goldman, 108 Nev. at 267, 830 P.2d at 118 (quoting Nev. Const.
art. 6, 21(1)). Thus, on appeal, we are specifically enjoined by the constitution to exercise our independent judgment regarding the
appropriate sanction warranted by factual findings properly adduced by the Commission." Id. at 26S, S30 P.2d at 11S.
__________

20
Segal contributed $250 the next day.
findings properly adduced by the Commission. Id. at 268, 830 P.2d at 118.
[Headnote 16]
Appellant argues that the discipline imposed, removal from office, was excessive. He suggests that removal was excessive because
none of the alleged conduct evidenced that he misused his office for his own personal gain or profit or that he ignored the rights of litigants
appearing before him. He concludes that the alleged conduct represent[s] human failings without any intention of purposeful misconduct
which would justify imposition of such severe sanctions.
The Commission responds that it had no other choice than to order appellant's removal from office because the evidence established
that he treated his office as a personal fiefdom. According to the Commission, the videotape of appellant's appearance at the formal
hearing is the best evidence of the contempt with which he treated his public trust.
The record supports the Commission's interpretation. Thus, while many of the charges would not sustain removal standing alone, the
totality of the sustained charges, appellant's wrongful assertion of privilege and his contumacious demeanor at the hearing demonstrated
that the totality of the offenses, sustained by clear and convincing evidence, justified appellant's removal from office.
The dissent asserts that possible abuses of the appellate process have occurred, but its claim is supported only by speculation. This case
was processed by following normal procedures of this court and was unusual only in that one retiring justice was replaced by his successor.
What is unusual is that now Justice Springer improperly discloses what he remembers to be the vote taken in this case immediately after
argument and a draft opinion prepared by one justice. Disclosing this information breaks a long-standing rule of court confidentiality in the
decision-making process. This court recognized that rule when a majority of the court, including Justice Springer, admonished a fellow
justice for disclosing that staff had prepared the conclusion in an opinion. State of Nevada v. District Court, 108 Nev. 1030, 842 P.2d 733
(1992) (disclosing that the dissent's statement that staff reached the conclusion in an opinion revealed confidential court information and
breached long accepted standards of collegiality). Here, Justice Springer is not only disclosing a preliminary draft but also portions of the
initial deliberations in an inaccurate manner.
Justice Springer's claim that he has some sort of duty to disclose the confidential processing of this case also misses the mark. He
argues that in fairness to Davis, it is necessary to show that Davis would have won this appeal if it was decided
immediately after oral argument when a preliminary vote was taken.
that Davis would have won this appeal if it was decided immediately after oral argument
when a preliminary vote was taken. Besides the fact that this is not how this court operates,
preliminary votes are tentative and often subject to further review of applicable law and the
facts of the case. Justices often change their initial vote after further consideration. Justice
Springer concedes as much. There is absolutely no valid reason to disclose the internal
processing of Davis' appeal. Nothing improper happened in deciding this case, and Justice
Springer discredits himself and this court to so suggest.
The dissent also suggests that the Commission selectively prosecuted Judge Davis and that
judges who the Commission brings to a full public hearing might become victims of
irrational and discriminatory Commission excesses. It cites a number of complaints made to
the Commission that were not pursued to a final hearing. Without knowing the facts and
documents available to the Commission, it is impossible to determine the validity of the
Commission's action, and this criticism is simply a regurgitation of Justice Springer's prior
criticism of the Commission. See Whitehead v. Comm'n on Jud. Discipline, 111 Nev. 1459,
1467-69, 908 P.2d 219, 222-23 (1995). Suffice it to say, we are aware of no selective
prosecution of former Judge Davis, and there was ample evidence to show that he repeatedly
abused his position as a municipal court judge and used it for his own personal benefit.
CONCLUSION
We conclude that the Commission had jurisdiction to consider appellant's pre-1994
conduct; that there is no due process right to a period of limitations within which a judicial
discipline complaint must be filed; and that the Commission properly considered the fact of
and the manner in which appellant asserted his Fifth Amendment rights when considering
appropriate disciplinary measures.
21
APPENDIX
1. Grounds for discipline
The grounds for discipline are set forth in ARJD 11. In this case, the Commission relied
upon two of the five grounds listed:
. . . .
2. Any acts or omissions amounting to any public offense which tend to corrupt or to
impair the administration of justice in any court.
__________

21
which tend to corrupt or to impair the administration of justice in any court.

[
22
]
3. Any acts or omissions in the performance of judicial or administrative duties which
contravene express provisions of the Nevada Code of Judicial Conduct. When applied
for purposes of determining whether misconduct has occurred, the provisions of the
Nevada Code of Judicial Conduct must, considered as penalty provisions, be strictly
construed in favor of the respondent judge.
. . . .
2. NCJC Canons found to have been violated
Canon 1 provides:
A judge shall uphold the integrity and independence of the judiciary.
Canon 2 provides:
A judge shall avoid impropriety and the appearance of impropriety in all of the judge's
activities.
Canon 2(A) provides:
A judge shall respect and comply with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary.
Canon 4(A) provides, in relevant part:
A judge shall conduct all of the judge's extra-judicial activities so that they do not . . . (2)
demean the judicial office; or (3) interfere with the proper performance of judicial duties.
Canon 4(C)(3)(b) provides, in relevant part:
A judge . . . shall not personally participate in the solicitation of funds, or other
fund-raising activities . . . [and] shall not use or permit the use of the prestige of judicial
office for fund-raising or membership solicitation.
Canon 4(D)(1)(a) provides in relevant part:
A judge shall not engage in financial and business dealings that:
(a) may reasonably be perceived to exploit the judge's judicial position, or . . . .
Canon 5(A)(1)(b) provides in relevant part:
Except as authorized in Sections 5(B)(2) and 5(C)(1) a judge or a candidate for
election or appointment to judicial office shall not:
__________

22
This provision was used only with respect to Count 10 (zoning violation and trespassing).
judge or a candidate for election or appointment to judicial office shall not:
. . . .
(b) publicly endorse or publicly oppose another candidate for public office.
I dissent from this court's order affirming the removal of Judge Davis from his judicial
office. Although I have several grounds for dissenting, I dissent principally because the
Nevada Commission on Judicial Discipline has exceeded its constitutional jurisdiction in
ordering removal. I am in complete agreement with Commissioner Griffin, who disagree[d]
that removal is warranted and voted that, instead of being removed from office, Judge Davis
should be issued a censure, be required to attend courses in ethics and be fined.
The several reasons for my dissent are as follows:
1. Constitutional Invalidity of the Removal Order. Article 6, section 21(6) of the Nevada
Constitution provides that no judge may be removed except for willful misconduct, willful
or persistent failure to perform the duties of his office or habitual intemperance. The
complaint does not charge Judge Davis with any conduct that would subject him to removal
under the Nevada Constitution. The Commission made no findings or conclusions relative to
the required willful misconduct, persistent failure to perform judicial duties or habitual
intemperance; and, as a consequence, the Commission is without the constitutional power to
remove Judge Davis.
2. Manifest Excessiveness of Penalty. Commissioner Griffin recognized what the other
Commissioners apparently did not, namely, that the charges in this case range from minor
(borrowing money from court staff members) to trivial (playing inappropriate songs such as
Jail House Rock in his chambers). The Commission itself declined to discipline the
respondent for [certain charged acts] without first giving him the opportunity to remedy that
conduct. I served on the Commission for a ten-year period and believe that I can take notice
of the fact that minor derelictions of the kind involved here are properly and customarily dealt
with by advising the erring judge to discontinue the conduct and giving [the judge] an
opportunity to remedy that conduct. That Judge Davis would be permanently removed from
office (even if it were constitutionally permissible for the Commission to do so) without
being afforded an opportunity to change objectionable behavior is unthinkable under the
circumstances of this case.
3. Selective Prosecution. Judge Davis has, unlike other judges who have been charged
with relatively minor infractions of the Code of Judicial Conduct, been subject to the most
severe penalty allowable.
judges who have been charged with relatively minor infractions of the Code of Judicial
Conduct, been subject to the most severe penalty allowable. From this and other aspects of
the prosecution of Judge Davis, I conclude that he has been the victim of selective, prejudicial
prosecution. In the many cases of minor derelictions and minor deviations from proper
judicial conduct that I have witnessed during my service as a judicial discipline
commissioner, the kinds of misbehavior charged here would, unexceptionably, be handled by
warning or, at most, by private reprimand. The rational, unpolitical way of handling this case
would have been to go to Judge Davis and tell him that there had been reports of
unacceptable conduct which, if true, must be remedied immediately. It has been my
experience that such a warning works in almost every case. If formal proceedings were
thought to be unavoidable under the circumstances of this case, it still seems clear to me that
this is not the kind of case that even comes close to providing cause for permanent removal
from the bench; and I cannot conceive of removal being ordered in this case absent the
interjection of political motivations or other unwarranted, prejudicial considerations.
I find in this record no indication that Judge Davis had been guilty of recurrent misconduct
or of previous commission of the kinds of delicts that resulted in removal proceedings in this
case. As stated above, I find nothing that would make me think that this case could not have
been expeditiously resolved simply by saying something to Judge Davis like this: Judge
Davis, it has come to our attention that you have been engaging in some kinds of conduct that
are not fitting for a judgeplease discontinue these practices, or you are going to be subject
to formal disciplinary proceedings. There is only one thing in this entire record that gives
even a hint as to why or how these relatively trivial charges were so magnified and ended up
in Judge Davis' being permanently removed from office, and that is that he flunked the
attitude test, that he made the Commission members so angry with him that they decided to
throw the book at him. It is quite apparent that Judge Davis believed that he was the object
of a witch hunt. This made him resentful and did reflect in his attitude toward the
Commission. Judge Davis was successful in making all of the members of the Commission
mad at him; but, obviously, this does not provide grounds for the ultimate judicial discipline,
removal from office. It is very much to the credit of Commissioner Griffin (who, as I read the
record, was also angry at Judge Davis) that he was able to set aside this anger and arrive at
what is arguably a fair result in this caseadmonish, perhaps discipline, but not remove
Judge Davis from office.
Aside from my personal experience, I do not think that many persons who are familiar
with the judicial discipline process would come to a conclusion different from mine or
would think that a judge should be removed from office except, of course, in cases of very
serious misconduct, until she or he had an ample opportunity to correct objectionable
judicial behavior.
persons who are familiar with the judicial discipline process would come to a conclusion
different from mine or would think that a judge should be removed from office except, of
course, in cases of very serious misconduct, until she or he had an ample opportunity to
correct objectionable judicial behavior. Clearly, where the misconduct persists, formal
proceedings may become necessary, but, under the rules in effect during these proceedings, it
is only in cases where there is willful misconduct or willful or persistent failure to perform
judicial duties that removal is warranted. As pointed out in this dissent, there is no willful or
persistent misconduct involved here.
Judge Davis has been singled out for special, uncalled-for draconian punishment. There
are two aspects to this discriminationone is that judges charged with similar conduct have
been unexceptionably treated with sympathy and understanding rather than removal from
office; the other is that in the past judges who appeared to have been involved in much more
serious judicial misconduct than what was charged against Judge Davis have not only escaped
removal from office but have escaped the judicial disciplinary process entirely.
With respect, first, to the Commission's historically sympathetic approach toward judges
who face charges more serious than those levied against Judge Davis, I point to the case of
Judge D (a fictitious designation), referred to throughout the Whitehead case. See, e.g.,
Whitehead v. Comm'n on Jud. Discipline, 111 Nev. 70, 893 P.2d 866 (1995) (Whitehead
II); Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380, 873 P.2d 946 (1994)
(Whitehead I). The Judge D case began when a judge filed a formal complaint against a
fellow judge, stating many instances of serious judicial misconduct. [A]fter receiving a
sworn complaint against Judge D, the Attorney General investigated the matter and obtained
numerous (reportedly approximately thirty to forty) written, signed statements of the
complaining witnesses. Whitehead II, 111 Nev. at 134, 893 P.2d at 905.
The gist of the complaint against Judge D was, according to a Commission newsletter,
multiple angry outbursts . . . from the bench and in chambers directed toward citizens,
attorneys and court personnel. This was the second such series of complaints that was filed
against this judge; and it is very difficult to argue that these offenses, although not calling for
removal from office, were not considerably more serious than those brought against Judge
Davis.
Rather than proceeding to a probable cause hearing and making public the charges against
Judge D, the Commission decided to hold secret hearings in which it was able to convince
Judge D to "consent" to certain terms of "voluntary" discipline to be imposed by the
Commission.
consent to certain terms of voluntary discipline to be imposed by the Commission.
Among other things, the terms of discipline that the Commission imposed upon Judge
D--, after the extended, pre-probable cause, secret proceedings conducted by the
Commission and the prosecutors, included the requirement that the judge undergo
psychological evaluations and the requirement that the judge submit to on-going
counseling for anger-management with the daughter of one of the Commissioners.
(The minutes quite surprisingly reflect that the Commission found no conflict arising
out of its order compelling Judge D-- to counsel with the Commission member's
daughter. The record does not reveal the sums of money that Judge D-- expended for
the professional services rendered either by the Commissioner's daughter or other
professional counsellors which the judge was required to consult; we know only that
the judge was specifically directed to continue anger-counseling with the daughter for a
period of eight months.)
Whitehead I, 110 Nev. at 419, 873 P.2d at 970.
In addition to anger counseling, Judge D agreed to be placed on probation to the
Attorney General for eighteen to twenty-four months and to submit to a public censure, all of
which constituted a disciplinary disposition very much like that proposed in this case by
dissenting Commissioner Griffin.
Given the fact that Judge Davis was not given the favor of having the kind of secret
session with the Commission afforded to Judge D, and given the failure of the Commission to
give Judge Davis an opportunity to correct any misbehavior that might have been found by
the Commission, it seems very clear to me that the prosecution of Judge Davis was selective
and discriminatoryto such a degree that fairness demands a remand of the entire matter to
the Commission so that Judge Davis can be given the same sort of kindly consideration that
was given to Judge D.
1
As to the other mentioned aspect of discriminatory treatment at the hands of the
Commission, the failure of the Commission to discipline judges who are involved in truly
serious judicial misbehavior, I make reference to a Table of Disciplinary Oversights, which
I filed with the court on October 28, 1994. Accompanying that document I filed a statement
declaring:
My examination of the secret Commission records . . . has led me to the conclusion that
our system of judicial discipline has broken down and has shown itself in recent
times to have been incapable of carrying out its intended constitutional functions.
__________

1
The secret deal made by Judge D is only one example of the kinds of secret proceedings being conducted by
the Commission in 1993 and 1994.
pline has broken down and has shown itself in recent times to have been incapable of
carrying out its intended constitutional functions. The ineffectiveness of the judicial
discipline process is particularly evident and destructive in the area of unethical
campaign practices in judicial elections.
In the Table of Disciplinary Oversights I sampled some twelve instances of charges of
serious judicial misconduct which not only were not the subject of removal proceedings but
which, in most cases, resulted in no disciplinary action being taken at all. To cite just a few of
the examples of unpunished misconduct, I would mention the following:
a. A judge was charged, under oath by another judge, (1) with racism (holding an hispanic
gentleman in contempt of court and telling him he could go to jail until he learned English),
(2) with a pattern of discrimination against women, Spanish-speaking persons and Native
Americans, (3) with physically assaulting and battering a female news reporter, (4) with
unlawfully altering court records, and (5) with leaving the bench in a criminal case, telling the
attorney to go ahead and present the evidence in his absence. The complaint against this judge
was dismissed by the Commission, and the judge was not removed from office or otherwise
disciplined in any way.
b. A sworn complaint was filed by one judge against another judge charging that during a
political campaign the accused judge issued a number of false and slanderous statements
about his opponent, portraying his opponent in paid political cartoons as an animal and a
monster, and, among other things, falsely imputing to his opponent racist and other biases
that had no basis in fact. This complaint received no hearing by the Commission and was
dismissed without any consideration of the charged misconduct.
c. A sworn complaint was filed by one judge against another charging unethical and
slanderous campaign practices in the form of depicting the complaining judge in judicial
robes receiving cash money under the table. That the complaining judge was not in criminal
receipt of money or other bribes was well known to the judge being charged with misconduct;
yet the charged judge willfully published the false and defamatory political advertisements.
This complaint, like the preceding complaint, was dismissed by the Commission, and no
disciplinary action of any kind was taken against the charged judge.
d. A sworn complaint was filed against a jurist for violating Canon 2(B) of the Code of
Judicial Conduct (A judge shall not lend the prestige of judicial office to advance the private
interests of the judge or others . . . .). The complaint charged that the jurist went to a
prosecuting official on behalf of a friend and business associate and told that official that
he would love to see the prosecution "go away."
business associate and told that official that he would love to see the prosecution go away.
If these allegations were true, they call for removal from office.
2
The complainant was not
permitted a hearing and the complaint was dismissed by the Commission without further
proceedings.
e. A judge was convicted of drunken driving but no judicial discipline was ever imposed
by the Commission.
I think it is fair to conclude that Judge Davis' case is an exception to the general rule. The
rule is this: in relatively minor cases, judges are given an opportunity to amend their
deportment and are not removed from office; and in cases of very serious acts of judicial
misconduct, the acts of misconduct are ignored entirely. The discriminatory treatment of
Judge Davis, of itself, warrants reversal of the Commission's removal order.
3
4. Due Process Violation. If I exclude unsavory political motivations as a possible
explanation of the discriminatory treatment given to Judge Davis, the only thing that can
explain why the Commission took such extreme action in his case is that Judge Davis made
the Commission angry when he asserted his Fifth Amendment privilege. One reason that I
think this is the case is because the Commission, protesting too much, denies that it was
influenced by Judge Davis's assertion of the privilege. (The Commission emphasizes that in
determining that the appropriate discipline for Judge Davis' offenses is removal from office, it
has not taken into consideration Judge Davis' wrongful assertion of a blanket Fifth
Amendment privilege.) In reviewing this record, it is obvious that Judge Davis' assertion of
his privilege is the only plausible and available explanation for such an extreme reaction by
the Commission.
__________

2
See Gonzalez v. Com'n on Judicial Performance, 657 P.2d 372 (Cal. 1983) (en banc). This case involved the
removal of California Judge Mario Gonzalez. Among other offenses committed by the judge, the California
Supreme Court noted that Judge Gonzalez contacted the deputy in charge of the district attorney's office in East
Los Angeles and attempted to induce him to dismiss criminal charges. Id. at 376. The California Supreme Court
held that as a matter of law Judge Gonzalez violated Canon 2B of the Code of Judicial Conduct, which
provides that a judge should not lend the prestige of his office to advance the private interests of others. Id. at
377 (emphasis added). The sworn complaint was dismissed by the Commission without a hearing.

3
The majority refers to my recounting of past Commission abuses as being merely a regurgitation of my
prior criticisms of the Commission. It is probably true that I am regurgitating and restating complaints about
the Commission which I have previously voiced; but I do this only in the hope that someone will come to the
realization that the history of the Commission has been a history of abuses such as the one now before us. I hope
that sometime someone will recognize that this is truly the case. This is the reason for my regurgitations.
by the Commission. There is no other explanation for its taking such an excessive position.
The manner in which the Commission dealt with Judge Davis' assertion of Constitutional
privilege was to cite Administrative and Procedural Rules for the Nevada Commission on
Judicial Discipline (ARJD) 4, which requires judges to cooperate with the commission
when called upon to assist in any investigation or hearing or to testify concerning any matter.
Obviously, ARJD 4 does not require a judge to cooperate with the commission or to testify
in a case in which the judge himself or herself is the defendant. The Commission even went
so far as to take the position that a respondent/defendant judge may not refuse to cooperate
with the Commission or testify when called as a witness before it and went on to proclaim
that if an accused judge refuses to cooperate, the Commission will deem such
non-cooperation to be an act of misconduct, subjecting the judge to discipline. Put another
way: Judges who are formally charged with misconduct are obliged to cooperate with their
accusers and to testify if called as a witness; if they do not, this refusal to cooperate will be,
in itself, an act of misconduct. Can the Commission be serious when it makes such
outlandish pronouncements?
It is apparent to me that Judge Davis' invocation of the Fifth Amendment so infuriated the
Commission that its members (Commissioner Griffin dissenting) decided to impose the
capital punishment of judicial discipline, removal from office. Whether or not Judge Davis
had the right to refuse to testify at all (as would be his right had he been a criminal defendant)
is a matter of no little difficulty and complexity. I would note that ARJD 11(3) provides that
in determining whether misconduct has occurred the provisions of the Code of Judicial
Conduct must be considered as penalty provisions, in other words, penal in nature.
(Emphasis added.) One would think then that a respondent in judicial discipline proceedings
would have the same rights as a criminal defendant to assert the privilege against
self-incrimination and not be forced to be stultified by being required to answer such
questions as What is your name and When were you elected, when the answers to such
questions are already well known to the accusers.
Although I am convinced that Judge Davis had every right to refuse to testify, I stress the
point that there was, and has been, no judicial ruling on that point in this state and that the
Commission was clearly out of line when it ruled that Judge Davis wrongfully refused to
testify and that Judge Davis violated Rule 4 of the Administrative and Procedural Rules.
As put in its Decision in this case, the Commission has taken into consideration the
manner in which Judge Davis behaved in wrongfully asserting a blanket Fifth Amendment
privilege . . . ."
into consideration the manner in which Judge Davis behaved in wrongfully asserting a
blanket Fifth Amendment privilege . . . . The Commission had no right to conclude that
Judge Davis wrongfully asserted his constitutional privilege and certainly had no right to
remove him from office for asserting his rights under the state and federal Constitutions. That
the Commission would remove Judge Davis from office because he refused to cooperate
has a dire ring to it; and I believe the majority to be very wrong in permitting the Commission
to get away with this kind of pernicious nonsense.
About the only remedy available to judges who might become victims of irrational and
discriminatory Commission excesses is the state supreme court. Unfortunately, as further
evidenced by this decision, that institution is in a state of serious disarray, and it is sadly
apparent that there is no remedy for judges who are mistreated by the Commission on Judicial
Discipline.
5. Possible Abuses of the Appellate Process. The question that I raise at this point relates
to the fact that in September 1995, Judge Davis had, by majority vote, won his case before
this court, and, in October 1997, Judge Davis, by majority vote, lost his case before the court.
The more direct question is whether delay was used as a device to maneuver the result in
this case from a reversal of the Commission's decision to an affirmance.
Although, of course, I have my own opinion concerning the question at hand, I make no
judgment on the matter and raise the question, as I do, because I believe that Judge Davis has
the right to know about these matters in order that he can be placed in a position to make
further inquiry or to pursue a review of the matter in another forum, should he choose to do
so.
At a minimum, I believe that Judge Davis is entitled to know the following:
Judge Davis' case was decided
4
in his favor in September 1995, and re-decided, this
time not in his favor, in September 1997. On September 10, 1995, a majority of the
court voted to reverse the decision of the Commission, and, specifically, to impose a
lesser measure of discipline, mindful of the sanctions he has already experienced"
and to "reinstate Judge Davis to his judicial office as a municipal court judge."
__________

4
I must express a word of caution about my use of the word decided. Obviously, a supreme court case
cannot be said to have been truly decided until the court's judgment is filed and recorded. Consequently, when
I say in the present context that the case was decided in favor of Judge Davis, naturally I mean only that a
majority of the court voted in his favor. It is also true that after such a vote is taken, from time to time justices
change their vote and thereby change the result in the case; accordingly, when I say that the case was decided
in favor of Judge Davis, I am only saying that at one time he had a majority of the court on his side and that now
he has a majority of the court against him.
of the sanctions he has already experienced and to reinstate Judge Davis to his
judicial office as a municipal court judge. After the case was so decided, one of the
justices held up the signing of the majority opinion for the expressed purpose of writing
a dissent. No dissent was forthcoming, and at some time not known to me, but after
Justice Steffen retired from the court in 1996, the minority, dissenting judge was able,
in the absence of Justice Steffen, to secure a majority of the court to vote with the then
dissenting justice to rule against Judge Davis and in favor of the Discipline
Commission.
I know of only one previous instance in which a justice of this court wrote publicly about
the ordinarily confidential internal workings of the court as I now do in this dissenting
opinion. Although there are no formal rules on the subject, there are certain traditions and
norms of the appellate process, which have, almost without exception, been honored by this
court. State of Nevada v. District Court, 108 Nev. 1030, 842 P.2d 733 (1992). The only time
in the history of this court that there has been a recorded departure from these customary
traditions and norms of the appellate process is in the cited State v. District Court case (to be
cited as State). In State, Justice Young was, as stated in the majority opinion, admonished
by the court for engaging in a most disturbing . . . breach of long-established standard of
collegiality in appellate courts, 108 Nev. at 1034, 842 P.2d at 736. The court ruled in State
that Justice Young's disclosures (disclosing theretofore inviolate confidential inner workings
of the court) reveal[ed] a total lack of appreciation of the traditions and norms of the
appellate process.
In State, this court severely chastised Justice Young for his insensitivity and lack of
appreciation of court traditions and norms and admonished him for his misleading
characterization of the decision-making process of this court. This court declared in its
opinion censuring Justice Young that the court was dismayed that Justice Young, who relies
so heavily on his staff for production of his opinions, would act in a manner that was so
contrary to established court protocol.
I maintain that present disclosures to Judge Davis relating to the manner in which his case
was treated are entirely different from the unwarranted disclosures that brought about the
censuring of Justice Young in State. I would not do what I am doing if I thought that I was
being, like Justice Young, guilty of a breach of long-accepted standards of collegiality in
appellate courts. In my view the circumstances in the present case can be distinguished from
those in State, in which Justice Young was merely peevishly charging that the court's staff
decided the case rather than the court and that the court's staff "reached the conclusion"
upon which the case ruling was based.
rather than the court and that the court's staff reached the conclusion upon which the case
ruling was based. Justice Young's intemperate and false charges were based on nothing other
than his angered dissatisfaction with the majority opinion and not upon the kind of duty to
disclose that I believe to be present in this case.
This is not the first time that appellate jurists have been called upon to disclose certain
ordinarily-confidential proceedings in the appellate process.
5
Whereas there was no apparent
justification for Justice Young's indiscretion in State, it appears to me that in this case it is
imperative that Judge Davis be made aware of these matters. Judge Davis may or may not be
able to construct a provable claim arising out of possible internal decision-making
irregularities in the decision of his case; nonetheless, he is entitled to know what has been
presented in this dissenting opinion.
I express no judgment on the chronology which I have outlined above, but the
circumstances surrounding the decision-making process certainly lead to some possibly
troubling inferences
6
; and it appears to me that Judge Davis has the right to pursue a claim
that the case was held up until Justice Steffen retired and that there are unacceptable political
overtones to this case that should be explored before the matter is finally put to rest.
__________

5
This is not the first time that an appellate jurist has been called upon by moral compulsion and sound legal
principle to disclose legitimately the inner workings of an appellate court. I make reference to a book entitled
Judging Judges, by Prebble Stoltz (The Free Press; Macmillan Publishing Co., New York, 1991). The subject of
Judging Judges was a judicial discipline proceeding involving certain members of the California Supreme Court.
The gist of these proceedings was that justices had delayed the judicial process for purposes extraneous to the
decision-making process, namely, delaying the issuance of an opinion for political purposes. In the course of the
mentioned proceedings, members of the California Supreme Court believed that they were justified in disclosing
the existence of certain internal court documents, as I do here.
As stated in the text, I do not raise issues of judicial ethics relative to the manner in which the disposition in
this case was changed from a ruling favoring Judge Davis to a ruling that results in his removal from office. My
point, as I have stated, is that it is not fair to Judge Davis that such a radical alteration in the court's decision,
resulting in such extreme consequences to Judge Davis, should be allowed to follow from the court's delay and
from a change in the court's membership.

6
There are, of course, two ways of looking at this case. The majority, understandably, takes the position that
the court, from time to time, makes tentative decisions which are later, on reconsideration, altered or even
reversed. The majority is entitled to maintain that the present case is merely one of those cases in which the
majority vote shifted (after Justice
6. Conclusion. There has been a great miscarriage of justice here; it is indeed unfortunate
that the majority vote of September 1995 in Judge Davis' favor does not represent the final
decision of this court.
____________
113 Nev. 1239, 1239 (1997) Rippo v. State
MICHAEL DAMON RIPPO, Appellant, v. THE
No. 28865
October 1, 1997 946 P.2d 1017
Appeal from judgment of conviction for two counts of first-degree murder and from two
sentences of death, one count of robbery and one count of unauthorized use of a credit card.
Eighth Judicial District Court, Clark County; Gerard Bongiovanni, Judge.
Defendant was convicted of murder and other offenses and sentenced to death following
jury trial in the district court and he appealed. The supreme court held that: (1) no grounds
existed to disqualify trial judge; (2) state's late disclosure of new witnesses did not warrant
reversal; (3) prosecutor did not intimidate alibi witness; (4) defense counsel opened door to
issue of witness intimidation by defendant; (5) prosecutor did not make improper remarks in
closing argument; (6) disqualified prosecutor's continued interest in trial did not warrant
disqualification of entire prosecutor's office; (7) state's failure to disclose two witnesses'
testimony did not violate Brady rule; (8) evidence that defendant used victim's credit card was
admissible; (9) testimony of defendant's fellow prisoner implying that defendant sold drugs
was not improper; (10) prosecutor did not make improper remarks in penalty-phase opening
and closing; (11) none of the victim-impact testimony was improper; (12) anti-sympathy
penalty-phase instruction was not improper; (13) evidence supported murder-by-torture
aggravating circumstance; (14) use of uncharged crimes in aggravation was not improper;
and {15) death penalty was appropriate.
__________
Steffen's vote in favor of Judge Davis was lost) from one side to the other. On the other hand, Judge Davis might
want to argue that this is a highly politicized case in which two biased justices, Justice Young (a former member
of the Commission) and Chief Justice Shearing, who has been a steadfast supporter of the Commission's side of
things, particularly in the Whitehead case, decided to hold the case up until after Justice Steffen's retirement, in
the hope that they might be able to convince Justice Rose or Justice Steffen's replacement to alter the previous
decision.
113 Nev. 1239, 1240 (1997) Rippo v. State
uncharged crimes in aggravation was not improper; and (15) death penalty was appropriate.
Affirmed.
[Rehearing denied February 9, 1998]
James Tufteland, Chief Deputy District Attorney, John P. Lukens, Deputy District Attorney,
Clark County, for Respondent.
1. Judges.
Criminal defendant's unsupported allegation that trial judge had opinion or interest in outcome of defendant's case because judge
was subject of federal grand jury probe and thus was under pressure to look tough did not warrant disqualification of judge. NRS
1.230; Code of Jud. Conduct, Canon 3(E)(1)(a).
2. Judges.
Judge is presumed to be impartial.
3. Judges.
Party seeking disqualification of judge carries burden of establishing sufficient factual grounds.
4. Judges.
Disqualification of judge must be based on facts, rather than mere speculation.
5. Criminal Law.
Criminal defendant's unsupported allegation that he learned after trial that trial judge had relationship with business partner of
victim did not support finding that judge abused his discretion in refusing to disqualify himself; accordingly, defendant was not
entitled to new trial. Code of Jud. Conduct, Canon 3 comment.
6. Judges.
In some circumstances, relationship between judge and victim may be relevant to issue of disqualification and should therefore be
revealed on record. Code of Jud. Conduct, Canon 3 comment.
7. Criminal Law.
Whether to grant or deny motion for new trial is within trial court's discretion.
8. Criminal Law.
Criminal defendant's allegations did not entitle him to evidentiary hearing to determine whether state was involved in federal
investigation of trial judge and extent of judge's relationship with business partner of victim, where factual grounds allowing for
reasonable inference that judge had conflict of interest were lacking. Code of Jud. Conduct, Canon 3(E).
9. Criminal Law.
Fact that state did not oppose motion for continuance did not lead to conclusion that it deliberately attempted to delay trial through
late disclosure of new witnesses after receiving defendant's notice of alibi, even though it earlier tried to expedite trial date; thus, the
late disclosure did not warrant reversal.
113 Nev. 1239, 1241 (1997) Rippo v. State
10. Criminal Law.
Prosecutor's exhortations to alibi witness to tell truth when he accompanied police officers during search of witness' home did not
constitute witness intimidation warranting new trial, where officers did not draw their weapons, witness testified that she did not feel
threatened or compelled to change her testimony, and prosecutor was disqualified from case. U.S. Const. amend. 6.
11. Criminal Law.
Witness intimidation by prosecutor can warrant new trial if it results in denial of defendant's right to fair trial. U.S. Const. amend.
6.
12. Criminal Law.
Prosecutor has duty to refrain from improper methods calculated to produce wrongful conviction.
13. Witnesses.
Defense counsel's cross-examination of murder defendant's fellow prisoner about reasons for his confinement at psychiatric facility
opened door to question of intimidation by defendant, and thus justified prosecutor's exploration of question when he was
rehabilitating prisoner on redirect, where defense counsel (who was apparently trying to portray prisoner as mentally unstable) elicited
information suggesting that prisoner had been threatened.
14. Criminal Law.
Prosecution's intimations of witness intimidation by defendant are reversible error unless prosecutor also presents substantial
credible evidence that defendant was source of intimidation.
15. Witnesses.
Where counsel opens door to question of witness intimidation by defendant, opposing counsel may rehabilitate witness on redirect.
16. Criminal Law.
Prosecutor's impermissible references during closing argument to defendant's failure to call any witnesses on his behalf were
harmless in light of overwhelming evidence of guilt.
17. Criminal Law.
It is generally improper for prosecutor to comment on defendant's failure to call witness; such comment can be viewed as
impermissibly shifting burden of proof to defense.
18. Criminal Law.
Prosecutor's references during closing argument to lack of testimony supporting defendant's case were not improper comment on
defendant's failure to testify where prosecutor did not directly comment on defendant's failure to testify and did not manifestly intend
such comment. U.S. Const. amend. 5.
19. Criminal Law.
Prosecutor's references during closing argument to evidence not presented at trial were improper; however, in light of
overwhelming evidence of guilt, error was harmless.
20. Criminal Law.
Prosecutor's comments on evidence during closing argument did not amount to improper prosecutorial vouching where he did not
characterize testimony of witnesses or express personal belief concerning evidence before jury.
21. Criminal Law.
That prosecutor who had been disqualified showed continued interest in trial by being present in court for opening statements, by
following order of witnesses, and by speaking with witness during trial did not warrant disqualification of entire
prosecutor's office, where there was no evidence of his continued involvement, no evidence as to content
or nature of his conversations with witness, and no evidence that he disobeyed judge's order not to speak
further with any witnesses.
113 Nev. 1239, 1242 (1997) Rippo v. State
warrant disqualification of entire prosecutor's office, where there was no evidence of his continued involvement, no evidence as to
content or nature of his conversations with witness, and no evidence that he disobeyed judge's order not to speak further with any
witnesses.
22. Criminal Law.
State's failure to disclose that witness would testify that murder defendant confessed to him did not violate Brady rule, where state
did disclose witness' grand jury testimony that defendant had offered to sell witness one victim's car on day of murders, and where
exercise of reasonable diligence would have allowed defense counsel to obtain the information, especially considering that defendant
was granted two-week continuance to interview witness.
23. Criminal Law.
Under Brady, prosecution must disclose to defense evidence in its possession that is both favorable to defendant and material to
guilt or punishment.
24. Criminal Law.
In determining whether evidence is Brady material that must be disclosed to defense, court should look at following: (a)
suppression by prosecution after request by defense; (b) evidence's favorable character for defense; and (c) materiality of evidence.
25. Criminal Law.
Defendant's statement to witness that I killed those two bitches was inculpatory admission which did not fall under Brady
disclosure rule.
26. Criminal Law.
Parole officer's penalty-phase testimony that defendant told officer's supervisor that he would rather be convicted of murder than
sexual assault because murder sounded better was not exculpatory, and defense could have discovered the statement given state's open
file policy; thus, state's failure to disclose the testimony did not violate Brady.
27. Criminal Law.
Evidence that defendant used murder victim's credit card was admissible where it was relevant to show defendant's connection
with victims and crime scene and to prove robbery motive, and where it was more probative than prejudicial. NRS 48.045(2).
28. Criminal Law.
Testimony of murder defendant's fellow prisoner that he delivered messages for defendant and would hook up drug deals and
stuff and handle things was too limited and vague to imply that defendant was conducting drug sales while in jail, and thus was not
improper evidence of other bad acts, especially considering that jury heard about defendant's involvement with drugs through
testimony of other witnesses.
29. Criminal Law.
Prosecutor's use, during penalty-phase opening statements, of terms horror and horrendous to describe murder defendant's
actions in committing prior sexual assault did not deprive defendant of fair trial where prosecutor did not misstate evidence but
indicated what evidence would, and did, show, and where court instructed jury to base its decision on evidence before it rather than on
attorneys' arguments. U.S. Const. amend. 14.
30. Criminal Law.
Criminal conviction is not to be lightly overturned on basis of prosecutor's comments standing alone, for statements or conduct
must be viewed in context; only by doing so can it be determined whether prosecutor's conduct affected
fairness of trial.
113 Nev. 1239, 1243 (1997) Rippo v. State
be viewed in context; only by doing so can it be determined whether prosecutor's conduct affected fairness of trial.
31. Criminal Law.
That prosecutor's statements are undesirable is not enough to overturn conviction.
32. Criminal Law.
In determining whether prosecutor's comments warrant overturning conviction, relevant inquiry is whether they so infected
proceedings with unfairness as to make results denial of due process. U.S. Const. amend. 14.
33. Criminal Law.
By failing to object to prosecutor's reference to defendant as evil during opening statement in penalty phase, murder defendant
precluded appellate consideration.
34. Criminal Law.
Prosecutor's remarks during penalty-phase closing argument in murder trial concerning use of death penalty to send message to
society were proper explanation of rationales supporting death penalty.
35. Criminal Law.
Questions of admissibility of testimony during penalty phase of capital trial are largely left to trial judge's discretion and will not
be disturbed absent abuse of discretion.
36. Homicide.
Jury considering death penalty for murder may consider victim-impact evidence as it relates to victim's character and emotional
impact of murder on victim's family. NRS 175.552.
37. Criminal Law.
Victim can express opinion regarding defendant's sentence only in non-capital cases.
38. Homicide.
Five witnesses could give victim-impact testimony in penalty phase of murder trial where each testimonial was individual in
nature and testimony was neither cumulative nor excessive.
39. Homicide.
Victim-impact testimony given by family members during penalty phase of murder trial about brutal nature of defendant's crimes
was relevant to defendant's moral culpability and blameworthiness, even though it went beyond boundaries set forth by state.
40. Homicide.
State could present testimony of second victim-impact witness during penalty phase of murder trial after indicating it would only
call one such witness where defense interposed no immediate objection and defendant showed no prejudice.
41. Homicide.
Anti-sympathy instruction given during penalty phase of murder trial did not violate defendant's constitutional right to present
mitigating evidence where jury was also instructed to consider mitigating factors.
42. Homicide.
Evidence that defendant not only strangled and restrained his victims but also blasted them multiple times with painful
high-voltage stun gun was sufficient, when considered as whole, to show continuum or pattern of sadistic violence, and thus supported
murder-by-torture aggravating circumstance in sentencing, even though stun gun did not cause death. NRS 200.030, 200.033(8).
113 Nev. 1239, 1244 (1997) Rippo v. State
43. Homicide.
Evidence of murder defendant's attempts to kill his victims by strangling, by itself, did not establish murder-by-torture aggravating
circumstance in sentencing. NRS 200.030, 200.033(8).
44. Homicide.
Persons who taunt and torture their murder victims as part of killing process will not be allowed to escape murder-by-torture
aggravating factor in sentencing merely because the torturing is not actual cause of death. NRS 200.030, 200.033(8).
45. Homicide.
State need not charge defendant with crime before that crime can be used as aggravating circumstance in sentencing for
first-degree murder. NRS 200.033(4).
46. Homicide.
That murder defendant was not charged with either burglary or kidnapping did not prevent those crimes from being offered as
aggravating factors in sentencing, where defendant was put on notice of the factors by amended notice of intent to seek death penalty.
NRS 200.033(4).
47. Homicide.
If defendant can be prosecuted for each crime separately, each crime can be used as aggravating circumstance in sentencing for
murder. NRS 200.033(4).
48. Homicide.
Death sentences for two murders were appropriate where jury after hearing evidence relating to both aggravating and mitigating
circumstances found five valid aggravating circumstances and no mitigating circumstances, sentences were not imposed under
influence of passion, prejudice, or any arbitrary factor, and sentences were not excessive considering both crimes and defendant. NRS
177.055(2).
OPINION
Per Curiam:
A jury convicted appellant Michael Damon Rippo of two counts of first-degree murder,
one count of robbery, and one count of unauthorized use of a credit card. Rippo received two
sentences of death for the first-degree murder convictions. Rippo raises numerous issues on
appeal. We conclude that Rippo was fairly tried, convicted, and sentenced to death.
FACTS
On February 20, 1992, the apartment manager of the Katie Arms Apartment Complex in
Las Vegas discovered the bodies of Denise Lizzi and Lauri Jacobson in Jacobson's apartment.
Officers from the Las Vegas Metropolitan Police Department (LVMPD) arrived at the
scene and recovered a clothing iron and a hair dryer, from which the electrical cords had been
removed, a black leather strip, a telephone cord, and two pieces of black shoelace.
113 Nev. 1239, 1245 (1997) Rippo v. State
of black shoelace. They observed glass fragments scattered on the living room and kitchen
floor areas.
In April 1992, the LVMPD arrested Diana Hunt and charged her with the killing and
robbery of Lizzi and Jacobson. As part of her plea agreement, Hunt agreed to testify at the
trial of Michael Rippo. Hunt testified to the following:
At the time of the murders, Hunt was Rippo's girlfriend. On February 18, 1992, she and
Rippo went to the Katie Arms Apartment Complex to meet Jacobson, who was home alone.
Rippo and Jacobson injected themselves with morphine for recreational purposes. Shortly
thereafter Lizzi arrived, and she and Jacobson went outside for approximately twenty
minutes. While Jacobson and Lizzi were outside, Rippo closed the apartment curtains and the
window and asked Hunt to give him a stun gun she had in her purse. Rippo then made a
phone call.
When Jacobson and Lizzi returned to the apartment, they went into the bathroom. Rippo
brought Hunt a bottle of beer and told her that when Jacobson answered the phone, Hunt
should hit Jacobson with the bottle so that Rippo could rob Lizzi. A few minutes later the
phone rang, and Jacobson came out of the bathroom to answer it. Hunt hit Jacobson on the
back of her head with the bottle causing Jacobson to fall to the floor. Rippo and Lizzi were
yelling in the bathroom, and Hunt could hear the stun gun being fired. Hunt witnessed Rippo
wrestle Lizzi across the hall into a big closet. Hunt ran to the closet and observed Rippo
sitting on top of Lizzi and stunning her with the stun gun. Hunt then went to the living room
and helped Jacobson sit up. Rippo came out of the closet holding a knife which he had used
to cut the cords from several appliances, told Jacobson to lie down, tied her hands and feet,
and put a bandanna in her mouth.
Hunt next saw Rippo in the closet with Lizzi. Rippo had tied Lizzi's hands and feet. At this
point, a friend of Jacobson's approached the apartment, knocked on the door, and called out
for Jacobson. Rippo put a gag in Lizzi's mouth. Jacobson was still gagged and apparently
unable to answer. After the friend left, Rippo began stunning Jacobson with the stun gun. He
placed a cord or belt-type object through the ties on Jacobson's feet and wrists, and dragged
her across the floor to the closet. As Rippo dragged her, Jacobson appeared to be choking.
Hunt began to vomit and next remembered hearing an odd noise coming from the closet. She
observed Rippo with his knee in the small of Lizzi's back, pulling on an object he had placed
around her neck.
When Hunt accused Rippo of choking the women, Rippo told her that he had only
temporarily cut off their air supply, and that Hunt and Rippo had to leave before the two
women woke up. Rippo wiped down the apartment with a rag before leaving. While cleaning
up, Rippo went into the closet and removed Lizzi's boots and pants.
113 Nev. 1239, 1246 (1997) Rippo v. State
While cleaning up, Rippo went into the closet and removed Lizzi's boots and pants. He
explained to Hunt that he needed to remove Lizzi's pants because he had bled on them.
Later that evening, Rippo called Hunt and told her to meet him at a friend's shop. When
Hunt arrived, Rippo was there with Thomas Simms, the owner of the shop, and another
unidentified man. Rippo told Hunt that he had stolen a car for her and that she needed to
obtain some paperwork on it. Hunt believed the car, a maroon Nissan, had belonged to Lizzi.
The next day, on February 19, 1992, Hunt and Rippo purchased a pair of sunglasses using
a gold Visa card. Rippo told Hunt that he had purchased an air compressor and tools on a
Sears credit card that morning. Later that day, Hunt, who was scared of Rippo and wanted to
get away from him[,] went through Rippo's wallet in search of money. Hunt was unable to
find any money, but she took a gold Visa card belonging to Denny Mason, Lizzi's boyfriend,
from Rippo's wallet. Hunt did not know who Mason was. Around February 29, 1992, Rippo
confronted Hunt. Hunt suggested to Rippo that they turn themselves in to the LVMPD, but
Rippo refused, telling Hunt that he had returned to Jacobson's apartment, cut the women's
throats, and jumped up and down on them.
The medical examiner, Dr. Giles Sheldon Green, who performed autopsies on Lizzi and
Jacobson, also testified at Rippo's trial. Dr. Green testified that Lizzi had been found with a
sock in her mouth, secured by a gag that encircled her head. The sock had been pushed back
so far that part of it was underneath Lizzi's tongue, blocking her airway. Pieces of cloth were
found tied around each of her wrists. Dr. Green testified that Lizzi's numerous injuries were
consistent with manual and ligature strangulation.
Dr. Green testified that Jacobson died from asphyxiation due to manual strangulation. Dr.
Green found no traces of drugs in Jacobson's system. Neither of the womens' bodies revealed
stun gun marks.
Thomas Simms also testified at trial that Rippo arrived at his shop on February 18, 1992,
with a burgundy Nissan. When Simms asked about the ownership of the car, Rippo
responded that someone had died for it. Rippo gave Simms several music cassette tapes,
many bearing the initials D.L., and an empty suitcase with Lauri Jacobson's name tag. On
February 21, 1992, Simms heard a news report that two women had been killed and that one
of them was named Denise Lizzi. On February 26, 1992, Simms met Rippo in a parking lot to
return a bottle of morphine that Rippo had left in Simms' refrigerator. When Simms inquired
about the murders, Rippo admitted that he had "choked those two bitches to death" and
that he had killed the first woman accidentally so he had to kill the other one.
113 Nev. 1239, 1247 (1997) Rippo v. State
about the murders, Rippo admitted that he had choked those two bitches to death and that
he had killed the first woman accidentally so he had to kill the other one.
On September 15, 1993, Deputy District Attorneys John Lukens and Teresa Lowry
accompanied two police officers in the execution of a search warrant on the home of Alice
Starr. Starr had testified on the State's behalf before the grand jury but subsequently was
identified by Rippo as an alibi witness. Officer Roy Chandler, one of the two officers present
at the scene, testified at an evidentiary hearing that Starr's sister responded to their knock on
the door, admitted the officers and the prosecutors, and told them that she and her two
children were the only ones in the house. Starr, however, suddenly came out of the kitchen
area. Surprised at Starr's presence, the officers checked the residence for other individuals.
The officers removed their guns from their holsters. Starr corroborated the officers' version of
the events, testifying that the officers did not draw their guns until she appeared from the
kitchen.
During the search, one of the officers found drugs and placed Starr under arrest. Lukens
testified that he told Starr:
I am concerned. When I was last here, you told me that your relationship with Mr.
Rippo was as an acquaintance . . . . I don't think you were honest with me. And if there
was anything else that you weren't honest in telling me the truth about, I'd like to give
you a chance to tell me.
Starr testified that Lukens did not threaten her, but stated, [I]f [you're] going to dangle on
[Rippo's] star, [you're] going to go down like he is. Upon a motion by the defense, the
district court disqualified Lukens and Lowry as a result of their participation in the search and
requested the district attorney's office to transfer the case to different prosecutors.
The jury found Rippo guilty of two counts of first-degree murder, and one count each of
robbery and unauthorized use of a credit card. After the penalty hearing, the jury sentenced
Rippo to death, finding six aggravating factors: (1) the murders were committed by a person
under sentence of imprisonment; (2) the murders were committed by a person who was
previously convicted of a felony involving the use or threat of violence to another person; (3)
the murders were committed while the person was engaged in the commission of or an
attempt to commit robbery; (4) the murders involved torture; (5) the murders were committed
while the person was engaged in the commission of or an attempt to commit burglary; and (6)
the murders were committed while the person was engaged in the commission of or an
attempt to commit kidnapping.
113 Nev. 1239, 1248 (1997) Rippo v. State
DISCUSSION
Disqualification of the trial judge
[Headnote 1]
During the trial, the parties became aware that District Judge Gerard Bongiovanni was the subject of a federal grand jury probe. The
defense requested that Judge Bongiovanni recuse himself from Rippo's trial because of the pending investigation. The defense argued that a
potential conflict existed because the news media might pressure the judge, thereby making it incumbent upon the Court to show how
tough it can be and how it can be favorable to the State.
NCJC Canon 3(E) provides, in part:
(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.
See also NRS 1.230.
[Headnotes 2-4]
A judge is presumed to be impartial, and the party asserting the challenge carries the burden of establishing sufficient factual grounds
warranting disqualification. Hogan v. Warden, 112 Nev. 553, 559-60, 916 P.2d 805, 809, cert. denied,
------
U.S.
------
, 117 S. Ct. 334
(1996) (citing Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d 1296, 1299 (1988)). Disqualification must be based on facts, rather than
mere speculation. PETA v. Bobby Berosini, 111 Nev. 431, 437, 894 P.2d 337, 341 (1995); see also United States v. Cooley, 1 F.3d 985,
993 (10th Cir. 1993) (Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters do not
ordinarily satisfy the requirements for disqualification.), cert. denied, U.S., 115 S. Ct. 2250 (1995).
In the instant case, Rippo's conclusory allegations that Judge Bongiovanni had an opinion or interest in the outcome of Rippo's case are
not supported by any evidence. No evidence exists that the State was either involved in the federal investigation or conducting its own
investigation of Judge Bongiovanni. A federal investigation of a judge does not by itself create an appearance of impropriety sufficient to
warrant disqualification. No factual basis exists for Rippo's argument that Judge Bongiovanni was under pressure to accommodate the State
or treat criminal defendants in state proceedings less favorably. Thus, we conclude that Rippo has failed to allege or establish
legally cognizable grounds warranting disqualification.1
113 Nev. 1239, 1249 (1997) Rippo v. State
Rippo has failed to allege or establish legally cognizable grounds warranting
disqualification.
1
[Headnote 5]
Rippo also argues that after the conclusion of the trial, new information concerning the federal investigation of Judge Bongiovanni led
to the discovery that Judge Bongiovanni had a unique relationship with the business partner of . . . Denny Mason. Denny Mason was a
boyfriend of Lizzi and the owner of the stolen Visa card. Rippo moved for a new trial, alleging that [a]t no time did the Judge advise that
he knew [Mason] nor did the judge advise that he knew the business partner of Denny Mason; however the defense has learned that reputed
Buffalo mob associate Ben Spano is the business partner of Denny Mason. . . . Judge James A. Brennan, hearing the motion, denied a new
trial. Rippo contends that (1) Judge Bongiovanni should have revealed on the record his relationship, and (2) the appearance of impropriety
is sufficient to grant a new trial.
[Headnote 6]
A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider
relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. NCJC Canon 3(E),
Commentary.
2
We agree that, in some circumstances, a relationship between a judge and a victim may be relevant to the issue of
disqualification and should therefore be revealed on the record. However, in the instant case, no evidence exists, beyond the allegations set
forth by the defense, that Judge Bongiovanni knew either Denny Mason or his alleged business partner. Even if a relationship existed,
Rippo has not shown that the judge's alleged acquaintance with Mason's business partner would result in bias. See, e.g., Jacobson v.
Manfredi, 100 Nev. 226, 679 P.2d 251 (1984) (allegations that judge had professional relationship with respondent's aunt did not
demonstrate judicial bias sufficient to find judge's failure to recuse himself an abuse of discretion). Accordingly, we conclude that Rippo's
allegations that Judge Bongiovanni had a relationship, personal or professional, with the business partner of Mason does not support a
finding that Judge Bongiovanni abused his discretion in refusing to disqualify himself.
__________

1
We further note that Judge Bongiovanni's disqualification in the instant case would lead to his disqualification in all criminal cases he
heard while subject to the federal investigation. Such a result would be insupportable.

2
We have previously noted that the Commentary to the Code of Judicial Conduct gives guidance to the interpretation of the Canons and
Rules and is not a statement of additional rules. See PETA, 111 Nev. at 436 n.5, 894 P.2d at 340 n.5.
113 Nev. 1239, 1250 (1997) Rippo v. State
finding that Judge Bongiovanni abused his discretion in refusing to disqualify himself.
[Headnotes 7, 8]
Whether to grant or deny a motion for a new trial is within the trial court's discretion. State v. Carroll, 109 Nev. 975, 977, 860 P.2d
179, 180 (1993). Because we conclude that disqualification was not warranted on the basis of Rippo's unsupported allegations, we
conclude that Judge Brennan did not abuse his discretion in denying the motion for a new trial. See Matter of Dunleavy, 104 Nev. 784, 789,
769 P.2d 1271, 1274 (1988) (Summary dismissal of a challenge is appropriate where the party does not allege legally cognizable grounds
supporting a reasonable inference of bias or prejudice.).
3
Amendment of the indictment
On March 16, 1994, the State filed a motion to submit an amended indictment to allege felony murder and aiding and abetting. Upon
the district court's denial of its request, the State filed a writ of mandamus with this court which was granted on April 27, 1995. Thereafter,
the amended indictment was filed. Rippo now argues that the district court erred by amending the indictment without resubmitting it to the
grand jury. In our April 27, 1995 order, we concluded that the amended indictment was proper. Accordingly, we decline to review Rippo's
argument further.
Prosecutorial misconduct during the guilt phase
1. Disclosure of new witnesses
[Headnote 9]
Rippo asserts that the State's disclosure of several new witnesses after receiving Rippo's notice of alibi was improper. We conclude
there is no merit to Rippo's contention that the State's failure to oppose the subsequent continuance granted by the district court was out of
the ordinary because the State had earlier filed a motion to expedite the trial date. The fact that the State did not oppose the motion for a
continuance does not lead to the conclusion that the State deliberately attempted to delay the trial through the late
disclosure of the witnesses.
__________

3
Rippo also argues that we should remand the case for an evidentiary hearing to determine whether the State was involved in the federal
investigation and the extent of Judge Bongiovanni's relationship with the business partner of Mason. Only then, Rippo contends, will it be
known if a conflict of interest existed. We have held in other contexts that bare or naked allegations do not entitle an appellant to an
evidentiary hearing. See, e.g., Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984). The same rule should apply in this case. We therefore
conclude that, absent factual grounds which would allow for a reasonable inference that a conflict existed, Rippo is not entitled to an
evidentiary hearing.
113 Nev. 1239, 1251 (1997) Rippo v. State
the conclusion that the State deliberately attempted to delay the trial through the late
disclosure of the witnesses. Moreover, no evidence exists that the delay caused by the
continuance prejudiced Rippo. We thus conclude that the prosecution's failure to disclose
timely the witnesses' names does not warrant reversal.
2. Witness intimidation
[Headnotes 10-12]
Rippo also contends that the original prosecutors assigned to the case intimidated Alice Starr during a search of her home. Witness
intimidation by a prosecutor can warrant a new trial if it results in a denial of the defendant's right to a fair trial. State v. Owens, 753 P.2d
976, 978 (Utah Ct. App. 1988); see also Webb v. Texas, 409 U.S. 95 (1972) (defendant's due process rights violated where trial judge
implied that he expected witness to lie and assured witness that if he lied he would be prosecuted and convicted for perjury); United States
v. MacCloskey, 682 F.2d 468, 479 (4th Cir. 1982) (U.S. Attorney's suggestion that witness would be well-advised to remember the Fifth
Amendment violated defendant's right to present defense witness freely). A prosecutor has a duty to refrain from improper methods
calculated to produce a wrongful conviction. Berger v. State, 295 U.S. 78, 88 (1934).
The testimony of the officers and of Starr indicates that the officers did not draw their weapons in an attempt to intimidate Starr.
However, Luken's statements to Starr, made after she had been arrested for possession of drugs during a search conducted by four State
authorities, may have been intimidating. Starr, however, testified that she did not feel threatened by Lukens or compelled to change her
testimony.
4
Furthermore, Lukens and Lowry were disqualified from the case as a result of their participation in the search. Therefore, we
conclude that prosecutors' conduct did not constitute witness intimidation warranting reversal.
3. Evidence of threats to witnesses
[Headnote 13]
The following testimony was elicited by defense counsel during cross-examination of David Levine, a prison inmate incarcerated with
Rippo:
Q: When you were released what facility were you released from?
A: Jean.
__________

4
The record indicates that Starr did not testify on behalf of either the State or Rippo during trial.
113 Nev. 1239, 1252 (1997) Rippo v. State
Q. And was that the psychiatric facility?
A: Yes.
Q: And that's where you were housed?
A: Yes.
. . . .
Q: How long did you spend on the psyche facility at prison?
A: . . . almost two years, I think.
Q: Are you on any medications today?
A: No.
Q: How long have you been off them?
A: I never been on them.
Q: They didn't give you any medications when you were in the psyche ward?
A: No, they kept me in there for protection.
Q: And why would that be?
A: Because of this trial.
On redirect, the State inquired as to why Levine was in the psychiatric facility:
Q: Why were you in a psychiatric facility?
A: They put me in there 'causefor protection.
Q: Protection from what?
A: Probably because of some threats were made on me.
Q: For what reason?
A: For this trial.
Q: Because you were going to come in and testify?
A: Yes.
. . . .
Q: Anybody ever threaten you? . . . Directly?
A: A couple of times.
Q: To your face?
A: Well, from a distance.
Q: You heard it though?
A: Yeah.
Q: Okay.
A: So did some of the staff members.
. . . .
Q: And then you went into the psychiatric facility?
A: Yes. . . .
[Headnotes 14, 15]
The prosecution's intimations of witness intimidation by a defendant are reversible error unless the prosecutor also presents substantial
credible evidence that the defendant was the source of the intimidation. Lay v. State, 110 Nev. 1189, 1193, 886 P.2d 448, 450-51 (1994)
(citing United States v. Rios, 611 F.2d 1335, 1343 {10th Cir.
113 Nev. 1239, 1253 (1997) Rippo v. State
1343 (10th Cir. 1979); United States v. Peak, 498 F.2d 1337, 1339 (6th Cir. 1974); United
States v. Hayward, 420 F.2d 142, 147 (D.C. Cir. 1969); Hall v. United States, 419 F.2d 582,
585 (5th Cir. 1969)). Where counsel opens the door to the disputed questions, however,
opposing counsel may properly question the witness in order to rehabilitate him or her.
Wesley v. State, 112 Nev. 503, 513, 916 P.2d 793, 800 (1996), cert. denied,
------
U.S.
------
,
117 S. Ct. 1268 (1997).
Rippo's counsel opened the door when, on cross-examination, he asked Levine about his
confinement at the psychiatric facility and the reasons why he was housed there. In an
apparent attempt to portray Levine as mentally unstable, defense counsel elicited information
suggesting that Levine had been threatened. Therefore, we conclude that the district attorney
properly explored the testimony given during cross-examination and questioned Levine in an
effort to rehabilitate his credibility.
4. The State's closing argument
[Headnote 16]
During closing argument, the prosecutor stated:
I'm talking about Mr. Rippo having the opportunity to kill themto commit the murder. The opportunity was there, plain and
simple. And interestingly, there has been no testimony that he was some place else.
The only person who tells us where he was on February the 18th, 1992, is Diana Hunt.
. . . .
You haven't heard any witness come into this courtroom, take the oath and sit down there and say Michael Beaudoin told me that
he did it. You haven't heard any witness come in here and say Tom Simms told me that he did it; or any of the other names that
you've heard. There has been no indication in this case at all except what we have shown here.
At the next break, the defense moved for a mistrial on the ground that the prosecution had shifted the burden of proof to the defendant.
The district court denied the motion. Rippo now argues that in addition to shifting the burden of proof, the prosecutor implicitly
commented on Rippo's decision not to testify.
[Headnote 17]
It is generally improper for a prosecutor to comment on a defendant's failure to call a witness. Whitney v. State, 112 Nev. 499, 502,
915 P.2d 881, 882 (1996). Such comment can be viewed as impermissibly shifting the burden of proof to the defense. Id.; accord Barron v.
State, 105 Nev. 767, 778, 783 P.2d 444, 451 (1989). We conclude that the prosecutor made impermissible references to Rippo's
failure to call any witnesses on his behalf and, in so doing, may have shifted the burden of proof to the
defense.
113 Nev. 1239, 1254 (1997) Rippo v. State
impermissible references to Rippo's failure to call any witnesses on his behalf and, in so
doing, may have shifted the burden of proof to the defense. However, we conclude that error
was harmless in light of the overwhelming evidence of guilt supporting Rippo's conviction.
Cf. Morris v. State, 112 Nev. 260, 264, 913 P.2d 1264, 1267-68 (1996) (improper comment
by prosecutor on post-arrest silence of defendant does not require reversal if references are
harmless beyond a reasonable doubt and such references will be considered harmless beyond
a reasonable doubt if there is overwhelming evidence of guilt).
[Headnote 18]
Although the prosecutor referred to the lack of testimony in support of Rippo's case, the remarks did not directly comment on Rippo's
failure to take the stand. See Barron v. State, 105 Nev. 767, 778, 783 P.2d 444, 451 (1989). Further, we do not find that the prosecutor
manifestly intended the comments as a reference to Rippo's failure to testify on his behalf. See id. at 779, 783 P.2d at 452 (When reference
is indirect, the test for determining whether prosecutorial comment constitutes a constitutionally impermissible reference to a defendant's
failure to testify is 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 failure to testify.) (quoting United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968)).
Accordingly, we conclude that this argument lacks merit.
[Headnote 19]
During closing argument, the prosecutor also stated, Hunt said that [Rippo] hit [Hunt] repeatedly in the face and then pulled out the
stun gun, . . . and she showed the marks that she has on her back from where he used the gun on her. The defense objected to the argument
on the ground that Hunt never showed the court any marks on her back. In response, the prosecutor stated,
You are the triers of fact. When I sit down, the role of the prosecutors . . . is over. So I urge you to rely upon your own
recollections.
There are many things that happen, interviews outside of the courtroom, and so, occasionally, if there is some confusion about
precisely what happened in the courtroom, I do beg your indulgence; but if she didn't do that in open court, then I misspoke
making that argument.
The defense objected on the ground that the prosecution was referring to events outside of the court. On appeal, Rippo argues that the
prosecutor's statements are so prejudicial as to warrant reversal.
113 Nev. 1239, 1255 (1997) Rippo v. State
We conclude that the prosecutor's comments concerning the stun gun and his subsequent
comments to the effect that interviews and things happen outside the courtroom were
improper references to evidence not presented at trial. See Schrader v. State, 102 Nev. 64, 714
P.2d 1008 (1986) (reference to information or conversations which occurred outside of the
courtroom is improper during closing argument). However, we conclude that any error caused
by these comments was harmless in light of the overwhelming evidence against Rippo. See
Ybarra v. State, 103 Nev. 8, 16, 731 P.2d 353, 358 (1987).
[Headnote 20]
Finally, Rippo argues that the prosecutor improperly expressed his personal belief concerning the evidence. We conclude that the
statements do not contain prosecutorial vouching. The prosecutor did not characterize the testimony of the witnesses, nor did he express a
personal belief concerning the evidence before the jury. Therefore, this argument lacks merit. Cf. Witherow v. State, 104 Nev. 721, 724,
765 P.2d 1153, 1155 (1988) (improper for prosecutor to state opinion as to veracity of witness).
5
Motion to disqualify the entire district attorney's office
[Headnote 21]
Rippo argues that the district court erred in failing to disqualify the entire prosecutor's office in light of Lukens and Lowry's
misconduct preceding their disqualification and in light of Lukens' continued interest in the case after his disqualification. Rippo contends
that although Lukens was disqualified, he was present in court for the opening statements, followed the order of the witnesses, and spoke
with witness Diana Hunt during trial.
We conclude that Rippo failed to make a showing of extreme circumstances warranting disqualification of the entire district attorney's
office. See Collier v. Legakes, 98 Nev. 307, 309, 646 P.2d 1219, 1220 (1982) (disqualification of a prosecutor's office is warranted only in
extreme circumstances). First, the fact that Lukens was present for opening statements and followed the order of the witnesses may show a
continued interest in the trial, but it is not evidence of continued involvement. Second, although Lukens acknowledged that he had
occasion to have discussions with [Hunt] this week, no evidence exists as to the content or
__________

5
We conclude that two errors occurred during the guilt phase of the trial, namely, the prosecutor referred to evidence not presented at
trial and commented on Rippo's failure to call a witness. We conclude that, faced with the evidence in this case, the jurors would have
reached the same outcome had the errors not occurred. Therefore, we conclude that Rippo's contention that cumulative error warrants
reversal lacks merit. See Sipsas v. State, 102 Nev. 119, 716 P.2d 231 (1986).
113 Nev. 1239, 1256 (1997) Rippo v. State
nature of the conversations. Third, the judge admonished Lukens not to speak further with
any witnesses, and no evidence has been presented that Lukens failed to abide by this order.
The district court's disqualification of Lukens and Lowry was sufficient to ensure that Rippo
received a fair trial. Thus, we conclude that the district court did not abuse its discretion in
failing to disqualify the prosecutor's office.
Brady violations
[Headnote 22]
During his opening statement at the guilt phase, the prosecution told the jury that Thomas Simms would testify that Rippo had
admitted to strangling those bitches and that when Simms asked Rippo why he killed the women, Rippo replied that he accidentally
killed the first one, so he had to kill the second one. At the next break in the trial, Rippo moved for a mistrial based on an alleged discovery
violation regarding Rippo's statements to Simms. Rippo argued that none of the statements concerning his confession to Simms had been
included in the documents obtained pursuant to the discovery order. The State argued that (1) Simms was identified as a witness and the
defense could have interviewed him prior to trial, (2) the prosecuting attorney learned of the admission during a pretrial conference one
week earlier, at which time Simms disclosed the statements, and (3) the statements were never written down or recorded. The district court
denied Rippo's motion.
After cross-examination of Simms at trial, another motion for a mistrial was made outside the presence of the jury on the ground that
Simms testified that he had two years earlier informed former prosecutors about Rippo's statements. The district court conducted an
evidentiary hearing on the matter. At the conclusion of the evidentiary hearing, the trial court denied the motion for a mistrial. The district
court continued the trial for two weeks to give Rippo's counsel time to interview witnesses regarding the statements made to Simms.
[Headnotes 23, 24]
On appeal Rippo asserts that the State withheld the statements in violation of Brady v. Maryland, 373 U.S. 83 (1963).
6
The
prosecution must disclose to the defense evidence in its possession that is both favorable to the accused and material to guilt or punishment.
Brady, 373 U.S. at 87; Roberts v. State, 110 Nev. , , SS1 P.2d 1, 5 {1994).
__________

6
Although Rippo argued below that the statements were withheld in violation of a discovery order, on appeal he does not set forth any
authority to examine and analyze a discovery violation. Rather, his brief argues that the State violated Brady. Therefore, we address only
the Brady claim.
113 Nev. 1239, 1257 (1997) Rippo v. State
1121, 1127, 881 P.2d 1, 5 (1994). In determining whether evidence is Brady material, the
court should look at the following: (a) suppression by the prosecution after a request by the
defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the
evidence. Moore v. Illinois, 408 U.S. 786, 794-95 (1972); Homick v. State, 112 Nev. 304,
314, 913 P.2d 1280, 1287, cert. denied,
------
U.S.
------
, 117 S. Ct. 519 (1996).
Federal courts have consistently held that a Brady violation does not result if the
defendant, exercising reasonable diligence, could have obtained the information. See, e.g.,
Williams v. Scott, 35 F.3d 159, 163 (5th Cir.) (Brady claim fails where appellant could have
obtained exculpatory statement through reasonable diligence), cert. denied, 513 U.S. 1137
(1995); United States v. Dupuy, 760 F.2d 1492, 1501 n.5 (9th Cir. 1985) (if the means of
obtaining the exculpatory evidence has been provided to the defense, the Brady claim fails);
United States v. Griggs, 713 F.2d 672, 674 (11th Cir. 1983) (where prosecution disclosed
identity of witness, it was within the defendant's knowledge to have ascertained the alleged
Brady material); United States v. Brown, 582 F.2d 197, 200 (2d Cir. 1978) (no violation
where defendant was aware of essential facts enabling him to take advantage of the
exculpatory evidence).
7
[Headnote 25]
We first conclude that the statement, I killed those two bitches, is an inculpatory admission. Therefore, this statement does not fall
under Brady. See Brady, 373 U.S. at 87; Roberts, 110 Nev. at 1172, 881 P.2d at 5.
In the instant matter, the prosecution identified Simms as a witness and provided the defense with Simms' grand jury testimony
revealing that Rippo had visited Simms the day of the murders and had offered to sell him a burgundy car belonging to one of the victims.
8
We conclude that the knowledge that Simms spoke with Rippo shortly after the murders should have put Rippo's counsel on notice that
Simms might have potentially incriminating or exculpatory evidence, and that using reasonable diligence, Rippo's counsel could have
obtained the information through an interview. Further, we note that the district court granted Rippo a two-week continuance to
interview Simms and other witnesses, thereby removing the prejudicial impact of learning of the statements
after trial commenced.
__________

7
See also Moore, 408 U.S. at 795, in which the Court observed, We know of no constitutional requirement that the prosecution make a
complete and detailed accounting to the defense of all police investigatory work on a case.

8
Simms testified: Well, I asked [Rippo] where the car came from and he told me that someone had died for the car. . . . [Rippo] wanted
me to loan him some money. . . . He said he needed about $2,000 . . . to leave town.
113 Nev. 1239, 1258 (1997) Rippo v. State
granted Rippo a two-week continuance to interview Simms and other witnesses, thereby
removing the prejudicial impact of learning of the statements after trial commenced.
[Headnote 26]
During the penalty phase, the State called Howard Saxon, a state parole and probation officer. Saxon testified that Rippo was on parole
and under a sentence of imprisonment at the time of the murders. Saxon testified that his supervisor was Officer Schmelz, and that Rippo
told Schmelz that he would rather be convicted of murder than sexual assault because murder sounded better. Rippo contends that the State
violated Brady by failing to turn over Saxon's statements. We conclude that no Brady violation occurred because (1) the statement is not
exculpatory and (2) pursuant to the State's open file policy, the defense could have inspected the State's files and discovered the statement
and thus the prosecution did not suppress the evidence.
9
See, e.g., Dupuy, 760 F.2d at 1501 n.5.
Other bad act testimony
1. Use of Sears credit card
[Headnote 27]
During trial, the State sought to introduce evidence that Rippo had used Lizzi's Sears credit card after the date of the murders.
10
Rippo
objected, and following a Petrocelli hearing outside the presence of the jury, the evidence was admitted. See Petrocelli v. State, 101 Nev.
46, 692 P.2d 503 (1985) (before district court may admit evidence of an independent bad act, it must conduct a hearing outside the jury's
presence, during which the state must prove by clear and convincing evidence that the defendant committed the act, and the district court
must determine that the evidence is admissible and balance its probative value and prejudicial effect). Rippo argues that the district court
abused its discretion in allowing testimony regarding Rippo's use of the Sears credit card.
During the Petrocelli hearing, the State introduced a credit card receipt from Sears and the testimony of Carlos Caipa, the sales
manager at Sears.
__________

9
Because we conclude that two of the statements were unfavorable to the defense and that the prosecution did not suppress the evidence
and thus no Brady violations occurred, we need not reach the issue of whether the statements were material.

10
Rippo was charged with the unauthorized use of a credit card; however, the charge related only to use of the gold Visa card belonging
to Denny Mason.
113 Nev. 1239, 1259 (1997) Rippo v. State
manager at Sears. Caipa testified that a man resembling Rippo purchased several items with a
credit card bearing Lizzi's name.
Upon review of the arguments in the record, we conclude that the district court did not
abuse its discretion in admitting the evidence. See Cipriano v. State, 111 Nev. 534, 541, 894
P.2d 347, 352 (1995) (whether to admit or exclude evidence of other wrongs, crimes, or bad
acts is within the trial court's discretion). The evidence is relevant to show Rippo's connection
with the victims and the scene of the crime, and it tends to prove Rippo's motive of robbery.
See NRS 48.045(2) (Evidence of other crimes is admissible to prove motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.). In
addition, we conclude that this evidence is more probative than prejudicial. See Armstrong v.
State, 110 Nev. 1322, 1323, 885 P.2d 600, 601 (1994) (district court must weigh the
probative value of the proffered evidence against its prejudicial effect).
2. Prior Sexual Assault
During trial, Thomas Simms testified, without objection by Rippo's defense counsel, that
Rippo told Simms with regard to the victims that I could have f[]ked both of them, but I
didn't . . . That means I'm cured. Rippo argues that the jury must have inferred from this
testimony that Rippo had committed a prior sexual assault or had a criminal history. We
decline to address this argument due to Rippo's failure to object during trial. See Garner v.
State, 78 Nev. 366, 372-73, 374 P.2d 525, 529 (1962) (failure to object generally precludes
appellate consideration).
3. Drug transactions
[Headnote 28]
Rippo contends that the testimony of a jail inmate was improper evidence that Rippo was conducting drug transactions within the
jail.
11
We conclude that Levine's testimony was too limited and vague to imply that Rippo was conducting drug sales while in jail.
Moreover, the jury heard about Rippo's involvement with drugs through the testimony of Hunt and Simms. Therefore, we conclude that this
argument lacks merit.
__________

11
David Levine testified that he met Rippo while in jail and that he delivered messages from Rippo to Starr regarding drugs. He stated
that he would hook up drug deals and stuff and handle things, like for thefor the court; get in touch with the attorney, request [Rippo's]
attorney, stuff like that. The defense objected to the testimony, and the State ceased this line of questioning.
113 Nev. 1239, 1260 (1997) Rippo v. State
Prosecutorial misconduct during the penalty phase
1. The State's opening statement
[Headnotes 29-32]
During the opening statement at the penalty phase, the prosecutor used the terms horror and horrendous to describe Rippo's actions
in committing a prior sexual assault. [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 doing so can it be determined whether the prosecutor's
conduct affected the fairness of the trial.' Greene v. State, 113 Nev. 157, 169, 931 P.2d 54, 62 (1997) (quoting United States v. Young,
470 U.S. 1, 11 (1985)). It is not enough that the prosecutor's statements are undesirable. Darden v. Wainwright, 477 U.S. 168, 181 (1986).
The relevant inquiry is whether the prosecutor's statements so infected the proceedings with unfairness as to make the results a denial of
due process. Id. at 181; Greene, 113 Nev. at 169, 931 P.2d at 62.
We conclude that the prosecutor's use of the words horror and horrendous to describe Rippo's acts did not deprive Rippo of a fair
trial. The prosecutor did not misstate the evidence but indicated what the evidence would, and did, show. See Garner, 78 Nev. at 371, 374
P.2d at 528 (1962). Further, the district court instructed the jury to base its decision on the evidence before it, not on the attorneys'
arguments.
[Headnote 33]
Rippo next contends that the prosecutor's reference to Rippo as evil was improper. Rippo did not interpose an objection below.
Therefore, we conclude that Rippo's failure to object to the statement precludes appellate consideration. See id. at 372-73, 374 P.2d at 529.
2. The State's closing argument
[Headnote 34]
During the closing statement at the penalty phase, the prosecutor stated:
It is appropriate that society express its moral outrage at the murder of innocent human beings. . . . And it furthermore is important
that stiff, severe penalties be imposed because that deters, because what you do today will deter Mr. Rippo, and because what you
do today sends out a message to other persons that indicates this society, this country will not.
[Objection by defense counsel]
. . . .
113 Nev. 1239, 1261 (1997) Rippo v. State
This community must know that we will not tolerate double murders perpetrated
upon young women . . . . There are reasons for the death penalty . . . . That's to send a
message to society.
Rippo contends that the prosecutor's statements improperly urged the jury to send a message
to society through imposition of the death penalty.
We conclude that the prosecutor's statements constitute an explanation of the rationales
supporting the death penalty. This is a proper area for prosecutorial comment. See Collier v.
State, 101 Nev. 473, 705 P.2d 1126 (1985) (the prosecutor may discuss general theories of
penology such as the merits of punishment, deterrence, and the death penalty); see also Witter
v. State, 112 Nev. 908, 921 P.2d 886, cert. denied,
------
U.S.
------
, 117 S. Ct. 1708 (1997).
Victim-impact testimony
[Headnotes 35-37]
Questions of admissibility of testimony during the penalty phase of a capital trial are largely left to the trial judge's discretion and will
not be disturbed absent an abuse of discretion. Smith v. State, 110 Nev. 1094, 1106, 881 P.2d 649, 656 (1994). A jury considering the
death penalty may consider victim-impact evidence as it relates to the victim's character and the emotional impact of the murder on the
victim's family. Payne v. Tennessee, 501 U.S. 808, 827 (1991); Homick v. State, 108 Nev. 127, 136, 825 P.2d 600, 606 (1992); see also
NRS 175.552. A victim can express an opinion regarding the defendant's sentence only in non-capital cases. Witter, 112 Nev. at 922, 921
P.2d at 896.
[Headnote 38]
Five witnesses testified as to the character of the victims and the impact the victims' deaths had on the witnesses' lives and the lives of
their families. We conclude that each testimonial was individual in nature, and that the admission of the testimony was neither cumulative
nor excessive. Thus, we conclude that the district court did not abuse its discretion in allowing all five witnesses to testify.
[Headnote 39]
Three of the witnesses referred to the brutal nature of the crime.
12
The State instructed the family members not to testify about how
heinous the crimes were, and the district court apparently relied, in part, on these instructions in allowing the
victim-impact testimony.
__________

12
Orell Maxwell, Jacobson's mother-in-law, testified that her son and granddaughter must cope with the horror of the brutal and
violent manner of [Jacobson's] death. Nicholas Lizzi, Lizzi's father, referred to the horror of losing his daughter so brutally. Nicholas
Lizzi, Jr., Lizzi's
113 Nev. 1239, 1262 (1997) Rippo v. State
about how heinous the crimes were, and the district court apparently relied, in part, on these
instructions in allowing the victim-impact testimony. Thus, the testimony, insofar as it
described the nature of the victims' deaths went beyond the boundaries set forth by the State.
However, the fact that the murders were brutal certainly contributed to the emotional
suffering of the victims' families. Therefore, we conclude that the statements were relevant to
Rippo's moral culpability and blameworthiness. See Payne, 501 U.S. at 825; see also Atkins
v. State, 112 Nev. 1122, 1136, 923 P.2d 1119, 1128 (1996) (prosecutor's statements that
defendant brutally murdered and savaged the victim were proper to describe the impact
of the crime on the victim and her family), cert. denied,
------
U.S.
------
, 117 S. Ct. 1267
(1997).
[Headnote 40]
Rippo also argues that the district court abused its discretion by allowing Orell Maxwell to testify after the State indicated it would only
call one witness to testify on behalf of Jacobson. We conclude that the testimony of Maxwell was relevant to the jury's determination of the
appropriate sentence. We further note that Rippo's counsel did not object to the introduction of Maxwell's testimony nor did he object to the
statements she made. Rather, he waited until all five witnesses had testified before moving to strike the death penalty. We conclude that the
district court did not abuse its discretion by allowing the State to present the testimony of a second witness because the defense interposed
no immediate objection, and Rippo has failed to show any prejudice.
Jury instructions
[Headnote 41]
Rippo contends that the district court's anti-sympathy instruction violated his constitutional right to present relevant mitigating
evidence. A district court may instruct the jury not to consider sympathy during a capital penalty hearing, as long as the court also instructs
the jury to consider mitigating facts. Riley v. State, 107 Nev. 205, 215-16, 808 P.2d 551, 557 (1991); Hogan v. State, 103 Nev. 21, 25, 732
P.2d 422, 424 (1987). Here, the district court instructed the jury to consider mitigating factors in deciding the appropriate penalty.
Therefore, this argument lacks merit.
__________
brother, spoke about preparing for her funeral and stated, [W]e decide[d] to keep the casket closed because she looked so fake, covered
with makeup to hide the trauma she had been through. He further stated, [K]nowing she was murdered in the horrible way she was makes
it ever so difficult to trust any human being. It overwhelms me that anyone is capable of committing such heinous crimes and lives on this
planet.
113 Nev. 1239, 1263 (1997) Rippo v. State
Torture as an aggravating circumstance
[Headnote 42]
Rippo argues that insufficient evidence exists to support the aggravating circumstance of torture set forth in NRS 200.033(8).
The State argues that the testimony of Hunt and Dr. Green are evidence that Rippo tortured the victims. Hunt testified that Rippo
instructed her to hit Jacobson over the head with a beer bottle; Rippo continually stunned Lizzi with a stun gun; Rippo tied the hands and
feet of Jacobson, dragged her across the floor, and placed a gag in her mouth; Rippo tied the hands and feet of Lizzi; and while Rippo was
choking Lizzi, the whole front of her body was off the ground and she was making an animal-like noise. Dr. Green testified that both
women's injuries included scrapes, stab wounds, and ligature marks. He testified that Lizzi died from manual and ligature strangulation, but
could not testify as to whether the stab wounds or the ligature wounds occurred first. Dr. Green testified that Jacobson died from
asphyxiation due to manual strangulation. The State also points out that it takes several minutes to strangle someone to death manually. In
sum, the State argues that the stunning, stab wounds, scratches, and slow strangulation are evidence that Rippo tortured the women before
he killed them.
[Headnote 43]
Most of the evidence presented by the State is comprised of evidence of Rippo's attempts to kill the women by strangling. These killing
acts, by themselves, do not constitute torture. The only evidence that can support a finding of torture murder is Hunt's testimony that Rippo
repeatedly assaulted each of the women.
NRS 200.030 defines murder by torture in terms of murder that is [p]erpetrated by means of . . . torture. This language would seem
to indicate that the torturing acts must be the killing acts, that is to say killing by means of torture. The district court instructed the jury that
in order to find torture, it must find that the act or acts which caused the death must involve a high degree of probability of death, and the
defendant must commit such an act or acts with the intent to cause cruel pain and suffering for the purpose of revenge, persuasion, or for
any other sadistic purpose. . . . [T]orture . . . [does not] require any proof that the defendant intended to kill the deceased, nor does it
necessarily require any proof that the deceased suffered pain. Under the instruction as given, the jury was required to find that the acts of
torture must have caused the death and must have involve[d] a high degree of probability of death. Like the statute, the instruction
seems to require that the killing itself was accomplished by means of torture.
113 Nev. 1239, 1264 (1997) Rippo v. State
accomplished by means of torture. In other words, the actions which inflict the pain must also
be the cause of the victim's death. I CALJIC 8.24, at 401 (6th ed. 1996) (murder by
torture requires that acts of perpetrator be the cause of victim's death).
[Headnote 44]
Obviously, these two murder victims were not killed by means of a stun gun; and, even if it were to be argued that the use of the stun
gun was done sadistically, under a strict reading of NRS 200.030 and the proffered instruction, Rippo's shooting his victims with a stun gun
would not involve murder by torture. Nonetheless, we conclude that there is evidence which would support a finding of murder by means
of . . . torture because the intentional infliction of pain is so much an integral part of these murders. Persons who taunt and torture their
murder victims as part of the killing process will not be allowed to escape the murder-by-torture aggravating factor merely because the
torturing is not the actual cause of death.
Our interpretation of murder by torture finds support in the California case, People v. Proctor, 842 P.2d 1100 (1992). In Proctor the
California Supreme Court held that acts of torture may not be segregated into their constituent elements in order to determine whether any
single act by itself caused the death; rather, it is the continuum of sadistic violence that constitutes the torture.
There seems to be little doubt that when Rippo was shocking these victims with a stun gun, he was doing so for the purpose of causing
them pain and terror and for no other purpose. Rippo was not shocking these women with a stun gun for the purpose of killing them but,
rather, it would appear, with a purely sadistic purpose. When we review the facts of this case and consider the entire episode as a
wholethe strangulation and restraint, accompanied by the frightful, multiple blasts with a painful high voltage stun gunwe conclude
that even though the stun gun shocks were not the cause of death, there is still evidence, under our interpretation of murder perpetrated by
means of torture, to support a jury finding that there was, as an inseparable ingredient of these murders, a continuum or pattern of sadistic
violence that justified the jury in concluding that these two murders were perpetrated by means of . . . torture.
Aggravating circumstances
[Headnotes 45, 46]
NRS 200.033(4) does not require that the State first charge the defendant with a crime before that crime can be used as an
aggravating circumstance.
113 Nev. 1239, 1265 (1997) Rippo v. State
aggravating circumstance. Bennett v. State, 106 Nev. 135, 141, 787 P.2d 797, 801 (1990). A
primary concern with respect to the finding of aggravating circumstances at the penalty
hearing is to provide an accused notice and to insure due process so the accused can meet any
new evidence which may be presented during the penalty hearing. Id. at 142, 787 P.2d at
801. Rippo was put on notice that burglary and kidnapping would be presented as aggravating
factors through the amended notice of intent to seek the death penalty. Accordingly, we
conclude that the fact that Rippo was not charged with either burglary or kidnapping does not
prevent them from being offered as aggravating factors.
[Headnote 47]
If a defendant can be prosecuted for each crime separately, each crime can be used as an aggravating circumstance. Bennett, 106 Nev.
at 142, 787 P.2d at 801. Upon review, we conclude that Rippo could have been prosecuted separately for each of the underlying felonies,
and therefore each crime was properly considered as an aggravating circumstance.
[Headnote 48]
NRS 177.055(2) requires this court to review whether the sentences of death were imposed under the influence of passion, prejudice, or
any arbitrary factor, and whether the sentences are excessive considering both the crime and the defendant. The jury heard evidence relating
to both aggravating and mitigating circumstances, finding five valid aggravating circumstances and no mitigating circumstances. We
conclude that the sentences of death were not imposed under the influence of passion, prejudice, or any arbitrary factor, and that the
sentences were not excessive considering both the crimes and the defendant. Therefore, we hold that the sentences of death were
appropriate under NRS 177.055(2).
CONCLUSION
The judgment of conviction for two counts of first-degree murder, one count of robbery, one count of unauthorized use of a credit card,
and two sentences of death are affirmed.
____________
113 Nev. 1266, 1266 (1997) Wiseman v. Hallahan
ROSEMARIE WISEMAN, Appellant, v. FRANCIS R. HALLAHAN and JOHN C.
HALLAHAN dba COLONIAL INN HOTEL & CASINO, Respondents.
No. 27333
October 1, 1997 945 P.2d 945
Appeal from a judgment of the district court, entered pursuant to a directed verdict, in
respondents' favor. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Pedestrian brought personal injury action against hotel after she slipped and fell on icy
sidewalk in front of hotel. The district court directed verdict for hotel. Pedestrian appealed.
The supreme court, Maupin, J., held that: (1) hotel did not have duty to keep sidewalk in
reasonably safe condition, and (2) hotel was not liable based on negligent performance of
undertaking.
Affirmed.
Osborne Law Office, Chtd. and Patty Petersen, Reno, for Appellant.
Laxalt & Nomura, Ltd. and Katherine J. MacKenzie, Reno, for Respondents.
Abutting property owner or occupant is under no duty to keep sidewalk in front of his property in reasonably safe condition.
Liability will not lie for defect in sidewalk unless abutting property owner created defect in manner independent of and apart from
ordinary and accustomed use for which sidewalks are designated.
That pedestrian who slipped and fell on icy sidewalk in front of hotel was guest of hotel was not determinative of issue of hotel's
duty to keep sidewalk in reasonably safe condition.
Hotel did not have duty to pedestrian who slipped and fell on icy sidewalk to keep sidewalk in reasonably safe condition, as there
was no special use of sidewalk by hotel that created hazard beyond normal atmospheric conditions. There was no evidence that use of
sidewalk by hotel or its customers caused dangerous condition, that hotel did anything itself to increase pedestrian's risk of harm, or
that condition that caused fall was consequence of unnatural accumulation of ice or snow caused by traffic pattern of other guests
between hotel and curb.
Hotel was not liable for pedestrian's slip and fall on icy sidewalk based on negligent performance of undertaking, as hotel did not
increase risk of harm, create hazard by special use of sidewalk, or create defect in manner independent of and apart from
ordinary and accustomed use for which sidewalks are designated, nor was pedestrian injured in her
reliance on hotel to clear sidewalk.
manner independent of and apart from ordinary and accustomed use for which sidewalks are designated, nor was pedestrian injured in
her reliance on hotel to clear sidewalk.
OPINION
On February 20, 1993, Rosemarie Wiseman (Wiseman), an employee with State Farm
Insurance Company, traveled to Reno by bus to be a guest at the Colonial Inn Hotel and
Casino (Colonial). That afternoon, when the bus arrived at the Colonial, the sidewalk in
front of the Colonial was clean. Shortly after her arrival, Wiseman and a companion walked
downtown and visited several casinos. Wiseman had no difficulty negotiating the sidewalks
in her tennis shoes even though there were intermittent accumulations of snow and slush.
The next morning, when the bus driver positioned his bus at the Colonial's front entrance,
he noticed patches of ice all over the sidewalk. The bus driver testified that he did not feel a
need to alter the condition of the sidewalk because he felt that the passengers could safely
negotiate the sidewalk if they walked with caution. Wiseman slipped and fell while
crossing the city-owned sidewalk as she left the casino to board the bus. Although the driver
had warned several passengers about the ice as they were boarding, he was unable to warn
Wiseman in time. The driver testified that, after he helped Wiseman to her feet, a woman
behind the registration desk stated that an employee had been instructed earlier to scrape and
salt the sidewalk.
It had been customary since 1978 for the Colonial cleaning staff to clean the city-owned
sidewalk each morning, starting with the most heavily traveled area in front of the building.
The cleaning staff would typically begin cleaning the front entrance around 8:30 a.m. to
accommodate customers utilizing bus transportation. According to the evidence at trial, one
of the housekeepers had planned to train a new employee on proper maintenance of the
sidewalk that day, but the work was not completed because Wiseman's bus had arrived early.
It was further learned that the housekeeper had actually taken the trainee to the area where
Wiseman fell, that the ice-melting equipment and caution cones were ready but not used
because the guests were already boarding, and that the housekeeper saw the ice and saw
Wiseman slip and fall.
As a result of injuries sustained from the fall, Wiseman was unable to return to work and
subsequently underwent two shoulder surgeries.
der surgeries. Despite her seventeen-year tenure with State Farm, the insurance company fired
her because she was out of work for over one year.
DISCUSSION
The Common Law No Duty Rule
[Headnotes 1, 2]
In Nevada, [a]n abutting property owner or occupant is under no duty to keep the sidewalk in front of his property in a reasonably safe
condition. Major v. Fraser, 78 Nev. 15, 17, 368 P.2d 369, 369 (1962). Under Fraser, liability will not lie unless the abutting property
owner created the defect in a manner independent of and apart from the ordinary and accustomed use for which sidewalks are designated.
Id. at 18, 368 P.2d at 371.
We reaffirmed our adoption of the common law no duty rule in Herndon v. Arco Petroleum Co., 91 Nev. 404, 536 P.2d 1023 (1975).
In Herndon, a pedestrian was injured when he slipped on an icy portion of a service station's private driveway which crossed a public
sidewalk. Id. at 405, 536 P.2d at 1023. There we held that an abutting property owner or occupier is under a duty to maintain that portion
of a public sidewalk put to his special use in a reasonably safe condition if his special use or that of his customers creates the hazard. Id. at
406, 536 P.2d at 1024. In so holding, we observed:
In the case at hand, the defendants made special use of the portion of the driveway over the public sidewalk where Neal
Herndon claims that he slipped and fell. Moreover, it apparently is his contention that the hazard he encountered was not the result
of a natural accumulation of ice and snow, but, rather the consequence of vehicular traffic by the defendants, employees of the
defendants, or their customers. These special circumstances, if established to the satisfaction of the finder of facts, could justify a
finding of negligence sufficient to warrant recovery.
Id. at 406, 536 P.2d at 1024.
A majority of jurisdictions have adopted the common law no duty rulethe only limitations being whether a special use has
increased the risk of harm or if an abutting property owner has a duty by statute or ordinance to keep a public sidewalk in a safe condition.
Our decision in Herndon re-affirms our adoption of the majority position.
[Headnote 3]
In Bittle v. Brunetti, 750 P.2d 49, 51-52 (Colo. 1988), the Colorado Supreme Court found no statutory or common law duty to clear
natural accumulations of snow and ice on public sidewalks abutting private property.
walks abutting private property. There, a passer-by fell and sustained injury on an abutting
sidewalk. The court concluded that, absent a special relationship between a pedestrian and a
landowner, the landowner was under no legal duty to take affirmative measures to prevent
harm to the pedestrian. Id. at 53. A similar result was reached in Devine v. Al's Lounge, Inc.,
448 N.W. 725 (Mich. Ct. App. 1989), where the injured party was a business invitee. Here,
Wiseman was a guest of Colonial and, under traditional tort analysis, would be considered an
invitee. In Nevada, however, this court has discarded variations in the duties owed to invitees,
licensees and trespassers. See Moody v. Manny's Auto Repair, 110 Nev. 320, 871 P.2d 935
(1994); Turpel v. Sayles, 101 Nev. 35, 692 P.2d 1290 (1985). Thus, that Wiseman was a
guest of Colonial is not determinative of the duty issue here.
In Whitlow v. Jones, 895 P.2d 324 (Or. Ct. App. 1995), the court held that the special
advantage a business establishment derived from the use of the city-owned sidewalk for
ingress and egress by its business invitees did not give rise to a special use for liability
purposes. Id. at 326. Rather, the court considered such use normal and customary. Id.
Courts are reluctant to find liability in these situations absent an unnatural accumulation or
condition. In Rose v. United States, 929 F. Supp. 305 (N.D. Ill. 1996), a pedestrian allegedly
slipped and fell on an accumulation of ice and snow on a city-owned sidewalk outside the
U.S. Post Office. Even though the accumulation was bumpy, lumpy and hard, the
pedestrian's failure to show that the snow and ice was an unnatural accumulation precluded
recovery. Id. at 308.
[Headnote 4]
We conclude that, unlike the situation in Herndon, there was no special use of the sidewalk by Colonial that created a hazard beyond
normal atmospheric conditions. In Herndon, the ingress and egress of customers caused an abnormal accumulation of ice and slush. Here,
there was no evidence that the use of the sidewalk by the Colonial or its customers caused the dangerous condition. Although we held in
Moody that determinations of premises liability must depend primarily upon whether the owner or occupier of land acted reasonably under
the circumstances, that duty was applied to an on-premises accident. 110 Nev. at 333, 871 P.2d at 943. Here, Wiseman concedes that she
had no evidence that Colonial did anything itself to increase her risk of harm. There was also no evidence that the condition that caused her
fall was the consequence of an unnatural accumulation of ice or snow caused by the traffic pattern of the other guests between the hotel and
the curb where the bus was located.
Wiseman argues that, if the Colonial did not have a duty to keep the abutting city-owned
sidewalk in a safe condition, it inadvertently assumed that duty by maintaining the sidewalk
over a seventeen-year period. In this connection, Wiseman maintains that recent Nevada
authority has begun to erode the no-duty rule. Her contentions are based upon our rulings in
Wright v. Schum, 105 Nev. 611, 781 P.2d 1142 (1989), and Harry v. Smith, 111 Nev. 528,
893 P.2d 372 (1995). Both cases involved off-premises injuries sustained when pet dogs
escaped through inadequately maintained fencing. In both cases we held that a landowner
may be held liable if, under all of the circumstances, it is shown that affirmative action to
assume a duty has been taken. Harry, 111 Nev. at 534, 893 P.2d at 375. The Colonial argues
that Wright and Harry are clearly distinguishable from the case at bar. We agree. Most
importantly, the two cases involve off-premises injuries caused by dangerous on-premises
conditions. Under Wright, a landlord does not have a duty to third persons if he simply has
knowledge and acquiesces to a dangerous condition. Wright, 105 Nev. at 615, 781 P.2d at
1145. Colonial argues that, although it intended to clear the sidewalk on the day in question,
it did not affirmatively take steps to remove the snow from the public sidewalk on the
morning that Wiseman was injured. Wiseman's injuries were the result of naturally occurring
atmospheric conditions. Thus, the cause of Wiseman's injuries differs substantially from
injuries that may flow from a landowner who is negligent with respect to conditions that are
allowed to exist on-premises rather than off-premises.
The Restatement (Second) of Torts 323 (1965)
The district court sua sponte relied on the Restatement (Second) of Torts section 323 in
granting Colonial's motion for a directed verdict.
Restatement (Second) of Torts section 323 reads as follows:
One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the other's person or
things, is subject to liability to the other for physical harm resulting from his failure to
exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
(Emphasis added.)
We are asked to decide whether, on these facts, the Restatement {Second) of Torts
section 323 is the appropriate test in determining the standard of care for an assumption
of duty.
ment (Second) of Torts section 323 is the appropriate test in determining the standard of care
for an assumption of duty. Wiseman argues that the standard as set forth under the
Restatement is too low and, in its stead, proffers that the proper test should be more general,
to wit: whether the parties acted reasonably under all of the circumstances.
1
Contrary to Wiseman's contentions that the Restatement (Second) of Torts section 323
stands as an arbitrary bar to her recovery, we conclude that the district court's reliance on
the Restatement is completely consistent with our prior holding in Herndon. Absent a
condition created by the landowner's special use, absent other action taken increasing the risk
of harm to third parties, and absent evidence of reliance by Ms. Wiseman, the general
no-duty rule must be applied.
Wiseman relies on two New Jersey decisions where the common law no liability rule
was discarded. In Stewart v. 104 Wallace Street, Inc., 432 A.2d 881, 883 (N.J. 1981), the
court observed that a plaintiff has a cause of action against a commercial property owner for
injuries sustained on a deteriorated sidewalk abutting that commercial property when that
owner negligently fails to maintain the sidewalk in reasonably good condition. Likewise, in
Mirza v. Filmore Corporation, 456 A.2d 521, 521 (N.J. 1983), the court held that the test of
liability for conditions on abutting public property is whether a reasonably prudent person,
who knows or should have known of the condition, would have within a reasonable period of
time thereafter caused the public sidewalk to be in a reasonably safe condition.
In rejecting the New Jersey approach, we note that only two states have adopted this
standard in lieu of the common law no duty rule.
2
We hold that the Restatement (Second)
section 323 properly articulates the applicable doctrineit lessens the harshness of the
common law rule by imposing liability where the property owner's negligence increases the
risk of harm, or if the injuries sustained were the product of a reliance on the owner's
assumption of duty.
While section 323 of the Restatement does not specifically address the special use
doctrine as that concept is discussed in Herndon, id. at 405, 536 P.2d at 1025, that doctrine
does retain its vitality and can be applied in harmony with our adoption of the
Restatement position.
__________

1
The dissent agrees with this proposition, citing Moody. Again, however, Moody itself stresses that this duty
applies to injuries occurring on-premises. It does not reach the policy questions posed under the no-duty rule.

2
Citing Mirza, the Supreme Court of Colorado noted in Bittle, that only New Jersey and possibly
Pennsylvania have discarded the no duty rule. Bittle, 750 P.2d at 52.
Herndon, id. at 405, 536 P.2d at 1025, that doctrine does retain its vitality and can be applied
in harmony with our adoption of the Restatement position.
[Headnote 5]
Wiseman has provided no evidence that implicates liability under the Restatement (Second) of Torts section 323. The Colonial has
neither increased the risk of harm, nor was Wiseman injured in her reliance on the Colonial to clear the sidewalk. Further, under Herndon,
the Colonial did not create a hazard by a special use of the sidewalk. Nor did the Colonial create a defect in a manner independent of and
apart from the ordinary and accustomed use for which sidewalks are designated. Fraser, 78 Nev. at 18, 368 P.2d at 371.
CONCLUSION
For the foregoing reasons, we conclude that a directed verdict was warranted and affirm the judgment entered by the district court.
The majority has missed the opportunity to adopt a rule that would conform with a business consumer's expectations and would
examine the reasonableness of the actions of a business and its injured patron, whether the accident occurs on the business property or the
immediately adjacent sidewalk.
For decades, Nevada has held to the rule that an abutting owner has no duty to keep the sidewalk immediately in front of his or her
property in a reasonably safe condition. Major v. Fraser, 78 Nev. 15, 368 P.2d 369 (1962). While still the majority rule in the United States,
I would prefer to have a less definitive rule that permits the consideration of the reasonableness of the landowner's and injured patron's
actions or omissions whether the injury occurs on or immediately adjacent to the business property. In ascertaining landlord liability, we
have discarded the use of the status that a person occupied when on a business's property in favor of a test which looks to the
reasonableness of the actions of the landlord and the injured party. Moody v. Manny's Auto Repair, 110 Nev. 320, 871 P.2d 935 (1994). I
see no reason why this same approach cannot be taken with injuries occurring on property immediately adjacent to a business when used by
patrons of that business. Such an approach has been taken by two state court jurisdictions, New Jersey and Pennsylvania. Stewart v. 104
Wallace Street, Inc., 432 A.2d 881 (N.J. 1981); Starr v. Philadelphia, 159 A.2d 10 (Pa. Super. Ct. 1960).
Since the majority of this court has no appetite to change the landlord's no duty rule
espoused in Fraser, I would recommend that we keep it as a general rule, but recognize
several exceptions. First, I would impose that duty on an owner whenever it is required by the
municipal law where the land is located. Second, I would require a landowner or occupier
who is conducting a business on the property to keep in reasonably safe condition the
property immediately adjacent that is used for egress and ingress by the business patrons.
This would be the same standard used in Moody for the property owned by the business, but
extended to immediately abutting property used by the patrons. It would not be as expansive
as the New Jersey rule because it would include only injuries on property immediately
adjacent and used for business access by the patrons. I would classify a business and its
customers as a sufficiently special relationship or situation to justify an exception to the no
duty general rule.
I do not believe that adopting the New Jersey approach or recognizing the above
exceptions to the general rule would impose an undue burden upon a business; such action
would meet the reasonable expectations of the business patron. Most business owners are
required to keep the sidewalks adjacent to their building in a safe condition by municipal
ordinance. Good business practice and self-interest would also motivate a business to keep
the area of egress and ingress safe and accessible to the public. Imposing civil liability on a
business for failing to keep an area of public access immediately adjacent to the business
reasonably safe would only be recognizing the owner's legal obligation and what a good
business should do in its own self-interest. In the instant case, the Colonial undertook the task
of clearing the snow from the sidewalk when necessary, but was tardy in doing it on the day
of the accident. It certainly realized the benefits of keeping the entrance cleared for patrons.
The consumer entering a business often does not know where municipal ownership ends
and the business property begins. Many casinos incorporate the municipal sidewalk into their
own entrance design, and the entrance is an important tool to attract patrons. Usually
businesses operating in a shopping center have a pad upon which the business structure is
built. While the entrance and the parking lot may appear to be the property of the business, it
is usually that of the shopping center owner or the tenants' association. Most consumers
would be at a loss to identify exactly when they have entered the casino or food market's
property. But one thing they do expect is that the business will keep reasonably safe those
areas of access, whether owned by a municipality, the shopping center or the business.
I would adopt the New Jersey rule or the above stated exceptions to our "no duty" rule,
and remand this case to the district court to determine if Colonial had actual or
constructive notice of an unsafe condition on the sidewalk immediately adjacent to its
property that was used by patrons and failed to take appropriate action, and whether that
unsafe condition proximately caused Wiseman's injuries.
tions to our no duty rule, and remand this case to the district court to determine if Colonial
had actual or constructive notice of an unsafe condition on the sidewalk immediately adjacent
to its property that was used by patrons and failed to take appropriate action, and whether that
unsafe condition proximately caused Wiseman's injuries.
A directed verdict was not warranted in this case.
I agree with Justice Rose that Wright v. Schum, 105 Nev. 611, 781 P.2d 1142 (1989), of
itself, is not authority to support liability in this case because Schum involved off-premises
injuries caused by dangerous on-premises conditions; however, in Schum, we ruled that a
landlord could be held liable for negligent conduct that was not related to landlord status. The
question in Schum was not whether Schum is liable to Jason as a landlord, but rather
whether he is liable as other persons' for the exercise of due care in not subjecting Jason to
an unreasonable risk of harm. Id. at 614, 781 P.2d at 1143 (emphasis in original) (quoting
Sargent v. Ross, 308 A.2d 528, 534 (N.H. 1973)). The rule adopted in Schum was that if there
was evidence that the landlord, independent of his being a landlord, failed to exercise due
care in subjecting Jason and others to an unreasonable risk of harm, then tort liability could
attach. Schum, 105 Nev. at 614, 781 P.2d at 1143.
In Schum, the landlord's duty of due care arose from the injured party's reliance on the
landlord's promise to make the condition safe rather than upon the landlord's status as
property owner. Similarly, the jury in the instant case is not limited to consideration of the
Colonial's status as property owner in determining whether it owed a duty of care to the
appellant in this case. Although there is no evidence here of the kind of reliance that was
present in Schum, a reasonable jury could find that the Colonial owed a duty of due care to its
bus-boarding patrons under the circumstances of this case. The kind of injury suffered by Ms.
Wiseman was foreseeable under the circumstances and could have been avoided had the
Colonial not departed from its ordinary practice of maintaining safe passage to and from its
busses.
In the case at bar, the Colonial had apparently recognized for some time the necessity for
maintaining safe loading and unloading of its buses; and, in order to provide for the safety of
its invitees, it had adopted procedures which involved off-premises snow and ice removal. On
the day of Ms. Wiseman's injury, the Colonial failed to abide by its own, self-imposed
standards for guest safety. To my way of thinking, a jury could properly have found that by
failing to abide by its adopted standards of safety, the Colonial failed to exercise due care
under the circumstances and subjected its bus passengers to an unreasonable risk of
harm.
found that by failing to abide by its adopted standards of safety, the Colonial failed to
exercise due care under the circumstances and subjected its bus passengers to an
unreasonable risk of harm. For this reason, I say that it was error to direct a verdict in the
Colonial's favor.
____________
113 Nev. 1275, 1275 (1997) Jaeger v. State
JOHN JAEGER, Appellant, v. THE
No. 26944
November 20, 1997 948 P.2d 1185
Appeal from an order of the district court revoking probation. First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
State sought revocation of probationer's suspended sentence for grand larceny conviction.
The district court revoked probation. Probationer appealed. The supreme court, Young, J.,
held that: (1) probationer had no due process right to disclosure of state's report regarding
allegedly improper search of probationer's home in connection with previous probation
violation; (2) probationer was not deprived of right to confront adverse witnesses as to
alleged fabrication of drug test result; (3) hearsay rule did not preclude admission of
probation officer's testimony as to normal procedures followed when testing urine samples,
though probation officer had not actually performed probationer's drug test; and (4)
probationer's due process rights were not violated by trial judge's questioning of probationer
regarding status of his community service obligation, though probationer was not provided
with advance notice that community service obligation was going to be an issue at either
preliminary or final revocation hearing.
Affirmed.
Steven P. McGuire, State Public Defender and Timothy P. O'Toole, Deputy Public
Defender, Carson City, for Appellant.
and Roy L. Stralla, Deputy District Attorney, Carson City, for Respondent.
Probationer facing probation revocation had no due process right to disclosure of state's report regarding allegedly
improper search of probationer's home in connection with previous probation violation, though probationer
claimed report was needed to prove that probation department fabricated drug test result as retaliation for
probationer's complaint regarding search, as report was neither material nor relevant.
disclosure of state's report regarding allegedly improper search of probationer's home in connection with previous probation violation,
though probationer claimed report was needed to prove that probation department fabricated drug test result as retaliation for
probationer's complaint regarding search, as report was neither material nor relevant. Defendant was not aware of any exculpatory
evidence that had been withheld, and report had no bearing on test result. U.S. Const. amend. 14; NRS 48.015.
Due process does not require disclosure of state files in connection with probation revocation hearing on mere assertion that those
files might be helpful to probationer's case. U.S. Const. amend. 14.
Probationer has due process right at revocation hearing to confront and question witnesses giving adverse information. U.S. Const.
amend. 14.
Probationer accused of drug use was not deprived of due process right to confront adverse witnesses as to alleged fabrication of
drug test result, though trial court refused to compel prosecution to call laboratory testing officers who actually performed test, as
probationer was able to confront and cross-examine probation officer who testified as to normal procedures followed by probation
department when testing urine samples. U.S. Const. amend. 14.
5. Criminal Law.
Hearsay rule did not preclude admission at probation revocation hearing of probation officer's testimony as to normal procedures
followed when testing urine samples, though probation officer had not actually performed probationer's drug test and probationer
claimed test result was fabricated, as trial judge found testimony was reliable and made under assurances of accuracy, and significance
of finding of drug use was substantially reduced because there were multiple grounds for revoking probation. NRS 51.075(1).
Probationer's due process rights were not violated by trial judge's questioning of probationer at probation revocation hearing
regarding status of his community service obligation, though probationer was not provided with advance notice that community service
obligation was going to be an issue at either preliminary or final revocation hearing, as completing the obligation was part of
probationer's probation requirements. U.S. Const. amend. 14; NRS 176.217(1)(c).
Due process protections available at preliminary probation revocation hearing apply at final revocation hearing with equal or
greater force. U.S. Const. amend. 14.
OPINION
Appellant John Jaeger was convicted of grand larceny, given a seven year suspended
prison sentence, and placed on probation for a period not to exceed five years.
for a period not to exceed five years. A probation revocation hearing was conducted after
Jaeger allegedly tested positive for methamphetamine usage, and Jaeger's probation was
revoked. Jaeger argues that the district court erred by quashing his subpoena prior to the
hearing, by not requiring the prosecution to call as witnesses the people who conducted the
laboratory analysis of his urine samples, and by considering his community service
obligations when deciding to revoke his probation.
We conclude that Jaeger's arguments lack merit, and we therefore affirm the district court's
order.
FACTS
On March 1, 1990, Jaeger took his paycheck to the Carson Station Casino after he got off
work. While at the Carson Station Casino, he got drunk and gambled away his entire
paycheck. Jaeger was ashamed to go home to his wife and children with no money, so he
stole the purse of an eighty-five-year-old woman, knocking her down in the process. Jaeger
was arrested that night and shortly thereafter admitted to committing the crime.
On April 17, 1990, Jaeger pleaded guilty to one count of grand larceny. Because of
Jaeger's lack of a prior criminal record, supportive family environment, and desire to remain
sober, the Department of Parole and Probation recommended probation. On May 22, 1990,
the trial judge sentenced Jaeger to a term of seven years in prison, suspended that sentence,
and placed Jaeger on probation for a period not to exceed five years. As a condition of
probation, Jaeger agreed to submit to random, warrantless searches by Parole and Probation
officers for the presence of alcohol, and this condition included chemical testing.
Additionally, Jaeger agreed to serve 300 hours of community service, submit to substance
abuse evaluation, and if necessary, submit to substance abuse counseling.
On November 28, 1990, the Department of Parole and Probation filed an incident report
concerning Jaeger. The report stated that in late November 1990 Jaeger had twice been seen
by a sheriff's detective consuming alcohol in a bar. The report also stated that an officer of the
Department of Parole and Probation had seen Jaeger drinking alcohol once in August 1990
and once in October 1990. No action was taken against Jaeger.
On October 2, 1991, the Department of Parole and Probation filed a probation violation
report. The report indicated that Jaeger had been arrested for a DUI on September 30, 1991,
after his breath test showed a .18 percent blood alcohol content. The report also indicated that
since being placed on probation, Jaeger had repeatedly failed to follow the conditions of his
probation in that he had completed only forty hours of community service in seventeen
months and had not attended counseling.
seventeen months and had not attended counseling. On November 14, 1991, a probation
revocation hearing was held. After admitting to all the probation violations, Jaeger was
placed on house arrest for ninety days, and his probation was reinstated.
On February 16, 1994, the Department of Parole and Probation filed a second probation
violation report. The report stated the following allegations: (1) on January 17, 1994, Jaeger
was arrested on one count of being an ex-felon in possession of a firearm, but that case was
dismissed; (2) on January 27, 1994, Jaeger had taken a urine test and tested positive for
methamphetamine; (3) Jaeger had been in the company of a person with a known criminal
record; and (4) Jaeger had continually failed to perform his community service work. Based
on this report, on February 17, 1994, a bench warrant was issued for Jaeger's arrest. On
February 25, 1994, Jaeger was arrested. A probation revocation hearing was set for March 22,
1994.
Sometime between Jaeger's arrest and the probation revocation hearing, Parole and
Probation officers and Tri-Net officers conducted a search of Jaeger's home. Julie Jaeger,
Jaeger's wife, testified as follows regarding the search. She was sleeping on the couch when
the officers came through the door. A female Parole and Probation officer performed a full
strip/body cavity search on her. The officers took the three children, ages five, four, and one,
and attempted to search them, but the children were taken by a neighbor before the police
could perform the search. The search yielded a small amount of marijuana. Mrs. Jaeger was
arrested for possession of marijuana; however the charges were later dismissed. The Jaegers
filed a complaint with the Department of Motor Vehicles, Internal Affairs Unit concerning
the search, and an investigation ensued. Jaeger was unsuccessful in his various attempts to
obtain the results of that investigation.
On March 22, 1994, a hearing was held regarding the second probation violation report.
Jaeger admitted to the charges in the report. He also stated that he had completed 136 hours
of his community service obligation. At the conclusion of the hearing, the judge reinstated
Jaeger's probation, added extensive supervision requirements, and ordered Jaeger to work
toward completing his community service requirements whenever he was not otherwise
employed.
On January 5, 1995, the Department of Parole and Probation filed a third probation
violation report. The report stated that on December 4, 1994, Jaeger had been arrested for
child endangerment after leaving his five-year-old son unattended in a car for approximately
one and one-half to two hours with a razor knife on the seat and a dagger stuck into the
dashboard. Jaeger also had failed to pay traffic fines for driving on a suspended license and
had refused to comply with a court ordered substance abuse counseling program.
and had refused to comply with a court ordered substance abuse counseling program.
Additionally, the report stated that Jaeger tested positive for methamphetamine on December
22 and 29, 1994. This time Jaeger denied the allegations, and a third revocation hearing was
set.
Prior to the revocation hearing, Jaeger subpoenaed Investigator Dan Luke (Luke) of the
Department of Motor Vehicles and Public Safety, Internal Affairs Unit, requesting production
of the case file concerning the search of the Jaegers' house, including the final investigation
report. According to Jaeger, the file was necessary to prove his defense theory that the
Department of Parole and Probation had fabricated the December drug test results in
retaliation for Jaeger's attempts to expose the criticism of the Parole and Probation employees
presumably contained in the investigation report. The prosecutor filed a motion to quash the
subpoena based on the fact that producing such information would be unreasonably
burdensome and also that the information was confidential. The judge granted the motion to
quash, stating that the investigation report was not relevant to the issue of whether Jaeger
tested positive for drug use.
At the revocation hearing commenced on March 10, 1995, Laura Alvarez, Jaeger's
probation officer, provided the bulk of the testimony against Jaeger. She testified that Jaeger
had tested positive for methamphetamine use, and Jaeger objected to this testimony on the
grounds that Alvarez had no personal knowledge of the actual testing procedures employed
by the laboratory technicians, could testify only as to the drug testing procedures
recommended by the Department of Parole and Probation, and was merely supplying a
hearsay account of the test results. Jaeger's counsel argued that permitting Alvarez to testify
deprived Jaeger of the right to confront those who had conducted the drug tests. Jaeger's
counsel further argued that she needed to question those who had conducted the drug tests in
order to prove that the results of those tests had been fabricated. The court overruled the
objections, stating that the right to confront witnesses applies in the guilt phase but does not
apply to probation proceedings and that Alvarez's testimony constituted reliable hearsay.
Alvarez stated that the December 22, 1994 urine sample was tested by the Department of
Parole and Probation on December 28, 1994, and that the results showed the sample tested
positive for methamphetamine. She then stated that the sample was sent to an independent
laboratory for confirmation, and again, the sample tested positive for methamphetamine. On
December 29, 1994, the Department of Parole and Probation collected and tested another
urine sample, and again, the sample tested positive for methamphetamine.
for methamphetamine. Alvarez testified as to how the drug tests were normally conducted,
but she did not personally conduct the drug tests at issue, was not present when the tests were
conducted, and therefore could not state that the laboratory technicians followed the normal,
recommended procedures. Prompted by questions from the district judge, Alvarez stated that
Jaeger still needed to complete 100 hours of his community service obligation. Finally, she
testified that Jaeger had failed to complete substance abuse counseling and exhibited a
general lack of cooperation with regard to his probation requirements.
The district judge concluded that Jaeger violated the terms and conditions of his probation.
Specifically, the district judge found that Jaeger had test[ed] dirty for controlled substances,
failed to cooperate with his Parole and Probation officer, and failed to complete his
community service obligation. After making these findings, the court revoked Jaeger's
probation just two months before the probationary period was scheduled to end and sentenced
Jaeger to serve his entire seven year prison sentence.
DISCUSSION
The subpoena
[Headnote 1]
Jaeger argues that the district court erred when it quashed his subpoena requesting the investigation report because he had a right to
present a defense to the prosecution's claims, the requested documents were relevant and not privileged, and compliance with the subpoena
would not have been overly burdensome. We disagree.
This court has held that [p]arole and probation revocations are not criminal prosecutions; the full panoply of constitutional protections
afforded a criminal defendant does not apply. Anaya v. State, 96 Nev. 119, 122, 606 P.2d 156, 157 (1980). While a criminal defendant
has the right to subpoena documents in support of his defense, we conclude that a probationer does not enjoy the same rights.
Even in the context of a full criminal trial, a criminal defendant is only entitled to subpoena documents that are shown to be material to
his or her defense. Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1986). In Ritchie, the defendant requested disclosure of files compiled by a
state child protection agency. Id. at 43. The files related to charges of child abuse against the defendant, but were protected from disclosure
by statute. Id. The defendant subpoenaed the documents, arguing that he was entitled to the information because the file might contain
names of favorable witnesses, as well as other unspecified exculpatory evidence. Id. at 45. The lower court denied the disclosure. Id. The
defendant appealed, arguing the denial violated his Sixth Amendment right to confrontation through the Fifth
Amendment right to due process.
appealed, arguing the denial violated his Sixth Amendment right to confrontation through the
Fifth Amendment right to due process. Id. at 46. The Supreme Court held that the ability to
question adverse witnesses . . . does not include the power to require the pretrial disclosure of
any and all information that might be useful in contradicting unfavorable testimony. Id. at
53. The Court also held that a defendant's right to discover exculpatory evidence does not
include the unsupervised authority to search through the [state's] files. Id. at 59. Further,
[u]nless defense counsel becomes aware that . . . exculpatory evidence was withheld and
brings it to the court's attention, the prosecutor's decision on disclosure is final. Defense
counsel has no constitutional right to conduct his own search of the State's files to argue
relevance. Id. (Emphasis added.)
[Headnote 2]
Here, Jaeger has made no showing of materiality. Like the defendant in Ritchie, he asserts only that the information contained in the
investigation report might be helpful to his conspiracy theory defense. The dissent reasons that the mere possibility that these documents
might have proven that theory is sufficient to require disclosure. We disagree. The holding in Ritchie is clear: Due process does not
require the disclosure of state files on the mere assertion that those files might be helpful to a defendant's case. See Ritchie at 53. Therefore,
we conclude the district court properly quashed Jaeger's subpoena.
Furthermore, we conclude that the investigation report was not relevant to the issue of whether Jaeger tested positive for drug use.
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence. NRS 48.015. The contents of the investigation report have no bearing
on whether Jaeger tested positive for drug use, and therefore, the district court properly quashed the subpoena on the grounds that the
materials it requested were irrelevant.
Cross-examination of witnesses for urinalysis evidence
Jaeger also argues that the district court erred by refusing to require the prosecution to present any firsthand evidence of how the drug
tests were conducted. Jaeger argues that this is important because the second prong of his defense was to attack the accuracy of the drug
tests. However, the State argues that the testimony of the witness presented against Jaeger constituted reliable, admissible hearsay and that
Jaeger had the opportunity to confront and cross-examine this witness.
The main witness against Jaeger was Alvarez, who testified as to the normal procedures
followed by the Department of Parole and Probation when testing a urine sample. Alvarez,
however, did not personally perform the tests, and therefore Jaeger objected to the admission
of Alvarez's testimony, arguing that it was hearsay and also that it denied him the right to
confront witnesses against him, namely the people who actually performed the tests.
[Headnote 3]
Initially, we note that the district court erred in stating that a probationer did not have the right to confront witnesses against him at a
revocation hearing. This court has explicitly held that a probationer has a due process right to confront and question witnesses giving
adverse information. Anaya, 96 Nev. at 123, 606 P.2d at 158.
[Headnotes 4, 5]
However, we conclude that Jaeger was not deprived of his right to confront adverse witnesses because he was able to confront and
cross-examine Alvarez. Jaeger argues that Alvarez's testimony was hearsay and therefore inadmissible; however, [a] statement is not
excluded by the hearsay rule if its nature and the special circumstances under which it was made offer assurances of accuracy not likely to
be enhanced by calling the declarant as a witness, even though he is available. NRS 51.075(1). We conclude that Alvarez's testimony was
properly admitted because it was reliable and made under assurances of accuracy not likely to be enhanced by calling the people who
actually performed the drug tests. This reliability eliminated the need to call as witnesses the laboratory technicians who analyzed Jaeger's
urine samples.
The dissent asserts that U.S. v. Martin, 984 F.2d 308 (9th Cir. 1993) is directly on point. However, upon closer examination, we find
an important distinction. In Martin, the district court revoked the defendant's probation for several violations, but the defendant received a
sentence enhancement for testing positive for a controlled substance. Id. at 309. Thus, a separate liberty interest was attached to this
particular probation violation.
Here, as in Martin, Jaeger's parole was revoked for several violations, including (1) child endangerment, a gross misdemeanor; (2)
failing to pay a traffic fine for driving on a suspended license; (3) refusing to comply with a court order to attend substance abuse
counseling; and (4) use of methamphetamine. However, unlike the facts in Martin, the drug use did not carry with it a separate liberty
interest from the other violations. Applying the United States Supreme Court holding in Morrissey v. Brewer, 408 U.S. 471 (1971), the
Ninth Circuit stated, [t]he more significant particular evidence is to a finding, the more important it is that the
releasee be given an opportunity to demonstrate that the proffered evidence does not reflect 'verified fact."'
more significant particular evidence is to a finding, the more important it is that the releasee
be given an opportunity to demonstrate that the proffered evidence does not reflect verified
fact.' Id. at 311. Thus, unlike Martin, the significance of the finding of drug use to Jaeger's
ultimate revocation is substantially reduced because the ultimate resultJaeger's
revocationwould have been the same for any one of the violations. Therefore, we conclude
the district court did not err in refusing to compel the prosecution to call the laboratory testing
officers as witnesses.
Consideration of community service
[Headnote 6]
Jaeger argues that the district judge erred by considering at the revocation hearing the amount of community service that he had
performed because Jaeger had not been given notice that his community service obligation would be an issue at the hearing.
The Notice of Preliminary Hearing form received by Jaeger on February 1, 1995, stated that he would have to appear at a revocation
hearing and answer to charges of use of controlled substances, law and conduct violations (alleged child endangerment), and substance
abuse evaluation violations. Jaeger was not notified that his failure to complete his community service might serve as the basis for the
revocation of his probation. However, at the revocation hearing, the trial judge requested information regarding the amount of community
service that Jaeger had performed. Alvarez stated that Jaeger had performed 200 hours of his community service and had 100 hours
remaining.
[Headnote 7]
The United States Supreme Court has stated that in regard to a probation revocation hearing, due process requires that a probationer be
provided with written notice of the claimed violations of probation. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). In compliance with this
rule, NRS 176.217(1)(c) provides that prior to the preliminary hearing, probationers facing revocation must receive advanced notice of the
alleged probation violations. This court has also made it clear that due process protections available at the preliminary hearing apply at the
final revocation hearing with equal or greater force. Anaya, 96 Nev. at 122-23, 606 P.2d at 158.
While Jaeger was not provided with advance notice that his community service obligation was going to be an issue at either the
preliminary hearing or the final revocation hearing, we conclude that the district judge did not err in considering such information.
Completing the community service obligations was part of Jaeger's probation, and the district judge had the right to question Jaeger
regarding the status of his probation requirements.
question Jaeger regarding the status of his probation requirements. Therefore, we find no
error in the district judge's inquiries.
CONCLUSION
We conclude that the district court properly quashed Jaeger's subpoena, properly refused to
require the prosecution to call the laboratory technicians who actually performed the drug
tests on Jaeger as witnesses, and properly considered the status of Jaeger's community service
obligation. Therefore, we affirm the district court's revocation of Jaeger's probation.
Maupin, J., concurs.
I concur separately to address some of the statements made in the majority and dissenting
opinions.
The United States Supreme Court has set forth the minimum due process requirements for
probation revocation hearings in Morrissey v. Brewer, 408 U.S. 471, 489 (1972). These
include the opportunity to be heard in person and to present witnesses and documentary
evidence and the right to confront and cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing confrontation). The right to present
evidence is not equivalent to the right to subpoena evidence and even the right to present
evidence may be limited by the evidentiary rulings of the judge.
In this case, Jaeger sought to present what was essentially a conspiracy theory, alleging
that his complaints against the parole and probation officers led to retaliation against Jaeger
by way of fabrication of evidence. He had no evidence to support this theory, but seems to
have believed that the report of the Internal Affairs investigation of his complaint would
provide some evidence. Regardless of the conclusion reached in the report, it is highly
unlikely that the report would have had any relevance to Jaeger's conspiracy theory. Jaeger
only alleged that the officers were biased against him. The mere fact that he filed the
complaint could lead a finder of fact to believe that the officers were biased against Jaeger.
The contents of the report were thus unnecessary to support a showing of this alleged bias.
Therefore, I agree that the district court was correct in ruling that the report was irrelevant in
the context of the revocation hearing.
However, I do not agree with the blanket statement made in the majority opinion that a
probationer does not enjoy the right to subpoena documents relevant to his defense. In an
appropriate case, I believe that the probationer does have the right under the guarantee of
the due process clause of the Fourteenth Amendment to subpoena documents.
case, I believe that the probationer does have the right under the guarantee of the due process
clause of the Fourteenth Amendment to subpoena documents. However, the guarantees of due
process do not include a right to conduct a fishing expedition. Here, the appropriate balance
was realized.
Jaeger also contends that he had a right to confront the technicians who personally
conducted the tests of his urine sample. The United States Supreme Court has consistently
emphasized the distinction between the formal procedures and rules required in a criminal
trial and the flexible, informal nature of the revocation hearing. Gagnon v. Scarpelli, 411 U.S.
778, 789 (1973); Morrissey, 408 U.S. at 489. In the informal revocation hearing, strict
adherence to the rules of evidence is not required, as long as basic due process standards are
met. Morrissey, 408 U.S. at 489. In this case, the judge determined that the hearsay report of
the test results was reliable. The judge had the discretion to make that determination. Also,
Jaeger's contention was not that the testers' findings were incorrect, but rather that the officers
fabricated the evidence and that the witness who testified was biased. Under this
circumstance, Jaeger could test the bias of the witness adequately by cross-examination.
Jaeger contends that the district court erred by considering violations of which he was
not given noticenamely, his failure to complete community service. This contention fails to
recognize the dual nature of the district court's determination. See Morrissey, 408 U.S. at
479-480. First, the district court determines whether the State has proven the violations
alleged. In this case, the district court found that the State had proven that the defendant had
used a controlled substance. However, the inquiry does not end there. Next, the district court
must exercise discretion to determine whether or not to revoke the defendant's probation.
Revocation is not a necessary consequence when a violation is found. The district court
should consider the seriousness of the offense, the nature of the original charge, the record of
the defendant while on probation, and any other relevant factors. See id. Clearly, Jaeger's
failure to fulfill the requirements of probation is relevant to the district court's determination.
For the foregoing reasons, I concur with the decision to uphold the district court's
judgment.
I dissent and will address the majority's arguments in the order presented.
The district court erred in quashing appellant's subpoena of government records regarding
an investigation into a search of appellant's home
I believe that the district court erred in quashing Jaeger's subpoena because Jaeger had a
right to present documents in support of his defense, the document was relevant and not
privileged, and compliance with the subpoena would not have been overly burdensome.
Our court has stated that:
Parole and probation revocations are not criminal prosecutions; the full panoply of
constitutional protections afforded a criminal defendant does not apply. See Gagnon v.
Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972)). Revocation
proceedings, however, may very well result in a loss of liberty, thereby triggering the
flexible but fundamental protections of the due process clause of the Fourteenth
Amendment.
Anaya v. State, 96 Nev. 119, 122, 606 P.2d 156, 157 (1980).
The United States Supreme Court has stated that few rights are more fundamental than that
of the accused to present witnesses and evidence in his own defense. Taylor v. Illinois, 484
U.S. 400, 409-11 (1988). The United States Supreme Court has also stated that prior to a
revocation of a defendant's parole or probation, minimum due process requirements must be
met which include the opportunity to be heard in person and to present witnesses and
documentary evidence. Morrissey v. Brewer, 408 U.S. 471, 489 (1972); see also Anaya, 96
Nev. at 122, 606 P.2d at 158. The majority's conclusion that Jaeger, as a probationer, did not
have the right to subpoena documents in support of his defense violates Jaeger's
constitutional right and is therefore misguided.
While a probationer has the right to present witnesses and documentary evidence, that
right is not unfettered, and the accused does not have a right to present evidence that is
incompetent, privileged, or otherwise inadmissible under standard rules of evidence.
Taylor, 484 U.S. at 410. Therefore, Jaeger should have been permitted to admit the
investigation report into evidence so long as it complied with the Taylor requirements.
Initially, the district court stated that the investigation report was irrelevant as to a
determination of whether Jaeger tested positive for methamphetamine in December 1994 and
it quashed the subpoena. However, pursuant to NRS 48.015, relevant evidence is evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without the evidence.
Jaeger's defense theory was that the Department of Parole and Probation falsified his
drug test results in retaliation for Jaeger's filing of a complaint with Internal Affairs
regarding the Department of Parole and Probation's search of his house.
Jaeger's defense theory was that the Department of Parole and Probation falsified his drug test
results in retaliation for Jaeger's filing of a complaint with Internal Affairs regarding the
Department of Parole and Probation's search of his house. The fact that Chief Justice
Shearing refers to this as a conspiracy theory in her concurrence does not minimize the fact
that it is Jaeger's defense theory or that the contents of the file might have proven that theory.
The contents of the investigation report are certainly relevant to Jaeger's defense because they
could show that Department of Parole and Probation employees were biased against Jaeger
and had a motive to fabricate the test results. See Stinnett v. State, 106 Nev. 192, 195, 789
P.2d 579, 581 (1990) (concluding that a criminal defendant's past complaints to Internal
Affairs regarding the arresting officer were relevant to show that the arresting officer was
biased against the defendant). Therefore, the majority's conclusion that the report was
irrelevant is incorrect.
Because I conclude that the report was relevant, I also must address the State's argument
that the documents were privileged pursuant to several statutes. I conclude that all of the
State's arguments are unpersuasive. The State first argued that the investigation report was
privileged pursuant to NRS 49.025(2) which states:
A public officer or agency to whom a return or report is required by law to be made
has a privilege to refuse to disclose the return or report if the law requiring it to be
made so provides.
The prosecution stated that Luke, as a member of the Internal Affairs division, was
obligated by law to conduct investigations and make reports of those investigations.
However, the prosecution provided no authority for this conclusion, and after reviewing the
statutes and the Nevada Administrative Code provisions regarding the Department of Motor
Vehicles and Public Safety, I found no support for the proposition that Luke was obligated by
law to make the investigation report. Furthermore, even if authority existed to support the
proposition that Luke was obligated by law to make the report, the State has failed to identify,
and I have failed to find, any law which permits Luke or the State to refuse to disclose the
report.
The State also argues that the investigation report was not subject to discovery pursuant to
NRS 174.245(1). This statute authorizes the defendant to inspect books, papers, documents,
and other objects in the possession of the prosecution, but does not authorize the discovery
or inspection of reports, memoranda or other internal state documents made by state agents in
connection with the investigation or prosecution of the case. NRS 174.245(1).
NRS 174.245(1) does not protect the investigation report from discovery. In essence, NRS
174.245(1) codifies the attorney work-product doctrine by shielding from discovery all
documents created in connection with the investigation or prosecution of the case. The
Internal Affairs investigation was not made in connection with Jaeger's probation revocation
hearing; it was made in connection with Jaeger's complaint against the employees of the
Department of Parole and Probation. While the search at issue did result in the discovery of
drugs, that discovery of drugs was not at issue in the revocation hearing. Therefore, it is clear
that the investigation report was not made in connection with the revocation hearing, and
NRS 174.245(1) does not protect the report from discovery.
The State further argues that the investigation report is privileged pursuant to NRS
289.010, generally (the Peace Officer's Bill of Rights), and NRS 289.080, specifically. NRS
289.080(1) provides that a peace officer has a right to a lawyer or other representative during
any type of internal investigatory hearing. NRS 289.080(3), the section relied upon by the
prosecution, provides that any information the lawyer or representative obtains from the
police officer concerning the investigation is confidential and may only be disclosed under
limited circumstances. NRS 289.080(3) does not shield the investigation report from
discovery because the statute is concerned with keeping confidential statements made by a
peace officer to his counsel during an investigatory hearing. Jaeger's subpoena did not seek
information obtained by a peace officer's counsel but instead sought the final report of the
Internal Affairs investigation.
Jaeger issued the subpoena commanding Dan Luke to produce the Internal Affairs report
pursuant to NRS 174.335(1).
1
The district court may quash or modify the subpoena if
compliance would be unreasonable or oppressive. NRS 174.335(2). In its motion to quash,
the prosecution argued that compliance with the subpoena would be unreasonable and
oppressive but made no efforts to explain the reasons why. It appears from the record that the
results of the investigation were contained in a single file, the production of which could have
been easily accomplished, and further, that Investigator Luke was not required to compile any
other documents or engage in any function other than producing the final investigation report.
Therefore, compliance with the subpoena would not have been unreasonable or overly
burdensome; and Jaeger should have been permitted to subpoena the Internal Affairs
report as part of his right to present a defense.
__________

1
[A] subpoena may also command the person to whom it is directed to produce the books, papers,
documents or other objects designated therein.
some; and Jaeger should have been permitted to subpoena the Internal Affairs report as part
of his right to present a defense.
The district court erred in refusing to compel the prosecution to call as witnesses those who
performed the laboratory analysis of Jaeger's urine samples
I also feel that the majority is incorrect in its assertion that the district court properly
refused to compel the prosecution to call as witnesses the parties that actually performed the
laboratory analysis on Jaeger's urine samples.
First, the refusal to compel the prosecution to call as witnesses the people who conducted
the drug tests on Jaeger deprived Jaeger of his right to cross-examine adverse witnesses. This
court has stated:
The process due a probationer is determined by balancing the strength of the
probationer's interest in confronting and cross-examining the primary sources of the
information being used against him against the very practical difficulty of securing the
live testimony of actual witnesses to his alleged violation or to his character while on
probation. An important factor in this balancing is the purpose for which the
information is offered. If evidence is presented . . . to establish a substantive violation
of a probation condition, the probationer's interest in questioning the actual source of
the information, and thus testing its reliability, is far stronger than if the information
relates merely to his general character while on probation.
Anaya v. State, 96 Nev. 119, 123, 606 P.2d 156, 158 (1980).
Alvarez's hearsay testimony was offered to establish a substantive violation of a probation
condition, and therefore Jaeger had a heightened interest in confronting and cross-examining
the people who actually conducted the analysis of his urine sample. This need must be
balanced against the difficulty of securing live testimony of actual witnesses, but in this case,
one person who performed the analysis was a Department of Parole and Probation employee
and the other worked for a laboratory in Reno. Thus, it appears that the prosecution could
have easily secured the testimony of these witnesses.
In a similar factual context directly on point, the Ninth Circuit concluded that a releasee's
due process right of confrontation was violated when the releasee was denied the opportunity
to either cross-examine the laboratory personnel who conducted the urinalysis, or afforded the
opportunity to independently retest his collected samples. U.S. v. Martin, 984 F.2d 308, 314
(9th Cir. 1993).2 In Martin, the district court admitted two laboratory urinalysis reports
based solely on the testimony of a drug counselor who neither conducted the urinalysis
nor was able to testify as to the particular test employed or general handling procedures.
1993).
2
In Martin, the district court admitted two laboratory urinalysis reports based solely on
the testimony of a drug counselor who neither conducted the urinalysis nor was able to testify
as to the particular test employed or general handling procedures. Id. at 312. While the court
acknowledged the high degree of reliability of urinalysis laboratory results, it declined to
adopt a per se rule of admissibility in all revocation hearings because urinalysis testing
procedures were always susceptible to human error and, more importantly, the court
concluded that such a blanket rule would render the defendant's right of confrontation
irrelevant. Id. at 313.
Here, the majority's conclusion that Alvarez's testimony constituted reliable hearsay is
incorrect because Alvarez had no personal knowledge regarding how the drug tests at issue
were actually conducted.
3
Alvarez only testified as to the procedures normally followed by
lab technicians and stated that she did not know if these lab technicians followed those
procedures. Because Jaeger alleged that the lab technicians did not follow those procedures,
Alvarez's testimony should have been enhanced by calling the lab technicians as witnesses.
NRS 51.075(1).
The district court erred in revoking appellant's probation on the basis of an alleged violation
raised sua sponte at the revocation hearing
The Notice of Preliminary Hearing form received by Jaeger on February 1, 1995, stated
that he would have to appear at a revocation hearing and answer to charges of use of
controlled substances, law and conduct violations (alleged child endangerment), and
substance abuse evaluation violations. Jaeger was not notified that his failure to complete
his community service might serve as the basis for the revocation of his probation.
__________

2
In attempting to distinguish U.S. v. Martin, 984 F.2d 308 (9th Cir. 1993), as persuasive authority, the
majority appears to argue that because Jaeger's ultimate penalty of parole revocation would have been the same
for any of his parole violations, the significance of a finding of his illegal drug use, and consequently his right of
confrontation in this regard, should be accorded little weight. While Jaeger did not face the prospect of a
sentence enhancement for illicit drug use, the record reflects that the primary cause of Jaeger's revocation, and
the ground most emphasized by the prosecution, were the urinalysis test results indicating such use. According to
the court in Martin, the breadth of a parolee's right of confrontation during a revocation hearing rests on
numerous factors, including the relationship between the evidence and the court's ultimate finding, the denial of
any meaningful opportunity to refute such evidence, and the consequences of the court's findings. Id. at 311.
Because of the significance of the urinalysis reports, along with the denial of any meaningful opportunity to
challenge such evidence, I conclude that Jaeger's right of due process was violated.

3
As such, Chief Justice Shearing's argument that Jaeger could have adequately determined the bias of the
testers by cross-examining Alvarez is erroneous.
notified that his failure to complete his community service might serve as the basis for the
revocation of his probation.
The majority has properly stated that due process requires that a probationer be notified of
the claimed probation violations prior to the revocation hearing, and it is clear in this case that
Jaeger was not provided with advance notice that his community service obligation was going
to be an issue at either the preliminary hearing or the final revocation hearing. Furthermore,
because Jaeger's probation did not end until May 22, 1995, over two months after the
revocation hearing, Jaeger could have completed his community service requirements in a
timely fashion. Therefore, the majority's conclusion that it was proper for the district judge to
consider the amount of community service that Jaeger had completed flies in the face of
established United States Supreme Court and Nevada Supreme Court precedent cited by the
majority.
For these reasons, I would reverse the district court's revocation of Jaeger's probation and
remand the case for a new probation revocation hearing.
____________
113 Nev. 1291, 1291 (1997) Summerfield v. Coca Cola Bottling Co.
KAREN SUMMERFIELD, Appellant, v. COCA COLA BOTTLING COMPANY OF THE
SOUTHWEST; COCA COLA BOTTLING GROUP, SOUTHWEST, INC.; BCI
COCA COLA BOTTLING COMPANY OF LOS ANGELES, Respondents.
No. 28805
November 20, 1997 948 P.2d 704
Appeal from an order of the district court granting respondents' motion for summary
judgment in a product liability case. Eighth Judicial District Court, Clark County; Donald M.
Mosley, Judge.
Plaintiff injured when soft drink can exploded brought products liability action against
manufacturer of can. The district court denied plaintiff's motion for continuance and granted
summary judgment for manufacturer. Plaintiff appealed. The supreme court held that trial
court abused its discretion by denying plaintiff's motion for continuance to retain expert to
testify at trial.
Howard Roitman, Las Vegas, for Appellant.
Thorndal, Armstrong, Delk, Balkenbush & Eisinger and Brian K. Terry, Las Vegas, for
Respondents.
Claim that trial court abused its discretion in denying motion for continuance was properly raised on appeal from order granting
summary judgment for defendant.
District court's findings of fact may be set aside on appeal where they are clearly erroneous and not supported by substantial
evidence.
3. Judgment.
Trial court abused its discretion by granting soft drink can manufacturer's motion for summary judgment in products liability
action, after denying plaintiff's request for continuance to retain expert to testify at trial, where plaintiff was not dilatory in the
discovery process, and motion for summary judgment was made less than two years after case was filed and only 15 months after
manufacturer was named as defendant.
OPINION
Per Curiam:
Appellant Karen Summerfield (Summerfield) brought a products liability action against
respondents, alleging that on June 13, 1993, an unopened Coca Cola can exploded in her
hand, causing her to suffer from carpal tunnel syndrome. On June 8, 1994, Summerfield filed
her complaint, naming respondents Coca Cola Bottling Company of the Southwest and Coca
Cola Bottling Group, Southwest, Inc. (Coca Cola) as defendants. On December 20, 1994,
when Summerfield learned that respondent BCI Coca Cola Bottling Company of Los Angeles
(BCI) had manufactured the instant can, she filed an amended complaint naming BCI as an
additional defendant. On January 23, 1995, BCI filed an answer.
The early case conference was held pursuant to NRCP 16.1, on April 18, 1995. The
parties' initial discovery was limited to certain documents, tangible things, and witness lists
exchanged at, or as a result of, this conference. In addition, Summerfield had an expert
analysis of the instant Coca Cola can performed. On September 14, 1995, Summerfield's
attorney filed a motion to withdraw as counsel on the grounds that Summerfield and he could
not agree on how to proceed with the case. On October 20, 1995, the district court allowed
her attorney to withdraw. Summerfield represented herself until February 29, 1996, when
Summerfield's current attorney, Howard Roitman (Roitman), filed notice of his appearance
as her counsel. During this period, BCI propounded certain requests for admissions to
Summerfield, all of which she denied. In addition, BCI deposed Summerfield on February 28,
1996 (although Roitman had not yet noticed his appearance, it appears that he was
representing Summerfield at this time).
Trial was set on a stacked basis, beginning April 1, 1996. On March 1, 1996, BCI's
attorney and Roitman agreed to a trial continuance. However, at the pre-trial conference of
March 14, 1996, the court refused to grant the continuance and set trial for April 8, 1996. On
March 26, 1996, Summerfield filed a motion to continue the trial on grounds that she could
not afford to hire an expert for trial at the time. Summerfield had not yet paid Dr. Powell
(Powell), the physician who treated her injury. Powell, who practices in Montana, had
previously written a letter to Summerfield's attorney stating that her carpal tunnel problems
were likely to have been caused by the exploding Coca Cola can. However, Powell's office
told Roitman that it was their policy not to cooperate in litigation when a patient was in
arrears for as long as Summerfield was. Summerfield stated that given time, she would be
able to pay Powell's bill and secure his testimony at trial. In addition, Summerfield stated that
she could not presently afford to hire any other experts to testify at trial.
On March 28, 1996, the court denied Summerfield's motion to continue. BCI immediately
moved for summary judgment on grounds that Summerfield had failed to produce any experts
who would testify as to the causative link between the exploding Coca Cola can and her
carpal tunnel syndrome. On March 29, 1996, the court heard oral arguments on this motion.
At this hearing, Summerfield renewed her motion to continue, and the court again denied it,
stating that this situation was brought about due to Miss Summerfield's inattentiveness . . .
not her poverty per se. The court granted summary judgment in favor of BCI. On May 22,
1996, Summerfield filed her notice of appeal.
Summerfield argues that the trial court abused its discretion by awarding summary
judgment in BCI's favor after refusing to grant her motion to continue. We agree.
[Headnote 1]
As a threshold matter, BCI argues that the district court's denial of a motion to continue is
not an appealable order. In Lucas v. Page, 89 Nev. 248, 249, 510 P.2d 868, 869 (1973), this
court ruled that where no final judgment had been entered, an appeal from the denial of a
motion to continue was premature under NRCP 72(b), which provided for appeals only from
a final judgment. Thus, BCI contends, Summerfield lacks standing to pursue any appeal of
the lower court's denial of her motion to continue. BCI misapprehends the issue. Here, while
Summerfield argues on appeal that the court erred in denying her motion to continue, her
appeal is not from that denial; rather, she has appealed from an order granting summary
judgment, which clearly is a final judgment under NRAP 3A (formerly NRCP 72{b)).
72(b)). Therefore, Summerfield has appropriately raised this issue on appeal.
In Harrison v. Falcon Products, 103 Nev. 558, 560, 746 P.2d 642, 642-43 (1987), this
court held that the trial court abused its discretion when it granted a motion for summary
judgment after plaintiff had requested a continuance. In Harrison, defendant moved for
summary judgment approximately twenty-one months after the suit had been filed. In
plaintiff's opposition to the motion, he requested more time pursuant to NRCP 56(f).
1
The
court refused this request and granted summary judgment in defendant's favor. This court
reversed, holding that where the plaintiff was not dilatory in conducting discovery, granting
summary judgment at this early stage of proceedings was an abuse of discretion. Id.
[Headnotes 2, 3]
The case here is nearly identical to Harrison. The motion for summary judgment was
made less than two years after the case was filed and only fifteen months after BCI was
named as a defendant. Summerfield was not dilatory in the discovery process, despite the
district court's finding that [the] situation was brought about by Miss Summerfield's
inattentiveness. A district court's findings of fact may be set aside on appeal where they are
clearly erroneous and not supported by substantial evidence. Gibellini v. Klindt, 110 Nev.
1201, 1204, 885 P.2d 540, 542 (1994). There is no evidence in the record to suggest that
Summerfield was dilatory. To the contrary, although financial constraints and a falling out
with her previous attorney may have caused some delay, Summerfield filed her pre-trial
conference memoranda and responded to BCI's discovery requests in a timely manner.
Summerfield conducted initial discovery to the extent that she obtained the information
contained in BCI's pre-trial conference memorandum. She had the instant Coca Cola can
examined by an appropriate expert. The fact that Summerfield requested a continuance in
order to obtain experts at trial is also reflective of diligence in conducting discovery. See
Halimi v. Blacketor, 105 Nev. 105, 770 P.2d 531 (1989).
It is true that here plaintiff moved to continue before summary judgment was granted, then
renewed the motion during the summary judgment hearing; while in Harrison, the plaintiff
asked for a continuance under NRCP 56{f) as part of his opposition to the motion for
summary judgment.
__________

1
NRCP 56(f) provides:
(f) When Affidavits are Unavailable. Should 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, 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 . . . .
mary judgment hearing; while in Harrison, the plaintiff asked for a continuance under NRCP
56(f) as part of his opposition to the motion for summary judgment. Harrison, 103 Nev. at
559, 746 P.2d at 642. We conclude that this is a minor procedural difference and not a
material distinction. In Summerfield's motion to continue, Roitman had affirmed that should a
continuance be granted, Summerfield would be able to procure an expert to testify as to
proximate cause. Thus, in both Harrison and the present case, the award of a motion for
summary judgment and the concurrent denial of a request to continue operated to fatally limit
the respective plaintiffs' abilities to conduct discovery.
Therefore, we conclude that the district court abused its discretion in denying
Summerfield's motion to continue. Accordingly, we reverse the order of the district court
granting summary judgment in respondents' favor and remand to the district court for further
proceedings.
2
____________
113 Nev. 1295, 1295 (1997) Arco Prods. Co. v. May
ARCO PRODUCTS COMPANY, a Division of Atlantic Richfield Company,
Appellant/Cross-Respondent, v. RAYMOND D. MAY, Respondent/Cross-Appellant.
No. 28137
November 20, 1997 948 P.2d 263
Appeal and cross-appeal from judgment entered pursuant to a jury verdict. Ninth Judicial
District Court, Douglas County; David R. Gamble, Judge.
Franchisee brought negligence and products liability action against franchisor, alleging
point of sale computerized cash register installed by franchisor failed to tally scanned items.
The district court dismissed products liability claim, but entered judgment in favor of
franchisee on negligence claim, and appeal was taken. The supreme court held that
franchisee's lost profits purportedly attributable to cash register's failure to tally scanned items
constituted purely economic damage, and could not support negligence or products liability
claims.
Vargas & Bartlett, Reno; Kummer, Kaempfer, Bonner & Renshaw, Las Vegas; Austin,
Ebert & Spangler, Las Vegas, for Appellant/Cross-Respondent.
__________

2
Kenneth J. McKenna, Reno, for Respondent/Cross-Appellant.
Issue of whether only economic damages could support negligence claim was preserved for appeal in franchisee's negligence
action against franchisor, although franchisor did not object to a jury instruction itemizing damages claimed by franchisee. Franchisor
did not argue on appeal that trial court erred in giving damages instruction itself, and instead appealed court's failure to resolve the
negligence claim in its favor as matter of law. NRCP 51.
Whether franchisee's negligence claim against franchisor was based solely on economic damages was appropriate for de novo
review, where trial court's denial of franchisor's motion for judgment notwithstanding the verdict was based on conclusion that
franchisee's damages were not solely economic as a matter of law, and franchisor sought determination on appeal that claimed damages
were purely economic as matter of law.
3. Negligence.
Franchisee's lost profits purportedly attributable to point-of-sale computerized cash register's failure to tally scanned items
constituted purely economic damage, and could not support negligence claim against franchisor, which installed cash register system.
4. Products Liability.
Franchisee's failure to collect full payment from customers in sales transactions as result of point of sale computerized cash
register's alleged failure to tally scanned items was purely economic loss and could not support products liability claim against
franchisor, which installed cash register system.
5. Products Liability.
Economic loss doctrine applies to cases of strict products liability in exactly same fashion as it applies to cases of negligence.
OPINION
Per Curiam:
Raymond May is an ARCO franchisee who owns and operates an AM/PM Mini Market in
Minden, Nevada. ARCO installed National Cash Register (NCR) point of sale
computerized cash registers in all ARCO franchises, including May's AM/PM. The NCR
system required, for some items, that cashiers manually select from several options on a menu
screen after scanning the item. If the cashier failed to answer the menu prompt, subsequently
scanned items were not tallied, and customers were not charged for those items. After using
the NCR system for several months, May notified ARCO that he had been experiencing
inventory shortages and that he believed the shortages were caused by the new cash register
system.
Dissatisfied with ARCO's explanation that the claimed errors were caused by user
mistakes rather than a defect in the NCR system, May filed a complaint against ARCO in the
district court, alleging that he suffered "financial losses" as a result of malfunctions in the
NCR system.
alleging that he suffered financial losses as a result of malfunctions in the NCR system. The
complaint alleged three causes of action: strict products liability, negligence, and fraud. The
district court granted ARCO's motion to dismiss the strict products liability claim. The jury
returned a verdict in favor of May on the negligence claim, and in favor of ARCO on the
fraud claim. ARCO filed a motion for judgment notwithstanding the verdict, which was
denied by the district court, and ARCO now appeals. May cross-appeals the district court's
dismissal of his strict products liability claim.
[Headnote 1]
ARCO's principal argument on appeal is that a trial court may not consider the merits of a negligence action in which the plaintiff
claims only economic damages. May asserts that ARCO failed to preserve this issue for appeal when it did not object to a jury instruction
itemizing the damages claimed by May. May relied on NRCP 51 as authority for this assertion, and cites Nevada cases involving appeals of
allegedly improper jury instructions. In these cases, this court declined to reach the merits due to appellants' failure to object to the jury
instructions at trial. Alternatively, May argues that his damages were not purely economic in nature, and therefore support a negligence
action.
NRCP 51 provides, inter alia, that, [n]o party may assign as error the giving or failure to give an instruction unless he objects thereto
before the jury retires to consider its verdict . . . . See Duran v. Mueller, 79 Nev. 453, 386 P.2d 733 (1963); Lathrop v. Smith, 71 Nev. 274,
288 P.2d 212 (1955). While NRCP 51 undoubtedly applies when an appeal of a specific instruction is involved, the instant case is
distinguishable. Unlike the situation contemplated by NRCP 51, Duran, and Lathrop, ARCO is not arguing on appeal that the trial court
erred in giving the damages instruction itself. Instead, ARCO appeals the district court's failure to resolve the negligence claim in ARCO's
favor as a matter of law. ARCO's argument is that a negligence action should be entirely disallowed in cases of purely economic damage,
rather than that all items of economic damage must be omitted from the jury instructions when such an action is maintained. Accordingly,
we conclude that ARCO did not fail to preserve the issue for appeal by failing to object to the jury instruction on damages.
[Headnote 2]
Before addressing the propriety of a negligence action based solely on economic damages, we must determine whether May's claimed
damages were purely economic, or whether the district court was correct in concluding that, "some of these items of
damage may be viewed as tort damages, rather than purely economic losses."
court was correct in concluding that, some of these items of damage may be viewed as tort
damages, rather than purely economic losses. The district court's denial of ARCO's motion
for judgment notwithstanding the verdict was based on the conclusion that May's damages
were not solely economic as a matter of law, rather than on the conclusion that a negligence
claim can be based on solely economic damages. Because ARCO seeks a determination that
May's claimed damages are purely economic as a matter of law, the matter is appropriate for
de novo review. See SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294,
295 (1993) (summarizing authority for the conclusion that matters of law are reviewed de
novo).
[Headnote 3]
The items of claimed damage include lost profits caused by the NCR cash register's failure to tally scanned items, additional royalties
paid to ARCO due to inventory variations, the cost of training employees to use the NCR cash registers, and the difference in rental cost
between the NCR system and the cash registers previously used. The only damages cited by the district court as potentially non-economic
were the lost profits due to the cash register's failure to tally scanned items.
The district court reasoned that [May] arguably sustained property damage when the NCR [point of sale] system allowed inventory to
be taken off business premises without appropriate payment, resulting in a reduction in gross profits. May analogizes these losses to those
sustained by the owner of a car that has been negligently repaired, or the customer of a storage facility whose property has been stolen due
to employee negligence. Although May's analogies clearly refer to instances of property damage actionable in a negligence claim, the
instant case is considerably different. The undisputed facts establish that May's inventory was neither damaged nor stolen. Instead, May's
employees knowingly allowed the inventory items to be taken from the premises by customers, quite aware that they were relinquishing any
property interest in the items in exchange for financial consideration. May's grievance is not that the items were taken, but rather that his
employees failed to collect full payment in some transactions. Had May received the full benefit of his bargain, he would have no more
inventory than he does now, but may arguably have received greater payments for the inventory sold. Hence, we conclude that May's lost
profits purportedly attributable to the NCR cash register's failure to tally scanned items constitute purely economic damage.
Because May's claimed damages are purely economic in nature, the district court erred in failing to dismiss May's negligence claim
pursuant to the economic loss doctrine.
gence claim pursuant to the economic loss doctrine. National Union Fire Ins. Co. v. Pratt &
Whitney, 107 Nev. 535, 815 P.2d 601 (1991); Central Bit Supply, Inc. v. Waldrop Drilling &
Pump, Inc., 102 Nev. 139, 717 P.2d 35 (1986); Local Joint Executive Board v. Stern, 98 Nev.
409, 651 P.2d 637 (1982). In Stern, this court applied the common law rule that, absent . . .
injury to person or property, a plaintiff may not recover in negligence for economic loss. Id.
at 410, 411, 651 P.2d at 638. This rule was reiterated in Waldrop and Pratt. May does not
suggest that the economic loss doctrine as discussed in Stern and its progeny is no longer
good law in Nevada, thus a discussion of these cases is unnecessary. Because the district
court should not have reached the merits of a negligence claim for purely economic damages,
we decline to address ARCO's remaining arguments on the negligence issue.
[Headnotes 4, 5]
The district court, relying upon the economic loss doctrine, granted ARCO's motion to dismiss May's strict products liability claim,
despite its conflicting determination that May's claimed inventory loss could constitute property damage. May correctly argues that the
strict products liability claim should not have been dismissed if his claimed inventory losses can arguably be characterized as property
damage. However, May's failure to collect full payment from customers in sales transactions is certainly a purely economic loss, and the
economic loss doctrine applies to cases of strict products liability in exactly the same fashion as it applies to cases of negligence. Stern,
Waldrop, and Pratt each involved claims based on strict liability as well as negligence, and in each of these cases this court adhered to the
rule that an action based on purely economic damages could not be maintained under theories of strict liability or negligence.
1
Pratt, 107
Nev. at 538, 815 P.2d at 603; Waldrop, 102 Nev. at 140-141, 717 P.2d at 36; Stern, 98 Nev. at 411, 651 P.2d at 638. Accordingly, we
conclude that the district court properly granted ARCO's motion to dismiss May's strict products liability claim.
Based on the foregoing analysis, we reverse the district court's judgment for May on the negligence claim, and affirm the district court's
dismissal of May's strict products liability claim.
__________

1
The doctrine of strict products liability was developed to assist plaintiffs who could not prove that products which caused physical
injury at the point of use had been manufactured negligently. The doctrine is unavailable for purely economic loss; its application is limited
to personal injury and property damage. Stern, 98 Nev. at 411, 651 P.2d at 638.
____________
113 Nev. 1300, 1300 (1997) Rice v. State
CHRISTIE ANN RICE, Appellant, v. THE
No. 26111
November 20, 1997 949 P.2d 262
Appeal from a judgment of conviction, pursuant to a jury trial, of one count of child
neglect causing substantial bodily harm. Second Judicial District Court, Washoe County;
Brent T. Adams, Judge.
Defendant was convicted, in district court of child neglect causing substantial bodily harm,
and she appealed. The supreme court, Rose, J., held that: (1) sufficient evidence existed to
sustain conviction; (2) prosecutor did not engage in misconduct in opening and closing
statements; but (3) trial court could not rely on defendant's husband's presentence report in
sentencing defendant without disclosing report.
Affirmed in part and reversed in part; remanded for a new sentencing hearing.
Springer, J., dissented in part.
Laura Wightman FitzSimmons, Las Vegas, for Appellant.
Attorney, Terrence P. McCarthy, Deputy District Attorney, Reno, for Respondent.
1. Infants.
Child neglect is general intent crime.
2. Infants.
Instruction defining willfully as purpose or willingness to commit act or make omission in question, without requiring in its
meaning any intent to violate law or injure another, was proper, in prosecution for child neglect.
3. Criminal Law.
For the supreme court to affirm conviction, sufficient evidence must be presented to establish essential elements of each offense
beyond reasonable doubt as determined by rational trier of fact.
4. Infants.
Evidence existed from which jury could conclude that there were observable injuries during week prior to child's hospitalization
that needed medical attention and that child suffered substantial pain and injury because of defendant's delay in obtaining such care, as
required for conviction of child neglect causing substantial bodily injury. Pathologist testified that defendant's child had second-degree
burn from neck to upper buttocks, that abuse had extended over several episodes, and that it was readily observable that child was
malnourished.
5. Infants.
Evidence in child neglect prosecution established that defendant unreasonably delayed in providing medical care to her child, and
that delay caused child to suffer unjustifiable physical pain or mental suffering, where child was in desperate
need of medical assistance for serious burns, child appeared to suffer from severe malnutrition and wasted
appearance, pain and disruption in child's eating and sleeping habits could not have been overlooked by
any reasonable person, and defendant's assertion that she was afraid of her husband and possible loss of
child could have been discounted by jury.
113 Nev. 1300, 1301 (1997) Rice v. State
delay caused child to suffer unjustifiable physical pain or mental suffering, where child was in desperate need of medical assistance for
serious burns, child appeared to suffer from severe malnutrition and wasted appearance, pain and disruption in child's eating and
sleeping habits could not have been overlooked by any reasonable person, and defendant's assertion that she was afraid of her husband
and possible loss of child could have been discounted by jury.
6. Criminal Law.
Defendant charged with child neglect was not entitled to instruction on lesser-included offense of gross misdemeanor child
neglect; defendant had not requested instruction, and evidence clearly showed guilt above lesser offense.
7. Criminal Law.
Trial court need not instruct jury on lesser included offense if evidence clearly showed guilt above lesser offense.
8. Criminal Law.
Pretrial order granting motion in limine may be modified or reversed at trial; to preserve issue for appeal, however, objection must
be renewed at trial when evidence previously ruled inadmissible by order in limine is offered in evidence.
9. Criminal Law.
By not objecting to State's comments in opening argument regarding nature of child's injuries discovered by medical personnel
upon admission to hospital, defendant charged with child neglect waived right to complain about comments on appeal.
10. Criminal Law.
Trial court committed no error in allowing medical expert to testify to full extent of injuries she observed on child during two days
she treated him prior to his being removed from life support, since court then instructed jury that defendant was not charged with
causing death of [child] nor with administering any of the injuries . . . and defendant neither objected nor proposed alternative
instruction.
11. Criminal Law.
Generally, failure of party to propose limiting instruction bars raising this issue on appeal.
12. Criminal Law.
District courts have a duty to ensure an accused receives a fair trial and must therefore control obvious prosecutorial misconduct
sua sponte.
13. Criminal Law.
Prosecutor did not act in bad faith by stating in opening statement that nurse was traumatized by extent and nature of infant's
injuries, even though nurse never testified that she reacted in such a manner, and thus did not commit misconduct.
14. Criminal Law.
Generally, prosecution has duty to refrain from making statements in opening arguments that cannot be proved at trial.
15. Criminal Law.
Even if prosecutor overstates in his opening statement what he is later able to prove at trial, misconduct does not lie unless
prosecutor makes statements in bad faith.
16. Criminal Law.
Since defendant's state of mind and action were primary issue in prosecution for child neglect, prosecutor's statements in closing
argument asking jurors what they would do if placed in defendant's position and statements had substantial support in
evidence presented, argument was not improper and did not prejudice overall fairness of the trial.
113 Nev. 1300, 1302 (1997) Rice v. State
and statements had substantial support in evidence presented, argument was not improper and did not prejudice overall fairness of the
trial.
17. Criminal Law.
Defendant suffered no prejudice as result of prosecutor's statement in closing argument that the State has not opted to attempt to
prove that [defendant] committed any of the abuse by direct physical action, but she is guilty of neglect of this child, and any possible
error that resulted was harmless.
18. Criminal Law.
Trial court improperly used and relied upon defendant's husband's presentence report in sentencing defendant, without providing
defendant with copy, and error was prejudicial in child neglect prosecution; trial judge spent much time questioning defendant about
her claimed unawareness of drug and alcohol use of her husband, who was convicted of murder of their child, and came to conclude
that defendant had lied and was partly responsible for death of her child.
19. Criminal Law.
Judge should always disclose information he has received from third parties concerning sentencing of defendant, and if it appears
from record that judge used such material or relied on it, use of information is deemed prejudicial if not divulged to defendant.
OPINION
Christie Ann Rice (Christie) and her husband, Cody Alan Rice (Cody) first met in April of
1990. After learning that she was carrying his child, she moved in with him, and they were
subsequently married. However, the marriage was strained because Cody was violent and
abusive toward Christie. Matthew, Christie and Cody's son, was born on July 1, 1992.
Sometime around the middle of September 1992, Cody told Christie that Matthew had been
accidentally burned in hot water. Christie tried to treat Matthew's injuries at home. On
September 22, 1992, Matthew was rushed to the hospital because he had stopped breathing.
He died in the hospital two days later.
Cody was charged with and pleaded guilty to the first degree murder of Matthew. He was
sentenced to life imprisonment without the possibility of parole. Christie was charged with
child neglect causing substantial bodily harm to Matthew. Following a jury trial, Christie was
convicted and sentenced to serve the maximum term in prison allowed by law, twenty years.
Christie now appeals. We affirm the conviction but remand for resentencing.
FACTS
In April of 1990, Christie met Cody, and they were engaged in August of 1991. Christie
moved in with Cody in January of 1992 when she found out she was pregnant with
Matthew, and the two were married in April of 1992.
113 Nev. 1300, 1303 (1997) Rice v. State
when she found out she was pregnant with Matthew, and the two were married in April of
1992. Christie testified that until she moved in with Cody, the two never had any problems.
Christie stated that shortly after they moved in together, Cody became physically abusive
toward her. However, she did not leave because she loved Cody and believed he would not
continue to hurt her because he loved her. Christie's family and friends also testified to Cody's
violent, threatening, and explosive behavior toward Christie.
Matthew was born on July 1, 1992. Despite Cody's abusive and controlling behavior
toward her, Christie testified that she believed he would not hurt Matthew because he was so
proud to be a father. Christie testified she could never imagine Cody intentionally hurting
Matthew.
On August 21, 1992, Dr. Berkley Powell, a physician in Reno, saw Matthew. Dr. Powell
testified that Matthew had a fever, a yellowish, bloody discharge coming from his nose, and
was breathing very rapidly. Matthew had also thrown up blood the night before. Matthew was
admitted to the hospital and was diagnosed with pneumonia, and he remained in the hospital
for approximately a week. During his stay in the hospital, Matthew recovered from the
infection but lost almost half a pound.
Dr. Powell also noticed a bruise above Matthew's nose and his eye. When he asked
Christie about it, she said Cody had dropped Matthew, and Matthew's face had struck a coffee
table. Dr. Powell's concern prompted him to order a CAT scan and X-rays and call child
protective services. The X-rays did not reveal any indications of fractures. Dr. Powell testified
that Christie seemed uncomfortable with the questions he asked about Matthew's injuries, and
he believed she was covering up for Cody.
Child abuse was suspected, and a social worker from Washoe County Child Protective
Services was assigned to Matthew's case. The social worker testified that Cody related several
inconsistent accounts about Matthew's injuries. Based on twenty-two different factors, the
social worker rated the risk of injury to Matthew as low, despite information he received from
a family member that Cody had a quick temper.
After Matthew was released from the hospital, Christie got a job because Cody was not
working regularly. When Christie was at work, Matthew was in the care of either Cody or
Christie's grandparents. Christie testified that Cody became very explosive, volatile, and
short-tempered during this time. He quit his job and did not tell Christie. Christie related an
incident in which Cody threatened her with a knife, telling her he was going to kill them both
so that they would die as a family and nobody could control them any longer. Christie stated
that when Cody realized she was holding Matthew, he backed off.
113 Nev. 1300, 1304 (1997) Rice v. State
she was holding Matthew, he backed off. She stated she was terrified of Cody by this point.
On September 17, 1992, Cody went to see Christie while she was at work. He told her
Matthew had been burned when Cody had been giving Matthew a bath and failed to check the
water temperature. Christie could not remember the exact date this incident had happened.
Cody told Christie the burns were not bad, just pinkish. Christie told Cody to go home and
stay with Matthew. When Christie got home, she looked at Matthew's burns. She testified
they were pink like a sunburn and reddish in some areas. She bathed Matthew, put ointment
on his burns, and dressed them in gauze.
Christie told Cody she thought a doctor should see Matthew, but Cody told her no. Cody
told her they could treat Matthew's wounds themselves, and if he got worse, then they would
take him to a doctor. Christie acquiesced to Cody's demands because she was afraid of what
Cody would do to her if she did not, especially because Cody had previously threatened to
kill them all. Christie was also worried that social services would take Matthew from her.
On September 18, 1992, a friend of Christie's and Cody's, Lori Smith, visited Cody and
Matthew while Christie was at work. Lori saw Matthew lying on his stomach with gauze
covering his back and upper arms. She saw no blisters or oozing around the gauze covered
area, but noted that when Cody turned Matthew over to change his diaper, he started crying.
She asked Cody what happened, and he told her Matthew had been in the bath when the water
suddenly got hot and burned him. Lori thought the burns looked bad, so she asked Cody if
Matthew had been to the hospital, and Cody replied that he had.
In the early evening of September 22, 1992, Matthew was having trouble breathing.
Christie stated that she told Cody she was going to take Matthew to the doctor the next day,
and Cody became enraged. The next day at work, Cody called Christie and told her that there
was an emergency with Matthew. When Christie got home, Cody was performing CPR on
Matthew. They drove Matthew to the hospital.
Christie and Cody arrived with Matthew at the emergency room of Saint Mary's Hospital
shortly before 5:00 p.m. on September 22, 1992. Shari Quinn, a nurse at the emergency room
of Saint Mary's, testified that when Matthew arrived at the hospital, he had no heart or
respiratory rate and was subsequently put on life support. Quinn questioned Christie and
Cody about the events leading to Matthew's injuries. Quinn testified that Christie told her
Matthew had been burned four or five days earlier when the water heater had exploded.
Quinn re-entered the emergency room and while moving Matthew, felt fluid from the burn
on his back.
113 Nev. 1300, 1305 (1997) Rice v. State
emergency room and while moving Matthew, felt fluid from the burn on his back. She stated
that when she pulled her hand away from Matthew, her hand had sanguinous fluid and dead
skin from the burn on it. She rolled Matthew over and saw a huge burn over most of his back.
Another nurse who treated Matthew assumed when she saw him that he was only four to
five weeks old because his weight was so low. Matthew's injuries included a black eye and a
small cut under it, noticeable abrasions on his ear and head, burn marks on his hand, a blister
on one of his feet, and a large burn on his back covering the majority of the area between his
shoulders and buttocks. The burn on Matthew's back was open and cracked, moist and
oozing, with the skin flaking away. No ointment or other kind of medical treatment was
evident on Matthew at the time he was admitted. Additionally, evidence was presented that
Matthew had suffered tissue wasting and muscle wasting, as evidenced by his buttocks
and legs having no plumpness and being almost to bone.
Matthew was transferred from Saint Mary's to Washoe Medical Center for further
treatment, but died on September 24, 1992. The autopsy revealed that in addition to the burns,
Matthew had suffered injuries not superficially apparent. These included broken ribs and a
severe cranial trauma. Additionally, Matthew's thymus gland had withered. The stated cause
of death was blunt injuries to the skull and brain, in combination with the burn wound.
Detective Jenkins, a Reno Police detective, was called in by the medical team, and he
interviewed Christie. Christie never told him she was afraid of or abused by Cody; however,
she did tell Jenkins she had seen Cody very angry on occasions. She also told Jenkins she felt
the need to protect her husband and her child and said she had never seen Cody hurt Matthew.
Jenkins concluded that Christie, three years older than Cody, was clearly the more mature one
and did not seem intimidated by him. In fact, Christie stated that she would leave Cody
immediately if he was physically abusive to Matthew or her.
Christie also told Jenkins that Matthew had been burned in the shower with Cody.
However, detectives found that the various faucets in Cody's and Christie's apartment
maintained a consistent temperature, not over 135 degrees. Additionally, testimony was
presented which indicated Matthew would have had to have been immersed in water that
temperature for nearly one minute to suffer the burns found on him.
Christie initially characterized Matthew's burns as pinkish in color with no blistering or
other indication of a severe burn. Later in the interview, she told Jenkins that Matthew's
blanket was sticking to his burns and that when she removed the blanket, portions of his
skin would "literally peel off with the blanket."
113 Nev. 1300, 1306 (1997) Rice v. State
sticking to his burns and that when she removed the blanket, portions of his skin would
literally peel off with the blanket. She also indicated that the blistering had occurred shortly
after the burn trauma.
Following the investigation of Matthew's death, Cody was charged with first degree
murder. Prior to trial, Cody pleaded guilty to this charge and was sentenced to life without the
possibility of parole. On October 28, 1992, an indictment was filed alleging that Christie had
committed the offense of child neglect causing substantial bodily harm. The State alleged that
Christie had caused Matthew to suffer unjustifiable physical pain when she neglected,
delayed or refused to seek appropriate medical treatment for [Matthew's] malnourishment and
failure to thrive and for second degree burns [Matthew] received while under the care of
[Christie] and/or CODY A. RICE. The State's theory was that Christie did not seek
treatment for Matthew's burns because she was afraid social services would take Matthew
away from her. Christie was only charged with neglecting Matthew for the period between
September 14 and September 22, 1992.
Prior to trial, Christie was evaluated by Dr. Lon Kepit, a clinical psychologist specializing
in cases involving battered women. Kepit concluded that Christie's behavior fit the model of a
battered woman. Dr. Kepit testified that as a battered woman, Christie would lose sight of her
personal boundaries. She would also, therefore, lose sight of boundaries for Matthew and be
unable to assess danger accurately.
Following a jury trial, Christie was convicted of child neglect causing substantial bodily
harm. The district court sentenced Christie to twenty years in prison.
DISCUSSION
The district court properly instructed the jury concerning the definition of willfully as used
in NRS 200.508
[Headnotes 1, 2]
In Childers v. State, 100 Nev. 280, 680 P.2d 598 (1984), we considered the propriety of giving an instruction defining the word
willfully as was given in this case.
1
We concluded that the definition was proper to describe the intent needed for the general intent crime
of child abuse/neglect.
__________

1
The following is the instruction given to the jury:
The word willfully, when applied to the intent with which an act is done or omitted, as used in my instructions, implies
simply a purpose or willingness to commit the act or to make the omission in question. The word does not require in its meaning
any intent to violate the law, or injure another.
113 Nev. 1300, 1307 (1997) Rice v. State
The instruction was proper. The child abuse statute is a general intent crime. The word
willfully must be defined in that context. The California courts have long approved
the use of this definition of willfully, which is taken from the California Penal Code
Section 7(1). See, e.g., People v. Atkins, 125 Cal. Rptr. 855, 861 (Cal. App. 1975)
(approves use under child abuse statute, California Penal Code Section 273d).
(Footnote omitted.) In Smith v. State, 112 Nev. 1269, 927 P.2d 14 (1996), we recently upheld
a child abuse and neglect conviction based on NRS 200.508 and held that this statute was not
unconstitutionally vague. Child neglect is a general intent crime, and the definition of
willfully has been approved several times in Nevada and elsewhere. We find no error in its
use in this case.
The evidence adduced at trial was sufficient to sustain the conviction
[Headnote 3]
For this court to affirm a conviction, sufficient evidence must be presented to establish the essential elements of each offense beyond a
reasonable doubt as determined by a rational trier of fact. Sanders v. State, 110 Nev. 434, 436, 874 P.2d 1239, 1240 (1994). The Ninth
Circuit Court of Appeals has stated what evidence is needed to prove child abuse based on delay in seeking medical treatment, and the
analysis would be the same for child neglect. Martineau v. Angelone, 25 F.3d 734 (9th Cir. 1994). Martineau states:
Appellants contend, and the state concedes, that under the Nevada Supreme Court's ruling, the child abuse conviction can be
upheld only if the state proved beyond a reasonable doubt that appellants committed an omissioni.e. that they willfully
caused or permitted [the child] to suffer unjustifiable physical pain by delaying in seeking medical care. NRS 200.508 (1977).
Appellants argue that even reviewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could
have found proof of [delay] beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We agree.
In order to prove child abuse based on delay, the state had to prove both (A) that some time passed between [the child's]
injuries and appellants' 911 call and attempted CPR and (B) that, during this time, appellants knew (or should have known) that
[the child's] injuries were serious enough to require immediate medical attention, yet did nothing.
113 Nev. 1300, 1308 (1997) Rice v. State
Id. at 739 (citing Fabritz v. Traurig, 583 F.2d 697 (4th Cir. 1978)).
[Headnotes 4, 5]
Christie's defense was that when she noticed the burns, she was going to take the infant to the hospital until Cody objected and said
that social services would be called and would take the child from them. Concerned about losing her child and Cody's propensity for
violence, she decided that medical assistance was not essential and that she could care for the baby at home. The dissent claims, that at the
worst, Christie is guilty of bad judgment. However, there is ample evidence from which a jury could conclude that there were observable
injuries during the week prior to Matthew's hospitalization that needed medical attention and that the child suffered substantial pain and
injury because of the delay in obtaining such care.
Dr. Ellen Clark, the pathologist who observed the child at the hospital for one and one-half days prior to his death and who conducted
the autopsy, stated: It's my opinion that Matthew Rice was a victim of child abuse which extended over several episodes, certainly from
August through his death. Dr. Clark testified that the child lost a substantial amount of weight from his first hospitalization on August 22
until his second hospitalization on September 22, and that it was readily observable that he was malnourished and extremely underweight.
She explained that his weight at the August hospitalization was in the ten to twenty-five percentile of children two months old, but that
when he was admitted on September 22, his weight was below the fifth percentile of children three months old. She did acknowledge that
some weight loss could have been attributable to the continuing pneumonia Matthew had that caused the August hospitalization.
Dr. Clark testified that the child had second degree burns from his neck down to the upper part of his buttocks and stated that: A
second degree burn goes deeper into the skin and is characterized by damage to the skin. It's in the form of blistering, and very often skin
sloughage or peeling of the skin. The burns involved approximately twenty-five to thirty percent of the total body surface area, and Dr.
Clark stated that burns over this extent of an infant's body are extremely serious and cause a great risk of dehydration and infection without
proper medical treatment. Another complication of the burn was that it would be a painful injury, and it would have disturbed the baby's
normal daily functions, including sleeping and eating.
Christie testified that the burn wound was just pinkish for the four or five days Matthew was at home. While she wanted to take the
infant to the hospital, she discerned no emergency medical situation. However, this was refuted by several health professionals and Lori
Smith, the couple's teenage friend.
113 Nev. 1300, 1309 (1997) Rice v. State
als and Lori Smith, the couple's teenage friend. Nurse Quinn testified that upon admission,
Matthew's burn wounds were open and secreting sanguinous fluid. Drs. Clark and Bonaldi
testified that the blistering would have been observable shortly after the injury and that
immediate medical assistance should have been sought. Describing how the second degree
burn wound would look during the four days after the injury, Dr. Bonaldi stated:
[T]he first day would be very red, lots of blisters. Blisters would begin to rupture the
first couple, three days. Then depending on how the burn is treated, those blisters will
stick to the skin and further weep. If the blisters are removed this would begin some
type of granulation or healing phase by three to four days.
Christie admitted that the blistering occurred shortly after the burn and that the blanket
was sticking to Matthew's open wounds. Lori Smith stated that the burns looked bad shortly
after they had been sustained. When she inquired about seeking medical treatment, Cody lied
about having taken the baby to the hospital.
The jury easily could have concluded that from the time the baby was burned four or five
days prior to the hospital admission, he was in desperate need of medical assistance for the
serious burns and what Dr. Clark described upon admission as his severe malnutrition and
wasted appearance. Not only could the jurors conclude, from the expert testimony and their
own life experiences, that these physical injuries necessitated immediate medical care, but
that the pain and disruption in the infant's eating and sleeping habits could not have been
overlooked by any reasonable person. As to Christie's assertion that she was afraid of Cody
and the possible loss of her child if medical assistance was sought, the jury could have
discounted this testimony or believed that Christie has an overriding responsibility to the
infant in spite of these possible consequences.
There was more than ample evidence to establish that Christie knew or should have known
that the infant was in need of medical care, that she unreasonably delayed in providing it to
him, and that the delay caused the infant to suffer unjustifiable physical pain or mental
suffering. Therefore, the evidentiary concerns of the Martineau decision were met.
The district court did not err in failing to instruct the jury on the lesser degree of child
neglect
[Headnote 6]
NRS 200.508 provides that anyone who willfully causes a child to suffer unjustifiable physical pain or mental suffering as a result of
abuse or neglect is guilty of a gross misdemeanor.
113 Nev. 1300, 1310 (1997) Rice v. State
result of abuse or neglect is guilty of a gross misdemeanor. But if substantial bodily or mental
harm results, the perpetrator is guilty of a felony. The statutory definition of substantial bodily
harm set forth in NRS 0.060 states that it is bodily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement or prolonged physical pain.
The indictment charged Christie with causing Matthew to suffer unjustifiable physical
and/or mental suffering resulting in substantial bodily harm to the child, a felony. At the
trial's conclusion, the jury was instructed on the felony charge, but the lesser included offense
of gross misdemeanor child neglect was not included in the instructions nor was it requested
by the defense. Christie now claims that the district judge had an obligation to instruct the
jury on the lesser included offense notwithstanding her failure to request such an instruction.
[Headnote 7]
In Davis v. State, 110 Nev. 1114, 881 P.2d 657 (1994), we held that a district court need not instruct the jury on a lesser included
offense if evidence clearly showed guilt above the lesser offense. In this case, we believe the State introduced sufficient evidence to
establish that Christie's four or five day delay in seeking medical treatment resulted in Matthew sustaining prolonged physical pain, thereby
falling within the definition of substantial bodily harm. Expert testimony established that the massive burn was extremely painful and a jury
could conclude that delaying treatment for four or five days unjustifiably prolonged that pain. Therefore, it was not error to omit giving an
instruction on the lesser included offense of gross misdemeanor child neglect.
The district court did not err in permitting evidence of the cause of Matthew's death and then instructing the jury on the limited use of this
evidence
Christie argues the State improperly introduced evidence of the cause of Matthew's death. Prior to trial, the defense filed a motion in
limine seeking exclusion of evidence concerning Matthew's cause of death and injuries that became evident to medical personnel following
his admission to the hospital. The defense requested this motion in limine because it was concerned about the prejudice to Christie if
evidence was admitted regarding the non-visible injuries as contributing factors to Matthew's death. The defense claimed Christie would
essentially be forced to defend herself against allegations of murder, when she was only charged with neglect, based on her knowledge of
the bruising on Matthew's face upon his admission to the hospital for pneumonia and his burns days prior to his death.
113 Nev. 1300, 1311 (1997) Rice v. State
In a pre-trial ruling, the district judge decided to limit testimony regarding the extent of
Matthew's injuries, beyond those specifically referred to in the indictment, the failure to thrive
and the second degree burns. The district judge then decided to admit evidence of the cause
of Matthew's death only after the State's expert witness, Dr. Clark, testified at length on the
subject outside the jury's presence. Judge Adams noted that the court would give strong
cautionary instructions to the jury to the effect that Christie was not on trial for the acts Cody
committed on Matthew.
[Headnotes 8, 9]
A pretrial order granting a motion in limine may be modified or reversed at trial. To preserve the issue for appeal, however, the
objection must be renewed at trial when the evidence previously ruled inadmissible by the order in limine is offered in evidence. Staude v.
State, 112 Nev. 1, 5, 908 P.2d 1373, 1376 (1996). During its opening argument, the State made comments regarding Matthew's injuries
discovered by medical personnel upon Matthew's admission to the hospital. However, the defense did not object to these statements.
Therefore, the defense waived its right to complain about these comments on appeal.
[Headnote 10]
On the second day of trial, the district court held a hearing outside the presence of the jury to determine what parts of Dr. Clark's
testimony would be admitted. The district court allowed Dr. Clark to testify to the full extent of the injuries she observed on Matthew
during the two days she treated him prior to his being removed from life support. This included the blistered second degree burns and
cranial injuries. Prior to Dr. Clark's testimony, the district judge admonished the jury that Christie was not charged with causing the death
of Matthew . . ., nor . . . with administering any of the injuries which Dr. Clark will discuss in her testimony. At this point, the defense
neither objected to this instruction nor proposed an alternative instruction.
[Headnote 11]
Generally, the failure of a party to propose a limiting instruction bars raising this issue on appeal. Richardson v. State, 91 Nev. 266,
534 P.2d 913 (1975). In Levi v. State, 95 Nev. 746, 749, 602 P.2d 189, 190-91 (1979), this court stated:
Only in exceptional circumstances need the trial court, sua sponte, give such a limiting instruction. For example, in Champion
v. State, 87 Nev. 542, 490 P.2d 1056 (1971), the state conceded that a cautionary instruction concerning an addict-informer's
testimony was central to the cause, and we found prejudice where no such instruction was given.
113 Nev. 1300, 1312 (1997) Rice v. State
In this case, the district court provided the jury with a cautionary instruction with no objection
by the defense. Therefore, we conclude the district court did not commit error in instructing
the jury as it did.
The prosecutor did not engage in misconduct
[Headnote 12]
District courts have a duty to ensure an accused receives a fair trial and must therefore control obvious prosecutorial misconduct sua
sponte. Collier v. State, 101 Nev. 473, 477, 705 P.2d 1126, 1128 (1985). A prosecutor may not argue facts or inferences not supported by
the evidence. Williams v. State, 103 Nev. 106, 110, 734 P.2d 700, 703 (1987).
[Headnote 13]
Christie alleges the prosecutor committed several instances of misconduct in his opening and closing argument to the jury. In his
opening argument, the prosecutor stated:
Ms. Quinn went to pick up the infant, who was clad in only a diaper, she placed one hand under his head and the other hand under
his lower back. Ladies and gentleman, at that time, even with all her years of experience as a nurse, she felt something so unusual
that she had never felt before. She immediately withdrew her hand, and on her hand was skin from infant Matthew Rice because of
burns on his back that were so severe, the skin was literally just coming off.
She actually became traumatized herself from this. She went and she washed her hands. She just kept rubbing and rubbing
and washing and washing, because it disgusted her so much.
Christie asserts this statement constituted misconduct because Ms. Quinn never testified that she reacted in such a manner to Matthew's
burns. At trial, Quinn testified she was extremely shocked and stunned. After showing the doctor Matthew's burned back, she stepped
back out of the picture . . . and just basically got [her] thoughts together.
[Headnotes 14, 15]
Generally, the prosecution has a duty to refrain from making statements in opening arguments that cannot be proved at trial. Riley v.
State, 107 Nev. 205, 212, 808 P.2d 551, 555 (1991). It is proper for the prosecutor to outline his theory of the case and to propose those
facts he intends to prove. Garner v. State, 78 Nev. 366, 371, 374 P.2d 525, 528 (1962). Even if the prosecutor overstates in his opening
statement what he is later able to prove at trial, misconduct does not lie unless the prosecutor makes these statements in bad faith.
Id. Although Quinn's testimony at trial was not exactly what the State promised, nothing in the record
indicates the State's statements were made in bad faith.
113 Nev. 1300, 1313 (1997) Rice v. State
these statements in bad faith. Id. Although Quinn's testimony at trial was not exactly what the
State promised, nothing in the record indicates the State's statements were made in bad faith.
In his closing argument to the jury, the prosecutor stated: Christie Rice, at the age of 22,
chose to bring a life, to bring a child into this world. A healthy, beautiful little boy named
Matthew was born on July 1st, 1992. Matthew' means a gift from the Lord. The defense
objection to the relevancy of this statement was overruled.
The prosecutor also stated in closing that:
Anybody who has even scorched themselves with the tip of an iron on your finger or
your hand knows the extent of the pain of a burn over several days.
When the life, not just the pain from the burn but the life of an innocent, defenseless
child is at stake, is it even conceivable that the mother of that child would neglect that
child's life-threatening injuries because of anything the husband could possibly be
threatening her with?
. . . .
Are we willing to accept this as a defense for the failure to protect such a child? . . . .
. . . .
And, ladies and gentleman, of course it goes almost without saying that if your baby
is suffering from life-threatening dehydration or the possibility of infection, that you
must take all steps to prevent not only that from occurring, but that from getting worse.
To knowingly permit any of these risks is unconscionable. . . .
Christie also objects to a later statement in the prosecution's argument: No one of us or
anyone we can think of would have acted the same and expected their conduct to be excused,
to allow this child to suffer. At that point, the defense objected because the prosecution was
misstating the law. The court reminded the jury that the statements of the prosecutor were not
statements of law but merely argument.
[Headnote 16]
In Williams v. State, 103 Nev. 106, 109, 734 P.2d 700, 702 (1987), this court concluded that it is improper for the prosecutor to place
the jury in the position of the victim. However, in this case, the prosecutor was asking the jurors what they would do if placed in the
defendant's positionnot the victim's. Since the defendant's state of mind and action were the primary issue and the statements had
substantial support in the evidence presented, this argument was not improper and did not prejudice the overall fairness of the trial.
113 Nev. 1300, 1314 (1997) Rice v. State
[Headnote 17]
Finally, Christie objects to the prosecution's statement to the jury that: Concededly, the State has not opted to attempt to prove that
[Christie] committed any of the abuse by direct physical action, but she is guilty of neglect of this child. Christie complains that this
argument clearly implied that the state could have charged Christie with actually directly abusing Matthew, but chose not to. We
conclude the defense's interpretation of this statement is extreme. Christie suffered no prejudice as a result of the statement, and any
possible error that resulted was harmless. Ross v. State, 106 Nev. 924, 928, 803 P.2d 1104, 1106 (1990). The argument was relevant to
explain what the State had charged and was obligated to prove.
The district court erroneously sentenced appellant by relying on impermissible evidence
[Headnote 18]
The defense called Nancy Clark, a professional who provided an alternate sentencing report based on interviews with people involved
in the case. The district judge asked Clark approximately 100 questions, many of which concerned information the judge obtained from
presiding over the criminal proceedings involving Cody Rice or from reading Cody's presentence report. Christie asserts this conduct
indicates that in sentencing Christie, the district court judge improperly relied upon information never provided to the defense. In particular,
Christie complains about the district judge's professed disbelief that Christie was unaware of Cody's drug and alcohol abuse.
NRS 176.156(1) governs the disclosure of presentence reports and states: The court shall disclose to the district attorney, the counsel
for the defendant and the defendant the factual content of the report of the presentence investigation and the recommendations of the
division and afford an opportunity to each party to object to factual errors and comment on the recommendations. In Shields v. State, 97
Nev. 472, 634 P.2d 468 (1981), this court concluded that the trial court's failure to provide the defense counsel with police reports which
were contained in the presentence report violated NRS 176.156 and deprived the defendant of due process. This due process violation was
highlighted by the fact that the district judge's sentencing decision manifestly was affected by information contained in the reports. Id. at
473, 634 P.2d at 469.
In this case, the district judge spent quite a bit of time questioning Clark about the credibility of Christie's professed unawareness of
Cody's drug and alcohol use. In his questioning of Ms. Clark, it was apparent that the judge was relying on the information furnished
by Cody in his presentencing report and sentencing hearing.
113 Nev. 1300, 1315 (1997) Rice v. State
tion furnished by Cody in his presentencing report and sentencing hearing. Repeatedly, the
district judge asked how Christie could not have known of Cody's alcohol and drug abuse
when Cody's habit and conduct as described by him would have been obvious to anyone. In
effect, the judge was accepting Cody's statements of continual and excessive drug use as true
and asking Clark to square Christie's professed lack of knowledge of Cody's drug problem
with such statements. This was part of the larger inquiry the district judge was making about
whether Christie had lied when she testified.
[Headnote 19]
A judge should always disclose information he has received from third parties concerning the sentencing of a defendant. Todd v. State,
113 Nev. 18, 931 P.2d 721 (1997). And if it appears from the record that the judge used such material or relied on it, the use of the
information is deemed prejudicial if not divulged to the defendant. Id. at 26, 931 P.2d at 726; see also U.S. v. Copeland, 902 F.2d 1046 (2d
Cir. 1990) (defendant entitled to opportunity to respond to information considered by sentencing court); U.S. v. DeVore, 839 F.2d 1330
(8th Cir. 1988) (court permitted defendant to review co-defendant's presentence investigation containing co-defendant's version of the
robbery). There is no evidence in the record that the defense was provided with a copy of Cody's presentence report or that Christie's
attorney stipulated to its use at Christie's sentencing.
The district judge's perception of Christie's veracity was critical. Christie called numerous witnesses at the sentencing hearing who
portrayed her as a responsible young adult who had no prior criminal record of any type and would almost certainly do well on probation.
The district judge admitted as much.
I don't doubt a word of what all your friends and relatives and employers have said about you. By every single account from every
source, you are a positive, productive, intelligent, able person. You're a person with good judgment. You're extremely industrious.
In striking contrast to most of the defendants who come before the Court, you don't have any history of drug abuse, alcohol
abuse, unemployment. You have a record every parent would hope for their child: an A student, a good employee, a participant in
a program for gifted and talented students, a manager of other employees at a young age. In short, a model life.
In viewing Christie's positive life before the birth of her child and the criminal neglect of which she was convicted, the district judge posed
the following two extremes: Either she shouldn't be in prison or [on] probation, just congratulate her for being a nice
person and go home, or she should be punished very severely."
113 Nev. 1300, 1316 (1997) Rice v. State
in prison or [on] probation, just congratulate her for being a nice person and go home, or she
should be punished very severely. The judge later speculated that perhaps Christie
knowingly let her child be severely abused by Cody to take [the child] out of the picture
and remove the obstacle to the flourishing of her life with her husband. The judge's opinion
of Christie's credibility did in large measure determine whether she received the lightest or
the most severe sentence.
In accepting Cody's statements in the presentence report and using them in a critical
analysis of whether Christie had fabricated her testimony, the judge apparently came to the
conclusion that Christie had lied and that she was partly responsible for the child's death.
Cody's presentence report was just as important to Christie as was the police report in the
Shields case, and perhaps more so. The prosecutor even referred to Cody's presentence report
in his closing argument. Therefore, we believe that since the district court's use and reliance
upon Cody's presentence report without providing the defense with a copy constituted
prejudicial error, we are compelled to reverse the sentence in this case and remand for
resentencing. To eliminate any problem with what the sentencing judge may remember from
the sentencing of Cody, the resentencing shall be conducted by another district court judge.
Since we conclude that the use of Cody's presentence report requires us to reverse this
sentence, it is not necessary to consider Christie's remaining claims of error committed at
sentencing.
CONCLUSION
First, we conclude that sufficient evidence existed to sustain Christie's conviction for
felony child neglect. Second, we conclude that because Christie failed to request an
instruction on the lesser offense of gross misdemeanor child neglect, the district court did not
err in failing sua sponte to instruct the jury on this lesser offense. Third, we conclude that the
use of evidence of the cause of Matthew's death was properly restricted by the instruction
given to the jury. Fourth, the prosecutor did not engage in misconduct in the opening and
closing arguments. However, we also conclude that the district court relied on impermissible
evidence in sentencing Christie. Accordingly, we affirm the conviction of child neglect, but
reverse the sentence imposed and remand to the district court for sentencing by another
district judge.
2
Shearing, C. J., and Young, J, concur.
__________

2
113 Nev. 1300, 1317 (1997) Rice v. State
Springer, J., concurring in part and dissenting in part:
I concur with remanding this matter for resentencing, but I dissent to the remaining
judgment of this court because there are two errors in this case that require reversal.
The most obvious error is the trial court's failure to instruct the jury on the lesser degree of
the crime of child neglect. Child neglect is a gross misdemeanor unless there is proof of
substantial bodily or mental harm. Proof of the added element of substantial bodily or
mental harm raises the crime of child neglect from a gross misdemeanor to a felony calling
for a maximum of twenty years in prison.
NRS 175.201
1
requires not only that a jury must be instructed on the degrees of an
offense, it also requires that the jury be instructed that if there is a reasonable doubt as to
which degree is proven, the defendant is to be convicted of the lowest degree. Ms. Rice was
denied the benefit of this statute. See Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966).
Although I believe that it was error per se for the trial court not to instruct on the lesser
offense, I would point out that the omission was particularly disastrous to this defendant
because this case looks much more like a gross misdemeanor case than a felony case, and the
jury should have had the chance to bring in a verdict of the lesser offense.
The jury was not given a chance to decide that injuries suffered by reason of delay in
seeking medical attention were less than substantial, which is to say, injuries which created
a substantial risk of death, loss or impairment of the function of a bodily organ or member, or
prolonged physical pain. NRS 200.060. As I will demonstrate, proof relating to substantial
injury in this case must be related to the scald injury and the scald injury alone. It is very
difficult to conclude that Ms. Rice's deciding not to call in professional medical care until the
scalding reached the blister stage resulted in substantial injury, as defined by NRS 200.060.
I find no evidence in the record that this delay was the cause of any increased or unnecessary
suffering on the part of the child. The intentional scalding inflicted by the child's father was
what caused the child's injuries, not Ms. Rice's delay in calling the doctor. The evidence in
this case certainly would support a jury finding that Ms.
__________

1
NRS 175.201 provides as follows:
175.201 Presumption of innocence: Conviction of lowest degree of offense. Every person
charged with the commission of a crime shall be presumed innocent until the contrary is proved by
competent evidence beyond a reasonable doubt; and when an offense has been proved against him, and
there exists a reasonable doubt as to which of two or more degrees he is guilty, he shall be convicted only
of the lowest.
113 Nev. 1300, 1318 (1997) Rice v. State
jury finding that Ms. Rice's delay in getting medical treatment for the scalding did not result
in any appreciable detriment to the child and that it could not possibly have resulted in injury
of a substantial magnituderisk of death, loss of a bodily organ or prolonged physical
pain. It is safe to say, given the circumstances of this case, that if Ms. Rice were guilty of
child neglect at all, she would be guilty of gross misdemeanor child neglect and not felony
child neglect. That the jury did not have the opportunity to convict Ms. Rice of the lesser
degree of child neglect is so prejudicial as to call clearly for the reversal of her felony child
neglect conviction.
Apart from the obvious error present in the trial court's failing to instruct on the lesser
degree of child neglect, a momentous error has been committed in this case. This error, which
has been ignored by this court, threatens to put in jeopardy future child neglect convictions,
convictions which, like the conviction in this case, will be judged by federal judicial authority
to be in violation of the federal constitution and in direct contravention of federal cases in
point. The error to which I refer is the failure of the trial court to define and instruct properly
on the mental element of the crime of child neglect, the mens rea.
Mens rea, sometimes referred to in terms of guilty mind, consciousness of criminality
or wrongful purpose is a necessary element of any crime. Ms. Rice cannot be guilty of a
crime simply because she exercised bad judgment in not calling in medical attention for her
child's scald injury; yet that is what this case is all about.
As I will maintain throughout this opinion, Ms. Rice cannot be guilty of a crime unless she
knew or should have known that a delay in calling a doctor was going to cause unjustifiable
injury to her son.
2
As matters stand, Ms. Rice was incorrectly convicted of a crime when, at
most, she was guilty of negligence.
__________

2
Since the judgment was entered in this case, the court has given its attention to the mental element in child
neglect cases. In Smith v. State, 112 Nev. 1269, 927 P.2d 14 (1996), this court pointed out the difference in the
child abuse/neglect statute between the willful abuse crime described in NRS 200.508(1)(a) and the child
neglect crime described in NRS 200.508(1)(b). The court conceded that the statutory definitions of allow' and
permit' . . . are not drafted as clearly as would be preferred and went on to declare the mental state required for
conviction of child neglect under NRS 200.508(1)(b). Smith, 112 Nev. at 1276-77, 927 P.2d at 18. The court
decided to read the two statutory definitions of allow and permit in conjunction and conclude that both
definitions establish the same requirement: a person acts unreasonably and is therefore criminally liable if she
knows or has reason to know of abuse or neglect yet permits or allows the child to be subject[ed] to it. Id.
The foregoing, necessary elaboration of the mental element of child neglect is all that Ms. Rice wanted
presented to the jurynamely, that, as it was put in the Smith case, the court define[] the state of mind required
for a
113 Nev. 1300, 1319 (1997) Rice v. State
a crime when, at most, she was guilty of negligence. The indictment charged that Ms. Rice
neglected . . . to seek appropriate [reasonable and proper] medical treatment. The court
instructed the jury (Instruction No. 15) that neglect' includes negligent treatment and the
negligent . . . care, control and supervision or lacks the subsistence, medical care or other
care necessary for the well-being of the child. This is a negligence case. We must bear in
mind that the difference between mere negligence and criminal misconduct is that in a
negligence case the actor is held civilly liable for failure to perceive danger; whereas, in
criminal cases the actor is held criminally liable for being aware of an impermissible risk and
acting in spite of the danger. There is no charge, nor is there evidence to support a charge,
that Ms. Rice knew of a danger and that she knowingly disregarded a known danger.
When Ms. Rice tried to take the case out of the negligence realm and into the criminal by
asking for an instruction defining the word willfully in terms of a deliberate and knowing
omission as distinguished from mere inadvertence or negligence, the trial court refused the
request and, instead, defined willfully in terms of a mere willingness to commit the act.
Under the court's instruction, Ms. Rice could be held criminally liable just for failing to
perceive a danger in not calling for immediate medical attention, without regard to her
knowledge of the danger that might be inherent in the delay. This, then, is a negligence case,
not a criminal case. Ms. Rice has gone to prison for twenty years for negligence. This is a
violation of Ms. Rice's due process rights under the Fourteenth Amendment of the
Constitution of the United States.
Not long ago the Ninth Circuit Court of Appeals invalidated a Nevada criminal conviction
for child neglect because [n]either the Nevada Supreme Court opinion nor Nevada case law
clearly states the precise mental state required [for a conviction of child neglect]. Martineau
v. Angelone, 25 F.3d 734, 739 n.10 (9th Cir. 1994). The federal appeals court made it very
clear to us that in order to convict for child neglect the state must define the mental state
required for conviction. It has told us that there must be something more than mere parental
negligence and told us that there had to be proof of guilty knowledge or scienter on the part
of a parent before a parent could be held "criminally responsible."
__________
finding of guilt and effectively preclude[] punishment for inadvertent or ignorant acts.
If the jury had been told in this case that Ms. Rice could be held criminally liable only if she knew her child
was being abused and that she consciously permitted this abuse to continue and that she could not be prosecuted
for ignorant acts, she would have received a fair trial and probably would have been found not guilty.
113 Nev. 1300, 1320 (1997) Rice v. State
of a parent before a parent could be held criminally responsible.
In Martineau, a case very much like the one now before us, the Ninth Circuit held that in
cases of delayed medical treatment, parents cannot be held criminally responsible for
knowledge of medical risks which are neither readily apparent nor known to [them].' Id. at
741 (quoting United States v. Robertson, 37 M.J. 432, 440 (C.M.A. 1993) (Glerke, J.,
concurring). As was the case at the time of Martineau, presently, in this state, neither state
statute nor case law defines the mental state required for a conviction of child neglect; and
until such definition is provided, we will continue to face federal intervention under the
constitutional principles which are announced in Martineau. The superficial opinion which
accompanies the affirmance of this conviction invites another federal habeas corpus writ by
reason of the clear violation of Ms. Rice's federal right to due process of law that results from
punishing her criminally for mere negligence and in the absence of the universal requirement
for criminal liability, mens rea, criminal intent.
Ms. Rice was charged with a violation of NRS 200.508. This statute, in addition to
dividing child neglect into two separate crimes, one a gross misdemeanor, the other a felony,
defines the offense in terms of two different kinds of conduct. One crime is committed (under
NRS 200.508(1)(a)) by a person who actively causes a child to suffer unjustifiable pain; the
other crime is committed (under NRS 200.508(1)(b)) by a person who passively permits or
allows a child to suffer unjustifiable pain or to be placed in a situation where the child may
suffer pain. Such an omission must, however, as I have said, be made with knowledge of
[the] medical risks.' Martineau, 25 F.3d at 741 (quoting Robertson, 37 M.J. at 440 (Glerke,
J. concurring)).
Although the indictment charges that during a one-week period (September 14-22, 1992)
Ms. Rice caused or permitted the victim to suffer unjustifiable pain, there is no allegation
or proof that would indicate any culpable conduct on the part of Ms. Rice during this period
other than that she negligently permitted her son to suffer injury because she neglected,
delayed or refused to seek appropriate medical care.
It should be noted early on that Ms. Rice is not charged with having permitted the child's
father to kill the child by inflicting upon the child fatal blunt injuries to the skull and brain.
The State does not blame Ms. Rice for negligently permitting the child's father to beat the
child to death; the State charged and attempted to prove only that Ms. Rice neglected to seek
appropriate medical treatment for three kinds of injuries, namely, (1) malnourishment, (2)
failure to thrive and (3) second degree burns the child received while under the care of the
defendant andJor CODY A.
113 Nev. 1300, 1321 (1997) Rice v. State
burns the child received while under the care of the defendant and/or CODY A. RICE.
It is important to note that it is readily apparent from a reading of this record there was no
attempt to prove that Ms. Rice neglected to seek appropriate medical care to treat the child's
malnourishment. It is clear from the record that the child suffered malnourishment, but only
as a result of a bout with pneumonia and the child's hospitalization for this disease. The child
lost weight while in the hospital, and after recovering from his pneumonia had trouble
digesting his food because of mucus that remained in his stomach as a sequela to the
pneumonia. The record shows that the child had difficulty in gaining weight after his illness
and that a district health nurse, Jeanette O'Brien, made a home visit during this time and
talked to Ms. Rice about the child's nutritional problems. The nurse observed that Ms. Rice
was very good with the baby and very loving and attentive to infant's needs. There is
certainly no evidence during the one-week period charged in the indictment that Ms. Rice
neglected to get appropriate medical attention for the malnutrition.
With regard to the charged failure to thrive, there is no evidence in the record as to what
this term might mean. One of the testifying physicians, Dr. Clark, testified that he was not
qualified to give an opinion as to whether the child had failed to thrive. The other testifying
physician, Dr. Powell, did not testify that the child failed to thrive. Failure to thrive is a
problematical diagnosis, and it is very difficult to trace its etiology. There is no evidence that
any neglect on Ms. Rice's part in seeking appropriate medical treatment, brought about the
failure to thrive syndrome, much less evidence that such neglect caused substantial bodily
or mental harm to the child. The only possible unjustifiable pain that Ms. Rice may have
permitted her child to suffer was that connected with the second degree

[
3
] burns the
child received.
The scalding in question was intentionally inflicted upon the child by the murderer, Cody
Rice. Cody Rice told Ms. Rice that the child had been accidentally scalded while he was
giving the child a bath. When Ms. Rice got home from work that evening, she expressed her
concern about her son and suggested to Cody that they should take him to the hospital for
treatment. Cody would not permit this and ordered Ms. Rice to treat the child for the scald at
home. Ms. Rice testified that at this time she was "terrified" of Cody and that he had
threatened to kill her on a number of occasions.
__________

3
A first-degree burn is one that involves only the outer layer of skin (the epidermis), ordinarily without
blistering. A second-degree burn involves the epidermis and dermis[, ] usually forming blisters. A third-degree
burn involves tissue beyond the skin itself. Stedman's Medical Dictionary 201-02 (5th Unabridged Lawyers' Ed.
1982). As described in the text, the scalding was similar to a severe sunburn.
113 Nev. 1300, 1322 (1997) Rice v. State
the scald at home. Ms. Rice testified that at this time she was terrified of Cody and that he
had threatened to kill her on a number of occasions. The scalding looked pink and much like
a sunburn. Ms. Rice bathed her baby son and dressed the scalded tissue. An independent
witness saw the scalded area on September 18, 1992, and said that it looked like a sunburn.
When the scalding started to blister, Ms. Rice again suggested that they get medical attention
for the child, but Cody exploded, screaming and throwing things. Ms. Rice spent the rest of
the night in fear, holding her baby to her chest all night long. She told Cody that she was
going to take the child to the doctor on the next day no matter what. On that day Cody beat
the child to death.
Now it seems to me that if the child had been suffering from some serious disease that
placed the child in danger of death or permanent physical impairment, it could be argued that
the mother was obliged, at least morally, to risk her own life and to call in medical care in
order to save her child's life; but this was not the case here.
4
It can of course be argued that
the mother exercised poor judgment in not having the scald attended to sooner, but it is
very hard to argue that her treating the boy at home caused the child to "suffer
unjustifiable physical pain," much less "substantial bodily or mental harm" in the form of
a life-threatening situation or the other defining conditions of substantial bodily harm.
__________

4
The majority opinion correctly points out that Ms. Rice's decision to postpone professional treatment of the
scald was because she was afraid of what Cody would do to her if she did not [obey him], especially because
Cody had threatened to kill them all many times.
Dr. Lon Kepit, a clinical psychologist who specializes in these kinds of cases diagnosed Ms. Rice as suffering
from battered woman syndrome. Dr. Kepit had this to say about Ms. Rice:
Here's the important thing. Because she loses sight of the personal boundaries for herself, she also
loses them with Matthew. And really relevant is the fact that she's unable to assess danger accurately.
What is not unusual in these cases where women are abused, is that they truly believe that the child
will not be hurt. * * *
And the other point I think that needs to be made here is, that, many cases leaving a relationship that's
abusive can be life threatening. She was already in a situation, in my professional opinion, that was
life-threatening. There were incidents with Cody with guns and knives and enough violence that she
could have essentially been killed, hurt, maimed.
It is also my professional opinion, not only was she a battered woman, but she was under duress and
imminent danger. . . .
Almost twenty years ago, Dr. Lenore Walker described and defined the battered woman syndrome in her book
The Battered Woman. Dr. Walker has written ten books on the subject of domestic violence, and her term,
battered woman syndrome, is a generally accepted explanation of the psychological impact of the kind of
abuse suffered by Ms. Rice at the hands of Cody Rice. The gist of the syndrome as manifested in this case is Ms.
Rice's inability to assess the danger to her child and her true belief that her child was not going to be harmed.
(See reference to Dr. Kepit's evaluation in the text of this dissent.)
I realize that the battered woman syndrome is just one of a number of theories employed in the social sciences
to explain such apparent paradoxes as battered women's not leaving their batterers and putting their children
under risk of abuse from a violent domestic partner. The syndrome as
113 Nev. 1300, 1323 (1997) Rice v. State
exercised poor judgment in not having the scald attended to sooner, but it is very hard to
argue that her treating the boy at home caused the child to suffer unjustifiable physical pain,
much less substantial bodily or mental harm in the form of a life-threatening situation or
the other defining conditions of substantial bodily harm. It was Cody Rice that caused the
child to suffer unjustifiable physical pain and not Ms. Rice; and there is absolutely no
evidence that any failure on the part of Ms. Rice to bring in professional care for the scald
injury inflicted by the child's father caused the child to suffer any more or any less pain than
that which was intentionally inflicted by the father. Ms. Rice treated the child at home with
unguents and coverings and baby pain-relievers. There is no evidence that a doctor could
have or would have done things differently.
This whole case and Ms. Rice's having to spend twenty years in prison are based, at the
very most, on an error in judgment on her part, an error committed when she decided not to
risk her life in order to have the pre-blister scald injury attended to by a doctor instead of
treating it at home. There is nothing at all to indicate that the child was any the worse off
because of this decision, and certainly nothing to indicate that treating the child at home
caused the child to suffer any harm as a result of Ms. Rice's arguably bad decision, much less
proof that the child suffered substantial bodily or mental harm.
5
__________
delineated and later elaborated by Dr. Walker is based on clinical studies and experimental animal studies of
abuse. See, e.g., Martin Seligman, Helplessness: On Depression, Development and Death 75-106 (1975). The
battered woman syndrome is often accepted by the courts to explain and justify the actions of women who are
accused of crimes. The theory amply explains why Ms. Rice may have delayed her decision to call in
professional care until the baby's back started to blister.

5
Actually, the gross misdemeanor crime is the only crime which the evidence in this case could possibly
support. To be guilty of felony child neglect, Ms. Rice's negligence had to result in substantial bodily harm,
which is defined as 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. NRS 200.060. We must remember that, at most, we are dealing with Ms. Rice's neglect in calling
in professional medical care for the child's scalding. As stated, the child's father beat the child to death,
fracturing his skull, causing brain injury and death. Any substantial risk of death, permanent disfigurement or
impairment of bodily function was entirely attributable to Cody Rice, and no one has suggested that Ms. Rice
had anything at all to do with the brutal killing of her son. The only supportable charge against her is that she did
not treat the scalding in an appropriate manner. The evidence shows that she did what she thought best, that
she treated the child at home with home remedies, dermoblast, vaseline, A&D ointment and pain medication.
Any suffering sustained by reason of Ms. Rice's not calling in professional medical care, if present at all, is
minimal and certainly not of the kind that was life-threatening or threatening to cause serious and permanent
113 Nev. 1300, 1324 (1997) Rice v. State
Having an understanding of the nature of the charges and the factual background of this
case enables us better to understand the injustice of this conviction. This leads me to discuss
further the major error in this case, the constitutional violation of due process that was
committed by the trial court in allowing this woman to be convicted of a crime for, at most,
being neglectful and in having negligently permitted her child to suffer by reason of her
decision to delay medical treatment for a scald injury suffered at the hands of her murdering
husband.
As I have mentioned above (citing Martineau v. Angelone, 25 F.3d 734 (9th Cir. 1994)),
neither the statute nor our case law has, as of yet, has defined the precise mental state
required in child neglect cases. 25 F.3d at 739 n.10. Obviously, the mental state required for
a criminal child neglect conviction has to go beyond mere negligent child supervision, or all
parents would be in jeopardy. It is a rare parent indeed who does not, at some time or another,
fall below the standard of due care expected of a reasonable parent. What this court
should be doing now, and what this court has completely failed to do, is to define the mental
state, the mens rea that is an essential element of the subject crime. Without such definition
the present conviction suffers from the same constitutional infirmities that resulted in the
release of the convicted defendant in Martineau.
As mentioned, Ms. Rice tried, unsuccessfully, to get the trial court to define the requisite
mental element of the charges against her. Ms. Rice requested the trial court to give an
instruction to the jury which reflected the necessity for the State to prove something more
than negligence, more than mere breach of duty. She wanted the court to instruct the jury that
her decision to delay medical attention had to have been made with some kind of guilty
knowledge that delay in seeking professional medical attention for her son would result in
unjustifiable pain. Otherwise put, Ms. Rice sought to have the jury instructed that if her
decision was merely an error in judgment, she could not be convicted of a crime. The trial
court refused the instruction. The trial court should have been guided by Martineau, in which
a Nevada child neglect conviction was invalidated in a case in which it was also charged
(under the same statute as here) that a parent had permitted a child to suffer as a result of a
failure to call in timely medical attention.
__________
impairment of bodily function. Although one witness believed that the scalding and the low body weight might
have contributed to the child's death, it is very clear that the child died as a result of skull fracture and brain
injury inflicted by his father and completely unknown to the mother. If there be any crime committed here it is
violation of NRS 200.508 without substantial bodily harm. At the very least, this conviction should be reduced
to gross misdemeanor child neglect; but I must admit that this would be difficult to do in this case given the
State's failure to charge the only crime that could possibly have been committed in this case.
113 Nev. 1300, 1325 (1997) Rice v. State
ted a child to suffer as a result of a failure to call in timely medical attention. The Martineau
opinion makes it very clear that it is necessary for the state to prove that defendants charged
with child neglect knew (or should have known) that the [child's] injuries were serious
enough to require immediate medical attention, yet did nothing. Id. at 739. The Martineau
court ordered the defendants released on habeas corpus, observing that the state simply did
not prove these facts, namely, that the defendants knew (or should have known) that [the]
injuries were serious enough to require immediate medical attention. Id.
Although the majority thinks that the Martineau habeas corpus writ was [b]ased solely on
a lack of sufficient evidence, the lack of evidence in Martineau related to lack of proof of
the mental element of the crime, the requirement that defendants in child neglect cases must
have known or should have known of the need for immediate medical attention and that they
failed or refused to act on this knowledge. I see the thrust of the Martineau case as being
disapproval by the federal court of Nevada's failure to provide and apply a properly defined
mental state as an element of the crime of child neglect.
If I have read Martineau incorrectly, there are other federal cases that deal even more
directly with the point. For example, in a case that is very suggestive of the present one,
Fabritz v. Traurig, 583 U.S. 697 (4th Cir. 1978), cert. denied sub nom Hopkins v. Fabritz,
443 U.S. 915 (1979), a mother of a three-year-old daughter came home from a trip to find her
daughter ill and covered with bruises. The mother hesitated to get medical care because she
was embarrassed about taking the child to the hospital in that condition; so she treated the
child at home as best she could. After about eight hours the child stopped breathing. She
called an ambulance, but the child died on the way to the hospital. On federal habeas corpus,
the Fourth Circuit held that the conviction violated the due process clause of the Fourteenth
Amendment because:
[T]he evidence is utterly bare of proof of a consciousness of criminality during her
bedside vigil. This may have been an error of judgment, however dreadfully dear, but
there was no awareness of wrongdoing on her part. . . . Without expert medical
knowledge to place her on notice of the fatal nature of the child's illness, she treated her
as best as she knew. The misjudgment was only to the significance of the symptoms
and of the immediacy of the demand for professional care.
583 F.3d at 700.
The majority neglects to discuss the court's failure to instruct the jury that it had to find
not only that there was danger in Ms.
113 Nev. 1300, 1326 (1997) Rice v. State
the jury that it had to find not only that there was danger in Ms. Rice's delay in bringing in
professional help to treat the scalding, but also that Ms. Rice was aware of the danger. Absent
an instruction on the necessity to prove knowledge or awareness of the risk, the jury was free
to bring in a guilty verdict (as it did) based on negligence alone and on the basis of a mere
misjudgment, as mentioned in the Fabritz case.
6
I may be overstressing the point, but I must emphasize that a parent's mere failure to call
the doctor in case of a child's illness or injury, of itself, cannot amount to criminal conduct. It
happens every hour, every day. For criminal liability to be imposed, there must be some
consciousness of criminality, as put in the Fabritz case. All the court required the jury to
find here was that Ms. Rice did not seek medical attention for her scalded son. This is not
enough to support a criminal conviction. Ms. Rice attempted to interject the mental element,
the scienter element, but her instruction was refused by the court.
Ms. Rice tried to persuade the court to define the willfully element of violation of NRS
200.508 in terms of scienter or knowledge that her actions were wrong. The instruction
offered by Ms. Rice was taken verbatim from Robey v. State, 96 Nev. 459, 611 P.2d 209
(1980). Robey taught that the word willful' when used in criminal statutes with respect to
proscribed conduct relates to an . . . omission which is done intentionally, deliberately or
designedly, as distinguished from an . . . omission done accidentally, inadvertently or
innocently. Robey employed such terms as culpable mind and conscious commission of a
wrong to distinguish culpable, criminal misconduct from mere misjudgments and
negligence.
7
It was clear error for the trial court to refuse to instruct on the mental element
of this crime.
__________

6
An even closer case than Fabritz is found in the reports of the Military Court of Appeals. In United States v.
Robertson, 37 M.J. 432 (M.C. 1993), a general court martial conviction was reversed on the ground that a father
who failed to obtain treatment for his son's eating disorder, failed in proof because of lack of evidence that the
father knew and appreciated the magnitude of the child's symptoms. These cases merely confirm the obvious; we
should not be sending people to prison for misjudgments and for merely failing to seek medical attention when
they do not appreciate the magnitude of the risk in not doing so.

7
It may be instructive to draw a parallel here to civil liability for punitive damages in cases of negligence or
neglect. Ms. Rice's conduct in this case would not warrant a punitive damage award, much less criminal
conviction. Punitive damages were denied to the plaintiff in Village Development Co. v. Filice, 90 Nev. 305,
526 P.2d 83 (1974), a case in which there was evidence to show negligence and unconscionable
irresponsibility. Id. at 315, 526 P.2d at 89. Even unconscionable irresponsibility does not constitute the
oppression, fraud or malice, express or implied, necessary to establish the right to punitive damages. Id. at
315, 526 P.2d at 89 (quoting NRS 42.010). The concurring/dissenting opinion in Filice drew a parallel to
Nevada
113 Nev. 1300, 1327 (1997) Rice v. State
court to refuse to instruct on the mental element of this crime. The trial court had the
opportunity to instruct the jury, in accordance with Robey and thus, at last, to define the
precise mental state required for conviction in these kinds of cases. Martineau, 25 F.3d at
739. The trial court, contrary to Robey, defined willfully as meaning simply a purpose or
willingness to commit the act or to make the omission in question. In other words, to be
guilty under this instruction, all Ms. Rice had to do was to be willing
8
to make the
omission to call the doctor to attend to her son's scalding, that is to say, to have made the
conscious decision not to seek professional assistance in treatment of the scald, with or
without knowledge of the danger involved.
9
In sum, then, the majority opinion is at odds with Martineau; and it was constitutional
error for the trial court not to have instructed the jury that Ms. Rice could not be convicted of
a crime unless it found that she "knew or should have known" that a delay in treating her
son's scalding would result in the child's suffering "unjustifiable physical pain or mental
suffering." Ms. Rice cannot stand convicted for a crime just because she did not call the
doctor.
__________
Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973), in which the punitive damages were justified
because the defendant knew that if it continued to spew dust from its cement kiln that damage would ensue and
that it did so not withstanding such knowledge. Filice, 90 Nev. at 321, 526 P.2d at 93 (Thompson, C. J.,
dissenting in part). I would argue that the same kind of principle is involved here and that before punitive
damages or criminal liability could result from Ms. Rice's conduct, there had to be a charge and proof that the
defendant knew . . . that damage would ensue and that she decided not to call a doctor notwithstanding such
knowledge. Moral and criminal culpability presupposes a conscious disregard of a known risk. The jury should
have been instructed along these lines.

8
It is very difficult for me to understand how the jury could have possibly concluded that Ms. Rice acted
voluntarily under these circumstances. She was faced with a sunburn-like scald on her baby's back and a husband
who threatened to kill her if she called the doctor. It is my opinion that, as a matter of law, the trial court's
definition of willfully, even if it were correct, would not apply to this case.

9
In refusing to instruct the jury that willfully refers to some kind of guilty knowledge of the consequences
of delay in treatment, the trial court apparently relied on Childers v. State, 100 Nev. 280, 680 P.2d 598 (1984), a
pre-Martineau case that distinguished child neglect cases from all other criminal cases when it held that in such
cases the mere act or omission created criminal liability and that willfulness as used in the statute referred to a
general intent, thereby relieving the state from having to prove that the defendant knew (or at least should
have known) of the consequences of delay. Martineau, 25 F.3d at 741. The Childers case, wrong on its face,
can be safely ignored in the light of Martineau, which held that under these circumstances a parent cannot be
held criminally responsible for knowledge of medical risks which are neither readily apparent nor known to
[them]. It can be argued, of course, that the pink, sunburned appearance of the baby's back put Ms. Rice on
notice that immediate medical attention was called for; but, the jury had no opportunity to discuss this issue, for
all the jury had to do, under the instructions given by the court, to find Ms. Rice guilty was to conclude that the
child was scalded and that Ms. Rice did not call the doctor. This is wrong on its face.
113 Nev. 1300, 1328 (1997) Rice v. State
crime unless it found that she knew or should have known that a delay in treating her son's
scalding would result in the child's suffering unjustifiable physical pain or mental suffering.
Ms. Rice cannot stand convicted for a crime just because she did not call the doctor. She may
have exercised poor judgment in not calling in professional medical help when she
discovered that her husband had accidentally caused her son to be scalded in the bathtub,
but this is not the same as knowing that her son would suffer unjustifiable pain because she
decided to treat him at home.
Although there are a number of errors in this case, I have stressed two errors in contending
that this conviction must be reversed. The most obvious error is the court's failure to tell the
jury that there were two possible crimes here, the gross misdemeanor and the felony.
10
Ms.
Rice was greatly prejudiced by reason of the jury's not knowing that it could have brought in a
conviction for a lesser offense, based on the facts in evidence.
Still, the main reason why this conviction must be reversed, and the reason of most
concern to me, is that this court has still not defined the precise mental state required in
child neglect cases and has ignored the ruling in the Martineau case relative to the scienter
requirement that a defendant charged with this crime must have known or should have
known that any failure or delay in calling in medical attention was going to result in
unjustifiable pain being suffered by the child. 25 F.3d at 739 n.10. I hate to see this court
ignoring the clear constitutional mandate imposed upon us by the Martineau case; but, even
worse, I hate to see its dereliction in refusing to deal with the problem of what mental state
must be shown in order to establish criminal liability in child neglect cases.
__________

10
By going for a felony in what at most is a gross misdemeanor case, the prosecution has presented a case
with a missing element. The indictment charged that Ms. Rice's negligence or neglect in failing to seek
appropriate medical treatment result[ed] in substantial bodily harm. The court defined substantial bodily
harm as injury which creates a substantial risk of death or which causes serious permanent disfigurement or
prolonged physical pain. It is obvious that all injuries to the boy which resulted in a substantial risk of death or
caused serious permanent disfigurement were inflicted by Cody Rice. Ms. Rice was not charged with inflicting
injuries upon her son. There is nothing to support a conclusion that she permitted her child to suffer substantial
risk of death or permanent disfigurement. The only possible charge would be that Ms. Rice's failure to call the
doctor to attend to the child's burns was the cause of prolonged suffering. Any prolonged suffering by this little
boy was caused by his father who placed him in scalding water and then beat him to death. There is no evidence
that any misjudgment on the part of Ms. Rice was the cause of any additional, much less prolonged, suffering by
the child. There is no evidence that Ms. Rice caused substantial bodily harm to her son. In the absence of this
evidence, the conviction should be set aside.
113 Nev. 1300, 1329 (1997) Rice v. State
criminal liability in child neglect cases. This is a matter that clearly must be addressed by the
court; and this is the principal reason for my dissenting to the majority opinion.
11
__________

11
Although, as said, my principal concern in this case is the court's refusal to deal with Martineau and to
define the required mental element of the crime of child neglect, it is quite apparent that the sentence was
excessive in this case and should be reversed.
The following is the trial judge's evaluation of Ms. Rice:
I don't doubt a word of what all your friends and relatives and employers have said about you. By every
single account from every source, you are a positive, productive, intelligent, able person. You're a person
with good judgment. You're extremely industrious.
In striking contrast to most of the defendants who come before the Court, you don't have any history
of drug abuse, alcohol abuse, unemployment. You have a record every parent would hope for their child:
an A student, a good employee, a participant in a program for gifted and talented students, a manager of
other employees at a young age. In short, a model life.
I cannot even speculate as to why, if the judge believed what he said about Ms. Rice, he would have, contrary
to the recommendation of the presentence report, given Ms. Rice the maximum sentence of twenty years. She
may have to serve as much time as her husband, the man who brutally beat her son to death in her absence.
Defense counsel contends that the judge based his decision to give Ms. Rice twenty years on inadmissible
matters contained in the Cody Rice's presentence report. During argument, the prosecutor made reference to
Cody Rice's PSI. The sentencing judge made a number of statements during sentencing that support defense
counsel's belief that the judge improperly based his sentencing decision on matters contained in Cody Rice's
presentence report. The prosecutor made reference to Cody Rice's PSI (presentence report); and the judge
challenged Ms. Rice's credibility based on material in Cody Rice's presentence reporta report that was not
available to defense counsel. Of most concern to me, however, is the judge's theory that Ms. Rice was a
murderer and that she may actually have collaborated in the killing of her son because she saw her son as an
obstacle to the flourishing of her life with her husband and an obstacle to the happiness in her life. This
theory, expressed by the sentencing judge, is absolutely incompatible with the evidence in this case. The judge
himself saw his theory as being as miserable a picture as one could imagine, but went ahead to suggest that
it may have been Ms. Rice's mindset to say: But suppose you take the son out of the picture . . . . This idea that
Ms. Rice murdered her son, to take him out of the picture because he was an obstacle to her happiness is so
grotesque that it is difficult to understand why the sentencing judge would put such an outlandish thought on the
record, or as he said, put it out on the table.
That the judge considered Ms. Rice to be a murderer is the only explanation of why he would sentence to
twenty years in prison a woman who was charged with delaying the calling of a doctor to treat her son's scalded
back. What is most difficult to explain is how the judge could have believed that this mother was so cruel and
unfeeling toward her own son as to kill him just because he was an obstacle to [her] happiness.
I am pleased to see that the majority agrees that the district judge relied on impermissible evidence during
sentencing and concur in that judgment.
____________
113 Nev. 1330, 1330 (1997) Hern v. Erhardt
JULIE HERN, Formerly Known as JULIE ERHARDT, Appellant, v. ELLIOTT ERHARDT,
Respondent.
No. 27729
November 20, 1997 948 P.2d 1195
Appeal from an order of the district court clarifying child support arrearages, awarding
respondent attorney fees, and establishing a visitation schedule. Eighth Judicial District
Court, Clark County; Robert Gaston, Judge, Family Court Division.
Divorced father filed motion for specified visitation and motion to clarify child support
arrears. Mother filed countermotion to reduce child support arrearages to judgment. The
district court denied award of any child support arrearages, determined mother obstructed
father's visitation, and awarded father attorney fees. Mother appealed. The supreme court held
that: (1) excess of amount paid in social security disability benefits over amount owed as
child support could be credited towards child support arrearages, but (2) credit would not be
available for period before father became disabled.
Carol Menninger, Las Vegas, for Appellant.
Elliott Erhardt, In Proper Person, Las Vegas, for Respondent.
1. Divorce.
Excess amount paid to child, receiving social security benefits on account of obligor parent's disability, over amount owed as child
support could be credited towards divorced father's child support arrearages.
Credit for child support arrearages is generally not based on date child actually begins receiving disability benefits on account of
obligor parent's disability, but rather, parent under child support obligation is entitled to credit for arrearages which arise from time
parent becomes disabled.
Parent under child support obligation must make good faith effort to apply for social security benefits for child as soon as possible
after parent's disabling injury, and where district court concludes that parent did not make such effort, court should not credit child
support arrearages attributable to that delay.
Social security disability benefits credited against disabled parent's child support arrearages are calculated by subtracting amount
of child support owed during period of disability from amount of social security disability benefits dependent child receives.
5. Divorce.
Excess of social security disability benefits payable to dependent child on account of divorced father's disability could
not be applied to compensate for arrearages which accrued prior to onset of father's disability or after its
termination.
child on account of divorced father's disability could not be applied to compensate for arrearages which accrued prior to onset of
father's disability or after its termination.
6. Divorce.
District court's order granting divorced father visitation with minor child from June 16 each year through remainder of summer
vacation was not excessive.
7. Divorce.
Award of attorney fees in divorce proceedings lies within sound discretion of district court.
OPINION
Per Curiam:
In this appeal, appellant contends that the district court erred when it applied social
security disability benefits to offset child support arrearages. The social security disability
benefits were paid to the child because of the respondent father's disability. The child support
arrearages at issue accrued prior to the time that the child began receiving those benefits. We
reverse the order of the district court and remand for the district court to determine whether,
and to what extent, respondent is entitled to a credit.
FACTS
Appellant Julie Hern and respondent Elliott Erhardt were married in Las Vegas in July
1981. The couple had a child, Ethan, in February 1983. In December 1988, a stipulation was
filed and the district court entered an order granting Julie temporary custody of Ethan and
ordering Elliott to pay Julie $150.00 per month as child support. In February 1989, Julie and
Elliott divorced. Under the divorce decree, Julie was awarded custody of Ethan, subject to
Elliott's reasonable visitation, and Elliott was ordered to pay $150.00 per month as child
support. Elliott did not make any monthly child support payments pursuant to the divorce
decree. In 1990, Julie and Ethan moved to Sacramento, California with Julie's new husband.
In either 1989 or 1991, Elliott became disabled and began receiving social security
disability benefits. In September 1991, Julie filed a petition in Sacramento Superior Court
under the Uniform Reciprocal Enforcement of Support Act (URESA), which alleges that
child support arrearages from February 1989, the date the divorce decree was entered, until
June 1991 amounted to $4,350.00. In June 1992, because of Elliott's disability, Julie began
receiving social security disability benefits as Ethan's representative payee.1 The first
check included a lump sum payment which encompassed benefits from June 1991.
Ethan's representative payee.
1
The first check included a lump sum payment which
encompassed benefits from June 1991.
In April 1994, a URESA Master's report and order was entered in district court in Clark
County, Nevada, which provided that Elliott owed $8,169.00 in child support arrearages
(which included the $4,350.00 for child support due between February 1989 and June 1991)
and ordered him to pay $50.00 per month on that sum. The record also contains a July 22,
1994 letter to Elliott from a Cody, Wyoming social security office. The letter indicates that
Elliott's social security disability provided Julie, as Ethan's representative payee, with the
following benefits: $8,457.00 in 1992; $5,580.00 in 1993; and $477.00 per month in 1994.
The letter also provides, Entitlement 05/91. Paid to mother. Thus, it appears that Ethan's
entitlement to disability benefits began in May 1991.
On October 4, 1994, Elliott filed, in district court in Clark County, Nevada, a motion for a
change of primary physical custody or in the alternative specified visitation, and a motion to
clarify support arrears. Elliott argued that he was not in arrears in child support because the
social security disability benefits Julie received for Ethan since May 1991 exceeded the total
amount he owed for child support. Elliott also argued that Julie disappeared with Ethan
directly after the divorce decree was entered without leaving Elliott a forwarding address or
telephone number, and that Julie had fraudulently obtained welfare benefits in California.
Julie filed an opposition and a countermotion to transfer jurisdiction to California. Julie
stated that she moved to California one year after the divorce, enrolled the Nevada divorce
decree in California as a foreign judgment, and initiated proceedings to collect child support
arrearages.
2
Julie contended that the district court should dismiss Elliott's motion and defer to
the California court's jurisdiction, and that she should retain primary physical custody of
Ethan. Julie also requested that child support arrearages be reduced to judgment.
Elliott opposed Julie's countermotion to transfer jurisdiction to California and contended
that he owed no child support arrearages. He argued that he became disabled in 1987, began
receiving social security disability benefits in 1989, and owed no arrearages because social
security disability benefits were paid to Julie as Ethan's representative payee.
__________

1
Ethan has his own entitlement to social security benefits because Elliott is disabled and receives social
security disability benefits. See 42 U.S.C. 402(d)(1)(1994).

2
On September 22, 1994, the Nevada divorce decree was domesticated in California. The Sacramento County
Superior Court entered judgment in favor of Julie in the amount of $13,250.00.
arrearages because social security disability benefits were paid to Julie as Ethan's
representative payee.
On December 1, 1994, at the hearing on Elliott's motions and Julie's countermotion, Elliott
withdrew his motion for change of primary physical custody. The district court decided that it
had jurisdiction to consider the matter, and stated that social security disability benefits could
be applied to pay child support arrearages. The district court ordered counsel for the parties to
establish a visitation schedule and ordered Elliott to suspend payments towards arrearages.
On February 1, 1995, a status hearing was held. In an order filed June 29, 1995, the district
court found that Julie received the following amounts in social security disability benefits as
Ethan's representative payee: $8,457.00 in 1992 (including a lump sum payment which
included benefits from July 1991); $5,580.00 in 1993; and $5,724.00 in 1994. The district
court also found that child support arrearages reduced to judgment through URESA totaled
$8,169.00 (which included $4,350.00 in child support arrearages which accrued between
1989 and 1991). The district court concluded that for 1992, 1993 and 1994, Julie received for
Ethan's benefit $10,237.00 in excess of Elliott's child support obligation. The district court
subtracted the amount of child support arrearages owed from 1989 through 1991 from the
amount paid in social security disability benefits, concluding that Julie was overpaid by
$6,087.00.
3
The district court concluded that to award Julie arrearages in addition to the social security
disability benefits would constitute double enrichment, which, according to the court, was
contrary to fairness and equity. The district court recognized Julie's argument that the social
security disability benefits should not be used to offset child support payments and arrearages
because Julie was required to pay taxes on those benefits. Nonetheless, the district court
concluded that Elliott was no longer obligated to pay any child support because the social
security disability benefits exceeded the amount Elliott owed as child support. The district
court further concluded that if social security disability benefits were stopped, the parties
should return to court.
__________

3
We are uncertain how the district court calculated that Julie received for Ethan's benefit $10,237.00 in
excess of Elliott's child support obligation, and that Julie was overpaid by $6,087.00. According to the figures
the district court used to determine the amount that Julie received in disability benefits for Ethan, Julie received
a total of $19,761.00. Subtracting the amount of arrearages reduced to judgment through URESA ($8,169.00)
from the amount of disability benefits received between 1992 through 1994 ($19,761.00), we arrive at
$11,592.00. The discrepancy between our calculations and those of the district court may be because the district
court did not include all social security disability benefits, or included additional arrearages.
benefits were stopped, the parties should return to court. Finally, the district court concluded
that Julie had obstructed Elliott's right to visitation with Ethan.
The district court awarded Elliott $677.50 in attorney fees, from which was already
deducted $72.50 that Elliott owed Julie for half of the cost of an airline ticket for Ethan's
visitation. Julie appealed.
4
DISCUSSION
Child support arrearages
Julie contends that Elliott owes $4,350.00 for unpaid child support from February 1989,
the date Julie and Elliott were divorced, until May or June 1991, when Julie began receiving
social security disability benefits as Ethan's representative payee. Julie argues that the amount
of social security disability benefits which exceeds the amount of child support may not be
credited against Elliott's support obligation which accrued prior to the time that Julie began
receiving benefits as Ethan's representative payee. In other words, Julie argues that Elliott's
child support arrearages amounted to $4,350.00 prior to the time that she began to receive
social security disability benefits on Ethan's behalf, and that the district court erred in
crediting those benefits against this $4,350.00 in child support arrearages.
5
Whether the excess of the amount paid in social security disability benefits over the
amount owed as child support may be credited towards child support arrearages is an issue of
first impression in Nevada. This court has previously discussed whether social security
benefits may be applied to pay child support, but we did not decide the issue because it was
not squarely before us. See Bailey v. Bailey, 86 Nev. 483, 471 P.2d 220 {1970); Heppner v.
McCombs, S2 Nev. S6
__________

4
The district court's June 29, 1995 order provides, IT IS FURTHER ORDERED that this Court grants a
54(b) Judgment at the request of Plaintiff's counsel so that the matter may be appealed to the Supreme Court.
This purported NRCP 54(b) certification is improper because the district court did not make an express
determination that there was no just cause for delay. See Aldabe v. Evans, 83 Nev. 135, 425 P.2d 598 (1967).
However, this court has jurisdiction to review the order of the district court pursuant to NRAP 3A(b). See Burton
v. Burton, 99 Nev. 698, 669 P.2d 703 (1983) (special order after final judgment).

5
After Julie filed her opening brief on appeal, this court ordered that Elliott should be represented by counsel
and extended the filing deadlines for briefing to give Elliott time to retain counsel and file an answering brief. In
response to our order, we received a letter from Elliott in which he stated that he could not afford an attorney.
Therefore, this appeal was submitted upon the opening brief and the record.
220 (1970); Heppner v. McCombs, 82 Nev. 86, 411 P.2d 123 (1966).
6
[Headnotes 1-4]
We conclude that the excess of the amount paid in social security disability benefits over the amount owed as child support may be
credited towards child support arrearages, with certain limitations. The critical time period with respect to applying social security disability
benefits as a credit against child support arrearages is when the parent under a support obligation becomes disabled, not, as Julie contends,
when the dependent child begins receiving social security disability benefits. The parent under the support obligation is entitled to a credit
against an arrearage which arises after the parent becomes disabled and because of a lapse in time between the onset of the disability and
the date on which social security benefits are paid for the child. Of course, the parent under the support obligation must make a good faith
effort to apply for benefits for the child as soon as possible after the disabling injury. In a case where the district court concludes that the
parent did not make such an effort, the court should not credit the arrearages attributable to that delay. Where a credit is allowed, the
amount of the credit is calculated by subtracting the amount of child support owed during the period of disability from the amount of social
security disability benefits the dependent child receives. See Newman v. Newman, 451 N.W.2d 843, 845 (Iowa 1990) (where arrearage in
child support occurs because of the time lag between the onset of the disability of the obligor parent and the beginning of social security
disability benefits to the children, the disabled parent should be allowed a credit toward the arrearage based on the assumption that the
nonpayment resulted from the disability); Potts v. Potts, 240 N.W.2d 680, 682 (Iowa 1976) (excess of social security disability benefits
credited against arrearage occurring between the time of the disabling injury and the time benefits began);
McCloud v. McCloud, 544 So. 2d 764, 767 {La. Ct. App.
__________

6
In Heppner v. McCombs, 82 Nev. 86, 411 P.2d 123 (1966), this court decided that because a will made no express provision that
social security benefits supplanted a deceased father's child support obligation, the father's estate was obligated to pay child support until
the children reached majority. In a footnote, this court noted, [w]e make no determination, however, whether Social Security benefits are a
fund which the testator, by expressed intent, could substitute for an existing obligation for child support. Heppner, 82 Nev. at 89 n.1, 411
P.2d at 125 n.1.
Subsequently, in Bailey v. Bailey, 86 Nev. 483, 471 P.2d 220 (1970), this court determined that, in the absence of a specific statement in
a divorce decree that a child support obligation survived the death of the father, the decree did not bind the father's estate. Recognizing the
host of unanswered questions that arise when a decedent's estate is ordered to pay child support, the court left the following question
unanswered: Are benefits accruing to the child from the father's death, such as social security payments, . . . in addition to or a credit
against the support payments? Bailey, 86 Nev. at 488, 471 P.2d at 223.
credited against arrearage occurring between the time of the disabling injury and the time
benefits began); McCloud v. McCloud, 544 So. 2d 764, 767 (La. Ct. App. 1989) (disabled
former husband allowed credit against child support arrearages for social security benefits
received by former wife on behalf of the minor child because of father's disability); Frens v.
Frens, 478 N.W.2d 750, 751 (Mich. Ct. App. 1991) (lump-sum payment of social security
disability benefits credited toward arrearage in child support payments which accumulated
after the disability); Potter v. Potter, 404 A.2d 352, 356 (N.J. Super. 1979) (lump-sum social
security disability benefits satisfied father's outstanding child support obligation because
father was unable to work due to the disability during the period for which the child support
obligation accrued).
[Headnote 5]
Thus, Elliott may be entitled to have the excess of the social security disability benefits applied to an arrearage which accrued after the
onset of his disability. The excess of social security disability benefits may not, however, be applied to compensate for arrearages which
accrued prior to the onset of the disability or after its termination. See Potts, 240 N.W.2d at 682 (no credit may be given after the disability
ends); Frens, 478 N.W.2d at 751 (no credit for arrearages accumulating after the divorce and prior to the disabling injury); Children &
Youth Services v. Chorgo, 491 A.2d 1374, 1379 (Pa. Super. Ct. 1985) (when support payments are not made prior to the start of the
disability, any excess in the benefits over the amount needed for current support cannot be applied to arrearages).
In the instant case, the district court did not make a finding of fact with respect to the date that Elliott became disabled. There is
evidence in the record that Elliott was disabled in 1987 or 1989. Elliott stated in his reply to Julie's opposition to his motion for a change of
custody and to clarify support arrears that he was disabled in 1987. If Elliott was disabled in 1987, then all of the arrearages accrued after
the onset of Elliott's disability. However, Elliott argued before the district court and Julie acknowledges in her opening brief on appeal that
Elliott received approximately $700.00 per month in social security disability benefits beginning in 1989. If Elliott was disabled in 1989,
then, some, if not all of the arrearages accrued after the onset of Elliott's disability.
If Elliott became disabled in 1991, then child support arrearages which accrued between February 1989, the date the divorce decree
was entered, and the time that Elliott became disabled in 1991 accrued prior to the onset of the disability. If this is the case, then the district
court erred in crediting the excess of the social security disability benefits Julie received for Ethan to these arrearages.
social security disability benefits Julie received for Ethan to these arrearages. On remand, the
district court shall determine the date of Elliott's disability in order to determine whether, and
to what extent, Elliott is entitled to a credit against the child support arrearages.
Visitation
Julie contends that the district court's order regarding visitation, that Ethan be with Elliott
from June 16 each year through the remainder of summer vacation, was excessive. As
support, Julie cites Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991), for the
proposition that a one-month visitation period is sufficient to maintain the bond between the
child and the noncustodial parent.
[Headnote 6]
Schwartz, however, does not stand for the proposition that a one-month period is sufficient for visitation. In Schwartz, this court
affirmed a decree which limited a mother's visitation to one month where the mother had been hospitalized for depression, attempted
suicide, and coached the couple's son into making false accusations against the father and another person that they sexually abused him.
This court recognized that a one-month period may be insufficient and could be expanded:
Although a one-month summer visitation period is less than the period requested by [the mother], prospects exist for expanding
the visitation if the current schedule remains free of recurrent maternal misconduct and proves beneficial to the children.
Id. at 386, 812 P.2d at 1273. Moreover, with respect to visitation, each case must be decided according to its unique circumstances. Here,
we conclude that the district court's order concerning Elliott's visitation was not excessive.
7

__________

7
At the time the order in the instant case was filed, NRS 125A.290 provided that a district court's order establishing visitation must
sufficiently define the visitation such that a parent would be able to rely on the order to enforce the right to visitation. See 1993 Nev. Stat.,
ch. 516, 2 at 2137. NRS 125A.290 was subsequently amended. See 1995 Nev. Stat., ch. 468, 2 at 1493; 1995 Nev. Stat. ch. 610, 2 at 2289.
We note that the district court's order in the instant case defined the right of visitation with sufficient particularity. The order awarded
Elliott the following visitation: (1) the first week of Christmas vacation in odd-numbered years and the second week of Christmas vacation
in even-numbered years; (2) Easter vacation; and (3) June 16 each year until the end of summer vacation. The order also specified the days
that the visitation was to begin and how travel arrangements were to be made. During the summer visitation with Elliott, the district court
ordered that Julie would have visitation on the fifth weekend. Thus, the district court's visitation order complies with the pertinent statutory
authority.
Attorney fees
Last, Julie contends that the district court erroneously awarded $677.50 in attorney fees to
Elliott. Julie argues that because the district court erred on the issues of whether she was
entitled to arrearages and whether she obstructed Elliott's right to visitation, the fee award
should be reversed on appeal. Julie cites no authority in support of her contention.
[Headnote 7]
The award of attorney fees in divorce proceedings lies within the sound discretion of the district court. See Sprenger v. Sprenger, 110
Nev. 855, 861, 878 P.2d 284, 288 (1994) (citing Schwartz, 107 Nev. at 386, 812 P.2d at 1273). It appears that the district court based its
award of attorney fees to Elliott on the ground that Elliott did not owe Julie any child support arrearages, and was therefore the prevailing
party. See NRS 18.020. Because we believe that the district court may have applied the excess of social security disability benefits towards
child support arrearages which accrued prior to the commencement of Elliott's disability, we reverse that part of the district court's order
awarding attorney fees. On remand, based on the date of Elliott's disability, the district court may determine whether Elliott is entitled to an
award of attorney fees.
CONCLUSION
For the reasons stated above, we reverse the order of the district court and remand this matter for proceedings consistent with this
opinion.
8
____________
113 Nev. 1338, 1338 (1997) State, Dep't Mtr. Veh. v. Dist. Ct.
SAFETY, Petitioner v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Clark, and THE HONORABLE
SALLY LOEHRER, District Judge, Respondents, and KURT HERMANN WOLF,
Real Party in Interest.
No. 28427
November 20, 1997 948 P.2d 261
Original petition for a writ of prohibition challenging an order of the district court striking
petitioner's peremptory challenge.
__________

8
The Honorable Miriam Shearing, Chief Justice, voluntarily recused herself from participation in the decision
of this appeal.
Department of Motor Vehicles (DMV) sought writ of prohibition to prevent judge from
presiding over driver's petition for judicial review of DMV's suspension of his license
following DMV's preemptory challenge against judge. The supreme court held that: (1) judge
had no authority to order clerk to transfer case back to her after it had been reassigned
following preemptory challenge to judge; (2) once clerk reassigned cause, judge had no
jurisdiction to rule on timeliness of filing of preemptory challenge; and (3) neither setting of
security nor driver's filing opening brief made matter contested for purposes of statute
governing time to assert preemptory challenge to judge.
Petition granted.
Frankie Sue Del Papa, Attorney General, and Laurel A. Duffy, Deputy Attorney General,
Carson City, for Petitioner.
John G. Watkins, Las Vegas, for Real Party in Interest.
1. Judges.
Judge had no authority to order clerk to transfer case back to her after it had been reassigned following preemptory challenge
to judge. SCR 48.1(6).
2. Judges.
Original judge retains jurisdiction to determine whether challenge to preemptory challenge is timely until court clerk reassigns
case, but once case has been reassigned, challenged judge is divested of all jurisdiction, and judge to whom case is reassigned
must resolve issue of timeliness. SCR 48.1.
3. Judges.
Judge did not make any ruling on a contested matter, and thus, judge could be subject of preemptory challenge, although
judge exercised discretion in setting security at $100, where parties stipulated to stay in proceedings pending resolution of writ of
prohibition. NRS 233B.140(3); SCR 48.1(5).
4. Judges.
Permitting Department of Motor Vehicles (DMV) to file peremptory challenge to judge after driver filed his opening brief did
not violate rule prohibiting filing preemptory challenge against judge who has commenced hearing any contested matter in action.
NRS 233B.140(3).
5. Prohibition.
Petitions for extraordinary writs, such as writ of prohibition, are addressed to sound discretion of court.
OPINION
Per Curiam:
FACTS
On December 8, 1995, real party in interest Kurt Hermann Wolf filed a petition for judicial
review of the revocation of his driver's license by the Department of Motor Vehicles
{"DMV"). Mr. Wolf and the DMV agreed to stay the revocation pending a decision on the
petition; consequently, on December 14, 1995, they submitted to the district court a joint
stipulation and order for stay.
driver's license by the Department of Motor Vehicles (DMV). Mr. Wolf and the DMV
agreed to stay the revocation pending a decision on the petition; consequently, on December
14, 1995, they submitted to the district court a joint stipulation and order for stay. Judge Sally
Loehrer signed the order and filled in blank spaces setting security for issuance of the stay at
$100.
On February 23, 1996, Mr. Wolf filed his opening brief in the district court. On March 14,
1996, the DMV filed a peremptory challenge against Judge Loehrer. Then, on March 29,
1996, after the court clerk had reassigned the case to another department, Mr. Wolf moved to
strike the peremptory challenge and noted in its caption that Judge Loehrer would be hearing
the motion. After the DMV advised the court clerk that Judge Loehrer should not hear the
motion, given the prohibition of SCR 48.1(6)
1
, the clerk authorized transfer of the hearing to
the department to which the case had been reassigned. Judge Loehrer subsequently directed
the clerk's office to transfer the hearing back to her department and advised the DMV of the
change.
On April 10, 1996, Judge Loehrer rejected the DMV's argument that she lacked
jurisdiction to preside over the hearing and granted the motion to strike on the basis that the
setting of the bond amount, though not contested, involved an exercise of discretion that
rendered the peremptory challenge untimely. On April 29, 1996, following entry of the court's
written decision and order striking the peremptory challenge, the DMV filed this petition for
a writ of prohibition preventing Judge Loehrer from presiding over this case. This court
stayed the district court proceedings pending resolution of this petition.
DISCUSSION
[Headnote 1]
The DMV contends Judge Loehrer did not have jurisdiction to strike the peremptory challenge because SCR 48.1(6) prohibited her
from directing the court clerk to transfer the motion back to her for consideration. Relying on Nevada Pay TV v. District Court, 102 Nev.
203, 719 P.2d 797 (1986), Mr. Wolf contends Judge Loehrer had jurisdiction to determine whether the challenge was timely. He argues
SCR 48.1(6) simply specifies the procedure for reassigning cases.
In Nevada Pay TV, this court held that a judge against whom a peremptory challenge is filed retains jurisdiction to
determine whether the challenge is timely.
__________

1
SCR 48.1(6) reads: The judge against whom a peremptory challenge is filed shall not contact any party or the attorney representing
any party, nor shall the judge direct any communication to the clerk of the district court with respect to reassignment of the case in which
the peremptory challenge was filed.
peremptory challenge is filed retains jurisdiction to determine whether the challenge is timely.
During the time at issue in that case, SCR 48.1(6) made the challenged judge responsible for
transferring the case. SCR 48.1 has since been amended, however; now, subsection (2) makes
the clerk of the court responsible for reassigning the case within 2 days after a peremptory
challenge is filed, and subsection (6) provides [t]he judge against whom a peremptory
challenge is filed shall not contact any party or the attorney representing any party, nor shall
the judge direct any communication to the clerk of the district court with respect to
reassignment of the case in which the peremptory challenge was filed. Under the plain
language of subsection (6), Judge Loehrer had no authority to order the clerk to transfer the
case back to her after it had been reassigned.
[Headnote 2]
The change in procedure wrought by the amendment of SCR 48.1 supersedes Nevada Pay TV, but it does not specify which judge has
jurisdiction to determine the timeliness of a peremptory challenge. We conclude that under the new rule, the original judge retains
jurisdiction to determine whether the challenge is timely until the court clerk reassigns the case. Once the case has been reassigned,
however, the challenged judge is divested of all jurisdiction, and the judge to whom the case is reassigned must resolve the issue of
timeliness. In this case, Judge Loehrer did not have jurisdiction to consider the issue of timeliness because the clerk reassigned the case
before Mr. Wolf filed his motion to strike the peremptory challenge.
[Headnote 3]
The DMV also contends there was no basis for granting the motion to strike. SCR 48.1(5) provides [a] notice of peremptory challenge
may not be filed against any judge who has made any ruling on a contested matter or has commenced hearing any contested matter in the
action. NRS 233B.140(3), governing the procedure for stay of a final agency decision in a contested case, requires the petitioner to
provide security before the court may issue a stay. The DMV asserts Judge Loehrer did not rule on a contested matter even though she
exercised discretion in setting the security amount for the stipulated stay. Mr. Wolf notes the parties did not agree on the amount of security
that would be required, but he does not assert the matter was contested. Instead, he equates any exercise of discretion with a ruling on a
contested matter and argues a peremptory challenge cannot be filed thereafter. Neither logic nor case law supports that interpretation of
SCR 48.1(5).
In State ex rel. McMahan v. District Court, 78 Nev. 314, 371 P.2d S31 {1962), this court considered whether the
holding of a pre-trial hearing necessarily constituted the hearing of a contested matter so as to prevent a party
from later filing an affidavit of prejudice under NRS 1.230{5).
P.2d 831 (1962), this court considered whether the holding of a pre-trial hearing necessarily
constituted the hearing of a contested matter so as to prevent a party from later filing an
affidavit of prejudice under NRS 1.230(5). We concluded it did not. No contested matter was
heard in the pre-trial hearing; the court's pre-trial order simply memorialized the parties'
agreements, admissions and stipulations. In reaching our determination, we relied upon State
ex rel. Kline v. District Court, 70 Nev. 172, 264 P.2d 396 (1953), which held there had been
no contested hearing even though the parties had appeared at a hearing to show cause why a
temporary injunction should not be issued and stipulated orders had subsequently been
entered.
Similarly, in this case, nothing was contested; the parties stipulated to the stay. The judge
was required by statute to set security, but the amount was not a contested matter. Thus,
although Judge Loehrer exercised discretion in setting the amount at $100, she did not make
any ruling on a contested matter.
[Headnote 4]
Mr. Wolf asserts the challenge was also untimely because it was brought after he filed his opening brief, thereby commencing the
contested proceeding. Citing Smith v. District Court, 107 Nev. 674, 818 P.2d 849 (1991), he argues the policy underlying SCR 48.1
requires the presentation of peremptory challenges before contested proceedings have commenced so that a party cannot disqualify a judge
who had made an unfavorable ruling. Mr. Wolf's generalization is too broad. Smith reiterates the rule that litigants may not file a
peremptory challenge against a judge who has heard a contested matter. As previously noted, however, Judge Loehrer did not hear a
contested matter. Permitting the DMV to file a peremptory challenge after the judge set the amount of security for the stipulated stay at
$100 and after Mr. Wolf filed his opening brief violates neither the letter nor the purpose of the rule, which is to keep parties from testing
the waters, then challenging the judge if rulings are not in accord with their hopes. See Smith, 107 Nev. at 678, 818 P.2d at 852. Because
Judge Loehrer had not ruled on any contested matter, the peremptory challenge was timely and should not have been stricken.
[Headnote 5]
A writ of prohibition may issue to arrest the proceedings of a district court exercising its judicial functions, when such proceedings are
in excess of the jurisdiction of the district court. NRS 34.320. Petitions for extraordinary writs are addressed to the sound discretion of the
court. State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983). A writ of prohibition may issue only when
there is no plain, speedy, and adequate remedy at law.
prohibition may issue only when there is no plain, speedy, and adequate remedy at law. NRS
34.330. That is the case here.
Accordingly, we grant this petition for a writ of prohibition. The clerk of this court shall
forthwith issue a writ of prohibition preventing Judge Loehrer from presiding over this case.
In light of this opinion, we vacate in its entirety our order staying all proceedings in the
district court.
____________
113 Nev. 1343, 1343 (1997) Smith v. District Court
ALLEN SMITH and JOANNE MacDOUGALL, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for The County of Clark,
and THE HONORABLE JOSEPH T. BONAVENTURE, District Judge,
Respondents, and HO MING CHANG, Real Party in Interest.
No. 27751
December 17, 1997 950 P.2d 280
Original petition for writ of mandamus or prohibition.
Passenger brought personal injury action, arising out of automobile accident, against driver
of car she was in and driver and owner of other car. Driver of passenger's car filed
cross-claim and answer. The district court denied motion by driver and owner of other car to
dismiss cross-claim. Driver and owner of other car petitioned for writ of mandamus or
prohibition. The supreme court held that: (1) document asserting driver's cross-claim for
personal injuries against co-defendants was not a pleading and was not properly filed, and (2)
mandamus was appropriate remedy.
Petition for writ of mandamus granted.
Pearson and Patton, Las Vegas, for Petitioners.
Kenneth A. Cardone, Las Vegas, and Robert M. Ebinger, Las Vegas, for Real Party in
Interest.
1. Mandamus.
Although supreme court generally will not consider writ petitions that challenge orders of trial court denying motions to dismiss or
motions for summary judgment, it will continue to exercise its discretion with respect to certain petitions where no disputed factual
issues exist and, pursuant to clear authority under statute or rule, trial court is obligated to dismiss action or where important issue of
law requires clarification; interests of judicial economy will remain primary standard by which supreme court exercises its discretion.
2. Pleading.
The only pleadings allowed are complaints, answers and replies. NRCP 7.
3. Pleading.
A claim is not a pleading but is a demand as one's own or as one's right; such a demand, to be legally cognizable, must be asserted
in a pleading.
4. Pleading.
Counterclaims and cross-claims are types of claims, not types of pleadings. NRCP 7.
5. Pleading.
Counterclaims and cross-claims must be set forth in pleadings authorized by rules of civil procedure, because no other pleading
shall be allowed. NRCP 7.
6. Pleading.
Document asserting defendant's cross-claim for personal injuries against co-defendants was not a pleading, and was not properly
filed, as it should have been included in defendant's answer. NRCP 7.
7. Mandamus.
Mandamus was appropriate remedy for trial court's failure to dismiss defendant's improper personal injury cross-claim against
co-defendants, as it appeared that trial court did not evaluate motion to dismiss under proper standard of law and trial court may have
had duty to strike cross-claim, in which case appeal following final judgment would be inadequate remedy, because not only would
co-defendants have to defend defendant's cross-claim, defendant's claim would likely impact resolution of plaintiff's claim against
co-defendants.
OPINION
Per Curiam:
This original petition for a writ of mandamus or prohibition challenges an order of the
district court denying a motion to dismiss a cross-claim for failure to serve the cross-claim
within 120 days from the date it was filed.
We have previously stated that we will not exercise our discretion to consider writ
petitions that challenge orders of the district court denying motions to dismiss or motions for
summary judgment. State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338
(1983). We adopted this policy because very few writ petitions warrant extraordinary relief,
and this court expends an enormous amount of time and effort processing these petitions. Id.
at 361-62, 662 P.2d at 1340.
[Headnote 1]
Nevertheless, we have allowed a very few exceptions where considerations of sound judicial economy and administration militated in
favor of granting such petitions. See, e.g., State v. Babayan, 106 Nev. 155, 176, 787 P.2d 805, 819 (1990) (granting a writ of mandamus
dismissing an indictment to prevent a gross miscarriage of justice").
miscarriage of justice). Although we reaffirm the general rule of Thompson, this court will
continue to exercise its discretion with respect to certain petitions where no disputed factual
issues exist and, pursuant to clear authority under a statute or rule, the district court is
obligated to dismiss an action.
1
Additionally, we may exercise our discretion where, as here,
an important issue of law requires clarification. The interests of judicial economy, which
inspired the Thompson rule, will remain the primary standard by which this court exercises its
discretion.
The underlying case arises from an automobile accident that occurred on June 17, 1993.
Linda Lee was a passenger in a car driven by real party in interest Ho Ming Chang. The other
car involved in the collision was driven by petitioner Allen Smith. Petitioner Joanne
MacDougall was the owner of the car driven by Smith.
On March 27, 1995, Lee filed a complaint in district court against petitioners and Chang.
The complaint alleged that Lee had been injured in the accident mentioned above, and that
petitioners and Chang were responsible for her injuries.
On or about May 3, 1995, Chang, acting through his attorney, Robert M. Ebinger, filed a
document in the district court entitled cross-claim. This purported cross-claim named
petitioners as defendants, and alleged that petitioners were responsible for Chang's personal
injuries sustained in the accident. Attorney Ebinger did not immediately serve a copy of this
cross-claim on petitioners.
Thereafter, on May 24, 1995, Chang, acting through a different attorney, Kenneth A.
Cardone, filed an answer to Lee's complaint. On June 17, 1995, the statute of limitations ran
on Chang's personal injury claim. NRS 11.190(4)(e). Chang's purported cross-claim for his
own personal injuries had not yet been served on petitioners.
2
The parties then selected an arbitrator. One of Chang's attorneys, Cardone, participated in
the selection process, but Chang's other attorney, Ebinger, did not. The arbitrator scheduled
an early arbitration conference for September 6, 1995. It was at this conference that
petitioners first learned that Chang had other counsel, and that Chang was asserting a claim
against them based on his own personal injuries.
__________

1
For example, this court may exercise its discretion to review decisions of law regarding the failure to serve
process in accordance with NRCP 4(i), the mandatory dismissal rule of NRCP 41(e), and the failure to timely
substitute a party following a suggestion of death pursuant to NRCP 25(a)(1).

2
Through Cardone, Chang also asserted a separate cross-claim against petitioners for contribution and
indemnity, and petitioners asserted a cross-claim against Chang for contribution and indemnity. Pursuant to
NRCP 7(a), these cross-claims were properly asserted within the answers and are not at issue in this proceeding.
counsel, and that Chang was asserting a claim against them based on his own personal
injuries.
Subsequently, on September 6, 1995, Ebinger served Chang's cross-claim on petitioners by
mailing a copy of the document to petitioners' counsel. This mailing took place 126 days after
the cross-claim was filed in district court.
3
On September 18, 1995, petitioners moved the
district court to dismiss Chang's cross-claim. Petitioners argued that the cross-claim was not
served within 120 days from the date it was filed as required by NRCP 4(i), and that Chang
did not have good cause for the delay in service. Chang opposed the motion, and on October
27, 1995, the district court denied the motion without any discussion. This petition followed.
In this court, petitioners argue that Chang's cross-claim must be dismissed because it was
not served within 120 days from the date it was filed as required by NRCP 4(i). Chang
counters that his cross-claim is not governed by NRCP 4(i). According to Chang, NRCP 4(i)
applies only to original complaints, and other pleadings must be served pursuant to NRCP 5.
Thus, Chang asserts that since there are no time limits for service in NRCP 5, his cross-claim
could be served at any time on counsel for an opposing party. We conclude that both parties'
arguments are incorrect because the arguments are based on a fundamental misunderstanding
of the difference between a pleading and a claim.
[Headnotes 2-4]
NRCP 7(a) sets forth a list of the pleadings that are permissible in a civil action in Nevada, as follows:
(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a
cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned
under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be
allowed, except that the court may order a reply to an answer or a third-party answer.
(Emphasis added.) Thus, the only pleadings allowed are complaints, answers and replies. A claim is not a pleading; it is a demand as one's
own or as one's right. Black's Law Dictionary 224 (5th ed. 1979). Such a demand, to be legally cognizable, must be asserted in a pleading.
Counterclaims and cross-claims are types of claims, not types of pleadings.
__________

3
The parties dispute the effective date of service, but this issue is not germane to the petition before us.
This construction of NRCP 7(a) is supported by other rules of civil procedure. For
example, NRCP 8 states that [a] pleading which sets forth a claim for relief, whether an
original claim, counterclaim, cross-claim, or third-party claim, shall contain . . . . [the
pleader's] demand for judgment for the relief to which he deems himself entitled. Thus, a
claim, however designated, must be set forth in a pleading. Similarly, NRCP 13(a) begins
with the phrase [a] pleading shall state as a counterclaim any claim, and NRCP 13(g)
begins with the phrase [a] pleading may state as a cross-claim any claim.
[Headnote 5]
Counterclaims and cross-claims must be set forth in pleadings authorized by NRCP 7, because [n]o other pleading shall be allowed.
NRCP 7(a); see Langer v. Monarch Life Ins. Co., 966 F.2d 786, 808-11 (3d Cir. 1992) (filing a cross-claim as a separate document instead
of asserting it in an answer was a violation of Rule 11 warranting sanctions); In Re Cessna Distributorship Antitrust Litigation, 532 F.2d
64, 67 n.7 (8th Cir. 1976) (A cross-claim must be stated in a pleading. At the same time, it is not itself a pleading.). This concept has
been further explained as follows:
The answer must include all compulsory counterclaims against any opposing party, and may include permissive counterclaims
against any opposing party and cross-claims against any co-party. New parties may also be joined in counterclaims and
cross-claims. Counterclaims and cross-claims are not separate pleadings, but are claims for relief that may be set forth in answers
and complaints. If a counterclaim or cross-claim is presented as a separate pleading, amendment of the party's prior pleading to
include the counterclaim or cross-claim will generally be allowed, unless the opposing party would be prejudiced.
2 James Wm. Moore et al., Moore's Federal Practice 7.02[3][b] (3d ed. 1997); see also Burns v. Lawther, 53 F.3d 1237, 1241 (11th Cir.
1995) (Federal Rule of Civil Procedure 7 clearly and precisely lists the documents that are pleadings, and explicitly excludes everything
else from its definition of a pleading).
[Headnote 6]
In this case, Chang's cross-claim asserting personal injuries was not a pleading, and was not properly filed. Therefore, the 120-day
period for service of a complaint imposed by NRCP 4(i) does not apply to Chang's cross-claim. But it is also not true, as asserted by Chang,
that there was no time limit for Chang to bring his cross-claim; the cross-claim should have been included in Chang's
answer.
bring his cross-claim; the cross-claim should have been included in Chang's answer. The time
limit for serving an answer is twenty days, unless that time is altered based on the filing of a
motion. NRCP 12(a).
We do not suggest that dismissal of Chang's cross-claim was mandated because of a
technical defect in pleading. Nevada is a notice-pleading jurisdiction and pleadings should
be liberally construed to allow issues that are fairly noticed to the adverse party. Nevada
State Bank v. Jamison Partnership, 106 Nev. 792, 801, 801 P.2d 1377, 1383 (1990)
(emphasis added). There is, however, nothing technical about the defect in Chang's
cross-claim; the document simply is not a pleading, and does not itself put the matters
asserted therein at issue.
[Headnote 7]
It appears from the documents before this court that the district court did not evaluate petitioners' motion to dismiss under the proper
standard of law, as set forth in this opinion. It further appears that the district court may have a duty to strike Chang's improper cross-claim.
If so, then under the circumstances of this case, an appeal following final judgment would be an inadequate remedy, because not only will
petitioners have to defend Chang's personal injury cross-claim, Chang's claim will likely impact the resolution of Lee's claim against
petitioners. Therefore, mandamus is an appropriate remedy. See NRS 34.160 (mandamus will issue to compel act enjoined by law); NRS
34.170 (mandamus will issue if a petitioner has no other plain, speedy and adequate remedy in the ordinary course of law).
Accordingly, we grant this petition. The clerk of this court shall issue a writ of mandamus compelling the district court to vacate its
order denying petitioners' motion to dismiss Chang's cross-claim, and to reconsider that motion in light of the views expressed in this
opinion.
4
__________

4
In light of this opinion, we vacate in its entirety our order of February 5, 1996, granting a stay. We express no view, other than the
views expressed in this opinion, with respect to the district court's resolution of petitioners' motion to dismiss. The district court's options
with respect to the cross-claim should be examined by the parties and presented to the district court in the first instance.
____________
113 Nev. 1349, 1349 (1997) Tucker v. Action Equip. and Scaffold Co.
JOSEPH TUCKER and KEVIN CLARK, Appellants, v. ACTION EQUIPMENT AND
SCAFFOLD CO., INC., and MALCO, INC., Respondents.
No. 27759
December 30, 1997 951 P.2d 1027
Appeal from an order of the district court granting a motion to dismiss for failure to state a
claim and judgment of dismissal with prejudice. Eighth Judicial District Court, Clark County;
Stephen L. Huffaker, Judge.
Injured employees of drywall subcontractor sued scaffolding subcontractor for negligence
and strict liability after collapse of scaffolding at construction site. The district court
dismissed with prejudice for failure to state a claim. Employees appealed. The supreme court
held that: (1) in non-construction injury cases, Meers normal work test is to be applied to
determine whether defendant and injured worker are in the same employ under Nevada
Industrial Insurance Act (NIIA), thus making defendant immune from common law suit,
overruling Sims v. General Tel. & Elec., 107 Nev. 516, 815 P.2d 151 (1991), and other
contrary decisions; (2) control test is only one factor to be considered in applying Meers
normal work, in construction and nonconstruction cases, overruling McDowell Constr.
Supply v. Williams, 90 Nev. 75, 518 P.2d 604 (1974); Leslie v. J.A. Tiberti Constr., 99 Nev.
494, 664 P.2d 963 (1983); Weaver v. Shell Oil Co., 91 Nev. 324, 535 P.2d 787 (1975), and
contrary cases; and (3) scaffolding subcontractor and drywall subcontractor's employees were
in the same employ as a matter of law under NIIA, and thus scaffolding subcontractor was
immune from common law suit.
Affirmed.
Hardy & Hardy, Las Vegas, for Appellants.
Barker, Gillock, Koning & Brown, Las Vegas, for Respondent Action Equipment and
Scaffold Co., Inc.
Earley & Dickinson, Las Vegas, for Respondent Malco, Inc.
Trial court treated and disposed of defendant's motion to dismiss as summary judgment motion when it considered evidence
outside pleadings in deciding motion; thus, supreme court would review order granting motion to dismiss as it would an order granting
summary judgment.
On appeal from summary judgment, appellate court must determine whether district court erred in finding that no genuine issues
of material fact exist and that moving party was entitled to judgment as matter of law.
fact exist and that moving party was entitled to judgment as matter of law.
Appellate court's review of summary judgment is de novo and without deference to lower court's findings.
In non-construction injury cases, Meers normal work test is to be applied to determine whether defendant and injured worker are
in the same employ under Nevada Industrial Insurance Act (NIIA), thus making defendant immune from common law suit;
overruling Sims v. General Tel. & Elec., 107 Nev. 516, 815 P.2d 151 (1991). NRS 616B.603(1)(b), 616C.215(2)(a).
In construction injury cases, if defendant is not licensed principal contractor or is not working pursuant to construction agreement
with such licensed principal contractor, Meers normal work test must be applied to determine whether defendant and injured worker
are in the same employ under Nevada Industrial Insurance Act (NIIA), thus making defendant immune from common law suit. NRS
616B.603(1)(b), 616C.215(2)(a).
In construction injury cases, if defendant is licensed principal contractor or is licensed contractor working pursuant to construction
agreement with such licensed principal contractor, and if defendant is performing part of the construction work for which it is licensed
when injury occurs, then as matter of law and without having to apply Meers normal work test, defendant and injured worker are in
the same employ under Nevada Industrial Insurance Act (NIIA), and defendant is immune from common law suit. NRS
616C.215(2)(a).
While statute exempts licensed principal contractors from application of Meers normal work test for determining whether
contractor is immune from common law suit under Nevada Industrial Insurance Act (NIIA), for immunity purposes, principal
contractor encompasses subcontractors, sub-subcontractors, and independent contractors. NRS 616B.603(3), 616C.215(2)(a).
Control test is only one factor to be considered in applying Meers normal work test to determine in construction injury case
whether defendant and injured worker are in the same employ under Nevada Industrial Insurance Act (NIIA), thus making defendant
immune from common law suit; overruling McDowell Constr. Supply v. Williams, 90 Nev. 75, 518 P.2d 604 (1974); Leslie v. J.A.
Tiberti Constr., 99 Nev. 494, 664 P.2d 963 (1983); Weaver v. Shell Oil Co., 91 Nev. 324, 535 P.2d 787 (1975). NRS 616C.215(2)(a).
Scaffolding subcontractor was in the same employ as injured workers under Nevada Industrial Insurance Act (NIIA) immunity
provision, and thus, subcontractor was immune from common law suit by dry wall subcontractor's workers injured when scaffolding
collapsed. Case was construction case, scaffolding subcontractor rendered its services pursuant to construction subcontract, and it was
performing services for which it was licensed when workers were injured. NRS 616B.603(3), 616C.215(2)(a).
OPINION
Per Curiam:
Appellants Joseph Tucker and Kevin Clark (collectively referred to as Tucker and Clark)
were employed by respondent Malco, Inc. (Malco), a drywall company, which was hired by
a general contractor. Tucker and Clark were injured when the scaffolding they were working
on collapsed. The company providing the scaffolding, respondent Action Equipment and
Scaffold Co., Inc. (Action), was a licensed contractor pursuant to NRS chapter 624.
After Tucker and Clark collected industrial insurance benefits through Malco, they sued
Action. Action filed a motion to dismiss, claiming it was immune from suit under the Nevada
Industrial Insurance Act (NIIA) because it was a subcontractor in the same employ as
Malco and Tucker and Clark, under the general contractor, pursuant to NRS 616.560(1)(a)
(recodified as NRS 616C.215(2)(a)). Tucker and Clark opposed the motion, arguing that the
normal work test, articulated in Meers v. Haughton Elevator, 101 Nev. 283, 701 P.2d 1006
(1985), applied in their favor, exempting Action from the protection of immunity. The district
court granted the motion to dismiss in Action's favor, and Tucker and Clark appeal.
FACTS
In 1992, Marnell Corrao Associates, Inc. (Marnell), a general contractor, hired Malco as
a drywall subcontractor for a construction project on a complex and uniquely configured
church called the Shrine of the Most Holy Redeemer (the Shrine). On October 29, 1992,
and November 9, 1992, Malco and Action executed two agreements for Action to supply,
erect, and dismantle the scaffolding required to complete Malco's contract with Marnell on
the Shrine. Action supplied and erected the scaffolding as required in November 1992.
On November 17, 1992, two Malco employees, Tucker and Clark, were working on the
scaffolding when it failed to support their weight, throwing them to the ground and causing
personal injury. Tucker and Clark filed a claim with the State Industrial Insurance System
(SIIS) through their employer, Malco, and were paid $124,823.77 and $62,771.75,
respectively.
On March 1, 1994, Tucker and Clark filed a complaint for negligence and strict liability
against Action pursuant to NRS 616.560(1)(a), which allowed injured workers to sue certain
third persons. On April 18, 1994, Action brought a third-party complaint against Malco for
indemnification.
On February 27, 1995, Action filed its motion to dismiss Tucker and Clark's complaint for
failure to state a claim. The focus of its motion was that Action was immune from liability
pursuant to NRS 616.560(1)(a) because it was in the same employ as Tucker and Clark;
therefore, Tucker and Clark's exclusive remedy was SIIS benefits.
On March 14, 1995, Tucker and Clark filed their opposition to Action's motion, claiming
that Action was not in the same employ. Rather, they argued that the normal work test,
set out in Meers, 101 Nev. at 283, 701 P.2d at 1006, (hereinafter the Meers test) applied,
creating a fact issue as to whether the scaffolding was a normal part of Malco's contract
with Marnell or a highly specialized function.
On April 19, 1995, a hearing on the motion was conducted. The parties' arguments
centered mostly on how the Meers test applied in this case. The district court decided that the
issue was one of fact: whether the scaffolding was a highly specialized form of scaffolding
that Malco employees could not do themselves or whether providing scaffolding was part of
Malco's normal business. Therefore, the court ordered the parties to conduct more discovery
on this issue before it would decide on the motion.
After additional discovery was completed, the matter was reheard on October 9, 1995. On
October 26, 1995, the district court entered an order granting the motion to dismiss for failure
to state a claim and judgment of dismissal with prejudice. In its order, the district court
determined that the Meers test applied and that providing scaffolding was in fact part of
Malco's normal work. Additionally, the court found that the Action/Malco contract was a
subcontracted fraction of the Malco/Marnell contract. Therefore, after applying the Meers
test, the court decided Action was a contractor immune from suit, pursuant to NRS
616.085(1) (recodified as NRS 616A.210(1)), 616.115 (recodified as NRS 616A.320), and
616.560(1)(a). On November 7, 1995, Tucker and Clark filed their notice of appeal.
DISCUSSION
Standard of review
[Headnote 1]
Initially, we note that in making its decision on the motion to dismiss, the district court considered evidence outside the pleadings.
Therefore, the court treated and disposed of Action's motion to dismiss as a summary judgment motion. See MacDonald v. Kassel, 97 Nev.
305, 307, 629 P.2d 1200, 1200 (1981). Accordingly, we will review the order granting the motion to dismiss as we would an
order granting summary judgment.
motion to dismiss as we would an order granting summary judgment. See Paso Builders, Inc.
v. Hebard, 83 Nev. 165, 169, 426 P.2d 731, 734 (1967).
[Headnotes 2, 3]
On appeal from summary judgment, this court must determine whether the district court erred in finding that no genuine issues of
material fact exist and that the moving party was entitled to judgment as a matter of law. Bird v. Casa Royale West, 97 Nev. 67, 69-70, 624
P.2d 17, 18 (1981). This court's review is de novo and without deference to the lower court's findings. Caughlin Homeowners Ass'n v.
Caughlin Club, 109 Nev. 264, 266, 849 P.2d 310, 311 (1993). On summary judgment, the evidence is to be viewed in a light most
favorable to the party against whom summary judgment was rendered. McGinnis v. Consolidated Casinos Corp., 98 Nev. 396, 397-98,
650 P.2d 806, 807 (1982).
Relevant law under NIIA
Since NIIA was enacted, this court has held that compensation from SIIS is the sole remedy an injured employee has against his
employer when the injury resulted from an accident which arose out of and in the course of his employment.
1
Frith v. Harrah South Shore
Corp., 92 Nev. 447, 452, 552 P.2d 337, 340 (1976); see also NRS 616.270(3) (recodified as NRS 616B.612(3)) (the employer shall be
relieved from other liability for recovery of damages or other compensation for such personal injury); NRS 616.370(1) (recodified as NRS
616A.020(1)) ([t]he rights and remedies provided in this chapter for an employee on account of an injury by accident sustained arising out
of and in the course of the employment shall be exclusive).
However, NRS 616.560(1)(a) provided:
1. When an employee coming under the provisions of this chapter receives an injury for which compensation is payable under
this chapter and which was caused under circumstances creating a legal liability in some person, other than the employer or a
person in the same employ, to pay damages thereof:
(a) The injured employee . . . may take proceedings against that person to recover damages . . . .
(Emphasis added.) Therefore, an injured employee may sue a third person in common law if that third person is not the employee's
statutory employer or co-employee.
__________

1
The purpose of the employer's immunity under NIIA from common law actions by its employee is to allow an employer to provide
worker's compensation coverage in return for which the employer's liability is limited to worker's compensation benefits. Karadanis v.
Sourwine, 105 Nev. 793, 797, 783 P.2d 454, 456 (1989).
employee's statutory employer or co-employee. This begs the question of who is a statutory
employer or co-employee in the same employ.
NRS 616.085(1) stated, in part, that all subcontractors, independent contractors

[
2
] and
the employees of either shall be deemed to be the employees of the principal contractor.
Therefore, NIIA provides the exclusive remedy of any employee of a subcontractor injured as
a result of the negligence of another subcontractor's employee working for the same principal
contractor because they are considered to be working in the same employ; hence, they are
statutory co-employees. Aragonez v. Taylor Steel Co., 85 Nev. 718, 719-20, 462 P.2d 754,
755 (1969).
This concept was expanded in Stolte, Inc. v. District Court, 89 Nev. 257, 259, 510 P.2d
870, 871 (1973), where the issue was whether a sub-subcontractor is also a statutory
employee under NIIA. This court held that [t]he overall scheme of [NIIA] is to provide
coverage for all employees working for, or under, the principal contractor. The provisions of
NRS Chapter 616 are construed to include sub-subcontractors as well as subcontractors and
independent contractors. Id. (emphasis added).
In the present case, it is clear that Action is a subcontractor according to NRS 624.020,
which defines contractor as
2. [A]ny person . . . who in any capacity . . . undertakes to, or offers to undertake to .
. . construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any
building . . . or do any part thereof, including the erection of scaffolding or other
structures or works in connection therewith. . . .
3. A contractor within the meaning of this chapter includes subcontractor or
specialty contractor . . . .
(Emphasis added.) As Action provided the scaffolding and its installation, we conclude that
Action was a subcontractor under this definition.
3
Having thus concluded that Action was a
subcontractor, the next inquiry is whether it is a statutory co-employee for the purposes of
NIIA immunity.
__________

2
NRS 616.115 stated, Subcontractors' shall include independent contractors.

3
Additionally, Malco has always maintained that its contract with Action was a subcontracted fraction of its
contract with Marnell. Moreover, Marnell listed Action as one of its subcontractors on the Shrine project in its
daily job record reports for October 27, 1992, through November 6, 1992. Therefore, it is clear that Marnell
contemplated its own relationship with Action as principal contractor/subcontractor.
Whether Action was a statutory co-employee of Malco, Tucker and Clark
Tucker and Clark argue that the Meers test applies in this situation to determine whether
Action was a statutory co-employee and, thus, immune from suit. They further argue that
when the district court applied the Meers test, it failed to construe the facts in their favor;
therefore, the order granting the motion to dismiss must be reversed.
In Meers, Centel, a telephone company, contracted with Haughton Elevators (Haughton)
to do specialized maintenance for the elevators in Centel's business facility. Ms. Meers,
employed as Centel's business office supervisor, was injured in an elevator at the Centel
building. After receiving SIIS benefits through her employer, Centel, Ms. Meers sued
Haughton. Haughton alleged that since it was Centel's subcontractor, it was in the same
employ as Ms. Meers, pursuant to NRS 616.560(1)(a); therefore, Haughton contended, it
was immune from suit under NIIA. See Meers, 101 Nev. at 284-85, 701 P.2d at 1006-07.
This court held that although NIIA afforded immunity to all subcontractors and their
employees, the protection is by no means absolute. Id. at 285, 701 P.2d at 1007. Rather,
this court invoked the normal work test used in other jurisdictions to determine whether the
type of work a subcontractor does entitles it to NIIA immunity:
The test (except in cases where the work is obviously a subcontracted fraction of a
main contract) is whether that indispensable activity is, in that business, normally
carried on through employees rather than independent contractors.
Id. at 286, 701 P.2d at 1007 (quoting Bassett Furniture Indus., Inc. v. McReynolds, 224
S.E.2d 323 (Va. 1976)).
Applying this test, we held that Centel did not normally conduct specialized maintenance
of its elevators through its own employees. Id. Since maintaining elevators was not part of
Centel's normal work, Centel was not Haughton's statutory employer, nor was Haughton the
statutory co-employee of Ms. Meers. Therefore, NIIA immunity did not apply, and Ms. Meers
could proceed with her suit against Haughton. Id.
The history of workers' compensation cases in this state is marked by much confusion as to
which test applies when determining who is in the same employ for NIIA immunity
purposes. For instance, in Leslie v. J. A. Tiberti Construction, 99 Nev. 494, 664 P.2d 963
(1983), this court applied a five-factor, fact-intensive control test in a construction case;
however, this test was then applied in some non-construction cases as well. See, e.g.,
Sims v. General Telephone & Electric, 107 Nev. 516
test was then applied in some non-construction cases as well. See, e.g., Sims v. General
Telephone & Electric, 107 Nev. 516, 815 P.2d 151 (1991).
In 1991, the Nevada State Legislature enacted NRS 616.262 (recodified as NRS
616B.603), which provided in part:
1. A person is not an employer for the purposes of this chapter if:
(a) He enters into a contract with another person or business which is an independent
enterprise; and
(b) He is not in the same trade, business, profession or occupation as the
independent enterprise.
. . . .
3. The provisions of this section do not apply to a principal contractor who is
licensed pursuant to chapter 624 of NRS.
Oliver v. Barrick Goldstrike Mines, 111 Nev. 1338, 1348-49, 905 P.2d 168, 174-75
(1995), highlighted that NRS 616.262(1)(b) codified the Meers test, holding that the same
trade language used in NRS 616.262(1)(b) referred to the normal work test stated in
Meers. Oliver further stated:
If a principal contractor is a licensed contractor pursuant to chapter 624, the principal
contractor will be the statutory employer of the independent contractors (or
subcontractors) and their employees. If a principal contractor is not a licensed
contractor, it will be the statutory employer only if it can show that it is in the same
trade under the Meers test.
Id. at 1349, 905 P.2d 174-75.
[Headnote 4]
In order to determine whether a defendant is immune from suit per NIIA, we now set forth the following required inquiry. First,
construction cases must be differentiated from non-construction cases. If the particular situation is a nonconstruction case, the Meers test is
to be applied to ascertain whether the defendant is immune from suit under NIIA or may be sued on common law principles.
4
[Headnotes 5-7]
__________

4
Sims v. General Telephone & Electric, 107 Nev. 516, 815 P.2d 151 (1991), a nonconstruction case, contains facts substantially similar
to those in Meers. In Sims, a janitor working at a GTE manufacturing plant was killed by chemical toxins. Id. at 519, 815 P.2d at 153. One
issue in the case was whether the janitor was a statutory employee of GTE, thus enabling GTE to invoke the protections of immunity under
NIIA. Id. at 528, 815 P.2d at 159.
This court noted:
In non-construction situations such as this case, however, this court has taken a much more fact-specific approach to the problem.
See, e.g.,
[Headnotes 5-7]
However, remaining consistent with Oliver, further examination is required in construction cases. Initially, if the defendant in a
construction case is not a principal contractor
5
licensed pursuant to NRS chapter 624, or is not working pursuant to a construction
agreement with such a licensed principal contractor, the Meers test must be applied to determine immunity. On the other hand, if the
defendant in a construction case is a principal contractor licensed pursuant to NRS chapter 624, or is a licensed contractor working
pursuant to a construction agreement with a licensed principal contractor, and the defendant is performing part of the construction work for
which it is licensed when the injury occurs, that contractor is immune from further suit as a matter of law.
6
No further factual analysis is
necessary.
[Headnote 8]
We conclude that by the enactment of NRS 616.262, the legislature intended the use of only the Meers test as discussed above.
Accordingly, we now explicitly hold that the control test is no longer the primary standard applicable to determine whether one is immune
from suit under NIIA. Rather, the issue of control is only one factor to be considered in resolving normal work issues under Meers.
7
[Headnote 9]
[Headnote 9]
__________
Meers v. Haughton Elevator, 101 Nev. 283, 285 n.3, 701 P.2d 1006, 1007 n.3 (1985) (expressly noting that inquiry is different in
non-construction situations).
Id. at 529 n.6, 815 P.2d at 159 n.6. Notwithstanding, Sims borrowed from the construction cases which applied the control test in
determining whether the janitor was, indeed, an employee of GTE.
We now conclude that Sims incorrectly applied the control test in this non-construction situation. Rather, we conclude that under Meers,
the normal work test is to be used in all non-construction cases. Meers, 101 Nev. at 286, 701 P.2d at 1007. Accordingly, we now
explicitly overrule Sims and all other nonconstruction cases that apply the control test when determining whether one is a statutory
co-employee for purposes of NIIA immunity.

5
NRS 616.1115 (re-codified as NRS 616A.285) defined principal contractor as follows:
[A] person who:
1. Coordinates all the work on an entire project;
2. Contracts to complete an entire project;
3. Contracts for the services of any subcontractor or independent contractor; or
4. Is responsible for payment to any contracted subcontractors or independent contractors.

6
While NRS 616.262(3) exempted principal contractors from application of NRS 616.262(1) (the Meers test), we conclude that for
immunity purposes, the term principal contractor encompasses subcontractors, sub-subcontractors and independent contractors.

7
To the extent that McDowell Construction Supply v. Williams, 90 Nev. 75, 518 P.2d 604 (1974) (a construction case that adopts the
control test),
[Headnote 9]
In the present case, Tucker and Clark expend much effort applying the Meers test to the facts of this case. They explain that a material
factual issue remains regarding whether the particular scaffolding required for the Shrine project was a highly specialized necessity that
Malco's employees would not normally carry out. Tucker and Clark's emphasis is misplaced because according to our conclusion above, the
Meers test is not applicable in this matter.
Applying the above analysis in this case, we first note that this is a construction case. Next, the record indicates that Action is a
licensed scaffolding contractor pursuant to NRS chapter 624, rendering its services pursuant to a construction subcontract. Further, it was
performing the very services for which it was licensedscaffoldingwhen Tucker and Clark were injured. Therefore, Action is immune
from suit under NIIA as a matter of law. Accordingly, no genuine issues of material fact exist regarding workplace immunity. See NRS
616.262(3), NRS 616.560(1)(a), NRS 624.020 and other relevant sections of NRS chapters 616 and 624.
CONCLUSION
We conclude that Action is immune from suit by Tucker and Clark. As such, the fact issue as to whether the scaffolding used here was
highly specialized or part of Malco's normal work is of no consequence. Since no genuine issues of material fact exist, dismissal was
proper. We therefore affirm the district court's judgment.
I concur in the result only.
__________
Leslie v. J. A. Tiberti Construction, 99 Nev. 494, 664 P.2d 963 (1983) (a construction case that articulates the five-factor analysis required
in the control test), and their progeny are inconsistent with this opinion, they are hereby overruled. Accordingly, the conflict that exists
among Leslie, Simon Service v. Mitchell, 73 Nev. 9, 307 P.2d 110 (1957), and Titanium Metals v. District Court, 76 Nev. 72, 349 P.2d
444 (1960), is now moot. Further, to the extent that Weaver v. Shell Oil Co., 91 Nev. 324, 535 P.2d 787 (1975), is inconsistent with Frith v.
Harrah South Shore Corp., 92 Nev. 447, 552 P.2d 337 (1976), Weaver is overruled.
____________
113 Nev. 1359, 1359 (1997) SIIS v. Ortega Concrete Pumping, Inc.
STATE INDUSTRIAL INSURANCE SYSTEM, NEVADA POWER COMPANY, INC.,
RONALD GARAMENDI, MINDY GARAMENDI and JOHN GARCIA, Appellants,
v. ORTEGA CONCRETE PUMPING, INC., Respondent.
No. 26284
December 30, 1997 951 P.2d 1033
Appeal from an order of the district court granting summary judgment in favor of
respondent. Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Injured workers employed by paving company sued company that provided pump truck for
construction project. The district court granted summary judgment for pump truck provider.
Workers appealed. The supreme court held that summary judgment was precluded by
material issue of fact as to whether, under Meers normal work test, pump truck provider
was in same trade or business as paving company, thus making pump truck provider immune
from common law suit under Nevada Industrial Insurance Act (NIIA).
Beckett & Yott, Ltd., Carson City, for Appellant State Industrial Insurance System.
Cohen, Johnson & Day, Las Vegas, for Appellant Nevada Power Company.
Harrison Kemp & Jones and Derek C. Ence, Las Vegas, for Appellants Garamendi and
Garcia.
Lyles, Austin & Burnett and John R. Hawley, Las Vegas, for Respondent.
Bradley, Drendel & Jeanney, Reno, Amicus Curiae Nevada Trial Lawyers Association.
1. Judgment.
Summary judgment will not lie where there is the slightest doubt as to operative facts.
2. Judgment.
Summary judgment was precluded by material issue of fact as to whether, under Meers normal work test, provider of concrete
pump truck who was not a licensed construction contractor was in same trade or business as paving company that hired pump truck
provider for construction project, thus making pump truck provider immune under Nevada Industrial Insurance Act (NIIA) from
common law suit by injured employees of paving company. NRS 616B.603(1)(b).
Meers normal work test is primary standard to be considered in determining whether defendant is immune from common law
suit by injured workers under Nevada Industrial Insurance Act (NIIA), and five-factor control test is only one factor to be considered
in resolving normal work issues. NRS 616B.603(1)(b).
OPINION
Per Curiam:
Ronald Garamendi and John Garcia worked for Las Vegas Paving (LVP) and were
electrocuted while they were pouring a concrete floor for a new flood channel in Las Vegas.
Due to the depth of the excavated channel, LVP needed a pump truck to transport the
concrete from Nevada Ready Mix's trucks to the floor of the channel. LVP hired Ortega
Concrete Pumping, Inc. (Ortega) to provide the pump truck. On the day of the concrete pour,
the boom of Ortega's concrete truck, operated by an Ortega employee, struck an overhead
power line, sending a high voltage current down into the channel where Garamendi and
Garcia were working; both sustained serious injuries.
Garamendi (and his wife) and Garcia filed an action against Ortega and Nevada Power
Company for personal injuries, and the State Industrial Insurance System (SIIS) filed a
complaint against Ortega seeking subrogation of benefits paid to the injured men. Ortega
claimed that it was a subcontractor or independent contractor
1
of LVP and was, therefore, a
statutory co-employee of the injured men immune from liability under the exclusive remedy
provisions of the Nevada Industrial Insurance Act (NIIA). The lower court agreed and granted
summary judgment in favor of Ortega on both complaints. We conclude that this case was not
ripe for summary judgment and, therefore, reverse and remand this case to the district court
for further proceedings.
FACTS
Garamendi and Garcia were employees of LVP. Clark County contracted with LVP to
build a flood channel at the Las Vegas intersection of Nellis Boulevard and Flamingo Road.
Garamendi testified in a deposition that all of LVP's projects related to constructing storm
drains or bridges.
__________

1
In referring to Ortega's status, the terms contractor, subcontractor, and independent contractor are
used interchangeably by the lower court and the parties. For purposes of the instant analyses, these terms are
functional equivalents. See, e.g., NRS 616A.320 (formerly NRS 616.115) ( Subcontractors' shall include
independent contractors.); NRS 616A.210 (formerly NRS 616.085) (subcontractors and independent
contractors are both considered employees of the principal contractor).
constructing storm drains or bridges. On August 2, 1991, Garamendi and Garcia were sent to
the job site to pour the concrete floor and walls of the excavated flood channel. Power lines,
owned and maintained by Nevada Power Company, were located above one end of the
excavated channel.
The day before the concrete pour was to take place, LVP called Ortega to deliver a
concrete pump truck to the site, to be used for two hours. LVP needed a pump truck because
safety codes prohibited dropping wet concrete from a height greater than five feet. As the
floor of the channel excavated by LVP was more than five feet below the road, the concrete
could not be dropped from the chutes of Nevada Ready Mix's trucks, from whom LVP had
purchased the concrete. Ortega billed LVP at an hourly rate for the entire time that the truck
was at the job site, regardless of whether it was in use, for a total of four hours. There was no
contract between LVP and Ortega, and Ortega did not have, and was not required to have, a
contractor's license.
Ortega had a pump truck with a tall boom through which concrete was pumped via a hose
extending from the boom. Nevada Ready Mix loaded the concrete into Ortega's pump truck,
and the concrete was then pumped up the hose attached to the boom. Mr. Ortega controlled
the hydraulic boom's movements with two joysticks, and Garamendi and Garcia were at the
end of the hose pouring and finishing the concrete as it came into the flood channel.
Towards the end of the pouring project, some water leaked through the channel and
damaged one corner of the pour, the corner closest to the power lines. Garamendi and Garcia
went back to re-pour a section of that corner. At this point, Mr. Ortega turned control of the
pump truck over to his employee, Eddie Williams, who had recently arrived at the project.
Garamendi and Garcia then finished repairing the corner. After they had stopped working,
Williams allegedly hit the power lines with the boom of the pump truck; a current raced down
the boom seeking ground and passed through Garamendi (who was still holding the hose) and
Garcia, severely burning them both.
SIIS paid workers' compensation to Garamendi and Garcia but filed suit against Ortega on
November 24, 1992, seeking reimbursement for those benefits paid. On July 28, 1993,
Garamendi, his wife, and Garcia filed their own action for personal injury damages against
Ortega as a third-party tortfeasor. SIIS's action was consolidated with Garamendi and Garcia's
actions.
2
On March 25, 1994, Ortega filed a motion for summary judgment claiming that the
consolidated lawsuits pending against it were barred by the exclusive remedy provisions
of Nevada's workers' compensation statutes, which provide that the sole source of
redress for an employee injured by the negligence of his employer or fellow employees is
workers' compensation.
__________

2
Appellants Garcia, Garamendi (and his wife), and SIIS, shall be collectively referred to in this opinion as
SIIS.
judgment claiming that the consolidated lawsuits pending against it were barred by the
exclusive remedy provisions of Nevada's workers' compensation statutes, which provide that
the sole source of redress for an employee injured by the negligence of his employer or fellow
employees is workers' compensation. The lower court concluded that Ortega was immune
from suit because Ortega was acting as LVP's subcontractor at the time of the accident and
was thus a fellow employee of the injured LVP employees; accordingly, the district judge
granted Ortega's summary judgment motion.
Garamendi and Garcia filed a motion for reconsideration and provided the district court
with affidavits from the Nevada State Board of Contractors (NSBC) and various concrete
pumping companies in support of their contention that the judge had erroneously concluded
that Ortega was a subcontractor of LVP. SIIS presented the lower court with the affidavit of
Kay H. Barber, the executive officer of NSBC, which stated that [t]he NSBC does not
require that concrete pumping services be licensed because their work does not fall within the
definition of contractors/subcontractors in NRS 624.020,
3
or of concrete contractors under
NAC 624.230. (Emphasis added.)
Barber stated that [t]he concrete pumping truck is merely a conduit through which the
concrete passes from the concrete mixing/delivery truck [i.e., Nevada Ready Mix] to [a]
location on the construction site where the concrete is needed. She further declared that
the act of providing and operating a concrete pumping device, such as a concrete
pumping truck, at the request of another contractor does not mean to construct, alter,
repair, add to, subtract from, improve, move, wreck or demolish any building, highway,
road, railroad, excavation or other structure, project, development or improvement, or
to do any part thereof, as specified in NRS 624.020.
__________

3
2. [A] contractor is any person, . . . who in any capacity other than as the employee of another with
wages as the sole compensation, undertakes to, or offers to undertake to, or purports to have the capacity
to undertake to, or submits a bid to, or does himself or by or through others, construct, alter, repair, add
to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or
other structure, project, development or improvement, or to do any part thereof, including the erection of
scaffolding or other structures or works in connection therewith. . . .
3. A contractor within the meaning of this chapter includes subcontractor or specialty contractor . . . .
Following a hearing, the district court denied the reconsideration motion. This timely appeal
ensued.
No transcript of the lower court's hearing on Ortega's motion for summary judgment exists
in the record. However, the minutes from that hearing state the district judge's declaration:
The Court thinks Ortega is acting as a contractor and ORDERED, the motion is
GRANTED. In deciding that no genuine issue of fact existed that Ortega had been acting as
LVP's subcontractor, the district court focused on the fact that Ortega had an operator driving
the pump truck and did not just have its equipment at the job site when the accident occurred.
Notwithstanding SIIS's argument that the pump truck was merely a conduit to move the
cement from Nevada Ready Mix's trucks to the bottom of the flood channel for installation by
LVP, the judge found the fact that Ortega and LVP employees were all at the same job site
working on the same project dispositive. On these facts, it appears that the judge concluded
that, as a matter of law, Ortega was acting as a subcontractor of LVP, LVP was Ortega's
statutory employer, and thus, Ortega and the injured plaintiffs were statutory co-employees.
DISCUSSION
[Headnote 1]
[S]ummary judgment is proper only when there are no issues of fact and the moving party is entitled to such an expedited judgment as
a matter of law. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 662 (1985); NRCP 56. Summary judgment will not lie where
there is the slightest doubt as to the operative facts. Washoe Medical Center v. Churchill County, 108 Nev. 622, 625, 836 P.2d 624, 626
(1992).
[Headnote 2]
In this appeal, SIIS and Ortega debate the proper means of determining whether Ortega was a statutory employee of LVP (and thereby a
fellow employee of the injured workers) for purposes of invoking the exclusive remedy provision of the NIIA. We recently resolved this
issue in Tucker v. Action Equipment, 113 Nev. 1349, 951 P.2d 1027 (1997).
In Tucker, we held that in a construction case, where the defendant is not a licensed contractor pursuant to NRS Chapter 624, the
normal work test, articulated in Meers v. Haughton Elevator, 101 Nev. 283, 286, 701 P.2d 1006, 1007 (1985), must be applied to
determine the issue of immunity. Tucker, 113 Nev. at 1357, 951 P.2d at 1032. Accordingly, pursuant to NRS 616B.603(1)(b), which
codified the Meers normal work test, the relevant factual inquiry in the instant case is whether LVP was in the "same trade,
business, profession or occupation" as Ortega at the time of the accident.
in the same trade, business, profession or occupation as Ortega at the time of the accident.
[Headnote 3]
The parties further contest the viability of what this court has labeled the control test. In Tucker, we concluded that the legislature
intended the use of only the Meers test in construction cases involving an unlicensed independent contractor. Tucker, 113 Nev. at 1357,
951 P.2d at 1032. We explicitly held that the five-factor control test set forth in Leslie v. J.A. Tiberti Constr., 99 Nev. 494, 497, 664 P.2d
963, 965 (1983), is no longer the primary standard applicable to determine whether one is immune from suit under NIIA. Rather, the issue
of control is only one factor to be considered in resolving normal work' issues under Meers. Tucker, 113 Nev. at 1357, 951 P.2d at 1032.
Pursuant to our holding in Tucker, in a construction case involving an unlicensed contractor, the relevant inquiry is whether Ortega was
in the same trade, business, profession or occupation as LVP at the time of the accident. Accordingly we remand this case to the district
court to determine if genuine issues of material fact exist as to whether Ortega satisfied the normal work test.
4
CONCLUSION
The district court must consider the motion for summary judgment in light of the normal work test codified at NRS 616B.603 and
determine whether there are issues of fact to be resolved at trial. Therefore, 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.
__________

4
We reject SIIS's contention that Ortega was not a contractor pursuant to NRS 624.020(3) because it was merely a supplier of
equipment to the job site. Ortega furnished neither materials nor supplies in this instance. Our refusal to grant Ortega immunity as a matter
of law stems from the fact that it was not licensed as a construction contractor under NRS Chapter 624.
____________
113 Nev. 1365, 1365 (1997) Silva v. State
MICHAEL JOSEPH SILVA, Appellant, v.
No. 27738
December 30, 1997 951 P.2d 591
Appeal from a judgment of conviction, pursuant to a jury verdict, of robbery with a deadly
weapon, first degree murder with a deadly weapon, and burglary. Eighth Judicial District
Court, Clark County; Sally L. Loehrer, Judge.
Following jury trial, defendant was convicted in the district court of first degree murder
with deadly weapon, robbery with deadly weapon and burglary. Defendant appealed. The
supreme court, Young, J., held that: (1) defendant's statements were voluntary under totality
of circumstances test; (2) defendant was not in custody, so as require police to discontinue
questioning when he requested counsel during his second statement; and (3) defendant's
confrontation rights were denied when court allowed purported accomplice to remain on
stand after it became apparent that accomplice would not respond to any of prosecutor's
questions about crime.
Steven G. McGuire, State Public Defender, Nancy M. Lemcke, Deputy, Carson City, for
Appellant.
James Tufteland, Chief Deputy, Robert Daskas, Deputy, Clark County, for Respondent.
1. Criminal Law.
Police did not coerce confessions from defendant, who was questioned for one to two hours and allowed to speak with his sister
when he requested, even if police lied to defendant about strength of evidence against him. U.S. Const. amend. 5.
2. Criminal Law.
Fifth Amendment right to counsel attaches only when suspect is subjected to custodial interrogation. U.S. Const. amend. 5.
3. Criminal Law.
Test for whether suspect is in custody, and thus has right to counsel during interrogation, is if reasonable person would believe he
was free to leave. U.S. Const. amend. 5.
4. Criminal Law.
Defendant who voluntarily accompanied officers to police station for questioning was not in custody at time he apparently
requested attorney while making his second statement, so as to implicate his Fifth Amendment right to counsel and require officer to
discontinue questioning, where officer had informed defendant that he was not under arrest and defendant assured officer that
he understood.
113 Nev. 1365, 1366 (1997) Silva v. State
and defendant assured officer that he understood. Selection of police station as locale for questioning was insufficient by itself to place
defendant in custody. U.S. Const. amend. 5.
5. Criminal Law.
Police may continue asking suspect questions, even if he asks for attorney during the interrogation, as long as statements are
voluntary and defendant is not in custody. U.S. Const. amend. 5.
6. Criminal Law.
Defendant's request for attorney while making his second statement to police, at time when he was not in custody, did not
invalidate his third statement which was made shortly thereafter, but followed his arrest and giving of Miranda warnings, after which
defendant could have again requested counsel and questioning would have been discontinued. U.S. Const. amend. 5.
7. Criminal Law.
Defendant was denied his right to cross-examination under Confrontation Clause when court, rather than discontinuing
prosecution's direct examination of purported accomplice when accomplice refused to answer certain questions, allowed examination
to continue and held accomplice in contempt 17 times; accomplice's silence created implication that defendant was guilty, which was
not subject to cross-examination, and added critical weight to prosecution's case. U.S. Const. amend. 6.
OPINION
On March 12, 1992, the Wagon Wheel Bar was robbed and the bartender, Howard
Gibbons, was found dead after being stabbed in the back. Preliminary police investigations
led police officers Donald Dibble (Dibble) and Steven Scholl (Scholl) to suspect the
involvement of appellant Michael Joseph Silva (Silva) and Brian Loehr (Loehr). The
officers proceeded to the apartment of Silva's girlfriend, Phyllis Vialpando. They questioned
her inside her apartment until she noticed that Silva and his sister, Audrey Gabriel
(Gabriel), arrived outside the building. The officers went downstairs to speak with Silva.
Dibble asked Silva if he would mind accompanying him and Scholl to the police station.
Silva cooperated and went with them while Gabriel followed in her car.
Dibble and Silva proceeded directly to an interview room used generally for questioning
witnesses or suspects. A transcript of the initial taped discussion (the first statement)
revealed that Dibble questioned Silva regarding his whereabouts and whether he attended the
Wagon Wheel Bar the previous evening. Silva insisted that he had nothing to do with the
robbery or murder.
Dibble then left the room for approximately fifteen minutes and returned, again taping
their conversation (the second statement").
113 Nev. 1365, 1367 (1997) Silva v. State
ment). Dibble insisted that he would find out that Silva was, indeed, involved in the crime.
Excerpts of the second statement are as follows:
Q: Okay here's what we're gonna get down to now, okay, first of all I want you to
understand one thing, you are not under arrest, you understand that?
A: Okay.
Q: I am not arresting you for any crime of any kind at this time, when we're done
with this, unless something drastically changes, you and I don't have a real
problem right now, you understand?
. . . .
Q: You sure you want to stick with that? You're absolutely certain that you want to
stick with that?
A: Unless you're gonna charge me with something, I see a lawyer or something, but I
didn't do nothing.
Q: Is that what you want to do? What do you want to do?
A: I don't know, what are you talking about? I don't know, you're putting all this on
me and . . .
Q: Well I'm giving you a chance to get your side of it out on the table, that's what I'm
giving you. Now if you want to talk to a lawyer, all you gotta do is tell me so.
That's real simple, you know what your rights are I assume, you know, if you want
to talk to a lawyer . . .
A: It's been years since I've been in trouble with the police and I, I don't know what to
do and you're sitting here accusing me of it.
Q: Well I'm saying you were there but what all I want to get straight right now is if
you want to talk to a lawyer, we'll get you one or if you want to talk to me that's
fine too, I, it's up to you, I'm gonna leave that whole decision up to you.
A: I mean I don't, I didn't do nothing I really don't need a lawyer right.
Q: Well that's what do you think, you know, you don't think you need one or you do
think you need one.
A: I don't think I need one right now but . . .
Q: You don't think you need one right now.
Silva then made incriminating statements regarding his and Loehr's involvement with the
robbery and murder. Afterward, the following conversation took place:
Q: Well do you think that maybe we ought to start over and get a complete statement
from you.
A: ____________________.
Q: I'm sorry what?
113 Nev. 1365, 1368 (1997) Silva v. State
A: Can I have a lawyer here?
Q: That's up to you. Do you want a lawyer?
A: ____________________.
Q: You tell me.
A: If I'm in trouble, I think I should.
Q: Okay. Well if you want a lawyer, I'll go and get you one. Why don't we just take it
easy here for a moment.
A: Can I talk to my sister?
Q: Yeah, I'll get your sister, she's out front waiting for you.
Gabriel entered the interview room, and Dibble left them to speak alone. Gabriel and Silva
claim they spoke for only four to eight minutes before Dibble returned, while Dibble claims
they were alone for thirty to forty-five minutes. After Dibble re-entered the room, Scholl
entered; then Dibble left. Scholl arrested Silva and gave him a Miranda rights card. Silva read
the card and signed a waiver of his rights. At that time, Scholl began tape recording the
conversation (the third statement). At the beginning of this statement, Scholl informed
Silva that he was not free to go and ensured that Silva understood his rights. Silva then made
incriminating statements.
On April 12, 1994, and September 30, 1994, Silva filed his motions to suppress all his
statements. Trial took place on June 26 through June 30, 1995. In the middle of the trial,
outside the presence of the jury, the district court conducted an evidentiary hearing on the
motions. Dibble, Gabriel, and Scholl testified. At the conclusion, the judge denied Silva's
motions and allowed all three taped statements to be admitted.
Also during trial, Loehr testified for the prosecution in the presence of the jury. He stated
that he would not be answering any questions regarding the case. The prosecutor elicited
Loehr's reasons: he would be labeled a snitch in prison if he stated anything about the case.
Being a snitch would result in possible retaliation by fellow inmates. Loehr explained that
he was not keeping silent for Silva's benefit and did not care about Silva one way or the other.
Rather, he was protecting himself, and only himself, by refraining from giving information.
The court held Loehr in contempt seventeen times for refusing to answer questions. However,
Loehr did answer many questions as long as they did not pertain to the evening or events at
issue.
At the conclusion of trial, the jury returned guilty verdicts for robbery with a deadly
weapon, first degree murder with a deadly weapon, and burglary. On August 10, 1995, Silva
was sentenced to twenty years for robbery with a deadly weapon, two life sentences with the
possibility of parole for the murder conviction, and eight years for burglary. On August 15,
1995, Silva filed his notice of appeal.
113 Nev. 1365, 1369 (1997) Silva v. State
Admissibility of Silva's statements
[Headnote 1]
To be admissible, a confession must be freely and voluntarily given, without compulsion or inducement. Passama v. State, 103 Nev.
212, 213, 735 P.2d 321, 322 (1987). Silva contends his confessions were not voluntarily provided to the police due to the officers' allegedly
coercive tactics during interrogation. At trial, Silva testified that he made the incriminating statements only because he was allegedly told
that if he implicated Loehr in the crime, then the police would let him go home. Additionally, Gabriel testified that Silva was crying
hysterically when she saw him after the second statement.
Thompson v. State, 108 Nev. 749, 753, 838 P.2d 452, 455 (1992), held that the district court's finding of voluntariness would be
upheld unless it was clearly untenable. Thompson further held that this court uses a totality of the circumstances test to determine whether
a confession was voluntary or obtained by physical intimidation or psychological pressure. Id. Silva claims his confession was coerced by
the police due to the allegedly obvious threats and unduly coercive nature of Dibble's suggestions.
In Passama, this court held the appellant's confessions were involuntary when appellant was questioned for five hours, deprived of
food and drink, and denied his request to speak with his fiancee. Passama, 103 Nev. at 214-15, 735 P.2d at 323. Further, the police
promised him leniency if he cooperated, but these promises were employed only to trick appellant into confessing. Id. at 215, 735 P.2d at
323.
In the present case, Silva was questioned for approximately one to two hours and was allowed to speak with his sister when he
requested. No evidence was provided that he was deprived of food or drink. In addition, Dibble made a point of saying that he could not
make any promises to Silva.
However, Silva contends that Dibble deceived him by stating that the police already had conclusive evidence of Silva's guilt. This court
recently held that lying to an interrogee about the strength of the evidence against the defendant is, in itself, insufficient to make the
confession involuntary. Sheriff v. Bessey, 112 Nev. 322, 325, 914 P.2d 618, 619 (1996). Specifically, a lie that relates to a suspect's
connection to the crime is the least likely to render a confession involuntary.' Id. at 325, 914 P.2d at 620 (emphasis added) (quoting
Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992), cert. denied, 506 U.S. 1082 (1993)).
With respect to Silva's claim that Dibble told him he could go home if he implicated Loehr, the transcripts do not so indicate. Dibble
stated, I am not arresting you for any crime of any kind at this time, when we're done with this, unless something
drastically changes, you and I don't have a real problem right now."
113 Nev. 1365, 1370 (1997) Silva v. State
at this time, when we're done with this, unless something drastically changes, you and I don't
have a real problem right now. At this point in the interrogation, Dibble was concerned with
Loehr's participation in the crime and was seeking information from Silva to confirm that.
Only after Silva incriminated himself did something drastically change. Additionally,
nowhere in the transcripts did Dibble specifically state that Silva could go home if he told the
police about Loehr. Accordingly, like in Bessey, the totality of the circumstances leads us to
the conclusion that Silva's confessions were not coerced.
Next, Silva contends that he requested an attorney during his second statement, but Dibble
ignored him and continued to question Silva in violation of his Fifth Amendment right to
counsel.
[Headnote 2]
This right attaches only when the suspect is subjected to custodial interrogation. State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn.
1990). We conclude that Silva was not in custody at the time he apparently requested an attorney.
[Headnotes 3, 4]
The test for whether one is in custody is if a reasonable person would believe he was free to leave. Rowbottom v. State, 105 Nev. 472,
480, 779 P.2d 934, 939 (1989). Silva contends he reasonably believed he was not free to leave because he was in a very small interview
room at the police station and Dibble threatened him by stating that the police would eventually prove Silva's involvement. We disagree.
To begin, the very first thing that Dibble told Silva during the second statement was that Silva was not under arrest. Dibble additionally
ensured that Silva understood this fact.
Second, California v. Beheler, 463 U.S. 1121, 1125 (1983), held that Miranda rights need not be provided simply because the
questioning took place at the police station or because appellant was the person the police suspected of the crime. Beheler also noted that
the appellant voluntarily accompanied the police to the station to be questioned. Id. at 1123. Likewise, Silva voluntarily went to the police
station with Dibble and Scholl. Just because the questioning took place there does not automatically mean that he was in custody.
Accordingly, after a review of the record and, in particular, the transcript of the second statement, we conclude that Silva was not in
custody at that point.
[Headnote 5]
It is well settled that one who is not in custody is not entitled to the Fifth Amendment right to counsel. Therefore, the police may
continue asking the suspect questions, even if he asks for an attorney during the interrogation, as long as the statements are voluntary.
113 Nev. 1365, 1371 (1997) Silva v. State
voluntary. Minnesota v. Murphy, 465 U.S. 420, 424 n.3 (1984); State v. Stanley, 809 P.2d
944, 950 (Ariz. 1991), cert. denied, 502 U.S. 1014 (1991); Ronnebaum, 449 N.W.2d at 724;
State v. Fry, 573 N.E.2d 1108, 1109-10 (Ohio App. 1988).
Since Silva was not in custody during his second statement, Dibble was not required to
discontinue questioning if Silva asked for an attorney. Only if he were subjected to custodial
interrogation would a request for an attorney require the police to immediately cease all
questioning until an attorney is present. Edwards v. Arizona, 451 U.S. 477, 485 (1981).
Therefore, because Silva was not in custody, he had no Fifth Amendment right to counsel to
assert. Accordingly, we conclude that Dibble did not violate Silva's rights and the district
court did not err by admitting the second statement.
Shortly after Silva requested an attorney during his second statement, he asked to see his
sister. Silva and Gabriel met for approximately thirty to forty-five minutes before Dibble and
Scholl entered the room. Dibble left and Scholl arrested Silva. Scholl then gave Silva a
Miranda rights card which Silva read. Silva then signed a waiver of his Miranda rights.
Thereupon, Scholl started the tape for Silva's third statement.
[Headnote 6]
Silva argues that because he requested an attorney at the end of the second statement, Scholl was not permitted to question him further
for the third statement. We conclude that this argument is without merit.
Even if admission of the second statement violated Silva's rights, which we conclude it did not, that does not automatically preclude
admission of his subsequent statement if he was given his Miranda warnings prior to the third statement. Oregon v. Elstad, 470 U.S. 298,
308 (1985). Here, Silva was provided with his Miranda warnings prior to making any incriminating remarks during his third statement.
Further, at the commencement of the third statement, Scholl ensured that Silva understood that he was arrested and was not free to
leave. If Silva did not wish to communicate to the police except with an attorney present, he could have simply told this to Scholl when
Silva read his rights. McNeil v. Wisconsin, 501 U.S. 171, 180 (1991). Accordingly, we conclude that the district court did not err by
admitting the statements Silva made to the police.
Loehr's testimony
Silva contends that the trial court erred by permitting Loehr to continue testifying after repeatedly holding him in contempt for
refusing to answer the prosecutor's questions.
113 Nev. 1365, 1372 (1997) Silva v. State
refusing to answer the prosecutor's questions. He asserts that since Loehr already admitted on
the stand that he pleaded guilty to the robbery and murder, the implication of Loehr's
subsequent refusal to answer questions was that Silva and Loehr were together on the night at
issue. Silva further claims that by allowing Loehr to continue testifying despite his refusal to
answer questions, the court permitted the prosecution to suggest Silva's involvement in the
crimes. We agree. Accordingly, we reverse Silva's conviction and remand for a new trial.
In Douglas v. Alabama, 380 U.S. 415, 416 (1965), the defendant, Douglas, and his
co-defendant, Loyd, were tried separately for assault with intent to commit murder. Loyd was
tried first and found guilty. The prosecutor in Douglas' trial called Loyd to the stand to testify
about a statement he had previously made to the police, implicating Douglas as the person
who shot the victim. However, once on the stand, Loyd refused to answer any questions on
self-incrimination grounds. The trial judge ordered Loyd to answer the questions and
threatened to hold him in contempt if he refused. Loyd still insisted on not answering any
questions. Rather than hold him in contempt, the judge granted the prosecutor's request to
treat Loyd as a hostile witness. The prosecutor proceeded to read the entirety of Loyd's
previous police statement to the jury. Id.
The United States Supreme Court held that Douglas' inability to cross-examine Loyd as
to the alleged confession plainly denied him the right of cross-examination secured by the
Confrontation Clause. Id. at 419. The Court concluded that the inference resulting from the
prosecutor's reading of the statement could not be tested on cross-examination by Douglas,
nor could Loyd be cross-examined on the statement because he did not admit to making it. Id.
Further, the Court determined that the prosecutor's reading of the statement may well have
been the equivalent in the jury's mind of testimony that Loyd in fact made the statement; and
Loyd's reliance upon the privilege created a situation in which the jury might improperly infer
both that the statement had been made and that it was true.
1
Id. Accordingly, the Court
concluded that inferences from a witness's refusal to answer added critical weight to the
prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the
defendant.' Id. at 420 (quoting Namet v. United States, 373 U.S. 179, 187 (1963)); see also
Fletcher v. United States, 332 F.2d 724 (D.C. Cir. 1964).
__________

1
The Supreme Court specifically declined to determine whether Loyd properly invoked his Fifth Amendment
right not to incriminate himself. Douglas, 380 U.S. at 420.
113 Nev. 1365, 1373 (1997) Silva v. State
[Headnote 7]
Relying on Douglas, we conclude that Silva was denied his right of cross-examination under the Confrontation Clause. Loehr's silence
regarding the night in question and Silva's involvement in the crimes for which Loehr was convicted created an implication that Silva was
guilty of the charges filed against him. However, because defense counsel could not cross-examine these implications, we conclude Loehr's
refusal to answer added critical weight to the prosecution's case. Douglas, 380 U.S. at 420. Further, although the trial court in Douglas
did not hold Loyd in contempt, we conclude that the instant matter, where Loehr was held in contempt seventeen times in the presence of
the jury, was an even more egregious violation of Silva's rights. Therefore, we conclude that the district court improperly allowed the direct
examination to continue. At the very least, when it became apparent that Loehr was not going to answer questions even under the threat of
contempt charges, the judge should have discontinued the questioning and investigated the matter outside the presence of the jury.
Accordingly, we reverse this matter and remand for a new trial consistent with this opinion.
Springer, J., concurs.
Shearing, C. J., with whom Rose, J., joins, concurring:
I would reverse Silva's judgment of conviction, but on a different ground than that proposed by the majority.
I do not agree that the repeated refusals of the witness Loehr to testify violated Silva's right to cross-examine a witness. I believe that
Douglas v. Alabama, 380 U.S. 415 (1965), is distinguishable. In Douglas, a codefendant witness, who had been tried and convicted,
invoked the self-incrimination privilege. Id. at 416. The witness was an essential element of the State's case against the petitioner. During
the examination of the witness, the prosecution read a confession attributed to the witness, ostensibly to refresh his memory. The Supreme
Court held that effective confrontation of [the witness] was possible only if [he] affirmed the statement as his and inferences from [the]
witness's refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination. Id. at 420. The court
held that the petitioner's inability to cross-examine the witness violated the confrontation clause and reversed the conviction.
The situation in Silva's case is quite different. There were no statements attributed to Loehr which implicated Silva. Thus, there were
no statements which called for cross-examination. The confrontation clause was not even invoked, since no inculpatory statements
were presented which purportedly were made by Loehr; he simply refused to testify.
113 Nev. 1365, 1374 (1997) Silva v. State
statements were presented which purportedly were made by Loehr; he simply refused to
testify. Neither was Loehr an essential element of the prosecution's case. The State called
eighteen witnesses and produced physical evidence, including fingerprints, that placed Silva
at the scene of the crime. Alone, Loehr's refusal to testify did not add critical weight to the
prosecution's case in a form not subject to cross-examination. See Namet v. United States,
373 U.S. 179, 186 (1963). Silva's due process rights were not violated by Loehr's refusal to
testify.
The question remains, however, whether there was prosecutorial misconduct. Prosecutorial
misconduct occurs when the Government makes a conscious and flagrant attempt to build its
case out of inferences arising from use of the testimonial privilege, such as putting a witness
on the stand knowing he intends to invoke the privilege, or making inferences to the jury
regarding a witness's refusal to testify. Id. at 186.
It appears that the prosecutor knew before he put Loehr on the stand that he would refuse
to testify. When Loehr first stated I am not answering further questions, the prosecutor
immediately replied because you don't want to be a snitch up at jail, right? That certainly
indicates that the prosecutor was not surprised by Loehr's refusal to testify, but does not
indicate a flagrant attempt to build his case on inferences.
However, in closing argument, the prosecutor discussed Loehr's failure to testify
extensively. The prosecutor made the following statements in closing argument:
Brian Loehrof course, we just brought Brian Loehr in from the Nevada State Prison
so we could give him four hundred and some odd days of contempt time, but his
testimony means absolutely nothing else. Well, if Michael Silva's story was true, the
man could have got up there and he could have said Michael didn't have anything to do
with it. I left him after the Sunrise Cedars Bar and I didn't see him again. Would have
saved him a lot of time in the detention center. Would have avoided the whole snitch
jacket thing and according to the defendant it would have been the truth. Oh, there's that
darn truth again. Hate to use that.
. . .
Now, Brian Loehr, we knowwe know why he had an easy way out. He could have
said consistent with the defendant's version, yeah, Mike didn't have anything to do with
it. He went home. I didn't see him again. Me and Ricky Smithsome guy I don't
remember his name. Nobody knows his name in this caper. You know, me and that guy
did the robbery and killed the guy. But he didn't. He didn't say that the defendant
wasn't involved.
113 Nev. 1365, 1375 (1997) Silva v. State
say that the defendant wasn't involved. Now you know why he got up there and did
what he did because it's a long time before he's coming up for any kind of parole and to
walk the yard in the Nevada State Prison knowing he just came down and snitched
somebody off, that's a long timethat's a long time to look over your shoulder every
day for the next seventeen years or so.
That's not his fault. It's not his fault that he doesn't want to be a snitch, but you judge
his credibility. He talked. He mentioned a lot of stuff. He mentioned Mike. He
mentioned living there, but when it came close, he didn't say anything. He took his
contempt. But he sure did not say Mike wasn't involved. Now, how would that have
branded him a snitch? It seems to me if there's anything to this misguided prison code is
that if he comes down and says the guy didn't do it, if there's any honor among
thievesif there's any code that would have helped him out, he didn't say that, did he?
Why didn't he just lie? I don't know the code, but what I do know is that he did not
exonerate the defendant.
Clearly the prosecutor was encouraging the jury to make a decision based on Loehr's refusal
to testify.
The Namet court noted that courts have failed to find reversible error when such
incidences were no more than minor lapses through a long trial' . . . [a]nd even when the
objectionable inferences might have been found prejucial, it has been held that instructions to
the jury to disregard them sufficiently cured the error. Id. at 187 (quoting United States v.
Hiss, 185 F.2d 822, 832 (2d Cir. 1950)). I cannot view the comments made by the prosecutor
during closing argument as a minor lapse. The prosecutor was asking the jury to draw
inferences against Silva on the basis of Loehr's appearance at trial, when Silva had no
opportunity to cross-examine Loehr. When Loehr refused to testify, the prosecutor himself
supplied the reason for not testifying as Loehr's unwillingness to be a snitch. Then the
prosecutor used that rationale to argue that if Silva wasn't involved, Loehr would have said so
and wouldn't have been a snitch. The jury is most likely to remember the inferences and
incorporate them into their deliberations when they come at the close of trial without any
limiting instruction. Despite the abundance of other evidence presented, I do not view this
prosecutorial misconduct as harmless error and therefore would reverse this case on that
ground.
I agree with the concurring opinion as to the error committed with regard to Loehr's
testimony and the arguments of trial counsel for the State.
113 Nev. 1365, 1376 (1997) Silva v. State
counsel for the State. However, the evidence of guilt was so overwhelming that the error is
harmless.
____________
113 Nev. 1376, 1376 (1997) Diamond Enters., Inc. v. Lau
DIAMOND ENTERPRISES, INC., d/b/a FACTORY SERVICE CENTER, Appellant, v.
JEFFREY LAU and SOPHIE LAU d/b/a EL CID HOTEL a/k/a HOTEL FORTUNE;
PAUL R. GOODMAN and KATHERYN ALLENE GOODMAN, Each Individually,
Respondents.
No. 28095
December 30, 1997 951 P.2d 73
Appeal from a final judgment entered by the district court in a breach of contract action.
Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.
Air conditioning contractor sued hotel owner for amounts owed on contract for installation
of air conditioning compressor, and owner counterclaimed for breach of contract. The district
court entered judgment for contractor on its claim and owner on counterclaim, resulting in net
award to owner. Appeal was taken, and the supreme court held that trial court abused its
discretion in making findings of fact and calculations supporting award of damages for lost
revenue to owner, as it had failed to take into account days in which air conditioning system
was working.
Reversed in part and remanded with instructions.
John Taylor Jensen, Chtd., Las Vegas, for Appellant.
John D. Lee, Las Vegas, for Respondents.
District court's findings will not be disturbed on appeal unless they are clearly erroneous and are not based on substantial evidence.
Arguments raised for first time on appeal need not be considered by supreme court.
3. Appeal and Error; Damages.
District court is given wide discretion in calculating award of damages, and award will not be disturbed on appeal absent abuse of
discretion.
4. Damages.
Trial court abused its discretion in making findings of fact and calculations supporting award of damages for lost revenue resulting
from breach of contract to install air conditioner compressor. Court had computed amount of lost revenue by multiplying daily amount
of damages by number of days which exceeded total number of days in period in question, and even assuming that court
had simply made mathematical error, it had failed to consider and exclude from period in question days on
which air conditioning was actually working.
in question, and even assuming that court had simply made mathematical error, it had failed to consider and exclude from period in
question days on which air conditioning was actually working.
OPINION
Per Curiam:
On August 1, 1991, Factory Service Center (FSC) entered into a five-year maintenance
contract with respondents Jeffrey Lau and Sophie Lau d/b/a El Cid Hotel a/k/a Hotel Fortune;
Paul R. Goodman and Katheryn Allene Goodman, each individually (the El Cid Group).
According to the contract, FSC was to provide maintenance to primary and secondary air
conditioning systems in the El Cid Hotel, which is owned by the El Cid Group.
On April 9, 1992, FSC and the El Cid Group entered into a second contract that provided
for the installation of a secondary air conditioner compressor into the El Cid Hotel. The price
of the contract was $13,500.00, with $6,500.00 to be paid at the execution of the contract and
the balance paid in equal payments over four months beginning thirty days after installation
of the compressor. The president of FSC executed the installation contract on behalf of FSC.
Sophie Lau (Lau) executed the contract for the El Cid Group.
On May 22, 1992, FSC completed installation of the secondary air conditioner
compressor. However, on May 27, 1992, the unit stopped working.
The El Cid Group contacted FSC to repair the air conditioning unit on several occasions
up to June 8, 1992. On June 9, 1992, FSC wrote the El Cid Group and stated that the
compressor failure was due to the El Cid Group's failure to maintain the hotel water tower
used by the compressor. On June 25, 1992, FSC wrote again demanding the El Cid Group
repair the water tower and pay the full amount of the April 1992 contract. On June 26, 1992,
Lau wrote FSC stating the hotel was losing revenue and that she demanded a refund of the
$6,500.00 already paid or a new air conditioner compressor.
Subsequently, the El Cid Group hired a contract repair person, who discovered the unit's
failure was due to a defective part. On July 7, 1992, the repair person fixed the air
conditioning unit.
In the meantime, on July 1, 1992, appellant Diamond Enterprises, Inc., d/b/a Factory
Service Center (Diamond) purchased FSC. Pursuant to the purchase, FSC assigned
substantially all of its assets to Diamond. The purchase included accounts receivable that FSC
had on its books. One of the accounts receivable was the April 1992 contract between FSC
and the El Cid Group. Subsequent to the purchase, Diamond took over the existing
operations of FSC, used the same building, and served the same clients.
over the existing operations of FSC, used the same building, and served the same clients.
Diamond operated FSC's operations under the FSC name until early 1993.
On November 16, 1992, Diamond filed a complaint against the El Cid Group for
$8,670.00 (the amount due on the April 1992 contract plus interest). On December 16, 1992,
the El Cid Group counterclaimed against Diamond for breach of contract, asking for lost
revenue as a result of the breach.
On September 21, 1995, a bench trial was conducted. On October 11, 1995, the district
court entered judgment in favor of Diamond for $15,721.48, and in favor of the El Cid Group
for $36,690.92, thus giving the El Cid Group a net award of $20,969.44, plus interest, costs,
and attorney's fees.
On November 20, 1995, Diamond filed its notice of appeal from the final judgment.
DISCUSSION
[Headnote 1]
A district court's findings will not be disturbed on appeal unless they are clearly erroneous and are not based on substantial evidence.
Gibellini v. Klindt, 110 Nev. 1201, 1204, 885 P.2d 540, 542 (1994).
Diamond raises the issue of contract successor liability. The district court found Diamond to be liable on the contract with the El Cid
Group. After a thorough review of the record, we conclude the district court did not err in its decision and, therefore, we decline to address
this issue.
[Headnote 2]
Diamond also argues that the computation of the lost profits did not reflect expenses saved by the hotel due to the decreased need for
electricity, personnel, etc. However, Diamond never made this argument to the district court before judgment was rendered. Diamond did
make this argument in a motion for reconsideration after the final judgment was entered; however, Diamond's appeal is from the final
judgment. It is well established that arguments raised for the first time on appeal need not be considered by this court. Montesano v. Donrey
Media Group, 99 Nev. 644, 650 n.5, 668 P.2d 1081, 1085 n.5 (1983), cert. denied, 466 U.S. 959 (1984). Diamond should have made this
argument below in response to the El Cid Group's counterclaim if it was to be preserved for appeal. Therefore, we conclude that Diamond
waived this issue on appeal.
Last, Diamond argues that the district court erred in computing the award of $20,969.44 ($36,690.92 in lost revenue less money due
on the service contract and interest of $15,721.4S) to the El Cid Group.
due on the service contract and interest of $15,721.48) to the El Cid Group.
[Headnote 3]
We have held that the district court is given wide discretion in calculating an award of damages, and this award will not be disturbed
on appeal absent an abuse of discretion. Flamingo Realty v. Midwest Development, 110 Nev. 984, 987, 879 P.2d 69, 71, cert. denied, 514
U.S. 1127 (1994).
[Headnote 4]
The district court awarded damages to the El Cid Group for lost profits during the period of April 10 to July 2, 1992. To compute the
damages resulting from the breach, the district court may have used an average profit for the same months of the previous three years.
Ultimately, the district court found that resulting damages were $310.94 per day for the period from April 10, 1992, to July 7, 1992,
excluding the days the air conditioner was actually working. Without indicating how many days the air conditioning system was not
working, the district court determined the amount of lost revenue was $36,690.92. This is divisible by $310.94 for a quotient of exactly 118
and, therefore, would be appropriate for 118 days of lost revenue. However, there are only 89 days from April 10 to July 7, inclusive. Thus,
even if the evidence supported the air conditioning was not working the entire period stated, the lost revenue would only be 89 multiplied
by $310.94, or $27,673.66. This is $9,017.26 less than the district court's computation of lost revenue. Assuming the district court's
calculations are correct, there is nothing in the findings of fact to support the award of the extra $9,017.26, and, therefore, the district court
abused its discretion.
An additional problem arises if we assume the district court merely made a mathematical error, and that the correct figure should have
been for the entire 89 days multiplied by $310.94, or $27,673.66. The findings of fact indicate that the damages to the El Cid Group
covered the 89-day period between April 10 to July 7, 1992, excluding days the air conditioning was actually working. Indeed, the record
shows that there was a period of time in June 1992 when the air conditioning was operational, thus reducing the number of days that the El
Cid Group was damaged. Thus, the district court abused its discretion by not making findings as to which days the El Cid Group was
actually damaged by the inoperable air conditioner. Therefore, we conclude the district court abused its discretion in the findings of fact
and calculations supporting the award of damages to the El Cid Group.
CONCLUSION
Based on the reasoning discussed above, we reverse the district court's judgment and
remand with instructions to recalculate damages and for factual findings in support of the
recalculations.
____________
113 Nev. 1380, 1380 (1997) Collins v. Murphy
WALT COLLINS and HEITMAN REAL ESTATE FUND II, and HEITMAN NEVADA
MANAGEMENT, INC., Appellants, v. ROBERT E. MURPHY and RESTAURANT
DEVELOPMENT CO., Respondents.
No. 28146
December 30, 1997 951 P.2d 598
Appeal from a post-judgment order awarding attorney's fees. Second Judicial District
Court, Washoe County; Steven R. Kosach, Judge.
Following award of damages for conversion, the district court awarded plaintiffs attorney
fees. Defendants appealed. The supreme court held that: (1) defendants were unfairly
prejudiced by plaintiffs' failure to file motion for attorney fees until after deadline of appeal
had passed, and (2) sanctions were not justified for plaintiffs' failure to cite record to support
statements of fact in appellate brief.
Vacated.
Petersen & Petersen, Reno, for Appellant Walt Collins.
Burton, Bartlett, and Glogovac, Reno, for Appellants Heitman Real Estate Fund II and
Heitman Nevada Management, Inc.
Hardesty and Bader, Reno, for Respondents.
1. Costs.
Statutory award of attorney fees to prevailing party who had recovered less than $20,000 is discretionary with district court. NRS
18.010(2)(a).
Unless there is manifest abuse of discretion, district court's award of attorney fees will not be set aside. NRS 18.010(2)(a).
3. Costs.
After deadline for appeal of $5,125 judgment had passed, trial court abused its discretion in awarding prevailing plaintiffs attorney
fees of $49,928.50. Defendants were unfairly prejudiced by plaintiffs' failure to file motion for attorney fees until after deadline for
appeal had passed, since defendants could no longer appeal judgment. NRS 18.010(2)(a).
4. Costs.
Plaintiffs' failure to support two factual assertions in appellate brief with cites to record did not justify sanctions. NRAP 28(a)(3),
28A.
OPINION
Per Curiam:
The dispute underlying the award of attorney's fees at issue here involved conflicting
claims to furniture and equipment removed from the Board of Trade restaurant.
In July 1989, Walt Collins, Inc. (WCI) sold the Board of Trade restaurant, including all
fixtures, furniture, and equipment, to Restaurant Development Company (RDC) for
$225,000.00. WCI had leased the premises on which the restaurant was located from Heitman
Real Estate Fund II and Heitman Nevada Management, Inc. (collectively Heitman); its
rights under this lease were also transferred to RDC. The purchase money was obtained
through a loan from Valley Bank of Nevada (Valley Bank). Valley Bank secured this loan
with an interest in the inventory, equipment, and furniture of the Board of Trade.
WCI remained obliged to pay rent to Heitman should RDC default under the lease.
Consequently, RDC placed in escrow an assignment and bill of sale which, in the event RDC
defaulted on the performance of its duties under the lease, would transfer to WCI all personal
property located within the Board of Trade.
In November 1989, Robert E. Murphy (Murphy) became a substitute guarantor on
RDC's note to Valley Bank. In January 1991, Valley Bank transferred its interest in the
collateral securing this note to Murphy. In 1990, RDC defaulted on the lease and on its note
to Valley Bank. Soon thereafter RDC filed for bankruptcy. Murphy paid Valley Bank
approximately $160,000.00 pursuant to his guaranty.
On October 18, 1990, Heitman, through Robert Vohl (Vohl), its attorney, notified
Murphy's attorney that Heitman sought to relet the property as soon as possible. He requested
that Murphy remove all his personal property from the premises within five days of the time
the bankruptcy court authorized the trustee to reject the lease. On November 14, 1990, the
bankruptcy court authorized the rejection. On February 1, 1991, Vohl again wrote Murphy's
attorney, informing him that a new tenant had been found and demanding that Murphy
remove his personal property from the premises. In this letter, Vohl referred to negotiations in
which Heitman had offered to purchase Murphy's interest in the property for $50,000.00, but
Murphy had stated that he would not sell for less than $178,000.00. Vohl stated in this letter
that if Murphy failed to remove the property by February 11, 1991, Heitman would be
obliged to remove it at his own expense.
that if Murphy failed to remove the property by February 11, 1991, Heitman would be obliged
to remove it at his own expense. This letter was accompanied by an inventory of the personal
property which, in Heitman's view, Murphy owned.
On February 15, 1991, Vohl wrote to both Murphy's attorney and WCI's attorney. In this
letter, Vohl notes that both WCI and Murphy had made claims to the property. Vohl also
notified the two claimants that if they did not remove the property by February 28, 1991,
Heitman would remove it and seek reimbursement for its trouble.
On February 28, 1991, Vohl again wrote to Murphy's attorney, warning him that if he did
not remove the property immediately, he risked forfeiting his interest in it. On March 15,
1991, Heitman permitted appellant Walt Collins (Collins), acting individually and not on
behalf of WCI, to enter the premises and remove the property at issue.
On June 23, 1993, Murphy and RDC (collectively respondents) filed a complaint for
conversion, breach of contract, and unjust enrichment, naming Collins and Heitman
(collectively appellants) as defendants. On January 6, 1995, appellants moved for summary
judgment. On January 25, 1995, respondents countermoved for partial summary judgment as
to the defendants' liability on the conversion and unjust enrichment claims. On January 27,
1995, respondents made two offers of judgment for $46,000.00, one to Heitman Nevada
Management, Inc., and one to Heitman Real Estate Fund II. Respondents contend that they
intended this to act as a single offer to settle with both Heitman defendants for $46,000.00
rather than $92,000.00. On March 5, 1995, the court granted partial summary judgment to
respondents as to the questions of liability, determining that Murphy's interest in the property
had priority over that of Collins.
The case proceeded to a bench trial. Respondents requested $178,000.00 in damages.
Appellants argued that the grant of partial summary judgment had not resolved all the liability
issues. Appellants also vigorously contested respondents' estimation of damages. On June 14,
1995, after a three-day bench trial, the court awarded respondents $2,000.00 in damages.
Respondents moved to amend the court's order on June 30, 1995. On August 31, 1995, the
court granted this motion in part, boosting the damage award to $5,125.00. On September 8,
1995, appellants filed the notice of entry of judgment.
On October 16, 1995, respondents moved for an award of attorney's fees. On December
26, 1995, the court ordered appellants to pay respondents $49,928.50 in attorney's fees
pursuant to NRS 1S.010{2){a).1 Appellants filed their notice of appeal of this order on
January 24, 1996.
NRS 18.010(2)(a).
1
Appellants filed their notice of appeal of this order on January 24, 1996.
DISCUSSION
Appellants contend that the district court abused its discretion by awarding attorney's fees
to respondents. Appellants argue that this court should adopt certain Arizona case law under
which, appellants argue, the award of attorney's fees would not have been justified. Although
we do not adopt the Arizona rule at issue here, we agree that the district court abused its
discretion in awarding attorney's fees to respondents.
[Headnotes 1, 2]
It is well settled that an award of attorney's fees to a prevailing party under NRS 18.010(2)(a) is within the discretion of the district
court. Cormier v. Manke, 108 Nev. 316, 317, 830 P.2d 1327, 1328 (1992). Furthermore, unless there is a manifest abuse of discretion, a
district court's award of attorney's fees will not be set aside. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138,
1139-40 (1994). An abuse of discretion is [a] clear ignoring by the court of [applicable legal principles], without apparent justification.
Hotel Last Frontier v. Frontier Prop., Inc., 79 Nev. 150, 154, 380 P.2d 293, 294 (1963).
Appellants urge this court to adopt the rule enunciated in Associated Indemnity v. Warner, 694 P.2d 1181 (Ariz. 1985). In Associated
Indemnity, the Arizona Supreme Court set forth six factors to be considered by the trial court in determining whether to award attorney's
fees under ARS 12-341.01
2
, a statute which provides for the discretionary award of attorney's fees to the prevailing party in contract
actions, regardless of the amount of recovery. The district court in this case based its award of attorney's fees on NRS 18.010(2)(a), which
provides for an award of attorney's fees to a prevailing party who has recovered less than $20,000.00.
__________

1
2. 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; or
(b) Without regard to the recovery sought, when the court finds that the claim, counterclaim, cross-claim, or third-party
complaint or defense of the opposing party was brought without reasonable ground or to harass the prevailing party.

2
ARS 12-341.01 reads in relevant part:
A. In any contested action arising out of a contract, express or implied, the court may award the successful party reasonable
attorney's fees.
less than $20,000.00. Thus, the statutory scheme at issue in Associated Indemnity differs
completely from NRS 18.010(2)(a). For this reason, we conclude that the Associated
Indemnity factors do not apply to NRS 18.010(2)(a).
Appellants further argue that the award of attorney's fees caused them unfair prejudice
because respondents filed their motion for attorney's fees after the time had expired for
appellants to appeal the original judgment. We agree.
In Davidsohn v. Steffens, 112 Nev. 136, 911 P.2d 855 (1996), this court ruled that a party
suffered from unfair prejudice where attorney's fees were awarded upon a motion the
opposing party filed after the time for appeal had expired. Respondents argue that Davidsohn
is factually distinguishable from the case here. In Davidsohn, the motion for attorney's fees
was made three months after judgment was entered. In that time, the district judge, who had
denied an earlier motion for attorney's fees, had died and a visiting district judge had awarded
the fees. Id. at 140, 911 P.2d at 857. Despite these differences, we conclude that the primary
thrust of Davidsohn is that [appellant] was prejudiced by the delay since he received no
notice that [respondent] would seek fees until after the deadline for filing an appeal had
passed. Id. at 140, 911 P.2d at 857.
When a party seeks to appeal a judgment, notice of that appeal must be filed within thirty
days of written notice of the judgment's entry. NRAP 4(a)(1). Here, the notice of entry of
judgment was filed on September 8, 1995. Respondents filed their motion for attorney's fees
on October 16, 1995, thirty-eight days later. Thus, by the time respondents filed their motion
for attorney's fees, appellants could no longer appeal from the original judgment, even
allowing time for service by mail of the notice of entry of judgment.
[Headnote 3]
Respondents obtained a judgment for $5,125.00. Appellants could well have anticipated that it would cost more than this to pursue
even a meritorious appeal. However, appellants would have had a much greater incentive to pursue an appeal had they known that this
judgment could be relied upon to support an attorney's fees award of nearly $50,000.00. Therefore, we conclude that appellants were
unfairly prejudiced by respondents' failure to file their motion for attorney's fees until after the deadline for an appeal had passed.
Appellants further urge the court to sanction respondents for stating, without citing to the record, that Heitman is a huge real estate
holding company, and Collins is a highly successful businessman.
[Headnote 4]
NRAP 28(a)(3) requires parties to provide citations to the record to support statements of fact. NRAP 28A provides that this court may
sanction a party for failure to comply with Rule 28. In Smith v. Emery, 109 Nev. 737, 856 P.2d 1386 (1993), this court sanctioned a party
with a $1,000.00 penalty for failing to provide even a single citation to the record on appeal. Id. at 743, 856 P.2d at 1390. Here,
respondents failed to support only two factual assertions with cites to the record. Therefore, we conclude that sanctions are not justified
here.
Because respondents filed their motion to recover attorney's fees after appellants' time to appeal the original judgment had passed, we
vacate the order awarding attorney's fees to respondents.
____________
113 Nev. 1385, 1385 (1997) Bullock v. Pinnacle Risk Mgmt.
JIM BULLOCK, Appellant, v. PINNACLE RISK MANAGEMENT, and SMITH'S FOOD
AND DRUG CENTERS, Respondents.
No. 28201
December 30, 1997 951 P.2d 1036
Appeal from an order of the district court denying a petition for judicial review of an
administrative agency determination. Eighth Judicial District Court, Clark County; Joseph T.
Bonaventure, Judge.
Hearing officer denied claimant's claim for workers' compensation benefits. Claimant
petitioned for judicial review. The district court denied the petition. Claimant appealed. The
supreme court held that: (1) substantial evidence did not support hearing officer's conclusions
that claimant had no objective symptoms of injury, that claimant failed to establish exact date
of injury, and thus that claimant had no compensable industrial injury, and (2) remand was
necessary for determination of whether claimant's failure to file notice of injury should be
excused.
Michael Paul Wood, Las Vegas, for Appellant.
McGroarty & Lane, Las Vegas, for Respondents.
Supreme court's role in reviewing administrative decision is identical to that of the district court.
Decision of administrative agency will be affirmed if substantial evidence exists to support it.
In review of administrative agency decision, questions of law are reviewed de novo.
Actual notice or knowledge of injury by employer may excuse statutory requirement of timely, formal notice of injury. NRS
616.500 (now NRS 616C.015).
In order for incident to qualify as injury by accident, for which claimant can recover workers' compensation benefits, claimant
must show: (1) unexpected or unforeseen event; (2) happening suddenly and violently; and (3) producing at the time, or within
reasonable time, objective symptoms of injury. NRS 616.020 (now NRS 616A.030), 616.370(1) (now NRS 616A.020(1)).
Substantial evidence did not support workers' compensation appeals officer's conclusions that claimant had no objective symptoms
of injury, that claimant failed to establish exact date of injury, and thus that claimant had no compensable industrial injury. Co-worker
saw claimant work in pain, though claimant was able to complete his shift and did not immediately file formal report of injury, and
evidence documented that injury did in fact occur around the date alleged by claimant. NRS 616.020 (now NRS 616A.030),
616.370(1) (now NRS 616A.020(1)).
OPINION
Per Curiam:
While working as a night stocker at Smith's Food King (Smith's) on November 16,
1993, Jim Bullock attempted to pull down a case of sixty-four-ounce juice containers from a
top shelf and felt a slight pain in his left arm and shoulder. Thinking that he had only pulled a
muscle, Bullock did not seek immediate medical attention and was able to finish his shift.
After completing his shift at the market, however, Bullock sought treatment from a
chiropractor, Dr. Craig Reeves. Dr. Reeves noted pain and tenderness at the base of Bullock's
neck into his left shoulder. Dr. Reeves treated Bullock two more times, on November 17 and
18, 1993. Bullock's condition did not improve with each visit, and he continued to experience
moderate pain and tenderness in his neck and shoulder.
The pain in Bullock's arm and shoulder increased, and on November 24, 1993, Bullock
sought medical care at the Desert Springs Hospital emergency room. Emergency room
doctors told Bullock that he had suffered a bad muscle strain and referred him to Dr. Richard
Briggs. Dr. Briggs placed Bullock in physical therapy and issued an off-work slip dated
December 17, 1993. Bullock applied for sick leave but was subsequently informed by a
supervisor, Paul Swords, that sick leave would not be authorized because the injury was
work-related.
Bullock applied for sick leave but was subsequently informed by a supervisor, Paul Swords,
that sick leave would not be authorized because the injury was work-related. Bullock testified
that Swords asked him if he wanted to fill out an accident report. Bullock responded that he
could afford to take a couple of weeks off from work, and that he preferred to wait for a
medical opinion indicating whether or not his injuries would prevent him from returning to
work within this time frame.
Dr. Briggs, after concluding that Bullock's injuries were more serious than he originally
thought, referred Bullock to an orthopaedic surgeon, Dr. Francis D'Ambrosio. Bullock
returned to Desert Springs Hospital on January 13, 1994, to complete a compensation claim
form (C-4 form). Bullock gave the completed form to Swords, who relayed the information
over the telephone to Pinnacle Risk Management (Pinnacle), Smith's insurance
administrator. Pinnacle referred the matter for investigation to an insurance adjustor. The
investigator interviewed Bullock, Bullock's co-worker, Frank Bastida, and Bullock's
supervisor, Matt Samp, and in a written report concluded:
It appears the incident did happen as related by the employee, as it is substantiated by
the co-worker. The co-worker did not actually see anything happen, but he has a clear
recall of watching the employee work in pain and recalls asking the employee what
happened. There apparently was no sudden trauma or violent reaction, merely a strain
that caused increasing pain, with no restrictions nor impairment. As such, the employee
did not deem it necessary to immediately file a formal report of an on the job injury.
In a letter dated February 3, 1994, Pinnacle denied Bullock's claim, finding no on-the-job
injury and no indication of a timely reporting. Bullock appealed to the Department of
Administration, and a hearing officer reversed the insurer's denial. Smith's and Pinnacle
(Respondents) appealed the hearing officer's decision, and the appeals officer ordered the
decision reversed. The appeals officer found that Bullock failed to report his injury in a
timely manner as required by former NRS 616.360(1),
1
that Bullock had not sustained a
compensable industrial injury, and that Bullock failed to provide written notice of his injury
within thirty days of the accident as required by former NRS 616.500(1).
__________

1
NRS 616.010-616.750 has been replaced in revision by NRS 616A.005-616D.020. All references will be to
the statutes in effect at the time of the appeals officer's decision.
Bullock filed a petition in district court requesting judicial review of the appeals officer's
decision. The district court denied Bullock's petition. Bullock timely appeals.
[Headnotes 1-3]
This court's role in reviewing an administrative decision is identical to that of the district court. Titanium Metals Corp. v. Clark
County, 99 Nev. 397, 399, 663 P.2d 355, 357 (1983). A reviewing court shall not substitute its judgment for that of the agency in regard to
questions of fact. NRS 233B.135(3). The standard of review is whether the agency's decision was clearly erroneous or an arbitrary abuse of
discretion. NRS 233B.135(3)(e) and (f); Collett Electric v. Dubovik, 112 Nev. 193, 196, 911 P.2d 1192, 1195 (1996). The decision of the
agency will be affirmed if substantial evidence exists to support it. SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987). Questions
of law are reviewed de novo. Collett, 112 Nev. at 196, 911 P.2d at 1195. However, an agency's conclusions of law which are closely
related to the agency's view of the facts are entitled to deference and should not be disturbed if they are supported by substantial evidence.
SIIS v. Khweiss, 108 Nev. 123, 126, 825 P.2d 218, 219 (1992).
Whether Bullock's failure to report his injury bars his claim
Bullock's claim was denied, in part, because he did not file a written notice of his injury pursuant to NRS 616.500(1).
2
Bullock does
not dispute that he failed to file a written claim for an industrial injury in a timely manner. Bullock argues, however, that his failure to file a
written claim should have been excused.
[Headnote 4]
Under NRS 616.5011, an insurer may excuse a claimant's failure to file a notice of injury.
3
Actual notice or knowledge of an injury
by the employer may also excuse timely, formal notice.
__________

2
1. An employee . . . shall provide written notice of an injury that arose out of and in the course of employment to the
employer of the employee as soon as practicable, but within 30 days after the accident.
2. The notice required by subsection 1 must:
(a) Be on a form prescribed by the administrator. . . .
. . . .
4. An employer shall maintain a sufficient supply of the forms required to file the notice required by subsection 1 for use by
his employees. . . .

3
An insurer may excuse the failure to file a notice of injury or a claim for compensation pursuant to the provisions of this
section if:
(a) The injury to the employee or another cause beyond his control prevented him from providing the notice or claim;
injury by the employer may also excuse timely, formal notice. See Brocas v. Mirage Hotel &
Casino, 109 Nev. 579, 584-85, 854 P.2d 862, 866-67 (1993); Industrial Commission v. Adair,
67 Nev. 259, 217 P.2d 348 (1950). This court recently addressed the issue of whether a
claimant's noncompliance with NRS 616.500 should be excused. See Bally's Grand Hotel &
Casino v. Reeves, 113 Nev. 926, 948 P.2d 1200 (1997). We held that the determination of
whether an excuse exists that would permit the claimant to go forward with her or his
complaint must be made by the insurance administrator. Id. at 929-30, 948 P.2d at 1203.
Therefore, we remand this case to the administrator for consideration of the issue of whether
Bullock's failure to comply with the notice requirements of NRS 616.500 should have been
excused.
4
Whether Bullock sustained a compensable industrial injury
[Headnote 5]
To recover workers' compensation benefits, Bullock must show that an injury by accident occurred. See NRS 616.370(1). In order for
an incident to qualify as an accident, the claimant must show the following elements: (1) an unexpected or unforeseen event; (2) happening
suddenly and violently; and (3) producing at the time, or within a reasonable time, objective symptoms of injury. Brocas, 109 Nev. at 586,
854 P.2d at 867 (citing American Int'l Vacations v. MacBride, 99 Nev. 324, 326-27, 661 P.2d 1301, 1303 (1983)); NRS 616.020.
[Headnote 6]
The appeals officer found that Bullock failed to establish that he sustained a compensable industrial injury. The appeals officer's
determination was based on the lack of evidence that Bullock's injury produced objective symptoms and on the
finding that Bullock's documentation failed to establish an exact date of injury.
__________
(b) The failure was caused by the employee's or dependent's mistake or ignorance of fact or of law;
(c) The failure was caused by the physical or mental inability of the employee or the dependent; or
(d) The failure was caused by fraud, misrepresentation or deceit.

4
Bullock argues that his failure to give timely written notice should be excused on two grounds: (1) his employer failed to provide the
necessary notification forms, which was an act beyond Bullock's control that prevented him from providing notice, see NRS
616.5011(2)(a), and (2) his ignorance of the severity of his injury caused him to delay filing a formal written notice with his employer, see
NRS 616.5011(2)(b). There is also evidence that Bullock put his supervisor, Paul Swords, on notice of his injury when Bullock requested
and was denied sick leave. Swords testified, There was something on sick leave and all that has to go through Bruce Gelbert. I think Jim
[Bullock] notified me of that, and I notified him that he has [to] go through Bruce Gelbert because it was an accident claim. (Emphasis
added). Thus, Bullock may have a claim of actual notice or knowledge. It does not appear from the record that the insurance administrator
considered any of these excuses.
cer's determination was based on the lack of evidence that Bullock's injury produced
objective symptoms and on the finding that Bullock's documentation failed to establish an
exact date of injury.
After reviewing the evidence in this case, we conclude that substantial evidence does not
exist to support the appeals officer's conclusion that no objective symptoms of injury existed.
Further, although Bullock's testimony as to the exact date of his injury is inconsistent with the
dates on various medical reports, we conclude that this inconsistency was improperly used to
deny Bullock's claim where the evidence documents that an injury did in fact occur around
the date alleged by Bullock.
The order of the district court is reversed, and the case is remanded to the district court
with instructions to remand to the insurance administrator for reconsideration of the issue of
whether Smith's failure to file a timely notice of his injury may be excused.
5
____________
113 Nev. 1390, 1390 (1997) Merrill v. DeMott
R. THOMAS MERRILL, Appellant, v. JOHN DeMOTT; WALDON RANDALL WELTY;
JEFF GOETCH; JEFFJOHN, INC., and WILD J'S, INC., Respondents.
No. 28369
December 30, 1997 951 P.2d 1040
Appeal from a judgment of the district court in respondents' favor on a claim and
counterclaim relating to breach of a lease agreement. Eighth Judicial District Court, Clark
County; Don P. Chairez, Judge.
Lessor brought action to recover rent allegedly due under lease agreement, and lessees
counterclaimed for declaration that lease agreement was not enforceable. Following trial, the
district court entered judgment for lessees on both claim and counterclaim, and lessor
appealed. The supreme court held, in a case of first impression, that: (1) lessees were
estopped from denying lessor's right to enforce lease on grounds that lessor had not obtained
fee title at time lease was executed; (2) lease that was arguably invalid at time of execution
was ratified both by conduct and express agreement of parties; and (3) written rent
concessions by lessor did not constitute waiver of lessees' performance under lease.
__________

5
We have considered all other issues on appeal and conclude that they are without merit.
Ralph J. Rohay, Las Vegas, for Appellant.
Neil J. Beller, Las Vegas, for Respondents.
1. Landlord and Tenant.
Lessees were estopped from denying lessor's right to enforce commercial lease on grounds that lessor had not obtained fee title at
time lease was executed. Lessees took possession, made improvements, paid rents, and sublet property while fully aware of lessor's
ownership status at time lease was executed, and lessor relied to his detriment on lease by taking property off market when he entered
into negotiations with lessees, keeping it off market for period during which lessees had possession, and leasing adjacent property from
neighboring owner for parking purposes.
2. Estoppel.
Estoppel requires an element of justifiable reliance by party invoking doctrine.
Commercial lease that was arguably invalid at time of execution only because lessor had not yet obtained fee title to property was
ratified by conduct of lessees in continuing to occupy property after lessor obtained fee title, paying rent due under lease, and executing
sublease and a guarantee of sublessee's compliance with master lease.
4. Contracts.
Generally, contract ratification is the adoption of a previously formed contract, notwithstanding a quality that rendered it
relatively void. Party ratifying contract becomes bound by it and entitled to all proper benefits from it.
Commercial lease that was arguably invalid when executed because lessor had not yet obtained fee title to property was
subsequently ratified by express agreement of parties that lessees would receive two weeks free rent in exchange for, among other
things, releasing lessor from any liability relating to his ownership status at time lease was executed.
Lessor of commercial property did not waive right to enforce contingency clause under which lessees' option to cancel lease if they
were unable to obtain adult use permit would expire after 30 days of commencement of lease; concessions of free rent for certain
discrete periods including first month of lease did not show intentional relinquishment of right to collect future rents.
Issues of whether a waiver of obligations under lease has been implied by conduct are questions for finder of fact.
Whether written rent concessions by lessor amounted to a waiver of lessees' performance under lease was question of law subject
to de novo review.
9. Estoppel.
Waiver must involve intentional relinquishment of a known right.
OPINION
Per Curiam:
This case involves a lessor's attempt to recover damages for lessees' claimed breach of a
contract regarding a five-year lease of commercial property in Las Vegas, Nevada. In July
1993, R. Thomas Merrill contracted to purchase commercial real estate located at 2875
Industrial Road, Las Vegas, Nevada, for the sum of $635,000.00. In order to qualify for the
purchase money loan necessary to close escrow, Merrill needed to procure a credit-worthy
tenant. With the aid of a real estate agent, Merrill entered into negotiations with John DeMott
concerning a lease arrangement.
DeMott and his business partner, Waldon Randall Welty, intended to use the property as
an expansion of their adult book store and video arcade, Wild J's Book & Video (Wild J's).
The new expansion was to consist primarily of a cabaret, and all parties were aware that
DeMott and Welty would need to procure an appropriate adult use permit. The parties were
also aware that parking arrangements would be necessary for issuance of the permit; and they
speculated that a contiguous lot owned by the Nevada Power Company could be leased for
parking purposes.
Merrill entered into a sixty-month lease agreement with DeMott and Welty on January 14,
1994, specifying a lease commencement date of January 1, 1994, despite the fact that escrow
had not yet closed on Merrill's purchase of the property. The agreement provided that Merrill
would assign the anticipated lease of the parking lot owned by the Nevada Power Company to
DeMott and Welty. Although the language in the lease consistently referred to Merrill as
Landlord, and defined Landlord as the owner of fee title, Merrill did not actually
become the owner of the fee title until escrow closed on February 8, 1994.
The lease contract between Merrill, DeMott, and Welty contained a contingency clause
giving DeMott and Welty the right to cancel the lease with a full refund of rents and deposits
if they were unable to obtain an adult use permit for the cabaret within thirty days after the
lease commenced. The lease also provided that DeMott and Welty would receive the month
of January 1994 and the first month all improvements are completed and approved (totaling
two months) rent free. A merger clause was also included, specifying, in pertinent part, that
no prior agreement or understanding pertaining to [the lease] shall be effective, and that the
lease could be modified in writing only. Finally, the lease contained a waiver clause
specifying that Merrill's waiver of any lease provision shall not be deemed a waiver of any
other provision or of any subsequent breach by DeMott and Welty.
waiver of any other provision or of any subsequent breach by DeMott and Welty.
DeMott claims to have been denied consideration of his application for an adult use permit
at some time after the lease was executed, allegedly due to the fact that Merrill did not yet
own the property. This claim was never confirmed because DeMott's testimony on this matter
was apparently a hearsay account of what his now deceased employee relayed to him after
returning from the Clark County permit office, and the permit office has no record of his
employee's visit.
Despite the claimed bar to application for the permit, DeMott and Welty took possession
of the property and began improvements at the beginning of February 1994. DeMott testified
that he thought the lease was cancelled by his inability to obtain the permit, but proceeded
with the planned renovations in anticipation of salvaging the deal.
Merrill obtained legal title to the property when escrow closed on February 8, 1994. The
parties had previously agreed that DeMott and Welty would sublease the property to JeffJohn,
Inc., a California corporation with Jeff Goetch as president and DeMott as secretary,
treasurer, and sole stockholder. DeMott's and Welty's attorney, Neil Beller, sent a letter to
Merrill, including the proposed sublease contract, on February 8, 1994. The parties also
agreed that DeMott and Welty would receive free rent from February 1, 1994, to February 15,
1994, in consideration for giving Merrill a construction schedule by March 1, 1994, and a set
of plans for the improvements by March 30, 1994, as well as releasing Merrill from any
claims relating to his ownership of the property during the lease period. Pursuant to this
agreement, Beller sent Merrill's attorney, Gary B. Torpy, a letter dated March 7, 1994, stating,
in pertinent part, that his clients release any claim arising out of or relating to the question of
whether [Merrill] owned the property during any period of time in which the Master Lease
was in effect. DeMott and Welty signed the letter.
The sublease commenced on March 1, 1994, and ran for the remainder of the sixty-month
master lease period. The sublease provided that the sublessee would assume all remaining
obligations of the sublessor under the master lease. In addition, DeMott and Welty provided a
written guarantee of the sublessee's prompt payment and performance of each and every
one of the terms, conditions, and covenants of the master lease.
On March 11, 1994, Merrill and the Nevada Power Company executed a lease under
which the lot adjacent to Merrill's property could be used as customer parking for the cabaret.
On the same day, DeMott and Welty filed an application for the adult use permit.
use permit. The permit office denied the application on March 24, 1994, citing insufficient
parking as the basis for denial. Irene Navis, who processes the adult use permit applications
for Clark County, testified that the leased lot failed to satisfy the parking requirement because
the Nevada Power Company owned the lot, rather than Merrill. She told Beller that the only
way that [he] could use the Nevada Power property for parking was if Mr. Merrill owned the
property also, and that he could, then, administratively combine the one bar through the
assessor's office.
On March 25, 1994, the day after the permit office denied the adult use permit application,
Beller sent Torpy a letter attempting to cancel the lease as provided in the contingency clause.
Beller wrote, Please be advised that my client's application for a zoning variance was turned
down due to insufficient parking. Pursuant to [the contingency clause] of the Lease, we wish
to cancel the Lease and request a refund of all monies which have been paid to date. Despite
the assertion of Beller's letter, he did not in fact apply for a zoning variance. DeMott testified
that he did not apply for a zoning variance or appeal the permit denial because of the time
involved and low probability of success.
Following Beller's letter attempting to cancel the lease, Merrill put his property back on
the lease market. He found a new tenant, who signed a lease on September 13, 1994, and
began rent payments on December 1, 1994; however the payments were substantially lower
than Merrill had expected under the lease with DeMott and Welty.
Merrill filed suit, seeking to recover rent due under the lease agreement, and DeMott,
Welty, Goetch, JeffJohn, Inc., and Wild J's, Inc. (Respondents) filed a counterclaim for
declaratory relief, seeking a declaration that the lease agreement was not enforceable, and
attorneys' fees. Following a trial, the district court entered judgment for Respondents on both
the claim and counterclaim, from which Merrill now appeals.
The district court found that the initial master lease agreement was void ab initio as a
matter of law because Merrill was not yet the fee title owner of the leased property. Although
Merrill argues that procurement of a credit worthy tenant is a common prerequisite for
obtaining a purchase money mortgage needed to close escrow, he does not challenge the
finding of initial invalidity on appeal. All of Merrill's arguments posit subsequent validation
of the lease as a result of events occurring after he obtained fee title to the property.
Accordingly, we decline to consider whether the lease was void at the time of execution as a
matter of law. The dispositive issues, as discussed below, are whether Respondents'
acceptance of benefits under the lease should estop them from challenging its validity, and
whether the parties' conduct or agreement subsequent to Merrill's acquisition of fee title
to the property ratified the lease.
them from challenging its validity, and whether the parties' conduct or agreement subsequent
to Merrill's acquisition of fee title to the property ratified the lease.
Estoppel
[Headnote 1]
Merrill argues that, although the lease may not have been valid at the time of execution, Respondents are barred from denying the
lease's validity under principles of estoppel. Respondents argue that estoppel should not apply because Merrill did not alter his position in
detrimental reliance on Respondents' conduct.
Although this issue is one of first impression in Nevada, treatises and courts of other states have addressed analogous situations.
Merrill emphasizes that [t]he rule is well settled that during the existence of the relation of landlord and tenant, a tenant is estopped to
deny a landlord's title or to challenge or dispute it. 49 Am. Jur. 2d Landlord and Tenant 915, at 734 (1995) (footnotes omitted). This is
because, absent a disturbance of possession, an adverse claim to property has no effect upon the lease. Id. 917, at 735-736 (footnote
omitted); see, e.g., Campbell v. Hensley, 450 S.W.2d 501 (Ky. 1970); Rockport Shrimp Cooperative v. Jackson, 776 S.W.2d 758, 760
(Tex. Ct. App. 1989) (As a general rule, as long as the tenant is not disturbed in its possession, a tenant is estopped to deny his landlord's
title or to claim adversely to him, and it is immaterial whether the landlord had title at the time the lease was entered into.).
While the principle set forth above is useful as a policy guideline, it is not dispositive in the instant case because Merrill is not
appealing the district court's determination that the lease was invalid at the time of execution. Estopping Respondents from denying
Merrill's title to the property was relevant only to the determination of whether the lease was enforceable at the time of its inception. Hence,
the narrow issue before us today is whether Respondents are presently estopped from denying Merrill's right to enforce the lease.
General principles of estoppel provide that [a] party to a lease may be estopped from asserting that the lease is invalid. 49 Am. Jur.
2d 34, at 74 (footnote omitted). Where a lessee has entered under his lease and occupied or enjoyed the premises, he and his assignees
are alike estopped to repudiate the lease because of irregularities affecting, or defects in, such lease. 51C C.J.S. Landlord and Tenant
228(2), at 573 (1968); see, e.g., Crown Coco, Inc. v. Red Fox Restaurant of Royalton, Inc., 409 N.W.2d 919 (Minn. Ct. App. 1987). In
Crown Coco, a property owner sued its tenant for rents and taxes owed under a ten-year commercial lease, and the
court concluded that "[a] tenant who has taken possession of the premises and paid rent under the lease may
not later rely on an alleged defect[] . . . to avoid rent and other obligations under the lease."
sued its tenant for rents and taxes owed under a ten-year commercial lease, and the court
concluded that [a] tenant who has taken possession of the premises and paid rent under the
lease may not later rely on an alleged defect[] . . . to avoid rent and other obligations under
the lease. See also Arvanetes v. Gilbert, 143 So.2d 825 (Fla. Dist. Ct. App. 1962) (Despite
tenant's abandonment of the property, tenants were estopped from denying validity of the
five-year lease after taking possession and occupancy of the property and subletting it to a
third party.); Lake Shore Management Co. v. Blum, 235 N.E.2d 366, 369 (Ill. App. Ct. 1968)
(Having taken possession and paid rents, the lessees cannot question the validity of the
execution of the lease.).
[Headnote 2]
Estoppel also requires an element of justifiable reliance by the party invoking the doctrine. Richard A. Lord, 2 Williston on Contracts,
6:62, at 757 (4th ed. 1991). In the instant case, Respondents reply to Merrill's estoppel argument with the assertion that Merrill did not
detrimentally rely on the lease contract. Respondents fail to address the fact that Merrill took the property off the market after he entered
into negotiations with DeMott, kept it off the market for the period during which DeMott and Welty possessed the property, and leased the
adjacent lot from the Nevada Power Company for cabaret parking purposes. We conclude that each of these actions constituted detrimental
reliance by Merrill.
DeMott and Welty undisputedly improved the property, paid rents owed under the lease, and sublet the property to JeffJohn, Inc. These
actions were taken after all parties were made fully aware that the property was still in escrow at the time that the lease was executed.
DeMott's and Welty's improvement of the leased property in preparation for the opening of the cabaret amounted to possession and use of
the premises pursuant to their rights under the lease.
1
Because DeMott and Welty took possession of the property as a benefit of the lease,
paid rent under the lease, and were fully aware of Merrill's ownership status at the time the lease was executed, we conclude that the district
court erred in holding that Respondents were not estopped from denying Merrill's right to enforce the lease.
Ratification by conduct
[Headnotes 3, 4]
The doctrine of ratification by conduct is similar in application to the principle of estoppel discussed above; however, it operates to
make the contract legally valid rather than simply preventing a party from challenging the contract's validity.
Id. In addition, it is based on a theory of mutual assent, which does not require the showing of detrimental
reliance necessary for estoppel. Id. "Generally, contract ratification is the adoption of a previously formed
contract, notwithstanding a quality that rendered it relatively void and by the very act of ratification the party
affirming becomes bound by it and entitled to all proper benefits from it."
__________

1
The improvements were relatively extensive, including removal of the old walls and installation of acoustic texture, tiles, and
plumbing.
to make the contract legally valid rather than simply preventing a party from challenging the
contract's validity. Id. In addition, it is based on a theory of mutual assent, which does not
require the showing of detrimental reliance necessary for estoppel. Id. Generally, contract
ratification is the adoption of a previously formed contract, notwithstanding a quality that
rendered it relatively void and by the very act of ratification the party affirming becomes
bound by it and entitled to all proper benefits from it. Shagun v. Scott Mfg. Co., 162 F. 209,
219 (8th Cir. 1908).
Respondents rely on Clark Realty Co. v. Douglas, 46 Nev. 378, 212 P. 466 (1922), for
their proposition that occupancy of land and payment of rent under an invalid lease creates
only a month-to-month or year-to-year tenancy. The district court was apparently persuaded
by this citation, as it found that the initially invalid lease between Merrill and Respondents
effected a tenancy at will.
A closer reading of Clark suggests an entirely different conclusion. In Clark, the court
declined to find that a mere periodic tenancy resulted from the invalid lease because a void
lease, inasmuch as the lessor had no authority to make it, . . . was not, properly speaking, an
invalid lease; . . . it complied with all the legal requirements as to form and substance. Id. at
387, 212 P. at 469. The court observed that a periodic tenancy results only when the lease is
inherently inadequate, as when it violates the statute of frauds. Id. at 385-86, 212 P. at 468.
The court went on to hold that the lease had been ratified by subsequent conduct of the
parties, applying the general rule that [o]ccupation of the premises by lessee, and payment of
rent according to the terms of the lease, is usually held to be a ratification by the lessee of an
invalid lease. Id. at 386, 212 P. at 468 (citing to 24 Cyc. 911).
In addition to Respondents' payment of rent and possession of the property, Merrill argues
that Respondents' entry into a sublease agreement, in which DeMott and Welty subleased the
property to JeffJohn, Inc., effectively ratified the master lease. DeMott's and Welty's written
guarantee that JeffJohn, Inc. would pay all rent and satisfy each and every one of the terms,
conditions, and covenants of the master lease certainly seems to express an intent to be
bound by the master lease. While Merrill cites to persuasive authority for the proposition that
an assignment serves to ratify a previously invalid lease as a matter of law,
2
he provides no
authority suggesting that this rule applies to subleases. However, the sublease and DeMott's
and Welty's guarantee of compliance with the terms of the master lease provide powerful
corroboration for Merrill's assertion that the parties conducted themselves as though they
intended to be bound by the master lease.
__________

2
See Mackey v. Philzona Petroleum Co., 378 P.2d 906 (Ariz. 1963).
parties conducted themselves as though they intended to be bound by the master lease.
We find that the lease in the instant case falls squarely under the rule of ratification as
expressed in Clark because it is valid as to form and substance, and was arguably invalid at
the time of execution due only to Merrill's lack of authority to lease land which he did not
yet own. After Merrill cured his lack of authority to lease the property by obtaining fee title at
the close of escrow, Respondents continued to occupy the premises and pay rent due under
the lease. Respondents' sublease and guarantee further evidenced their intent to be bound by
the terms of the master lease. This conduct satisfies the requirements for ratification under
Clark. Accordingly, we conclude that the district court erred in failing to find that the lease
agreement was ratified by the parties' conduct subsequent to Merrill's acquisition of fee title
to the leased property.
Ratification by agreement
[Headnote 5]
Merrill argues that the original lease agreement was ratified by express agreement in addition to conduct. Specifically, he refers to the
agreement that DeMott and Welty would receive two weeks free rent in exchange for, among other things, releasing Merrill from any
liability relating to his ownership status at the time the original lease was executed.
Respondents' release was provided in a letter from their attorney to Merrill's attorney, stating that Respondents release any claim
arising out of or relating to the question of whether [Merrill] owned the property during any period of time in which the Master Lease was
in effect. Respondents argue that this letter constitute[s] nothing more than further negotiations and serves to highlight the fact that
everyone was limping along on a month-to-month tenancy. We conclude that Respondents' claims that the lease was void ab initio, and
that the letter was a mere negotiation, are inconsistent with the language referring to any period of time in which the Master Lease was in
effect. If the parties mutually believed that no contract had ever gone into effect and that all of their correspondence to date was purely
negotiation, then the exchange of a two-week rent credit for the foregoing liability release would have been pointless.
Having determined that the rent credit for liability release exchange constituted a binding contract rather than a mere negotiation, the
issue of whether the original lease was ratified by agreement turns on whether relinquishment of claims arising out of or relating to the
question of whether [Merrill] owned the property effects a ratification. We conclude that the agreement did serve to ratify the
original lease based on the apparent intent of the parties.
did serve to ratify the original lease based on the apparent intent of the parties. While Merrill
could possibly have anticipated consequential damage to Respondents as a result of permit
issuance delays caused by Merrill's late acquisition of title, this seems unlikely. Respondents
had already commenced renovation of the property without the permit, and did not otherwise
delay their operations pending issuance of the permit. Accordingly, we conclude that the
mutually understood purpose of Merrill's rent credit offer was to dispel any uncertainty about
his ability to hold Respondents to the lease, and that the district court therefore erred in
holding that the agreement did not effect a ratification of the original lease.
Waiver of performance
[Headnotes 6-8]
Having concluded that the original lease became enforceable at some time after Merrill acquired title to the property in question, there
remains the issue of whether Merrill subsequently waived Respondents' performance under the lease. The district court found that Merrill
waived performance by [Respondents] when he allowed [them] to continue seeking county approval without paying rent. Issues of
whether a waiver has been implied by conduct are questions for the finder of fact. Parkinson v. Parkinson, 106 Nev. 481, 796 P.2d 229
(1990). Because the question of whether a waiver occurred in this case turns on the legal implications of Merrill's written rent concessions
rather than on whether such concessions were made or on the implications of Merrill's conduct, the determination of whether Merrill
thereby waived Respondents' performance is a question of law, and therefore subject to de novo review. See SIIS v. United Exposition
Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993) (summarizing authority for the conclusion that matters of law are appropriate for
de novo review).
It is clear that, absent a waiver, Beller's March 25, 1994 letter to Torpy, attempting to cancel the lease pursuant to the contingency
clause, was legally ineffective because the clause specified that cancellation based on inability to obtain an adult use permit would not be
allowed after February 1, 1994. Although Respondents argue that the parties mutually understood that the lease could not stand unless
Respondents were able to obtain an adult use permit, the clear language of the contingency clause shifted the risk entirely to Respondents
after February 1, 1994, holding them to the lease regardless of whether they were able to obtain a permit. Furthermore, the merger clause
provides that [n]o prior agreement or understanding pertaining to any such matter shall be effective, and that the lease may be modified
in writing only.
[Headnote 9]
The district court concluded that Merrill waived Respondents' performance under the lease on the basis of Merrill's rent concessions.
Respondents argue that Merrill's rent concessions waived the rent as well as the time limitations as a part of continuing negotiation. In
order for Merrill's concessions to constitute a waiver, they must have involved the intentional relinquishment of a known right. Mahban v.
MGM Grand Hotels, 100 Nev. 593, 596, 691 P.2d 421, 423 (1984). Hence, Merrill must have intentionally relinquished his right to collect
future rents or to hold Respondents to the February 1, 1994, expiration date of the contingency clause in order to effect a waiver.
The record and pleadings reflect only two instances in which Merrill allowed rent concessions varying from the otherwise applicable
rent schedule. The first such instance is a clause in the original lease itself, providing, in pertinent part, that Respondents will receive the
month of January 1994 and the first month all improvements are completed and approved (totaling two months) rent free. This provision
does not have the legal effect of relinquishing the general right to collection of future rents under the lease, either intentionally or
unintentionally. The provision is an element of the lease itself, and simply provides a small exception to the otherwise applicable rent
schedule. If the clause effected a waiver, it waived only the right to collection of rent during the month of January 1994 and the first month
all improvements are completed and approved. The obvious limitation of the rent concession is bolstered by the waiver clause in the lease,
which provides that [n]o waivers by [Merrill] of any provision hereof shall be deemed a waiver of any other provision hereof or of any
subsequent breach of [Respondents] of the same or any other provision.
Merrill's second rent concession was his offer of free rent for the period of February 1, 1994, to February 15, 1994, in exchange for
receipt of a construction schedule by March 1, 1994, and a set of plans for the improvements by March 30, 1994, as well as releasing
Merrill from any claims relating to his ownership of the property during the lease period. The language of Merrill's offer is unequivocal, and
clearly does not relinquish his right to collection of rent for any period other than February 1, 1994, to February 15, 1994.
In addition to the obvious and express limitations on Merrill's rent concessions, Respondents offer no evidence whatsoever that Merrill
relinquished his right to enforce the February 1, 1994 expiration date of the contingency clause. If, as Respondents claim, Merrill's lack of
ownership prevented them from obtaining an adult use permit before that date, they were free to rescind the lease at that point, or to
offer to forego recision if Merrill would agree to extend the expiration date with a written modification
agreement as required by the merger clause.
lease at that point, or to offer to forego recision if Merrill would agree to extend the
expiration date with a written modification agreement as required by the merger clause.
Respondents failed to take this course of action, and offer no evidence that Merrill intended
to relinquish his right to enforce the lease without the expired contingency clause.
Accordingly, we conclude that the district court erred in holding that Merrill waived
performance by [Respondents] when he allowed [them] to continue seeking county approval
without paying rent.
After reviewing the various arguments raised on appeal and concluding that the lease at
issue is enforceable against Respondents for the foregoing reasons, we reverse the judgment
of the district court on both the claim and the counterclaim and remand this case to the
district court for further proceedings consistent with this opinion.
Maupin, J., concurring:
I agree with the majority on the estoppel, ratification and waiver issues. However, the
extent of damages sustained remains unresolved. On remand, the trial court should calculate
damages based upon whether, for the entire term of the lease, its purpose was frustrated.
Obviously, the actions of the local authorities made the tenancy unsuitable for an adult
business. Thus, the detrimental reliance on the actions of the respondents could only exist so
long as an alternate tenant could not be obtained. I would therefore conclude that the purpose
of the lease was frustrated, but only for the time frame between commencement of the lease
and the date on which the premises was re-let.
____________
113 Nev. 1401, 1401 (1997) Epstein v. Epstein
EDWIN ALVIN EPSTEIN, Appellant, v. URSULA
ALWINE EPSTEIN, Respondent.
No. 28590
December 30, 1997 950 P.2d 771
Appeal from an order of the district court denying a motion to set aside a default judgment.
Ninth Judicial District Court, Douglas County; Michael P. Gibbons, Judge.
In divorce action, wife filed praecipe for default and the district court issued default of
divorce decree. Husband moved to set aside divorce decree, and the district court denied
motion. Husband appealed. The supreme court held that: (1) husband appeared in divorce
action, and thus, wife had to serve husband with written notice of application for default
judgment at least three days prior to hearing on application;
with written notice of application for default judgment at least three days prior to hearing on
application; (2) wife's praecipe for default did not provide sufficient notice of her intent to
seek default judgment, and thus, judgment of default was invalid; and (3) party need not show
meritorious defense in order to have court set aside default judgment; overruling Lesley v.
Lesley, 113 Nev. 727, 941 P.2d 451 (1997); Bauwens v. Evans, 109 Nev. 537, 853 P.2d 121
(1993); Sealed Unit Parts v. Alpha Gamma Ch., 99 Nev. 641, 668 P.2d 288 (1983).
Marshal S. Willick and Eileen C. Luttrell, Las Vegas, for Appellant.
Michael P. Hambsch and L. Mark Bissonnette, Lake Tahoe, for Respondent.
1. Appearance.
Course of negotiations between parties is sufficient to constitute an appearance.
2. Divorce.
Husband appeared in divorce action, and thus, wife had to serve husband with written notice of application for default judgment at
least three days prior to hearing on application, where, through her attorney, wife had been negotiating terms of settlement agreement
with husband and husband's attorney for several months.
3. Divorce.
Wife's praecipe for default in divorce action only notified husband of wife's intent to seek default judgment some time in future
and did not provide sufficient notice of her intent to seek default judgment under rule requiring specific and particular intent, and thus,
district court's judgment of default was invalid. NRCP 55(b)(2).
4. Judgment.
Party need not show meritorious defense in order to have court set aside default judgment; overruling Lesley v. Lesley, 113 Nev.
727, 941 P.2d 451 (1997); Bauwens v. Evans, 109 Nev. 537, 853 P.2d 121 (1993); Sealed Unit Parts v. Alpha Gamma Ch., 99 Nev.
641, 668 P.2d 288 (1983).
OPINION
Per Curiam:
On December 19, 1994, respondent Ursula Alwine Epstein (Ursula) filed a complaint
for divorce from appellant Edwin Alvin Epstein (Edwin). On January 31, 1995, in order to
give Ursula and Edwin an opportunity to amicably resolve their differences, Ursula's attorney,
Michael P. Hambsch (Hambsch) sent a letter to Edwin, granting him an open-ended
extension of time in which to answer. After Edwin and Ursula's negotiations broke down, on
March 17, 1995, Hambsch sent a letter to Edwin requesting that Edwin file an answer
within twenty days to avoid having a default entered.
broke down, on March 17, 1995, Hambsch sent a letter to Edwin requesting that Edwin file
an answer within twenty days to avoid having a default entered. This letter stated that we
intend to proceed with this matter, with or without your response, on or after Monday, April
10, 1995.
On April 4, 1995, Hambsch sent Edwin a marital settlement agreement for his signature.
On May 10, 1995, Hambsch sent Edwin a letter which referred to a telephone conversation in
which Edwin had informed Hambsch that the settlement was not acceptable and that Edwin
intended to retain counsel. Hambsch again stated in this letter that if an answer was not filed
within twenty days, Ursula would pursue a default. On May 11, 1995, Marshal S. Willick
(Willick) phoned Hambsch to inform him that he was representing Edwin.
On June 7, 1995, Hambsch sent Willick a letter in which he complained of Willick's
failure to return his phone calls. Hambsch also indicated in this letter that Willick's legal
assistant had told him that an answer would probably be filed within a week. Hambsch
notified Willick that [t]his [was] unacceptable. Hambsch concluded the letter by stating that
he intended to take Edwin's default if no communication was received from Willick.
On July 24, 1995, Hambsch wrote to Willick stating that unless a good faith response to
the proposed settlement agreement was received by August 4, 1995, a default would be taken.
On August 4, 1995, Willick wrote a lengthy letter to Hambsch in which he set forth certain
objections to the proposed settlement agreement. Willick also mentioned that Edwin was
experiencing health problems, but did not explain the nature of those problems.
On August 14, 1995, Hambsch sent a letter, replying to Willick's objections. From the tone
and content of these last two letters, it is apparent that the negotiations had stalled. Hambsch
closed the letter by demanding that Willick file an answer if Edwin did not agree to Ursula's
requests.
On September 14, 1995, Ursula served a praecipe for default and an affidavit in support of
a default judgment on Edwin and Willick. On September 15, this praecipe was filed, and the
clerk of the court entered a default against Edwin. Willick did not receive a copy of the
praecipe until September 19, 1995. On September 27, 1995, Hambsch submitted findings of
fact, conclusions of law and decree of divorce to the court for consideration. On September
29, 1995, the court issued a default decree of divorce, which was filed on October 3, 1995.
On December 1, 1995, Willick filed an answer and counterclaim. On that same day,
Willick filed a motion requesting that the court set aside its decree of divorce pursuant to
NRCP 60{b), claiming that the default judgment was not properly noticed and that the
decree was procured through fraud by Ursula or through Edwin's inadvertence.
the court set aside its decree of divorce pursuant to NRCP 60(b), claiming that the default
judgment was not properly noticed and that the decree was procured through fraud by Ursula
or through Edwin's inadvertence.
On March 13, 1996, the district court denied Edwin's motion and issued extensive findings
of fact. The court found that Edwin had adequate notice for a judgment by default, that Ursula
had not engaged in any fraud, and that Edwin's neglect in allowing the default to be taken was
not excusable. On April 16, 1996, Edwin filed his notice of appeal.
DISCUSSION
Edwin argues that Ursula failed to meet the requirements of NRCP 55.
1
Edwin argues that
Ursula did not provide adequate notice of her intent to seek a default judgment because she
served the praecipe for default only one day before the default was entered. Edwin here seems
to confuse an entry of default with a default judgment. Nonetheless, we conclude that Edwin's
argument is substantially accurate.
[Headnotes 1, 2]
The threshold question is whether Edwin appeared in the action; if he failed to do so, the notice requirement of this statute is not
triggered. While the district court found that Edwin's counsel had failed to enter an appearance, it did not rule that Edwin, the party, had
failed to appear. A course of negotiations between parties is sufficient to constitute an appearance. Franklin v. Bartsas Realty, 95 Nev. 559,
564, 598 P.2d 1147, 1150 (1979). Through Hambsch, Ursula had been negotiating with Edwin and Willick for several months. It was clear
that Edwin contested much of Ursula's proposed settlement. Therefore, we conclude that Edwin had appeared in this action.
The next question is whether Ursula's praecipe for default, which was served more than ten days before the district court entered a
default judgment, provided adequate notice of Ursula's intent to seek a default judgment under NRCP 55(b)(2).
__________

1
NRCP 55, in relevant part, provides:
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as
provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.
(b) Judgment
. . . .
(2) . . . If the party against whom judgment by default is sought has appeared in the action, he . . . shall be served
with written notice of the application for judgment at least 3 days prior to the hearing on such application.
[Headnote 3]
A praecipe is an order, written and signed, addressed to the clerk of a court, and requesting him to issue a particular writ. Black's
Law Dictionary 1056 (5th ed. 1979). Thus, Ursula's praecipe for default was simply a document requesting that the court clerk enter a
default pursuant to NRCP 55(a). On its face, NRCP 55(b)(2) requires a specific and particular notice of a party's intent to seek a default
judgment. By serving a copy of the praecipe on Edwin, Ursula merely put him on notice that she was in a position to seek a default
judgment in the future; she did not notify him that she would seek a default judgment at a particular time. Therefore, we conclude that
Ursula's praecipe for default did not provide sufficient notice of her intent to seek a default judgment. As such, the district court's judgment
of default was invalid.
Because we so conclude, we need not decide whether the district court abused its discretion in refusing to set aside the default
judgment. However, this case allows us to resolve a conflict in Nevada case law.
Prior to 1990, this court had consistently held that a party moving to set aside a default judgment must show a meritorious defense to
the claim. See Sealed Unit Parts v. Alpha Gamma Ch., 99 Nev. 641, 643, 668 P.2d 288, 289 (1983). However, in Price v. Dunn, 106 Nev.
100, 787 P.2d 785 (1990), we ruled that the meritorious defense requirement must be set aside pursuant to a recent holding of the United
States Supreme Court. Id. at 104, 787 P.2d at 788 (citing Peralta v. Heights Medical Center, Inc., 485 U.S. 80 (1988)). Although we have
not expressly overruled Price, we have since held that a party seeking to set aside a default judgment must show a meritorious defense. See,
e.g., Lesley v. Lesley, 113 Nev. 727, 732, 941 P.2d 451, 454 (1997); Bauwens v. Evans, 109 Nev. 537, 539, 853 P.2d 121, 122 (1993).
[Headnote 4]
We now overrule the requirement, most recently announced in Lesley, that a party must show a meritorious defense because it is
inconsistent with our holding in Price and the United States Supreme Court's holding in Peralta. We affirm our holding in Price; a party
need not show a meritorious defense in order to have a court set aside a default judgment.
We conclude that Ursula did not provide Edwin with adequate notice of her intent to seek a default judgment. We, therefore, reverse
the order of the district court, which declined to set aside this judgment, and remand this matter to the district court for further proceedings
not inconsistent with this opinion.
____________
113 Nev. 1406, 1406 (1997) Anthony Lee R., A Minor v. State
ANTHONY LEE R., aka TONY R., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27772
GENO L., a Minor, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27889
JACKTORIAN H., aka TORI H., a Minor, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 28130
December 30, 1997 952 P.2d 1
Appeals from orders from the juvenile division of the district court certifying minors to
adult status. Eighth Judicial District Court, Clark County; Gerald W. Hardcastle, Judge.
Juveniles were certified for prosecution as adults in the district court. Juveniles appealed.
The supreme court, Springer, J., held that: (1) to avoid presumption of transfer to adult court
in deadly weapon case, juvenile's criminal actions did not have to be substantially result of
substance abuse but, rather, substance abuse had to have substantially influenced or
contributed to juvenile's criminal actions; (2) those who have insubstantial role in crime may
be excepted from presumption of certification to adult court by reason of their not being
principal actor in the offense; and (3) juvenile in instant case was not principal actor.
Maupin, J., dissented in part.
Morgan D. Harris, Public Defender, Susan Deems Roske, Deputy Public Defender, Las
Vegas, for Appellant Anthony Lee R.
Tim O'Brien, Deputy District Attorney, Clark County, for Respondent State of Nevada.
Moran & Associates, Las Vegas, for Appellant Geno L.
James Tufteland, Chief Deputy District Attorney, and Frank Ponticello, Deputy District
Attorney, Clark County, for Respondent State of Nevada.
Morgan D. Harris, Public Defender, R. Michael Gardner, Deputy Public Defender, Las
Vegas, for Appellant Jacktorian H.
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent State of
Nevada.
1. Infants.
Under statute generally requiring certification to adult court in juvenile cases involving use or threatened use of deadly weapon,
underaged persons charged with offenses involving use of deadly weapon are presumed not to come within jurisdiction of juvenile
court. NRS 62.080(2).
2. Infants.
In certification proceedings under statute generally requiring transfer to adult court of juvenile cases in which juvenile has been
charged with use or threatened use of deadly weapon, before child can be said to have been charged with an offense involving deadly
weapon, State must plead in some manner and establish probable cause that child committed an offense involving deadly weapon. NRS
62.080(2).
3. Infants.
To establish its prima facie case and thus bring into operation presumption of certification to adult court in cases involving
juvenile's use or threatened use of deadly weapon, State must file petition, motion or other pleading which puts child on notice that
certification is being sought and then show that there is prosecutive merit to charge. Prosecutive merit refers to standard of proof to
be applied at first phase of certification hearing and involves some showing by State that juvenile committed charged act. NRS
62.080(2).
Juveniles charged with crimes, and facing prosecution as adults, are entitled to procedural due process. U.S. Const. amend 14.
5. Infants.
Proceedings for certification of juvenile to adult court should be initiated by written motion or petition that explicitly states
charges upon which transfer is sought, juvenile's past record of criminal conduct, and prefereably, other material relating to personal
background and attributes of minor. NRS 62.080(2).
6. Infants.
Once State has pleaded its certification to adult court charges and has established prosecutive merit by showing that there is
probable cause to believe that juvenile has committed offense involving use or threatened use of deadly weapon or attempt to commit
such offense, presumption is created under which juvenile court shall certify child for proper criminal proceedings and burden of going
forward then shifts to respondent juvenile, who must present evidence either that he or she was not principal actor in offense or that
mitigating, statutory exceptional circumstances exist. NRS 62.080(2).
7. Infants.
Juvenile's criminal actions did not have to be substantially result of substance abuse but, rather, substance abuse had to have
substantially influenced or contributed to juvenile's criminal actions, to constitute exceptional circumstances and rebut presumption of
certification under statute that generally requires certification to adult court of juvenile cases involving use or threatened use of deadly
weapon. NRS 62.080(2).
8. Statutes.
Construction of statute is question of law.
9. Statutes.
Generally, when words in statute are clear on their face, they should be given their plain meaning unless such reading violates
spirit of the act.
10. Statutes.
Plain meaning of statute's words are presumed to reflect legislature's intent in enacting statute; nevertheless, statutory language
should not be read to produce absurd or unreasonable results.
11. Statutes.
When words of statute clearly contradict legislature's intent, intent of legislature will predominate.
12. Infants.
Criminal conduct on part of mentally competent actors cannot be said to have been legally caused by or to be result of substance
abuse or other similar problems in life of juvenile offenders.
13. Criminal Law.
If actor is not acting voluntarily, not acting with mens rea, there is no criminal liability.
Statute generally requiring transfer to adult court of juvenile cases involving use or threatened use of deadly weapon is rationally
related to, and effectuates, legitimate legislative purposes of public protection and social control, and thus, does not violate equal
protection of the law. U.S. Const. amend. 14; NRS 62.080(2).
15. Infants.
Juvenile court's finding of exceptional circumstances or other mitigating circumstances rendering inapplicable statutory
presumption in favor of transferring to adult court juvenile cases involving use or threatened use of deadly weapon does not preclude
certification in cases in which background of juvenile or nature of offense makes it appear clearly and convincingly that public safety
and welfare require transfer. NRS 62.080(2).
16. Infants.
Juvenile was not principal actor in crime of battery with deadly weapon, a baseball bat, and thus, juvenile court improperly
certified juvenile's case to adult court under statute that required certification to adult court in juvenile cases that involved use or
threatened use of deadly weapon unless court found child was not principal actor in the offense. No one saw juvenile with bat in his
hand, juvenile was smaller than assailant described by witness as wielder of bat, and there were no fingerprints or other physical
evidence that juvenile battered victim with baseball bat.
17. Infants.
Those who have insubstantial role in crime are not considered principal actors in offense and may be excepted from presumption
of certification to adult court under statute generally requiring transfer to adult court of juvenile cases involving use or threatened use
of deadly weapon; term must be distingushed from statutory definition of principal. NRS 62.080(2), 195.020.
18. Infants.
In certification of juvenile cases to adult court, creation of presumption in favor of transfer arising out of involvement with deadly
weapon is special avenue to be taken in deadly weapons cases, and creation of this presumption does not alter effectiveness of statute
that gives general discretionary power to juvenile courts to certify minors over fourteen years of age.
discretionary power to juvenile courts to certify minors over fourteen years of age. NRS 62.080(1), (2).
OPINION
JACKTORIAN H., No. 28130
This is an appeal from an order of the juvenile division of the district court which certifies
the subject minor, Jacktorian H. (J. H.), for prosecution as an adult. In this opinion we
clarify the certification provisions of former NRS 62.080, as amended in 1995, and remand to
the juvenile division with instructions to reconsider the matter in light of our interpretation of
NRS 62.080(2)(b).
[Headnote 1]
Prior to the 1995 amendment to NRS 62.080(2), all persons under eighteen years of age were presumed to come within the
jurisdiction of the juvenile court, and there could be no certification from the juvenile court to the adult court unless it was made to
appear clearly and convincingly that the public safety and welfare require[d] transfer. In the Matter of Seven Minors, 99 Nev. 427, 437,
664 P.2d 947, 953 (1983). Under the 1995 amendment, it is declared that the public safety and welfare require certification to adult court in
juvenile cases involving the use or threatened use of a deadly weapon; and in such cases the juvenile court shall certify the child for
criminal proceedings unless the court finds that the child was not a principal actor or that certain exceptional circumstances exist.
Under the statutory amendment, underaged persons charged with offenses involving the use of a deadly weapon are presumed not to come
within the jurisdiction of the juvenile court.
Although this case presents serious questions as to whether J. H. has been sufficiently charged with an offense involving a deadly
weapon so as to give rise to the presumption of certification, we base reversal of the juvenile court's denial of certification on its quite
understandable misapplication of the exceptional circumstances language in the statute. The pertinent language of NRS 62.080(2) at the
time of J. H.'s certification was as follows:
If a child 14 years of age or older is charged with . . . [an] offense involving the use or threatened use of a deadly weapon or an
attempt to commit such an offense, . . . the juvenile division . . . shall certify the child for proper criminal
proceedings to [the adult court] unless the court specifically finds that the child was not a principal
actor in the offense or that exceptional circumstances exist because the child's actions were
substantially the result of his substance abuse or emotional or behavioral problems[,] and such
substance abuse or problems may be appropriately treated through the jurisdiction of the juvenile
division.
juvenile division . . . shall certify the child for proper criminal proceedings to [the adult
court] unless the court specifically finds that the child was not a principal actor in the
offense or that exceptional circumstances exist because the child's actions were
substantially the result of his substance abuse or emotional or behavioral problems[,]
and such substance abuse or problems may be appropriately treated through the
jurisdiction of the juvenile division.
[Headnotes 2-5]
Under the statute in question, before a child can, in certification proceedings, be said to have been charged with an offense involving a
deadly weapon, the State must plead in some manner and establish probable cause that the child committed an offense involving a deadly
weapon. To establish its prima facie case and thus bring into operation the presumption of certification, the State must file a petition,
motion or other pleading which puts the child on notice that certification is being sought. The State must then show that there is
prosecutive merit to the charge.
1
__________

1
We note that the record in this case does not reveal any charging document in which the State makes its request that the juvenile court
decide whether to retain jurisdiction or certify the child for proper criminal proceedings. NRS 62.080(1). The juvenile court's decision to
retain jurisdiction or certify for criminal proceedings is a much more momentous and life-changing event for a juvenile than is an
adjudication of delinquency under NRS Chapter 62. The record does contain a Certification Report, which refers to a motion by the State
requesting that a probation officer be ordered to investigate all facts and circumstances necessary to assist the court in determining
whether J. H. should be certified as an adult; but there is no motion or petition that asks the court to certify in this case and no adversarial
pleading which puts in issue the prosecutive merit (see In the Matter of Seven Minors, 99 Nev. 427, 437, 664 P.2d 947, 953 (1983)) of
the charge.
Juveniles charged with crimes, and facing prosecution as adults, are entitled to procedural due process. Kent v. United States, 383 U.S.
541, 562 (1966). The United States Supreme Court has held that to comply with due process, notice must be given sufficiently in advance
of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with
particularity.' In re Gault, 387 U.S. 1, 33 (1967) (quoting Nat'l Crime Comm'n Report at 87). In Nevada, certification proceedings should
be initiated by a written motion or petition that explicitly states the charges upon which transfer is sought, the juvenile's past record of
criminal conduct, and preferably, other material relating to the personal background and attributes of the minor. Seven Minors, 99 Nev. at
442, 664 P.2d at 956-57. In In re Three Minors, 100 Nev. 414, 684 P.2d 1121 (1984), we suggested that petitions for certification should
contain sufficient evidence from which the juvenile court could make a preliminary determination of prosecutive merit. Id. at 418, 684 P.2d
at 1123. As noted, there is no such adversarial pleading in the record on appeal. Because J. H. did not raise this point in his appeal, we do
not consider it a point of error;
Prosecutive merit is an expression that comes from the appendix to Kent v. United
States, 383 U.S. 341 (1966), and refers to the standard of proof to be applied at the first phase
of a certification hearing. It involves some showing by the State that the juvenile committed
the charged act. As pointed out in Breed v. Jones, 421 U.S. 519 (1975), the Court has never
attempted to prescribe criteria for, or the nature and quantum of evidence that must support a
decision to transfer a juvenile for trial in adult court. This court has, however, prescribe[d]
criteria for establishing prosecutive merit in the following terms:
A preliminary determination of prosecutive merit is to be made to assure that there is
probable cause to believe that the subject youth committed the offense or offenses
charged.
In the Matter of Seven Minors, 99 Nev. 427, 442, 664 P.2d 947, 957 (1983).
[Headnote 6]
Once the State has pleaded its certification charges and has established prosecutive merit by showing that there is probable cause to
believe that the child has committed an offense involving the use or threatened use of a deadly weapon or an attempt to commit such an
offense, a presumption is created under which the juvenile court shall certify the child for proper criminal proceedings. At this point the
burden of going forward shifts to the respondent child who must then present evidence either that he or she was not a principal actor in the
offense or that mitigating, exceptional circumstances, of the kind set out in the statute, exist. Because it is clear that J. H. was the only
actor and therefore the principal actor in this offense, we will deal only with the questions relating to the exceptional circumstances
portion of the statute.
Before discussing the mitigating exceptional circumstances which, according to the statute, must be the cause of the child's
actions, we first address whether the presumption created by the statute went into effect at all in this case. Absent prosecutive merit to
the charges, there can be no presumption. The limited facts that can be gathered from this record reveal that the State's establishment of
prosecutive merit is problematical. J. H. is charged with assault with a deadly weapon and with burglary. The assault with a deadly
weapon charge stems from a charged "unlawful attempt . . . to commit a violent injury" upon another boy.
__________
however, it does appear that a minor is entitled to more specific notice of the basis for the motion or petition to certify to the adult court
than was given here.
Finally, we note that our concerns may be obviated by the 1997 amendments to NRS 62.080(2)(b), which, inter alia, place an
affirmative duty on the State to file a specific motion for certification.
The assault with a deadly weapon charge stems from a charged unlawful attempt . . . to
commit a violent injury upon another boy. The burglary charge is that J. H. entered the boy's
home through an unlocked door with the intent to commit assault or battery. The original
juvenile court petition alleges that J. H. slashed at the victim with a knife. The slashing
charge appears from the record to be limited to J. H.'s angry brandishing of a knife during a
quarrel with the mentioned boy concerning the boy's treatment of J. H.'s sister. Although the
formal charge against J. H. is that he attempt[ed] . . . to commit violent injury, the facts
relating to the charged attempt to commit violent injury and to the specific intent necessary
for a burglary charge were never aired in these certification proceedings.
In Seven Minors, we ruled that certification could not be carried out without the necessity
for establishing the merit of the prosecution's case as a condition for proceeding with the
transfer [certification] process. 99 Nev. at 437, 664 P.2d at 953. Unless probable cause is
conceded by the minor, the court should proceed to hear and determine this issue before
proceeding further. Id. Although it does not appear that counsel for J. H. expressly
conceded the prosecutive merit issue, counsel made no effort to oppose the State's affidavit
on this issue.
To establish probable cause that J. H. did actually attempt to commit violent injury on
the boy by slashing at him, the State relied entirely on an affidavit of some kind. As J. H.'s
counsel did not include this affidavit in the record on appeal, we have no idea as to the weight
or sufficiency of the evidence supporting prosecutive merit. Rather than oppose the State's
evidence and pursue J. H.'s version of the case, namely, that he did not threaten the boy with a
knife during their quarrel (see note 2, infra), J. H.'s counsel stated to the juvenile court that
counsel was not going into the facts of the case. J. H.'s counsel made no attempt to counter
the State's case with regard to prosecutive merit and indicated to the court that if we had
submitted affidavits, they would have indicat[ed] that the victim [was] a crack head and
that it didn't happen this way and there was no knife and that I know that that's not going to be
the issue.
2
From the few facts that appear in the record, J.
__________

2
J. H.'s psychological report provides some insight into the facts of this case:
During the interview, the subject minor denied any burglary or having a knife during the argument with
[the victim]. He does admit to being in [the victim's] apartment and confronting him about problems with
his sister. He further admits to long-term use of drugs (since 12 years old) and of using Sherm sticks the
last 5-6 months, including the early morning use the day of the incident, which kept him awake all night.
From the few facts that appear in the record, J. H.'s version appears to be that he had been
offended by the way in which the victim had treated his sister, that he did not threaten the
boy with a knife, and that he did not have any intent to harm the boy, much less to commit
violent injury. Under Keys v. State, 104 Nev. 736, 766 P.2d 270 (1988), the State must
prove a specific intent in order to establish the crime of attempt. Although prosecutive merit
was not litigated, there was a strong possibility that mental elements of the assault charge as
well as the burglary charge would have been very difficult to prove. It is therefore possible
that the case might have ended at the prosecutive merit stage of the proceedings.
[Headnote 7]
Because we are reviewing the subject statutory amendment for the first time, the prosecutive merit aspect of these certification
proceedings has been discussed; however, this question was not raised by J. H. on appeal. We rest reversal of the order of certification in
this case, then, not upon infirmities in the charge upon which the presumption is based; rather, we decide on the basis of the juvenile
court's incorrect reading of the following clause in the amended statute:
that exceptional circumstances exist because the child's actions were substantially the result of his substance abuse or emotional or
behavioral problems . . . .
NRS 62.080(2)(b).
We agree with J. H.'s contention that the juvenile court did not properly define or apply the exceptional circumstances provision of
the statute. The trial judge, quite understandably, read the statutory language narrowly to mean that in order to rebut the presumption of
certification, he had to find that J. H.'s criminal actions were substantially the result of J. H.'s substance abuse, that is to say, that the
charged behavior was caused by substance abuse and not by J. H.'s volitional acts. The trial judge could not and would not find that J. H.'s
actions were the result of substance abuse. The juvenile court judge certainly cannot be faulted for this reading of the statute. The statute
says that the criminal actions must be the result of substance abuse, and the judge simply concluded that criminal actions
cannot be the result of drug use.
__________
Current testing . . . also reveal[s] the serious substance abuse problem and other emotional/behavior problems caused and
exacerbated by it.
The psychological report, incidentally, refers to a need to participate in drug treatment and mental health treatment/ counseling which
would be more appropriately treated through the jurisdiction of the Juvenile Court. (Emphasis added.)
judge simply concluded that criminal actions cannot be the result of drug use. Reading the
statute in the way that he did, the judge necessarily took the position that there was no set of
facts under which he could find that criminal conduct was the result of substance abuse.
Given the juvenile court judge's frame of mind, it would not appear that J. H. had any chance
of rebutting the presumption of certification.
[Headnotes 8, 9]
The construction of a statute is a question of law. Moody v. Manny's Auto Repair, 110 Nev. 320, 325, 871 P.2d 935, 938 (1994). The
leading rule of statutory construction is to ascertain the intent of the legislature in enacting the statute. McKay v. Bd. of Supervisors, 102
Nev. 644, 650-51, 730 P.2d 438, 443 (1986) (citations omitted). Generally, when the words in a statute are clear on their face, they should
be given their plain meaning unless such a reading violates the spirit of the act. Hotel Employees v. State, Gaming Control Bd., 103 Nev.
588, 591, 747 P.2d 878, 879 (1987). Thus, we have previously held that when a statute's language is clear and unambiguous there is no
room for construction.' Rodgers v. Rodgers, 110 Nev. 1370, 1373, 887 P.2d 269, 271 (1994) (quoting State v. Jepsen, 46 Nev. 193, 196,
209 P.2d 501, 502 (1922)).
[Headnotes 10, 11]
In other words, the plain meaning of a statute's words are presumed to reflect the legislature's intent in enacting the statute.
Nevertheless, statutory language should not be read to produce absurd or unreasonable results. Alsenz v. Clark Co. School Dist., 109 Nev.
1062, 1065, 864 P.2d 285, 286 (1993). When the words of a statute clearly contradict the legislature's intent, the intent of the legislature
will predominate:
The leading rule for the construction of statutes is to ascertain the intention of the legislature in enacting the statute, and the
intent, when ascertained[,] will prevail over the literal sense. The meaning of words used in a statute may be sought by examining
the context and by considering the reason or spirit of the law or the causes which induced the legislature to enact it. The entire
subject matter and the policy of the law may also be involved to aid in its interpretation, and it would always be construed so as to
avoid absurd results.
Moody, 110 Nev. at 325, 871 P.2d at 938 (quoting Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 637-38, 503 P.2d 457, 458-59
(1972)).
Here it was clearly not the intention of the legislature that certification should automatically result in all deadly weapons cases;
otherwise, no exceptions would exist, and all such cases would be subject to mandatory certification.
cases; otherwise, no exceptions would exist, and all such cases would be subject to
mandatory certification. See Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d
530, 533 (1970) (noting that no part of a statute should be rendered nugatory, nor any
language turned to mere surplusage, if such consequences can properly be avoided). The
legislature intended that some cases with deadly weapons involvement would not require
certification; therefore, we will undertake an interpretation of the statutory language that will
give suitable recognition to that legislative intent.
The juvenile court judge showed justifiable consternation in his efforts to apply this statute
in the present case. The judge remarked that this part of the statute is extremely unfortunate
[because] there are a tremendous number of words that almost exclude any circumstance that
this court could ever envision . . . [for] applying the statute.
The juvenile court's quandary is not difficult to understand. On its face, the statute requires
the court to find that criminal actions were not the exercise of free will but, rather, the result
of factors beyond the control of the actor, namely, substance abuse, emotional problems or
behavioral problems. Counsel for J. H. obviously understood the problem when he conceded
that psychologists . . . tell me we can never say . . . that the emotional or behavioral problem
or substance abuse problem cause them to commit the crime. (Emphasis added.)
[Headnote 12]
The juvenile court judge confirmed the jurisprudence of this court when he recognized that the law has not recognized the use of
drugs as a legitimate excuse for criminal behavior. Thus, his concern that the statute required him to do just that would lead to an absurd
result. This court has similarly eschewed the deterministic principle that youthful law violators are not morally or criminally responsible
for their behavior but, rather, are victims of the environment or of mental or emotional conditions that are claimed to have caused them to
commit crimes. Seven Minors, 99 Nev. at 431, 664 P.2d at 950. We agree with the trial judge that criminal conduct on the part of mentally
competent actors cannot be said to have been caused by or to be the result of substance abuse or other similar problems in the life of
juvenile offenders.
3
As we have said, criminal conduct is caused by and is the result of a free-will decision to engage in prohibited conduct.
__________

3
In saying that substance abuse and other similar problems cannot be said to be a legal cause of criminal misconduct, we must note that
the concept of cause is a broad one indeed and that in certain contexts it could be said that drug abuse caused a crime in the sense that
but for drug abuse a given crime would not have been committed. William C. Burton's Legal
That criminal actions cannot properly be said to be the result of substance abuse or
emotional problems is, of course, not to say that substance abuse or emotional problems are
not frequently important factors, perhaps overwhelming factors, in explaining a juvenile's
decision to commit a crime. This does not mean, however, that criminal conduct should be
excused or mitigated because it is thought to be the result of substance abuse and not the
result of culpable criminal actions.
We believe that the statute can be read in a way that does not require the juvenile court
judge to recognize drugs as a legitimate excuse for delinquency and does not require the
juvenile court judge to find, in order to apply the exceptional circumstances provisions in
the statute, that the criminal actions were the result of substance abuse or emotional or
behavioral problems.
[Headnote 13]
It is common knowledge that drugs are involved in some way in a significant number of crimes; and it is certainly safe to say that
drug use is present in (rather than the cause of) a substantial number of criminal activities. It is also the case, particularly in juvenile court,
that emotional or behavioral disorders contribute in no small measure to the final, voluntary decision to commit a criminal act.
4
We
conclude, then, that reading the statute in accordance with the legislature's intent, J. H.'s criminal actions did not have to be substantially
the result of substance abuse but, rather, substance abuse had to have substantially influenced or contributed to J. H.'s criminal actions. It
will, of course, be the juvenile court judge, in these kinds of cases, who determines and makes findings as to whether substance abuse,
emotional problems or behavioral problems have had a "substantial" influence on or contribution to a child's criminal
actions or are insubstantial and tangential.5
__________
Thesaurus 65-66 (1980) gives such diverse meaning to the verb cause as contributed to, bring about, engender, foment, give
occasion for, incite, influence, and stimulate. Strictly speaking then, it may not be entirely accurate to make the blanket statement
that drug abuse cannot be the cause of criminal acts because drug abuse may very well contribute to, give occasion for or influence criminal
activity. Still, we stand by our statement that, as a matter of law, the cause in fact of criminal conduct, as stated in the text, is the free-will
decision of the juvenile offender, cause in fact being that particular cause which produces an event and without which the event would not
have occurred. Black's Law Dictionary 201 (5th ed. 1979).

4
It goes without saying that if the actor is not acting voluntarily, not acting with mens rea, there is no criminal liability. We assume in
this opinion that a juvenile suffering from drug, emotional or behavioral problems is legally competent to be held criminally liable and that
the criminal actions were the result of the juvenile's decision to commit the crime and not the result of some mental or emotional condition.
had a substantial influence on or contribution to a child's criminal actions or are
insubstantial and tangential.
5
We conclude, then, that the juvenile court judge misinterpreted and misapplied the statute
when he took the position that criminal actions are not the result of substance abuse and that,
therefore, the statute required him to certify J. H. for proper criminal proceedings. This
narrow interpretation is contrary to the intention of the legislature, which intended that the
presumption be rebuttable under some circumstances. As pointed out in the margin, there is
evidence that this young man has a serious drug problem, had a need to participate in drug
treatment and would be more appropriately treated through the jurisdiction of the Juvenile
Court. (See note 2, supra). If the juvenile court judge in this case had been asked to find
whether substance abuse substantially contributed to or substantially influenced J. H.'s actions
and whether his problems may be appropriately treated through the jurisdiction of the
Juvenile Court, the judge's decision may very well have been different from the one rendered
in this case.
[Headnote 14]
Because it appears that the juvenile judge in this case did not certify J. H. to the adult court because the judge's quandary over the
meaning of NRS 62.080(2), it is necessary to reverse the judgment below and remand to the juvenile division of the district court for further
proceedings.
6
ANTHONY LEE R.,
__________

5
We note that the statute at issue was again amended in 1997, which fact does not alter our disposition of these appeals. See Castillo v.
State, 110 Nev. 535, 540, 874 P.2d 1252, 1256 (1994) (stating that changes in statutes are presumed to operate prospectively absent clear
legislative intent to apply a statute retroactively). However, we have also held that when a former statute has been amended, such
amendment is persuasive evidence of what the legislature intended by the first statute. Roberts v. State of Nevada, 104 Nev. 33, 38, 752
P.2d 221, 224 (1988) (quoting Sheriff v. Smith, 91 Nev. 729, 734, 542 P.2d 440, 443 (1970)). With respect to NRS 62.080(2)(b), the 1997
legislature limited mandatory certification to crimes involving the use of a firearm, as opposed to the broader category of crimes
involving the use of a deadly weapon. The legislative history to the 1997 amendment indicates that the 1995 legislature may not have
intended to create such a broad category of crimes when enacting the mandatory certification provisions of NRS 62.080(2)(b). Hearing on
A.B. 438 Before the Assembly Judiciary Comm., 69th Leg. (Nev., June 13, 1997); Hearing on A.B. 438 Before the Senate Judiciary
Comm., 69th Leg. (Nev., June 17, 1997). In contrast, the 1997 legislature removed the principal actor exception to mandatory
certification, thus expanding certification to all actors in a crime involving the use of a firearm. The trial court, on remand, may consider as
persuasive the 1997 amendments when resolving the State's motions to certify these minors for adult prosecution.

6
We reject J. H.'s claim that the statute violates the Equal Protection Clauses of the United States and Nevada Constitutions. J. H.
concedes that
ANTHONY LEE R., No. 27772
This juvenile certification case was decided by the same juvenile court judge that decided
the Jacktorian case. This case, however, involves charges that are much more serious in
nature than in Jacktorian. Anthony is charged with a flagrant robbery with a deadly weapon
aggravated by his abusive and lewd abuse of his female victim. The juvenile court judge
properly defined the charges in this case as being horrendous, and commented that the
juvenile court does not deal[] with this type of offense very well.
Again, as in Jacktorian, the juvenile court judge complained that the exceptional
circumstances provisions in NRS 62.080 were vague and commented on the record that he
did not know what the statutory terms substantially and result of meant and said that he
did not think anybody else does.
It is probably the case that the juvenile court judge would have certified this youth to the
adult court even if he had in hand the interpretation of the statute provided in Jacktorian,
above.
7
As pointed out in Jacktorian, the statute creates a presumption of certification that
cannot be overcome unless the respondent minor establishes that drug abuse or the other
factors mentioned in the statute substantially influenced or contributed to the charged
criminal actions.
[Headnote 15]
Because the statute has engendered legitimate confusion that has not been clarified until now, we have no choice other than to remand
this juvenile certification matter to the juvenile court so that it can proceed in the manner described in Jacktorian. The judgment of the
juvenile court is reversed and the matter is remanded to the juvenile division of the district court.
__________
the transfer statute does not implicate a suspect classification or fundamental right, and therefore, will be unconstitutional only if it does not
bear a rational relationship to a legitimate legislative purpose. See Allen v. State Pub. Emp. Ret. Bd., 100 Nev. 130, 136, 676 P.2d 792,
795-96 (1984); State Farm v. All Electric, Inc., 99 Nev. 222, 225, 660 P.2d 995, 997 (1983). We conclude that the transfer statute is
rationally related to, and effectuates, the legitimate legislative purposes of public protection and social control. Seven Minors, 99 Nev. at
433, 664 P.2d at 951. Accordingly, the statute does not violate equal protection of the law.
J. H. also argues that NRS 62.080(2)(b) is unconstitutionally vague because it fails to provide fair warning and lends itself to arbitrary
enforcement. Because of our ruling that the juvenile court did not properly apply the statute in accordance with the meaning attributed to
the statute in this opinion, it is unnecessary to reach this constitutional point.

7
We note that, unlike the situation in Jacktorian, this juvenile did not deny criminal actions involving the use of a deadly weapon.
judgment of the juvenile court is reversed and the matter is remanded to the juvenile division
8
GENO L., No. 27889
Geno L. was originally charged with four counts that arose from what appears to be a
gang-related melee: two counts of battery with a deadly weapon, and two counts of battery
with substantial bodily harm. Geno L. was certified to the adult court on three of the charges.
One of these charges involves battery of a young woman, Darci, with a deadly weapon, a
baseball bat. Geno's involvement in this battery created a presumption of certification under
NRS 62.080(2)(b). The other two charges upon which certification is based are of lesser
offense and, of themselves, would not support the certification of Geno, a first offender, to
the adult court. The issue in the case, then, is whether the juvenile court erred in its
application of the deadly weapon presumption in ordering that Geno be certified for adult
prosecution based on the battery of Darci, Count II of the juvenile court petition.
[Headnote 16]
Although this case, like the other cases in this opinion, requires an interpretation of NRS 62.080(2)(b), our interpretation in this case
relates not to the exceptional circumstances portion of the statute (as in the other two appeals) but, rather, to the provision of the statute
which excepts from the presumption a child [who] was not a principal actor in the offense. In this case (again, with the same juvenile
court judge who presided in Jacktorian and in Anthony), there was an extensive hearing given on the issue of whether Geno was or was not
a principal actor in the battery with a deadly weapon charge. The facts of this case are as follows:
On the evening of September 1, 1995, Frank and Darci were roller blading with Frank's brother, Richard, who was riding a mountain
bike. The trio had just picked up food and drinks and were on their way to a park to eat when they reached the intersection of Torrey Pines
and Carmen in Las Vegas. A car with seven teenage occupants arrived at the intersection at the same time.
__________

8
It should be noted that the juvenile court's finding of exceptional circumstances or other mitigating circumstances so that NRS
62.080(2) presumption does not apply does not preclude certification in cases in which the background of the juvenile or the nature of the
offense makes it appear clearly and convincingly that the public safety and welfare require transfer. In the Matter of Seven Minors, 99
Nev. 427, 437, 664 P.2d 947, 953 (1983).
time. Geno was in the car along with Nick, Kristen, Toby, Tommy, Mark, and Sarah. Toby
shouted an insulting remark at Frank, Darci, and Richard, who were on the corner, and
apparently Frank responded in kind.
Nick, who was driving, stopped the car; Toby got out and approached Frank, who had bent
down in an unsuccessful attempt to remove his roller blades. According to Darci's testimony,
Tommy, Nick, and Geno then approached Frank, surrounded him, and began to hit and kick
Frank. However, Mark (whom the State chose not to prosecute) testified at the certification
hearing that Geno stood by him at the car during the altercation between Frank, Toby,
Tommy, and Nick. Darci acknowledged that Mark had not participated in the incident. Sarah,
who stayed in the car with Kristen during the entire incident, testified that she saw Mark
standing by the car, but did not see Geno. She further testified that there was a metal baseball
bat on the floor in the back seat of the car and that neither Geno nor anyone else ever took the
bat from the car.
As the fight progressed, Frank and his attackers moved into the street, while Darci
remained on the sidewalk with Richard. At some point, one of Frank's assailants knocked
Darci to the ground. Darci claimed that while still on the ground, she heard one of the
assailants say get the bat. Darci testified that she could not identify who attacked her;
however, she stated that she had seen Geno approaching her shortly before she was knocked
down, but that Geno was not holding a baseball bat at that time. Shortly thereafter, while still
on her hands and knees, Darci alleged that she saw a metal baseball bat swinging at the center
of her face. She did not see who wielded the baseball bat, but turned her head to the right,
absorbing the blow with her left jaw, which was fractured in two places, necessitating
reconstructive surgery the following day. At some time, Toby confessed to police that he had
hit Darci in the jaw with his fist. Frank was beaten unconscious and suffered severe
lacerations to his head and face.
Darci testified that the police reports of the incident, which reported that Darci had jumped
on Toby's back in an effort to help Frank, and that Toby had subsequently hit her, were
inaccurate. She maintained that she could not identify who broke her jaw, and she denied ever
physically engaging any of Frank's assailants. Various witnesses were on the scene, but
almost all of them refused to give statements, claiming that they were afraid of retribution
from Frank and Darci's assailants. According to police, several witnesses stated that they had
seen a baseball bat used during the fight. A metal baseball bat was recovered from the
assailants' car; however, no usable fingerprints were found on the bat. In Richard's police
statement, he asserted that the man who attacked Darci was between 5'S" and 5'9".
who attacked Darci was between 5'8 and 5'9. The record indicates that Geno is significantly
shorter.
As mentioned above the State petitioned the juvenile court to certify Geno as an adult on
the four counts charged. One week before the certification hearing, a probation officer
submitted a report recommending denial of certification. The probation officer's
recommendation that certification not be carried out was based on his belief that there had to
be stronger evidence to show Geno's direct involvement in these [b]atteries before he
would recommend certification.
In this case, unlike Jacktorian, there was in fact a pleading filed, a Certification Petition,
asking that the court certify Geno to the adult court; however, no mention is made in the
petition of the presumption created by NRS 60.080(2)(b) or of the principal actor exception
to the presumption rule. It is clear from a transcript of the hearing, however, that Geno was on
notice of the charge upon which certification was based in this case and that the crucial issue
before the court was whether or not Geno was a principal actor in the battery.
As recognized by the juvenile court, this is a difficult case, and although there is some
evidence that Geno was involved to some degree in the fray, there is little if any evidence of
his principal involvement in the crime of battery with a deadly weapon, battery with a
baseball bat. No one saw Geno with a bat in his hand; Geno was smaller than the assailant
described by witnesses as the wielder of the bat, and there were no fingerprints or other
physical evidence that Geno battered Darci with a baseball bat. Although Darci, the victim of
the battery, saw Geno standing nearby before she was struck, she could not testify that it was
Geno who battered her with the bat.
As in Jacktorian, we note in this case that a presumption is created whenever an offense
involving a deadly weapon is charged and the prosecutive merit of the charge is established
by the State. The juvenile court held that the battery with a deadly weapon charge had
prosecutive merit. We conclude that there was enough evidence for the juvenile court to
conclude that Geno was charged with an offense involving the use . . . of a deadly weapon
and that, accordingly, it must be presumed, under NRS 62.080(2)(b), that Geno should be
certified unless it appears that he was not a principal actor in the offense. It was therefore
incumbent upon Geno to rebut the presumption by a showing that he was not a principal
actor in the offense. Put another way, it was established that Geno was an actor in the
offense, and the only issue before the juvenile court was whether he was a principal actor.
Although Geno was situated near Darci when she was battered, it is anything but clear
that he was the actual batterer.
it is anything but clear that he was the actual batterer. If anyone had seen him with a baseball
bat in hand or had actually seen him strike the victim, obviously there would be no problem
in this case, and it would be clear that Geno was a principal actor; Geno's principal
involvement is tenuous at best.
[Headnote 17]
The juvenile court, understandably, had difficulty with this onetrying to dissect a fightand described the decision to certify as
an awfully close call. The judge further commented that the term principal actor is . . . one that has yet to be defined by the legislature
and went on to make the critical comment that all those that participated in the fight in some fashion were principal actors. The trial
judge's statement that he believed all participants in the fray to be principal actors renders the question of whether Geno was the actual
assailant immaterial. Under the juvenile court's definition of principal actor, Geno was a principal actor just by being there and
participating in some way in the total fray.
The term principal actor loses all meaning and significance if it is said that all participants in criminal activity are principal actors;
consequently, we must hold that the juvenile court erred in giving the expression that broad an interpretation to the term. If the term
principal actor is to be given any cognizance, some meaning must be given to the word, principal.
Although, as pointed out by the juvenile court judge, the legislature provided no definition of the word, principal, this is a word of
common usage, meaning chief or main. Webster's New International Dictionary 1966 (2d ed. 1948). A principal actor can be
distinguished from an actor who plays only a small, peripheral role in the commission of a crime.
The word principal in the term principal actor must be distinguished from our statutory definition of principal, which is [e]very
person concerned in the commission of a felony . . . whether he directly commits the act constituting the offense, or aids or abets in its
commission and, as well, any person who whether present or absent . . . counsels, encourages, hires, commands, induces or otherwise
procures another to commit a felony. NRS 195.020. The statutory definition of a principal is in harmony with the trial judge's definition
of all those who participate in some fashion; but this, we believe, is a broader definition than that intended by the legislature to be applied
in cases in which those who have an insubstantial role in a crime may be excepted from the presumption of certification by reason of their
not being principal actor[s] in the offense.
[Headnote 18]
Geno would be a principal actor if he had actually battered the victim, or counseled or commanded some other
assailant on the scene to batter the victim or held the victim while another assaulted her.
the victim, or counseled or commanded some other assailant on the scene to batter the victim
or held the victim while another assaulted her. There are many ways in which Geno could
have been a principal actor in the battery with a deadly weapon committed here; however,
if, as he claims, he was just standing there when some other youth battered Darci, without
notice to him, he could be said to have committed an offense involving the use of a deadly
weapon, but he would not be, under the meaning of the term in our statute, a principal
actor.
9
Given the trial judge's overbroad and incorrect definition of principal actor, including all
participants in the crime as principal actors, it is necessary that we remand this case for a new
determination of whether Geno can establish that he was not a principal actor in the offense
of battery with a deadly weapon.
Geno's certification order is reversed, and the matter is remanded to the juvenile division
Rose and Young, JJ., concur.
I agree that these three cases must be remanded. On remand, the juvenile judge must use
the standard stated in the majority opinion to determine whether these three juveniles should
be certified to adult court. I write separately, however, to note that the certification statute,
NRS 62.080, as amended in 1995, may require a change in approach to certification hearings.
Under the original NRS 62.080, certification was solely within the discretion of the juvenile
judge; the determination of whether there was probable cause was often pro forma and could
be made simultaneously with the determination of whether the juvenile should be certified to
adult criminal court. Under the amended NRS 62.080, the determination of probable cause is
crucial, because certification may be mandated if the juvenile judge finds probable cause. It is
now incumbent upon the attorneys and judge to focus first on the determination of probable
cause.
__________

9
It should be noted that the presumption arising out of involvement with a deadly weapon (NRS 62.080(2)) is
a special avenue to be taken in deadly weapons cases. The creation of this presumption does not alter the
effectiveness of NRS 62.080(1), which gives general discretionary power to juvenile courts to certify minors
over fourteen years of age; and independent of the factors relating to the presumption (principal actor and
exceptional circumstances), juvenile courts have the power to certify under our juvenile justice jurisprudence.
See, e.g., In the Matter of Seven Minors, 99 Nev. 427, 664 P.2d 947 (1983). In cases such as this one, even if the
NRS 62.080(2) presumption cannot be applied (because the minor is not a principal actor), certification
proceedings under NRS 62.080(1) could still, in appropriate cases, be pursued. If, for example, Geno had had a
long record of gang violence and had been even remotely involved in the kind of beating present in this case, it
could be argued that there was a strong case for certification outside of the deadly weapon presumption.
first on the determination of probable cause. This finding alone may determine the outcome.
Maupin, J., concurring and dissenting:
I agree that Jacktorian and Lee should be remanded for proceedings consistent with our
construction of NRS 62.080(2). I would note in passing that any mitigating circumstances
found on remand would not compel denial of the State's certification petitions. The juvenile
judge has broad discretion, given any number of circumstances, including the nature of the
offense, to grant certification even if the mitigators set forth in the statute are found to exist.
For example, I would find it inconceivable that any mitigating circumstance could be found to
justify non-certification of Anthony Lee R.
As to Geno L., I believe that there was sufficient evidence that he was a principal in the
instant offense. Although there was conflicting evidence, including the incredible assertion of
Geno's associates that the baseball bat was not used, he was placed in the midst of an affray in
which one of the victims was savagely beaten with a baseball bat while essentially helpless.
The evidence of his participation in this profound act of violence and cowardice is sufficient
to implicate the presumption of NRS 62.080(2).
____________
113 Nev. 1424, 1424 (1997) Nika v. State
AVRAM NIKA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27331
December 30, 1997 951 P.2d 1047
Appeal from a judgment of conviction pursuant to a jury trial of one count of first degree
murder with the use of a deadly weapon and from a sentence of death. Second Judicial
District Court, Washoe County; Brent T. Adams, Judge.
Defendant was convicted following jury trial in the district court of first degree murder
with use of deadly weapon and was sentenced to death. Defendant appealed. The supreme
court, Young, J., held that: (1) evidence supported conviction; (2) evidence supporting
aggravating circumstance of killing at random and without apparent motive; (3) no custodial
interrogation occurred when county deputy with job of protecting prisoners' safety asked
defendant standardized questions including whether he had ever assaulted or battered anyone;
(4) imposition of death penalty was not excessive in view of heinous and gruesome nature of
crime; and (5) jury's rejection of any mitigating factors did not demonstrate that death
sentence was imposed under influence of passion or prejudice.
113 Nev. 1424, 1425 (1997) Nika v. State
did not demonstrate that death sentence was imposed under influence of passion or prejudice.
Affirmed.
Michael R. Specchio, Public Defender, and John Reese Petty, Chief Appellate Deputy,
Attorney, and Terrence P. McCarthy, Deputy, Washoe County, for Respondent.
1. Homicide.
Conviction for first degree murder with use of deadly weapon was supported by evidence that state trooper saw defendant's and
victim's cars on side of highway and saw defendant walking from direction of where victim's body was later found, that defendant told
trooper that victim's car was his own and that he needed towing, that defendant told cellmate that his car broke down and that he killed
victim because he needed to get to Chicago, that he told police five or six versions of events, that blood spatter on his clothes was
consistent with victim's blood, and that victim sustained fatal gunshot wound to forehead.
2. Criminal Law.
Standard of review for sufficiency of evidence upon appeal is whether jury, acting reasonably, could have been convinced of
defendant's guilt beyond a reasonable doubt.
3. Criminal Law.
Death penalty system will be held unconstitutional if it has standards so vague that they would fail adequately to channel
sentencing decision patterns of juries and thus result in pattern of arbitrary and capricious sentencing. U.S. Const. amends. 8, 14.
4. Homicide.
Aggravating circumstance of killing at random and without apparent motive, as basis for imposing death penalty in murder
prosecution, was supported by evidence that defendant rendered victim incapacitated with blows from crowbar and did not have to fire
fatal shot in order to take victim's car, that victim's wallet and money were found next to his body, and that defendant asked state
trooper who came on scene for ride to Chicago, apparently willing to forsake victim's car. NRS 177.055(2)(b), 200.033(9).
5. Criminal Law.
No custodial interrogation occurred when county deputy, who had job of placing prisoners in an environment where they did not
present danger to themselves or others, asked defendant charged with murder a series of standardized questions including whether he
had ever assaulted or battered anyone and defendant responded that he had fought with a man one evening and that man was dead.
Purpose of questions was safety of prisoners, deputy asked same questions of every prisoner, and deputy did not ask defendant for
clarification but continued down list of questions.
6. Homicide.
Imposition of death penalty was not excessive in murder prosecution in view of heinous and gruesome nature of crime. Defendant
brutally struck victim three times with crowbar with such force that each blow fractured skull, and victim
was lying on his back when defendant placed gun directly on victim's forehead and fired fatal shot.
113 Nev. 1424, 1426 (1997) Nika v. State
struck victim three times with crowbar with such force that each blow fractured skull, and victim was lying on his back when
defendant placed gun directly on victim's forehead and fired fatal shot. NRS 177.055(2)(d).
7. Homicide.
Jury's rejection of any mitigating factors did not demonstrate that death penalty was imposed under influence of passion and
prejudice in murder prosecution, where only mitigating evidence produced by defendant was wife's testimony that defendant was
generally a good person but had threatened to kill her and her parents, and sister-in-law's testimony that defendant played with her
children and they liked him but that defendant was stern disciplinarian. NRS 177.055(2)(c).
OPINION
Appellant Avram Nika (Nika) left Aptos, California, where he lived with his wife
Rodika, between noon and 1 p.m. on August 26, 1994, and was traveling to Chicago so that
he could fly from there to Romania to visit his sick mother. Nika's car was full of clothes,
tools, electronic items, and a small television. According to Rodika, Nika was from Romania
and spoke fluent Serbo-Croatian, spoke almost fluent Romanian, and spoke only broken
English. Rodika also stated that Nika did not speak colloquial English and that she had to be
present when he had dealings with merchants, government officials, and other people. Nika
was driving a brown Chrysler New Yorker, and testimony indicated that it takes
approximately five and one-half hours to drive from Aptos to Reno. Nika's car broke down at
mile marker 34, approximately twenty miles east of Reno.
Edward Smith (Smith) was employed as a manager at a Burger King in Reno. Smith left
work to go home at approximately 8 p.m. to 8:10 p.m. on August 26, 1994. The Smith family
lived in Fallon, and Smith had made plans with his wife and child to attend a movie that
started at approximately 9:45 p.m. Smith drove a silver 1983 BMW, and Mrs. Smith testified
that the BMW often would not start, that they had to push start it, and that they had recently
bought a new battery for the BMW in July 1994. Testimony indicated that it takes
approximately one hour to one hour and fifteen minutes to get from the Burger King in Reno
to the Smith's home in Fallon and that it takes approximately forty to forty-five minutes to get
from the Burger King to mile marker 34.
Several people saw Nika standing by his car at mile marker 34 on August 26, 1994.
1
Edward Sanchez was driving a maroon Nissan Sentra and was flagged down by Nika at
approximately 7:45 p.m.
__________

1
Robbie Morrow stated that around 6:20 p.m. she noticed a junky looking brown Chrysler on the side of the
road with the hood and trunk cover
113 Nev. 1424, 1427 (1997) Nika v. State
Nissan Sentra and was flagged down by Nika at approximately 7:45 p.m. Sanchez pulled his
car in front of Nika's and backed up toward the brown Chrysler. Nika approached Sanchez's
passenger window and said his car had broken down and that he needed help. Sanchez got out
of his car and attempted to find out what was wrong with Nika's car. Sanchez stated that Nika
had a thick accent, strong body odor, a day's beard growth and wore blue cut-off jeans.
Sanchez offered to give Nika a ride, but Nika could not decide if he wanted to accept the ride
and instead had Sanchez call a tow truck for him. Sanchez stated it was shortly after 8 p.m.
when he got back into his car, perhaps 8:02 p.m. Sanchez stopped at a truck stop in Fernley
and asked one of the clerks to call a tow truck for Nika.
Davina Boling was driving with her boyfriend on I-80 and saw the brown Chrysler on the
side of the road around 8:30 p.m. They pulled over to help Nika, whom Boling described as
looking frustrated, and Nika told them he had been there for three or four hours and needed a
tow truck. They offered him a ride, which he declined, but he requested that they call a tow
truck for him. As they left, Nika told them Good-bye. Thank you, God bless.
Debra Fauvell (Debra) stated that at approximately 8:40 p.m. she and her husband
passed mile marker 34. She stated that she saw two cars on the side of the road, the first was a
tan or light colored, four-door sedan which did not have any lights on and which had both
driver's side doors open. About 150 feet in front (east) of the tan car she saw a dark brown
sedan-type car with its hazard lights on. She saw two people standing by the first (most
westerly) car. The person standing by the rear passenger side of the first car had a medium
build, was about five feet ten inches tall, and was wearing a white T-shirt and light colored,
faded jean-type pants. The second person was twenty feet in front of the first person, was
bigger and had bushier hair than the first person, and was walking in a southeasterly direction
away from the cars. Debra was shown a picture of Smith and stated that the second man's
stature was consistent with Smith's.
__________
up. Morrow stated that she saw someone who appeared dirty and grubby in very short cut-off pants, a yellow
tank top shirt, and white tennis shoes lying under the front of the car, apparently checking the engine.
Robin Aguire, who was in prison at the time of trial on an unrelated drug charge, testified that she and her
mother were driving on I-80 between 6 p.m. and 6:30 p.m. and saw a brown car with its hood up. She identified
Nika as the man standing next to the car.
Susan Tarbet stated that at approximately 7:20 p.m. or 7:25 p.m. she saw a man leaning against a brown car
with his arms crossed. She also testified that she believed that the man she saw on the side of the road was Nika.
Jewell Waters was following her husband home from Reno and passed mile marker 34 at approximately 7:30
p.m. Jewell saw the brown Chrysler and identified Nika as the person in the car. Michael Waters, Jewell's
husband who was driving ahead of Jewell, also indicated that Nika was the man that he saw by the car.
113 Nev. 1424, 1428 (1997) Nika v. State
second man's stature was consistent with Smith's. Daniel Fauvell, Debra's husband, testified
that he was driving the car. He stated that he was focused on driving and did not see much,
but the first car that they passed did not have any lights on, the second car had its hazard
lights on, and one person was standing next to the first car.
Trooper Terry Whitehead of the Nevada Highway Patrol testified as follows. He came into
contact with Nika while patrolling the highway on August 26, 1994. Whitehead was traveling
westbound on I-80 when he saw a stranded BMW on the eastbound shoulder with its hazard
lights on. He made a U-turn across the highway and went to help the stranded motorist. As
Whitehead approached the BMW, he passed a brown Chrysler with no lights on. Because the
Chrysler had no lights on, the hood was not open, and nobody was in the car, he drove further
and pulled behind the BMW. The dispatch log indicates that he ran a license plate check on
the BMW at 8:51 p.m. (the license plate was a Nevada plate), and he also looked at the BMW
to see if it had indications that it was stolen. There were no people or items of personal
property in the BMW. Because the dispatcher did not return his inquiry, he assumed that the
BMW was not stolen and started to back up to check out the Chrysler, which was about 400
feet behind (west of) the BMW. As Whitehead backed up, he saw someone waving a
flashlight from a southeasterly direction apparently trying to get his attention. The flashlight
was coming from the area where Smith's dead body was found the next day. Whitehead got
out of his car and asked Nika what was wrong with his car; Nika pointed to the BMW and
stated, Everything's wrong with it. Whitehead asked Nika if he needed a ride. Nika declined
and instead asked for a tow truck. Whitehead said he would call one and asked Nika if there
was anything else he could do for him. Nika stated he could use a ride to Chicago. Whitehead
stated he did not patrol that far. At 8:53 p.m. Whitehead requested a tow truck for Nika.
Whitehead stated that Nika was wearing white high-top tennis shoes and did not seem more
nervous than any other person who had been stranded at night on the side of the road. He also
stated that he did not see any blood on Nika's shoes or fanny pack and that he never asked
Nika his name. Whitehead left the scene at 8:56 p.m. to answer a call for back-up assistance
on a DUI case.
Karl Younger testified for the defense. He stated that he worked for Anderson Towing and
received a call at his home in Reno on August 26, 1994, at 8:45 p.m. requesting tow truck
assistance at mile marker 34 for a Chrysler New Yorker.
2
At approximately 9:15 p.m.,
__________

2
This call was apparently made by either Sanchez or Boling.
113 Nev. 1424, 1429 (1997) Nika v. State
9:15 p.m., Younger saw the Chrysler and backed up toward it to prepare to tow it, at which
time he noticed two other cars about sixty yards in front of (east) the tow truck. The first car
in front of Younger was a silver BMW with out-of-state license plates and its lights on. The
second car, a blue or brown Nissan or Datsun which also had its lights on, was in front of the
first car. As he backed up to the Chrysler, two people approached the tow truck and told him
that the Chrysler needed oil, that they had taken the driver to town to get the oil, and that the
tow truck was no longer needed. Neither of these two men spoke with a thick accent and both
spoke perfect English. Younger also noticed five to seven other people with flashlights in the
area where Smith's body was eventually found. Younger then left the scene.
Loni Kowalski testified that she worked at Hanneman's Tow Service and received a call at
8:53 p.m. from the Highway Patrol requesting a tow truck for a silver BMW. At 8:57 p.m. she
called Jerry Turley, an employee who was on call but at his own home, to tell him to respond
to the request. Turley testified that he drove west from Fernley toward mile marker 34,
looking on both sides of the highway for the silver BMW. He did not see the BMW and
called Kowalski to inform her of such. Kowalski told Turley to keep looking, and Turley
eventually saw two cars on the eastbound shoulder, exited the freeway and re-entered going
eastbound, and put his flashers on as he arrived at the two cars. He noticed that neither car
was a silver BMW, turned his flashers off, and called Kowalski at 9:49 p.m. to tell her that he
could not find the BMW. Turley stated that one car was a large dark car that could have been
a Chrysler and that the other car was a smaller domestic car, like a Mercury Monarch or Ford
Granada, which had its flashers on. He saw two people standing by the Chrysler but could not
describe them.
On August 27, 1994, Ray Hansen, a brakeman for Southern Pacific Railroad, noticed what
he thought was a body lying next to the fence between the railroad tracks and I-80. The police
were called, and a trooper found the body. Careflight was also called because it was first
believed that a motorcycle accident had occurred and that medical attention was required. The
Careflight helicopter landed approximately fifteen to fifty feet from the body, and the medics
checked the body and discovered that the person was dead.
David Billau was the crime scene investigator. He stated that the Careflight helicopter
which landed near the crime scene could have disturbed the crime scene. He described the
crime scene as follows: the Chrysler was parked off the shoulder of the eastbound lane of
I-80; south of the car was a small hillside; south of the hillside was a barbed wire fence under
which Smith's body was dumped; and south of the fence and body were the railroad
tracks.
113 Nev. 1424, 1430 (1997) Nika v. State
was dumped; and south of the fence and body were the railroad tracks. Drag marks in the dirt
extended from the Chrysler to where the body was found. By the Chrysler's rear passenger tire
was a rock with pooled blood on it. By the front tire was an area of red stained dirt in which a
bullet and human hair were found. A spent shell casing was found a few feet in front of the
red stained dirt. Smith's body was found under the barbed wire fence and his pants were
hanging from the fence. His wallet was found with money still in it lying next to his body.
Smith had been shot in the forehead.
The police traced the brown Chrysler to Avram Nika and an address in Chicago. On
August 29, 1994, the Washoe County Sheriff's office called the Chicago police for assistance
in locating Nika. Chicago Police Detective Tony Villardita and his partner discovered several
addresses for Nika and attempted to locate him. They saw Nika exit a silver BMW, and when
they asked him his name, Nika gave them a false name. Based on this information they
arrested Nika for possession of a stolen vehicle and read him his Miranda rights. Nika
apparently told the police that he understood his rights and that he would waive those rights
and speak to them.
Nika first denied any knowledge of the BMW and said that he had walked to his house.
When the police told him that they saw him in the car and that they had found the car key in
his pocket, Nika said that the car belonged to his friend, but that he did not know his friend's
name. The police then told Nika that the BMW was involved in a murder outside Reno. Nika
said that he had left Aptos in his Chrysler, arrived in Reno at around 2 p.m., went to a casino
to eat, and when he came out of the casino his car was gone but his license plates were still
there. At that point three males pulled up and offered to sell the BMW to him for $300.00. He
took the offer, put his plates on the car, and drove to Chicago. He also stated that he made no
other stops in Reno and that the car had no mechanical problems.
The police then told Nika that the BMW was seen on the side of I-80, and Nika then said
that the BMW had an oil and antifreeze problem about thirty miles east of Reno, several
people stopped to help him, and he eventually got the car restarted. Nika said that he did not
see his stolen Chrysler where the BMW broke down. The police told him that witnesses had
seen both cars on the side of the road. Nika then told the police that he was ready to tell the
truth, and he said that he left the casino in his Chrysler and had car problems about thirty
miles east of Reno. He said several people stopped to help him, and then the same three males
he described earlier stopped to help him and offered to sell him the BMW for $300.00. He
bought the car, changed the license plates, and loaded his personal property into the BMW.
113 Nev. 1424, 1431 (1997) Nika v. State
plates, and loaded his personal property into the BMW. Nika also stated that just as he was
ready to leave and while the three males were still at the scene, a police officer stopped to
help him. Nika told the officer that the BMW was experiencing problems but that he was able
to start it, and then he drove to Chicago. Nika also stated that he went to his mother-in-law's
garage in Chicago to unload his personal property, drove to get something to eat, and then
was arrested by Villardita and his partner. After this questioning was conducted, John Yaryan
(Yaryan), the Washoe County Sheriff's deputy who had flown to Chicago, questioned Nika.
However, the district judge suppressed this statement based on the fact that Nika had invoked
his right to remain silent and his right to counsel and that Yaryan continued to question Nika
at length. The State has not argued that the suppression was improper.
The police obtained consent to search the garage of Nika's mother-in-law. They found a
fanny pack, tennis shoes, and blue denim cut-off jeans, all of which were tested by forensic
investigators. The forensic investigators found blood spatter on all three items, and DNA
testing indicated that the blood was consistent with that of Smith and excluded Nika as a
source. The forensic investigators stated that at a minimum, 1 in 8,800 people had the same
DNA pattern they discovered.
Nika was extradited from Chicago to Reno and was booked into Washoe County jail on
September 1, 1994. During Nika's incarceration, Nathanial Wilson (Wilson), an inmate at
the Washoe County jail, befriended Nika. Wilson testified to statements made by Nika
regarding the events on I-80. Specifically, Nika told Wilson that his car had broken down, a
man stopped to help him, the man called him a motherf----, he hit the man in the head with
a crowbar, and then shot him in the head. Nika stated that in Romania, his country of origin,
you did not use the word motherf----, and that you could be killed for calling somebody that
name. Nika stated that the victim was lying on the ground when he was shot in the head, that
he tried to hide the body in some bushes, and that he killed the man because he needed to get
to Chicago. Nika stated that he hid the gun, which was an automatic pistol, about five miles
from the crime scene. (The gun was never found despite an extensive search.) Nika told him
that he had taken the battery out of his car and put it in the BMW because the BMW would
not start.
3
Wilson was in jail on one count of selling cocaine and stated that he did not receive any
deal from the prosecution in exchange for his testimony.
__________

3
Evidence showed that when the BMW was found in Chicago, it had a National brand battery and that the
battery purchased by the Smiths in July 1994 was not a National brand battery.
113 Nev. 1424, 1432 (1997) Nika v. State
that he did not receive any deal from the prosecution in exchange for his testimony. However,
Wilson spoke to the police for the first time on October 11, 1994, and was released from jail
and granted probation on November 18, 1994, after pleading guilty to what he called
possession for sale, a lesser crime than that with which he was originally charged.
Dr. Anton Sohn (Dr. Sohn) conducted the autopsy on Smith. He found three blunt
trauma wounds on the back of Smith's head where Smith had been hit with an object heavy
enough and with enough force to fracture the skull beneath each wound. Dr. Sohn testified
that at least one of the blunt trauma wounds was delivered to the skull while Smith was lying
on the ground face down. On Smith's forehead was a bullet wound which Dr. Sohn classified
as a contact wound, stating that it was created when the muzzle of the gun was placed
directly against the forehead and the gun was fired. Dr. Sohn found an exit wound in the back
of Smith's head and found other lacerations on Smith's face. Dr. Sohn found scrapes or drag
marks on Smith's chest which were consistent with Smith's body being dragged in the dirt.
Dr. Sohn stated that the gunshot to the head was the cause of death and that the blunt force
traumas were inflicted before Smith was shot.
At the conclusion of the trial, the jury found Nika guilty of first degree murder with the use
of a deadly weapon. At the penalty hearing, the prosecution sought the death penalty and
alleged three aggravating circumstances as follows:
1. Evidence that the murder was committed by AVRAM NIKA during the
commission of or attempt to commit a robbery. NRS 200.033(4).
2. Evidence that the murder was committed to avoid or prevent a lawful arrest. NRS
200.033(5).
3. Evidence that the murder was committed upon one or more persons at random
and without apparent motive. NRS 200.033(9).
Anna Boka (Anna), Nika's mother-in-law, testified at the penalty hearing as follows.
Nika had a violent temper, and in 1991 when she did not give Nika money for a trip, he
threatened to kill both her and Rodika, Anna's daughter and Nika's wife. Peter Boka (Peter),
Anna's husband, told Anna that in September 1993 he and Nika had gotten into an argument
and Nika put a gun to Peter's head. (Peter later testified that he never saw a gun and that Nika
only threatened to shoot him.) Anna stated on cross-examination that Peter was a very heavy
drinker and had instigated the fight in September 1993. In October 1993, Nika stated that he
would kill Anna if Rodika did not come back to live with him.
113 Nev. 1424, 1433 (1997) Nika v. State
with him. Also in October 1993, Nika wanted to see his and Rodika's baby who was staying
at Anna's house, but Peter refused to allow Nika in the house. At that point Nika flashed a
gun and told Anna that if Peter did not let him see the baby, he would kill Peter. Finally, in
November 1993, Nika told Anna that if Rodika did not leave Anna's house in Chicago and
come back to him, he would burn down Anna's house.
Mary Ellen Izzo testified that Nika had raped her in an apartment building in Chicago in
December 1989. She stated that he was helping people move into or out of the building, that
she met him in the hallway, and that he later told her that his mother, who was the manager of
the apartment, wished to see her.
4
She went into the manager's apartment with Nika and he
locked the door and told her to come into the bedroom because that was where his mother
was. When she was in the bedroom, Nika pushed her on the bed, hit her, and sexually
penetrated her. Izzo escaped after Nika let her up, and she then called the police. Nika was
never prosecuted for the alleged crime, and Izzo stated that she did not proceed with the
prosecution because Nika's aunt threatened to evict her if she proceeded, she had three
children to take care of, and she did not have enough money to move. Izzo stated on
cross-examination that she had bruises on her face and breasts as a result of the rape;
however, a hospital report indicated that she had only red marks on her neck. The defense
attorney asked Izzo if she was a drug user, and Izzo stated that she was not. Izzo stated that
shortly after this event she received government housing and moved.
Rodika, Nika's wife, testified for the defense as follows. In reference to the alleged sexual
assault, Izzo had approached Rodika's family and stated that if they did not want to see Nika
jailed for rape, they had better pay her some big money. She had heard that Izzo had a drug
problem and had hung her children out of her second story window. In reference to the
September 1993 incident between Nika and Peter, the police were called, and they never
found a gun. She acknowledged on cross-examination that Nika was violent and had made
death threats against her and her family on several occasions.
Dorina Vukadin, Rodika's sister, also testified for the defense. She stated that Nika played
sports with her children and that her children liked Nika, but she also stated that he was a
stern disciplinarian.
On July 10, 1995, the jury found beyond a reasonable doubt that the murder committed by
Nika was aggravated by the fact that the murder was committed upon Smith at random and
without apparent motive.
__________

4
The woman whom Izzo believed to be Nika's mother was in fact Nika's aunt. Apparently, Nika was the
maintenance man in the apartment building.
113 Nev. 1424, 1434 (1997) Nika v. State
that the murder was committed upon Smith at random and without apparent motive. The jury
also found that no mitigating circumstances existed.
5
Consequently, the mitigating
circumstances did not outweigh the aggravating circumstances found; and therefore, a
sentence of death was imposed.
Nika now challenges both his conviction and sentence of death in this direct appeal.
1. Sufficiency of the evidence
[Headnotes 1, 2]
Nika argues that he was convicted upon suspicion alone and that insufficient evidence existed to support his conviction. The
prosecution argues that the evidence proved beyond a reasonable doubt that Nika killed Smith. The standard of review for sufficiency of the
evidence upon appeal is whether the jury, acting reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt.
Kazalyn v. State, 108 Nev. 67, 71, 825 P.2d 578, 581 (1992).
The State's theory of the case was that Smith left work at approximately 8 p.m. and arrived at mile marker 34 at approximately 8:40
p.m. At approximately 8:40 p.m., the Fauvells saw two men at mile marker 34 by the brown Chrysler, that the BMW had no hazard or
dome lights on, even though one of the doors was open, and that the BMW was parked behind (west of) the Chrysler. At approximately
8:51 p.m., Nevada Highway Patrol Trooper Terry Whitehead arrived at the scene, did not see Smith, noticed that the BMW had its hazard
lights on and the brown Chrysler did not have any lights on, and the BMW was parked in front of (east of) the Chrysler. Whitehead also
noticed that Nika was walking toward him from the direction of where the body was found. Nika told Whitehead that his car, the BMW,
was experiencing trouble and that he needed a tow. The State's theory was that when Whitehead arrived at the scene at 8:51 p.m., Nika had
already killed Smith, dragged his body to the fence, and transferred the battery from the Chrysler to the BMW so that he
could drive the BMW to Chicago.
__________

5
The mitigating circumstances offered to the jury were as follows:
1. The defendant has no significant history of prior criminal activity.
2. The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.
3. The victim was a participant in the defendant's criminal conduct or consented to the act.
4. The defendant was an accomplice in a murder committed by another person and his participation in the murder was
relatively minor.
5. The defendant acted under duress or under the domination of another person.
6. The youth of the defendant at the time of the crime.
7. Any other mitigating circumstance.
113 Nev. 1424, 1435 (1997) Nika v. State
transferred the battery from the Chrysler to the BMW so that he could drive the BMW to
Chicago. Wilson's testimony supported this theory because he testified that Nika told him he
had killed Smith after Smith called him a motherf-----, and that after he killed Smith and
hid his body, he took the battery out of the Chrysler and put it into the BMW. The BMW was
found in Chicago with a different brand of battery than the Smiths had put into the car.
Additionally, the car was found in Illinois with Illinois license plates on it.
Other evidence which supports the State's theory is that when Nika was arrested in
Chicago, he told the police five or six different versions of the events that occurred on I-80.
Also, blood spatter consistent with Smith's blood was found on the top of Nika's shoes, the
inner thigh portion of his pants, and on his fanny pack. This evidence, along with the angled
path of the bullet through Smith's skull, supports the State's theory that Nika stood over
Smith, who was then face up, pressed the gun up to Smith's forehead, and pulled the trigger.
Furthermore, Wilson testified that Nika confessed to hitting Smith in the head with a crowbar
and shooting him in the head, and Dr. Sohn confirmed that Smith's body was in that condition
when it was discovered. Finally, Colleen Villa, a Washoe County Sheriff working in the
intake department at the county jail, testified that Nika told her that he had assaulted a man
around 9 p.m. and that the man was dead. We conclude that based on this evidence, a jury,
acting reasonably, could have been convinced of Nika's guilt beyond a reasonable doubt.
6
2. Constitutionality of NRS 200.033(9)
[Headnote 3]
A state that wishes to authorize capital punishment has a constitutional responsibility to tailor its law in a manner which avoids the
arbitrary and capricious infliction of the death penalty. Godfrey v. Georgia, 446 U.S. 420, 428 (1980). The United States Supreme Court
makes clear that a death penalty system will be unconstitutional if it has standards so vague that they would fail adequately to channel
the sentencing decision patterns of juries [resulting in] a pattern of arbitrary and capricious sentencing."' Id. at 42S
{quoting Gregg v. Georgia, 42S U.S. 153, 195 n.46 {1976) {opinion of Stewart, Powell, and Stevens, JJ.)).
Nika contends that NRS 200.033{9) is unconstitutional because it fails to "genuinely narrow the class of
persons eligible for the death penalty . . . ."
__________

6
Nika contends that the circumstances, though they create a strong suspicion of guilt, are as consistent with a theory of innocence as
they are with a theory of guilt, and that there can be no conviction under such circumstances. See State v. Cerfoglio, 46 Nev. 332, 350, 213
P. 102, 103 (1923). This argument lacks merit. It impermissibly burdens the prosecution with having to disprove all other potential suspects
and theories beyond a reasonable doubt. The State's burden in this case was to prove beyond a reasonable doubt that Nika murdered Smith.
Therefore, it was not necessary to prove that Nika acted alone in committing the murder.
113 Nev. 1424, 1436 (1997) Nika v. State
juries [resulting in] a pattern of arbitrary and capricious sentencing.' Id. at 428 (quoting
Gregg v. Georgia, 428 U.S. 153, 195 n.46 (1976) (opinion of Stewart, Powell, and Stevens,
JJ.)).
Nika contends that NRS 200.033(9) is unconstitutional because it fails to genuinely
narrow the class of persons eligible for the death penalty . . . . Zant v. Stephens, 462 U.S.
862, 877 (1983). Nika's claim fails to raise an issue not previously addressed by this court in
its numerous other opinions upholding the constitutionality of NRS 200.033(9). See, e.g.,
Lane v. State, 110 Nev. 1156, 881 P.2d 1358 (1994); Paine v. State, 110 Nev. 609, 877 P.2d
1025 (1994), cert. denied, 514 U.S. 1038 (1995); Bennett v. State, 106 Nev. 135, 787 P.2d
797 (1990); Moran v. State, 103 Nev. 138, 734 P.2d 712 (1987); Ford v. State, 102 Nev. 126,
717 P.2d 27 (1986). Accordingly, we decline to revisit this issue once again.
3. Evidence supporting NRS 200.033(9)
[Headnote 4]
NRS 177.055(2)(b) requires this court to examine the record on appeal when determining whether evidence supports the finding of an
aggravating circumstance. Nika contends that the death sentence must be set aside because the evidence did not support the aggravating
circumstance enumerated in NRS 200.033(9). The prosecution avers the opposite.
The jury concluded that Smith's murder was aggravated by the fact that the murder was committed upon Smith at random and without
apparent motive pursuant to NRS 200.033(9). The jury did not find any mitigating circumstances.
This court previously considered cases where the aggravating circumstance at issue was that stated in NRS 200.033(9). In Bennett v.
State, 106 Nev. 135, 787 P.2d 797 (1990), Bennett entered a convenience store, laid a piece of candy on the counter, and shot the clerk in
the face as she rang up his purchase, killing her instantly. Bennett then jumped over the counter and attempted to open the cash register. Id.
at 137, 787 P.2d at 798. This court concluded that because the killing was not necessary to accomplish the robbery or burglary, the jury's
finding that Bennett killed without an apparent motive was supported by substantial evidence. Id. at 143, 787 P.2d at 802.
In Paine v. State, 107 Nev. 998, 823 P.2d 281 (1991), Paine and an accomplice shot, killed, and robbed one taxi cab driver and then
shot and robbed a second taxicab driver who did not die. At his penalty hearing, Paine stated that there was no reason for him to have
pulled the trigger in either case. Id. at 1000, 823 P.2d at 282. Paine was sentenced to death after the jury found two aggravating
circumstances, one of which was that the killing was random and without apparent motive.
113 Nev. 1424, 1437 (1997) Nika v. State
random and without apparent motive. This court reasoned that sufficient evidence existed to
conclude that the killing was random and without motive because the robbery could have
been completed without killing the victim. Id. at 999-1000, 823 P.2d at 282. This court
applied the same reasoning to uphold death sentences in Lane v. State, 110 Nev. 1156, 881
P.2d 1358 (1994), and Moran v. State, 103 Nev. 138, 734 P.2d 712 (1987).
In the instant case, the jury was instructed at the penalty hearing that [a] murder may be
random and without apparent motive if the killing of a person was not necessary to complete
a robbery. Although Nika was not formally charged with the crime of robbery,
7
the jury was
provided with an instruction defining robbery. When taken in conjunction, these instructions
required the jury to consider whether Nika needed to murder Smith in order to rob him of his
automobile and continue on to Chicago. We conclude that the evidence presented at trial
provides ample support for the jury's finding that Nika acted at random and without apparent
motive.
Dr. Sohn testified that Smith was struck three times in the back of the head causing
blunt-force trauma wounds. While none of the blows was independently capable of causing
death, they were sufficiently traumatic to render Smith incapacitated. In fact, Dr. Sohn
testified that each blow fractured Smith's skull. One blow knocked him to the ground, and at
least one of the blows was delivered with Smith's head already face down in the dirt and
rocks. The jury could have then reasonably inferred that Nika turned Smith over, face up, and
without resistance, placed the gun barrel against Smith's forehead and administered the fatal
gunshot wound. Dr. Sohn's interpretation of the forensic evidence is corroborated by Wilson.
Wilson testified that Nika stated he struck Smith multiple times with a crow bar. These blows
knocked Smith to the ground. As Smith lay on the ground, Nika put the gun to Smith's
forehead and fired.
This testimony supports the jury finding that Nika did not need to kill Smith in order to
take his car. Smith was struck three times in the back of the head with a crow bar. Each blow
fractured his skull. In all likelihood, Smith was either unconscious or semi-conscious as he
lay on the ground. Therefore, it would be reasonable to conclude that Smith was in no
condition to prevent Nika from robbing him of his automobile.
8
Further support for the
finding that the murder was committed at random and without apparent motive can be
found in the fact that Smith's wallet and money were found next to his body.
__________

7
There was, however, evidence in the record to support a charge for robbery since Nika was in possession of
Smith's car when he was arrested in Chicago.

8
Although the jury found a robbery occurred under the random and motiveless aggravator, it did not find
that the murder was committed by Nika during the commission of or attempt to commit a robbery. NRS
113 Nev. 1424, 1438 (1997) Nika v. State
Further support for the finding that the murder was committed at random and without
apparent motive can be found in the fact that Smith's wallet and money were found next to his
body. Thus, robbery was not a likely motive for the killing.
Additionally, Trooper Whitehead apparently came upon Nika after Smith had been killed
and his body dragged to the barbed wire fence. Nika pointed to the BMW and acted as if it
were his own, but, nevertheless, asked Whitehead for a ride to Chicago. This lends support to
the contention that Nika's motivation to kill Smith was not to take the BMW. Nika was
apparently ready to leave the scene in any manner possible, including with a State trooper.
Accordingly, the evidence supports the aggravating circumstance embodied in NRS
200.033(9).
4. Custodial interrogation
[Headnote 5]
The dissent finds issue with the district court's determination that no custodial interrogation of Nika occurred. However, after a
thorough review of the record and listening to oral argument from Nika's counsel, we conclude that the district court did not err in its
determination.
On September 1, 1994, after being extradited to Nevada from Illinois, Nika was booked into the Washoe County jail. The following
day, Washoe County Deputy Colleen Villa called Nika aside. Villa worked in the county jail's classification unit and it was her job to place
prisoners in an environment where they did not present a danger to themselves or others. To facilitate the placement process, Villa asked
every prisoner a series of questions from a preprinted questionnaire. One of the questions on the form was, Have you ever assaulted or
battered anyone? When Villa asked Nika this question, he answered that he had fought with a man one evening around 9 p.m. or 9:30 p.m.
and that the man was dead. Nika also stated that a gun was placed to a head, but Villa was unsure of who placed the gun to whose head.
Nevertheless, Villa did not pursue the answer nor ask for a clarification from Nika. She merely continued down the list of questions on the
form.
The dissent contends that because Villa knew Nika was arrested for murder, she would reasonably foresee the questionnaire would
elicit an incriminating response from Nika; and therefore, she engaged in a custodial interrogation by merely reading the
questionnaire.
__________
200.033(9); NRS 200.033(4). Why the jury found facts to support a robbery under one aggravator but not another is not for this court to
question. United States v. Carlos, 478 F.2d 377, 379 (9th Cir. 1973) (recognizing the jury's role as the ultimate arbiter of facts).
113 Nev. 1424, 1439 (1997) Nika v. State
reading the questionnaire. Taken a step further, if Villa knew nothing about Nika, the exact
same question would not be a custodial interrogation under this analysis. We find this factual
distinction unpersuasive. Villa asked the same questions of every prisoner. Villa testified she
never asked for clarification from a prisoner nor did she do anything other than move on to
the next question. Interestingly, when Nika's counsel was questioned as to why this issue was
not raised on appeal, he stated Nika conceded it was merely routine questioning for the
purpose of classification and not a custodial interrogation.
Moreover, the safety of prisoners in custody is the purpose behind these questions. There
is no getting around this type of question when trying to determine the threat, if any, a
particular prisoner may pose to another. While the State can control many things, it cannot
control what a prisoner might say when asked a particular question. Therefore, the district
court did not err in determining that no custodial interrogation occurred.
5. Excessiveness of death sentence
[Headnote 6]
NRS 177.055(2)(d) requires this court to review [w]hether the sentence of death is excessive, considering both the crime and the
defendant. We conclude that the imposition of the death penalty was not excessive.
Smith was brutally struck in the head three times with such force that each blow fractured his skull. Dr. Sohn testified that when Smith
was shot in the head, he was probably lying on his back and that the gunshot wound was the cause of death because each of the blunt
trauma wounds was not independently fatal. The way that the murder appears to have occurredthree blows to the head and then the gun
placed directly on Smith's forehead and fired as he lay on the groundwas of such a heinous and gruesome nature that the imposition of
the death penalty was not excessive. See Doleman v. State, 107 Nev. 409, 418, 812 P.2d 1287, 1293 (1991).
6. Passion or prejudice influencing death sentence
[Headnote 7]
NRS 177.055(2)(c) requires this court to review [w]hether the sentence of death was imposed under the influence of passion,
prejudice or any arbitrary factor. Nika argues that the jury's rejection of any mitigating factors demonstrates that the sentence was imposed
under the influence of passion and prejudice. The prosecution argues that the jury's failure to find any mitigating factors resulted from the
fact that no mitigating evidence was produced at the sentencing hearing.
113 Nev. 1424, 1440 (1997) Nika v. State
produced at the sentencing hearing. We conclude that the jury's failure to find any mitigating
factors does not prove it acted under the influence of passion or prejudice.
The only mitigating evidence produced by Nika came from his family members, and that
testimony was very limited. Rodika, Nika's wife, testified that she believed that Nika was
generally a good person, but she also admitted that Nika was violent and had threatened to
kill her, her mother, and her father on separate occasions. Dorina Vukadin, Rodika's sister,
also testified for the defense. She stated that Nika played sports with her children and that her
children liked him, but also that he was a stern disciplinarian. She also stated that he
sometimes exposed her children to violent movies and television programs. Anna, Nika's
mother-in-law, testified for the prosecution, and her testimony was primarily concerned with
Nika's death threats against her and members of her family. On cross-examination, the only
positive statement she made regarding Nika was that Nika and Rodika's child loved Nika. We
conclude, therefore, that the jury could reasonably have found that the mitigating
circumstances did not outweigh the aggravating circumstances and that the sentence of death
was not imposed under the influence of passion, prejudice or any arbitrary factor.
Accordingly, we affirm Nika's judgment of conviction and sentence of death.
Shearing, C. J., concurs.
Maupin, J., concurring:
I concur. In seeking the death penalty, the State alleged three aggravating circumstances, to
wit: (1) the murder was committed during the commission of or in an attempt to commit
robbery; (2) the murder was committed to avoid or prevent lawful arrest; and (3) the murder
was committed at random and without apparent motive. The dissent concludes that the failure
of the trial jury to find in favor of the State on the first two alleged aggravators is inconsistent
with its positive finding in connection with the third alleged aggravator. These verdicts are
not, in my view, inconsistent.
In Bennett v. State, 106 Nev. 135, 137, 787 P.2d 797, 802 (1990), this court held that a
murder could be committed during the course of a robbery and without apparent motive
where the killing was not necessary to accomplish the underlying crime. If that is so, then the
converse may certainly be true. If the jury was unable to conclude that a robbery did occur,
but did conclude that Nika was guilty of first-degree murder, it could certainly conclude that
the murder was committed at random and apparently motiveless.
113 Nev. 1424, 1441 (1997) Nika v. State
motiveless. The jury was not compelled to believe any or all of the accomplice testimony
regarding Nika's confession, including the portion thereof in which Nika claimed that the
victim was shot after referring to Nika in the most insulting of pejorative terms. Also, the
overwhelming evidence of Nika's perfidy when confronted by police upon his arrest in
Chicago more than confirms a possible theory of criminality consistent with the third and last
alleged aggravator.
To conclude, if a murder committed during the course of a robbery may, under Bennett, be
committed at random and without apparent motive, a fortiori, a murder committed under
circumstances not amounting to robbery can be found to have been without apparent motive.
While the State did go to the jury on a theory that this murder was committed during the
course of a robbery, the jury was certainly entitled under this information to conclude that a
random and apparently motiveless murder had been committed while finding the evidence
insufficient for any number of technical grounds to support, beyond a reasonable doubt, a
finding that a robbery had occurred.
The ordinary use of the terms random and without apparent motive, in the minds of a
reasonable jury, could certainly fit the facts of this totally senseless act of homicide.
The majority wrongly concludes that the evidence supports the finding of . . . the
aggravating circumstance enumerated in NRS 200.033(9), namely, that the murder was
committed at random and without apparent motive. What the State's evidence does support
is that Nika acted purposively and not randomly and that he was motivated to kill either out
of anger at being called a motherfucker or because he wanted to rob his victim of the
victim's car.
The only evidence in this case of the circumstances of this killing is the evidence presented
by the State. From this evidence the jury learned that Nika, frustrated and angered by his
car-breakdown, broke into a frenzied homicidal rage during which he, by his own admission,
beat his victim with a crowbar and shot him in the head. Not a pretty sight, indeed, but not
necessarily, under our law, a death penalty case.
As stated in the majority opinion, Nika was from Romania and spoke only broken English
and certainly did not understand, other than in its literal sense, the epithet, motherfucker.
The evidence was that Nika had remarked that in his country using such an expression could
result in the death of the name-caller. The most likely apparent motive to be derived from
the State's case was Nika's extreme anger, evoked by his victim's insult to him and to his
mother.
113 Nev. 1424, 1442 (1997) Nika v. State
case was Nika's extreme anger, evoked by his victim's insult to him and to his mother.
Anger, brought about by defending his mother's honor, is not the only possible or
apparent motive in this case, however. Robbery is another apparent motive. The victim's
wallet, with money in it, was found by the victim's side, so this was probably not a robbery of
the person. Nika did decide, however, to take the victim's car after the killing. Although,
taking the car appears to be more of an afterthought after the homicide and more likely a
larceny than a robbery, robbery is surely, at least, an apparent motive. The jury, of course,
concluded that this was not a robbery case (apparently believing that the car theft was an
afterthought). If the jury had found a robbery, this finding would have been a valid
aggravating circumstance, and there would be little difficulty in affirming the death penalty.
The jury, however, did not find robbery as an aggravating circumstance; and the only
aggravating circumstance in this case is Nevada's curious and unexampled at random and
without apparent motive.
1
There are, of course, a number of possible apparent motives for Nika's killing his victim.
Robbery is an apparent motive; but with the jury's rejection of this aggravating
circumstance, the most probable motive for this killing (both real and apparent) is that,
given his cultural background, Nika could not countenance anyone's accusing him of having
sexual relations with his mother. At least, this is what the State's evidence would have the
jury believe. Still, the majority somehow concludes that Nika did not even have an apparent
motive to kill. As far as I can tell, the majority has nothing to say in its opinion to support the
completely insupportable, if not unthinkable, proposition that in the face of all of the State's
evidence, Nika did not even have an ostensible or apparent motive to kill this particular
victim. The majority opinion maintains that because Nika did not need[] to murder Smith in
order to rob him . . . the evidence presented at trial provides ample support for the jury's
finding that [Nika] acted at random and without apparent motive. However, in support of its
conclusion that Nika acted without apparent motive, the majority goes on to state a non
sequitur, that robbery was not a likely motive for the killing. This statement is not only
inconsistent with the State's theory, it is not true. The evidence presented at trial presents
absolutely no evidence that Nika acted either at random or without apparent motive.
Once the majority decides (apparently because of the jury verdict) that robbery was
likely not Nika's true motive, it fallaciously jumps to the conclusion that robbery could
not be even an "apparent" reason for the crime.
__________

1
As far as I can discover, Nevada is the only state that employs the quoted phrase as an aggravating
circumstance.
113 Nev. 1424, 1443 (1997) Nika v. State
fallaciously jumps to the conclusion that robbery could not be even an apparent reason for
the crime. I would argue that even if robbery was not a likely motive, it surely could still be
an apparent motive.
If I understand the majority opinion correctly, the majority justices are trying to say to us
that if robbery was not a likely motive, it cannot then be an apparent motive. The jury
was not given a definition of apparent. Presumably, the jurors relied on their common sense
understanding of the word. Apparent refers to a possibility, that which is evident from the
circumstances or that which appears to be real.
2
Of course robbery was, at the very least, an
apparent motive for this killing. The State, itself, took the position that not only was Nika
motivated to rob, he did in fact rob. Robbery was an apparent reason insofar as the State was
concerned. Further, as pointed out by Justice Rose in his dissent, it is inconsistent and
improper for the State to argue during the guilt phase that Nika had acted with a motive and
then argue in the penalty phase that Nika had acted without a motive.
Obviously, robbery becomes no less of an apparent motive either because the jury
ultimately concluded that no robbery was committed or because the majority guesses that
robbery was an unlikely motive. I am not suggesting, of course, that I, or anyone else, can
truly say which of the possible apparent motives motivated Nika to kill this victim. All I am
saying is that it approaches the nonsensical to propose that there was no apparent motive
for this killing.
3
Under the statute and the instruction given, to be guilty of this
aggravating circumstance, not only must Nika have killed without any apparent motive,
he must also have killed "at random."
__________

2
Apparent is defined in the dictionary as:
Clear or manifest to the understanding; plain, evidence, obvious, palpable . . . . Appearing as actual to the
eye or mind (distinguished from, but not necessarily opposed to, actual, true, or real); bearing, or
supported by, such evidences of reality as lead to believe in the existence of the thing evidenced;
seeming; . . . having such an appearance of reality as reasonably to appear true under the circumstances.
Webster's International Dictionary 129 (2d ed. 1948).

3
The majority's point is that the State's case relating to Nika's being motivated by robbery, anger and defense
of his mother's honor does not furnish evidence of even an apparent motive to kill. The position of the
concurring justice is even stranger. The concurring justice argues that the jury could have rejected all of the
State's evidence relating to Nika's robbing the victim as well as the State's evidence relating to Nika's anger and
then have properly come to the conclusion that the murder was not motivated at all but, rather, was senseless
and apparently motiveless.
I would remind my concurring colleague that absence of evidence is not evidence of absence and that even
if the jury rejected all the State's evidence on how this killing took place, this still would not permit the jury to
conclude that there was not at least an apparent motive. It is, of course, unreasonable and unlikely that the jury
would have rejected the State's entire case (except the killing part) and on that basis have concluded that no
motive
113 Nev. 1424, 1444 (1997) Nika v. State
Under the statute and the instruction given, to be guilty of this aggravating circumstance,
not only must Nika have killed without any apparent motive, he must also have killed at
random. The majority cites cases to support its without-apparent-motive case but fails to
discuss in any fashion the indispensable at random element of this aggravating circumstance.
The jury, of course, was given no definition of what the term at random means; and it
was left to its own devices in defining the element of randomness. I agree with dissenting
Justice Rose that it is essential to define the term[] random' . . . in order to give the jury
guidance and genuinely narrow the class of person eligible for the death penalty.' Neither
the majority nor concurring opinion gives any thought or attention to the meaning of the word
random. Unless there is evidence upon which a jury can properly find, beyond a reasonable
doubt, that Nika acted in random manner, the requirements of this aggravating factor cannot
be fulfilled.
In common parlance random means aimless and left to chance. This killing does not
have the slightest hint of being either aimless or random. According to the State, it was a
killing committed out of rage or motivated robbery, two real or apparent motives.
As noted, Nevada appears to be the only State that has provided for this odd aggravating
circumstance. Presumably, it was intended to address the culpability inherent in unprovoked,
uncalled-for killings of persons unknown to the killer. If, for example, a person were to fire a
machine-gun at random into a crowd, not caring who the victims were, just wanting to kill
someone, such a case would probably fall into the category of a random killing.
__________
for the killing was apparent. Even if the jury had rejected most of the State's case and concluded that there was
not present in this case some true motive, the jury simply could not have reasonably concluded that there were
no apparent motives in this case.
As understood and expounded in the Rose dissent, what the prosecutor was really arguing to the jury in this
case was something like this:
This man unlawfully murdered a man out of anger just because the man called him a motherfuckeror
would you believe, instead, that he was motivated by robbery? If you do not believe either of these,
would you believe he killed for no apparent reason at all?
Again, even if, as the concurring opinion suggests, the jury might have rejected all of the State's evidence
relating to what the State claimed were Nika's motives to kill, this would not mean that the jury was entitled to
find, beyond a reasonable doubt, that the killing was apparently motiveless. There is absolutely no evidence in
this case that Nika acted without any real or apparent motive. The jury was not, as the concurring opinion
suggests, entitled to conclude under the evidence produced by the State that Nika had no apparent reason, no
inducement, no incitement to kill and that he, whimsically, and for no particular reason, killed merely for the
sake of killing.
113 Nev. 1424, 1445 (1997) Nika v. State
random killing. We have nothing like that here. The only thing that we know about this
killing is what was presented by the prosecution and that is that Nika and his victim were
engaged in a conversation relative to Nika's car trouble and that the conversation escalated
into a physical confrontation. Whether Nika was motivated by anger or by the intent to rob,
we do not know; but it does not matter. What matters is whether there was an apparent
motive. If we did not have this State's evidence, we might possibly indulge in the conjecture
that Nika did not kill to rob or kill out of anger and that he therefore killed senseless[ly]
just for the sake of killing itself; but the State's case is all we have. We cannot, given the
evidence that was presented by the State to the jury, fairly conclude that Nika went out
randomly and indifferently, and for no particular reason, indiscriminately shot and killed
another human being.
In sum, then, there was nothing random about Nika's deciding, for whatever real or
apparent motive, to kill this victim under the circumstances defined and described by the
prosecution. There are, as I have explained, a number of apparent motives for this killing.
The killing was neither random nor without apparent motive; therefore, Nika is not
death-eligible, and his death sentence should be reversed.
I find numerous serious faults with the majority opinion and, therefore, must dissent.
The district court erred in concluding that no custodial interrogation occurred
The first error occurred when the district court permitted a sheriff's deputy to testify
regarding Nika's incriminating statements given during a jailhouse classification interview
conducted after Nika had invoked his Miranda rights. This issue was raised in district court,
but was not addressed in Nika's briefs to this court. However, we can address constitutional
issues sua sponte. McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983). The fact
that Nika's counsel apparently conceded this point at oral argument is not binding on this
court and seems more the product of poor lawyering rather than a competent adversarial
decision.
Nika was questioned in Chicago on August 30, 1994, by Detective John Yaryan, and at
that time, invoked his right to have an attorney present.
1
Thereafter, Nika was extradited to
Nevada on September 1, 1994, and booked into the Washoe County jail.
__________

1
The content of that interview was later suppressed by the district court after it concluded that Nika had
invoked his right to an attorney but that Yaryan had continued to interrogate Nika.
113 Nev. 1424, 1446 (1997) Nika v. State
on September 1, 1994, and booked into the Washoe County jail. Nika's clothes were taken
from him, and he was removed from the booking detention area and placed into a housing
unit. On September 2, 1994, Nika had eaten a meal and was mixing with the general prison
population when Colleen Villa, a plain-clothed deputy with the Washoe County sheriff's
department who worked in the classification unit at the county jail, took Nika aside to ask
him some questions from the classification form. Villa testified that every inmate had to
answer the questionnaire so that the jail administrators could place the inmate in a safe
housing unit. Villa also testified that she knew that Nika had been arrested for murder and
also knew some of the facts of the case prior to interviewing Nika.
One of the questions Villa asked Nika was, Have you ever assaulted or battered anyone?
Nika responded that he had fought with a man around 9:00 p.m. or 9:30 p.m. one evening and
that the man was dead. He also stated that during the fight a gun was placed to his head,
although Villa testified that she was unsure if that meant a gun was placed to Nika's head or
that Nika had placed a gun to the victim's head.
At the outset, I would like to state that jail personnel should be permitted to ask any
question they feel necessary for the orderly and safe confinement of a prisoner. The admission
of the answers given by the inmate at trial is quite another matter, especially when the
prisoner has invoked his Fifth Amendment right to remain silent and then is asked specific
questions about whether he has ever committed the crime in question or a lesser-included
crime. My response to this problem is certainly not to prevent jail personnel from asking even
those questions if they feel it necessary. Rather, the admissibility of this evidence should be
where the remedy is applied. To ascertain the nature and extent of that remedy, we must
examine the law that has developed in this area.
An individual subjected to a custodial interrogation must be given his or her Miranda
rights. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). Unless and until the Miranda
rights are given and a waiver of those rights is obtained, no evidence procured as a result of
the interrogation can be used against the defendant. Miranda v. Arizona, 384 U.S. 436, 479
(1966). However, a well-established line of cases has created an exception to the Miranda
rule for routine booking questions because such questions are not related to the
investigation of the case and serve a legitimate administrative need. Pennsylvania v. Muniz,
496 U.S. 582, 601 (1990); United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981);
Franks v. State, 486 S.E.2d 594, 597 (Ga. 1997). Routine booking questions are limited to
biographical data necessary to complete booking or pretrial services.' Muniz, 496 U.S. at
601 {quoting United States v. Horton, S73 F.2d 1S0, 1S1 n.2 {Sth Cir.
113 Nev. 1424, 1447 (1997) Nika v. State
Muniz, 496 U.S. at 601 (quoting United States v. Horton, 873 F.2d 180, 181 n.2 (8th Cir.
1989)); see also Franks, 486 S.E. 2d at 597 (stating that basic biographical data is limited to a
suspect's name, age, address, educational background, marital status, and any other
information required to complete an arrest form).
The Ninth Circuit Court of Appeals has stated that while ordinarily routine gathering of
background biographical data will not constitute interrogation,
we recognize the potential for abuse by law enforcement officers who might, under the
guise of seeking objective or neutral information, deliberately elicit an
incriminating statement from a suspect. Thus we emphasize that the ultimate test for
whether questioning constitutes interrogation is whether, in light of all the
circumstances, the police should have known that a question was reasonably likely to
elicit an incriminating response.
Booth, 669 F.2d at 1238. This analysis must be made on a case-by-case basis. Id. at 1237-38.
The questions Deputy Villa asked Nika went beyond routine background information and
were not completely unrelated to the underlying offense, even though they undoubtedly
served the legitimate administrative need of classifying jail inmates. The questions posed to
Nika were broad in nature and asked for intimate details of Nika's life, including his criminal
history, gang affiliation, and sexual orientation. However, the question concerning whether
Nika ever committed a battery on anyone was more specific and inquired about a
lesser-included crime of the murder charge. If the response to this type of question is
incriminating, it should not be admitted at trial. In this way, the exception to the ban on
questioning a prisoner who has invoked his right to remain silent will not engulf the general
rule. See People v. Rucker, 605 P.2d 843, 855 (Cal. 1980) (concluding that jail officials can
satisfy their demonstrated need for certain basic information necessary for proper jail
administration, but the prosecution may not use the arrestee's responses in any manner in the
criminal proceedings).
2
Additionally, and more importantly, the questions Deputy Villa
asked Nika were such that she should have known they were reasonably likely to elicit an
incriminating response.
__________

2
In People v. Hall, 245 Cal. Rptr. 458, 461 (Ct. App. 1988), the appellate court stated that California
Proposition 8 (adding article 1, section 28(d) to the California Constitution) abrogated Rucker. Proposition 8
stated in pertinent part: Except as provided by statute hereafter enacted by a two-thirds vote of the membership
in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding. . . . Nothing
in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay. Hall, 245 Cal.
Rptr. at 461 n.3. Rucker might have survived Proposition 8 because it relied on the federal Constitution, but in
any event, the rationale of Rucker is persuasive and should be followed by this court.
113 Nev. 1424, 1448 (1997) Nika v. State
Additionally, and more importantly, the questions Deputy Villa asked Nika were such that
she should have known they were reasonably likely to elicit an incriminating response. Nika
was arrested for murder, and the question, Have you ever assaulted or battered anyone?
while presumably asked for a neutral reason, was asking Nika about a lesser-included offense.
Furthermore, Nika did not speak English well, and in light of the transcript of the suppressed
interview with Yaryan, it is clear that Nika did not understand with any degree of certainty his
constitutional rights to have an attorney present and to remain silent. Despite the fact that
Villa was reading from a standardized form, she knew that Nika had been arrested for
murder, knew the details of the murder, and should have known, especially in light of Nika's
unusual susceptibility, that the question was reasonably likely to elicit an incriminating
response. Booth, 669 F.2d at 1238. Therefore, I believe that using Nika's answer to that
question during trial was in violation of Nika's right to be free from custodial interrogation
after he had invoked his Fifth Amendment rights.
Furthermore, the admission of the evidence was not harmless error because it cannot be
proven beyond a reasonable doubt that the evidence did not contribute to the verdict.
Chapman v. California, 386 U.S. 18, 24 (1967). Nika's statements to Villa constituted an
admission that he had been involved in Smith's death in some fashion, although he did not
admit specifically to Smith's murder; this information likely influenced the jury's decision.
Based on this violation of Nika's federal constitutional rights, I believe that Nika is entitled
to a new trial.
Inadequate instructions concerning NRS 200.033(9), the random and without apparent
motive aggravator
The jury was presented with three aggravating circumstances to consider in the penalty
phase of this trial, whether the murder was committed during the commission of or attempt to
commit a robbery, whether the killing was done to avoid arrest or effect an escape, and
whether the murder was committed at random and without apparent motive. The jury
rejected the first two aggravators, but found that the killing was done at random and without
apparent motive.
The jury's rejection of the murder in the course of a robbery and murder to flee
aggravators and finding the random and motiveless aggravator was unusual considering the
facts. There is abundant evidence to demonstrate that the killing was done to facilitate a
robbery or escape, and had the jury found either aggravator, this would be a routine
affirmance. By the brutal, executionstyle killing, Nika has proven that he in general qualifies
for the death penalty.
113 Nev. 1424, 1449 (1997) Nika v. State
fies for the death penalty. But, when the jury returned only the one random and motiveless
aggravator, we are compelled to determine whether the legal instructions given the jury were
adequate for this case and if the facts presented support this sole aggravator. To put it simply,
we must determine whether Nika's execution can be sanctioned by the rules with the facts as
found by the jury.
The jury obviously considered whether NRS 200.033(9), the aggravating circumstance
alleging that the murder was committed at random and without apparent motive, had been
proven beyond a reasonable doubt. The only assistance the jury received in considering this
aggravator was the instruction that it could find that NRS 200.033(9) had been proven beyond
a reasonable doubt if it concluded that the killing was not necessary to complete a robbery.
(Emphasis added.) This instruction was derived from our opinions in Bennett v. State, 106
Nev. 135, 143, 787 P.2d 797, 802 (1990), and Paine v. State, 107 Nev. 998, 999-1000, 823
P.2d 281, 282 (1991).
3
Since the jury rejected the murder in the course of a robbery
aggravator, it seems logical to assume that the above instruction would be inapplicable since
it dealt with a killing accompanying a robbery. This left the jury with only the language of
NRS 200.033(9), a murder committed at random and without apparent motive.
We have never required that the random and without apparent motive aggravator be
defined beyond stating to the jury the aggravator as defined in NRS 200.033(9). See, e.g.,
Greene v. State, 113 Nev. 157, 163, 931 P.2d 54, 58 (1997); Geary v. State, 112 Nev. 1434,
1445-46, 930 P.2d 719, 726 (1996). However, in this and several other cases, this court has
struggled with the meaning of those terms and the application of those terms to the facts of a
particular case. The facts of this case are not those that come to mind when you first think of
a random and motiveless crime, as does the shooting of people from a rooftop or driving
indiscriminately into pedestrians on a sidewalk. Here, Nika obviously had just met the good
samaritan who apparently stopped to help him, and Nika killed him in the course of robbing
him, or because the samaritan called him a foul name, or to aid his escape, or for no reason at
all. The jury concluded Nika killed for no apparent reason at all,
__________

3
This court has not always interpreted this aggravating circumstance this way. In Moran v. State, 103 Nev.
138, 142-43, 734 P.2d 712, 714 (1987), and Geary v. State, 112 Nev. 1434, 1446-47, 930 P.2d 719, 727 (1996),
we did not use such a definition. Instead, we examined the facts to determine whether the murder was committed
without motive and at random, relying on the common usage of those words. Upon reflection, I believe the
instruction used in the instant case is incomplete, misleading, and nonsensical, and our legal system would be
better off if it were jettisoned.
113 Nev. 1424, 1450 (1997) Nika v. State
no apparent reason at all, and it was the jury's prerogative to so conclude even if the other
reasons may seem more plausible.
It is much more difficult to see how the jury concluded that Nika killed the samaritan at
random. He obviously had just met the samaritan who stopped to help him, and it is not at
all apparent to me how Nika's killing could be classified as at random even if done without
apparent motive. Perhaps the jury believed that it was uncertain who might stop to help Nika,
and this was sufficient to provide the randomness element needed to find the aggravator.
However, this is not the randomness I believe that the legislature contemplated when
approving this aggravator.
This case seems closer to the factual situation presented in Geary where we held that the
random and without apparent motive aggravator was constitutional; however, we reversed
Geary's death penalty conviction because the evidence presented at trial indicated that the
killing was neither random nor motiveless because the killing was directed at a specific
individual and was done for a specified reason. Geary, 112 Nev. at 1446, 930 P.2d at 727. I
see little difference between the situation presented in Geary and that in the present case.
What all this demonstrates to me is that we need to define the terms used in this aggravator to
better assist the jury in its difficult task of applying this aggravator to the facts of cases like
this one.
Defining the terms random, apparent, and motive will give the jury guidance and
genuinely narrow the class of persons eligible for the death penalty. Zant v. Stephens, 462
U.S. 862, 877 (1983). We began this process in Geary v. State, 112 Nev. 1434, 1446-47, 930
P.2d 719, 727 (1996), but did not provide concrete definitions. The word random means
either lacking a definite plan, purpose or pattern, or relating to a set whose elements have
equal probability of occurring. Webster's Ninth New Collegiate Dictionary 974 (9th ed.
1985). NRS 200.033(9) states that the murder must be committed upon one or more persons
at random and without apparent motive, and I believe that the statute is properly understood
to mean that the victim must be selected at random and the crime must be committed on that
randomly selected victim without apparent motive.
Apparent means or has been stated to mean open to view or clear or manifest to the
understanding. Webster's Ninth New Collegiate Dictionary 96 (9th ed. 1985); see also, State
v. Moore, 553 N.W.2d 120, 128 (Neb. 1996) (Apparent means that which is readily
perceptible); Black's Law Dictionary 96 (6th ed. 1990) (That which is obvious, evident, or
manifest . . . . That which appears to the eye or mind; open to view; plain; patent.).
Motive has been defined as the emotional urge which induces a particular act."
113 Nev. 1424, 1451 (1997) Nika v. State
induces a particular act. 1 Witkin & Epstein, Cal. Criminal Law 100, at 118-19 (2d ed.
1988); see also 21 Am. Jur. 2d Criminal Law 133, at 267 (1981) (motive may be defined
as that which leads or tempts the mind to indulge in a criminal act, or as the moving power
which impels to action for a definite result); United States v. Beechum, 582 F.2d 898, 912
n.15 (5th Cir. 1978) (motive . . . has been defined as the reason that nudges the will and
prods the mind to indulge the criminal intent' ) (quoting Slough & Knightly, Other Vices,
Other Crimes, 41 Iowa L. Rev. 325, 328 (1956)).
According to these definitions, any emotional urge or passion which prompts a person to
act will qualify as a motive. Commonly understood motives for murder include avarice,
revenge, jealousy, fear, preventing discovery of a crime, evading arrest or prosecution, and
conduct of the deceased in opposing or trying to injure the defendant. 1 Witkin & Epstein,
Cal. Criminal Law 100, at 119 (2d ed. 1988); Wigmore, Principles of Judicial Proof 96, at
193 (2d ed. 1931). Being insulted can also be a motive for murder. See State v. Garcia, 664
P.2d 969, 973 (N.M. 1983) (concluding that evidence existed to support a theory that the
deceased had insulted the defendant's prison gang and the insult was the defendant's motive
for the killing). I believe that defining the words used in this aggravator will assist juries in
determining whether the facts fit this aggravator and it will increase our confidence that the
correct factual determination was made when reviewing the case on appeal. I conclude that
failing to give definitions of the critical words used in this aggravator left the jury with
unreasonably vague guidelines when confronted with the facts of this case and that this case
should be reversed and retried for that reason.
The State's inconsistent arguments on Nika's motive to kill
Finally, I believe that it was improper for the State to argue during the guilt phase that
Nika acted with a motive and then argue during the penalty phase that Nika acted without a
motive. At trial, the prosecution presented a jailhouse snitch who testified that Nika told him
that he had killed Smith because Smith had called him a motherfucker, a term that Nika
stated was a grave insult in his country of origin. Because the prosecution elicited this
testimony in the guilt phase to show that Nika killed Smith and why he killed Smith, it cannot
in the penalty phase or on appeal legitimately argue that such provocation did not provide
Nika with a motive to kill Smith.
4
See Tore, Ltd. v. Rothschild Management Corp.,
__________

4
The prosecution also elicited testimony that Nika killed Smith in order to steal his car, but the jury
apparently did not believe this testimony because it
113 Nev. 1424, 1452 (1997) Nika v. State
Management Corp., 106 Nev. 359, 364, 793 P.2d 1316, 1319 (1990) (stating that this court
will not permit an attorney or party to argue one theory at trial and another on appeal). The
prosecution should not be able to present evidence and argue its validity at one portion of a
trial and then repudiate it at another because it no longer serves the State's purpose.
In conclusion, I believe that Nika's constitutional rights were violated when his
incriminating statement to jail personnel was admitted into evidence. Upon retrial I would
discard the definition we have used in Bennett, Paine, and other subsequent cases that permits
a finding of random and motiveless killing if murder was not necessary to complete the
robbery and then define the three critical terms random, apparent, and motive with specificity.
____________
113 Nev. 1452, 1452 (1997) Fuddy Duddy's v. State, Dep't Transp.
FUDDY DUDDY'S, and PETER ELIADES, Appellants, v. THE STATE OF NEVADA
DEPARTMENT OF TRANSPORTATION, a Political Subdivision of the State of Nevada,
Respondent.
No. 28344
December 30, 1997 950 P.2d 773
Appeal from a district court order granting respondent's counter-motion for summary
judgment. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Tenant, who had entered into lease with landlord containing condemnation clause, sued
state Department of Transportation and owner seeking to recover compensation for value of
leasehold. The district court denied tenant's application for preliminary injunction and
summary judgment, and granted Department's countermotion for summary judgment. Tenant
appealed, claiming that Department's purchase of property did not trigger condemnation
clause based on Department's failure to comply with statutory condemnation requirements.
The supreme court held that; (1) for purposes of condemnation clause, purchase made under
threat of condemnation was the same as judicial condemnation, and (2) conclusion that
condemnation clause had terminated lease was proper based on purchase, but determination
of value of trade fixtures and tenant owned improvements was necessary.
__________
did not find that Nika killed Smith in the commission of a robbery pursuant to NRS 200.033(4). However, such
testimony provided evidence regarding Nika's motive, and it was improper for the prosecution to present such
evidence of a motive during the guilt phase and then claim during the penalty phase and on appeal that no motive
existed.
nation of value of trade fixtures and tenant owned improvements was necessary.
Moran & Associates and Mark J. McGannon and Jeffrey BenDavid, Las Vegas, for
Appellants.
Frankie Sue Del Papa, Attorney General, Leslie A. Nielsen, Deputy Attorney General,
Joseph Vadala, Deputy Attorney General, Carson City, for Respondent.
For purposes of condemnation clause in lease, purchase of property made under threat of condemnation is the same as judicial
condemnation.
Conclusion that condemnation clauses in lease terminated lease was proper, even though there were no official condemnation
proceedings brought in court and state purchased property from owner/landlord, as purchase was made under threat of condemnation
and acted the same as judicial condemnation. Purchase was not sale on open market, Department of Transportation's Board of
Directors adopted resolution authorizing and directing Department to acquire that property, and negotiation between Department and
owner was good-faith effort to agree on amount of compensation.
OPINION
Per Curiam:
In 1990 and 1991, Peter Eliades leased from Edward and Marion Deeb certain real
property located at 3455-3457-3459 and 3461 Industrial Road in Las Vegas. Eliades used the
property to house a night club and bar called Fuddy Duddy's. The leases provided for a
ten-year term with an additional ten-year option to renew. The leases contained a
condemnation clause in paragraph 38 which provided that the leases would terminate [i]n
the event the Demised Premises, or any portion thereof, are condemned by any proper
authority.
In April 1993, the Board of Directors of the Nevada Department of Transportation
(NDOT) adopted Condemnation Resolution No. 345. The resolution authorized and
directed NDOT to acquire the Deebs' property on Industrial Road, including that leased by
Eliades. In February 1993, NDOT approached the Deebs and inquired about purchasing their
property.
The Deebs sent Eliades a letter, notifying him that NDOT was taking the property, and
that, pursuant to the condemnation clause in Eliades' leases, the leases would terminate upon
the close of escrow.
close of escrow. On June 28, 1993, NDOT and the Deebs entered into a purchase agreement.
In February 1994, Eliades filed a complaint against NDOT, the Deebs, Deeb Investments,
Inc., and others, seeking to recover compensation for the value of his leasehold. NDOT filed a
counterclaim and later moved for summary judgment, which was denied. In March 1994,
Eliades filed an application for a temporary restraining order and preliminary injunction to
halt NDOT's plans to demolish the property on Industrial Road. The district court denied the
application.
In July 1995, Eliades filed a motion for summary judgment. NDOT, joined by the Deebs,
filed a counter-motion for summary judgment. The district court granted the counter-motion
as to NDOT only. The district court certified the order as final for purposes of NRCP 54(b).
Eliades appeals.
Eliades argues that the district court erroneously concluded that NDOT's purchase of the
Deeb property triggered the condemnation clause in his leases. Eliades argues that, in order
for a condemnation to take place, condemnation proceedings must be brought in district court
by way of a verified complaint, the district court must enter a final order of condemnation,
and interested parties must be allowed to defend their claims. See NRS 37.060; NRS 37.160;
NRS 37.080. Eliades contends that NDOT's failure to comply with statutory requirements
compels a finding that no condemnation occurred and that, therefore, his leases did not
terminate.
NDOT argues that a purchase under the threat of condemnation is the equivalent of a
condemnation. See Direct Mail Services, Inc. v. State, 929 F.2d 672 (10th Cir. 1984)
(suggestion that sale under threat of condemnation constituted a simple sale rather than the
exercise of state's power of eminent domain was not supported by the evidence); Western
Airlines, Inc. v. Lathrop Co., 499 P.2d 1013 (Alaska 1972) (provision that lease would
terminate if building was taken by eminent domain proceedings, or by the action of any city
or public authority construed to mean that lease terminates whenever the leasehold is taken
pursuant to actions that are tantamount to a taking under the power of eminent domain);
Vincent v. Redev. Auth., Etc., 487 A.2d 1024, 1025 (Pa. Commw. Ct. 1985) (the events
culminating in the conveyance by deed in lieu of condemnation constituted a condemnation
proceeding.' ); see also Lanning v. City of Monterey, 226 Cal. Rptr. 258, 262 (Ct. App.
1986) (city's acquisition of real property through purchase in lieu of its exercise of power of
eminent domain was essential equivalent of exercise of eminent domain.)
[Headnotes 1, 2]
We are persuaded by the above authorities and conclude that a purchase made under the threat of condemnation is the same as a
judicial condemnation. This was not a sale on the open market. The Board of Directors of NDOT adopted a resolution authorizing and
directing NDOT to acquire the Deebs' property on Industrial Road, including that leased by Eliades. The negotiation between NDOT and
the Deebs appears to be a good faith effort to agree on the amount of compensation. Therefore, we conclude that the district court did not
err in concluding that the condemnation clauses terminated Eliades' leases.
The condemnation clause in Eliades' leases provided: Lessor shall be entitled to and shall receive the entire award arising out of the
condemnation of all or a portion of the Demised Premises except as to trade fixtures. Eliades never received compensation for his trade
fixtures. During oral argument, NDOT conceded that it owed Eliades compensation for his trade fixtures and tenant owned improvements.
We therefore reverse the order of the district court granting NDOT's counter-motion for summary judgment and remand this case for a
determination of the value of these trade fixtures and tenant owned improvements.
1
____________
113 Nev. 1455, 1455 (1997) Wood v. State
ALLEN DWIGHT WOOD, Appellant, v. THE
No. 30608
December 31, 1997 951 P.2d 601
Application for the certification of excess fees by court-appointed counsel.
Court-appointed counsel requested excess fees in appeal of felony conviction. The district
court found that counsel's fees were appropriate, and counsel filed application for certification
of excess fees. Overruling Beury v. State, 108 Nev. 219, 826 P.2d 956 (1992), the supreme
court held that district court is proper forum for certifying excess fee claims of
court-appointed counsel.
Application denied.
__________

1
In light of this decision, we conclude that it is unnecessary to reach the issue of whether the mutual release is
valid.
We have considered all other issues on appeal and find them to be without merit.
113 Nev. 1455, 1456 (1997) Wood v. State
Michael K. Powell, Carson City, for Appellant.
and Anne M. Langer, Deputy District Attorney, Carson City, for Respondent.
Procedure by which court-appointed attorneys in criminal matters could request certification of excess fee claims as reasonable
and necessary from supreme court, and presiding or senior district judge approved the excess fee, was unconstitutional; state
constitution did not contemplate or permit supreme court to engage in extensive fact finding procedures required to provide meaningful
certification of court-appointed counsel's claim for excess fees, nor did constitution contemplate or permit supreme court's rulings and
certifications to be subjected to final review and approval by presiding or senior judge of district court, overruling Beury v. State, 108
Nev. 219, 826 P.2d 956 (1992). Const. art. 6, 4, 6(1); NRS 7.125(4).
District court is proper court to rule on court-appointed counsel's request for excess fees, since district court presides over pretrial
proceedings, trial, and post-trial motions, retains complete trial record, and has intimate familiarity with case.
Supreme court will only review lower court's decision regarding court-appointed counsel's claim for excess fees in extraordinary
circumstances.
OPINION
Per Curiam:
Appellant's court-appointed attorney, Michael K. Powell, has filed an application for the
certification of excess fees. See NRAP 15; NRS 7.125(4). Specifically, counsel seeks this
court's certification of payment in the amount of $4,656.25 for services rendered in this
appeal as of August 25, 1997. Attorney Powell has attached a copy of a district court order to
his application. The order indicates that the district court believes that the time spent and
work done by counsel in this matter are both reasonable and necessary.
Attorney Powell was appointed by the district court to represent appellant in this direct
appeal from a judgment of conviction on several felony counts. At the time counsel filed the
current application for certification, he had only submitted a fast track statement and
appendix to this court on behalf of appellant. See NRAP 3C(e). We subsequently directed the
parties to fully brief this appeal and counsel has since filed an opening brief on behalf of
appellant. See NRAP 3C(j). However, respondent has yet to file an answering brief, and the
merits of this matter have not been submitted to this court for consideration.
113 Nev. 1455, 1457 (1997) Wood v. State
file an answering brief, and the merits of this matter have not been submitted to this court for
consideration.
NRS 7.125 governs the amount of compensation that court-appointed attorneys may obtain
for the representation of an indigent client in a criminal matter. NRS 7.125(2)(e) limits
compensation in appeals from one or more gross misdemeanor or felony convictions to
$2,500. However, that amount may be exceeded under certain circumstances. First, the
appointing court must deem a payment in excess of the limit appropriate. See NRS 7.125(4).
Second, the court in which the representation occurred must certify the excess payment as
both reasonable and necessary. Id. Finally, the presiding or senior judge of the district in
which the attorney was appointed must approve the payment. Id. We had the opportunity to
address the issue of compensation for court-appointed attorneys in excess of statutory limits
in Brown v. Board of County Comm'rs, 85 Nev. 149, 451 P.2d 708 (1969). At that time, the
legislature had imposed inflexible limits on the amount of compensation that could be
provided to court-appointed attorneys. We recognized that in certain instances the statute's
failure to adequately compensate court-appointed attorneys for their services might create an
unbearable personal hardship. Id. at 152-53, 451 P.2d at 710-11. However, we declined to
exceed the statutory limits in Brown and instead invited legislative correction of the matter.
Id.
After our decision in Brown, the legislature amended NRS 7.260
1
to provide for fee
payments in excess of the established limits in unusual circumstances. See 1975 Nev. Stat.,
ch. 612, 1, at 1154. The amended statute established a process by which attorneys might
seek payment in excess of the statutory limit. Id. The process required a justice of this court
to approve excess fee claims in appellate matters. Id.
We first had an opportunity to review the legislature's attempt to ease the potential
financial burden on court-appointed attorneys in Brackenbrough v. State, 92 Nev. 460, 553
P.2d 419 (1976). Upon review, we found the legislature's attempt to place the administrative
and fact finding burden of processing excess fee claims upon this court invalid. Id. at 462,
553 P.2d at 420. We noted the historical practice and wisdom of allowing the district court to
process excess fee claims in the first instance and concluded that normally such fees
[should] be first processed and resolved in district court, which is a fact finding tribunal,
before we consider them. Id. at 463-64, 553 P.2d at 420-21.
In the years since our decision in Brackenbrough, NRS 7.125 has been amended several
times. See 1977 Nev. Stat., ch. 236, 1, at 419-20; 1977 Nev. Stat., ch. 435, 1, at S75-76;
19S1 Nev. Stat., ch. 451, 3, at S74-75; 19S3 Nev. Stat., ch. 26, 4, at 109-10; 19S3 Nev.
Stat., ch. 429, 1, at 1095-97; 19S5 Nev. Stat., ch. 365, 1-2, at 1023-26; 19S7 Nev.
Stat., ch. 554, 1, 1295-96; 1991 Nev. Stat., ch. 630, 1, 2077-7S; 1993 Nev. Stat., ch.
__________

1
NRS 7.125 was formerly numbered as NRS 7.260.
113 Nev. 1455, 1458 (1997) Wood v. State
1, at 419-20; 1977 Nev. Stat., ch. 435, 1, at 875-76; 1981 Nev. Stat., ch. 451, 3, at 874-75;
1983 Nev. Stat., ch. 26, 4, at 109-10; 1983 Nev. Stat., ch. 429, 1, at 1095-97; 1985 Nev.
Stat., ch. 365, 1-2, at 1023-26; 1987 Nev. Stat., ch. 554, 1, 1295-96; 1991 Nev. Stat., ch.
630, 1, 2077-78; 1993 Nev. Stat., ch. 590, 1, 2465-66. The requirement that this court
approve excess fees in appellate matters was eventually replaced with the current
requirements that the appointing court deem an excess fee appropriate, that the court in which
the representation was rendered certify the excess fee as reasonable and necessary, and that
the presiding or senior district court judge approve the excess fee. See NRS 7.125(4).
We initially embraced the certification requirements embodied in NRS 7.125(4). See
Beury v. State, 108 Nev. 219, 826 P.2d 956 (1992). In fact, we formally established a
procedure by which court-appointed attorneys in criminal matters could request certification
of excess fee claims as reasonable and necessary from this court. See NRAP 15. However,
our experience has shown that the very administrative and fact finding burden we feared in
Brackenbrough has been imposed upon us by the current statutory requirements.
As we indicated in Brackenbrough, the district court that hears the underlying matter
traditionally appoints local counsel to represent an indigent person on appeal. 92 Nev. at 463,
553 P.2d at 420. The district court presides over the trial, pre-trial proceedings, and post-trial
motions. Id. The district court's intimate familiarity with a case and retention of the complete
trial record usually puts it in a better position than this court to determine expeditiously how
much new and effective effort has truly been devoted to preparation of appellate briefs. Id.
In addition to the practical reasons for having the district court process all excess fee
claims, our constitution suggests that the current procedure embodied in NRS 7.125(4) is
invalid. The constitution vests this court with final appellate jurisdiction over matters which
arise in the district court. See Nev. Const. art. 6, 4 (The supreme court shall have appellate
jurisdiction in all civil cases arising in district courts, and also on questions of law alone in all
criminal cases in which the offense charged is within the original jurisdiction of the district
courts.) The constitution vests district courts with the power and duty to conduct the initial
civil and criminal proceeding. See Nev. Const. art. 6, 6(1) (The 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.)
[Headnote 1]
Our constitution does not contemplate or permit this court's engagement in the extensive fact finding procedures
required to provide the meaningful certification of an excess fee claim that NRS 7.125{4) demands.
113 Nev. 1455, 1459 (1997) Wood v. State
engagement in the extensive fact finding procedures required to provide the meaningful
certification of an excess fee claim that NRS 7.125(4) demands. Likewise, the constitution
does not contemplate or permit this court's rulings and certifications to be subjected to final
review and approval by the presiding or senior judge of a district court.
[Headnote 2]
We conclude that the district court is in a better position than this court to judge the appropriateness of a court-appointed attorney's
request for excess fees. In addition, the current procedure mandated by NRS 7.125(4) for the processing of appellate excess fee claims is
contrary to the roles designated to this court and the district courts by our constitution. Accordingly, we invalidate that portion of NRS
7.125(4) which would require an appellate court to certify a claim for excess fees as reasonable and necessary. Furthermore, we deny
counsel's current application for the certification of excess fees in this matter.
[Headnote 3]
Attorney Powell, like all other court-appointed counsel seeking excess fees in an appellate matter, should present his claim to the
district court that appointed him to represent appellant herein. After receiving a determination from that court that an excess fee is
appropriate, attorney Powell must still seek the approval of the presiding or senior judge of the district court. See NRS 7.125(4). This court
will only review a lower court's decision regarding a claim for excess fees in extraordinary circumstances. See Beury v. State, 107 Nev. 363,
812 P.2d 774 (1991) (petition for writ of mandamus is the appropriate vehicle for challenging a district court's order regarding
court-appointed attorney compensation).
2
__________

2
Contemporaneous with the filing of this opinion, we have filed an order repealing Rule of Appellate Procedure 15 which established
the process by which attorneys could seek our certification of excess fee claims. In addition, to the extent that our decision in Beury v.
State, 108 Nev. 219, 826 P.2d 956 (1992), is inapposite with our conclusion today, it is overruled.
____________

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