Nevada Reports 2000 (116 Nev.).pdf

116 Nev. 1, 1 (2000) REPORTS OF CASES DETERMINED BY THE SUPREME COURT OF THE STATE OF NEVADA ____________ Volume 116 ____________ Ð116 Nev. 1, 1 (2000) Mulder v. StateÐ Ð Ð MICHAEL JOSEPH MULDER, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32506 January 18, 2000

992 P.2d 845

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of first degree murder, robbery upon a victim over the age of 65, and burglary while in possession of a firearm, and from a sentence of death. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge. Defendant was convicted in the district court of first degree murder, robbery upon victim over the age of 65, and burglary while in possession of a firearm, and was sentenced to death. Defendant appealed. The supreme court held that: (1) indictment was not invalidated by presence of homicide detectives during grand jury testimony; (2) trial court did not abuse its discretion in denying defendant's pretrial request to delay penalty hearing by sixty days; (3) trial court did not abuse its discretion in determining that witness was not qualified to testify as expert; (4) trial court improperly permitted such witness to give expert opinion testimony; (5) evidence was sufficient to support convictions; (6) evidence was sufficient to support aggravating circumstances; and (7) death sentence was neither excessive nor imposed under influence of passion, prejudice, or any arbitrary factor. Affirmed.

Ð116 Nev. 1, 2 (2000) Mulder v. StateÐ Ð [Rehearing denied March 1, 2000] Philip J. Kohn, Special Public Defender, and Lee Elizabeth McMahon, Deputy Special Public Defender, Clark County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and David Roger, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. Murder defendant waived challenge to indictment on ground that presence of two homicide detectives during one witness's grand

jury testimony was improper by failing to raise such issue before trial court. NRS 172.235(1). 2. Grand Jury. Indictment charging defendant with murder was not invalidated by presence of two homicide detectives during one witness's grand jury testimony, where grand jury had given detectives permission to be present. NRS 172.235(1)(g). 3. Criminal Law. Granting or denying motion for a continuance is within sound discretion of district court. 4. Criminal Law. Trial court did not abuse its discretion in denying capital murder defendant's pretrial request to delay penalty hearing by sixty days. Applicable statute required hearing to be held “as soon as practicable,” continuance requested was not modest, need for delay was occasioned by defendant's refusal to cooperate with his attorneys in preparation of mitigating evidence, and defense suffered no prejudice from lack of continuance in that it was able to present testimony of three witnesses in mitigation and was not prevented from presenting additional witnesses. NRS 175.552(1)(a). 5. Criminal Law. Witness's testimony before grand jury was not hearsay and was properly admitted in murder prosecution, where witness testified at trial and was subject to cross-examination. 6. Criminal Law. Whether expert testimony will be admitted, as well as whether witness is qualified to be an expert, is within district court's discretion, and reviewing court will not disturb that decision absent clear abuse of discretion. 7. Criminal Law. Before witness may testify as to his or her expert opinion, district court must first determine that witness is qualified expert. NRS 50.275. 8. Criminal Law. In determining whether witness is qualified to testify as expert, court should refrain from making comments which would demean credibility and expertise of the witness. It is function of jury, not the court, to determine weight and credibility to give such testimony. NRS 50.275.

Ð116 Nev. 1, 3 (2000) Mulder v. StateÐ Ð 9. Criminal Law. In ruling on whether witness may testify as an expert, court must take care not to use terms such as “qualified as an expert” or “certified as an expert” when referring to witness in presence of the jury, but should simply state that “the witness may testify,” or sustain any objection to request to permit witness to testify as expert. NRS 50.275. 10. Criminal Law. Trial court did not abuse its discretion in determining that witness proffered as expert in fingerprint comparison was not qualified to testify as expert in fingerprint comparison, where witness's voir dire testimony revealed that he in fact had little, or at least questionable, expertise in that area and that his expertise lay mostly in examining questioned documents, using skills such as handwriting analysis. NRS 50.275. 11. Criminal Law. Trial court improperly permitted witness, proffered as defense expert in fingerprint comparison but determined by court to lack necessary qualifications to testify as expert, to offer fingerprint comparison testimony in murder prosecution, where such testimony could not reasonably be categorized as lay opinion testimony. NRS 50.265, 50.275. 12. Criminal Law. If witness fails to qualify as an expert, court should not permit the witness to testify unless witness may otherwise be considered a lay witness. NRS 50.265, 50.275. 13. Criminal Law. Trial court's erroneous receipt, in murder prosecution, of expert opinion testimony on fingerprint comparison from witness not qualified as expert favored defendant, who had proffered witness, and was therefore harmless. 14. Criminal Law. Prosecutor's voir dire of witness proffered by murder defendant as expert in fingerprint comparison was not misconduct, where prosecutor's questions clearly concerned witness's qualifications. 15. Criminal Law. Murder defendant's failure to object to prosecutor's comment, during closing argument in guilt phase, indicating that defendant's witness on fingerprint comparison was not an expert, waived appellate review of such comment, as it was neither plain nor patently prejudicial error. 16. Criminal Law. To sustain conviction, sufficient evidence must exist that establishes guilt beyond reasonable doubt as determined by rational trier of fact. 17. Criminal Law. Trier of fact determines weight and credibility to give conflicting testimony, and on appeal reviewing court will not disturb verdict which is supported by sufficient evidence. 18. Homicide. Evidence of premeditation and deliberation is usually indirect, and circumstantial evidence may constitute sufficient evidence. 19. Homicide.

Evidence was sufficient for jury to reasonably find that defendant weighed consequences of killing victim, distinctly and rationally formed design to kill, and did not act simply from rash unconsidered impulse, and thereby committed murder willfully, deliberately, and with premeditation, as required to support conviction for first degree murder. Defendant told his girlfriend that he planned to return to victim's home, YLFWLP VERG\ZDVIRXQGKRJWLHGZLWKGXFWWDSHRQZKLFKGHIHQGDQW VILQJHUSULQWVZHUH

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victim's body was found hog-tied with duct tape on which defendant's fingerprints were found, victim died from severe impact trauma to his head, and defendant told his girlfriend that he was involved in struggle with man he was robbing. Robbery. Evidence that defendant was seen with car, watch, and jewelry box stolen from murder victim, and that he told his girlfriend that he had taken victim's gun, was sufficient to support conviction for robbery of victim over age 65, despite fact that defendant was not found with the stolen items in his possession. Robbery. Evidence was sufficient to support finding that violence was used during commission of taking, whether taking occurred before or after victim died of his injuries, as required to support robbery conviction. Victim was killed at some time during course of robbery by severe blows to his head, defendant had stated intention to return to victim's residence in order to steal, and defendant subsequently told his girlfriend that he had “struggled” with victim due to victim's lack of cooperation. Burglary. Evidence that defendant intended to return to victim's residence in order to steal was sufficient to support finding of his intent to commit felony within victim's residence, as required to sustain conviction for burglary. Burglary. Defendant's admission to his girlfriend that he took victim's gun while in victim's residence, but later disposed of it, was sufficient to support conviction for burglary while in possession of a firearm. Criminal Law. Relevant factors to consider in evaluating claim of cumulative error are: (1) whether issue of guilt is close, (2) quantity and character of error, and (3) gravity of crime charged. Homicide. Evidence sufficient to support capital murder defendant's convictions for burglary and robbery was also sufficient to support aggravating circumstances of commission of murder while committing burglary and commission of murder while committing robbery. Homicide. Testimony of bank teller who was robbed in 1986, police officer's testimony that defendant had turned himself in for bank robbery, and judgment of conviction against defendant for bank robbery was sufficient to support aggravating circumstance, in capital murder prosecution, of prior conviction for bank robbery. Homicide. Police officer's testimony that defendant had robbed two fast-food restaurant employees in 1980, that both victims identified defendant as perpetrator, and that defendant had pleaded guilty to one count of armed robbery, together with judgment of conviction against defendant for armed robbery, was sufficient to support aggravating circumstance, in capital murder prosecution, of prior conviction for armed robbery. Homicide. Death sentence imposed upon first degree murder defendant was neither excessive nor imposed under influence of passion, prejudice, or any arbitrary factor, where murder was particularly violent and gruesome and defendant had extensive and increasingly violent criminal record, and ZKHUHMXU\FRQVLGHUHGPLWLJDWLQJHYLGHQFHLQFOXGLQJH[SHUWSV\FKRORJLFDOWHVWLPRQ\

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Ð116 Nev. 1, 5 (2000) Mulder v. StateÐ Ð where jury considered mitigating evidence including expert psychological testimony and testimony of defendant's girlfriend. Defendant had previously been convicted, both as adult and as juvenile, of forgery, car theft, burglary, malicious mischief, theft, and trespass, had had probation revoked and had violated parole. NRS 177.055(2).

Before the Court En Banc. OPINION Per Curiam: In July 1996, an elderly man's severely beaten dead body was found in his home tied up with duct tape. Appellant Michael Joseph Mulder was arrested and convicted of first degree murder, robbery upon a victim over the age of 65, and burglary while in possession of a firearm. He was sentenced to death for the murder conviction. In his appeal, Mulder challenges the grand jury indictment, claims the district court should have

continued his penalty hearing, asserts that certain grand jury testimony should not have been admitted at trial, argues that the district court should have certified his fingerprint witness as an expert, alleges prosecutorial misconduct, and complains that the evidence was insufficient to support his conviction. We conclude that none of Mulder's contentions have merit. Further, we have reviewed Mulder's death sentence pursuant to NRS 177.055(2) and conclude that it was not improperly imposed. Accordingly, we affirm Mulder's conviction and sentence of death. FACTS In July 1996, Mulder and his girlfriend, Kimberly Van Heusen, were visiting Las Vegas, Nevada, and were staying at the 49er Motel, near the Showboat Casino. During this time, the couple consumed drugs, and Van Heusen often prostituted herself to obtain money for drugs while Mulder sometimes worked day jobs on construction sites. On Sunday, July 7, 1996, Van Heusen was gambling at the Showboat Casino when she met seventy-seven-year-old John Ahart in the early afternoon. The two drank, gambled, and spent time together at the Showboat for about two hours. Ahart won $80.00, and they agreed to split the money. Van Heusen and Ahart left the Showboat and went to a restaurant, an ATM machine, and a liquor store before finally arriving at Ahart's home in a senior citizen mobile home park. There, they continued to drink and spend time together until Ahart drove Van Heusen back to her PRWHOLQKLVPDURRQ,QILQLWLFRXSH Ð116 Nev. 1, 6 (2000) Mulder v. StateÐ Ð motel in his maroon 1990 Infiniti coupe. Because Ahart spent the money he won, he asked Van Heusen to return the next day to receive the $40.00 he owed her. On Monday, July 8, 1996, Mulder and Van Heusen took the bus to Ahart's home, arriving about 8 a.m. Ahart let the couple in and gave Mulder a beer and Van Heusen her $40.00. While there, Mulder apparently looked through Ahart's belongings. At some point, Mulder indicated to Van Heusen that he wanted to return to Ahart's house “to look around,” which Van Heusen interpreted as Mulder's intention to steal from Ahart. After approximately one-half hour, Ahart had to leave to do some errands. He gave Mulder and Van Heusen a ride in his Infiniti, dropping Mulder off a short distance from Ahart's home so he could look for a job and dropping Van Heusen off near her motel. Approximately an hour and one-half later, Van Heusen was in the motel room when she heard loud honking outside. Mulder was sitting in a maroon 1990 Infiniti coupe with the motor running, honking, and yelling for Van Heusen to grab their stuff and hurry up. Mulder appeared upset and nervous and told Van Heusen that he had stolen the car. Mulder's right hand was injured, and when Van Heusen asked him how that happened, Mulder replied that he had been in a “struggle.” Van Heusen noticed that Mulder was wearing a new watch and that a wooden jewelry box was in the back seat of the car. Mulder then drove with Van Heusen to Phoenix, Arizona, where his family lived. Mulder later told Van Heusen that he had stolen a gun from the person with whom he had struggled, but had disposed of the gun and had not used it. On Thursday, July 11, 1996, Mulder and Van Heusen arrived in the Infiniti at the residence of Mulder's sister, Lisa, who turned them away. They then drove to the house of Mulder's brother, Craig, who helped Mulder and Van Heusen get a motel room. Craig asked Mulder where he got the Infiniti, and Mulder replied that it was “hot.” When Craig noticed the injury to Mulder's hand, Mulder replied that he got hurt in a “fight” because “the other guy” owed Van Heusen money and that he had injured his hand on “the other guy's head.” Also on July 11, 1996, Jay Ahart, Ahart's son, arrived at Ahart's home after receiving a call from Ahart's neighbor indicating that something was wrong. Jay entered the home through the back door and found his father lying dead in a pool of blood on the dining/living room floor. Ahart's ankles were bound together and his wrists were tied behind his back with duct tape. A chair had been placed over Ahart's body in an apparent attempt to conceal it from view. Jay discovered that his father's gun, watch, jewelry box, and car were missing. The medical examiner later testified at trial that when discovHUHG

Ð116 Nev. 1, 7 (2000) Mulder v. StateÐ Ð ered, Ahart had already been dead for a few days and the body was partially decomposed. Ahart suffered a crushed left cheekbone and several severe scalp lacerations, including a fifteen-inch hinge fracture from the front of the skull extending around back to the base of the skull. The medical examiner also pointed out several fragmentations and depressions around the skull and indicated there was hemorrhaging inside the scalp. The dura mater, a membrane encasing the brain, was torn. Overall, the medical examiner testified that Ahart died from massive head injuries due to severe impact trauma caused by multiple high-force blows from a blunt object. The police found fingerprints in Ahart's home belonging to Van Heusen. Also, through a complicated method involving ultraviolet light, the crime scene analysts were able to lift fingerprints off the duct tape used to bind Ahart's ankles and wrists. The fingerprint expert in Las Vegas determined that those fingerprints did not belong to either Ahart or Van Heusen, but he could neither include nor exclude Mulder as the person who left those prints. After consulting his Las Vegas colleagues, who also could not accurately identify the fingerprints, the fingerprint examiner sent the prints to the FBI fingerprint laboratory. Robert Witt, the head of the FBI lab, testified as an expert witness that the lab was equipped to identify the most difficult prints in the country and that much of his work was from local police departments whose own experts have little experience in identifying such difficult prints. Witt, who had thirty-five years of fingerprint comparison experience with the FBI, testified that without the use of sophisticated equipment he was able to positively identify the prints from the duct tape as belonging to Mulder. His identification was verified by other FBI fingerprint examiners. Approximately two weeks after obtaining the Infiniti, Mulder somehow disposed of the car. A short time after that, on August 16, 1996, a man (not Mulder) attempted to register the car in Phoenix. The automobile title examiner verified that this was the same car that was stolen from Ahart, and when she attempted to delay the man from leaving the office, he became nervous and left. On September 9, 1996, Van Heusen spoke to her mother for the first time since July 1996. After her mother gave her certain information, 1 Van Heusen became upset and asked Mulder if he killed Ahart on July 8, 1996. Mulder expressed surprise that Ahart was dead and explained to Van Heusen that he had had to struggle with Ahart because “[Ahart] should have done what he was told.” __________ 1

Because it was hearsay, Van Heusen did not testify as to exactly what her mother told her.

Ð116 Nev. 1, 8 (2000) Mulder v. StateÐ Ð The Las Vegas police discovered that Mulder and Van Heusen were in Phoenix and arrested them on September 12, 1996. After proceedings before a grand jury in Las Vegas, on October 11, 1996, the state filed an indictment against Mulder for murder, robbery, and burglary. After a trial in February and March 1998, the jury found Mulder guilty of one count each of first degree murder, robbery upon a victim over the age of 65, and burglary while in possession of a firearm. After the penalty phase, the jury determined that no mitigating factors outweighed the four aggravating circumstances: that the murder was committed (1) while the person was engaged in the commission of or an attempt to commit any burglary; (2) while the person was engaged in the commission of or an attempt to commit any robbery; (3) by a person who was previously convicted of a felony involving the use or threat of violence to the person of another, to wit: bank robbery in Arizona in 1987; and (4) by a person who was previously convicted of a felony involving the use or threat of violence to the person of another, to wit: armed robbery in Arizona in 1980. The special verdict form did not indicate what, if any, mitigating circumstances the jury found. The jury returned a verdict for the death sentence. The district court sentenced Mulder to serve two consecutive terms in prison of 48 to 180 months for robbery and a consecutive term of 40 to 180 months for burglary. This appeal follows.

DISCUSSION I. The presence of two homicide detectives during Van Heusen's grand jury testimony [Headnote 1] Because Van Heusen was reluctant to testify against Mulder, she was arrested as a material prosecution witness. Pursuant to the prosecutor's request, the grand jury granted permission for two homicide detectives to be present while Van Heusen testified in front of the grand jury. For the first time on appeal, Mulder challenges the indictment, contending that the officers' presence intimidated Van Heusen while she testified against Mulder. Specifically, Mulder claims that their presence violated NRS 172.235(1), limiting the people who may be present during the grand jury proceedings. [Headnote 2] Mulder failed to raise this issue in the district court below, and therefore, we need not consider it. See Walch v. State, 112 Nev. 25, 34, 909 P.2d 1184, 1189 (1996). We note, however, that no violation occurred. NRS 172.235(1)(g) permits “[a]ny other perVRQ UHTXHVWHG E\ WKH JUDQG MXU\ WR EH SUHVHQW´ DW

JUDQGMXU\SURFHHGLQJV Ð116 Nev. 1, 9 (2000) Mulder v. StateÐ Ð son requested by the grand jury to be present” at grand jury proceedings. The grand jury's permission for the detectives' presence falls into this category. See Lujan v. State, 85 Nev. 16, 18-19, 449 P.2d 244, 245 (1969) (holding that under former NRS 172.320, because the grand jury may request the presence of any person, the grand jury's permission was sufficient and no violation occurred). II. Mulder's pretrial motion to continue the penalty phase On October 17, 1997, approximately four months prior to trial, Mulder's attorneys moved the district court to “bifurcate” the guilt phase from the penalty phase. Specifically, counsel requested that any necessary penalty hearing be held at least sixty days after the conclusion of the guilt phase. This request was based on Mulder's apparent refusal to assist his counsel in obtaining mitigating evidence in preparation for a possible penalty hearing. Therefore, counsel wanted the two-month delay so they could thoroughly investigate mitigating evidence if Mulder was found guilty. On November 7, 1997, the district court denied the motion. Mulder now contends the court's ruling was an abuse of discretion. [Headnotes 3, 4] NRS 175.552(1)(a) requires that in the event of a first degree murder verdict, the separate penalty phase be conducted in front of the trial jury “as soon as practicable.” It is well settled that granting or denying a motion for a continuance is within the sound discretion of the district court. Batson v. State, 113 Nev. 669, 674, 941 P.2d 478, 482 (1997). We conclude that the court did not abuse its discretion in denying Mulder's pretrial request to delay the penalty hearing by sixty days. In Lord v. State, 107 Nev. 28, 41, 806 P.2d 548, 556 (1991), after the defendant was found guilty of first degree murder, he requested the district court to grant him a half-day continuance for the penalty phase to permit his witnesses to travel to Nevada to testify. The district court denied the request, and the defendant was prevented from presenting six of his seven witnesses, including his father. On appeal, this court balanced the prejudice to the district court of a continuance against the prejudice to the defendant of no continuance and concluded that the district court abused its discretion by “refusing to grant this reasonable request for a modest continuance.” Id. at 42, 806 P.2d at 556-57 (emphasis added). This court held that denying a reasonable continuance may be an abuse of discretion “where the purpose of the motion is to procure LPSRUWDQW ZLWQHVVHV DQG WKH GHOD\ LV QRW WKH SDUWLFXODU IDXOW RI FRXQVHO RU WKH

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Ð116 Nev. 1, 10 (2000) Mulder v. StateÐ Ð important witnesses and the delay is not the particular fault of counsel or the parties.” Id. at 42, 806 P.2d at 557. First, in this case, the request was for sixty days, as opposed to a half day in Lord. Therefore, we conclude that the request was not for a “modest” continuance. Second, the alleged need for the sixty-day delay was entirely attributable to Mulder, who refused to assist his attorneys in preparation for a potential penalty hearing. Accordingly, “the delay [was] the particular fault of [Mulder].” See id. Third, although the purpose of Mulder's motion to continue was to procure important mitigating evidence in the event of a penalty hearing, Mulder has failed to explain exactly what mitigating evidence was not presented due to the court's refusal to continue the penalty hearing. In fact, Mulder presented testimony of three witnesses who provided mitigating evidence and was not prevented from presenting additional witnesses. Therefore, Mulder suffered no prejudice by the lack of a continuance. Accordingly, we conclude that the district court did not abuse its discretion by denying Mulder's motion to continue the penalty phase. III. Admission of Van Heusen's grand jury testimony During Van Heusen's testimony at trial, the prosecutor requested that Van Heusen read some of her grand jury testimony to herself. Immediately afterward, the following exchange occurred: [PROSECUTOR]: Okay. Do you recall what you told the grand jury regarding a conversation you had with [Mulder] about his going back to the trailer? Why don't you read what you said. Read my questions and the answers. [VAN HEUSEN]: Okay. . . . [DEFENSE COUNSEL]: I object to her reading the grand jury transcript. THE COURT: You have to read it, Mr. Schwartz [the prosecutor]. Ask her if that's the answers. Q. (By Mr. Schwartz) Prior to—my question I asked you “prior to leaving Mr. Ahart's home did [Mulder] say anything to you about coming back to the home[?]” [DEFENSE COUNSEL]: We would object to it as hearsay. THE COURT: Overruled. Q. (By Mr. Schwartz) What did he say? “Answer: He said that he's going to come back and look around and see if, you know, he can't get some things.

Ð116 Nev. 1, 11 (2000) Mulder v. StateÐ Ð “What did that lead you to think he was going to do? “Answer: I thought he maybe wanted to go over there and steal something.” Was that your testimony before the Clark County Grand Jury? Was that your testimony at that time? A. Yes. [Headnote 5] Mulder argues that the grand jury testimony was hearsay and the district court erroneously overruled his objection without explanation. In his opening brief, Mulder points out that the “refresh recollection exception,” NRS 50.125, did not apply because the prosecutor failed to establish the need to refresh Van Heusen's recollection. He further contends that the grand jury testimony could not be admitted as a prior inconsistent statement pursuant to NRS 51.035(2)(a) because the prosecutor failed to establish that the statement was inconsistent with Van Heusen's trial testimony. We note, however, that “[a] transcript of testimony given under oath at a trial or hearing or before a grand jury” is not considered hearsay if the declarant testifies at trial and is subject to cross-examination. NRS 51.035(2)(d) (emphasis added); see also California v. Green, 399 U.S. 149, 159 (1970) (“[T]he inability to

cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial.”); Maginnis v. State, 93 Nev. 173, 175-76, 561 P.2d 922, 923 (1977) (concluding that admission of a witness's grand jury testimony was not error). Here, Van Heusen testified at trial and was subject to cross-examination. Accordingly, admission of her grand jury testimony was not hearsay and was therefore properly admitted. IV. Testimony of Mulder's witness on fingerprint comparison To rebut the state's evidence that Mulder's fingerprints were found on the duct tape used to restrain Ahart, Mulder presented as a witness Howard Doulder, an alleged expert in fingerprint comparison. As his credentials, Doulder testified that in 1947 he joined the Milwaukee Police Department and was trained in analyzing fingerprints. From 1955 through 1973, he worked as the United States Treasury Department's laboratory supervisor. He explained that he reviewed what is known as “questioned documents” and to a lesser degree fingerprints for many of the United States agencies, such as the Internal Revenue Service, Alcohol, Tobacco and Firearms, Immigration and Naturalization Service, 6HFUHW6HUYLFHDQG&XVWRPV

Ð116 Nev. 1, 12 (2000) Mulder v. StateÐ Ð Secret Service, and Customs. Eventually, Doulder moved to Orange County, California, and then to Las Vegas, Nevada, where he worked as a private consultant examining questioned documents and to a lesser extent fingerprints. He claimed that he had testified in Nevada as an expert on many occasions, but only a small percentage of his testimony regarded fingerprints. Additionally, he testified that he was an active life member of the International Association for Identification (IAI). During the prosecutor's voir dire examination, Doulder revealed that the IAI listed him as an expert in questioned documents, not fingerprints. Doulder was listed as an IAI fingerprint expert in 1950; although he is no longer listed, he testified, “Fingerprints haven't changed from 1950 to now. They are the same.” Additionally, the prosecutor elicited testimony that although Doulder had testified about fingerprinting in recent trials in Las Vegas, the presiding judges in those trials refused to determine that he was a qualified fingerprint expert. Doulder admitted that ninety percent of his work is in questioned documents and only ten percent deals with fingerprints. Even before the prosecutor finished his voir dire examination, the district court ruled that Doulder was not a qualified expert in fingerprint comparison, but would nevertheless be permitted to testify. Doulder then testified that he compared the fingerprints found on the duct tape with Mulder's known prints and was unable to find enough points of comparison to identify the prints as belonging to Mulder. Doulder, however, did not conclude that the prints were conclusively not Mulder's. On appeal, Mulder argues that although Doulder testified about the fingerprints, the district court erred by refusing to recognize Doulder as an expert. Mulder's argument emphasizes that the evidence that Mulder's fingerprints matched those on the duct tape was key evidence in connecting Mulder to this crime. He asserts that had the court determined that Doulder was a qualified expert, “his testimony could have induced reasonable doubt in the minds of the jurors.” NRS 50.275 provides: “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge.” (Emphasis added.) [Headnote 6] Whether expert testimony will be admitted, as well as whether a witness is qualified to be an expert, is within the district court's discretion, and this court will not disturb that decision absent a FOHDU DEXVH RI

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Ð116 Nev. 1, 13 (2000) Mulder v. StateÐ Ð clear abuse of discretion. See Smith v. State, 100 Nev. 570, 572, 688 P.2d 326, 327 (1984); Childers v. State, 100 Nev. 280, 283, 680 P.2d 598, 600 (1984). This court has reasoned that: The district court is better suited to rule on the qualifications of persons presented as expert witnesses and we will not substitute our evaluation of a witness's credentials for that of the district court absent a showing of clear error. Hanneman v. Downer, 110 Nev. 167, 179, 871 P.2d 279, 287 (1994). [Headnotes 7-9] Clearly, before a witness may testify as to his or her expert opinion, the district court must first determine that the witness is indeed a qualified expert. See, e.g., Fernandez v. Admirand, 108 Nev. 963, 969, 843 P.2d 354, 358 (1992) (stating that once a witness is qualified as an expert, he or she may testify to all matters within his or her experience or training); Houston Exploration v. Meredith, 102 Nev. 510, 513, 728 P.2d 437, 439 (1986) (indicating that the proffered expert testimony may be admitted only after the witness is qualified as an expert). When making this decision, the court should refrain from making comments which would demean the credibility and expertise of the witness. See Wickliffe v. Sunrise Hospital, 104 Nev. 777, 780, 766 P.2d 1322, 1324 (1988). It is a function of the jury, not the court, to determine the weight and credibility to give such testimony. Bolin v. State, 114 Nev. 503, 525-26, 960 P.2d 784, 799 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1117 (1999). 2 [Headnotes 10, 11] In the present matter, we first conclude that the district court did not abuse its discretion by determining that Doulder was not a qualified expert in fingerprint comparison. The court heard the voir dire examination by the prosecutor and was in the best position to determine whether Doulder's credentials qualified him as an expert on this subject. Doulder's voir dire testimony revealed that he in fact had little, or at least questionable, expertise in that area; rather, it appears that his expertise lay mostly in examining questioned documents, using skills such as handwriting analysis. While the court did not err by failing to qualify Doulder as an expert, it did, however, err by permitting him to testify. __________ 2

In ruling on whether or not a witness may testify as an expert, the court must take care not to use terms such as “qualified as an expert” or “certified as an expert” when referring to the witness in the presence of the jury. The court should simply state that “the witness may testify,” or sustain any objection to a request to permit the witness to testify as an expert. This will prevent potential prejudice by either demeaning or promoting the credibility of the witness.

Ð116 Nev. 1, 14 (2000) Mulder v. StateÐ Ð Although NRS 50.265 permits the presentation of lay opinion testimony, it is clear in this case that the court permitted Doulder to testify as if he were an expert even after the court concluded he was not an expert. If the court believed that Doulder was an expert, then it demeaned his credibility and expertise by announcing in front of the jury that Doulder was not an expert. See Wickliffe, 104 Nev. at 780, 766 P.2d at 1324. If, however, the court did not believe that Doulder was an expert, then the crucial requirement of being a qualified expert was not fulfilled, and therefore, Doulder should not have testified at all. See NRS 50.275. In this case, the court specifically concluded that Doulder was not an expert; accordingly, the court erred by permitting him to testify as to his “expert” opinion.

[Headnotes 12, 13] We hold that if a witness fails to qualify as an expert, the court should not permit the witness to testify unless the witness may otherwise be considered a lay witness. Here, Doulder was not a lay witness and should not have been permitted to testify. The error here was clearly harmless as it favored the defense; reversal is not warranted. V. Prosecutorial misconduct regarding Mulder's witness on fingerprint comparison [Headnote 14] Mulder argues that the prosecutor committed misconduct by disparaging Doulder during voir dire examination and closing arguments. Mulder first argues that the prosecutor conducted an “improper voir dire . . . despite the lengthy and material qualifications of [Doulder].” Mulder contends that the prosecutor “ambushed” Doulder during the voir dire examination and should have shown “restraint.” After reviewing the voir dire testimony, we conclude that the state's voir dire examination was proper. The prosecutor's questions clearly concerned Doulder's qualifications, serving the very purpose of voir dire examination of an alleged expert witness. We conclude that a district court should hear such information before deciding whether to qualify someone as an expert. Mulder appears to argue that just because he presented Doulder as an expert and because Doulder has some qualifications relating to fingerprints, the court should have automatically qualified him as a fingerprint expert and dispensed with any voir dire examination. As discussed above, the court did not abuse its discretion by refusing to determine that Doulder was a qualified expert. [Headnote 15] Mulder next argues that the prosecutor committed misconduct GXULQJFORVLQJDUJXPHQWVRIWKHJXLOW

SKDVHE\VWDWLQJ Ð116 Nev. 1, 15 (2000) Mulder v. StateÐ Ð during closing arguments of the guilt phase by stating: “We have had experts, two experts testify at this trial with all due respect and Judge Pavlikowski agreed Dr. Doulder was no expert.” Mulder failed to object to this comment, and we will therefore not consider this argument because it is neither plain nor patently prejudicial error. See Hewitt v. State, 113 Nev. 387, 392, 936 P.2d 330, 333 (1997). VI. Sufficiency of the evidence [Headnotes 16, 17] To sustain a conviction, sufficient evidence must exist that establishes guilt beyond a reasonable doubt as determined by a rational trier of fact. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). The trier of fact determines the weight and credibility to give conflicting testimony, and on appeal this court will not disturb a verdict which is supported by sufficient evidence. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981). We conclude sufficient evidence supports Mulder's conviction for first degree murder, robbery upon a victim over 65 years of age, and burglary while in possession of a firearm. First degree murder [Headnotes 18, 19] Mulder argues that the evidence presented failed to demonstrate that he committed Ahart's murder willfully, deliberately, and with premeditation. Evidence of premeditation and deliberation is usually indirect, and circumstantial evidence may constitute sufficient evidence. Briano v. State, 94 Nev. 422, 425, 581 P.2d 5, 7 (1978). We conclude that the evidence was sufficient for the jury to reasonably find that Mulder weighed the consequences of killing Ahart, distinctly and rationally formed a design to kill, and did not act simply from a rash unconsidered impulse. Mulder indicated to Van Heusen that he planned on returning to Ahart's home. Ahart's dead body was found

hog-tied, and Mulder's fingerprints were found on the duct tape used to tie Ahart. The medical examiner testified that Ahart probably died around July 8, 1996, the day Mulder went back to Ahart's house, and that Ahart died from severe impact trauma to his head. Mulder made statements that he was involved in a struggle with a man he was robbing, and Mulder told Van Heusen that Ahart “should have done what he was told.” Mulder was seen with the items stolen from Ahart, and Mulder was very anxious to leave town right after returning from Ahart's house.

Ð116 Nev. 1, 16 (2000) Mulder v. StateÐ Ð Robbery upon a victim over the age of 65 [Headnote 20] Mulder claims that because he was not found with the stolen items in his possession, there was unreliable evidence that he robbed Ahart. We conclude there was sufficient evidence that he possessed the items. Much testimony was presented that other people saw Mulder with Ahart's car, watch, and jewelry box, and Van Heusen testified that Mulder told her that he also took Ahart's gun. [Headnote 21] Mulder further claims that the state failed to prove that Ahart was alive when Mulder committed the taking. He argues therefore that because violence is a requirement for robbery, there was insufficient evidence to convict him of robbery. We conclude this argument is patently without merit. Ahart suffered from severe blows to the head, resulting in his death. We conclude that violence was indeed used during the commission of the taking, whether the taking occurred before or after Ahart succumbed to his injuries. See NRS 200.380(1) (defining robbery in part as “the unlawful taking . . . by means of force or violence”). We also note that evidence was presented that Mulder intended to return to Ahart's residence in order to steal and that he “struggled” with Ahart due to Ahart's lack of cooperation. Accordingly, we conclude sufficient evidence exists to support Mulder's conviction for robbery. Burglary while in possession of a firearm [Headnotes 22, 23] Mulder alleges that the state failed to prove that he had the requisite intent to commit a felony when he entered Ahart's home. We conclude this argument has no merit. Again, evidence was presented that Mulder intended to return to Ahart's residence to steal. Mulder further argues that there was no evidence to verify that there was a gun of which Mulder took possession in Ahart's home. However, Mulder's own admissions, presented through Van Heusen's testimony, belie this claim. Mulder told Van Heusen that he took the gun, but later disposed of it because he knew it would upset Van Heusen. Accordingly, we conclude sufficient evidence supports Mulder's conviction of burglary while in possession of a firearm. VII. Cumulative error [Headnote 24] Mulder contends that the cumulative effect of the previously discussed alleged errors denied him a fair trial. See Big Pond v. 6WDWH1HY

Ð116 Nev. 1, 17 (2000) Mulder v. StateÐ Ð State, 101 Nev. 1, 692 P.2d 1288 (1985). Relevant factors to consider in evaluating a claim of cumulative error are (1) whether the issue of guilt is close, (2) the quantity and character of the error, and (3) the gravity of the

crime charged. Leonard v. State, 114 Nev. 1196, 1216, 969 P.2d 288, 301 (1998). In this case, we conclude Mulder has failed to demonstrate any error detrimental to him. VIII. This court's mandatory review pursuant to NRS 177.055(2) NRS 177.055(2) requires this court to determine whether the evidence supports the aggravating circumstances, whether the verdict of death was imposed under the influence of passion, prejudice, or any arbitrary factor, and whether the death sentence is excessive considering this defendant and this crime. [Headnote 25] First, we conclude that sufficient evidence exists to support the aggravating circumstances: (1) Mulder committed the murder while committing a burglary; (2) Mulder committed the murder while committing a robbery; (3) Mulder was previously convicted of bank robbery in Arizona in 1987; and (4) Mulder was previously convicted of armed robbery in Arizona in 1980. The jury already determined beyond a reasonable doubt that Mulder committed both the burglary and the robbery, and as discussed above, sufficient evidence supports those convictions. [Headnote 26] In support of the 1987 bank robbery conviction, the state presented the testimony of the bank teller who was robbed on October 20, 1986. She, however, did not identify Mulder as the assailant. An Arizona police officer testified that on December 15, 1986, Mulder turned himself in for the bank robbery. Mulder's April 13, 1987 judgment of conviction for bank robbery was admitted into evidence; Mulder had been sentenced to serve seven years in federal prison. [Headnote 27] In support of the 1980 armed robbery conviction, the state presented the testimony of another Arizona police officer who testified that on March 15, 1980, Mulder robbed a sixteen-year-old cashier at a Taco Bell and on April 21, 1980, Mulder robbed an employee of Church's Chicken. The officer testified that both victims had identified Mulder as the perpetrator and Mulder eventually pleaded guilty to one count of armed robbery. Mulder's July 17, 1980 judgment of conviction for armed robbery was admitted into evidence; Mulder had been sentenced to serve seven years in SULVRQ

Ð116 Nev. 1, 18 (2000) Mulder v. StateÐ Ð prison. We conclude that sufficient evidence exists to support the aggravating factors. [Headnote 28] Next, we conclude that the death sentence is neither excessive nor imposed under the influence of passion, prejudice, or any arbitrary factor. The state presented evidence of Mulder's many other prior convictions, both as an adult and as a juvenile, for forgery, car theft, burglary, malicious mischief, theft, and trespass. Mulder also had his probation revoked and has violated parole. The state also presented victim impact testimony from Ahart's nephew and son (who had found Ahart's body). The jury also considered the facts of this crime, presented during the guilt phase. In mitigation, Mulder presented the rather compelling testimony of a psychologist, Van Heusen, and a priest. The psychologist testified as to Mulder's history of drug use, bad childhood, fragile self-concept and low self-esteem, and impulse control disorder. Van Heusen, who specifically requested to testify on Mulder's behalf in the penalty phase, testified that Mulder was generally nonviolent and was a good person who wanted to do the right thing. She explained that she loved him very much and that he was the father of her child. The priest, who had known Mulder for approximately nine years, testified that Mulder was a gentle and sensitive person and a good friend. Additionally, Mulder presented testimony that despite his strenuous efforts, his family refused to

support him or help challenge the death penalty. In this case, Mulder committed a particularly violent and gruesome crime by tying up and then beating an elderly man to death. Mulder has an extensive criminal record, and over time, he appeared to commit crimes increasing in violence, culminating in this murder. We conclude that considering this crime and Mulder's background, the death sentence is not excessive, nor was it imposed pursuant to any inappropriate factor. CONCLUSION We conclude that none of Mulder's issues require reversal. We further conclude that the death sentence is not inappropriate pursuant to NRS 177.055(2). Accordingly, we affirm Mulder's conviction and sentence of death. ____________

Ð116 Nev. 19, 19 (2000) Morales v. StateÐ Ð CRISTOBAL MORALES, Appellant, v. THE STATE OF NEVADA, Respondent. No. 30717 January 26, 2000

992 P.2d 252

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of trafficking in a controlled substance. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge. Defendant was convicted in the district court of one count of trafficking in a controlled substance, and he appealed. The supreme court held that: (1) defendant is entitled to eight peremptory challenges whenever life sentence may be imposed; overruling Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966); (2) failure to allow defendant eight peremptory challenges, rather than four, constituted reversible error; and (3) defendant's conviction was supported by evidence. Reversed and remanded for a new trial. Morgan D. Harris, Public Defender, and Craig F. Jorgenson, Deputy Public Defender, Clark County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and Gregory D. Knapp, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law; Jury. Failure to allow defendant charged with trafficking in a controlled substance of 28 grams or more eight peremptory challenges, rather than four, constituted reversible error, where, at time of trial, offense was felony punishable by imprisonment for either life or definite term of not less than twenty-five years. NRS 175.051, 453.3385(3). 2. Jury. A criminal defendant is entitled to eight peremptory challenges whenever a life sentence may be imposed upon conviction of the offense; overruling Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966). NRS 175.051. 3. Criminal Law. Defendant actions in breaking into defense counsel's office on night before trial to search for document that would allegedly exonerate him did not entitle defendant to continuance for competency evaluation, where there was no indication that defendant was unable to remember events relating to his arrest, communicate with his attorney, or otherwise assist in his own defense. NRS 178.405. 4. Criminal Law. A criminal defendant may not be tried while incompetent. 5. Criminal Law. Incompetency exists when a criminal defendant is unable to assist his counsel in his defense. NRS 178.400.

Ð116 Nev. 19, 20 (2000) Morales v. StateÐ Ð 6. Mental Health. Where there is reasonable doubt regarding a defendant's competency, a district court's failure to order a competency evaluation constitutes an abuse of discretion and a denial of due process. 7. Drugs and Narcotics. Defendant's conviction for trafficking in a controlled substance of 28 grams or more was supported by evidence that cocaine seized from defendant at time of his arrest weighed 28.3 grams at time of arrest, and by expert testimony of criminalist that loss of weight of cocaine in two years between arrest and trial could be attributed to moisture loss, transferring of substance during weighing, and aerosolization.

Before the Court En Banc. OPINION Per Curiam: On appeal, Cristobal Morales argues that he was improperly denied eight peremptory challenges during voir dire, that he should have been granted a continuance of trial, and that there was insufficient evidence to convict him. We agree with Morales on the first issue only, and reverse. While investigating narcotics transactions, Las Vegas police officers observed Morales engaging in what they believed to be a hand-to-hand drug sale. The officers followed Morales's car and eventually stopped him after he ran a red traffic light. The officers observed Morales drop a cigarette package to the ground as he exited. The package was tested and contained 28.3 grams of cocaine. By the time of the trial two years later, the impounded cocaine weighed only 27.9 grams. At the time of the offense, trafficking in a controlled substance carried a possible sentence of life imprisonment only if the weight of the controlled substance was 28 grams or more. NRS 453.3385(3). On the first day of trial, Morales's attorney made a motion to continue the trial so that Morales could receive a psychiatric examination. Morales's attorney was concerned about Morales's mental condition primarily because of events occurring the night before trial. Apparently Morales believed that his former attorney possessed secret papers that would exonerate Morales. While attempting to find these alleged papers the night before trial, Morales was apprehended inside his former attorney's office by the police who discovered Morales to be armed. After considering this information, the district court judge denied Morales's motion for continuance, concluding that the motion was a delaying tactic. After denying the motion for continuance, the court addressed 0RUDOHV V DWWRUQH\ V UHTXHVW IRU

HLJKWSHUHPSWRU\FKDOOHQJHVUDWKHUWKDQIRXU Ð116 Nev. 19, 21 (2000) Morales v. StateÐ Ð Morales's attorney's request for eight peremptory challenges rather than four. Morales's attorney argued that since the offense charged could be punished by life imprisonment, he was entitled to eight peremptory challenges. The district court determined that the appellant was entitled to only four peremptory challenges. Morales's attorney used all of the allowed peremptory challenges, two of which challenged two jurors that Morales's attorney unsuccessfully attempted to excuse for cause. At the conclusion of the jury trial, the jury returned a verdict of guilty of trafficking in a controlled substance of more than 28 grams. The district court sentenced Morales to twenty-five years incarceration and ordered him to pay a fine of $500,000. Peremptory challenges [Headnote 1] NRS 175.051 states that a defendant is entitled to eight peremptory challenges if the offense is punishable by

death or life imprisonment. 1 In this case, Morales was charged with trafficking in a controlled substance of 28 grams or more, which, at the time of the offense, was a felony punishable by imprisonment for either life or a definite term of not less than 25 years. NRS 453.3385(3). [Headnote 2] The district court and the State relied on the holding in Nootenboom v. State, 82 Nev. 329, 332-33, 418 P.2d 490, 491 (1966). In Nootenboom this court held that a defendant is entitled to eight peremptory challenges only when no shorter sentence than life may be imposed. Given the significant changes in the statutory penalties since Nootenboom was decided in 1966, we conclude that the holding of Nootenboom is no longer good law and should be overruled. Public policy is better served by allowing eight peremptory challenges whenever a life sentence may be imposed upon conviction of the offense. At oral argument, the State conceded that Nootenboom is no longer good law and that Morales was indeed entitled to eight peremptory challenges. However, the State argued that the district court's failure to allow Morales eight peremptory challenges was harmless error. We cannot agree. The improper limitation of peremptory challenges is not subject to harmless error analysis on WKLVUHFRUG __________ 1

NRS 175.051 states: 1. If the offense charged is punishable by death or by imprisonment for life, each side is entitled to eight peremptory challenges. 2. If the offense charged is punishable by imprisonment for any other term or by fine or by both fine and imprisonment, each side is entitled to four peremptory challenges. ....

Ð116 Nev. 19, 22 (2000) Morales v. StateÐ Ð this record. We conclude that Morales was entitled to eight peremptory challenges. Our decision regarding the number of peremptory challenges in this type of case is prospective and is not to be applied retrospectively. Competency of the defendant [Headnote 3] Morales argues that the district court erred in not allowing him to be evaluated for competency before trial. We find this contention to be without merit. [Headnotes 4, 5] NRS 178.405 does provide that where a defendant's competency is in doubt, the court should suspend the trial until the question of competency is settled. A defendant may not be tried while incompetent. Incompetency exists when the party is unable to assist his counsel in his defense. See NRS 178.400. Morales argues that the district court should have suspended the trial because appellant's actions the night prior to trial suggested a lack of competency. 2 [Headnote 6] Where there is reasonable doubt regarding a defendant's competency, a district court's failure to order a competency evaluation constitutes an abuse of discretion and a denial of due process. See Ford v. State, 102 Nev. 126, 133, 717 P.2d 27, 31-32 (1986); Melchor-Gloria v. State, 99 Nev. 174, 180, 660 P.2d 109, 113 (1983). Appellant's actions in breaking into his prior attorney's office while armed to look for a document were disturbing. However, the district court did not abuse its discretion by denying the motion for a continuance. The

actions of Morales were more indicative of an attempt to assist his attorney, however illegally, rather than incompetency. The record contains no evidence that Morales was unable to remember the events relating to his drug arrest, communicate with his attorney or otherwise assist in his own defense. While a single incident of unusual behavior might have indicia that would cause a court to question the competency of an individual, such indicia are not present here. Sufficiency of the evidence [Headnote 7] Morales contends there was insufficient evidence to support his FRQYLFWLRQ __________ 2

At oral argument, Morales's attorney also stated that Morales had threatened to kill himself and his prior attorney on the same evening. However, this information is not contained in the trial transcript and apparently the district court judge was not informed of this allegation.

Ð116 Nev. 19, 23 (2000) Morales v. StateÐ Ð conviction. His contention hinges on the weight of the cocaine seized by the police. Morales's conviction for trafficking in a controlled substance in an amount greater than 28 grams can stand only if a reasonable jury could have found that the cocaine weighed more than 28 grams. We review the jury's conclusion that the cocaine did weigh more than 28 grams by first viewing the evidence in the light most favorable to the prosecution, and then determining whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Lisle v. State, 113 Nev. 540, 555, 937 P.2d 473, 482 (1997). In this case, it is not disputed that the cocaine was weighed twice and that the substance weighed 28.3 grams when Morales was arrested but weighed only 27.9 grams when weighed days before trial. At trial, the State presented a criminalist who testified that the loss in weight would be expected from moisture loss, transferring the substance during weighing, and aerosolization. The criminalist also testified that data since 1990 revealed that testing the weight of substances almost always resulted in weight loss. Based on this testimony, we hold that, viewing the evidence in the light most favorable to the prosecution, a reasonable jury could have determined that the cocaine seized from appellant weighed more than 28 grams. Based on the above discussion, we reverse Morales's conviction and remand for a new trial on the basis of the failure to grant the defendant eight peremptory challenges. ____________

Ð116 Nev. 23, 23 (2000) Graham v. StateÐ Ð Ð LESLIE EUGENE GRAHAM, Appellant, v. THE STATE OF NEVADA, Respondent. No. 31192 January 26, 2000

992 P.2d 255

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree murder. Eighth Judicial District Court, Clark County; Mark W. Gibbons and Jeffrey D. Sobel, Judges. Defendant was convicted in the district court of one count of first-degree murder, and he appealed. The supreme court, Maupin, J., held that (1) defendant was not entitled to instructions on either second-degree

murder or involuntary manslaughter, and (2) error in instructing jury on involuntary manslaughter without also instructing jury on second-degree murder was harmless. Affirmed.

Ð116 Nev. 23, 24 (2000) Graham v. StateÐ Ð Morgan D. Harris, Public Defender, and Robert L. Miller and Howard Brooks, Deputy Public Defenders, Clark County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and Christopher J. Laurent and Brian S. Rutledge, Deputy District Attorneys, Clark County, for Respondent. 1. Homicide. Once it is proved that a homicide was done with malice, and thus constitutes murder, the murder is in the first degree as a matter of law if it was done in an enumerated manner as shown by the particular facts of an individual case. NRS 200.030(1). 2. Homicide. There is no need to deem a murder specifically enumerated in the first-degree murder statute deliberate and premeditated. The question of willfulness, deliberation, and premeditation does not arise, either legally or factually, when a murder is done in an enumerated manner. NRS 200.030(1). 3. Homicide. To sustain a conviction under the “willful, deliberate and premeditated killing” subcategory of first-degree murder, proof of willfulness, deliberation, and premeditation, whether direct or circumstantial, must be established, and failure to establish such proof renders the offense murder in the second degree. NRS 200.030(1)(a). 4. Homicide. It is unnecessary to instruct juries on deliberation, premeditation, and second-degree murder when proofs in the case can only support a theory of guilt described within one of the specifically enumerated categories set forth in the first-degree murder statute. NRS 200.030(1). 5. Homicide. Second-degree murder instruction was not warranted in prosecution for first-degree murder by child abuse by evidence that eight-month-old infant died of three separate skull fractures caused by blunt force trauma while in defendant's care, and that defendant's explanation that infant hit her head in accidental fall out of bed was inconsistent with her injuries. NRS 200.030(1). 6. Homicide. Involuntary manslaughter instruction was not warranted in prosecution for first-degree murder by child abuse by evidence that eight-month-old infant died of three separate skull fractures caused by blunt force trauma while in defendant's care, and that defendant's explanation that infant hit her head in accidental fall out of bed was inconsistent with her injuries. NRS 200.030(1). 7. Homicide. Error in instructing jury in prosecution for first-degree murder by child abuse on involuntary manslaughter without also instructing jury on second-degree murder was harmless, where proofs before jury were only consistent with finding of either guilty of child-abuse murder or not guilty. NRS 200.030(1).

Before the Court En Banc.

Ð116 Nev. 23, 25 (2000) Graham v. StateÐ Ð OPINION By the Court, Maupin, J.: Appellant Leslie Eugene Graham was charged with first-degree murder in connection with the death of Chelsey Hachez, the eight-month-old daughter of his live-in companion, Kimberly Ann Hachez. The fatal injuries were sustained while Graham was at home alone with the child. Although he gave slightly different versions of the incident to family members, police, and paramedics, he primarily maintained that the baby was rendered unconscious when she fell from a bed and struck her head. Graham did not testify at trial. His version was presented to the jury through other witnesses.

Kimberly Hachez testified that Graham had been with Chelsey hundreds of times, was good with her, and treated her like a daughter. Graham's former spouse and a former companion both testified that he had never been anything other than caring and patient around small children. Uncontroverted medical evidence established that the cause of death was hemorrhage and brain swelling associated with three separate skull fractures caused by “blunt force trauma.” Experts testified that the injuries were not consistent with a mere fall from a bed onto the floor. The jury found Graham guilty of murder in the first degree. Graham received a sentence of life in the Nevada State Prison without the possibility of parole. He appeals. DISCUSSION Graham was convicted based upon a criminal information charging him with open murder solely on the theory that he subjected Chelsey to “acts of child abuse” resulting in her death. Graham claims entitlement to a new trial because the district court refused instructions and verdict forms on the issue of second-degree murder. We conclude Graham's contention lacks merit. NRS 200.010 defines murder as the “unlawful killing of a human being, with malice aforethought, either express or implied.” Express malice is defined in terms of “deliberate intention unlawfully to take away . . . life”; malice is implied “when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.” NRS 200.020. The jury was instructed on these principles. It was also instructed that malice, “as applied to murder,” does not necessarily import ill-will toward the victim, but signifies general malignant recklessness of others' lives and safety or disregard of social duty. See Thedford v. Sheriff, 86 Nev. 741, 744, 476 P.2d 

Ð116 Nev. 23, 26 (2000) Graham v. StateÐ Ð 25, 27 (1970) (citing State v. Judge, 38 S.E.2d 715 (S.C. 1946); Chisley v. State, 95 A.2d 577 (Md. 1953)). Once the factfinder concludes that a murder has been committed, that is an unlawful killing with malice aforethought, the offense must then be classified by degree. The Nevada legislature has created two general categories of murder, murders of the first and second degree. First-degree murder 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 certain specified life-endangering felonies, i.e., felony murder; or (c) committed to avoid or prevent lawful arrest by a peace officer or effect the escape of any person from legal custody. NRS 200.030(1) (emphasis added). 1 The second category, murder of the second degree, “is all other kinds of murder.” NRS 200.030(2). Graham contends that second-degree murder is a lesser-included offense of all murders of the first degree, including murder perpetrated by means of child abuse. See Miner v. Lamb, 86 Nev. 54, 58, 464 P.2d 451, 453 (1970) (“An open murder complaint charges murder in the first degree and all necessarily included offenses.”). Thus, Graham argues that the district court erred in its refusal to give the following instructions: A. Murder of the second degree is also the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to establish deliberation and premeditation. B. The unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree when the killing results from an unlawful act, the natural consequences of which are dangerous to life, which act is intentionally performed by a person who knows that his conduct endangers the life of another, even though the person has not specifically formed an intention to kill. 2 The district court refused these instructions on the ground that murders by child abuse are defined by statute as first-degree murGHUDQGFDQQRWEHUHGXFHGLQJUDGHWRPXUGHURIWKHVHFRQGGHJUHH

__________ 1

The 1999 legislature amended NRS 200.030, transferring murders perpetrated by child abuse into the felony-murder subcategory of first-degree murder. 1999 Nev. Stat., ch. 319, § 3, at 1335. 2

The second quoted proposed instruction is based upon Sheriff v. Morris, 99 Nev. 109, 659 P.2d 852 (1983). In Morris we recognized a “second-degree felony murder” rule involving homicides committed without specific intent to kill in the course of a limited number of life-endangering felonies not included within NRS 200.030(1)(b). Id. at 113-18, 659 P.2d at 856-59.

Ð116 Nev. 23, 27 (2000) Graham v. StateÐ Ð der and cannot be reduced in grade to murder of the second degree. Accordingly, the district court instructed the jury that “[m]urder by child abuse is Murder in the First Degree,” and that “[c]hild abuse means physical injury of a nonaccidental nature to a child under the age of 18 years.” No instructions on deliberation and premeditation were given. 3 Graham argues that Williams v. State, 110 Nev. 1182, 885 P.2d 536 (1994), renders child-abuse murder cases subject to a second-degree murder analysis. In Williams, we concluded that the term “nonaccidental” as used in NRS 200.030 was not unconstitutionally vague because [a]ny person of ordinary intelligence who contemplates causing the purposeful, or nonaccidental, injury of a child should be readily aware, . . . that such conduct constitutes child abuse, and, if the abuse results in the death of the child, could subject the perpetrator to a conviction of first-degree murder. Id. at 1188, 885 P.2d at 540 (emphasis added). Graham contends that the phrase “purposeful, or nonaccidental, injury” demonstrates our intent to draw a distinction, for purposes of gradating degrees of murder, between purposeful acts committed without intent to injure or kill and purposeful acts committed with the intent to injure or kill. Absent intent to injure, Graham reasons, the offense may be second-degree murder under two theories: one, there is a lack of deliberation and premeditation, or two, there is no intent to kill so the act falls within the felony-murder rule of Morris, 99 Nev. 109, 659 P.2d 852. Because this court did not intend to imply such a proposition in Williams, we take this opportunity to reject it. [Headnote 1] The murders specifically enumerated in NRS 200.030(1)—those perpetrated by means of poison, lying in wait, torture, and child abuse; those committed in the perpetration or attempted perpetration of certain life-endangering felonies; and those committed to avoid arrest or to effect an escape from custody—constitute murder of the first degree. Once it is proved that a homicide was done with malice and thus constitutes murder, 4 the murder is in WKHILUVWGHJUHHDVDPDWWHURIODZLILWZDVGRQHLQDQHQXPHUDWHGPDQQHU

DVVKRZQE\WKHSDUWLFXODUIDFWVRIDQLQGLYLGXDOFDVH __________ 3

Although Graham contends he was entitled to a second-degree murder instruction based upon lack of deliberation and premeditation, he offered no instruction requiring the jury to find deliberation and premeditation in order to convict him of first-degree murder. Under our ruling today, there would have been no legal justification for doing so. 4

Felony murder is the only category of homicide where by law the malice required for murder is supplied by the intent to commit an underlying felony. See Ford v. State, 99 Nev. 209, 215, 660 P.2d 992, 995 (1983).

Ð116 Nev. 23, 28 (2000) Graham v. StateÐ Ð the first degree as a matter of law if it was done in an enumerated manner as shown by the particular facts of an individual case. [Headnote 2] There is no need to deem an enumerated murder deliberate and premeditated, as this court and others have sometimes assumed. For example, in State v. Randolph, 49 Nev. 241, 246-47, 242 P. 697, 698 (1926), this court approved of a jury instruction which stated that where a killing is perpetrated by an enumerated means, such as poison, or done in the perpetration or attempt to perpetrate an enumerated felony, “the test question, ‘Is the killing willful, deliberate, and premeditated?' is answered by the statute itself, and the jury have no option but to find the prisoner guilty in the first degree. Hence, so far as these two cases are concerned, all difficulty as to the question of degree is removed by the statute.” The actual question answered by the statute is simply, “Is the murder in the first degree?” The question of willfulness, deliberation, and premeditation does not arise, either legally or factually, when a murder is done in an enumerated manner. See, e.g., State v. Johnson, 344 S.E.2d 775, 781 (N.C. 1986) (when a murder is perpetrated by an enumerated means, the presence or absence of premeditation and deliberation is irrelevant); People v. Thomas, 261 P.2d 1, 3 (Cal. 1953) (by statutory definition, a murder by poison, lying in wait, or torture is of the first degree; whether such a murder is willful, deliberate, and premeditated is not a legal or factual question); cf. State v. Munios, 44 Nev. 353, 358, 195 P. 806, 808 (1921) (use of poison, lying in wait, etc., to commit murder “are merely circumstances of aggravation, which, in the law, amount to, or are the equivalent of, premeditation”). [Headnote 3] Thus, the murders enumerated in NRS 200.030(1) are legislatively deemed to be murder of the first degree. The only subcategory of first-degree murder not so specifically defined is that accomplished by “willful, deliberate and premeditated killing,” referred to in the second phrase of NRS 200.030(1)(a). To sustain a conviction under this subcategory of first-degree murder, proof of willfulness, deliberation, and premeditation, whether direct or circumstantial, must be established. Failure to establish such proof renders the offense murder in the second degree. By contrast, when an enumerated first-degree murder is charged, such as murder by child abuse, the presence or absence of deliberation and premeditation is of no consequence. Such murders do not fall within the category of murder that can be UHGXFHGLQGHJUHHE\IDLOXUHWRSURYHGHOLEHUDWLRQDQGSUHPHGLWDWLRQ

Ð116 Nev. 23, 29 (2000) Graham v. StateÐ Ð reduced in degree by failure to prove deliberation and premeditation. Nor can such a murder be reduced in degree because it is committed without intent to kill and would otherwise fall within the ambit of Morris: if done with malice and in an enumerated manner, the killing constitutes first-degree murder by legislative fiat. [Headnote 4] We therefore hold that it is unnecessary to instruct juries on deliberation, premeditation, and second-degree murder when proofs in the case can only support a theory of guilt described within one of the specifically enumerated categories set forth in NRS 200.030(1).

[Headnote 5] Here, the only evidence supporting Graham's defense was his statements, through others, that the death of Chelsey was accidental. One of his second-degree murder theories offered on appeal is based upon a failure of proof of Graham's intent to injure the child. If either express or implied malice had not been proved, Graham should have been found innocent of the charges against him. However, the nature of the injuries administered to Chelsey circumstantially established the malice requirement. The injuries and the apparently false explanation to the other witnesses satisfied the necessary proof of child abuse. Graham's argument for a second-degree murder instruction, based upon a lack of intent, is inconsistent with any of the evidence in this case because the only cause of death proved below was the administration of the three separate skull fractures, which could not have resulted from an accidental fall from the bed. See Rice v. State, 113 Nev. 1300, 1310, 949 P.2d 262, 268-69 (1997); Lisby v. State, 82 Nev. 183, 187-88, 414 P.2d 592, 595 (1966). Because the sole agency of death proved in this case was “child abuse,” this offense is, by definition, first-degree murder. Because the jury found at the very least implied malice, i.e., that Graham acted with an abandoned and malignant heart in reckless disregard of Chelsey's life and safety, lack of specific intent or of deliberation and premeditation to kill cannot, as a matter of law, reduce the degree of the charge. [Headnote 6] As an extension of his argument under Williams, Graham argues that, in the event the State failed in its proof of child abuse, the jury could conclude that an act of “neglect” or “endangerment” had been committed. This, Graham further reasons, would entitle the jury to return a verdict of involuntary manslaughter or second-degree murder under Morris. Under this reasoning, manslaughter would be the appropriate verdict if, under the

LQVWUXFWLRQ JLYHQ WKH QHJOHFW RU HQGDQJHUPHQW SUHGLFDWH LQYROYHG SURRI RI DQ XQODZIXO DFW Ð116 Nev. 23, 30 (2000) Graham v. StateÐ Ð instruction given, the neglect or endangerment predicate involved proof of an unlawful act, or a “lawful act which probably might produce” death in an unlawful manner. See NRS 200.070. 5 In this regard, the jury was given the following instruction on involuntary manslaughter: Involuntary Manslaughter is the killing of a human being, without any intent to do so, in the commission of an unlawful act or a lawful act which probably might produce such a consequence in an unlawful manner; but where the involuntary killing occurs in the commission of an unlawful act, which, in its consequence, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense is Murder. 6 “Murder” under this instruction ordinarily refers to second-degree felony murder. See Morris, 99 Nev. 109, 659 P.2d 852. Thus, a “Morris” instruction such as that rejected below is usually given in conjunction with the involuntary manslaughter instruction, which was read to the jury in this case. Graham therefore argues that, under Morris and under the manslaughter instruction, a second-degree murder verdict would have been appropriate if the predicate proof of neglect or endangerment involved actions toward the child that would inherently or “naturally tend” to destroy life, but which were not committed with the intent to do so. Because the involuntary manslaughter instruction defined how an act that might qualify as manslaughter was “murder,” Graham also contends that the jury was restricted to a finding of murder in the first degree because no second-degree murder instruction was given. That is, without a second-degree murder instruction dovetailing the involuntary manslaughter instruction, the only form of verdict and instruction on murder given to the jury was murder in the first degree. __________ 5

NRS 200.070 states:

Except under the circumstances provided in NRS 484.348 and 484.377, involuntary manslaughter is the killing of a human being, without any intent to do so, in the commission of an unlawful act, or a lawful act which probably might produce such a consequence in an unlawful manner, but where the involuntary killing occurs in the commission of an unlawful act, which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense is murder. 6

Although the instruction attempted to quote directly from NRS 200.070, the punctuation between the words “unlawful act” and “or a lawful act” was omitted. This changed the meaning of the statute. However, as noted below, the use of this instruction as read to the jury was harmless error. A correct quotation of the statute in the instruction without a corresponding second-degree murder instruction would not have changed the outcome of this appeal.

Ð116 Nev. 23, 31 (2000) Graham v. StateÐ Ð [Headnote 7] We conclude that, had Graham's proofs been consistent with this theory, it would have been error not to give the second-degree murder instruction along with the involuntary manslaughter instruction. Cf. Noonan v. State, 115 Nev. 184, 189, 980 P.2d 637, 639-40 (1999). However, we also conclude that the proofs before this jury were only consistent with a finding of either guilty of child-abuse murder or not guilty. Leaving a child alone on an ordinary bed under the circumstances described by Graham is not an “unlawful” act of either neglect or endangerment, nor is it a lawful act that “probably might” cause death in an unlawful manner, nor is it an act that would “naturally tend” to destroy life. Thus, the use of the involuntary manslaughter instruction without a conforming second-degree murder instruction was harmless error. In fact, under our ruling herein, the involuntary manslaughter instruction should not have been given. Graham also contends that by requiring some proof of second-degree murder before allowing instruction on that offense, a defendant is forced to put on self-incriminating evidence in violation of the Fifth Amendment to the United States Constitution. 7 We disagree. An absence of proof of an element of a lesser-included offense never compels a defendant to put on any evidence. Under Graham's theory, he is simply entitled to the instruction despite an absence of proof supporting it. Without evidence supporting a second-degree murder conviction, our adoption of Graham's notion of this area of law would legitimize simple lenity as a separate doctrinal basis for a jury instruction. In this, he seeks our embrace of a form of jury nullification. We decline Graham's invitation to embark into these troubling jurisprudential waters. 8 The district court correctly refused Graham's second-degree murder instructions and the corresponding forms of verdict. Accordingly, the judgment of conviction below is affirmed. Rose, C. J., Young, Shearing, Agosti, Leavitt and Becker, JJ., concur. __________ 7

The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. 8

Our ruling today renounces “lenity” as a separate basis for giving instructions on murder of the second degree. Of course, in any case where there is evidence supporting either first- or second-degree murder, a jury is entitled to extend lenity and convict of the lesser offense. While juries may not be instructed on this issue, convictions rendered on this basis, in accord with our prior decisions, may be upheld. See State v. Lindsey, 19 Nev. 47, 5 P. 822 (1885). ____________

Ð116 Nev. 32, 32 (2000) Ronning v. StateÐ Ð ERIC RONNING, Appellant, v. THE STATE OF NEVADA, Respondent. No. 31604 January 26, 2000

992 P.2d 260

Petition for en banc reconsideration of an order dismissing appeal from a judgment of conviction. Second Judicial District Court, Washoe County; Steven P. Elliott, Judge. Defendant pleaded guilty in the district court to one count of felony driving under the influence (DUI), and he appealed. The supreme court dismissed appeal, and defendant filed timely petition for rehearing. The supreme court denied petition, and defendant filed timely petition for en banc reconsideration. The supreme court held that defendant's two prior DUI convictions had been properly proven in district court. Petition denied. Law Offices of William B. Cole, Lake Tahoe; and Richard F. Cornell, Reno, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe County, for Respondent. Automobiles. Defendant's two prior convictions for driving under the influence (DUI) were properly proven in prosecution for felony DUI, even though state failed to present evidence of prior convictions at sentencing, where district court had conducted extensive hearing as to constitutional validity of prior convictions, and convictions had been entered into evidence prior to sentencing hearing.

Before the Court En Banc. OPINION Per Curiam: Appellant was convicted, pursuant to a guilty plea, of one count of felony driving under the influence. On direct appeal, appellant argued that one of his prior convictions should have been stricken as constitutionally invalid. Appellant also argued that his case should be remanded to the district court for re-sentencing as a second-offense DUI because the state failed to prove two prior convictions at sentencing. This court dismissed the appeal, noting that the district court had conducted an extensive hearing as to the

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Ð116 Nev. 32, 33 (2000) Ronning v. StateÐ Ð constitutional validity of the prior convictions, and that the convictions had been entered into evidence prior to the sentencing hearing. Further, this court concluded that the district court did not err in finding that the prior convictions were valid for enhancement purposes. Appellant thereafter filed a timely petition for rehearing contending that this court had overlooked authority controlling a dispositive issue in this case. Specifically, appellant argued that NRS 484.3792(2) 1 and two previous decisions of this court require that the state present evidence of prior convictions at sentencing. See Phipps v. State, 111 Nev. 1276, 903 P.2d 820 (1995); Robertson v. State, 109 Nev. 1086, 863 P.2d 1040 (1993).

This court denied rehearing, noting that the issue had already been presented to the court and could not be reargued on rehearing. NRAP 40(c)(1). The order denying rehearing further noted that the prior offenses had been entered into evidence and determined to be constitutionally valid prior to sentencing. Appellant then filed this timely petition for en banc reconsideration. NRAP 40A(a) provides: “En banc reconsideration of a panel decision is not favored and ordinarily will not be ordered except when (1) reconsideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) the proceeding involves a substantial precedential, constitutional or public policy issue.” We conclude, however, that we should take this opportunity to clarify our decision in Robertson. 2 Appellant contends that this court's decision in Robertson requires that the prior convictions must only be proven at the sentencing hearing. In Robertson, this court held that if the state failed to present evidence concerning prior convictions at the sentencing hearing, “[the state] is precluded from presentation of evidence concerning those prior offenses at any subsequent sentencing hearing involving the instant offense.” 109 Nev. at 1089, 863 P.2d at 1042 (emphasis added). Nothing in Robertson prohibits the state from proving the prior convictions at some time prior to the sentencing hearing. Further, we do not read NRS   VR

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NRS 484.3792(2) provides, in part: “The facts concerning a prior offense must be alleged in the complaint, indictment or information, must not be read to the jury or proved at trial but must be proved at the time of sentencing . . . .” 2

To the extent that appellant argues that he should be allowed to attack his prior convictions collaterally, we conclude that reconsideration is not warranted. On January 7, 2000, appellant submitted a memorandum of supplemental authorities. On January 13, 2000, appellant filed a motion requesting permission to file the supplemental argument and authorities. Cause appearing, we grant the motion and we direct the clerk of this court to file the supplemental authorities and argument submitted on January 7, 2000. Further, we conclude that appellant's supplemental argument is without merit.

Ð116 Nev. 32, 34 (2000) Ronning v. StateÐ Ð 484.3792(2) so narrowly as to require that the prior convictions must only be proven at the actual sentencing hearing. 3 As previously noted, in the instant case, the district court conducted a hearing prior to sentencing and considered the constitutional validity of the prior convictions. The convictions had been proven at the time of sentencing. Thus, the requirements of NRS 484.3792(2) had been satisfied. 4 Appellant has failed to demonstrate that en banc reconsideration is warranted in this appeal, and the petition is therefore denied. 5

____________

Ð116 Nev. 34, 34 (2000) Morrison v. Beach City LLCÐ Ð Ð DENNIS MORRISON, Appellant, v. BEACH CITY LLC, a Nevada Limited Liability Company, dba THE BEACH; and BARBARY COAST HOTEL AND CASINO, dba THE BEACH CLUB RACE & SPORTS BOOK, Respondents. No. 32595

January 26, 2000

991 P.2d 982

Appeal from an order of the district court dismissing appellant's complaint for lack of subject matter jurisdiction. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge. Patron brought personal injury action against nightclub, seeking recovery for injuries he sustained when he slipped and fell on paper napkins on club's dance floor. Nightclub filed motion to dismiss for lack of subject matter jurisdiction. The district court granted motion, and patron appealed. The supreme court held that district court erred in dismissing patron's action against nightclub for failure to meet jurisdictional damages requirement, based upon statements made by patron's attorney in offer to compromise claim. Reversed and remanded. __________ 3

Of course, the facts concerning the prior offenses must not be read to the jury or proved to the jury at trial. 4

Appellant also cites this court's decision in Phipps in support of his argument. Phipps is inapposite to the instant case. In Phipps, the state filed an information that alleged two prior DUI convictions. The justice court had determined that one of those convictions had occurred over seven years prior, and was therefore not legally sufficient for enhancement purposes. At the sentencing hearing, the state attempted to prove a conviction that had not been alleged in the information. The failure to allege the conviction in either the complaint or information is a clear violation of NRS 484.3792(2), which requires that the facts concerning the prior offenses must be alleged in the complaint or information. There is nothing in Phipps to preclude the proving of a prior conviction at a hearing prior to the sentencing hearing. 5

On November 29, 1999, appellant filed a motion to stay issuance of remittitur in this appeal. In light of this decision, the motion is denied as moot.

Ð116 Nev. 34, 35 (2000) Morrison v. Beach City LLCÐ Ð Kravitz, Schnitzer & Sloane, Chtd., and M. Bradley Johnson, Las Vegas, for Appellant. Parnell and Associates, Las Vegas, for Respondents. 1. Courts. The burden of proving subject matter jurisdiction is properly placed on the plaintiff. 2. Courts. The state constitution confers both original and appellate subject matter jurisdiction upon the district courts. Const. art. 6, § 6. 3. Courts. The district court has original jurisdiction over personal injury actions only if the plaintiff claims more than $7,500.00 in damages. 4. Pretrial Procedure. In order for the district court to dismiss a case based on lack of subject matter jurisdiction, it must appear to a legal certainty that the claim is worth less than the jurisdictional amount of $7,500.00. 5. Courts. A claim in excess of the requisite amount, made in good faith, satisfies the jurisdictional requirement. 6. Pretrial Procedure. District court erred in dismissing patron's personal injury action against nightclub for failure to meet jurisdictional damages requirement, based upon statements made by patron's attorney in offer to compromise claim. 7. Courts. A district court may inquire into an attorney's possible bad faith in claiming damages to meet the jurisdictional limit of the district court.

Before Maupin, Shearing and Becker, JJ.

OPINION Per Curiam: In this appeal, we consider whether a district court may rely upon plaintiff's counsel's statements made in an offer to compromise in determining whether plaintiff has met the jurisdictional damages requirement of the district court. We conclude that a district court may not rely upon such statements and therefore reverse the district court's order. FACTS Appellant Dennis Morrison filed a complaint in the district court claiming damages in excess of $10,000.00 for personal injuries allegedly suffered on the premises of The Beach, a nightclub. Appellant claimed that he was a patron of the club, and that he slipped on paper napkins on the dance floor and broke a bone LQKLVULJKWIRRW

Ð116 Nev. 34, 36 (2000) Morrison v. Beach City LLCÐ Ð in his right foot. According to appellant, the club knowingly created a dangerous situation by deliberately blowing napkins onto the dance floor. Appellant contended that he suffered a fractured foot and mental stress and anxiety, which “may be permanent and disabling in nature,” and that he “lost range of motion on his right foot and suffers from continuing pain.” He requested both general and special damages in excess of $10,000.00. In addition, appellant alleged that his damages were presently unascertainable, and “will continue into the future.” Respondents filed an answer. After respondents' answer was filed, appellant's attorney forwarded to respondents appellant's medical records and a letter indicating that the value of the action “[did] not warrant full-blown litigation.” A pre-arbitration conference was held, after which appellant's attorney sent a letter to respondents' attorney seeking to settle the case for $2,000.00, and stated his belief that appellant would recover approximately that amount if the matter proceeded to arbitration. Subsequently, respondents filed a motion in the district court to dismiss for lack of subject matter jurisdiction based on appellant's offer to compromise. Appellant responded by filing an opposition to respondents' motion and a counter-motion for sanctions and to strike a fugitive document, namely, appellant's offer to compromise. Respondents then filed a reply to appellant's opposition and its opposition to appellant's counter-motion for sanctions. In response, appellant filed a reply to the opposition to the countermotion for sanctions. The court granted respondents' motion, and in a brief order dismissed the complaint, without prejudice, for lack of subject matter jurisdiction and denied the counter-motion for sanctions and to strike. This appeal followed. DISCUSSION Appellant contends the district court committed reversible error by granting respondents' motion to dismiss based upon appellant's offer to compromise. We agree. [Headnote 1] The Nevada Rules of Civil Procedure provide that the defense of lack of jurisdiction over the subject matter may, at the option of the defendant, be made by motion. NRCP 12(b)(1). NRCP 12(h)(3) provides that “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” The burden of proving the jurisdictional requirement is properly placed on the plaintiff. See Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971); 2 James Wm.

Ð116 Nev. 34, 37 (2000) Morrison v. Beach City LLCÐ Ð Moore et al., Moore's Federal Practice § 12.30[5] (3d ed. 1999) [hereinafter Moore's]; 15 Moore's § 102.107. In federal practice, the district court can take evidence on the claim that the complaint does not fall within the subject matter jurisdiction requirements of the court, and such evidence is not necessarily confined to the allegations of the complaint. See 15 Moore's § 102.107[1] and [2]. [Headnotes 2, 3] The Nevada Constitution confers both original and appellate subject matter jurisdiction upon the district courts. The constitution provides that district courts do not have original jurisdiction over actions that fall within the original jurisdiction of the justices' courts. Nev. Const. art. 6, § 6. NRS 4.370(1)(b) confers original jurisdiction upon justices' courts over civil actions for damages for personal injury, if the damages claimed do not exceed $7,500.00. Thus, the district court has original jurisdiction over such actions only if the plaintiff claims more than $7,500.00 in damages. This court has previously determined jurisdiction solely on the basis of damages claimed in the complaint. In Royal Insurance v. Eagle Valley Construction, Inc., 110 Nev. 119, 120, 867 P.2d 1146, 1147 (1994), the district court's jurisdictional limit was not met because the claimed damages were less than the jurisdictional amount as set forth in NRS 4.370(1)(b), and attorney fees and costs would not be considered in order to raise the amount in controversy above the jurisdictional limit of the district court. Appellant argues that the complaint, which claimed damages in excess of $10,000.00, lies within the jurisdiction of the district court. 1 Appellant contends that although actual recovery could be less than $10,000.00, that possibility does not preclude the district court from having jurisdiction. In Royal Insurance, the district court dismissed a claim for lack of subject matter jurisdiction because the claimed damages in the complaint, exclusive of costs and attorney fees, were less than the jurisdictional threshold. Pursuant to Royal Insurance, appellant claims the district court erred in dismissing appellant's complaint because the claimed damages were in excess of the jurisdictional amount as set forth in NRS 4.370(1)(b). The present case, however, unlike Royal Insurance, requires the court to look beyond the damages FODLPHGDQGHYDOXDWHZKHWKHU

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It is likely that appellant pleaded damages in excess of $10,000.00 because of NRCP 8(a). “Where a claimant seeks damages of more than $10,000, the demand shall be for damages ‘in excess of $10,000' without further specification of amount.” NRCP 8(a).

Ð116 Nev. 34, 38 (2000) Morrison v. Beach City LLCÐ Ð claimed, and evaluate whether those damages were claimed in good faith. [Headnotes 4, 5] Although we have not previously addressed what standards should guide the district court in determining whether the claimed damages meet the jurisdictional requirement, federal courts apply a “legal certainty” test to determine whether a complaint satisfies the amount-in-controversy requirement of diversity jurisdiction under 28 U.S.C. § 1332. In order to dismiss a case based on lack of subject matter jurisdiction, it must appear to a legal certainty that the claim is worth less than the jurisdictional amount. See St. Paul Indemnity Co. v. Cab Co., 303 U.S. 283, 288-89 (1938); Budget Rent-A-Car Inc. v. Higashiguchi, 109 F.3d 1471, 1473 (9th Cir. 1997). A claim in excess of the requisite amount, made in good faith, satisfies the jurisdictional requirement. Higashiguchi, 109 F.3d at 1473; see also St. Paul, 303 U.S. at 288-89. A court should be cautious about dismissing a complaint for failing to meet the jurisdictional requirement:

Under the “legal certainty” test, it should be emphasized, the plaintiff must establish merely that it does not appear to a legal certainty that the claim is below the jurisdictional minimum. Thus, under this standard, courts must be very confident that a party cannot recover the jurisdictional amount before dismissing the case for want of jurisdiction. 15 Moore's § 102.106[1]. We adopt the federal courts' legal certainty test for determining the jurisdictional amount in controversy in Nevada district courts. [Headnote 6] We must next consider what kind of evidence is appropriate for demonstrating that subject matter jurisdiction exists. Appellant maintains that the district court erred in denying his motion to strike, and that respondents violated Nevada law by tendering appellant's prior offer to compromise, which sought to settle the case for $2,000.00. NRS 48.105(1) provides, in relevant part, that evidence of an offer to compromise a claim, “which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.” Also, “[e]vidence of conduct or statements made in compromise negotiations is likewise not admissible.” NRS 48.105(1). 2

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NRS 48.105(2) qualifies the scope of NRS 48.105(1). Evidence need not be excluded when it “is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” Subsection (2) does not apply to the circumstances at hand.

Ð116 Nev. 34, 39 (2000) Morrison v. Beach City LLCÐ Ð nothing other than an offer to compromise, which NRS 48.105(1) renders inadmissible. 3 Using offers to compromise to measure jurisdictional limits, moreover, would likely have an undesirable chilling effect on parties' attempts to reach a settlement, because a plaintiff would fear (quite justifiably, as the present case demonstrates) that a low offer might later be used to dismiss the case. Courts rightly encourage offers to compromise claims. Federal Rule of Evidence 408 (the federal analog of NRS 48.105), governing admissibility of offers to compromise, was developed to “encourage the resolution of problems through negotiation and settlement without the fear of having statements made during the negotiation process haunt a future legal proceeding.” Han v. Yang, 931 P.2d 604, 613 (Haw. Ct. App. 1997). Based on the plain language of NRS 48.105(1), and the policy underlying this statutory provision, we conclude that relying on an offer to compromise as evidence of a failure to satisfy the jurisdictional limit is improper. [Headnote 7] Yet, a district court may inquire into an attorney's possible bad faith in claiming damages to meet the jurisdictional limit of the district court. See St. Paul, 303 U.S. at 288-89 (damages claimed must be pleaded in good faith); Higashiguchi, 109 F.3d at 1473 (same). According to NRCP 11, a party is required to have a reasonable basis for alleging damages in a complaint that is “well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” The signature of the attorney constitutes certification that to the best of his or her knowledge the pleading adheres to these guidelines. NRCP 11 thus applies to a jurisdictional allegation and/or a claim of damages which furnishes the basis for subject matter jurisdiction in district court. The district court may conduct a hearing to determine whether the potential damages in a case fall below the jurisdictional threshold, although it may not rely on statements made in settlement negotiations in making that determination.

We conclude that the district court erred when it relied on the statements made in the offer to compromise and dismissed the complaint for lack of subject matter jurisdiction. We therefore UHYHUVHWKHRUGHURIWKH

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Generally, a settlement offer would also be inadmissible as irrelevant. See NRS 48.025 (irrelevant evidence inadmissible). What a party is willing to accept at a particular point in time has little or no relevance to what the claim is potentially worth for purposes of subject matter jurisdiction. There are many variables reflected in an offer (such as a plaintiff's immediate need for funds, and/or the need to avoid a potential loss or embarrassment at trial) that might make it unreliable proof of the ultimate value of the claim.

Ð116 Nev. 34, 40 (2000) Morrison v. Beach City LLCÐ Ð reverse the order of the district court and remand for further proceedings consistent with this opinion. ____________

Ð116 Ð Nev. 40, 40 (2000) Nicholas v. Public Employees' Ret. BoardÐ Ð DAVID D. NICHOLAS, Appellant, v. THE STATE OF NEVADA, JOYCE L. WOODHOUSE, STEVE COZINE, ALBERT C. JOHNS, SAM PALAZZOLO, HOWARD REYNOLDS, MARVIN A. LEAVITT, and O. C. LEE, Individually and as Members of the PUBLIC EMPLOYEES' RETIREMENT BOARD OF THE STATE OF NEVADA, WILL KEATING, as Executive Officer of the PUBLIC EMPLOYEES' RETIREMENT BOARD OF THE STATE OF NEVADA, and LEGISLATORS' RETIREMENT SYSTEM, Respondents. No. 27667 ROBERT G. CRADDOCK, and LOUISE CRADDOCK, Appellants, v. THE STATE OF NEVADA, O. C. LEE, JOYCE L. WOODHOUSE, STEVE COZINE, DR. ALBERT JOHNS, HOWARD REYNOLDS, MARVIN A. LEAVITT, SAM PALAZZOLO, Individually and as Members of the PUBLIC EMPLOYEES' RETIREMENT BOARD OF THE STATE OF NEVADA, and LEGISLATORS' RETIREMENT SYSTEM, Respondents. No. 28148 January 27, 2000

992 P.2d 262

Consolidated appeals from summary judgments on the issue of whether appellants' rights had vested, thereby allowing them to receive the retirement benefits pursuant to the formula in Assembly Bill 820, 65th Legislature (1989). Second Judicial District Court, Washoe County; Deborah A. Agosti, Judge (Docket No. 27667). Eighth Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge (Docket No. 28148). Retired former members of Nevada Legislature whose retirement benefits were reduced after bill which quadrupled amount of benefits retired legislators could receive was repealed brought action against state and Public Employees' Retirement Board, claiming that because they retired within five-month period bill was effective, they were entitled to receive increased benefits pursuant to formula of repealed bill. The district courts granted summary judgment in favor of state and Board, and legislators appealed. The supreme court, Leavitt, J., consolidated the matWHUV RQ DSSHDO DQG KHOG WKDW OHJLVODWXUH GLG QRW KDYH DXWKRULW\ WR DOWHU

OHJLVODWRUV UHWLUHPHQWEHQHILWVIROORZLQJWKHLUUHWLUHPHQW Ð116 Nev. 40, 41 (2000) Nicholas v. Public Employees' Ret. BoardÐ Ð ters on appeal and held that legislature did not have authority to alter legislators' retirement benefits following their retirement. Reversed. Young and Maupin, JJ., dissented. Bowman & Robinson, Reno, for Appellant Nicholas. Markoff & Boyers, Las Vegas, for Appellants Craddock. Frankie Sue Del Papa, Attorney General, and Robert Auer, Deputy Attorney General, Carson City, for Respondents. 1. Appeal and Error. The standard of review of an appeal from a summary judgment is de novo. 2. Appeal and Error. Questions of law are reviewed de novo. 3. Constitutional Law. Limited vested pension rights of public employees can be modified and absolute vested pension rights cannot be modified. 4. Constitutional Law. Until a public employee has earned his retirement pay, or until the time arrives when he may retire, his retirement pay is but an inchoate right, but when the conditions are satisfied, at that time retirement pay becomes a vested right of which the person entitled thereto cannot be deprived; it has ripened into a full contractual obligation. Const. art. 1, § 15; U.S. Const. art. 1, § 10; 1989 Nev. Stat., ch. 481, § 1 et seq. 5. States. Legislature did not have authority to reduce retired legislators' pension benefits following legislature's repeal of bill which quadrupled amount of benefits retired legislators could receive, where legislators retired and their pension rights vested within five-month period that bill was effective. 1989 Nev. Stat., ch. 481, § 1 et seq. 6. Constitutional Law. Public employment contracts are within the ambit of the constitution's contract clause, which prohibits a state from passing any law impairing its contractual obligations. Const. art. 1, § 15; U.S. Const. art. 1, § 10. 7. Constitutional Law. An employee's rights to his pension benefits becomes absolutely vested when he retires and all conditions for his retirement benefits have been met; that right is constitutionally protected against impairment once absolutely vested. Const. art. 1, § 15; U.S. Const. art. 1, § 10. 8. Constitutional Law. When a public employee's rights to retirement benefits become absolutely vested, a contract exists between the employee and the state which cannot be modified by unilateral action on the part of the legislature. Const. art. 1, § 15; U.S. Const. art. 1, § 10; 1989 Nev. Stat., ch. 481, § 1 et seq.

Before the Court En Banc.

Ð116 Nev. 40, 42 (2000) Nicholas v. Public Employees' Ret. BoardÐ Ð OPINION By the Court, Leavitt, J.: These two cases have been consolidated on appeal. NRAP 3(b). Both appellants are former members of the Nevada Legislature who claim that they are entitled to certain retirement benefits pursuant to Assembly Bill 820 (hereinafter “A.B. 820”) passed by the 1989 session of the Nevada Legislature, which

modified provisions of the Legislators' Retirement Law stated in NRS chapter 218. See 1989 Nev. Stat., ch. 481. A.B. 820 quadrupled the amount of benefits a retired legislator may receive. Former Governor Miller vetoed A.B. 820, but his veto was overridden the same day by the legislature. The public expressed outrage over the legislators increasing their own retirement benefits, but former Governor Miller announced he would not call a special session to repeal the law. However, the public clamor increased, and the former Governor called a special session of the legislature for the sole purpose of repealing A.B. 820. The legislature convened and repealed the law. A.B. 820 was the law of Nevada for approximately five months, from June 23, 1989, the date the legislature overrode the Governor's veto, to November 21, 1989, when the law was repealed. Both appellants retired during this period of time and received the increased retirement benefits until A.B. 820 was repealed. After A.B. 820 was repealed, the Public Employees' Retirement Board notified appellants that their pension benefits would be reduced. Appellants filed actions, claiming a vested right to the increased benefits of A.B. 820. They asserted that the repeal of A.B. 820 violated the Contracts Clause of the United States Constitution by denying them protection from impairment of contract. After motions and cross-motions for summary judgment were filed, the district court in both cases granted summary judgment for respondents. We have previously examined the ramifications of A.B. 820. We held that article 4, section 33 of the Nevada Constitution forbids any increase in compensation for members of the legislature during their natural term of office. A.B. 820 was repealed prior to the expiration of a sitting legislator's term of office. Therefore, any increased pension benefits did not vest and there was no impairment of any vested contract rights. See Mello v. Woodhouse, 110 Nev. 366, 872 P.2d 337 (1994). The facts in this case are different. Both appellants are former members of the Nevada Assembly. David D. Nicholas served four WHUPVHLJKW\HDUV LQWKH1HYDGD$VVHPEO\

Ð116 Nev. 40, 43 (2000) Nicholas v. Public Employees' Ret. BoardÐ Ð terms (eight years) in the Nevada Assembly, from January 1981 through December 1988. He declined to run for re-election in 1988. Robert G. Craddock served eight terms (sixteen years) from January 1, 1973, through December 1988. He was defeated in his bid for re-election in 1988. Therefore, neither appellant was a sitting member of the legislature when A.B. 820 was enacted. Nicholas requested an application for retirement and submitted it to the Public Employees' Retirement Board on September 15, 1989. At the time of submittal, A.B. 820 was still the law in Nevada. Pursuant to the formula, he received $1,147.94 per month for two months, September and October 1989. Thereafter, his retirement benefit was reduced to $284.67 per month, the pre-A.B. 820 rate. Robert G. Craddock's effective retirement date was November 1, 1989. His first check was a pro rata amount based on A.B. 820. His monthly benefit was $1,344.63 under the new law. After the repeal of A.B. 820, his benefit dropped to $325.65 per month. DISCUSSION [Headnotes 1, 2] The standard of review of an appeal from a summary judgment is de novo. See Maine v. Stewart, 109 Nev. 721, 726, 857 P.2d 755, 758 (1993); Walker v. American Bankers Ins., 108 Nev. 533, 536, 836 P.2d 59, 61 (1992). Additionally, “[q]uestions of law are reviewed de novo.” SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993). There is no dispute concerning the facts in this case. We have previously recognized that the vesting of pension benefits can either be limited or absolute. Appellants argue that before the vesting of an employee's right to receive pension benefits or retire early, the Legislature may modify the terms and conditions of receiving such benefits without impairing any contractual obligations. Historically, pension benefits were treated as gratuities subject to alteration, amendment, and repeal without any constitutional ramifications. The modern and better-reasoned view

recognizes that employees accept their positions, perform their duties, and contribute to the retirement fund in reliance upon the governmental employer's promise to pay retirement benefits and permit early retirement if certain conditions are met. By rendering services and making contributions, an employee acquires a limited vested right to pension benefits which may not be eliminated or substantially changed by unilateral action of the governmental employer to the detriment of the member.

Ð116 Nev. 40, 44 (2000) Nicholas v. Public Employees' Ret. BoardÐ Ð The limited vesting theory is premised on the principle that a pension is an element of compensation and thus part of the employment contract. A pension right may not be destroyed without impairing the contractual obligation of the public employer. However, prior to absolute vesting, pension rights are subject to reasonable modification . . . . Public Emp. Ret. v. Washoe Co., 96 Nev. 718, 721-22, 615 P.2d 972, 974 (1980) (citations omitted; footnote omitted; emphasis added). [Headnote 3] Thus, there are limited vested rights which can be modified and absolute vested rights which cannot be modified. Other jurisdictions have so ruled. See Pasadena Pol. Off. Ass'n v. City of Pasadena, 195 Cal. Rptr. 339 (Ct. App. 1983); LA. State Troopers v. LA. State Police, Etc., 417 So. 2d 440 (La. Ct. App. 1982); Campbell v. Michigan Judges Retirement Board, 143 N.W.2d 755 (Mich. 1966). [Headnotes 4-7] The difference between limited and absolute vested rights centers around the time when the retirement benefits have been fully earned or the date of retirement, that is, when the benefits are paid. Until an employee has earned his retirement pay, or until the time arrives when he may retire, his retirement pay is but an inchoate right; but when the conditions are satisfied, at that time retirement pay becomes a vested right of which the person entitled thereto cannot be deprived; it has ripened into a full contractual obligation. Police Pension and Relief Board of Denver v. McPhail, 338 P.2d 694, 700 (Colo. 1959) (quoting Retirement Board of Allegheney County v. McGovern, 174 A. 400 (Pa. 1934)). Respondent Public Employees' Retirement Board asserts that the legislature has the authority to alter a person's retirement benefit at any time, even after they retire. This is in direct contradiction to the position previously taken by the Board in Mello v. Woodhouse, 110 Nev. 366, 371, n.10, 872 P.2d 337, 340 (1994). In Mello, the Board acknowledged that legislators who had already completed their term prior to the repeal of A.B. 820 would have absolutely vested under A.B. 820. An employee's rights become absolutely vested when he retires and all conditions for his retirement benefits have been met. That right is constitutionally protected against impairment once absolutely vested. “No state may pass a law impairing the obligation of contracts. U.S. Const. art. I, § 10; Nev. Const. art. 1, § 15. Public employment contracts are within the ambit of WKHFRQWUDFWFODXVH´

Ð116 Nev. 40, 45 (2000) Nicholas v. Public Employees' Ret. BoardÐ Ð the contract clause.” Public Emp. Ret., 96 Nev. at 721, 615 P.2d at 974 (citing Singer v. City of Topeka, 607 P.2d 467 (Kan. 1980)). [Headnote 8]

Public employees perform their duties, in reliance on the state paying retirement benefits when certain conditions are met. When those rights become absolutely vested, a contract exists between the employee and the state which cannot be modified by unilateral action on the part of the legislature. The repeal of A.B. 820 impaired the obligation of the state to pay the increased pension benefits to these appellants. Adopting a rule that would allow the legislature to alter pension benefits after they have absolutely vested simply to bar these appellants from taking advantage of the short window of opportunity when A.B. 820 was the law would undermine the validity of contractual benefits for all public employees. We are unwilling to create a precedent that would impair thousands of employees' rights solely to prevent a few individuals from collecting greater benefits as a result of the passage of A.B. 820. Accordingly, we reverse the district courts' summary judgments and remand to the district courts to grant summary judgment in favor of appellants, and to order respondent Public Employees' Retirement Board to reinstate the retirement benefits of appellants to the amounts allowed under A.B. 820, retroactive to the date of the repeal of A.B. 820. 1 Rose, C. J., Shearing and Becker, JJ., concur. Young, J., dissenting: The issue is whether Nicholas and Craddock obtained vested rights to a 300 percent increase in monthly retirement benefits. I conclude that the district courts correctly determined that Nicholas and Craddock did not obtain vested rights to the unearned increase. Therefore, the legislature was free to repeal A.B. 820. Accordingly, I dissent. Fundamentally, retirement benefits are deferred compensation for services rendered. See Public Emp. Ret. v. Washoe Co., 96 Nev. 718, 721-22, 615 P.2d 972, 974 (1980); see also City of Las Vegas v. Ackerman, 85 Nev. 493, 501, 457 P.2d 525, 530-31 (1969) (“ ‘[a] pension paid a governmental employee . . . is a deferred portion of the compensation earned for services rendered' ”) (quoting Great American Insurance Company v. Johnson, 126 S.E.2d 92, 94 (N.C. 1962)). __________ 1

The Honorable Deborah A. Agosti, Justice, voluntarily disqualified herself from participation in the decision of these consolidated appeals.

Ð116 Nev. 40, 46 (2000) Nicholas v. Public Employees' Ret. BoardÐ Ð Employees must provide a service in order to receive this deferred compensation. Thus, employees obtain a vested right only to deferred compensation that accumulates during their service. An employee “whose employment terminated before enactment of a statute offering additional benefits does not exchange services for the right to the benefits.” Claypool v. Wilson, 6 Cal. Rptr. 2d 77, 86 (Ct. App. 1992); see also Simpson v. Government Emp. Retire. Sys., 363 S.E.2d 90, 94 (N.C. Ct. App. 1987) (“A public employee has a right to expect that the retirement rights bargained for in exchange for his loyalty and continued services . . . will not be removed or diminished.”) (emphasis added). Employees do not have vested rights to additional benefits distributed after an employee's service ends. See Pasadena Pol. Off. Ass'n v. City of Pasadena, 195 Cal. Rptr. 339, 346 (Ct. App. 1983) (“these members had completed all their years of service and retired before any COLA benefit was enacted . . . [t]hus, they had no vested contractual right, based on the contract in effect during their employment, to continuation of the COLA benefit”) (emphasis in original). The two year terms of Nicholas and Craddock ended November 9, 1988, the day after the 1988 general election. See Nev. Const. art. 4, § 3, cl. 1 (amended 1996) (the term of office for members of the Assembly “shall be two years from the day next after their election”). A.B. 820 became effective June 23, 1989, over seven months later. Nicholas and Craddock filed retirement paperwork with the Public Employees' Retirement Board after A.B. 820 became effective. The majority ignores the fundamental principle that retirement benefits must be

earned, not scattered by legislative whim among the undeserving. A.B. 820 bestowed upon Nicholas and Craddock gratuitous compensation. The majority enhances this error by disregarding the fact that Nicholas and Craddock failed to provide service as legislators in exchange for this additional “compensation.” District Court Judge Deborah A. Agosti 1 said in the trial court that Nicholas' right “did not somehow magically ‘re-vest' when the legislation was enacted, for there was no exchange of services for benefits at that time.” While the legislature had the power to augment benefits, it also had the power to take these unearned benefits away as it did by repealing A.B. 820. In other words, what the legislature gave, the legislature could take away. “The state legislature is within its authority to enact legislation and to amend or repeal its statutory law unless the legislative action is specifically precluded by constitutional limitations.” __________ 1

The Honorable Deborah A. Agosti, Justice, was subsequently elected to this court and voluntarily disqualified herself from participating in this matter.

Ð116 Nev. 40, 47 (2000) Nicholas v. Public Employees' Ret. BoardÐ Ð County of Clark v. Buckwalter, 115 Nev. 58, 974 P.2d 1162, 1167 (1999) (Maupin, J., concurring). As the majority points out, the Contract Clause of the Nevada and United States Constitutions only “constitutionally protect[s] against impairment once absolutely vested.” See U.S. Const. art. I, § 10; Nev. Const. art. 1, § 15. Therefore, I agree with the majority to the extent that vested contract rights are constitutionally protected. However, the Contract Clause is inapplicable in this case because Nicholas and Craddock did not obtain vested contract rights to the additional benefits provided by A.B. 820. Nicholas' and Craddock's contract rights vested before A.B. 820, not after its passage. Consequently, I conclude that Nicholas' and Craddock's vested rights are restricted to the pre-A.B. 820 retirement benefit rates. Additionally, it is important to note that Nicholas and Craddock made a calculated effort to exploit the passage of A.B. 820. At the time the legislature enacted A.B. 820, Nicholas was a paid lobbyist in the Nevada Legislature and actually attended hearings on A.B. 820. Nicholas also discussed the bill with State Senator Donald Mello, the moving force behind the benefit increase. Nicholas and Craddock carefully timed the filing of their retirement papers in their quest for an unwarranted windfall. Addressing Craddock's claim in the Eighth Judicial District Court, Judge Gerard Bongiovanni succinctly noted, “Calculated reliance is not detrimental reliance.” Under A.B. 820, this windfall amounts to an extra $863.27 a month for Nicholas and an extra $1,018.98 a month for Craddock for the rest of their lives. Over twenty-five years, Nicholas and Craddock would jointly receive an impressive $564,675.00 over what they would have received at the pre-A.B. 820 retirement rate. 2 The majority fears that allowing the legislature to alter pension benefits “would undermine the validity of contractual benefits for all public employees.” An employee does not have a vested right to an additional retirement benefit which is granted after the employee's service has ended. Otherwise, in the unlikely eventWKDW

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It warrants mentioning that the legislature itself came to the conclusion that the citizens of Nevada deserve better. Initially, the legislature enacted A.B. 820 over the governor's veto on a near unanimous vote. However, after five months of public outcry, the legislature reversed course in a special session and unanimously voted to repeal A.B. 820, thereby ending this unprecedented raid on the public treasury. As former Governor Mike O'Callaghan noted in an editorial, “Everybody in Nevada knew that the provisions of A.B. 820 were outrageous and wrong. Even the people who voted for it knew it was wrong . . . [but] greed overcame common sense and the

responsibility candidates promise voters.” Mike O'Callaghan, Where I Stand—Mike O'Callaghan: Lingering odor from ‘89, Las Vegas Sun, Sept. 28, 1999, at 7A.

Ð116 Nev. 40, 48 (2000) Nicholas v. Public Employees' Ret. BoardÐ Ð that the legislature decided to increase the retirement benefits for all state employees by 300 percent after their service to the State was over, could it be seriously argued that the legislature would not have the power to repeal such a statute? For the foregoing reasons, I conclude that Nicholas and Craddock did not obtain vested rights to higher monthly benefits. The legislature enacted this extraordinary increase only after Nicholas and Craddock ended their legislative service. The majority's decision essentially rewards Nicholas and Craddock with undeserved compensation for which the citizens of Nevada received nothing in return. Therefore, I dissent. Maupin, J., dissenting: The legislature enacted former A.B. 820 after appellants' public service as legislators was concluded. They may not, as a matter of law, claim to have relied upon the pension increase as a condition of their respective public services. It is reliance that gives life to the doctrine that is most eloquently articulated by the majority opinion. This completely unique situation does not implicate that doctrine. The legislature intended to void the pension increase in its entirety and appellants lost nothing in the process. I further agree with Justice Young that no constitutional violation of appellants' vested rights occurred. ____________

Ð116 Nev. 48, 48 (2000) Mazzan v. WardenÐ Ð Ð JOHN FRANCIS MAZZAN, Appellant, v. WARDEN, ELY STATE PRISON, E. K. McDANIEL, Respondent. No. 30998 January 27, 2000

993 P.2d 25

Appeal from an order of the district court dismissing a postconviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Peter I. Breen, Judge. Following conviction for murder and imposition of a death sentence, affirmed at 103 Nev. 69, 733 P.2d 850 (1987), and following denial of his petition for post-conviction relief, affirmed at 105 Nev. 745, 783 P.2d 430 (1989), and denial of his first petition for a writ of habeas corpus, affirmed at 112 Nev. 838, 921 P.2d 920 (1996), defendant again petitioned for a writ of habeas corpus. The district court denied the writ, and defendant appealed. The supreme court held that prosecutors violated Brady by failing to disclose police reports. Reversed and remanded.

Ð116 Nev. 48, 49 (2000) Mazzan v. WardenÐ Ð JoNell Thomas, Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Chief Appellate Deputy District Attorney, Washoe County, for Respondent.

1. Criminal Law. Determining whether the state adequately disclosed information under Brady requires consideration of both factual circumstances and legal issues, and thus, supreme court reviews de novo the district court's decision. 2. Constitutional Law; Criminal Law. Brady and its progeny require a prosecutor to disclose evidence favorable to the defense when that evidence is material either to guilt or to punishment. Failure to do so is a violation of due process regardless of the prosecutor's motive. U.S. Const. amend. 14. 3. Criminal Law. Where the state fails to provide evidence which the defense did not request or requested generally, it is constitutional error if the omitted evidence creates a reasonable doubt which did not otherwise exist. In other words, evidence is “material” if there is a reasonable probability that the result would have been different if the evidence had been disclosed. U.S. Const. amend. 14. 4. Criminal Law. Materiality, for purpose of a Brady claim, does not require demonstration by a preponderance that disclosure of the evidence would have resulted in acquittal, nor is it a sufficiency of the evidence test. A defendant need not show that after discounting the inculpatory evidence in light of the undisclosed evidence there would not have been enough left to convict. U.S. Const. amend. 14. 5. Criminal Law. “Reasonable probability” of a different outcome, for purposes of a Brady claim, is shown when the nondisclosure undermines confidence in the outcome of the trial. U.S. Const. amend. 14. 6. Criminal Law. After a specific request for evidence, a Brady violation is “material” if there is a reasonable possibility that the omitted evidence would have affected the outcome. U.S. Const. amend. 14. 7. Criminal Law. In determining materiality of undisclosed evidence for purpose of a Brady claim, the evidence must be considered collectively, not item by item. The character of a piece of evidence as favorable will often turn on the context of the existing or potential evidentiary record. U.S. Const. amend. 14. 8. Criminal Law. For purpose of a Brady claim, the prosecutor is responsible for determining whether evidence is material and should be disclosed. U.S. Const. amend. 14. 9. Constitutional Law. Due process does not only require the disclosure of “exculpatory” evidence, but rather, evidence also must be disclosed if it provides grounds for the defense to attack the reliability, thoroughness, and good IDLWK RI WKH SROLFH LQYHVWLJDWLRQ WR

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Ð116 Nev. 48, 50 (2000) Mazzan v. WardenÐ Ð

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faith of the police investigation, to impeach the credibility of the state's witnesses, or to bolster the defense case against prosecutorial attacks. U.S. Const. amend. 14. Criminal Law. Discovery in a criminal case is not limited to investigative leads or reports that are admissible in evidence. Evidence need not be independently admissible to be material. Criminal Law. There are three components to a Brady violation: the evidence at issue is favorable to the accused; the evidence was withheld by the state, either intentionally or inadvertently; and prejudice ensued, i.e., the evidence was material. U.S. Const. amend. 14. Habeas Corpus. Cause and prejudice, which defendant bringing a successive petition for habeas relief was required to show to avoid procedural default, paralleled two of the three components of his Brady claim. If defendant proved that the state withheld evidence, that would constitute cause for not presenting his claim earlier, and if he proved that the withheld evidence was material under Brady, that would establish actual prejudice. NRS 34.810(3). Criminal Law. Prosecutors violated Brady, despite any information provided orally, by failing to disclose to murder defendant police reports which provided support for a defense that someone else murdered the victim because of his drug dealing, and provided a basis to impeach the thoroughness of the state's investigation. Reports indicated that one suspected perpetrator was in the city on the day of the murder, trial counsel could not have questioned the authenticity of signatures on two alibi documents without seeing them, and the reports cast another third party in a sinister light. U.S. Const. amend. 14. Criminal Law. Prosecutors' assessments that police reports were unimportant did not satisfy Brady. U.S. Const. amend. 14. Criminal Law. District court failed to apply the proper standard in assessing the materiality of the undisclosed evidence for purpose of a Brady claim when the court considered the evidence in isolated bits and found that many of those bits were not exculpatory. The proper question was whether the evidence was “favorable,” which often turned on the context of the existing or potential evidentiary record, and undisclosed evidence had to be considered collectively, not item by item. U.S. Const. amend. 14. Criminal Law. Prosecutor's refusal to turn police reports over to murder defendant's post-trial counsel was a Brady violation in its own right. U.S.

Const. amend. 14. 17. Criminal Law. When the state fails to disclose evidence which the defense did not request or requested generally, it is constitutional error if the omitted evidence creates a reasonable doubt, i.e., if there is a reasonable probability that the result would have been different if the evidence had been disclosed. A “reasonable probability” is shown when the nondisclosure undermines confidence in the outcome of the trial. U.S. Const. amend. 14.

Ð116 Nev. 48, 51 (2000) Mazzan v. WardenÐ Ð 18. Habeas Corpus. Supreme court would not consider on appeal the claims of a successive habeas petitioner where the petitioner did not discuss their merits or address whether they were procedurally barred. 19. Criminal Law. Contentions unsupported by specific argument or authority should be summarily rejected on appeal. 20. Habeas Corpus. District court judge's alleged failure to respond to comments made by the prosecutor in another case which were critical of the constitutional rights provided to criminal defendants was not an effective adoption of the prosecutor's comments, so as to warrant remand of a habeas proceeding to a different judge.

Before the Court En Banc. OPINION Per Curiam: In 1979, appellant John Francis Mazzan was convicted of first-degree murder and sentenced to death in the Second Judicial District Court. The state's theory was that he stabbed Richard Minor to death in Minor's home and then took money and drugs from the home. On appeal, this court affirmed Mazzan's conviction but reversed his sentence. Mazzan v. State (Mazzan I), 100 Nev. 74, 675 P.2d 409 (1984). After a second penalty hearing, Mazzan again received the death penalty, and this court affirmed that sentence on the second appeal. Mazzan v. State (Mazzan II), 103 Nev. 69, 733 P.2d 850 (1987). Mazzan petitioned for post-conviction relief, the petition was denied, and this court affirmed the denial. Mazzan v. State (Mazzan III), 105 Nev. 745, 783 P.2d 430 (1989). Mazzan next petitioned for post-conviction habeas relief. After the First Judicial District Court summarily denied the petition, Mazzan appealed, and this court remanded the matter for reconsideration. After being transferred to Ely State Prison, Mazzan moved for a change of venue to the Seventh Judicial District Court. The district court denied the motion; this court dismissed Mazzan's interlocutory appeal of the denial without reaching the merits. Mazzan v. State (Mazzan IV), 109 Nev. 1067, 863 P.2d 1035 (1993). The district court then dismissed the habeas petition as procedurally barred. This court affirmed. Mazzan v. State (Mazzan V), 112 Nev. 838, 921 P.2d 920 (1996). Mazzan petitioned for rehearing, asserting that he had discovered that the state had withheld exculpatory police reports from him before his trial. This court denied rehearing, concluding that his remedy was to file another KDEHDVSHWLWLRQLQ

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Ð116 Nev. 48, 52 (2000) Mazzan v. WardenÐ Ð habeas petition in the district court. Mazzan v. State, Docket No. 26985 (Order Denying Rehearing, November 8, 1996). Mazzan did so. After an evidentiary hearing, the district court entered an order denying the habeas petition. The court concluded that although the police reports were material and exculpatory and were probably not provided to Mazzan, prosecutors had orally communicated to his defense counsel any information required by Brady v. Maryland, 373 U.S. 83 (1963). The court's order did not address other claims Mazzan had raised in his petition.

Mazzan appeals. FACTS Facts disclosed at earlier proceedings Mazzan testified at trial to the following. He moved to Reno in April 1978 and worked as a hairdresser while his wife worked in Las Vegas as a dancer. Mazzan and his friends used marijuana and cocaine, and he obtained cocaine from April Barber, a prostitute at Mustang Ranch. He became friends with Barber's boyfriend, Richard Minor, who supplied him with marijuana. Mazzan spent the evening of Wednesday, December 20, 1978, at Minor's residence. The two smoked marijuana, snorted cocaine, and taped albums. Sometime in the early morning, Mazzan tried to leave, but his car would not start. Minor let him spend the night, and he bedded down behind Minor's couch and slept. Mazzan awoke to the sound of a scuffle in the kitchen and saw Minor struggling with someone. The person left through the door, and Mazzan heard two people running and then a car driving away. Minor had blood all over him. Mazzan was confused and shocked; he stepped out the door, could not see anything, and went back inside. Minor was leaning against the wall and then collapsed and died. Mazzan left and did not report the crime because he was afraid that he would be implicated in the drug use and might be in danger from the perpetrators of the crime if they found out he knew anything. He was sure Minor was already dead, and he expected that Minor's younger brother would arrive that morning and discover Minor. When Mazzan returned home, he cleaned his shoes and washed his hands. He had his clothes laundered. When police later questioned him, he told them he had thrown away a pair of running shoes about a month earlier. The state provided evidence that that same type of running shoe had a pattern resembling bloody footprints in the kitchen at the crime scene. Minor's father, a justice of the peace, discovered his son's body on Friday, December 22, 1978, the day after the killing. On Wednesday he had gone to his son's residence. Mazzan was present, and Minor had introduced him as “my friend Jack.” (Mazzan ZDVFDOOHGERWK-RKQDQG-DFN

Ð116 Nev. 48, 53 (2000) Mazzan v. WardenÐ Ð was called both John and Jack.) Minor's younger brother also saw Mazzan at the residence Wednesday evening. He had met Mazzan a few times before, and Minor and Mazzan appeared to be friends. A little past midnight that same night, John Sullivan saw Mazzan at Minor's. Sullivan bought a quarter ounce of Hawaiian marijuana from Minor for $65.00 and left. Jim Shallman, a friend of Minor's, testified that Minor had traveled to Hawaii, evidently not long before his death, and returned with about two pounds of marijuana. Shallman saw Minor with $6,000.00 in cash in mid-October 1978. He had seen Mazzan with Minor a few times, and the two appeared to be friends. At the crime scene, investigators found a blanket with several cuts in it and blood on it. The residence was small, a converted garage. An investigator theorized that Minor was first attacked with a knife while lying on the couch with the blanket over him and that he then went into the kitchen toward the door and refrigerator. Minor was found on the floor near the couch. Prints left in blood by a kind of sports shoe were found on the kitchen floor and the blanket; only one print was distinct. No identifiable fingerprints were found. Most of the blood was found in the kitchen and where the body was lying. A smear of blood was later found on the inside of the driver's side window of Mazzan's car. Minor was stabbed fifteen times, including in the heart and lungs. There was no sign of forced entry to the residence. The prosecution theorized that he was killed for his money and drugs. However, other than the $65.00 received by Minor that night, there was no clear evidence of how much money or drugs Minor had the night he was killed. Two days after the murder, Mazzan flew to Las Vegas to see his wife for the holidays. Las Vegas police contacted him, informed him he was a suspect in Minor's killing, and told him he should contact the police in Reno when he returned there. He volunteered no information about Minor's death. Mazzan returned to Reno on December 26, 1978, and went to the police station the next morning around 11:30 a.m. He was questioned for about twelve hours and then arrested for murder. Mazzan first told the police

that on the night in question, he had left Minor's place around midnight and did not see the murder. When told that blood had been found in his vehicle, Mazzan admitted that he had been present when Minor was killed. The police checked and found no apparent bruises on Mazzan. (Minor had been about six feet four inches tall and weighed about two hundred fifteen pounds.) Over the next few days, the police obtained a number of statements from Mazzan that showed some discrepancies, e.g., in regard to the position that he left Minor in, WKHVKRHV

ZKLFKKHKDGZRUQDW0LQRU VUHVLGHQFHDQGZKDWKHKDGGRQHLPPHGLDWHO\DIWHUKHOHIW WKHUH Ð116 Nev. 48, 54 (2000) Mazzan v. WardenÐ Ð the shoes which he had worn at Minor's residence, and what he had done immediately after he left there. Mazzan's trial counsel, Larry McNabney, later stipulated to the voluntariness of these statements. On January 3, 1979, a week after Mazzan's arrest, a garbage worker found a bloody coat belonging to Mazzan and a purse and bloody clothes belonging to April Barber, Minor's girlfriend, in a trash can not far from Mazzan's home. A key to a lock at Minor's residence was in Barber's purse. Barber had been missing for about a month. The evidence showed that these items were placed in the trash after Mazzan had been arrested and incarcerated. On February 13, 1979, the state filed an amended information alleging that Mazzan either murdered Minor or aided and abetted in his murder. During trial, as the state prepared to rest, District Attorney Cal Dunlap moved to block any inquiry by the defense into either the police investigation of Minor's drug connections or a statement by Minor's sister. The sister had informed police that Minor had told her not long before his death that he was in danger due to his drug dealings. Dunlap argued that it was all inadmissible hearsay evidence. McNabney countered that the defense case depended on showing that after Mazzan was in custody, the police went to Ohio, Indiana, and Hawaii and continued their investigation. The defense theory was that Minor was involved with drug traffickers who murdered him and left Mazzan “holding the bag. And, if we can't get into that, we might as well end the whole trial right here.” The district court asked where Minor's sister was. McNabney said, “I don't know; I didn't even know about this sister's statement until I saw it in the police report today. I don't know where she is. That's the first I ever knew of it.” The court considered the sister's statement admissible but concluded that “the fact that the police were following leads around the country” was not relevant. As a result, McNabney was not able to elicit any evidence other than that the police had investigated in the Midwest after Mazzan was in custody. After the court's ruling, the state called Minor's sister, Cynthia Shelley, to testify. About two weeks before his death, Minor told her and her husband “that he was afraid, that he had been involved in some sort of dealing, and he wanted to get out, and he was afraid.” On cross-examination, McNabney asked Shelley who her husband was and where he was. She told him, “He is outside the door.” The state then called the husband, who testified that Minor “was concerned that his involvement with drugs had brought him to the point where he was in trouble with the police.”

Ð116 Nev. 48, 55 (2000) Mazzan v. WardenÐ Ð The state then rested. Mazzan testified in his own defense, as discussed above, and called several character witnesses who testified to his nonviolent nature. In closing argument, Dunlap dismissed the defense's suggestion that Minor was killed over some drug deal, telling the jury several times that police had uncovered no evidence of such a possibility. The jury found Mazzan guilty of first-degree murder and sentenced him to death. McNabney filed a notice of appeal and withdrew as Mazzan's counsel. The district court appointed the Washoe County Public Defender (WCPD) to represent Mazzan on appeal. In March 1981, about a year and a half after the verdict, Mazzan's new counsel, Patrick Flanagan, moved the district court for acquittal, on the basis of insufficient evidence, or for a new trial, based on newly discovered evidence that April Barber had been murdered. Barber's skeletal remains were found in November 1979 and indicated that, like Minor, she had been stabbed to death. Flanagan argued that Barber and Minor were murdered

by the same persons, that Mazzan could not have murdered Barber, and thus that Mazzan had not murdered Minor. In April 1981, Flanagan moved to inspect and copy any records the state had of Minor's drug dealings. At a hearing on the motion in May 1981, Flanagan argued that the identity of Minor's drug contacts was critical to determining who murdered Minor and Barber. Dunlap opposed the motion. He asserted that the matter of Minor's drug dealings “was thoroughly litigated and argued to the jury.” He also asserted that the evidence regarding Minor's drug dealings contained nothing exculpatory. Dunlap told the district court that ordinarily he would not object to discovery of the material; however, if Mazzan's appeal in this case was successful, he intended to charge Mazzan with Barber's murder and therefore did not want to allow “a fishing expedition” through his files. Pursuant to the district court's request, Dunlap said that he would provide his entire file to the court for in camera review. In March 1982, at the start of the hearing on Mazzan's motions for acquittal or a new trial, the district court announced that it had considered a series of police reports provided by Dunlap and found nothing exculpatory. During the hearing on Mazzan's motions, Reno Police Department Detective Teglia testified. Flanagan asked Teglia if during his Midwest investigation he had developed any suspects that might have been involved in Minor's murder. Teglia replied, “No.” The court denied the motions. The court stated that although it had thought Mazzan was innocent, it did not feel the evidence justified advising the jury to acquit. It concluded that the new evidence of Barber's remains did not exculpate Mazzan.

Ð116 Nev. 48, 56 (2000) Mazzan v. WardenÐ Ð On appeal, this court affirmed Mazzan's conviction; however, it reversed the sentence because of ineffective assistance of counsel at the penalty hearing. Mazzan I, 100 Nev. 74, 675 P.2d 409. The second penalty hearing occurred in February 1985. McNabney again represented Mazzan. The jury returned a verdict of death, finding the murder occurred in the course of burglary and robbery. McNabney filed a notice of appeal and a motion to withdraw as counsel. The district court again appointed the WCPD to represent Mazzan on appeal. This court affirmed the death sentence. Mazzan II, 103 Nev. 69, 733 P.2d 850. Mazzan filed a petition for post-conviction relief in May 1987. In December 1987, the district court dismissed it, and on appeal, this court affirmed. Mazzan III, 105 Nev. 745, 783 P.2d 430. In June 1988, Mazzan filed for post-conviction habeas relief. After the district court summarily denied relief, this court remanded to allow Mazzan an opportunity to show cause for his failure to raise his claims earlier. In February 1995, the district court again denied the petition. This court affirmed in 1996. Mazzan V, 112 Nev. 838, 921 P.2d 920. Mazzan petitioned for rehearing, asserting that he had discovered that the state had withheld exculpatory information from him before his trial. In denying rehearing, this court stated: If appellant's allegations are true, then it appears that appellant is entitled to a new trial. Appellant's allegations require factual determinations which are best addressed in the district court. If true, appellant's claim that the state withheld exculpatory police reports demonstrates good cause and prejudice to excuse a procedural bar to the filing of a new petition for a writ of habeas corpus. We conclude that appellant's remedy is to now file a petition for a writ of habeas corpus in the Second Judicial District Court. Mazzan v. State, Docket No. 26985 (Order Denying Rehearing, November 8, 1996) (citations omitted). Facts disclosed after the filing of the instant petition Mazzan filed his instant petition seeking habeas relief in the district court in November 1996 and a supplement to his petition in May 1997. Mazzan's primary claim, briefly put, was the following. Upon receiving the police file on his case in 1996, he discovered that after Minor was murdered, police investigators uncovered information that Minor had been dealing drugs with Harry Douglas Warmbier and Mark Siffin. Minor had grown up with Warmbier in the Midwest. Warmbier and Siffin did extensive drug trafficking and were under investigation by the Drug Enforcement Agency (DEA) at the time. Warmbier was enrolled DW ,QGLDQD

8QLYHUVLW\EXWKDGDFWXDOO\KLUHGDQDVVRFLDWH5REHUW&DUPLFKDHOWRLPSHUVRQDWHKLPDQG DWWHQGFODVVHVIRUKLP Ð116 Nev. 48, 57 (2000) Mazzan v. WardenÐ Ð at Indiana University but had actually hired an associate, Robert Carmichael, to impersonate him and attend classes for him. There was evidence that Warmbier and Siffin might have been in Reno at the time of Minor's murder. Through his attorney, Warmbier claimed to have an alibi and refused to be interviewed by Reno detectives. Siffin could not be contacted at all because he had dropped out of sight since the time of Minor's murder. Mills Lane, the initial prosecutor in this case, asked Warmbier's attorney to send documentation to back up the alibi. The documents sent in response were of questionable reliability, including unsworn statements by Warmbier's girlfriend, Dorothy Nyland, and by Carmichael's girlfriend. Carmichael not only impersonated Warmbier at college but was linked to Warmbier's drug activities. The following sets forth in more detail the information which the prosecution possessed. Reno Police Detectives Teglia and Penegor were the lead investigators in the Minor homicide. A report by Penegor in January 1979 included the following information. Three days after the murder, Penegor telephoned Nola Minor, the victim's mother, in Ohio. She stated that Minor had called her on November 26, 1978 (about four weeks before his murder), from San Francisco. He told her that he was with two other people, apparently Doug Warmbier and a Mark whose last name she did not know. She knew that “Doug and Mark had come to Reno,” and the three had driven to San Francisco in Minor's van. The report noted, “Mark could be a Mark Siffin.” Nola Minor also received a call from Minor on December 2, 1978. He was in Hawaii, apparently with Warmbier and Mark. On December 8, 1978, she called and spoke to her son in Reno. According to the report, he told her that after he returned to Reno, April Barber had left him and was not at the residence. He was concerned because she had a car and a door key to his residence. Upon returning to the residence he found a burnt $20 bill that April had left for him, unknown what significance this was at this time. Nola Minor later learned from Tim Beck, a friend of her son's and Warmbier's, that Warmbier was supposed to be in the Reno area on December 20 or 21, 1978, to contact her son. (The murder occurred early in the morning on Thursday, December 21, 1978.) Warmbier was enrolled at Indiana University (IU). Reno police asked IU police to contact Warmbier and received an IU police officer's report with the following information. On January 18, 1979, the officer tried to interview Warmbier and discovered that a person was impersonating Warmbier. The person identified himVHOI

DV5REHUW&DUPLFKDHODGPLWWHGWKDWKHZDVSDLGWRDWWHQGFODVVHVIRU:DUPELHU Ð116 Nev. 48, 58 (2000) Mazzan v. WardenÐ Ð self as Robert Carmichael, admitted that he was paid to attend classes for Warmbier, and telephoned Warmbier's attorney, Ira Zinman. The next day the officer met with Zinman, Warmbier, and Nyland, Warmbier's girlfriend. Warmbier admitted that he knew Minor but tried “to give the impression that they were not good friends.” Warmbier stated that he had learned of Minor's death on the morning of December 22, 1978, when Nyland called Minor's residence and police answered. Warmbier also stated that he last visited Reno about three weeks before Christmas, and he and Minor flew from San Francisco to Hawaii. Minor had just broken up with Barber, whom Minor described “as a hooker, prostitute, and extortionist.” Warmbier said that he knew several people named Mark, but only he and Minor had gone to Hawaii. Warmbier said that he was in Bloomington, Indiana, from December 8 until just before Christmas 1978. Police in Reno also obtained DEA investigative reports. One report covered suspected drug smuggling and trafficking in Bloomington, Indiana, in July 1978. Among other things, it noted suspicious activities by Siffin and Carmichael at an airport, carrying items to and from an airplane, and vehicular traffic between Siffin's residence and that of Nyland and Warmbier. Another DEA report stated that “Siffin is suspected of being a

major cocaine trafficker.” Reno Police Detective Captain Ken Pulver spoke to reporters on January 25, 1979. The Nevada State Journal reported that Pulver said drug trafficking was a factor in Minor's murder and he would “send officers to San Francisco, Ohio, Indiana and perhaps Hawaii to interview persons on the unsolved crime.” The Reno Evening Gazette carried a similar article. The next day, prosecutor Mills Lane addressed a letter to Capt. Pulver, stating: [T]he Mazzan case is a tough one at best. We're going to use all the facts and investigation to our best advantage, of course, keeping sound ethics and good police conduct in mind. I do not want any of our investigation or any of the facts that we have develop[e]d released to the press unless the same is discussed with me. The more the defense knows about our case, the more they are going to be able to try and work around it. In Nevada we do not have to give out police reports, and if the press knows what's in those reports it's the same as turning them over to the defense. Reno Police Sergeant Rodney Stock, who was an initial investigator of the murder, submitted a report on February 5, 1979, noting among other things the following. “In the original investigation it was learned that Harry Douglas Warmbier and a man named Mark were coming to Reno someti[me] around the twenty-ILUVWRU

WZHQW\VHFRQGRI'HFHPEHUWRPHHW>0LQRU@DQGSRVVLEO\JRRQWR+DZDLL´ Ð116 Nev. 48, 59 (2000) Mazzan v. WardenÐ Ð first or twenty-second of December to meet [Minor] and possibly go on to Hawaii.” “Mark Siffin apparently went underground sometime prior to the Christmas holidays and has not been seen since according to the Monroe County [Indiana] Sheriff's Department, IU Police, and apparently the DEA Task Force working this particular case.” On February 2, 1979, after Mazzan had been in custody for more than five weeks, an interoffice memo by Det. Teglia stated that investigators had information which indicates that there is a direct connection between Minor's death and certain persons/activities in the Midwest. Certain of Minor's activities immediately prior to his death have involved people from the Cincinnati and Bloomington, Ind. area. Also, numerous phone calls made by Minor to associates in these two cities and in adjacent areas seem to lend credence to information received from DEA that Minor and his associates were in fact involved in a major narcotics distribution ring. It is believed that Minor's death, and the presumed death of April Barber are directly connected to these narcotics activities. It is also believed that direct contact with the other persons believed to be involved will provide information which will assist in establishing motive, and information vital to the prosecution. About a week later, Dets. Teglia and Penegor traveled to the Midwest to investigate leads there. The detectives interviewed Michele Cameron Abshire in Ohio, who told them that she and Minor had known each other for about seven years and at one time planned on marrying. Minor had worked for Warmbier, transporting marijuana. Minor dealt in only small amounts on consignment. A month or two before his death, Minor told Abshire that he and April Barber, who had money, planned to make cash deals. Once Mark Siffin “had slipped some cocaine on” Minor without his knowing, and Minor “was highly upset because of it.” Abshire heard, apparently from Warmbier, Tim Beck, and Glenn Peterson (a Reno friend of Minor's), that Warmbier and someone else were supposed to meet Minor in Reno on Thursday (the day of the murder), but Minor failed to meet them at the airport; they may have gone to Minor's residence, found his body, and left. Abshire suspected that Barber and Minor were killed because Barber was extorting money from someone. (Barber was missing at the time; her body was discovered later.) Another police report shows that the detectives also contacted Warmbier's attorney, Zinman, in Indiana and asked to interview :DUPELHU

Ð116 Nev. 48, 60 (2000) Mazzan v. WardenÐ Ð Warmbier. Zinman would not allow an interview but suggested a polygraph examination based on questions made up by Zinman. This was unacceptable to the detectives. They telephoned Warmbier, but he refused to be interviewed. Another report summarizes the detectives' interview in Ohio of Tim Beck, Minor's friend since childhood. The day before the murder, Minor telephoned and told Beck that after Minor had returned from Hawaii in early December, he found that Barber was gone from his residence but her clothing and personal belongings were still there. Minor also found a burnt twenty-dollar bill, the significance of which he did not understand. After the murder, Warmbier told Beck that Warmbier flew into Reno early on Thursday, December 21, 1978. Minor failed to pick Warmbier up at the airport so Warmbier took a taxi and arrived at Minor's after police had discovered the body. The report states that Warmbier may have been accompanied by Mark Siffin. It also notes that police did not discover Minor's body until December 22, 1978, not December 21 as Warmbier said to Beck. Also, the time that Warmbier said he arrived in Reno did not correspond to flight schedules from the east, but could correspond to flights out of San Francisco or central California. Meanwhile, investigators in Reno interviewed Glenn Peterson, a friend of Minor's. Peterson said that Minor had talked about his drug connections from “back east” but never mentioned names. Minor intended to meet “the boys from back east” on Thursday, December 21 (the day of the murder) about the purchase of Thai sticks (a potent form of marijuana). Either they would come to Reno, or Minor would go to San Francisco. Minor was close to April Barber, but Peterson had “bad vibes” about her. She had a lot of money and cocaine, and Minor “seemed to change after he met” her and “seemed on edge after she left.” James Shallman, who had worked with Minor, was also interviewed in Reno. Shallman told an investigator that Minor had said he had a big shipment of Thai sticks coming in and that he was leaving Wednesday, Thursday or Friday driving the van, and “this guy” was coming out or already here. This “guy” supposedly knew how to handle Hawaiian agricultural inspections by switching suitcases. Richard Minor had stated that he had been “burned” by this guy but “respected him” and thought that he was an “asshole.” .... [M]ost of the money Richard Minor had belonged to “the guy.” [Shallman] then used the phrase “Mr. Big” stating that this “Mr. Big” had made lots of money traffic[k]ing nar

Ð116 Nev. 48, 61 (2000) Mazzan v. WardenÐ Ð cotics. . . . Minor said cops in Bloomington [Indiana] had come down hard and affected “Mr. Big.” During the fall of 1978, Minor apparently owed this person about $6,000.00 for fronting drugs to him; Shallman did not know if or when Minor had paid the debt. Investigators also learned that Minor had told his sister, Patti Ison, about a debt. Sometime after Minor's death, Ison wrote her father that “[f]ive or six months ago he [Minor] asked me if I could loan him some money, he owed it to someone and had to pay them back.” On February 22, 1979, after returning from the Midwest, Dets. Teglia and Penegor wrote an interoffice memo to their captain. They stated that they had gathered information that Warmbier was in Reno around the time Minor's body was discovered, that Minor was heavily involved in drug trafficking, and that “direct contact with Mr. Warmbier was of extreme importance in resolving this portion of the investigation.” They detailed how Warmbier and his attorney had prevented such contact. Since they “did not have enough information to formally charge Mr. Warmbier as a princip[al] or accessory” in the murder, “this aspect of the investigation could not be pursued any further.” They advised DEA and Indiana investigators of the situation, and one investigator indicated that he would continue to investigate Warmbier and Siffin to try to obtain information useful to the murder investigation. Teglia and Penegor stated that earlier the investigation “had reached a complete

standstill,” but on their Midwest trip “a number of new areas were opened up which are assisting investigators in establishing a more viable case for the prosecution.” The same day that the detectives reported how Warmbier's attorney, Zinman, had “thwarted” their efforts to contact Warmbier, prosecutor Mills Lane wrote Zinman to thank him for “agreeing to furnish us with certain information to alibi your client, Mr. Warmbier.” Two months later, on May 1, 1979, Zinman wrote to Lane and sent him two receipts and two handwritten letters. A letter by Dorothy Nyland stated that she was with Warmbier in Bloomington, Indiana, on “the 20th and 21st” and that she had verified this with shopping receipts. Debra Russell's letter stated that Warmbier had borrowed the car of her roommate, “R. Carmichael,” on December 20 and returned it about 6:30 that evening. It appears that Lane did not know that Nyland was Warmbier's girlfriend or that Robert Carmichael was the person that Warmbier paid to impersonate him at Indiana University. In a letter dated May 4, 1979, Lane told Zinman that defense counsel McNabney “has advised me that he would not contest the fact that your client was in Bloomington if I could provide documentation to that.” Because of the documents provided E\=LQPDQ

Ð116 Nev. 48, 62 (2000) Mazzan v. WardenÐ Ð by Zinman, Lane did not believe that he would need to subpoena anyone regarding Warmbier's alibi. On February 14, 1979, Mazzan's trial counsel, McNabney, had moved for discovery of any material which the state knew or might learn of “which is exculpatory in nature or favorable to the accused or which may lead to exculpatory material.” In March 1979, he moved for discovery of the state's witnesses' statements. Lane opposed the motion, and it was denied. Mazzan was tried and convicted in October 1979. Almost seventeen years later, in July 1996, Michael Hodge, an investigator for the Nevada State Public Defender, subpoenaed the police file in Mazzan's case. The Reno City Attorney's Office eventually approved release of the file, containing 500 to 700 documents, but Hodge was told that he would not receive any confidential reports; to obtain those, he had to contact the District Attorney's Office. Nevertheless, Hodge's inspection of the file uncovered the police reports discussed above, some of them marked confidential. After Mazzan filed his instant petition for habeas relief, he moved the district court to bifurcate the issues raised in the petition, to consider first his claim that he was not provided with exculpatory evidence and, if necessary, to consider his other claims later. The state did not object. During a deposition in May 1997, former police sergeant Stock testified as follows. Stock was a supervisor in the detective division of the Reno Police Department and worked on the investigation of Minor's murder for about three weeks in early 1979. He believed that the investigation had not eliminated all possible suspects. Teglia's and Penegor's investigation of Warmbier and Siffin as suspects in Minor's murder had been frustrated. “I still think to this day that somebody back there [in the Midwest] has withheld information.” Mazzan could have been “in the wrong place at the wrong time.” He also might have been an accessory, but “we may have more people involved in the actual murder.” When the state asked if it was true that “the police department in Reno had a man in custody and simply left it at that,” Stock replied, “Yeah. It's probably true. But then again, it's up to the District Attorney's Office, which the police have no control over.” In a capital case, Stock felt that “you would have to follow up, do everything you could to attempt to find [someone like Warmbier] and interview him or whatever, try and get additional evidence like, say, a plane ticket or passenger list or whatever to verify if he was here or not.” Stock thought the police “did as much as they could under the circumstances. . . . [Y]ou're talking time, manpower, and money.”

Ð116 Nev. 48, 63 (2000) Mazzan v. WardenÐ Ð On May 28 and 30, 1997, the district court held an evidentiary hearing, and a number of witnesses testified. Former detective Teglia testified that Warmbier was initially a suspect in Minor's murder, but eventually the investigation focused solely on Mazzan. Mazzan's counsel asked Teglia if he had “specific evidence that eliminated Mr. Warmbier and Mr. Siffin as suspects,” and Teglia replied, “We had specific lack of evidence that allowed for the possibility of anybody else but Mr. Mazzan being in the residence at the time the homicide

occurred.” Evidence showed that other people were “involved after the fact,” but this was not relevant to who committed the killing. The police never determined whether or not Warmbier or Siffin was in Reno around the time of the murder. Mills Lane, the initial prosecutor, testified. Lane usually did not allow defense attorneys to look at his case file, and if he did not trust an attorney, he gave the attorney nothing more than was required by law. He did not copy reports for defense attorneys; he “would give a synopsis” of any Brady material. Lane remembered talking to McNabney about Warmbier, but McNabney said that he was not going to claim that Warmbier committed the murder. After that, Lane did not consider Warmbier “pertinent.” He saw no nexus between Warmbier and the murder. When asked about the fact that “Warmbier may have been here in Reno on or about the day of the murder,” Lane responded, “On or about doesn't do very much for me. If you say he was in Mr. Minor's house the night he was killed, that would be something different.” Mazzan's counsel showed Lane the alibi documents, and Lane agreed that the two “Dorothy Nyland” signatures (one on a letter and the other on a receipt) slanted in different directions. He also conceded that it would “bother” him if he found out that Warmbier now admitted that he had been in Reno, contrary to the alibi. Lane was not sure if he told McNabney that the DEA was investigating Warmbier and Siffin. Lane did not remember information that Warmbier and a man named Mark were coming to Reno to meet Minor at the time of the murder, but he was satisfied that he would have given such information to McNabney. Cal Dunlap, the trial prosecutor, testified. Dunlap was not sure if he provided McNabney with an open file, and he did not recall giving any specific documents to McNabney. Whether he gave McNabney documents or just spoke with him, he knew that McNabney “knew a lot of that information that's in the [police reports].” McNabney “didn't seem the least bit interested in following up on these because . . . he didn't believe that there was any real substance and any need to pursue these leads.” When asked if he told McNabney that “at least one witness said that 0U:DPELHUZDVLQWRZQRQWKHGD\RIWKHPXUGHU´

Ð116 Nev. 48, 64 (2000) Mazzan v. WardenÐ Ð Mr. Warmbier was in town on the day of the murder,” Dunlap answered that he had no specific recollection, but “[i]f I knew, I probably did.” Dunlap answered similarly regarding whether he shared other specific facts. When Mazzan's post-trial attorney, 1 Patrick Flanagan, specifically requested any written reports on Minor's drug transactions, Dunlap claimed that he refused to provide the documents because he thought that Mazzan was involved in April Barber's murder and defense counsel simply wanted discovery for that case. Dunlap admitted that at trial he had been convinced that other people were involved in Minor's murder. Mazzan's counsel asked Dunlap how he could tell the jury at trial that no evidence supported Mazzan's defense when his file contained such evidence. Dunlap said that he simply based his argument on the record before the jury and that other evidence was not relevant. Mazzan called as witnesses his trial attorney, McNabney; his trial investigator, Richard Terry Gilmartin; his post-trial attorney, Flanagan; his appellate attorney, Jane McKenna; and his postconviction attorney, Don Evans. In representing Mazzan, none had seen any of the police reports at issue. McNabney testified. Before trial, McNabney became aware through the District Attorney's Office that Warmbier was involved in drug trafficking with Minor. [I]t was related to me that there may have been a possibility [Warmbier] was here in Reno . . . on the day of the murder. ... In discussions with the prosecutor at some point in time I was satisfied in my own mind that Douglas Warmbier's alibi was solid and he wasn't in fact in Reno, and I didn't pursue the matter further. McNabney also telephoned Zinman, Warmbier's attorney, regarding the alibi. McNabney did not recall ever being told that one person had placed Warmbier in Reno around the time of the murder. This information would have been helpful to Mazzan's defense, but the representations McNabney received “indicated that [Warmbier] wasn't in fact here, that he had an alibi, and that's all I knew.”

Flanagan testified. He initially represented Mazzan after his conviction and moved for a new trial. In April 1981, he moved to inspect and copy any records the state had of Minor's drug dealLQJV __________ 1

We will refer to Flanagan's role as “post-trial” because it appears that he only represented Mazzan in his motion for a new trial, while Jane McKenna represented Mazzan on direct appeal.

Ð116 Nev. 48, 65 (2000) Mazzan v. WardenÐ Ð ings. Dunlap opposed the motion and asserted that the evidence regarding Minor's drug dealings contained nothing exculpatory. At the hearing, Mazzan also attempted to present evidence he had uncovered after obtaining the police reports. He offered it to show that the reports contained material information which could have led to further exculpatory information. The district court ruled that the evidence was not relevant because it had not been in the possession of the state. Testimony by Michael Hodge and an affidavit by Dean Taylor Brymer were therefore not considered by the court, but were submitted as offers of proof. According to Brymer's affidavit, in December 1978, less than two weeks before the murder, Brymer broke into Minor's residence and stole a large amount of marijuana and $6,000.00 in cash. Hodge, the investigator for the State Public Defender, provided an affidavit and notes. Hodge interviewed Dorothy Nyland in Indiana in April 1997. When shown the alibi letter over her name, Nyland did not remember writing it and did not think the signature was hers. Nyland said that Warmbier had called her from Reno on December 22, 1978, the day that Minor's body was discovered. Hodge also interviewed Warmbier, who was in a hospital after a serious accident. Warmbier “admitted being in Reno on the day of the murder.” He said that he and Minor had worked for Siffin, who had been the “brains and money” behind the drug operation. Minor stole some drugs from Siffin, but Warmbier did not know the quantity; Siffin was capable of killing Minor, but Warmbier “would have killed Siffin if he even thought” Siffin did it. Warmbier did not recall seeing or authorizing the alibi letters. In response, the state submitted an affidavit by its own investigator. That affidavit stated in part that the investigator spoke to Warmbier, that Warmbier said he spoke to someone about Minor's murder while he was heavily medicated and did not recall what he said, and that Warmbier denied being in Reno at the time of the murder. On August 18, 1997, the district court entered an order denying the habeas petition. The court concluded that although the police reports had exculpatory value and were probably not provided to Mazzan, prosecutors had told McNabney orally any information required by Brady. McNabney “was fully apprised of Mr. Warmbier and his alleged activity in Reno” but chose not to pursue a defense involving Warmbier, believing it to be “frivolous.” The court further concluded that any evidence pertaining to Siffin was not Brady material because it did not “sufficiently show that Mr. Siffin was ever in Reno at or near the time of the murder, or that his involvement somehow exculpates Mr. Mazzan.” The court did not rule on any other issues.

Ð116 Nev. 48, 66 (2000) Mazzan v. WardenÐ Ð DISCUSSION The failure to provide appellant with material information favorable to his defense Standard of review and applicable law [Headnote 1] Determining whether the state adequately disclosed information under Brady v. Maryland, 373 U.S. 83 (1963), requires consideration of both factual circumstances and legal issues; thus, this court reviews de novo the district court's decision. See Smith v. Secretary Dept. of Corrections, 50 F.3d 801, 827 (10th Cir. 1995).

[Headnotes 2, 3] Brady and its progeny require a prosecutor to disclose evidence favorable to the defense when that evidence is material either to guilt or to punishment. See Jimenez v. State, 112 Nev. 610, 618-19, 918 P.2d 687, 692 (1996). Failure to do so is a violation of due process regardless of the prosecutor's motive. Id. at 618, 918 P.2d at 692. Where the state fails to provide evidence which the defense did not request or requested generally, it is constitutional error if the omitted evidence creates a reasonable doubt which did not otherwise exist. Id. at 619, 918 P.2d at 692. In other words, evidence is material if there is a reasonable probability that the result would have been different if the evidence had been disclosed. Id. [Headnotes 4-6] This materiality “does not require demonstration by a preponderance” that disclosure of the evidence would have resulted in acquittal. Kyles v. Whitley, 514 U.S. 419, 434 (1995). Nor is it a sufficiency of the evidence test; a defendant need not show that “after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.” Id. at 434-435. A reasonable probability is shown when the nondisclosure undermines confidence in the outcome of the trial. Id. at 434. In Nevada, after a specific request for evidence, a Brady violation is material if there is a reasonable possibility that the omitted evidence would have affected the outcome. Jimenez, 112 Nev. at 619, 918 P.2d at 692; Roberts v. State, 110 Nev. 1121, 1132, 881 P.2d 1, 8 (1994). [Headnotes 7, 8] In determining its materiality, the undisclosed evidence must be considered collectively, not item by item. Kyles, 514 U.S. at 436. “[T]he character of a piece of evidence as favorable will often turn on the context of the existing or potential evidentiary UHFRUG´

Ð116 Nev. 48, 67 (2000) Mazzan v. WardenÐ Ð record.” Id. at 439. The prosecutor is responsible for determining whether evidence is material and should be disclosed. Thus, a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. See Agurs, 427 U.S. at 108 (“[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure”). This is as it should be. Such disclosure will serve to justify trust in the prosecutor as “the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). And it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations. Id. at 439-440. [Headnotes 9, 10] Due process does not require simply the disclosure of “exculpatory” evidence. Evidence also must be disclosed if it provides grounds for the defense to attack the reliability, thoroughness, and good faith of the police investigation, to impeach the credibility of the state's witnesses, or to bolster the defense case against prosecutorial attacks. See id. at 442 n.13, 445-51. Furthermore, “[d]iscovery in a criminal case is not limited to investigative leads or reports that are admissible in evidence.” Jimenez, 112 Nev. at 620, 918 P.2d at 693. Evidence “need not have been independently admissible to have been material.” Carriger v. Stewart, 132 F.3d 463, 481 (9th Cir. 1997), cert. denied, 523 U.S. 1133, 118 S. Ct. 1827 (1998).

[Headnotes 11, 12] In sum, there are three components to a Brady violation: the evidence at issue is favorable to the accused; the evidence was withheld by the state, either intentionally or inadvertently; and prejudice ensued, i.e., the evidence was material. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948 (1999). Mazzan's instant petition for habeas relief is a successive one; therefore, to avoid procedural default under NRS 34.810, Mazzan has the burden of pleading and proving specific facts that demonstrate both good cause for his failure to present his claim in earlier proceedings and actual prejudice. NRS 34.810(3). Cause and prejudice parallel two of the three Brady violation components. If Mazzan proves that the state withheld evidence, that will constitute cause for not presenting his claim earlier. If he proves that the withheld evidence was material under Brady, that will establish actual prejudice. See Strickler, 527 U.S. at 282, 119 S. Ct. at 1949.

Ð116 Nev. 48, 68 (2000) Mazzan v. WardenÐ Ð Analysis [Headnote 13] Mazzan argues that whatever information prosecutors may have provided orally to his counsel before trial was inadequate under Brady. He stresses that only access to the documents themselves would have provided the range and detail of information necessary to fully understand the implications of the police investigation or to dismantle Warmbier's alibi. We conclude that Mazzan is correct and therefore that the record does not support the district court's finding that Mazzan was fully apprised regarding Warmbier. Further, the record and relevant law do not support the court's conclusion that the information regarding Siffin was immaterial. The state's behavior and arguments in this case have not always been consistent. At times, the state has downplayed the importance of the information at issue and has questioned or even denied Mazzan's right to receive it; nevertheless, the state now concedes that the information was material but maintains that it was fully handed over. The most obvious inconsistency is that former D.A. Dunlap maintains 2 that he provided Mazzan's trial counsel, McNabney, with all required Brady information on Minor's drug dealings even though in 1981 he refused to provide the same information to Mazzan's post-trial counsel, Flanagan, asserting that it included nothing exculpatory. Dunlap's testimony suggests that he did not convey the information to McNabney in any detail. First, because he did not consider it exculpatory, he had little reason to give McNabney a thorough accounting of the information. Second, if he had already provided the information in full detail and depth to McNabney, there would have been no reason to oppose giving it to Flanagan. Dunlap's concern that Flanagan wanted to conduct a “fishing expedition” is puzzling since Dunlap alleges that he had already disclosed the information in his files and neither he nor McNabney considered it favorable to the defense. Thus, Dunlap's refusal during post-trial proceedings to disclose the documents to Flanagan strongly suggests that Dunlap did not give McNabney all relevant information before the trial. Mills Lane also believes that he told McNabney everything required by Brady, yet before the trial he rebuked the police captain for providing the press with general information about the investigation because “it's the same as turning [police reports] over to the defense.” This rebuke does not appear consistent with D WKRURXJK

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In this context, the present tense is used to refer to what witnesses said at the 1997 evidentiary hearing on the instant petition.

Ð116 Nev. 48, 69 (2000) Mazzan v. WardenÐ Ð a thorough disclosure by the prosecution of the information in question.

Lane is not sure if he told McNabney that the DEA was investigating Warmbier and Siffin, and he actually considers information that Warmbier was in Reno on the day of the murder of little significance. Dunlap similarly admits that he probably did not consider the information on Warmbier to be Brady material. Given this grudging view as to the materiality of the information regarding Warmbier and Siffin, it is evident that Lane and Dunlap did not provide McNabney with the relevant information in sufficient depth or detail to satisfy Brady. The district court found that the prosecution probably did not provide any documents to the defense. This finding is clearly supported by the record which shows that neither Lane nor Dunlap allowed McNabney to look in their file or provided him with copies of any reports. None of Mazzan's attorneys recalled seeing the documents. As Lane puts it, it was his practice to give defense attorneys a “synopsis” of information he considered relevant. We assume that the prosecutors tried to provide McNabney orally with the information they considered relevant, but it is clear that this effort fell short of satisfying Brady. For example, Lane informed McNabney that he had documents confirming Warmbier's alibi, but McNabney could not have questioned the authenticity of the signatures on two of the alibi documents without seeing them or questioned the reliability of the alibi sources without reviewing the police reports which connected the sources to Warmbier. Lane and Dunlap may have read the police reports and passed on what they considered the gist of those reports, but they could not have imparted a constitutionally adequate picture to McNabney simply because the picture was too subtle and complicated to be sufficiently conveyed in oral discussions. Moreover, it is almost inevitable that as prosecutors they did not peruse the potentially exculpatory information with the same incentive or attention that defense counsel would have brought to it. The United States Supreme Court has never held that the Constitution requires an open file policy by prosecutors. Kyles, 514 U.S. at 437. But providing defense counsel with copies of reports in a case like this would avoid the danger of prosecutors' “tacking too close to the wind,” either consciously or inadvertently, by overlooking not only material facts but material implications and connections between facts. Unfortunately, Lane and Dunlap did not avoid that danger here. The state argues that McNabney knew all about the police investigation of Warmbier and Siffin as shown by McNabney's request at trial to question detectives about their investigation. We conclude, on the contrary, that the trial transcript really shows KRZOLWWOH0F1DEQH\NQHZ

Ð116 Nev. 48, 70 (2000) Mazzan v. WardenÐ Ð how little McNabney knew. First, McNabney's comments reveal no detailed knowledge of the investigation. Second, McNabney actually thought that police had gone to Hawaii to investigate, when they had never gone there. This indicates that his knowledge was based more on newspaper reports, which had said investigators would go to Hawaii, than accurate information supplied by prosecutors. Third, McNabney did not discover until the state's case was nearly complete that a police report contained a statement by Minor's sister that Minor had told her he was afraid because of his drug dealings. It is not clear whether this belated discovery was due to the state's late delivery of the report or McNabney's failure to read the report earlier even though he had it. What is clear, however, is that the prosecution did not inform McNabney that the sister's husband was a potential witness. McNabney was completely unprepared when the state called the husband to the stand, and the husband's testimony largely nullified any benefit to the defense provided by Minor's sister's testimony. Dunlap's closing argument also suggests that prosecutors never fully informed McNabney of the evidence in question. If McNabney had known police investigators posited “a direct connection” between Minor's murder and his Midwest drug activities, it seems unlikely that Dunlap would have repeatedly asserted in closing argument, without apparent fear of contradiction: “There is no evidence [that Minor was killed over some drug deal]. The police were unable to find anything.” 3 McNabney and Mazzan's other former attorneys all testified that they did not see the police reports and were unaware of specifics of the police investigation. For example, it was related to McNabney that “there may have been a possibility” that Warmbier was in Reno at the time, but discussions with the prosecutor satisfied McNabney that Warmbier's alibi was solid. McNabney consistently states that he does not recall ever being told that one person (i.e., Tim Beck) had placed Warmbier in Reno near the time of the murder.

[Headnote 14] Finally, if McNabney knew in any detail the information in the police reports, it is impossible to understand his failure at trial to cite or use it in any way. Dunlap and Lane both say that 0F1DEQH\FRQVLGHUHGWKH

LQIRUPDWLRQXQLPSRUWDQW __________ 3

Mazzan asserts that these and similar remarks made by Dunlap were intentionally false and misleading. Since Mazzan's conviction must be reversed due to Brady violations, we need not decide this issue, but if the issue required resolution, the remarks would certainly warrant scrutiny. Cf. U.S. v. Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993) (it is improper for a prosecutor to question the existence of facts known by the prosecution to exist).

Ð116 Nev. 48, 71 (2000) Mazzan v. WardenÐ Ð McNabney considered the information unimportant, but this cannot be reconciled with McNabney's statement to the trial court that “if we can't get into [the police investigation of Minor's drug connections], we might as well end the whole trial right here.” Moreover, it is unconvincing to assert that a defense counsel would have found the information unimportant: the information was important, as the district court ruled 4 and the state now concedes. It appears that McNabney did not consider the information in the police reports unimportant; rather, he accepted the prosecutors' assessments that those reports were unimportant. Such assessments do not satisfy Brady. See United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) (the state cannot satisfy Brady by informing defense counsel of evidence while telling counsel that the evidence is of no value to the defense). Thus, the record as a whole shows that the prosecution did not provide McNabney with favorable information in the amount or specificity required by Brady. [Headnote 15] The district court also did not apply the proper standard in assessing the materiality of the evidence in question. It considered the evidence in isolated bits and found that many of those bits were not exculpatory. The proper question is whether evidence is “favorable,” and this “will often turn on the context of the existing or potential evidentiary record.” Kyles, 514 U.S. at 439. Undisclosed evidence must be considered collectively, not item by item. Id. at 436. The district court, for example, concluded that the fact that one of Warmbier's alibi witnesses was connected to one of Warmbier's drug associates was not “exculpatory.” That fact, however, is favorable and material information under Brady because, along with other weaknesses in the alibi evidence, it casts doubt on the authenticity of the alibi 5 and supports Mazzan's theory that :DUPELHU LV D YLDEOH VXVSHFW LQ WKH

PXUGHU __________ 4

The district court's ruling in 1982 and its latest ruling were also inconsistent. After an in camera review of the District Attorney's file in 1982, the court found nothing exculpatory which needed to be handed over to the defense. In 1997, the court (the same district judge) found that the documents at issue had material exculpatory value. No explanation for this inconsistency is apparent. 5

As Mazzan asserts and the state effectively concedes, the alibi appears false. None of the alibi documents were sworn statements. Signatures on two documents, purportedly by the same person, Nyland, are clearly dissimilar. Both sources for the alibi were connected to Warmbier: Nyland was his girlfriend, and the other source was apparently the girlfriend of Carmichael, Warmbier's drug associate. Moreover, according to Mazzan's investigator, Nyland does not remember writing her purported alibi letter or recognize the signature on it. The investigator also states that Nyland and Warmbier now admit that Warmbier was in Reno when Minor's body was discovered (consistent with Warmbier's admission to Beck). Thus, the alibi evidence supplied to Lane

by Warmbier's lawyer was, to say the least, vulnerable to challenge.

Ð116 Nev. 48, 72 (2000) Mazzan v. WardenÐ Ð Warmbier is a viable suspect in the murder. It is also further evidence of the insufficiency of the prosecutors' disclosures to McNabney. Despite its dubiousness, Lane accepted the alibi and assured McNabney that it was sound. The district court thus erred in failing to discern that without including specific details and access to the written reports, the prosecutors' oral disclosures were constitutionally inadequate. The district court also concluded that the evidence pertaining to Siffin was not Brady material because it did not “sufficiently show” that Siffin was in Reno near the time of the murder or that Siffin's involvement “exculpated” Mazzan. Again, the court failed to consider all the evidence in context and erroneously required the evidence to be definitively exculpatory to be material. We conclude that the evidence as a whole regarding Siffin was favorable to Mazzan's case. The DEA suspected Siffin, who lived in Bloomington, Indiana, of being “a major cocaine trafficker.” Warmbier told Mazzan's investigator that he and Minor worked for Siffin, who was the “brains and money” behind the operation. The three apparently went to Hawaii together about three weeks before the murder. According to one of Minor's friends, Siffin once “slipped some cocaine on” Minor, which highly upset Minor. Shortly before his death, Minor told another friend that he had a big drug deal pending on Wednesday, Thursday, or Friday (he was killed on Thursday) with a “Mr. Big,” a large narcotics trafficker from Bloomington, Indiana; this person had once “burned” him and was an “asshole”; this person knew how to get drugs through Hawaiian agricultural inspections; most of the money Minor had belonged to this person; and Minor at one time apparently owed this person about $6,000.00. Months before his death, Minor told one of his sisters that he had a debt and needed money; two weeks before his death, he told another sister that he was afraid because of his drug dealings. Around the time of Minor's murder, Siffin “went underground,” and drug investigators had not seen him since. This evidence casts a rather sinister light on Siffin and was therefore favorable to Mazzan's defense and should have been disclosed. Siffin is likely the “Mr. Big” whom Minor was planning to meet around the time of his murder. Relations were not good between the two men: Siffin had manipulated and endangered Minor before, and Minor disliked Siffin as a result. Minor worked for Siffin on consignment and may have owed him a good deal of money at the time of the murder. Mazzan has now uncovered evidence that Minor stole drugs from Siffin. 6 Finally, Siffin droppedRXWRIVLJKWULJKWDWWKHWLPHRIWKHPXUGHU __________ 6

Mazzan's investigator reports that according to Warmbier, Minor stole drugs from Siffin and Siffin was capable of killing Minor. Mazzan also has

Ð116 Nev. 48, 73 (2000) Mazzan v. WardenÐ Ð out of sight right at the time of the murder. This evidence does not establish that Siffin was the murderer, but it was certainly favorable to Mazzan's case. We conclude that it would have: (1) contributed to reasonable doubt as to Mazzan's guilt; (2) provided a basis to challenge the thoroughness of the police investigation; and (3) provided a lead which the defense could have pursued to possibly gain further favorable evidence. [Headnote 16] We have already discussed Dunlap's refusal to turn the police reports over to post-trial counsel Flanagan as evidence that he did not disclose sufficient information to trial counsel McNabney. This post-trial refusal also constitutes a Brady violation in its own right. In its order denying Mazzan's petition, the district court found that the information in the reports was exculpatory but that McNabney had received the necessary portions of it. The court did not consider that the state withheld this same information from Flanagan, nor have the parties

addressed this as a distinct issue. In moving for a new trial in 1981, Flanagan specifically requested any records the state had of Minor's drug dealings. The state refused to provide them, and the district court at that time ruled in favor of the state. The court has now found that the records contained material, exculpatory information—information which the state refused to disclose in 1981. To sum up: the record does not support the district court's finding that the state fully apprised McNabney regarding Warmbier; the court erred in concluding that the information on Siffin was not material and that McNabney had no right to it; and the state also violated Brady when it refused Flanagan's post-trial request for records on Minor's drug dealings. We do not conclude that the prosecutors in this case acted in bad faith. However, the failure to disclose evidence favorable to the defense violates due process “irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87; see also Jimenez, 112 Nev. at 618, 9183GDW

 __________ information that Minor lost $6,000.00 and a large amount of marijuana in a burglary not long before his death. The district court excluded this evidence from the 1997 hearing because the state did not possess or withhold this evidence at trial, and the state argues that this court should not consider it. However, this evidence is relevant to establish the materiality of the evidence which the state did possess. “[T]he character of a piece of evidence as favorable will often turn on the context of the existing or potential evidentiary record.” Kyles, 514 U.S. at 439 (emphasis added). The state must disclose “potentially exculpatory evidence” if it is material; it is up to the defense to deal with “problems concerning the extent to which the evidence [can] be used or expanded upon both before and during trial.” Jimenez, 112 Nev. at 620, 918 P.2d at 693 (emphasis added).

Ð116 Nev. 48, 74 (2000) Mazzan v. WardenÐ Ð P.2d at 692 (the prosecutor's motive for withholding exculpatory evidence is immaterial). [Headnote 17] The final question is whether the withheld evidence was material. When the state fails to disclose evidence which the defense did not request or requested generally, it is constitutional error if the omitted evidence creates a reasonable doubt, i.e., if there is a reasonable probability that the result would have been different if the evidence had been disclosed. Jimenez, 112 Nev. at 619, 918 P.2d at 692. A reasonable probability is shown when the nondisclosure undermines confidence in the outcome of the trial. Kyles, 514 U.S. at 434. After a specific request for evidence, a Brady violation is material if there is a reasonable possibility that the undisclosed evidence would have affected the outcome. Jimenez, 112 Nev. at 619, 918 P.2d at 692. Though McNabney made only a general discovery request before trial, he also tried to examine witnesses in regard to the police investigation but was thwarted by the state's objection. 7 Thus, he made “the functional equivalent of a specific request for the information from the state.” See id. at 619, 918 P.2d at 692-93. And Flanagan specifically requested the withheld information. Therefore, the standard is whether there was a reasonable possibility of a different result. We conclude that even under the reasonable probability standard the withheld evidence was material. There was sufficient evidence to convict Mazzan, but it was not overwhelming. Mazzan certainly had the opportunity to murder Minor, and he initially lied about being present when the murder occurred, but there was never a satisfying explanation of Mazzan's motive, and he had no violent background. The state said the motive was robbery, but the quantity of drugs and money Minor had when he was killed was never clearly established, and the state's closing argument conceded that motive presented some difficulty. The state depicted Mazzan as a calculating murderer who took careful actions, like changing his coat and shoes, to conceal his identity, but it was hardly careful for Mazzan to commit the murder when he knew that three people would be able to place him with the victim at the scene of the crime shortly before the PXUGHU __________

7

When McNabney sought to cross-examine the police witnesses on their investigation, the state objected that such evidence was irrelevant hearsay, and the district court agreed and excluded the evidence. This was error because it is a permissible defense tactic to attack the reliability, thoroughness, and good faith of a police investigation. See Kyles, 514 U.S. at 442 n.13, 445-51. Evidence “need not have been independently admissible to have been material. Evidence is material if it might have been used to impeach a government witness . . . .” Carriger, 132 F.3d at 481.

Ð116 Nev. 48, 75 (2000) Mazzan v. WardenÐ Ð murder. The evidence in the police reports provided support for Mazzan's defense that someone else murdered Minor because of his drug dealing. It also provided a basis to impeach the thoroughness of the state's investigation of the crime. We conclude that the evidence was material and the failure to disclose it undermines confidence in the outcome of the trial. 8 Other claims Mazzan contends that he received ineffective assistance of counsel from his trial counsel. We need not decide this issue because of our conclusion that the violation of Brady requires reversal. [Headnotes 18, 19] Mazzan also lists six other claims which he raised in his petition and which the district court did not address: other instances of ineffective assistance of counsel; destruction of material evidence by the state; conflict-laden counsel; questioning by the state while Mazzan was held without a probable cause hearing; an unconstitutional instruction on reasonable doubt; and improper sentencing instructions. He does not cite the record regarding these claims, does not discuss their merits, and does not address whether they are procedurally barred. Contentions unsupported by specific argument or authority should be summarily rejected on appeal. See Jones v. State, 113 Nev. 454, 468, 937 P.2d 55, 64 (1997); Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). We therefore have not considered these claims. __________ 8

In its statement of facts, the state asserts: “Ultimately, Warmbier and Siffin were eliminated as suspects in this case, primarily based on the efforts of the DEA.” The state cites Det. Teglia's testimony at the evidentiary hearing in 1997 to support this assertion, but nothing in Teglia's testimony or elsewhere in the record supports this assertion. Although Mazzan's counsel asked Teglia repeatedly if police ever specifically eliminated Warmbier and Siffin as suspects in this case, Teglia never answered with a simple affirmative; in Teglia's view, the evidence against Mazzan “eliminated” other suspects. The record supports Sgt. Stock's view that Teglia and Penegor were frustrated in their Midwest investigation and never eliminated all other possible suspects in this case. After returning from the Midwest in February 1979, Dets. Teglia and Penegor reported that before their trip, the investigation “had reached a complete standstill,” but now they had “new areas . . . establishing a more viable case for the prosecution.” They had even asked authorities in the Midwest to help continue the investigation. At the time of that report, Mazzan had already been in custody for almost two months, and the record does not reflect any significant developments in the evidence against Mazzan after the report. It is clear that at the conclusion of their Midwest investigation, contrary to their later statements, Teglia and Penegor believed their efforts had been productive and they did not consider Mazzan to be their only suspect.

Ð116 Nev. 48, 76 (2000) Mazzan v. WardenÐ Ð Remand to the same district judge

[Headnote 20] Mazzan claims that his case must be remanded to a judge other than District Judge Breen because Judge Breen was “indifferent” to Mazzan's claims in the instant petition and does not respect the federal constitution. Mazzan cites the trial transcript from another appeal decided by this court, quoting comments made by the prosecutor in that case which were critical of the constitutional rights provided to criminal defendants. See Middleton v. State, 114 Nev. 1089, 1101, 1112 n.6, 968 P.2d 296, 305, 312 n.6 (1998), cert. denied, 528 U.S. 927 (1999). These comments were made in Judge Breen's court, and Mazzan claims that Judge Breen did not respond to them and thus in effect adopted them. We conclude that this claim lacks any merit. We are confident that if any further proceedings are necessary in this case, Judge Breen will conduct them in a competent, impartial manner. Determining whether retrial is permissible Because his conviction resulted after the state withheld exculpatory evidence and he has been on death row for almost twenty years, Mazzan asks this court to vacate his conviction with prejudice to the state's right to retry him. He says it would be unfair to require him to defend himself with stale evidence. We decline to make that determination and remand this case to the district court. On remand, if the state chooses to pursue the murder charge, Mazzan may raise this claim in district court by the appropriate motion. CONCLUSION The record shows that Mazzan's counsel never received full disclosure of material evidence favorable to the defense. This violated Mazzan's due process rights. Mazzan has demonstrated cause for not raising this claim before and prejudice. We therefore reverse the judgment of conviction and remand for further proceedings consistent with this opinion. 9 Maupin, J., with whom Young, J., agrees, concurring: I agree that Mazzan is entitled to a new trial. The information obtained following his conviction and recapitulated by the majority comprises a body of circumstantial evidence, which undermines the original outcome below. Thus, a jury should hear this HYLGHQFHLQWKHLQWHUHVWRIMXVWLFH __________ 9

The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from the decision of this matter.

Ð116 Nev. 48, 77 (2000) Mazzan v. WardenÐ Ð evidence in the interest of justice. However, to the extent that the police and members of the Washoe County District Attorney's Office stand accused of misconduct by Mazzan, separate comment is warranted. In the light of a retrospective analysis, the newly disclosed evidence does carry a certain persuasive force. This notwithstanding, we should remember that the investigators and the prosecutors were presented with a substantial body of highly probative evidence tying Mazzan to the murder of Richard Minor. Mazzan was present at the scene of the murder at the time of its occurrence. There were no signs of forced entry by other interlopers at Minor's residence. Mazzan was covered in Minor's blood immediately after Minor's homicide. Bloody shoe prints consistent with a pair of shoes Mazzan had been wearing were found at the crime scene. Blood was found in Mazzan's vehicle after he fled without alerting the authorities. Mazzan failed to provide any information about the incident when contacted by Las Vegas police. Mazzan also lied about the events during his initial interaction with investigators in Reno. Finally, it was only after police confronted him with physical evidence incriminating him that Mazzan ultimately admitted to his presence at the crime scene. The evidence that Mazzan claims exonerates him will only raise inferences that may or may not sufficiently undermine the considerably damning evidence against him. The prosecutors and investigators looking at the case prospectively could reasonably have determined that the evidence in support of Mazzan's theory was not

convincing. It was not misconduct for the police and the prosecutors to subjectively conclude that the actual perpetrator was in custody and properly charged. Likewise, it was not misconduct under the then existing procedures for the prosecutors to make tactical decisions based upon their interpretation of the quality of information available, their interactions with the police and their interactions with defense counsel. Certainly, the provision of a summary of exculpatory information to defense counsel and the statement by that counsel that he would not be contending that one of the other suspects had committed the murder was sufficient for the prosecutor to have concluded that further “Brady” disclosures were unnecessary. Finally, a theory that other persons may have been involved does not, of itself, exonerate a defendant who ultimately admitted his presence during the commission of the murder. Many of the decisions by these prosecutors, while arguably subject to some criticism in hindsight, were most likely born of a true EHOLHILQWKHYDOLGLW\RIWKHRULJLQDOFKDUJHV

Ð116 Nev. 48, 78 (2000) Mazzan v. WardenÐ Ð belief in the validity of the original charges. Thus, the remand for another trial rather than a vacation of the charges is appropriate. ____________

Ð116 Nev. 78, 78 (2000) State v. JohnsonÐ Ð Ð THE STATE OF NEVADA, Appellant, v. JESSIE JOHNSON and LASHAWN JOHNSON, Respondents. No. 31368 January 27, 2000

993 P.2d 44

Appeal from an order of the district court granting respondents' motion to suppress. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge. Accused moved to suppress evidence obtained as result of search of his vehicle during stop for traffic violation. The district court granted motion. State appealed. The supreme court, Leavitt, J., held that accused's general consent to search his vehicle did not include consent to dismantle vehicle. Affirmed. [Rehearing denied March 1, 2000] Shearing, J., with whom Young and Maupin, JJ., joined, dissented. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and Gerald J. Gardner, Deputy District Attorney, Clark County, for Appellant. John M. Turco, Las Vegas, for Respondent Jessie Johnson. Morgan D. Harris, Public Defender, and Daren B. Richards and Elizabeth M. Quillin, Deputy Public Defenders, Clark County, for Respondent Lashawn Johnson. 1. Criminal Law. Findings of fact in a suppression hearing will not be disturbed on appeal if supported by substantial evidence. 2. Criminal Law.

District court's findings of fact in a suppression hearing are reviewed under a deferential standard. 3. Searches and Seizures. A waiver and consent, freely and intelligently given, converts a search and seizure which otherwise would be unlawful into a lawful search and seizure. U.S. Const. amend. 4. 4. Searches and Seizures. The voluntariness of a consent to search must be proved by the state by clear and convincing evidence. U.S. Const. amend. 4.

Ð116 Nev. 78, 79 (2000) State v. JohnsonÐ Ð 5. Searches and Seizures. In determining voluntariness of consent to search, court must distinguish between the peaceful submission by the arrested suspect to the authority of a law enforcement officer from an intelligent and intentional waiver of a constitutional right. U.S. Const. amend. 4. 6. Searches and Seizures. Whether an apparent consent to search without a warrant was voluntarily given is a question of fact. U.S. Const. amend. 4. 7. Searches and Seizures. Any search must be limited to the terms of the consent, and whether the scope of consent has been exceeded is a factual question to be determined by examining the totality of the circumstances. U.S. Const. amend. 4. 8. Searches and Seizures. Accused's consent to search his vehicle did not include consent to officer's removing screws from panel below glove box. Reasonable person in accused's situation would not have understood his general consent to search car for drugs, alcohol, or weapons would authorize officer to dismantle vehicle. U.S. Const. amend. 4.

Before the Court En Banc. OPINION By the Court, Leavitt, J.: Nevada Highway Patrol Trooper Lt. Todd Ellison and an investigator from the Nevada Division of Investigation were riding together on patrol as part of “Desert Hoax,” a multi-agency criminal interdiction operation. Ellison received a call from another investigator from the division that a vehicle had failed to stop at a stop sign at the bottom of the northbound overpass off-ramp of Interstate 15 in Clark County. Ellison was in full uniform and driving a marked Nevada Highway Patrol vehicle. Ellison stopped the 1988 Buick with California plates and approached the driver, respondent Jessie Johnson. Respondent Lashawn Johnson was the sole passenger in the automobile. The trooper asked Jessie for his driver's license, registration and insurance. He ran a check on the license, examined the other documents given to him by respondent Jessie Johnson, and gave him a verbal warning rather than a citation. The trooper asked the purpose of Jessie's trip. He replied that he was going to Montana to do carpentry work with some of his relatives and stated that he had his tools in the trunk and that Ellison could go ahead and look in the trunk to see the tools. Ellison asked Jessie whether he had any guns in the vehicle. Jessie made eye contact with Ellison and stated, “No.” Jessie was asked LIKHKDGDQ\DOFRKRO

Ð116 Nev. 78, 80 (2000) State v. JohnsonÐ Ð if he had any alcohol, and Jessie continued making eye contact and said, “No.” Ellison asked Jessie if he had any drugs in the car. Jessie averted his gaze, looked back to the car, dropped his head, and said, “No, you can go ahead and look.” The trooper also testified that he asked Jessie if he could search the vehicle and Jessie replied, “Yes.” Rosell Owens, a trooper with twenty-one years' experience as an officer and who had conducted thousands of vehicle searches, arrived to conduct the search of the vehicle. He was in full uniform and driving a Nevada Highway Patrol vehicle. He began by searching the trunk where he observed a toolbox and some tools. He searched the backseat area by pulling the backseat out of the car and placing it on the passenger side of the front seat. He then pulled up the carpet in the backseat area.

Owens searched the front seat and the dashboard areas. On the dashboard area just below the glove box, Owens noted that the screws on a panel were not the type of black screws that are normally used in automobiles, but were shiny, non-factory screws. He removed three screws directly below the hinge of the glove box, a panel dropped and Owens recovered three bindles of narcotics. Owens then searched the rest of the car but did not find any other area which would indicate any concealment. The entire search took less than ten minutes. The sole issue before this court is whether the district court erred in determining that the search in this case exceeded the scope of consent and in granting the motion to suppress evidence. 1 The district court granted a motion to suppress the evidence on the grounds that a reasonable person would not have understood his general consent to search a car for drugs, alcohol or weapons would authorize the officer to remove screws and pry a panel from the vehicle. [Headnotes 1, 2] Findings of fact in a suppression hearing will not be disturbed on appeal if supported by substantial evidence. See Rice v. State, __________ 1

For the purposes of resolution of the issues before the court, we assume that Lashawn had a privacy interest sufficient to allow his challenge to the evidence obtained during the search. However, we note that this is a dubious assumption given the evidence in the record. Cf. McKee v. State, 112 Nev. 642, 645, 917 P.2d 940, 942 (1996) (a non-owner driver lacks standing to challenge a vehicle search when the owner of the car is present at the time of the search). Jessie is the registered owner of the searched vehicle. Further, Lashawn's attorney argued at the hearing on the motion to suppress, “Mr. Johnson was a passenger in the vehicle. He was merely present in this vehicle. He has no possessory interest in this vehicle at all.” We question the state's failure to address the issue in response to the district court's expression of concern regarding Lashawn's standing. However, because our resolution of the issue is not necessary to proper resolution of this case, we decline to address it.

Ð116 Nev. 78, 81 (2000) State v. JohnsonÐ Ð 113 Nev. 425, 427, 936 P.2d 319, 320 (1997) (citing Tomarchio v. State, 99 Nev. 572, 575, 665 P.2d 804, 806 (1983)). Further, a district court's findings are reviewed under a deferential standard. See Hayes v. State, 106 Nev. 543, 550 n.1, 797 P.2d 962, 966 n.1 (1990). [Headnotes 3-6] “[A] waiver and consent, freely and intelligently given, converts a search and seizure which otherwise would be unlawful into a lawful search and seizure.” State v. Plas, 80 Nev. 251, 254, 391 P.2d 867, 868 (1964). “[T]he voluntariness of [a] consent must be proved by the [s]tate by clear and convincing evidence.” Lightford v. State, 90 Nev. 136, 139, 520 P.2d 955, 956 (1974). “[A] court must distinguish between the peaceful submission by the arrested suspect to the authority of a law enforcement officer, from an intelligent and intentional waiver of a constitutional right.” Thurlow v. State, 81 Nev. 510, 515, 406 P.2d 918, 921 (1965). “Whether in a particular case an apparent consent to search without a warrant was voluntarily given is a question of fact.” Plas, 80 Nev. at 253, 391 P.2d at 868. [Headnote 7] Any search must be limited to the terms of the consent and “[w]hether the scope of consent has been exceeded is a factual question to be determined by examining the totality of the circumstances.” Canada v. State, 104 Nev. 288, 291, 756 P.2d 552, 553 (1988). “This court is not a fact finding tribunal; that function is best performed by the district court.” Zugel v. Miller, 99 Nev. 100, 659 P.2d 296 (1983). The trial court is much better equipped to resolve the weight and credibility of witnesses. The district court examined the scope of the consent and concluded the consent to search did not include the right to dismantle the car, citing State v. Arroyo-Sotelo, 884 P.2d 901, 905 (Or. Ct. App. 1994). If Jessie did

voluntarily consent to a search, would he have consented to the dismantling of his automobile? Innocent citizens must not be stopped on the pretext of a traffic violation and have their automobiles dismantled when a police officer has nothing more than a “hunch” that contraband may be present. Should we allow law enforcement to treat the Fourth Amendment as an obstacle to overcome rather than recognizing the rights of our citizens to be free from unreasonable searches and seizures? [Headnote 8] There was no clear and convincing evidence Jessie consented to the dismantling of the car or that he voluntarily gave up his constitutional right. Instead, he merely submitted to authority.

Ð116 Nev. 78, 82 (2000) State v. JohnsonÐ Ð There was substantial evidence to support the district court's ruling and we defer to the court's findings. The order of the district court suppressing the evidence obtained during the search is affirmed. Rose, C. J., concurs. Agosti, J., with whom Becker, J., agrees, concurring: I write separately to underscore my opinion that Florida v. Jimeno, 500 U.S. 248 (1991), supports the majority view and is misapplied by the dissent. The rule enunciated in Jimeno requires an inquiry as to whether it is objectively reasonable to construe the consent to search the vehicle in this case to include consent to dismantle the vehicle. See id. at 249. I conclude that no reasonable police officer could expect that by being told that he can “go ahead and look” for drugs and by hearing “yes” in response to the officer's request for permission to search, the officer is entitled to take apart the vehicle. Nor would any reasonable person expect such a search when giving that consent. The facts, holding and dictum of Jimeno apply to the search of closed containers inside a vehicle. In Jimeno, the officer received consent to search a vehicle for narcotics. The officer opened a folded brown paper bag on the vehicle's passenger floorboard and found cocaine inside. The United States Supreme Court concluded from these simple facts that “it was objectively reasonable for the police to conclude that the general consent to search respondent's car included consent to search containers within that car which might bear drugs.” Id. at 251. “A reasonable person may be expected to know that narcotics are generally carried in some form of a container.” Id. In so finding, the Court distinguished Jimeno from State v. Wells, 539 So. 2d 464 (Fla. 1989), aff'd on other grounds, Florida v. Wells, 495 U.S. 1 (1990). 1 Jimeno, 500 U.S. at 251-52. In Wells, the warrantless search of a locked briefcase in a vehicle's trunk was found to be unreasonable despite a consent to search the trunk. The Jimeno Court stated that “[i]t is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag.” Id. at 251-52. If the Jimeno Court believed that breaking open a locked briefcase was unreasonable, LWZRXOGFHUWDLQO\FRQFOXGHWKDWGLVPDQWOLQJWKHVWUXFWXUHRIDYHKLFOHLVDOVR

XQUHDVRQDEOH __________ 1

In Wells, the Florida Supreme Court suppressed the fruits of the search based upon an analysis of the reasonableness of the consent given to the search. Wells v. State, 539 So. 2d at 467-68. The United States Supreme Court affirmed the suppression based upon an inventory search analysis. Florida v. Wells, 495 U.S. at 3-5.

Ð116 Nev. 78, 83 (2000) State v. JohnsonÐ Ð it would certainly conclude that dismantling the structure of a vehicle is also unreasonable.

The dissent concludes that “upon noting previous tampering, . . . [i]t would have been clear to the officer that a part of the vehicle, not ordinarily accessible, had been previously opened and was a compartment which easily could have contained drugs.” This may very well be true, given the officer's training and expertise in crime detection, but it is not the standard set forth in Jimeno. Rather than analyze the vehicle search from the officer's perspective of where contraband may be hidden, we are required to judicially determine “what would the typical reasonable person have understood by the exchange between the officer and the suspect.” Jimeno, 500 U.S. at 251. The dissent would extend the conclusion of Jimeno well beyond folded paper bags, to the very structure of the vehicle itself. In my opinion, this defies the standard of objective reasonableness required by Jimeno and as applied by the district court below. All the cases cited by the dissent involve searches of containers or easily accessed compartments within a vehicle. None stand for the dissent's view that a general consent to search a vehicle includes dismantling the vehicle until the driver explicitly stops the search in progress. To illustrate the point, in United States v. Gutierrez-Mederos, 965 F.2d 800, 803-04 (9th Cir. 1992), cited by the dissent, the circuit court concluded that unlocking a side panel compartment inside the hatchback area of a vehicle did not exceed the scope of the driver's general consent to search for drugs or weapons because the nature of that search was not invasive. The court specifically noted: The record indicates that [the trooper] did not pry open or break into the side panel, but instead used the key. Nor did [trooper] Anderson force the loose cardboard divider apart, but rather pulled it back. Id. at 804. The court obviously noted the significance of the lack of breaking or force in conducting the search. Had the trooper removed screws or otherwise dismantled the side panel compartment in Gutierrez-Mederos, the circuit court may well have concluded that the search exceeded the scope of the driver's general consent. United States v. Garcia, 897 F.2d 1413 (7th Cir. 1990), is also instructive. There, after the occupants consented to a search for drugs or weapons, the trooper's “suspicions were aroused when he noticed the lack of window cranks and door handles on both doors and mismatched and ill-fitting screws that held the interior door panels in place.” Id. at 1416. Upon closer visual inspection, WKHWURRSHUDQGDQRWKHUDJHQW³REVHUYHG

JUH\SDFNDJHVZHGJHGLQVLGHWKHGRRU Ð116 Nev. 78, 84 (2000) State v. JohnsonÐ Ð the trooper and another agent “observed grey packages wedged inside the door.” Id. They removed the driver's side door panel and found marijuana. Id. The circuit court upheld the search on the ground of probable cause, concluding that the “visual observation” of the packages inside the door established probable cause. Id. at 1420. However, before doing so, the court analyzed the search based on the occupants' general consent and stated: [The trooper's] request to search was directly linked to his inquiry regarding the presence of drugs or weapons in the truck. Without more, police can only search areas these items may reasonably be expected to be found. The opening of door panels is not normally included in this set of areas to be searched. Such a search is inherently invasive, and extends beyond the consent under these circumstances. Id. at 1419-20 (emphasis added). Thus, it is clear that the court in Garcia would not have approved dismantling the truck based on consent alone. See also State v. Swanson, 838 P.2d 1340, 1345, 1345 n.5 (Ariz. Ct. App. 1992) (relying on Garcia and Jimeno and concluding that tearing a car apart by removing door panels exceeded the scope of consent to “take a look in the car” for drugs, weapons or large sums of money). I doubt any reasonable citizen would believe he or she was consenting to the kind of search that occurred here based upon the exchange that occurred here. Nor could a reasonable officer expect, based upon the dialog that occurred here, that permission had been given to remove a backseat, pull up carpeting, or remove screws from a panel below a glove box. A reasonable person, contrary to the supposition of the dissent, would not be thinking about all the possible ingenious devices employed for drug concealment by the enterprising drug trafficker much less be consenting to

an officer's investigation of all possible manner of smuggling when that citizen authorizes a search. In the context of this case, the Fourth Amendment's protection from police overreaching is embodied in the requirement of objective reasonableness. The dissent's view would erode in a serious and significant way this important constitutional protection. Shearing, J., with whom Young and Maupin, JJ., join, dissenting: I would reverse the order of the district court suppressing the evidence found in the vehicle registered to Jessie Johnson. The majority assumes that the district court based its decision to suppress the evidence on a finding of fact regarding the scope of the consent in this particular case as required by Canada v. State, 104 Nev. 288, 291, 756 P.2d 552, 553 (1988). The district FRXUWGLGQRWGRVR

Ð116 Nev. 78, 85 (2000) State v. JohnsonÐ Ð court did not do so. In Canada this court said that whether the scope of the consent is exceeded is a question of fact to be determined from the totality of the circumstances in the particular case. Id. In this case the district court made no findings of fact and essentially determined that the scope of consent was exceeded as a matter of law based on the case of State v. Arroyo-Sotelo, 884 P.2d 901 (Or. Ct. App. 1994). The court quoted the legal conclusions in Arroyo-Sotelo extensively when the decision was rendered. The Oregon court in Arroyo-Sotelo stated “[a]bsent specific findings to suggest otherwise, a general consent to search a car does not authorize an officer to search areas of a car that are not designed to be routinely opened and accessed.” Id. at 905. I do not agree that this is the general rule in Nevada or the appropriate standard. Even the Oregon court in Arroyo-Sotelo did not base its conclusion on the general proposition of law, but rather it made findings of fact based on the circumstances of the case. That is what the district court did not do. The United States Supreme Court has stated the standard for measuring the scope of a consent to search is what a reasonable person would have understood to be the scope of the consent. Florida v. Jimeno, 500 U.S. 248, 251 (1991). The Supreme Court stated: The touchstone of the Fourth Amendment is reasonableness. The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. Thus, we have long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so. The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of “objective” reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect? The question before us, then, is whether it is reasonable for the officer to consider a suspect's general consent to a search of his car to include consent to examine a paper bag lying on the floor of the car. We think that it is. (Citations omitted.) Id. Permission to search granted in general terms may be construed as a broad grant of permission to search. See United States v. Gutierrez, 965 F.2d 800, 803-04 (9th Cir. 1992). Although the burden is upon the government to prove the validity of the search, if a suspect intends to limit the scope of his general consent in any manner, the burden is upon him to do so. See United States v. Patterson, 97 F.3d 192, 195 (7th Cir. 1996). However, “ ‘[w]hen an individual gives a general statement of consent withRXWH[SUHVVOLPLWDWLRQVWKH

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Ð116 Nev. 78, 86 (2000) State v. JohnsonÐ Ð out express limitations, the scope of a permissible search is not limitless. Rather it is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass.' ” United States v.

Harris, 928 F.2d 1113, 1117 (11th Cir. 1991) (quoting United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990)). A general consent to search is usually more than a consent to look at what is in plain view in the trunk or glove box. As stated in United States v. Snow, 44 F.3d 133, 135 (2d Cir. 1995): [T]he term “search” implies something more than a superficial examination. It entails “looking through,” “rummaging,” “probing,” “scrutiny,” and “examining internally.” We therefore conclude, based on the plain meaning of this common word, that an individual who consents to a search of his car should reasonably expect that readily-opened, closed containers discovered inside the car will be opened and examined. The concurring justices would appear to confine a consensual search to what is in plain view. Contrary to the assertion in the concurring opinion, I, as a “reasonable citizen,” certainly would expect that my consent to search for drugs would encompass a search into areas that are likely to hide drugs, including under seats, carpets, and non-factory installed panels. The case of State v. Wells, 539 So. 2d 464 (Fla. 1989), aff'd on other grounds, Florida v. Wells, 495 U.S. 1 (1990), is readily distinguishable from the present case. In Wells, the search of a locked briefcase within a trunk was held not to be within the scope of the consent to search the trunk; the consent was given to search the vehicle, not a locked container in the vehicle. Here, Johnson gave consent for a search of the vehicle and opening a panel in that vehicle was not, as a matter of law, beyond the scope of consent. The consent in this case was a general consent without any explicit limitation on the scope. The evidence showed that the officer asked Johnson if he had any drugs, and Johnson stated “No, you can go ahead and look.” Then the officer asked if he could search the vehicle and Johnson said “Yes.” The majority concludes, in effect, that no reasonable police officer would believe that the general consent included consent to examine the underside of the glove box and upon noting previous tampering, to remove screws. I disagree. It would have been clear to the officer that a part of the vehicle, not ordinarily accessible, had been previously opened and was a compartment which easily could have contained drugs. It is not accurate to describe the action of the police officer as “dismantling the vehicle.” Using such a term FDUULHVDFRQQRWDWLRQWKDWIDUPRUHZDVGRQH

WKDQUHPRYLQJWKUHHPLVPDWFKHGQRQIDFWRU\LQVWDOOHGVFUHZV Ð116 Nev. 78, 87 (2000) State v. JohnsonÐ Ð carries a connotation that far more was done than removing three mismatched, non-factory installed screws. The limited intrusion was not excessive, nor was it unreasonable or beyond the scope of the consent. The scope of the consent is a factual question to be determined according to the evidence in each case. See Canada 104 Nev. at 291, 756 P.2d at 553. Not only did Johnson give a general consent to search for drugs, but there was also evidence before the court that Johnson was in a position to observe the search. He stood unconstrained at the front of the patrol car parked directly behind the vehicle being searched. The officer was not only kneeling on the ground to look under the glove box in Johnson's view, but also he passed Johnson when he returned to the patrol car for tools, and again kneeled to reach under the glove box to remove the screws. If Johnson chose not to observe the search, that was his choice. Johnson could have objected at any point that the scope of the consent had been exceeded. If he wished to object to the scope, it was his burden to do so. See Patterson, 97 F.3d at 195. The evidence also indicates that Johnson saw or could have seen the officer remove the back seat and lift the carpets, which the majority contends is beyond the scope of the consent. Evidence showing that a person giving consent failed to object to a continuation of the search supports the position that the search remained within the scope of consent. See United States v. Anderson, 114 F.3d 1059, 1065 (10th Cir. 1997). A majority of the federal circuit courts that have considered the issue have concluded that the failure to object to the scope of a search is a factor to be considered in determining whether police exceeded the scope of the consent to search. 1 Moreover, this court has recognized that a person's conduct in failing to object to a search indicates a waiver of the right not to be subjected to the search. See Lee v. State, 86 Nev. 794, 796-97, 477 P.2d 157, 158 (1970) (“Silence, where there is a duty to speak or act, can amount to intelligent waiver of a constitutional right.”)

Validating the search in this case is in no way an erosion of our Fourth Amendment protection against unreasonable search and seizure. Search based on consent is totally within the control of the one consenting. The consent may be withdrawn at any time. A police officer should be able to rely on the consent, especially ZKHQ

WKHVHDUFKLVEHLQJFRQGXFWHGGLUHFWO\LQIURQWRIWKHRQHFRQVHQWLQJ __________ 1

See United States v. Anderson, 114 F.3d 1059, 1065 (10th Cir. 1997); United States v. McSween, 53 F.3d 684, 688-89 & n.5 (5th Cir. 1995); United States v. Cannon, 29 F.3d 472, 477 (9th Cir. 1994); United States v. Martel-Martines, 988 F.2d 855, 858 (8th Cir. 1993); United States v. Berk, 930 F.2d 1219, 1222-23 (7th Cir. 1991), cert. denied, 502 U.S. 896 (1991); Harris, 928 F.2d at 1117-18 (11th Cir. 1991).

Ð116 Nev. 78, 88 (2000) State v. JohnsonÐ Ð when the search is being conducted directly in front of the one consenting. I would reverse the order of the district court and remand the case for either a new evidentiary hearing or reconsideration of the order based on the appropriate factual findings and the applicable law. ____________

Ð116 Nev. 88, 88 (2000) Diaz v. Dist. Ct.Ð Ð Ð ROSALVA DIAZ; EDUARDO JESUS DIAZ, a Minor By and Through His Guardian ad Litem ROSALVA DIAZ; KATIA GUADALUPE ALCANTARA, a Minor By and Through Her Guardian ad Litem JOSE ANTONIO ZERMENO; ESTEPHANIA ALCANTARA, a Minor By and Through Her Guardian ad Litem JOSE ANTONIO ZERMENO; MARIA ESTRADA; and MICHAEL ANTHONY ESTRADA, a Minor By and Through His Guardian ad Litem VERONICA MOLINA, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE MARK W. GIBBONS, District Judge, Respondents, and GLENN PUIT, Real Party in Interest. No. 32968 January 27, 2000

993 P.2d 50

Original petition for writ of mandamus or prohibition. Petition denied. Automobile accident victims' survivors filed a wrongful death action against the state, the state Highway Patrol, and a towing company which released a towed vehicle to the driver of the second vehicle involved in the accident, who was allegedly intoxicated at the time. During discovery, the survivors moved to compel a news reporter who investigated the traffic accident to answer questions. The district court denied the motion to compel, and the survivors petitioned for a writ of mandamus or prohibition. The supreme court, Leavitt, J., resolving an issue of first impression and overruling Newburn v. Howard Hughes Medical Institute, 95 Nev. 368, 594 P.2d 1146 (1979) and Las Vegas Sun v. District Court, 104 Nev. 508, 761 P.2d 849 (1988), held that the waiver statute does not apply to the privilege created by the news shield statute. Your Legal Power and Herbert L. Michel Jr., Las Vegas, for Petitioners.

Ð116 Nev. 88, 89 (2000) Diaz v. Dist. Ct.Ð Ð

Frankie Sue Del Papa, Attorney General, and Bridget A. Branigan, Deputy Attorney General, Carson City; Alverson Taylor Mortensen Nelson & Sanders and Kurt Anderson, Las Vegas, for Respondents. Lionel Sawyer & Collins and Kevin D. Doty, Las Vegas, for Real Party in Interest. JoNell Thomas, Las Vegas, for Amicus Curiae, Nevada Press Association. 1. Mandamus. Writ of mandamus may be issued to compel the performance of an act that the law requires as a duty resulting from an office, trust or station, or to control an arbitrary or capricious exercise of discretion. 2. Prohibition. Writ of prohibition is the proper remedy to restrain a district court from exercising a judicial function without or in excess of its jurisdiction. 3. Courts. Generally, extraordinary relief is unavailable to review discovery orders. 4. Courts. Consideration of a petition for extraordinary relief may be justified where an important issue of law needs clarification and public policy is served by supreme court's invocation of its original jurisdiction. One such instance is when a writ petition offers supreme court a unique opportunity to define the precise parameters of a privilege conferred by a statute that the court has never interpreted. 5. Appeal and Error. Questions of statutory interpretation are subject to supreme court's independent review. 6. Statutes. Words in a statute should be given their plain meaning unless this violates the spirit of the act. 7. Statutes. No part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided. 8. Statutes. Where a statute is clear on its face, a court may not go beyond the language of the statute in determining the legislature's intent. 9. Witnesses. Waiver statute does not apply to the privilege created by the news shield statute, but rather, is limited to those privileges that center on confidential communications. If the waiver statute applied to the news shield statute, then by publishing confidential information, a reporter would waive the news shield privilege as to that information, a result that would vitiate the plain language of the news shield statute, which protects published information from compelled disclosure; overruling Newburn v. Howard Hughes Medical Institute, 95 Nev. 368, 594 P.2d 1146 (1979); Las Vegas Sun v. District Court, 104 Nev. 508, 761 P.2d 849 (1988). NRS 49.275(1), 49.385(1), (2)(a), (2)(b).

Ð116 Nev. 88, 90 (2000) Diaz v. Dist. Ct.Ð Ð 10. Witnesses. Privileges relating to special relationships can generally be waived by the source of the confidential information. 11. Witnesses. Reporter's privilege does not arise strictly as a result of confidence or a special relationship, but rather, the policy rationale behind the privilege is to enhance the newsgathering process and to foster the free flow of information encouraged by the First Amendment, and thus, the privilege from compelled disclosure belongs to the journalist, not the source, who may be unidentified. U.S. Const. amend. 1; NRS 49.275(1), 49.385(1), (2)(a), (2)(b). 12. Witnesses. Confidential matter is not subject to compelled disclosure pursuant to the waiver statute if it is divulged in the context of another protected relationship or through an interpreter. NRS 49.385(1), (2)(a), (2)(b). 13. Witnesses. While confidentiality may be one important factor in communications between a journalist and the source of information, confidentiality is not the defining factor in the existence of the reporter's privilege, nor does confidentiality play a role in determining whether a reporter has waived the privilege. The news shield statute protects all information, not just confidential information, which is obtained by a reporter in his or her capacity as a journalist and which is intended for dissemination. NRS 49.275(1), 49.385(1), (2)(a), (2)(b). 14. Witnesses. Once a media litigant has invoked the protection of the news shield statute to resist discovery, the defendant may not later rely on the privileged information as a defense. NRS 49.275(1). 15. Witnesses. News shield statute provides no protection for information gathered in capacities other than a journalist's newsgathering and dissemination activities within the journalist's professional capacity. NRS 49.275(1).

16. Witnesses. News shield statute is not limited to confidential sources, but includes any source, covers both published and unpublished information, and includes both the information obtained and the source of the information. NRS 49.275(1).

Before the Court En Banc. OPINION By the Court, Leavitt, J.: This original petition for a writ of mandamus or prohibition challenges an order of the district court that denied petitioners' motion to compel the real party in interest to answer deposition questions. The real party in interest, a news reporter, invoked the protection of Nevada's news shield statute against compelled disclosure of information he obtained while investigating a fatal traffic accident. As we conclude that the news shield statute affords UHSRUWHUVDSULYLOHJHIURPFRPSHOOHGGLVFORVXUHRI

WKHFRQWHQWVRIDSXEOLVKHGDUWLFOH Ð116 Nev. 88, 91 (2000) Diaz v. Dist. Ct.Ð Ð reporters a privilege from compelled disclosure of the contents of a published article, we conclude that extraordinary relief is not warranted; consequently, we deny the petition. FACTS On September 21, 1996, at approximately 1:00 a.m., Nevada Highway Patrol (“NHP”) trooper John Kennedy responded to a dispatch stating that a person was lying in a northbound lane of Interstate 95 at the Summerlin Parkway off-ramp in Las Vegas. Upon arriving at the scene, Trooper Kennedy approached the person, who was identified as Michael Estrada. The record before this court is unclear as to what transpired next. Trooper Kennedy testified during his deposition that he detected the odor of alcohol on Estrada's breath and that Estrada admitted that he had been drinking. The record also reveals from the NHP dispatch transcript that, as Trooper Kennedy was en route to the scene, the NHP dispatcher informed the Las Vegas Metropolitan Police that there was no need for their involvement; the dispatcher stated, “[W]e're there and it's just a broken down vehicle.” Trooper Kennedy later informed the NHP dispatcher that Estrada was the registered owner of the vehicle but that Estrada claimed he had been riding as a passenger in the vehicle. According to the transcript, Trooper Kennedy explained to the dispatcher that “[t]he reason the vehicle is . . . being towed is it stalled in the travel lane and as soon as we get clear here I'll be [transporting Estrada] to his . . . residence.” Trooper Kennedy arranged for Estrada's vehicle, which was parked on the shoulder of the road, to be towed and then drove Estrada home. Later that day, at approximately 12:30 p.m., Estrada, his wife, daughter, and stepson retrieved Estrada's vehicle from the towing company. Estrada drove away in the vehicle, with his stepson as a passenger, while his wife and daughter followed in another vehicle. Shortly thereafter, Estrada and his stepson were involved in a collision with another vehicle. Estrada, his stepson, and all three people in the other vehicle were killed. Petitioners, who are relatives of the five victims of the fatal accident, assert that Estrada was intoxicated at the time of the accident. 1 Following the accident, petitioners filed a wrongful death action against the state, the NHP, and the towing company. During discovery, petitioners deposed Trooper Harney, an NHP public information officer, who had been quoted in articles about the accident that appeared in the Las Vegas Review-Journal. __________ 1

As this matter is a writ petition filed prior to trial of the underlying case, the record before this court is limited; accordingly, allegations of intoxication remain to be determined in the district court.

Ð116 Nev. 88, 92 (2000) Diaz v. Dist. Ct.Ð Ð Specifically, the articles, which were authored by real party in interest Glenn Puit, credit Harney with stating, among other things, that “troopers” questioned Estrada “hours before the fatal pileup for suspicion of drunk driving.” Additionally, Trooper Harney is reported as stating that “troopers could not charge Estrada with drunken driving because Estrada did not have the keys [to the vehicle] in his possession and there were no witnesses who could say he was behind the wheel.” At his deposition, Trooper Harney testified that to the best of his recollection, what he told Puit about the encounter was that the NHP “responded to an abandoned vehicle alongside the roadway; and that there was a gentleman there that was sitting off the roadway; and that we had asked him if he . . . was driving the vehicle; and he stated that a friend was and had left; and . . . that there was no . . . witness to place him behind the wheel of the automobile; and based on that we did not arrest him.” Furthermore, during his deposition, Trooper Harney claimed that he could not remember whether he had made certain statements attributed to him in the articles, so he deferred to the articles. Petitioners later attempted to depose, in an apparent effort to impeach Trooper Kennedy and other law enforcement officers who had given statements inconsistent with those attributed to Trooper Harney in the Review-Journal articles. At his deposition, Puit refused to answer questions by citing the reporter's privilege as conferred by NRS 49.275, Nevada's news shield statute. Subsequently, petitioners filed a motion to compel Puit to answer the questions. Puit, who was joined by the NHP, opposed the motion. The discovery commissioner concluded that both Nevada's news shield statute and the First Amendment-based reporter's privilege required that petitioners' motion to compel be denied. The district court adopted the discovery commissioner's report and recommendations, despite petitioners' objections. Petitioners then filed a motion for reconsideration, which the district court granted. Although the district court found the information sought by petitioners to be probative and relevant as impeachment evidence, it determined that Puit could not be compelled to testify pursuant to Nevada's news shield statute. Accordingly, the district court reaffirmed the discovery commissioner's report and recommendations. Petitioners subsequently filed this original petition for writ of mandamus or prohibition, to which Puit has filed an answer. 2 __________ 2

With regard to the liability of the state and the NHP, petitioners' strategy at trial appears to include arguing that once Trooper Kennedy determined that Estrada was intoxicated, he was required to place Estrada under civil protective custody instead of driving Estrada home. NRS 458.270(1) provides that, generally, “a person who is found in any public place under the influence of

Ð116 Nev. 88, 93 (2000) Diaz v. Dist. Ct.Ð Ð DISCUSSION I. Extraordinary relief [Headnotes 1, 2] A writ of mandamus may be issued to compel the performance of an act that the law requires as a duty resulting from an office, trust or station, or to control an arbitrary or capricious exercise of discretion. See State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983); Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). A writ of prohibition, in turn, is the “proper remedy to restrain a district [court] from exercising a judicial function without or in excess of its jurisdiction.” Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). Either writ will only issue where “there is not a plain, speedy and adequate remedy in the ordinary course of law.” NRS 34.170; NRS 34.330. [Headnotes 3, 4]

Generally, extraordinary relief is unavailable to review discovery orders. See Hetter v. District Court, 110 Nev. 513, 515, 874 P.2d 762, 763 (1994). Thus, we could conclude that petitioners have a plain, speedy and adequate remedy at law that would preclude extraordinary relief, since petitioners may challenge the district court's order in an appeal from an adverse final judgment. See Clark County Liquor v. Clark, 102 Nev. 654, 730 P.2d 443 (1986). Nevertheless, “where an important issue of law needs clarification and public policy is served by this court's invocation of its original jurisdiction, . . . consideration of a petition for extraordinary relief may be justified.” Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998). One such instance is when a writ petition offers this court “a unique opportunity to define the precise parameters of [a] privilege” conferred by a statute that this court has never interpreted. Ashokan v. State, Dep't of Ins., 109 Nev. 662, 667, 856 P.2d 244, 247 (1993). We conclude that this writ petition raises an issue of first impression that implicates a matter of public importance: Whether a journalist waives the protection of the news shield statute with respect to the contents of an article that has been published. Accordingly, today we address this petition. II. Nevada's news shield statute Nevada's news shield statute is one of the most liberal in the country. See Leslye deRoos Rood and Ann K. Grossman, The &DVHIRUD)HGHUDO-RXUQDOLVW V7HVWLPRQLDO6KLHOG6WDWXWH __________ alcohol, in such a condition that he is unable to exercise care for his own health or safety or the health or safety of others, must be placed under civil protective custody by a peace officer.”

Ð116 Nev. 88, 94 (2000) Diaz v. Dist. Ct.Ð Ð Case for a Federal Journalist's Testimonial Shield Statute, 18 Hastings Const. L.Q. 779 (1991) (comparing the protection provided by various state news shield statutes) [hereinafter Testimonial Shield Statute]. The statute confers upon journalists an absolute privilege from disclosure of their sources and information in any proceeding. Specifically, the shield statute provides in pertinent part: No reporter . . . of any newspaper . . . may be required to disclose any published or unpublished information obtained or prepared by such person in such person's professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceedings, trial or investigation: 1. Before any court, grand jury, coroner's inquest, jury or any officer thereof. NRS 49.275(1). In 1971, two years after enacting the first shield law, which preceded NRS 49.275, Nevada's legislature enacted NRS 49.385, which governs waiver of privileges by voluntary disclosure. The waiver statute provides: 1. A person upon whom these rules confer a privilege against disclosure of a confidential matter waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter. 2. This section does not apply if the disclosure is: (a) Itself a privileged communication; or (b) Made to an interpreter employed merely to facilitate communications. NRS 49.385(1) and (2)(a) and (b). [Headnotes 5-8] Questions of statutory interpretation are subject to this court's independent review. See State, Emp. Sec. Dep't v. Holmes, 112 Nev. 275, 283, 914 P.2d 611, 616 (1996). “It is well settled in Nevada that words in a statute should be given their plain meaning unless this violates the spirit of the act.” McKay v. Bd. of Supervisors, 102

Nev. 644, 648, 730 P.2d 438, 441 (1986). “ ‘[N]o part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided.' ” Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) (alteration in original) (quoting Torreyson v. Board of Examiners, 7 Nev. 19, 22 (1871)). Thus, “[w]here a statute is clear on its face, a court may not go EH\RQGWKH

ODQJXDJHRIWKHVWDWXWHLQGHWHUPLQLQJWKHOHJLVODWXUH VLQWHQW´ Ð116 Nev. 88, 95 (2000) Diaz v. Dist. Ct.Ð Ð beyond the language of the statute in determining the legislature's intent.” McKay, 102 Nev. at 648, 730 P.2d at 441. [Headnote 9] Petitioners contend that Puit waived the shield statute's protection by “identifying his sources and quoting the sources directly in his articles.” Petitioners insist that no confidential information is being sought from Puit. Rather, petitioners are allegedly seeking to ascertain whether statements attributed to Trooper Harney in the published news articles were in fact made by him and whether the statements are accurate, since Trooper Harney testified that he cannot recall what he said and deferred to the Puit articles. Petitioners insist that several of the statements in the articles constitute admissions that are directly relevant to the issue of liability against the state and the NHP and that the statements also impeach testimony given by other law enforcement personnel. Puit points out that Nevada's news shield statute protects both published and unpublished information from disclosure. According to Puit, if publication constitutes waiver of the reporter's privilege, then the word “published,” as found in NRS 49.275, would be rendered meaningless. Moreover, Puit maintains that even if the waiver statute could apply to the news shield statute, the “publication of information by a reporter to the public in the course of his professional activities is, itself, a privileged communication[,]” and therefore, an exception to the waiver statute applies. Puit asserts that “[s]ince Nevada's Shield Law applies to ‘published' ‘information' ‘prepared by' a reporter, the law obviously applies to published newspaper articles.” The Nevada Press Association agrees with Puit's position. 3 In its amicus curiae brief, it contends that had the legislature intended that the reporter's privilege apply only to unpublished and confidential information, the legislature would have specifically excluded the word “published” from the statute. This court has previously held that the news shield statute only applies to confidential information and can be waived by voluntary disclosure. Newburn v. Howard Hughes Medical Institute, 95 Nev. 368, 594 P.2d 1146 (1979); accord Las Vegas Sun v. District Court, 104 Nev. 508, 761 P.2d 849 (1988). In Newburn, we considered whether the news shield statute is waived when a news reporter voluntarily discloses information. There, the news reporter, Newburn, met with representatives of Howard Hughes' estate in April 1978, and answered questions with respect to information he had obtained concerning the exisWHQFHRI

+XJKHV ZLOO __________ 3

On April 13, 1999, this court granted the Nevada Press Association's motion for leave to file an amicus curiae brief and directed the clerk of this court to file the brief. See NRAP 29.

Ð116 Nev. 88, 96 (2000) Diaz v. Dist. Ct.Ð Ð tence of Hughes' will. Newburn, 95 Nev. at 370, 594 P.2d at 1147-48. Later, when Newburn appeared for a deposition regarding matters disclosed during the April 1978 meeting, he asserted the reporter's privilege and declined to answer questions. Id., 594 P.2d at 1148. The party taking Newburn's deposition moved for an order to compel discovery. Id. In granting the motion, the district court found that Newburn had waived any claim of privilege by voluntarily disclosing the information at the April 1978 meeting. Id. at 371, 594 P.2d at 1148. Newburn refused to comply with the district court's order and was subsequently found in contempt. Id. at 370, 594 P.2d at 1148.

On appeal, Newburn contended that Nevada's news shield statute was absolute and not subject to waiver under NRS 49.385. Id. at 371, 594 P.2d at 1148. Moreover, Newburn argued that the information he obtained was itself privileged and therefore not subject to the waiver provisions of NRS 49.385 because he was engaged in “investigative reporting” at the time he received it. Id. at 372, 594 P.2d at 1148-49. In rejecting Newburn's contentions and affirming the district court's order, we first determined that “[a]ll privileges recognized by NRS Chapter 49 are explicitly subject to the waiver provisions of NRS 49.385.” Id. at 371, 594 P.2d at 1148. Next, we focused on the confidential character of the information disclosed. Id. at 372, 592 P.2d at 1149. Specifically, this court considered whether the information obtained and disclosed by Newburn was confidential and made the following observation: The privilege against disclosure of a confidential matter is waived by a voluntary disclosure of any significant part. NRS 49.385(1). If the information disclosed by Newburn during the April 6 interview was not of a confidential character, he has no privilege to assert. On the other hand, if it was of a confidential character, it is evident that he did not consider it to have been received in confidence since he voluntarily disclosed that information and must be deemed to have waived any privilege conferred. Id. Accordingly, this court concluded that either no privilege existed because the information was not confidential, or that Newburn waived the reporter's privilege by voluntarily disclosing the information related to Howard Hughes' estate. In his dissent, former Justice Gunderson stated that “the majority opinion incorrectly implies that whenever news personnel relate something they have discovered, in or out of print, a waiver results, thereby subjecting such personnel to interrogation upon ‘related' matters. I am confident our Legislature never intended such a result.” Id. at 374, 594 P.2d at 1150.

Ð116 Nev. 88, 97 (2000) Diaz v. Dist. Ct.Ð Ð Nearly a decade after Newburn, this court again addressed the waiver statute as applied to the news shield statute, this time in the libel context in Las Vegas Sun. In Las Vegas Sun, Milton Schwartz brought a defamation suit against Herman and Brian Greenspun and the Las Vegas Sun for a series of editorials which he claimed defamed him. Las Vegas Sun, 104 Nev. at 510, 761 P.2d at 851. While preparing for trial, Schwartz sought discovery of a wide range of materials relating to the editorials. Id. In response, Herman Greenspun cited Nevada's news shield statute as granting him an absolute privilege from disclosure. Id. Schwartz moved the district court for relief, and the district court ordered discovery of all materials relating to people, organizations or documents mentioned in the editorials. Id. The defendants then filed a petition for a writ of prohibition in this court. After considering the matter, we concluded that “the discovery order [was] too broad and intrude[d] upon the statutory privilege granted by the legislature.” Id. Consequently, we granted the petition. In reviewing the news shield statute's legislative history, we determined that the statute was intended to protect journalists from forced disclosure of their confidential sources. Las Vegas Sun, 104 Nev. at 511, 761 P.2d at 851. More specifically, we stated that “[t]he legislative history behind the current shield law illustrates the legislators' concern with protecting confidentiality during and after the news gathering process. The legislature enacted the first shield law in 1969. It protected news media representatives from forced disclosure of their sources.” Id. Unfortunately, however, this excursion into legislative history bypassed the plain language of the news shield statute; namely, that journalists, when acting as such, are protected from disclosing any information that is gathered or prepared for public dissemination. As the news shield statute's language is plain and unambiguous, no legislative history analysis was warranted. McKay, 102 Nev. at 648, 730 P.2d at 441. This court also iterated that “[t]oday we again hold that a waiver under NRS 49.385 applies to the news gatherers' privilege and describe more definite limitations on the breadth of waiver in matters relating to discovery of information held by news media defendants.” Las Vegas Sun, 104 Nev. at 513, 761 P.2d at 852. In delineating the scope of the waiver statute, we further stated that publication of a source and the source's statements waives the news shield statute's protection to the extent of the publication: we conclude that the disclosure of a source and the attribution of remarks to that source is a clear cut

waiver of the shield privilege as to that name and those statements. When a newspaper or broadcaster names its source and quotes statements made by that source, the underlying purpose of WKHVKLHOGODZ

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Ð116 Nev. 88, 98 (2000) Diaz v. Dist. Ct.Ð Ð the shield law is vitiated and the statutory privilege is waived. There is no claim of confidentiality to be made under these circumstances, as conceded by petitioners at the appeal hearing. [Footnote omitted.] Therefore, during the discovery process, news media litigants can properly be required to admit and document the precise matters disclosed in their publications or broadcasts. Id., 761 P.2d at 852-53 (citations omitted). The Newburn and Las Vegas Sun decisions suggest that confidentiality is a key consideration in determining whether the statutory news shield privilege has been waived. Both opinions fail, however, to recognize the distinction between privileges relating to confidential communications, and the reporter's privilege, in determining whether the waiver statute applies. [Headnote 10] Privileges relating to confidential communications, such as those between attorney and client, between doctor and patient, and between spouses, shield the confidentiality of communications within special relationships and are not designed or intended to assist the fact-finding process or to uphold its integrity. See John W. Strong, McCormick on Evidence, § 72, at 268-269 (4th ed. 1992). These privileges are justified by the public's interest in encouraging socially useful communications and by certain notions of legitimate privacy expectations. See generally Developments in the Law—Privileged Communications, 98 Harv. L. Rev. 1450 (1985) (examining the evolution of evidentiary privileges in American law) [hereinafter Privileged Communications]. Accordingly, confidential communications made between persons in certain special relationships are privileged from compelled disclosure. Nevada's legislature has expressly recognized such privileges. See NRS 49.095 (attorney-client privilege); NRS 49.185 (accountant-client privilege); NRS 49.209 (psychologist-patient privilege); NRS 49.225 (doctor-patient privilege); NRS 49.247 (therapist-patient privilege); NRS 49.252 (social worker-client privilege); NRS 49.295 (spousal privilege). 4 Generally, privileges

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Nevada's legislature also recognizes a medical or dental peer-review privilege as set forth in NRS 49.265. Doctrinally and analytically the peer-review privilege raises distinct concerns from the special relationship privileges cited above. Most notably, unlike the special relationship privileges which protect personal privacy interests that generally affect the great majority of society, the peer-review privilege protects the underlying needs of the institution. See Privileged Communications at 1594. Twice this court has addressed the scope of Nevada's peer-review privilege. See Columbia/HCA Healthcare v. Dist. Court, 113 Nev. 521, 936 P.2d 844 (1997) (holding occurrence reports are not exempt from discovery); Ashokan v. State, Dep't of Ins., 109 Nev. 662, 856 P.2d 244 (1993) (holding records acquired without recourse to discovery

Ð116 Nev. 88, 99 (2000) Diaz v. Dist. Ct.Ð Ð relating to special relationships can be waived by the source of the confidential information, whose identity is usually known. See Carl C. Monk, Evidentiary Privilege for Journalists' Sources: Theory and Statutory Protection, 51 Mo. L. Rev. 1, 49 (1986) (examining the reporter's privilege in state and federal jurisprudence) [hereinafter Evidentiary Privilege].

[Headnote 11] In contrast, the reporter's privilege does not arise strictly as a result of confidence or a special relationship. This privilege arises when a journalist gathers information within his or her professional capacity for the purpose of dissemination. See NRS 49.275. The policy rationale behind this privilege is to enhance the newsgathering process and to foster the free flow of information encouraged by the First Amendment to the U.S. Constitution. See Evidentiary Privilege at 49. Accordingly, the privilege from compelled disclosure belongs to the journalist, not the source, who may be unidentified. The Newburn and Las Vegas Sun courts' misdirected focus on confidentiality is understandable, since the news shield statute's history illustrates that the legislature was originally concerned with protecting the confidentiality of reporters' sources. Additionally, the waiver statute expressly provides that the “privilege against disclosure of . . . confidential matter[s]” is subject to waiver. NRS 49.385(1) (emphasis added). Notwithstanding, the news shield statute's plain language provides that the privilege against compelled disclosure applies to published as well as unpublished information. [Headnote 12] As noted, the waiver statute speaks only to confidential information, the type of information that is pertinent in analyzing privileges related to confidential communications within special relationships. We therefore conclude that the waiver statute was intended, by its plain language, to apply to these types of privileges. The statute's exceptions in subsection 2 underscore our conclusion: the waiver statute does not apply if the disclosure of a confidential matter “is . . . [i]tself a privileged communication[ ] or . . . [is] [m]ade to an interpreter employed merely to faciliate communications.” NRS 49.385(2)(a) and (b). “Privileged communication” is a term of art used to describe “[those statements made by certain persons within a protected relationship . . . which the law protects from forced disclosure.” Black's Law Dictionary 1198 (6th ed. 1990). Thus, a “confidenWLDO

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Ð116 Nev. 88, 100 (2000) Diaz v. Dist. Ct.Ð Ð tial matter” is not subject to compelled disclosure if it is divulged in the context of another protected relationship. See Cheyenne Construction v. Hozz, 102 Nev. 308, 720 P.2d 1224 (1986) (holding in an action for breach of contract, that where plaintiff's attorney testified as to his dealings with defendant, plaintiff did not waive the privilege to refuse to disclose and prevent others from disclosing confidential communications between plaintiff and his attorney). Similarly, a confidential communication is not rendered discoverable if made through an interpreter. See NRS 49.385(2)(b). [Headnote 13] While confidentiality may be one important factor in communications between a journalist and the source of information, confidentiality is not the defining factor in the existence of the reporter's privilege, nor does confidentiality play a role in determining whether a reporter has waived the privilege. The news shield statute protects all information, not just confidential information, which is obtained by a reporter in his or her capacity as a journalist and which is intended for dissemination. If the waiver statute applied to the news shield statute, as the Newburn and Las Vegas Sun courts determined, then by publishing confidential information, a reporter has waived the news shield privilege as to that information. Such a result vitiates the plain language of the news shield statute, which protects published information from compelled disclosure. Accordingly, we conclude that the waiver statute does not apply to the privilege created by the news shield statute. Instead, as discussed above,

the waiver statute is limited to those privileges that center on confidential communications. Our reading of the statutory provisions at issue in this petition is consistent with the public policy rationale behind the news shield statute. Nevada's news shield statute serves an important public interest and provides absolute protection against compelled disclosure to ensure that through the press, the public is able to make informed political, social and economic decisions. See Testimonial Shield Statute at 801. [Headnote 14] As our Newburn and Las Vegas Sun opinions applied the waiver statute to the news shield statute, and attempted to define the scope of the news shield statute based on confidentiality, we must overrule Newburn and, in large part, Las Vegas Sun. Newburn's conclusion, that a reporter who voluntarily discloses information obtained in the newsgathering process waives any privilege with respect to that information, cannot withstand scrutiny when examined in light of the news shield statute's broad and unambiguous SURWHFWLRQ RI

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Ð116 Nev. 88, 101 (2000) Diaz v. Dist. Ct.Ð Ð protection of published information. 5 Similarly, Las Vegas Sun is overruled to the extent that it mirrors Newburn's analysis of confidentiality and waiver. Nevertheless, we reaffirm our ruling in Las Vegas Sun as it pertains to actions for libel. In particular, as we stated in that opinion, once a media litigant has invoked the protection of the news shield statute to resist discovery, the defendant may not later rely on the privileged information as a defense. 6 Las Vegas Sun, 104 Nev. at 514, 761 P.2d at 853-54. [Headnote 15] We emphasize that our decision today extends protection only to the journalist's newsgathering and dissemination activities within the journalist's professional capacity. Nevada's news shield statute provides no protection for information gathered in other capacities. We further recognize that although the news shield statute provides an absolute privilege to reporters engaged in the newsgathering process, there may be certain situations, e.g., when a defendant's countervailing constitutional rights are at issue, in which the news shield statute might have to yield so that justice may be served. As a final point, we note that in litigation such as the underlying case, where the story has been widely disseminated, an effort to use the news media to produce evidence beneficial to a litigant is not a function of the news media, and the shield statute protects it from such abuse. CONCLUSION [Headnote 16] Nevada's news shield statute is not limited to confidential sources, but includes any source. The shield statute covers both published and unpublished information, and includes both the information obtained and the source of the information. Thus, 1HYDGD V ZDLYHU VWDWXWH GRHV QRW DSSO\ ZLWK UHVSHFW WR WKH

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The Newburn court concluded that the record supported the district court's finding that Newburn was not gathering information for the purpose of dissemination. Newburn, 95 Nev. at 372, 594 P.2d at 1149. Ostensibly, the Newburn court could have determined that since Newburn did not obtain the information regarding Hughes' will with the intent to publish it, that Newburn was exempt from the protection of the shield statute. In overruling Newburn, we do not intend to suggest that any voluntary disclosure of information by a reporter falls within the definition of “published” under the statute, only that the dissemination in this case clearly was protected publication. Whether Newburn's conduct was within the definition of “published” was not adequately discussed in the Newburn decision, and we decline to address the issue today.

6

Moreover, to the extent that a plaintiff in a defamation action is required to prove that a media litigant either knew that the published information was false or acted in reckless disregard of the truth, an assertion of the shield statute may result in discovery sanctions.

Ð116 Nev. 88, 102 (2000) Diaz v. Dist. Ct.Ð Ð Nevada's waiver statute does not apply with respect to the news shield statute. Under Nevada law, a journalist does not waive any rights or privileges by publication. Accordingly, our intervention by way of extraordinary relief is not warranted, and we deny this petition. 7 Rose, C. J., and Becker, J., concur. 8 Maupin, J., with whom Shearing and Agosti, JJ., agree, concurring: We agree that the petition for writ of mandamus or prohibition should be denied. Subject to the reservations articulated by the majority opinion that do not apply to this case, the language of NRS 49.275 is plain and comprehensive: “No reporter . . . may be required to disclose any published or unpublished information obtained in [a professional capacity] . . . in any legal proceedings . . . .” This language clearly applies to the deposition questioning of Glen Puit, the real party in interest in the underlying matter. The district court properly denied the motion to compel. We also conclude that there are other important reasons why we should not grant extraordinary relief in this matter. 1 The instant petition is one of three applications for extraordinary relief brought by these petitioners challenging separate orders entered by the district court in the underlying matter. All were lodged within a six-month time frame. One of the petitions involved a clearly valid denial of a motion for partial summary judgment. The second challenged a refusal to disqualify opposing counsel. We denied intervention in both of the other matters. It is only this court's desire to clarify the rights of press representatives under the shield statute that warrants more specific consideration of this third application. 2 __________ 7

We need not address Puit's first amendment argument. See 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”). 8

The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this matter. 1

This matter was originally submitted to the southern panel of this court for decision without oral argument. I was against intervention at that time for the reasons set forth below in this separate opinion. This would have left in place the protections extended to the real party in interest by the district court. 2

In one of the separate orders we admonished counsel with regard to these applications. The resources of the court should not be routinely expended on an interlocutory basis to address grievances with orders handed down in the ordinary course of district court litigation. Such matters should be resolved on direct appeal unless the standards for extraordinary relief can be met.

Ð116 Nev. 88, 103 (2000) Diaz v. Dist. Ct.Ð Ð The litigation that is the subject of the instant petition for extraordinary relief arises from a terrible motor vehicle accident involving multiple fatalities. Petitioners are the heirs of the persons killed in that accident. The

facts bearing on this application are set forth below. Responding to a dispatch call shortly after midnight on September 21, 1996, Nevada Highway Patrol Trooper John Kennedy found Michael Estrada outside of his vehicle sitting on the side of a limited access freeway in Clark County, Nevada. Based upon his observations and conversations with Estrada, Trooper Kennedy concluded that Estrada was intoxicated. Not observing Estrada behind the wheel, Trooper Kennedy ordered Estrada's nearby vehicle towed and took Estrada to his place of residence. At his deposition, Kennedy conceded his belief that Estrada was under the influence of alcohol. He also testified that he was the only trooper to respond to the scene where Estrada was located. About eleven hours following the interaction with Trooper Kennedy, Estrada reclaimed his vehicle from the towing company. Shortly thereafter, Estrada collided with a vehicle occupied by Felipe Diaz, Miguel Alcantara and Eva Alcantara, all of whom were killed. Tests performed after the accident confirmed that Estrada was intoxicated. An expert retained by the petitioners has opined that Estrada's blood alcohol content was about .263% at the time of Trooper Kennedy's encounter with Estrada. Petitioners filed suit for wrongful death damages against the towing company and the Nevada Highway Patrol. The crux of petitioner's lawsuit against the highway patrol is the failure of Trooper Kennedy to take Estrada into protective custody under NRS 458.270. 3 __________ None of these applications meet these standards. See, e.g., State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983). 3

The version of NRS 458.270 in effect as of the date of this accident stated: 1. Except as provided in subsection 7, a person who is found in any public place under the influence of alcohol, in such a condition that he is unable to exercise care for his own health or safety or the health or safety of others, must be placed under civil protective custody by a peace officer. 2. A peace officer may use upon such a person that kind and degree of force which would be lawful if he were effecting an arrest for a misdemeanor with a warrant. 3. If a licensed facility for the treatment of persons who abuse alcohol exists in the community where the person is found, he must be delivered to the facility for observation and care. If no such facility exists in the community, the person so found may be placed in a county or city jail or detention facility for shelter or supervision for his own

Ð116 Nev. 88, 104 (2000) Diaz v. Dist. Ct.Ð Ð Following the accident, real party in interest Glenn Puit, a Las Vegas Review-Journal news reporter, interviewed Trooper Steve Harney, a Nevada Highway Patrol Public Information Officer, about the accident. Thereafter, Puit wrote a series of articles, which, inter alia, quoted Harney as saying that “troopers” responded to the scene and found that Estrada was “highly” intoxicated. At his deposition, Harney could not clearly recall what he said to Puit with regard to Kennedy's version of his encounter with Estrada and that he, Harney, would defer to Puit as to what was said in the interviews about these particular factual issues. Petitioners contend that several of Harney's statements in the articles constitute admissions that are directly relevant to the issue of liability against the State and the Nevada Highway Patrol. They primarily contend that these statements “refute” Kennedy's testimony that he was alone and that Michael Estrada was “not intoxicated or, in his opinion, under the influence of any substance, particularly alcohol at the time of their interaction some twelve hours before the accident.” 4 They also contend that they have no RWKHUPHDQVE\ZKLFKWRHIIHFW

WKLVLPSHDFKPHQWRUFRUURERUDWHWKHWHVWLPRQ\RIWKHLUH[SHUWRQEORRGDOFRKROOHYHOV __________ health and safety until he is no longer under the influence of alcohol. He may not be required against his will to remain in either a licensed facility, jail or detention facility longer than 48 hours. 4. An intoxicated person taken into custody by a peace officer for a public offense must immediately be taken to a secure detoxification unit or other appropriate medical facility if his condition appears to

require emergency medical treatment. Upon release from the detoxification unit or medical facility, the person must immediately be remanded to the custody of the apprehending peace officer and the criminal proceedings proceed as prescribed by law. 5. The placement of a person found under the influence of alcohol in civil protective custody must be: (a) Recorded at the facility, jail or detention facility to which he is delivered; and (b) Communicated at the earliest practical time to his family or next of kin if they can be located and to the division or to a local alcohol abuse authority designated by the division. 6. Every peace officer and other public employee or agency acting pursuant to this section is performing a discretionary function or duty. 7. The provisions of this section do not apply to any driver apprehended or arrested for the offense of operating a vehicle under the influence of intoxicating liquor or controlled substances, pursuant to Chapter 484 of NRS. (Emphasis added.) Whether these provisions create a legal duty to third parties is not now before us. 4

This quotation is taken from the instant petition and petitioner's formal written “Objection to Discovery Commissioner's Report and Recommendations” filed in district court. The petition includes quotations from Harney's deposition wherein he denies the accuracy of Puit's article stating that Estrada had been questioned by state “troopers” for suspicion of drunk driving. Harney explained the inaccuracy by stating that the official response was to a person sitting outside

Ð116 Nev. 88, 105 (2000) Diaz v. Dist. Ct.Ð Ð other means by which to effect this impeachment or corroborate the testimony of their expert on blood alcohol levels. This concern is not, in our view, justified. First, Harney's purported statement to Puit that “troopers” responded to the original confrontation with Estrada is clearly stated in the articles. Petitioners are entitled to cross-examine Harney about the use of the plural rather than the singular in the article, i.e., whether, in fact, Harney told Puit that “troopers,” rather than a “trooper” responded to the scene. The use of the plural in the article and the significance of the possibility that more than one trooper responded to the original confrontation may then be argued by both sides to the ultimate fact finder. It does not, however, seem to the objective observer that Puit's use of the term “troopers” in discussing Harney's version of the highway patrol's first encounter with Estrada creates a clear contradiction of Kennedy's testimony. 5 This does not necessarily mean that petitioners should not pursue the possibility of a contradiction; however, it does not appear that this testimony is the lynchpin of petitioner's liability case against the Nevada Highway Patrol. Certainly, an issue of this magnitude should not be the subject of a claim for extraordinary relief. Second, petitioners claim that Kennedy must be impeached on the question of Estrada's intoxication is most surprising. Contrary to the portion of the petition quoted above, Kennedy unequivocally conceded his belief that Estrada was drunk at the time of their interaction, twelve hours prior to the actual accident. The fact that Kennedy did not use the term “highly” intoxicated in his testimony does not justify our intervention via extraordinary writ to force a newspaper reporter to testify in violation of the state's “shield law.” Also, Kennedy can be cross-examined as to whether Estrada's state of intoxication justified or mandated use of the protective custody provisions of NRS 458.270. 6 Clearly, the evidence given by Trooper Kennedy confirms rather than contradicts petitioner's expert testimony relative to Estrada's blood alcohol levels. 7 Finally, Harney is still subject to cross-examination with UHJDUGWRWKHDUWLFOHVDQG1HYDGD+LJKZD\3DWUROSROLFLHVZLWK

UHJDUGWRVXFKVLWXDWLRQV __________ of a stopped vehicle. In any case, the questions posed by Trooper Kennedy to Estrada would certainly qualify as inquiries in connection with possible drunk driving. Thus, petitioners do not cite this conflict as creating a need for extraordinary relief in this case.

5

Harney testified at his deposition that his use of the term “troopers,” rather than “trooper,” was generic, i.e., that he always referred to NHP trooper responses in terms of “troopers,” even when only one officer was involved. 6

See comments in note 3.

7

Petitioners contend below that the impeachment of Kennedy is important to corroborate their toxicology expert. Again, Kennedy took Estrada home because he was intoxicated. In any event, the circumstances of Kennedy's

Ð116 Nev. 88, 106 (2000) Diaz v. Dist. Ct.Ð Ð regard to the articles and Nevada Highway Patrol policies with regard to such situations. In Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995), the United States Court of Appeals for the Ninth Circuit discussed a situation in which it felt forced disclosure of press information might be appropriate within the context of the First Amendment of the U.S. Constitution. The Ninth Circuit concluded that disclosure of press materials should be the exception and not the rule: [W]here information sought is not confidential, a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist's privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case. Shoen, 48 F.3d at 416. 8 In the present case, the evidence sought has only marginal importance in the matter pending in district court. Alternatives available to these petitioners demonstrate that their claimed need for disclosure is far outweighed by the need to protect the press under either the shield statute or the First Amendment to the U.S. Constitution. CONCLUSION We therefore conclude that the testimony sought from the real party in interest, Puit, is not so essential to petitioner's lawsuit as to justify a grant of extraordinary relief from this court. Further, the repeated resort by these petitioners to extraordinary remedies serves only to seek our “micro-management” of an ongoing piece of district court litigation. We realize that this case is most imporWDQWWRWKHSHWLWLRQHUVKHUHLQ __________ encounter with Estrada leaves little doubt of the advanced state of Estrada's intoxication. In this connection, petitioners alleged in the district court and allege here that “it was later determined” that Estrada's blood alcohol level at the time of the encounter with Trooper Kennedy was .263%. Without commenting on the validity of this finding by petitioner's expert, and certainly conceding Trooper Kennedy's agreement that Estrada was intoxicated, it seems somewhat excessive to blithely state that a person's blood alcohol level some twelve hours before testing has been “determined.” We raise this point only to underscore what appears to be a tendency by petitioner's counsel to overstate propositions urged to us. 8

The Nevada shield statute provides greater protection to the press than that provided under the First Amendment to the U.S. Constitution. Thus, it is unnecessary to resolve this matter on constitutional grounds. However, an analysis of the First Amendment balancing test relied upon in Shoen underscores our reasons for denying extraordinary relief.

Ð116 Nev. 88, 107 (2000) Diaz v. Dist. Ct.Ð Ð

tant to the petitioners herein. However, the need for extraordinary relief has not been demonstrated in any of their petitions. 9

____________

Ð116 Nev. 107, 107 (2000) Nat'l Adv. Co. v. State, Dep't of Transp.Ð Ð Ð NATIONAL ADVERTISING COMPANY, a Delaware Corporation; and DONREY OF NEVADA, INC., a Nevada Corporation, Appellants, v. THE STATE OF NEVADA, DEPARTMENT OF TRANSPORTATION, Respondent. No. 31570 February 2, 2000

993 P.2d 62

Appeal from an order setting amount of compensation to be paid in condemnation action. Second Judicial District Court, Washoe County; Mills Lane, Judge. State Department of Transportation (“NDOT”) brought condemnation action to acquire property for construction of freeway extension and interchange, and advertising companies whose billboards were removed sought compensation for value of their leasehold interests. The district court awarded advertising companies compensation calculated under bonus value methodology advocated by NDOT. Advertising companies appealed. The supreme court, Agosti, J., held that income generated by billboards should have been considered in determining just compensation. Reversed and remanded with instructions. [Rehearing denied June 1, 2000] [En banc reconsideration denied October 23, 2000] Lionel Sawyer & Collins and Dan C. Bowen and Madelene C. Amendola, Reno, for Appellants Donrey and National Advertising. Husch & Eppenberger and Gregory R. Smith and JoAnn Tracy, St. Louis, Missouri, for Appellant National Advertising. __________ 9

We also note that petitioners sought sanctions in district court against the real party in interest's counsel in connection with his position that the shield statute protected him from having to testify in the matter below. The repeated petitions for extraordinary relief, a spurious request for sanctions and what we perceive to be a chronic tendency to overstate their positions seems to suggest that this is all part of an overly aggressive litigation strategy. We can only express our hope that petitioner's counsel will reconsider his approach to the prosecution of this case.

Ð116 Nev. 107, 108 (2000) Nat'l Adv. Co. v. State, Dep't of Transp.Ð Ð Frankie Sue Del Papa, Attorney General, and Samuel Coon, Senior Deputy Attorney General, Carson City; Price & Zirulnik, Jackson, Mississippi, for Respondent. 1. Eminent Domain.

Advertising income generated from billboards should be considered in determining just compensation for condemned leasehold interests when those billboards cannot be relocated to comparable, income-generating sites. 2. Eminent Domain. Use of bonus value method of calculating value of advertising companies' ground leases in action for condemnation of leased land, without considering advertising income generated from billboards, constituted error, where county ordinance restricting replacement of existing billboards made it impossible for companies to place new billboards in comparable location.

Before Rose, C. J., Agosti and Leavitt, JJ. OPINION By the Court, Agosti, J.: The issue in this condemnation case is how to value a billboard leasehold interest when the underlying property has been condemned and the billboards cannot be relocated to a comparable site. We conclude that, under such circumstances, the advertising rental income generated from such billboards should be considered in determining the fair market value of the billboard leasehold interest. FACTS In August 1993, respondent Nevada Department of Transportation (“NDOT”) commenced a condemnation action to acquire a portion of the Damonte Ranch in south Reno in order to extend the U.S. 395 freeway and to construct an interchange. Prior to the condemnation, appellants National Advertising Company (“National”) and Donrey of Nevada, Inc. (“Donrey”) (collectively referred to as the “Advertising Companies”) maintained billboards on the property to be condemned. National entered into three written lease agreements with the landowners of Damonte Ranch (“Damontes”), which allowed National to erect and maintain four illuminated billboard structures, one of which was double-faced, on the land adjacent to U.S. 395. These leases commenced at various times from late 1992 to mid-1993 and continued for initial terms of ten years. The leases granted National the option to renew for a second term of ten years, and thereafter, the leases would automatically extend IURP\HDUWR

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Ð116 Nev. 107, 109 (2000) Nat'l Adv. Co. v. State, Dep't of Transp.Ð Ð from year to year until terminated by either party. National had maintained most of these billboards on the property in excess of twenty years under a prior lease agreement. National's billboards generated an annual rental income of $58,836.00. Donrey also entered into a written lease agreement with the Damontes, which allowed Donrey to install and maintain two billboards on the land adjacent to U.S. 395. The lease commenced in October 1992 and contained terms similar to those in National's leases. Donrey's illuminated, double-faced billboard generated an annual rental income of $24,780.00. The Advertising Companies had the right to maintain their billboards in place and receive the rental income from advertisers for a minimum of twelve to fifteen years. The Advertising Companies' leasehold sites were excellent locations for billboards, visible to all traffic moving into Reno and, in September 1993, exposed to approximately 45,000 vehicles per day. All of the billboards were continually leased, and National had a waiting list of advertisers for its billboards. Pursuant to an order of occupancy, NDOT demanded that the Advertising Companies remove their billboards to make way for construction. Both companies complied, salvaging what parts they could and scrapping the rest. Because the billboard posts were installed in cement underground, removal required sawing the poles off with a chain saw. The billboards were then disassembled with a blow torch. The salvage value for the billboards ranged from a few hundred to one thousand dollars. Since Washoe County Ordinance 105 restricts the replacement of existing billboards, the Advertising Companies were unable to obtain permits to relocate their signs on the Damonte property or at any other location

along U.S. 395. The Advertising Companies were also unable to erect new signs in Washoe County to replace the advertising rental income lost as a result of NDOT's condemnation action. 1 Thus, the condemnation of the Damonte property forced the Advertising Companies to cancel their contracts with advertisers. The Advertising Companies sought compensation for the value of their leasehold interests, including the value of the billboard structures and the income generated from the billboards at the Damonte location. 2 __________ 1

Since 1985, National has erected nine new billboards on an Indian Reservation in Wadsworth and one ten miles south of Gardnerville on U.S. 395, while Donrey has constructed fifteen smaller poster face signs in the Reno-Sparks area. 2

Pursuant to a settlement, NDOT compensated the Damontes for the increased value of their land due to the income resulting from the leases to the Advertising Companies.

Ð116 Nev. 107, 110 (2000) Nat'l Adv. Co. v. State, Dep't of Transp.Ð Ð NDOT filed a motion for partial summary judgment, requesting that the district court find that the billboards were personal property as a matter of law; therefore, the income generated from renting those billboards was business income that should not be considered in determining just compensation for the leasehold interests. In the alternative, NDOT requested that the district court exclude any evidence of the advertising rental income since NDOT was not condemning the billboard structures. The district court denied NDOT's motion. While the court found that the signs were removable trade fixtures and thus the personal property of the Advertising Companies, the court nonetheless concluded that the advertising income generated by the billboards was rent that should be considered in valuing the leasehold interests. In so doing, the court noted that “[t]he interests of the [Advertising Companies] sought to be extinguished under the State's power of eminent domain were leasehold interests [which] . . . possess value for the purposes of this proceeding.” Thus, the court rejected NDOT's argument that because the billboards are removable trade fixtures, the Advertising Companies' compensation should be limited to relocation costs. The Advertising Companies next moved for partial summary judgment, requesting that the district court determine that advertising rental revenues generated by the Advertising Companies' leasehold interests are properly and legally included in the determination of just compensation, notwithstanding the district court's prior ruling that the billboards were removable trade fixtures. The district court granted this motion. In granting the motion, the court ruled that the Advertising Companies were entitled to recover the economic benefit they derived from their leaseholds and that “such economic benefit can only be determined by virtue of the income that those signs generate and that said income should and must be taken into consideration to determine just compensation.” The parties waived their right to a jury trial, and the case proceeded to a two-day bench trial. The sole issue at trial was the amount of compensation owed to the Advertising Companies for the taking of their property interests. National's expert, real estate appraiser Dwight Pattison, used two methods to value National's leasehold interests: (1) a comparable sales approach using a gross income multiplier and (2) an income capitalization approach to value. Under the first approach, Pattison analyzed eight different sales transactions of comparable billboard interests. Pattison testified that the most relevant transaction was Leonard Outdoor Advertising Company's (“Leonard”) purchase of twenty leasehold locations within a few miles of National's billboards. Pattison testified that the leases held by the VHOOHU LQ WKDW WUDQVDFWLRQ ZHUH LQIHULRU WR 1DWLRQDO V

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Ð116 Nev. 107, 111 (2000) Nat'l Adv. Co. v. State, Dep't of Transp.Ð Ð

seller in that transaction were inferior to National's leases in that many had shorter remaining terms at the time of Leonard's purchase. The sales contracts revealed that Leonard paid approximately four times the annual gross income generated by each sign location to acquire permits to erect the billboards, the billboard structures, the leaseholds, and the right to receive rental income from advertisers. Thus, Pattison concluded that a gross income multiplier of four was appropriate to measure the fair market value of National's leasehold interests, i.e., a buyer would pay four times the annual gross rental income to purchase National's leasehold interests. Thus, under the first comparable sales approach, he concluded that the fair market value of National's leasehold interests was $232,588.00, which is four times its annual gross income generated from the relevant billboards. The second method, the income capitalization approach to value, is based upon the capitalization of the net income produced by property using a rate of return that a prudent investor would expect upon his investment. Under this approach, Pattison looked at the actual rent paid by advertisers for National's billboards and verified that those rents were equivalent to market rent based upon rents paid for other comparable billboard locations. He then determined the projected rental income and deducted standard expenses associated with the operation and maintenance of such billboards. Finally, he determined the value of the billboard locations by taking the net income and capitalizing it at a rate of return of fifteen percent, and concluded that the fair market value of National's property interests was $217,581.00. Based on his conclusions under both valuation approaches, Pattison determined that the fair market value of National's leasehold interests was $230,000.00. Donrey's expert, Verne Cox, used the same two methods used by Pattison to value Donrey's leasehold interests and determined that the fair market value of Donrey's leasehold interests was $99,000.00, which is four times its annual gross income generated from the relevant billboards. NDOT's appraiser, Steven Johnson, used the bonus value method of appraising the Advertising Companies' property interests. The bonus value method focuses only on the value of the ground leases. Specifically, this method calculates the difference between the fair market rent the Advertising Companies would pay to lease comparable ground and the contract rent owed to the Damontes, projected over the remaining time the billboards could be expected to remain on the property. In his analysis, Johnson assumed that National and Donrey's billboards would have stayed in place for the remainder of their lease terms, fifteen and twelve years respectively. Johnson considered the advertising rental LQFRPHJHQHUDWHGE\WKHVXEMHFWELOOERDUGV

Ð116 Nev. 107, 112 (2000) Nat'l Adv. Co. v. State, Dep't of Transp.Ð Ð income generated by the subject billboards, but only for the purpose of determining whether the ground rent actually paid by the Advertising Companies was a market rate, since ground rent is typically based on a percentage of advertising rental income generated by a particular billboard. Johnson did not consider advertising rental income in determining the value of the subject leasehold interests because it was not part of his assignment by NDOT. However, Johnson acknowledged that, on a prior occasion, he did use an income methodology and considered the income derived from billboard advertising to appraise a billboard leasehold interest. The district court ultimately entered its findings of fact, conclusions of law and order, wherein it adopted the bonus value methodology advocated by NDOT. The district court repeated its prior ruling that income “generated from selling space on the outdoor signs is relevant to determine ‘just compensation' and must be considered to do substantial justice.” However, the district court concluded that the advertising rental income was “business income” and, thus, not compensable in this condemnation action. Instead, the court concluded that the proper measure of value of the leasehold interests was the bonus value method. The court awarded the bonus values arrived at by NDOT's appraiser, specifically, $36,800.00 to National and $14,300.00 to Donrey. On appeal, the Advertising Companies argue that the district court failed to justly compensate them for the most valuable right they lost as a result of the condemnation, the right to generate substantial rental income due to the unique and valuable location of their billboards, by erroneously characterizing that income as “business income.” 3 The Advertising Companies contend that while the bonus value method is not invalid per se, the formula cannot justly compensate them in this case because it does not consider the lost advertising rental income which the Advertising Companies cannot replace since the billboards cannot be relocated to a comparable site within the market area.

DISCUSSION Three recognized valuation methods in condemnation cases exist. These are the income capitalization approach, the market approach and the cost approach. 4 Jurisdictions are divided as to ZKLFK PHWKRG

DSSURSULDWHO\YDOXHVDELOOERDUGOHDVHKROGLQWHUHVW __________ 3

“Business income” is anticipated future profits.

4

The cost approach is the depreciated replacement or reconstruction cost of a billboard, together with the bonus value of the owner's ground lease. Thus, the bonus value advocated by NDOT and adopted by the district court is only a part of the cost approach. See 8A Nichols on Eminent Domain § 23.04[4][a], at 52 (3rd ed. 1997, 1998). This method, however, is only valid “when it is established that substitute, permitable sites exist in the immediate market.” Id.

Ð116 Nev. 107, 113 (2000) Nat'l Adv. Co. v. State, Dep't of Transp.Ð Ð which method appropriately values a billboard leasehold interest. Some courts focus on whether a billboard is characterized as personalty or realty, as does NDOT, in determining whether advertising income should be considered in assessing the value of leasehold interests, or in determining whether a billboard owner is entitled to compensation at all. Those courts conclude that if a billboard is characterized as a trade fixture or personalty, then either it is improper to consider the advertising income it generates, or the owner is not entitled to compensation at all. 5 [Headnote 1] Other courts conclude that the characterization of a billboard as either realty or personalty is an arbitrary distinction, and that advertising income generated from billboards that cannot be relocated should be considered in valuing leasehold interests so that owners will be justly compensated. 6 We conclude that this latter approach is the better means of awarding just compensation for condemned leasehold interests when billboards cannot be relocated to comparable, income-generating sites. This approach is espoused in 8A Nichols on Eminent Domain § 23.03[5][a], at 37-42 (3d ed. 1997, 1998), which recognizes the importance of location in the ability of a ELOOERDUG WR JHQHUDWH DGYHUWLVLQJ LQFRPH DQG WKH

GLIILFXOW\LQUHORFDWLQJELOOERDUGVXQGHUUHVWULFWLYHUHJXODWLRQV __________ 5

See Nat'l Adver. v. North Carolina Dep't of Transp., 478 S.E.2d 248, 249-50 (N.C. Ct. App. 1996) (concluding that a billboard owner did not have a compensable property interest in its billboard structure, which was removable personal property as a matter of law); Creative Displays v. South Carolina Highway, 248 S.E.2d 916, 917-18 (S.C. 1978) (concluding that a billboard was personal property and thus not compensable); State v. Teasley, 913 S.W.2d 175, 178 (Tenn. Ct. App. 1995) (concluding that a billboard was a trade fixture not compensable in eminent domain, but the billboard owner was entitled to cost of removal and bonus value of the lease under Tennessee statutory law). 6

See City of Scottsdale v. Eller Outdoor Adver. Co. of Arizona, 579 P.2d 590, 596-98 (Ariz. Ct. App. 1978) (concluding that the income approach is the best method of valuation only when a billboard cannot be relocated in a given market area because billboard locations are unique and it is virtually impossible to separate location from the structure, even though the billboard is deemed personal property under the lease); Nat'l Adver. Co. v. Florida Dept. of Transp., 611 So. 2d 566, 569-70 (Fla. Ct. App. 1993) (concluding that billboard replacement cost was insufficient compensation where a billboard's location was unique and it could not be relocated; the condemnor should have presented evidence of income in valuing the leasehold interest); City of Norton Shores v. Whiteco Metrocom, 517 N.W.2d 872, 873 (Mich. Ct. App. 1994) (concluding that condemned leaseholds

were income-producing property for which income capitalization method was a valid means of estimating market value, regardless of whether the billboards were trade fixtures or personal property); State of Minnesota v. Weber-Connelly, Naegele, Inc., 448 N.W.2d 380, 383, 384-85 (Minn. Ct. App. 1989) (concluding that a state statute permits compensation for lost rental income, and that the income approach for appraising billboards is proper because the property was income producing and the billboards could not be relocated).

Ð116 Nev. 107, 114 (2000) Nat'l Adv. Co. v. State, Dep't of Transp.Ð Ð billboard to generate advertising income and the difficulty in relocating billboards under restrictive regulations. Under the circumstances of this case, we believe that either the comparable sales method or the income capitalization method would be a better means than the bonus value method of appraising the market value of the Advertising Companies' lost interest. See Eller Outdoor Advertising, 579 P.2d at 598. In this case, location was critical in the Advertising Companies' ability to generate advertising income. The record shows that the Advertising Companies were unable to relocate their billboards to a comparable site within Washoe County that would replace advertising income lost as a result of NDOT's condemnation action. The income generated from the billboards should have been considered in determining the value of the Advertising Companies' leasehold interests. 7 The bonus value approach does not sufficiently compensate the Advertising Companies for their leasehold interests. As noted by the district court, the bonus value approach is based on the assumption that the Advertising Companies may keep the benefit of their bargain with the Damontes if they can relocate their billboards under a comparable lease at market value to another comparable site. The evidence in this case, however, clearly establishes that these billboards were in valuable, unique locations, and that the billboards could not be relocated to a comparable site within the market area. [Headnote 2] For the foregoing reasons, we conclude that the district court erred when it awarded the bonus value of the Advertising Companies' ground leases and did not consider the advertising income generated by these billboards in calculating the value of their leasehold interests. 8 We conclude that under the circumstances of this case the income methodology should be used in RUGHUWRIDLUO\FRPSHQVDWHWKH$GYHUWLVLQJ&RPSDQLHV __________ 7

The Advertising Companies are not entitled, nor do they seek, to recover lost intangible business income. In order to determine the value of the leasehold interests, however, the advertising rental income must be considered under the income capitalization approach, which adjusts the anticipated net income to present value through the capitalization process. 8A Nichols on Eminent Domain § 23.04[4][b] at 54 (3d ed. 1997, 1998). 8

Because we conclude that the subject billboards cannot be relocated, we need not reach the issue of whether the district court erred in finding that the billboards were removable trade fixtures as a matter of law. As demonstrated above, we believe the threshold issue is whether the billboards can be relocated to a comparable site within the market area such that the Advertising Companies can replace their lost advertising rental income. If the billboards cannot be relocated to a comparable site, as is the case here, then the state must compensate the billboard owners for the valuable interests taken, that is, the value of their leasehold interests, taking into account the irreplaceable, lost rental income.

Ð116 Nev. 107, 115 (2000) Nat'l Adv. Co. v. State, Dep't of Transp.Ð Ð order to fairly compensate the Advertising Companies. We, therefore, reverse the district court's order and remand with instructions to the district court to determine, consistent with this opinion, the amount of compensation to be paid to the Advertising Companies.

Rose, C. J., and Leavitt, J., concur. ____________

Ð116 Nev. 115, 115 (2000) Langon v. Washoe CountyÐ Ð Ð JOHN LANGON, Individually and in His Official Capacity as Sparks Constable, and WARD PETERSON, Individually and in His Official Capacity as Reno Constable, Appellants, v. WASHOE COUNTY, a Political Subdivision of THE STATE OF NEVADA, Respondent. No. 32628 February 2, 2000

993 P.2d 718

Appeal from a district court order, entered on cross-motions for partial summary judgment, ruling that Washoe County had authority to fix constables' maximum compensation and take excess fees, and from a money judgment against the constables entered on the parties' stipulation. Second Judicial District Court, Washoe County; Janet J. Berry, Judge. County sought declaratory and injunctive relief requiring constables to pay to county fifty percent of fees collected beyond maximum salary fixed by county, and constables brought counterclaim challenging the maximum salary and fee-splitting. The district court entered partial summary judgment and money judgment for county. Constables appealed. The supreme court held that county had statutory authority to set constables' maximum salary and to required fee-splitting beyond the maximum salary. Affirmed. Thomas F. Riley, Reno, for Appellants. Marshall, Hill, Cassas & deLipkau and A. Stanyan Peck, Reno, for Respondent. 1. Appeal and Error. The construction of a statute is a question of law subject to de novo review. 2. Statutes. When more than one interpretation of a statute can reasonably be drawn from its language, it is ambiguous and the plain meaning rule has no application.

Ð116 Nev. 115, 116 (2000) Langon v. Washoe CountyÐ Ð 3. Sheriffs and Constables. Under statutes requiring boards of county commissioners to fix “minimum” compensation for constables, providing boards “may thereafter increase or change such compensation during the term but shall not reduce it below the minimum so established,” and providing that constables are “entitled” to receive fees for enumerated services, board had power to establish a maximum salary for constables and to require constables to split fifty percent of any fees collected beyond the maximum salary. NRS 258.040(1), 258.125. 4. Stipulations. District court, after determining that county had authority to set constables' maximum compensation and to require fee-splitting, was not required to determine whether the authority was properly exercised before entering money judgment against constables for fee-splitting with county, where stipulation for entry to consent judgment had stated that county and constables had agreed to entry of judgment after determination of county's authority. NRS 258.040(1), 258.125. 5. Stipulations. Constables, by stipulating that judgment would be entered after determination of county's authority to set constables' maximum compensation and to require fee-splitting, waived their right to argue in the trial court and the appellate court that county's orders amending the constables' compensation were not valid. NRS 258.040(1), 258.125.

Before Young, Agosti and Leavitt, JJ.

OPINION Per Curiam: FACTS In July 1994, the Washoe County Board of County Commissioners (“the Board”) undertook a review of the compensation of its elected constables. At the time, the constables received a minimum base salary of $10,000.00 and kept all fees they collected from citizens for their services. Washoe County's staff recommended amending the constables' compensation by providing that once the constables' base salary and net revenues for services reached $55,000.00, the constables would then forward fifty percent of the net fees collected to the county. In a July 1994 order, the Board approved the $10,000.00 base salary without mentioning fee splitting above $55,000.00. After confusion arose as to the constables' compensation plan, the Board expressly restated the fee sharing formula previously recommended by Washoe County's staff. On April 11, 1996, the Board issued an amended order, expressly adopting the fee formula. On August 9, 1996, the Board voted to reaffirm its understanding that the July 1994 order included the prior recommendations of its staff requiring the constables to abide by the fee sharing formula.

Ð116 Nev. 115, 117 (2000) Langon v. Washoe CountyÐ Ð Appellants John Langon, former Sparks constable, and Ward Peterson, former Reno constable, refused Washoe County's demand to abide by the fee sharing formula and to provide financial reports for the purposes of fee apportioning. Washoe County then brought suit against the constables seeking injunctive and declaratory relief requiring a full accounting and payment of fifty percent of the fees collected above $55,000.00. The constables counterclaimed, asserting that Washoe County was not authorized to cap their compensation and require them to share fees with the county. The accounting issues were later resolved by consent decree, wherein the constables acknowledged Washoe County's authority to examine and audit their office financial records. In March 1998, the parties filed cross-motions for partial summary judgment concerning the substantive issues. To avoid litigating the amount of fees in question, the parties entered a stipulation for entry of consent judgment in April 1998. The stipulation provided that if Washoe County was found to have the authority to fix the constables' maximum compensation, judgment could be entered against John Langon for $100,000.00 and against Ward Peterson for $43,000.00. In May 1998, the district court denied the constables' motion and granted Washoe County's motion. In June 1998, pursuant to the parties' previous stipulation, the district court entered judgment against Langon for $100,000.00 and against Peterson for $43,000.00. The constables now appeal the district court's ruling that Washoe County had the authority to set their maximum compensation and the district court's entry of the money judgment. DISCUSSION The constables argue that the district court erred by ruling that NRS chapter 258 authorizes Washoe County to require fee sharing after the constables' compensation reaches $55,000.00. Specifically, the constables argue that the legislature, not the county, possesses the authority to fix their compensation, and that the legislature granted Washoe County only the authority to set the constables' minimum compensation. NRS chapter 258 governs matters concerning Nevada's constables. At issue in the present case is the interpretation of two sections of chapter 258: NRS 258.040 and NRS 258.125. NRS 258.040 provides that the boards of county commissioners shall fix the constables' “minimum” compensation in the year in which the constables are elected. However, the section goes on to provide that the boards “may thereafter increase or change such compensation during the term but shall not reduce it below the minimum so established.” See NRS 258.040(1). NRS 258.125 SURYLGHV WKDW FRQVWDEOHV DUH ³HQWLWOHG´ WR UHFHLYH IHHV IRU FHUWDLQ

HQXPHUDWHGVHUYLFHV Ð116 Nev. 115, 118 (2000) Langon v. Washoe CountyÐ Ð provides that constables are “entitled” to receive fees for certain enumerated services. 1 [Headnote 1] The construction of a statute is a question of law subject to de novo review. See State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 476, 874 P.2d 1247, 1249 (1994). It is well established that when interpreting a statute, “ ‘[t]he 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 should always be construed so as to avoid absurd results.' ” Moody v. Manny's Auto Repair, 110 Nev. 320, 325, 871 P.2d 935, 938 (1994) (quoting Welfare Div. v. Washoe Co. Welfare Dep't., 88 Nev. 635, 637-38, 503 P.2d 457, 458-59 (1972)). [Headnote 2] When more than one interpretation of a statute can reasonably be drawn from its language, it is ambiguous and the plain meaning rule has no application. See Hotel Employees v. State, Gaming Control Bd., 103 Nev. 588, 591, 747 P.2d 878, 880 (1987). Further, “ ‘no part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided.' ” Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) (quoting Torreyson v. Board of Examiners, 7 Nev. 19, 22 (1871)). “Courts must construe statutes . . . to give meaning to all of their parts and language . . . . The court should read each sentence, phrase, and word to render it meaningful within the context of the purpose of the legislation.” Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983). [Headnote 3] In the present case, the constables argue that a plain meaning construction of the statute is appropriate. They assert that the use of the word “minimum” is a clear indication that the legislature did not intend that any board of county commissioners would set the maximum compensation. Indeed, the constables provide dictionary definitions of both the words “minimum” and “maximum,” noting that “minimum” is the opposite of the word “maximum.” The constables argue further that the legislative intent must be to prohibit the setting of a maximum compensation __________ 1

In a separate argument, the constables also argue that the word “entitled” in NRS 258.125 gives them an absolute right to keep all fees collected. However, we conclude that a resolution of the present issue necessarily resolves this additional issue.

Ð116 Nev. 115, 119 (2000) Langon v. Washoe CountyÐ Ð for constables; otherwise, the legislature would have included explicit language granting such permission. We conclude that the constables' argument is without merit and that a plain meaning reading of the statute is inappropriate. A plain meaning construction of the statute as proposed by the constables is flawed because there is ambiguity between NRS 258.040 and NRS 258.125. If NRS 258.125 gives constables an absolute right to keep all fees collected, as the constables propose (see footnote 1, supra), then NRS 258.040 cannot confer upon the board of county commissioners the power to “change” the constables' compensation, if such a change would affect the retention of fees. Such a reading would render portions of NRS 258.040 (and other sections of chapter 258) meaningless.

We conclude that to give full meaning to all of chapter 258, Washoe County must have the authority to adjust the constables' compensation, without decreasing it below the established minimum. The very fact that the legislature does not explicitly prohibit setting a maximum compensation indicates that the legislature intended to empower the boards of county commissioners to maintain control of the constables' compensation, as long as the compensation is not decreased below the established minimum. Under such a reading, NRS 258.125 necessarily must permit the constables to collect the stated fees, but the county must ultimately establish how the fees are divided. Moreover, NRS 258.040 contemplates the setting of a constable's compensation through the use of a salary, fees, or both. See NRS 258.040(1). Additionally, the statute explicitly states that the constables' compensation may be “changed” during the constables' term. See id. This language is indicative of the conference upon the counties the power to modify the constables' compensation, as long as it is not decreased below the established minimum. Furthermore, we conclude that it would be absurd and nonsensical to read NRS 258.040 as stating that the county boards may “change” the constables' compensation, but only by increasing the minimum. If that were the intent, it could have been clearly stated. The policy and spirit of this law is to establish a reasonable pay scale for constables, while granting the various counties (as employers) the right to exert some degree of control over the compensation provided. Accordingly, we conclude that NRS chapter 258 must be read to allow the counties to adjust or fix the constables' maximum compensation, and that NRS 258.125 does not grant the constables the absolute right to keep all the fees they collect. Therefore, we conclude that the district court did not err in ruling that Washoe County had the authority under NRS chapter 258 to UHTXLUHIHHVKDULQJRIDOOIHHVFROOHFWHGRQFHWKH

FRQVWDEOHV FRPSHQVDWLRQUHDFKHG Ð116 Nev. 115, 120 (2000) Langon v. Washoe CountyÐ Ð require fee sharing of all fees collected once the constables' compensation reached $55,000.00. [Headnote 4] Next, the constables argue that the district court erred by entering a money judgment against them before all legal issues were resolved. They assert that once the district court ruled that Washoe County had the authority to fix the constables' compensation, it then had to determine whether that authority was properly exercised before entering a money judgment. We conclude that the constables' argument on this issue is without merit. [Headnote 5] As discussed above, the district court's ruling clearly resolved all issues concerning Washoe County's authority under NRS chapter 258. Additionally, the stipulation for entry of consent judgment explicitly states that “in the event [the district court] enters an order or declaratory judgment finding that Washoe County has the authority to fix the maximum compensation payable to Defendants Langon and Peterson . . . , then the parties agree that judgment may be entered against Defendants . . . .” The event contemplated in the parties' stipulation occurred, and the district court entered judgment according to their agreement. Appellants provide no reasonable justification explaining how the district court's entry of money judgment is in violation of the terms of the stipulation. Accordingly, we conclude that the district court did not err in entering a money judgment against the constables. 2 Accordingly, we affirm the district court's ruling in all respects. __________ 2

The constables also argue that the orders issued by the Board amending the constables' compensation were not valid. We conclude that the constables waived their right to argue this issue when they stipulated to entry of consent judgment. As the district court noted in its order dated August 6, 1998, [c]ounsel for Defendants can not [sic] now attempt to insert additional terms or conditions which were not explicitly contained in a valid stipulation. Additionally, the Court will not entertain further argument

on issues which should have been raised by Defendants [sic] counsel before the parties vacated their trial. Counsel requested that all issues in this case be resolved by stipulation and/or the Court's decision on the crossmotions . . . . Defendants cannot now avoid the consequences of the acts or omissions of their attorney. See Pioneer Investment Services v. Brunswick Associates, 507 U.S. 380, 396 (1993). We agree with the district court and decline to address this issue. ____________

Ð116 Nev. 121, 121 (2000) Burgess v. Storey CountyÐ Ð DAVID BURGESS, Individually, and DAVID BURGESS, dba OLD BRIDGE RANCH, Appellant, v. STOREY COUNTY BOARD OF COMMISSIONERS; STOREY COUNTY LICENSING BOARD; and STOREY COUNTY SHERIFF, Respondents. No. 32634 February 2, 2000

992 P.2d 856

Appeal from an order denying appellant's petition for a writ of mandamus. First Judicial District Court, Storey County; Michael E. Fondi, Judge. Brothel owner filed petition seeking writ of mandamus compelling board of county commissioners to reinstate brothel license. The district court denied petition, and owner appealed. The supreme court held that (1) failure to give owner notice that his alleged association with motorcycle gang was basis upon which board sought to revoke license violated owner's due process rights, and (2) revocation of license based solely upon owner's alleged association with motorcycle gang violated owner's First Amendment right of free association. Reversed and remanded with instructions. [Rehearing denied March 23, 2000] Roderic A. Carucci and Terry J. Thomas, Reno, for Appellant. Janet Hess, District Attorney, Storey County, for Respondents. 1. Mandamus. A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust or station, or to control an arbitrary or capricious exercise of discretion. NRS 34.160. 2. Mandamus. The supreme court reviews a district court's denial of a petition for a writ of mandamus under the abuse of discretion standard. 3. Constitutional Law. The protections of due process attach only to deprivations of property or liberty interests. U.S. Const. amend. 14. 4. Constitutional Law. A protected property interest exists when an individual has a reasonable expectation of entitlement derived from existing rules or understandings that stem from an independent source such as state law. U.S. Const. amend. 14. 5. Constitutional Law. Brothel owner had protected property interest in his brothel license, where county provided that board of county commissioners could cancel license only after hearing and showing of good cause. U.S. Const. amend. 14.

Ð116 Nev. 121, 122 (2000) Burgess v. Storey CountyÐ Ð 6. Constitutional Law; Licenses.

Failure to give brothel owner notice that his alleged association with motorcycle gang was basis upon which board of county commissioners sought to revoke his brothel license violated owner's due process rights. Owner had no opportunity to prepare to defend himself against charges raised at license revocation hearing. U.S. Const. amend. 14. 7. Constitutional Law. All Americans have a right to associate for the purposes of engaging in those activities protected by the First Amendment, such as speech, assembly, petition for the redress of grievances, and the exercise of religion. U.S. Const. amend. 1. 8. Constitutional Law. Infringements upon the right of free association may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. U.S. Const. amend. 1. 9. Constitutional Law. Board of county commissioners had burden of showing compelling governmental interest sufficient to justify restricting brothel owner's right to associate with motorcycle gang by revoking his brothel license on basis of that association. U.S. Const. amend. 1. 10. Constitutional Law; Licenses. Board of county commissioners' revocation of brothel license, based solely upon brothel owner's alleged association with motorcycle gang, violated owner's First Amendment right of free association, where board failed to show any criminal activity by brothel or owner, and failed to demonstrate any other compelling state interest justifying license revocation. U.S. Const. amend. 1.

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: Appellant David Burgess argues that the Storey County Licensing Board (“Board”) denied him due process of law when it revoked his brothel license without properly notifying him that his association with the Hell's Angels Motorcycle Club (“Hell's Angels”) would be discussed at the license revocation hearing. Burgess also argues that the Board violated the First Amendment by revoking his brothel license because of his association with the Hell's Angels. We agree with Burgess's contentions and conclude that the district court abused its discretion by denying Burgess's petition for a writ of mandamus requiring the Board to reinstate his license. FACTS Burgess has been licensed since 1983 to operate a brothel known as the Old Bridge Ranch in Storey County. In May of 

Ð116 Nev. 121, 123 (2000) Burgess v. Storey CountyÐ Ð 1998, the Board served Burgess with an order to show cause (“OSC”) why his brothel license should not be revoked. The OSC ordered Burgess to appear before the Board on June 2, 1998, to respond to complaints which “include, but are not limited to” motorcycle noise, harassment of local residents and failure to pay the applicable license fee. 1 On June 2, 1998, Burgess and his attorney appeared before the Board. The hearing focused almost entirely on Burgess's association with the Hell's Angels. Board Commissioner Charles Haynes admitted that concerns regarding the Hell's Angels were not included in the OSC. Both Burgess's counsel and the Storey County District Attorney requested a continuance so that Burgess could respond to the accusations concerning the Hell's Angels. The Board ignored the request, and the hearing continued. Throughout the hearing, Storey County Sheriff and Board Commissioner Robert Del Carlo testified that he was concerned with the Hell's Angels' possible involvement with the Old Bridge Ranch. Haynes stated that the Hell's Angels are “known to be involved in organized crime, and anybody who does not realize that needs to wake up and come into the 20th century.” Del Carlo and Haynes introduced several pieces of evidence, including downloaded internet articles describing illegal activities by the Hell's Angels; three unsigned criminal informations regarding illegal activities by members of the Hell's Angels; a work permit application for Troy Regas, a manager at Old Bridge Ranch; a letter detailing Troy Regas's prior conviction of possession of cocaine

with intent to distribute and Regas's association with the Hell's Angels. The only evidence directly concerning Burgess was that on one occasion Burgess walked to a competing brothel while carrying a baseball bat. When Haynes was asked what evidence existed to show that organized crime was involved with Old Bridge Ranch, he replied, “If it looks like a duck and smells like a duck and it walks like a duck, it's a duck.” Burgess testified that he was not a member of the Hell's Angels, but would like to be. Burgess is a member of a Reno-based motorcycle club, which is attempting to “patch over” to the Hell's Angels. Burgess also testified that the Hell's Angels did not meet at the Old Bridge Ranch, and that the Hell's Angels had no influence over the operation of his business. At the close of the hearing, the Board voted to revoke Burgess's brothel license. Burgess filed an emergency petition for a writ of PDQGDPXVLQGLVWULFWFRXUWZKLFKZDVGHQLHG __________ 1

Although the OSC alleged that Burgess failed to pay a license fee, this statement was a clerical mistake, as respondents do not dispute that the license fee was paid prior to the license revocation hearing.

Ð116 Nev. 121, 124 (2000) Burgess v. Storey CountyÐ Ð mandamus in district court, which was denied. 2 We determine that the district court abused its discretion when it denied Burgess's petition for a writ of mandamus. DISCUSSION [Headnotes 1, 2] A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust or station, or to control an arbitrary or capricious exercise of discretion. See NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-604, 637 P.2d 534, 536 (1981). We review a district court's denial of a petition for a writ of mandamus under the abuse of discretion standard. County of Clark v. Doumani, 114 Nev. 46, 53, 952 P.2d 13, 17 (1998). Procedural due process Burgess contends that the OSC failed to provide proper notice that his association with the Hell's Angels would be discussed at the hearing. [Headnotes 3, 4] “The protections of due process attach only to deprivations of property or liberty interests.” Tarkanian v. Nat'l Collegiate Athletic Ass'n, 103 Nev. 331, 337, 741 P.2d 1345, 1349 (1987); Wedges/Ledges of California, Inc. v. City of Phoenix, Arizona, 24 F.3d 56, 62 (9th Cir. 1994). A protected property interest exists when an individual has a reasonable expectation of entitlement derived from “existing rules or understandings that stem from an independent source such as state law.” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). [Headnote 5] Burgess argues that he has a property interest in his brothel license. We agree. Storey County's code provides that “[t]he board of county commissioners shall have the power to cancel the [brothel] license after hearing and good cause shown.” Storey County, Nevada, Code ch. 5.16.130(B). Because the revocation of a brothel license in Storey County requires a hearing and a showLQJRIJRRGFDXVH __________ 2

After the state district court denied Burgess's petition for a writ of mandamus, Burgess filed a complaint in United States District Court pursuant to 42 U.S.C. sections 1983 and 1988, alleging that the Board deprived him of his constitutional rights. Based upon a determination that Burgess would likely succeed on his freedom

of association claim, the federal district court judge granted Burgess's motion for a preliminary injunction and enjoined the enforcement of the license revocation pending a final resolution of the matter.

Ð116 Nev. 121, 125 (2000) Burgess v. Storey CountyÐ Ð ing of good cause, Burgess had a reasonable expectation of entitlement to his brothel license. Therefore, we conclude that Burgess had a protected property interest in the license. [Headnote 6] Having determined that the protections of due process attached to Burgess's brothel license, our next inquiry is whether Burgess received notice that his alleged association with the Hell's Angels would be discussed at the hearing and used as a basis to revoke his license. See Whitney v. State, Employment Security Dep't, 105 Nev. 810, 813, 783 P.2d 459, 460 (1989) (“Basic concepts of fairness and due process require that one who is charged with a wrongdoing be put on notice as to what conduct constitutes the wrong.”). The Board admits that the OSC does not mention Burgess's involvement with the Hell's Angels. We conclude that the Board failed to provide Burgess with proper notice of what was to be discussed at the license revocation hearing. Therefore, the Board deprived Burgess of his due process right to receive proper notice. First Amendment Burgess also contends that the Board violated the First Amendment by revoking his brothel license because of his association with the Hell's Angels. [Headnote 7] The United States Supreme Court has stated that all Americans have a “right to associate for the purposes of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.” Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984). The Ninth Circuit Court of Appeals has recognized an individual's First Amendment right to associate with the Hell's Angels. United States v. Rubio, 727 F.2d 786, 791 (9th Cir. 1983). [Headnotes 8, 9] We recognize that Burgess's right to associate with the Hell's Angels is not absolute, however. “Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts, 468 U.S. at 623. The Board has the burden to show a compelling governmental interest to justify a restriction on Burgess's right to associate with the Hell's Angels. See Elrod v. Burns, 427 U.S. 347, 362 (1976).

Ð116 Nev. 121, 126 (2000) Burgess v. Storey CountyÐ Ð [Headnote 10] Our review of the license revocation hearing transcript reveals that the Board revoked Burgess's brothel license because of his association with the Hell's Angels. None of the evidence introduced at the hearing had anything to do with the criminal activities of Burgess or the Old Bridge Ranch. 3 The Board failed to demonstrate a compelling state interest to justify a restriction on Burgess's right to associate. Therefore, we conclude that the Board violated the First Amendment when it revoked Burgess's brothel license because of his association with the Hell's Angels.

CONCLUSION We conclude that the Board deprived Burgess of his due process right to receive sufficient notice by failing to notify Burgess that his association with the Hell's Angels would be discussed at the license revocation hearing. The Board also violated the First Amendment by revoking Burgess's brothel license because of his association with the Hell's Angels. For these reasons, we conclude that the district court abused its discretion by denying Burgess's petition for a writ of mandamus. We reverse and remand this case to the district court so that it may issue a writ of mandamus ordering the Board to reinstate Burgess's brothel license. __________ 3

The Board also contends that the revocation of the license was justified because on one occasion Burgess walked to a competing brothel while carrying a baseball bat. Our review of the license revocation hearing transcript, which is almost entirely dedicated to Burgess's association with the Hell's Angels, indicates that the Board did not revoke Burgess's license on the basis of the baseball bat incident. ____________

Ð116 Nev. 127, 127 (2000) State of Nevada v. Dist. Ct.Ð Ð THE STATE OF NEVADA, Petitioner, 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 TIMOTHY JOHN HEDLAND, Real Party in Interest. No. 32936 THE STATE OF NEVADA, Petitioner, 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 STEVEN HENRY, Real Party in Interest. No. 32937 THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE JOSEPH S. PAVLIKOWSKI, District Judge, Respondents, and RYAN DAVID MELVIN, Real Party in Interest. No. 32938 THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE MICHAEL L. DOUGLAS, District Judge, Respondents, and JERRY EDMOND MILEY, Real Party in Interest. No. 32939 THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE JOSEPH S. PAVLIKOWSKI, District Judge, Respondents, and DEAN THOMAS MILLER, Real Party in Interest. No. 32940

THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE JOSEPH T. BONAVENTURE, 'LVWULFW-XGJH5HVSRQGHQWV

Ð116 Nev. 127, 128 (2000) State of Nevada v. Dist. Ct.Ð Ð District Judge, Respondents, and REGINALD RAGSDALE, Real Party in Interest. No. 32941 February 2, 2000

994 P.2d 692

Original petitions for writs of mandamus challenging orders of the district court affirming justices' courts' orders dismissing charges of driving under the influence. Motorists charged with driving under the influence (DUI) pleaded guilty in the justice court to general traffic code infractions. Motorists moved to dismiss the DUI charges, on the theory of redundancy. The justice court granted the motions. State appealed. The district court affirmed. State petitioned for writs of mandamus, and the petitions were consolidated. The supreme court held that convictions for both DUI and a traffic infraction would not be redundant. Petitions granted (Docket Nos. 32936, 32938, 32939, 32940 and 32941); petition denied (Docket No. 32937). [Rehearing denied April 19, 2000, for Docket Nos. 32936, 32938, 32939, 32940 and 32941] [En banc reconsideration denied September 19, 2000, for Docket Nos. 32936, 32938, 32939, 32940 and 32941] Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and Owen Porterfield and Bruce Nelson, Deputy District Attorneys, Clark County, for Petitioners. John Glenn Watkins, Las Vegas, for Real Parties in Interest. 1. Certiorari; Habeas Corpus; Mandamus; Prohibition; Quo Warranto. The power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus is part of the supreme court's original jurisdiction. It is not merely auxiliary to the court's appellate jurisdiction. Const. art. 6, § 4. 2. Mandamus. Although a writ of mandamus does not lie to correct errors where action has been taken by the inferior tribunal, the writ may be used to control an arbitrary or capricious exercise of discretion. NRS 34.160. 3. Mandamus. Mandamus is an extraordinary remedy, and it is within the discretion of the court to determine if a petition will be considered. NRS 34.160, 34.170. 4. Mandamus. It was appropriate for supreme court to consider state's petition for writ of mandamus regarding district courts' determinations, in their appellate capacity with respect to justice court decisions, that convictions for driving under the influence (DUI) would be redundant to general trafILFFRGHLQIUDFWLRQV

Ð116 Nev. 127, 129 (2000) State of Nevada v. Dist. Ct.Ð Ð fic code infractions, a significant issue of statewide concern upon which the lower courts were split. Const. art. 6, § 4; NRS 484.379(1). 5. Equity. Laches is an equitable doctrine that may be invoked when delay by one party works to the disadvantage of the other, causing a

change of circumstances that would make the grant of relief to the delaying party inequitable. 6. Mandamus. The doctrine of laches applies to a petition for a writ of mandamus. 7. Mandamus. In deciding whether to apply the doctrine of laches to preclude consideration of a petition for writ of mandamus, a court must determine whether: (1) there was an inexcusable delay in seeking the petition, (2) an implied waiver arose from petitioner's knowing acquiescence in existing conditions, and (3) there were circumstances causing prejudice to respondent. 8. Mandamus. Eleven-month delay in state's filing of petition for writ of mandamus, after district court had affirmed justice court's ruling that convictions for driving under the influence (DUI) would be redundant to general traffic code infractions, warranted denial of the petition under doctrine of laches. NRS 484.379(1). 9. Mandamus. Five-month or six-month delay in state's filing of petitions for writs of mandamus, after district court had affirmed justice court's rulings that convictions for driving under the influence (DUI) would be redundant to general traffic code infractions, did not warrant denial of the petitions under doctrine of laches. NRS 484.379(1). 10. Criminal Law. The issues regarding redundant convictions is whether the gravamen of the charged offenses is the same such that it can be said that the legislature did not intend multiple convictions, and whether the material or significant part of each charge is the same, even if the offenses are not the same. 11. Criminal Law. Where a defendant is convicted of two offenses that, as charged, punish the exact same illegal act, the convictions are “redundant.” 12. Criminal Law. Gravamen of driving under the influence (DUI) was driving or being in actual physical control of vehicle while intoxicated, while gravamen of “rules of the road” general traffic code infraction under state law or municipal ordinance was the manner of operating a vehicle, without regard to whether the motorist was intoxicated, and thus, conviction for both DUI and a traffic infraction would not be redundant. NRS 484.379(1). 13. Criminal Law. The “gravamen” of an offense, for purposes of determining whether a conviction for the offense would be redundant to a conviction for some other offense, typically is the material act being punished. 14. Indictment and Information. Even if convictions for multiple offenses would be impermissibly redundant, the state still may charge all of the offenses in a single case. 15. Criminal Law. Where a defendant is facing multiple charges, a trial court is not UHTXLUHG RYHU WKH VWDWH V REMHFWLRQ WR DFFHSW D

JXLOW\SOHDRQRQHRIWKHFKDUJHV

Ð116 Nev. 127, 130 (2000) State of Nevada v. Dist. Ct.Ð Ð required, over the state's objection, to accept a guilty plea on one of the charges. 16. Criminal Law. Courts have discretion to refuse a guilty plea. NRS 174.035(1). 17. Criminal Law. If the court concludes there is a plea agreement between the parties, the court must conduct a hearing and consider seriously the proffered plea. 18. Criminal Law. Trial court had discretion to refuse motorists' guilty pleas to general traffic code infractions, where motorists had also been charged with driving under the influence (DUI), but there were no plea agreements, the state expressly objected to the pleas, and conviction for multiple offenses might have been redundant. NRS 174.035(1), 484.379(1). 19. Criminal Law. A trial court has discretion to refuse a unilateral guilty plea to the lesser charge, where conviction for multiple offenses might be redundant. NRS 484.379(1). 20. Criminal Law. Justice courts were not required to enter an immediate sentence and conviction after accepting guilty pleas. NRS 173.125.

Before Rose, C. J., Young and Agosti, JJ. OPINION Per Curiam: The state charged each of the real parties in interest with driving under the influence pursuant to NRS 484.379(1) and at least one traffic code infraction under NRS chapter 484 or a Clark County Ordinance. In

each case, the real party in interest appeared in justice's court and asked to plead guilty to the traffic code infraction. The justices' courts accepted the guilty pleas over the state's objections and immediately imposed sentence. Each real party in interest then moved to dismiss the DUI charge on the theory that conviction of that charge would be redundant to the conviction for the traffic code infraction pursuant to this court's decisions in Albitre v. State, 103 Nev. 281, 738 P.2d 1307 (1987) and Donahue v. City of Sparks, 111 Nev. 1281, 903 P.2d 225 (1995). The justices' courts granted the motions. On appeal, the district courts affirmed the justices' courts' orders. The state filed the instant petitions for writs of mandamus challenging the lower courts' decisions. 1 __________ 1

By order on September 15, 1998, we consolidated these petitions and ordered the real parties in interest, on behalf of respondents, to file an answer against issuance of the requested writs.

Ð116 Nev. 127, 131 (2000) State of Nevada v. Dist. Ct.Ð Ð These petitions ask this court to determine whether conviction for a charge of driving under the influence in violation of NRS 484.379(1) would be redundant to conviction for a general traffic code infraction. We conclude that such convictions would not necessarily be redundant. FACTS Docket No. 32936 (Hedland) The state charged real party in interest Timothy John Hedland by criminal complaint with two misdemeanor offenses: driving and/or being in actual physical control while under the influence of intoxicating liquor in violation of NRS 484.379(1) (count I) and failure to maintain travel lane in violation of NRS 484.305 (count II). On May 21, 1997, the justice's court, Judge Pro Tem Swanson, accepted Hedland's offer to plead guilty to count II, over the state's objection, and ordered Hedland to pay a fine. Hedland thereafter filed a motion to dismiss count I. The state opposed the motion. On November 3, 1997, the justice's court, Judge Smith, granted the motion. On appeal to the district court, Judge Bonaventure affirmed the justice's court's order, concluding that the charges were redundant because they arose from the same traffic incident and, therefore, Hedland could not be convicted of both charges. Docket No. 32937 (Henry) The state charged real party in interest Steven Henry by criminal complaint with two misdemeanor charges: driving and/or being in actual physical control while under the influence of intoxicating liquor in violation of NRS 484.379(1) (count I) and failure to use due care by failing to decrease speed when driving on wet pavement in violation of NRS 484.363 (count II). On January 16, 1997, the justice's court, Judge Smith, accepted Henry's offer to plead guilty to count II and imposed a fine. 2 Thereafter, Henry filed a motion to dismiss count I. The state opposed the motion. On April 23, 1997, the justice's court granted the motion, concluding that the state necessarily had to prove count II to prove count I. On appeal to district court, Judge Bonaventure affirmed the justice's court's order, concluding that the charges were redundant. Docket No. 32938 (Melvin) The state charged real party in interest Ryan David Melvin by FULPLQDO FRPSODLQW ZLWK WKUHH

PLVGHPHDQRUFKDUJHV __________ 2

The documents before this court indicate that the state did not respond to Henry's request to plead guilty to count II; however, it is not entirely clear whether a representative of the state was present at the time.

Ð116 Nev. 127, 132 (2000) State of Nevada v. Dist. Ct.Ð Ð criminal complaint with three misdemeanor charges: driving and/or being in actual physical control while under the influence of intoxicating liquor in violation of NRS 484.379(1) (count I), basic speeding in violation of NRS 484.361 (count II), and improper lane change in violation of NRS 484.305(1) (count III). On January 30, 1997, Judge Pro Tem Swanson accepted Melvin's offer to plead guilty to counts II and III, over the state's objection, and assessed a fine. Thereafter, Melvin filed a motion to dismiss count I. The state opposed the motion. On June 4, 1997, Judge Abbatangelo granted the motion without explanation. On appeal to district court, Judge Pavlikowski affirmed the justice's court's order, concluding that the charges were redundant because they were based on the same act of driving. Docket No. 32939 (Miley) The state charged real party in interest Jerry Edmond Miley by criminal complaint with two misdemeanor charges: driving and/or being in actual physical control while under the influence of intoxicating liquor in violation of NRS 484.379(1) (count I) and failure to yield right of way in violation of NRS 484.317 (count II). On February 3, 1997, the justice's court, Judge Lippis, accepted Miley's offer to plead guilty to count II, over the state's objection, and ordered Miley to pay a fine. Thereafter, Miley filed a motion to dismiss count I. The state opposed the motion. On October 23, 1997, Judge Lippis granted the motion, concluding that the charges arose from the same course of action. On appeal to district court, Judge Michael L. Douglas affirmed the justice's court's order, concluding that conviction of the DUI charge would be redundant because both charges arose from the same traffic incident. Docket No. 32940 (Miller) The state charged real party in interest Dean Thomas Miller by criminal complaint with two misdemeanor charges: driving and/or being in actual physical control while under the influence of intoxicating liquor in violation of NRS 484.379(1) (count I) and unlawful manner of driving for driving through an intersection in a right-turn-only lane in violation of NRS 484.377 and Clark County Ordinance 14.24.010 (count II). 3 On January 30, 1997, __________ 3

The documents provided to this court regarding the charges against Miller are somewhat unclear. The appendix filed with the petition includes an amended complaint that charges the two offenses set forth above, plus two additional charges: speeding in violation of NRS 484.361 (count III) and failure to signal in violation of NRS 484.343 (count IV). However, Miller only pleaded guilty to count II and there is no indication of how counts III and IV were resolved.

Ð116 Nev. 127, 133 (2000) State of Nevada v. Dist. Ct.Ð Ð Judge Pro Tem Swanson accepted Miller's offer to plead guilty to count II, over the state's objection, and ordered Miller to pay a fine. Thereafter, Miller filed a motion to dismiss count I. On April 24, 1997, the justice's court, Judge Abbatangelo, granted the motion. On appeal to district court, Judge Pavlikowski affirmed the justice's court's order, concluding that the charges were redundant because they arose from the same act of driving. Docket No. 32941 (Ragsdale) The state charged real party in interest Reginald Ragsdale by criminal complaint with two misdemeanor charges: driving and/or being in actual physical control while under the influence of intoxicating liquor in violation of NRS 484.379(1) (count I) and failure to yield right of way in violation of NRS 484.315 and Clark County Ordinance 14.32.070 (count II). On May 21, 1997, Judge Pro Tem Swanson accepted Ragsdale's offer

to plead guilty to count II, over the state's objection, and ordered Ragsdale to pay a fine. Thereafter, Ragsdale filed a motion to dismiss count I. The state opposed the motion. On November 3, 1997, the justice's court, Judge Smith, granted the motion. On appeal to district court, Judge Bonaventure affirmed the justice's court's order, concluding that the charges were redundant because they arose from the same traffic incident. DISCUSSION Intervention by way of extraordinary relief [Headnote 1] The Nevada Constitution grants this court the “power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus.” Nev. Const. art. 6, § 4. The power to issue such writs is part of this court's original jurisdiction; it is not merely auxiliary to our appellate jurisdiction. State of Nevada v. McCullough, 3 Nev. 202, 214-16 (1867). [Headnotes 2, 3] A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust or station. NRS 34.160. Although this court has stated that a writ of mandamus does not lie to correct errors where action has been taken by the inferior tribunal, 4 we have utilized mandamus to control an arbitrary or capricious exercise of discretion, VHH5RXQG+LOO*HQ,PS'LVWY1HZPDQ1HY

 __________ 4

See, e.g., York v. Board of County Comm'rs, 89 Nev. 173, 509 P.2d 967 (1973); State v. District Court, 46 Nev. 25, 207 P. 80 (1922); State ex rel. Hetzel v. Board of Comm'rs, 8 Nev. 309 (1873); State of Nevada v. Wright, 4 Nev. 119 (1868).

Ð116 Nev. 127, 134 (2000) State of Nevada v. Dist. Ct.Ð Ð see Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). A writ of mandamus generally will not issue, however, if the petitioner has a plain, speedy and adequate remedy in the ordinary course of law. See NRS 34.170. Further, mandamus is an extraordinary remedy, and it is within the discretion of this court to determine if a petition will be considered. See Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982). [Headnote 4] This court has generally declined to entertain petitions for review of a lower court decision where that decision is appealable. See Ashokan v. State, Dep't of Ins., 109 Nev. 662, 665, 856 P.2d 244, 246 (1993). In Nevada, district courts have final appellate jurisdiction over cases arising in justice's court. Nev. Const. art. 6, § 6; Tripp v. City of Sparks, 92 Nev. 362, 550 P.2d 419 (1976). We are not unmindful that entertaining petitions for review of a district court decision where the district court was acting in its appellate capacity would undermine the finality of the district court's appellate jurisdiction. Accordingly, as a general rule, we have declined to entertain writs that request review of a decision of the district court acting in its appellate capacity unless the district court has improperly refused to exercise its jurisdiction, has exceeded its jurisdiction, or has exercised its discretion in an arbitrary or capricious manner. Nonetheless, we have decided to exercise our constitutional prerogative to entertain the instant writ petitions. Although loath to deviate from our general practice, we do so in these cases for the following reason: various departments in the Justice's Court for the Las Vegas Township and the Eighth Judicial District Court have reached different conclusions on the significant issues of statewide concern raised by these petitions. Thus, there essentially is a split of authority amongst the lower courts. The only way this split can be resolved is for this

court to exercise its constitutional prerogative to entertain these writ petitions. See Jeep Corp. v. District Court, 98 Nev. 440, 443, 652 P.2d 1183, 1185 (1982) (where circumstances reveal urgency or strong necessity, extraordinary relief may be granted); cf. State of Nevada v. Justice Court, 112 Nev. 803, 805 n.3, 919 P.2d 401, 402 n.3 (1996) (electing to entertain petition for writ of prohibition even though relief should have been sought first in district court “due to the exigent circumstances presented and because this case presented an unsettled issue of statewide importance”). Laches The real parties argue that the petitions are barred by the doctrine of laches. The real parties contend that the petitions should KDYH EHHQ ILOHG LPPHGLDWHO\ IROORZLQJ WKH GLVPLVVDO RI WKH DSSHDOV LQ

GLVWULFWFRXUW Ð116 Nev. 127, 135 (2000) State of Nevada v. Dist. Ct.Ð Ð have been filed immediately following the dismissal of the appeals in district court. 5 [Headnotes 5-7] Laches is an equitable doctrine that may be invoked when delay by one party works to the disadvantage of the other, causing a change of circumstances that 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). The doctrine applies to a petition for a writ of mandamus. Buckholt v. District Court, 94 Nev. 631, 633, 584 P.2d 672, 673 (1978). In deciding whether to apply the doctrine to preclude consideration of such a petition, a court must determine whether “(1) there was an inexcusable delay in seeking the petition; (2) an implied waiver arose from petitioners' knowing acquiescence in existing conditions; and, (3) there were circumstances causing prejudice to respondent.” Id. at 633, 584 P.2d at 673-74. [Headnotes 8, 9] Applying the factors set forth in Buckholt, we conclude that only the eleven-month delay in the filing of the petition docketed in this court as Docket No. 32937 warrants imposition of the doctrine of laches to preclude consideration of the petition. Accordingly, we deny the petition for a writ of mandamus in that case. 6 Redundant convictions These petitions ask us to determine whether conviction for driving under the influence in violation of NRS 484.379 is necessarily redundant to conviction for traffic code infractions occurring during the same driving episode. The parties focus their attention on this court's decisions in Albitre v. State, 103 Nev.  __________ 5

The approximate delays between entry of the district court orders and filing of the petitions are as follows: five months in Docket Nos. 32938 and 32940; six months in Docket Nos. 32936, 32939, and 32941; and eleven months in Docket No. 32937. 6

The real parties also argue that the petitions are moot because the one-year statute of limitations for driving under the influence ran prior to the filing of the petitions or while the petitions were pending in this court. We conclude that the statute of limitations ran prior to the filing of the petition only in the case docketed in this court as Docket No. 32937. As set forth above, we have concluded that consideration of that petition is precluded by the doctrine of laches and, therefore, we need not resolve the statute of limitations argument in that matter. As to the remaining petitions, the statute of limitations did not run prior to the filing of the petitions. Moreover, as discussed herein, we conclude that the original charging documents setting forth the driving under the influence charges were erroneously dismissed and must be reinstated. Thus, the statute of limitations is not implicated.

Ð116 Nev. 127, 136 (2000) State of Nevada v. Dist. Ct.Ð Ð 281, 738 P.2d 1307 (1987) and Donahue v. City of Sparks, 111 Nev. 1281, 903 P.2d 225 (1995). 7 Albitre was this court's first foray into the concept of redundant convictions. Albitre was an intoxicated driver who caused the deaths of two people in a traffic accident. A jury convicted Albitre of two counts each of felony driving under the influence in violation of NRS 484.3795, involuntary manslaughter and felony reckless driving. Albitre, 103 Nev. at 282, 738 P.2d at 1308. This court reversed four of the convictions, concluding that Albitre was “entitled to relief from redundant convictions that do not comport with legislative intent.” Id. at 283, 738 P.2d at 1309. We reasoned that: The gravamen of all the charges is that Albitre proximately caused the death of two persons by operating a vehicle in a reckless and unsafe manner due to her intoxication. The State has simply compounded the convictions by eliminating the aspect of alcohol from the four counts under question. We are convinced that the Legislature never intended to permit the State to proliferate charges as to one course of conduct by adorning it with chameleonic attire. Although charging to the limit may be justified to cover developing nuances of proof, the jury should have received an instruction limiting the number of conviction alternatives. The failure to do so was error. Id. at 284, 738 P.2d at 1309. [Headnotes 10, 11] The issue under Albitre is whether the gravamen of the charged offenses is the same such that it can be said that the legislature did not intend multiple convictions. “[R]edundancy does not, of necessity, arise when a defendant is convicted of numerous charges arising from a single act.” Skiba v. State, 114 Nev. 612, 616 n.4, 959 P.2d 959, 961 n.4 (1998). The question is whether the material or significant part of each charge is the same even if the offenses are not the same. Thus, where a defendant is convicted of two offenses that, as charged, punish the exact same illegal act, the convictions are redundant. For example, in Skiba, the gravamen of the charges, battery with the use of a deadly weapon DQGEDWWHU\FDXVLQJVXEVWDQWLDOERGLO\KDUP __________ 7

We acknowledge that the bulk of the petitions filed by the state address whether the charged offenses are the “same offense” under the test set forth in Blockburger v. United States, 284 U.S 299 (1932). We need not reach this issue because the lower courts relied on the redundant convictions analysis in Albitre, not the same offense analysis in Blockburger. Nonetheless, we note that each of the offenses at issue in each of these cases requires proof of an element that the other offenses do not. Accordingly, under Blockburger, the offenses are not the same.

Ð116 Nev. 127, 137 (2000) State of Nevada v. Dist. Ct.Ð Ð and battery causing substantial bodily harm, was that the defendant hit the victim with a broken beer bottle. Accordingly, conviction for both charges was redundant. Skiba, 114 Nev. at 612, 959 P.2d at 959; see also Dossey v. State, 114 Nev. 904, 964 P.2d 782 (1998) (gravamen of charges (driving under the influence, driving while having 0.10 percent or more by weight of alcohol in the blood and having a blood alcohol content of 0.10 percent or more by weight of alcohol in the blood within two hours of driving) was that defendant was driving while intoxicated); State v. Koseck, 113 Nev. 477, 936 P.2d 836 (1997) (gravamen of charges (lewdness and sexual assault) was that defendant had unlawful sexual intercourse with victim). The real parties in interest assert that our opinion in Donahue necessitates the conclusion that the gravamen of the offenses at issue is the same. We disagree. In Donahue, this court briefly addressed Albitre where the defendant had been charged with violating three

city ordinances: driving under the influence, careless driving and failure to decrease speed. 111 Nev. at 1282, 903 P.2d at 226. The issue of redundant convictions was not specifically before this court in Donahue. However, to avoid ruling on a constitutional issue presented by Donahue, this court stated: The City conceded at oral argument that under Albitre v. State, 103 Nev. 281, 738 P.2d 1307 (1987), Donahue could not be convicted and sentenced for all three charges because two of the charges are redundant. Thus, Donahue does not face a sentence in excess of six months' imprisonment. Accordingly, we need not reach Donahue's aggregation argument. Id. at 1283, 903 P.2d at 226-27. However, in a footnote, this court observed that “situations may arise in the future where the law announced in Albitre will not prevent consecutive sentences on multiple charges.” Id. at 1283 n.2, 903 P.2d at 227 n.2. We conclude that the real parties' reliance on Donahue is misplaced. Donahue was decided based solely on the city's representations regarding the particular facts of the case. 8 It does not stand for the general proposition that a conviction for driving XQGHUWKHLQIOXHQFHLQYLRODWLRQRI156 LVQHFHVVDULO\

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In particular, we note that under the Sparks Municipal Code, it appears that the driving under the influence and failure to decrease speed charges provided the substantive proof to establish the careless driving charge. See Sparks Municipal Code 10.44.050. We recognize that where a charge of reckless or careless driving is premised on the fact that the defendant was driving under the influence, convictions for both reckless or careless driving and driving under the influence arguably would be redundant. See Johnson v. State, 111 Nev. 1210, 902 P.2d 48 (1995). This does not appear to be the situation in any of the cases presently before this court.

Ð116 Nev. 127, 138 (2000) State of Nevada v. Dist. Ct.Ð Ð under the influence in violation of NRS 484.379(1) is necessarily redundant to a conviction for speeding or any other general traffic code infraction. Because the instant cases are readily distinguishable both on the facts and the nature of the charged offenses, we conclude that Donahue is not dispositive. [Headnotes 12-20] Applying the redundant convictions analysis, we conclude that the gravamen of the offenses charged against each of the real parties in interest is not the same. 9 The gravamen of a DUI charge pursuant to NRS 484.379(1) is that the defendant was driving and/or in actual physical control of a vehicle while under the influence of intoxicating liquor. A conviction for DUI under this statute does not require proof that the driver did any act or neglected any duty imposed by law while driving under the influence. Cf. NRS 484.3795 (driving under the influence causing substantial bodily harm or death). In other words, the defendant's ability to drive safely while intoxicated is not relevant to a charge under NRS 484.379(1). Cf. Cotter v. State, 103 Nev. 303, 738 P.2d 506 (1987) (addressing violation of NRS 484.3795). Therefore, it cannot be said that NRS 484.379(1) is intended to punish the violation of a particular traffic rule. In contrast, the gravamen of a “rules of the road” charge under NRS chapter 484 or a municipal ordinance is that the defendant was operating a vehicle in a particular manner that is prohibited by the relevant statute. Thus, for example, the gravamen of a charge for violating NRS 484.305(1) is that the driver changed a direct course of travel without giving the proper signal. A “rule of the road” charge is not intended to punish for driving while intoxicated and does not take into consideration whether the driver was intoxicated. Accordingly, we conclude that the gravamen of the charged offenses is not the same, and therefore, convictions for each of the offenses would not have been impermissibly redundant. 10 __________ 9

We reject the real parties' suggestion that the gravamen of the charges is the act of driving. The act of driving overlaps between each offense, as none could have been committed without the act of driving; however,

we conclude that this is not the gravamen of the charged offenses. The gravamen of an offense typically is the material act being punished—driving is not itself being punished pursuant to any of the charges. 10

The petitions filed by the state and the answer filed by the real parties in interest are filled with invective regarding the tactics employed in justice's court by each side. We take this opportunity to clarify a few misconceptions highlighted by these arguments. First, the real parties repeatedly assert that the tactic employed in justice's court—requesting to plead guilty to the traffic code infraction and then moving to dismiss the driving under the influence charge—was justified by overzealous and duplicitous over-charging by the state. We remind the real

Ð116 Nev. 127, 139 (2000) State of Nevada v. Dist. Ct.Ð Ð CONCLUSION Based on the foregoing, we grant the petitions for writs of mandamus in each of these matters except Docket No. 32937. The petition filed in Docket No. 32937 is denied based on the doctrine of laches. The clerk of this court shall issue a writ to each district court in the other matters requiring the court to vacate its order dismissing the state's appeal and enter an order directing the justice's court to reinstate the dismissed charge. __________ parties that even if convictions for multiple offenses would be impermissibly redundant, the state still may charge all of the offenses in a single case. See Jenkins v. District Court, 109 Nev. 337, 341, 849 P.2d 1055, 1057 (1993); Albitre, 103 Nev. at 284, 738 P.2d at 1309. Second, where a defendant is facing multiple charges, a trial court is not required, over the state's objection, to accept a guilty plea on one of the charges. “A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court.” North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970); see also Jefferson v. State, 108 Nev. 953, 954, 840 P.2d 1234, 1235 (1992) (“appellant had no right to enter a guilty plea to any particular charge”). Nevada courts have discretion to refuse a guilty plea. NRS 174.035(1); Sturrock v. State, 95 Nev. 938, 940, 604 P.2d 341, 343 (1979). If the court concludes there is a plea agreement between the parties, the court must conduct a hearing and consider seriously the proffered plea. Sparks v. State, 104 Nev. 316, 322-23, 759 P.2d 180, 184 (1988) (setting forth factors to consider in deciding whether to accept proffered plea). Here, the justices' courts could have refused the guilty pleas offered by the real parties because: there were no plea agreements in any of the cases; the state expressly objected to the pleas in all but one of the cases; and, where conviction for multiple offenses might be redundant, accepting such a unilateral guilty plea undermines prosecutorial discretion in charging and the state's interest in obtaining a conviction on the other charges, which may be the more “serious” charges. See Jefferson, 108 Nev. at 954, 840 P.2d at 1235 (no abuse of discretion to refuse guilty plea where there was no plea agreement and charge to which defendant offered to plead guilty was lesser included offense of another charge). Moreover, even if the justices' courts had elected to accept the guilty pleas, they were not obligated to enter an immediate sentence and conviction. See Jenkins, 109 Nev. at 341, 849 P.2d at 1057; see also NRS 173.125. ____________

Ð116 Nev. 140, 140 (2000) Knight v. StateÐ Ð SAMUEL KNIGHT, Appellant, v. THE STATE OF NEVADA, Respondent. No. 31810

February 3, 2000

993 P.2d 67

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of trespass and one count of carrying a concealed weapon. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge. Defendant was convicted in the district court of one count of trespass and one count of carrying a concealed weapon, and he appealed. The supreme court held that: (1) satisfaction of a fine or completion of a sentence does not, in and of itself, render a timely appeal from a criminal conviction moot; overruling Bryan v. State, 78 Nev. 38, 368 P.2d 672 (1962); State v. Cohen, 45 Nev. 266, 201 P. 1027 (1921); State v. Pray, 30 Nev. 206, 94 P. 218 (1908); (2) prosecutor's statements did not constitute improper comment on defendant's failure to testify; (3) instruction which advised jury that “[e]very person found to be carrying a dirk, dagger or dangerous knife concealed on his person is guilty of the crime of carrying a concealed weapon” was plainly erroneous; (4) steak knife carried by defendant in his back pocket was not, as matter of law, “dirk” or “dagger” for purposes of statute prohibiting carrying of concealed weapons; (5) determination as to whether steak knife was “other dangerous or deadly weapon” for purposes of statute was question of fact for jury; and (6) erroneous jury instruction was harmless. Affirmed. Christopher R. Oram, Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. The satisfaction of a fine or completion of a sentence does not, in and of itself, render a timely appeal from a criminal conviction moot; however, completion of a defendant's sentence may render a challenge to the sentence itself moot; overruling Bryan v. State, 78 Nev. 38, 368 P.2d 672 (1962); State v. Cohen, 45 Nev. 266, 201 P. 1027 (1921); State v. Pray, 30 Nev. 206, 94 P. 218 (1908). 2. Criminal Law. Prosecutor's objection to factual assertions made by defendant acting as his own counsel, on ground that defendant was “testifying,” and his statements during closing argument that jury should consider testimony of witnesses because each witness was placed under oath and subjected to cross-examination and possible impeachment, and that defenGDQW V FRPPHQWV GXULQJ

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Ð116 Nev. 140, 141 (2000) Knight v. StateÐ Ð

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dant's comments during opening statement and closing argument were not evidence, did not constitute improper comment on defendant's failure to testify. Criminal Law. When a 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. Criminal Law. A prosecutor's comments should be viewed in context, and a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone. Criminal Law; Weapons. Instruction which advised jury that “[e]very person found to be carrying a dirk, dagger or dangerous knife concealed on his person is guilty of the crime of carrying a concealed weapon” was plainly erroneous. Term “dangerous knife,” as used in prior version of governing statute, is unconstitutionally vague. NRS 202.350(1)(b)(2). Weapons. As used in statute prohibiting carrying of concealed weapons, a “dagger” is a short weapon used for thrusting and stabbing and that stabbing is using a pointed weapon to wound or kill. NRS 202.350(1)(b)(2). Weapons. As used in statute prohibiting carrying of concealed weapons, a “dirk” is, in most cases, simply a type of dagger. NRS 202.350(1)(b)(2). Weapons. Relevant factors to consider when determining whether a knife is a “dirk” or “dagger” of type prohibited by carrying concealed weapon statute include whether the knife has handguards and a blade that locks in place. NRS 202.350(1)(b)(2). Statutes.

Penal statutes should be strictly construed and any reasonable doubts resolved in favor of the accused. 10. Weapons. Common household steak knife carried by defendant in his back pocket was not, as matter of law, “dirk” or “dagger” for purposes of statute prohibiting carrying of concealed weapons, where steak knife was not primarily designed or fitted for use as weapon, and did not have handguards to prevent hand from slipping onto blade if it were used as stabbing implement. NRS 202.350(1)(b)(2). 11. Weapons. Determination as to whether common household steak knife carried by defendant in his back pocket was “other dangerous or deadly weapon” for purposes of statute prohibiting carrying of concealed weapons was question of fact for jury. NRS 202.350(1)(b)(2). 12. Criminal Law. Error in instructing jury in prosecution for carrying concealed weapon that “[e]very person found to be carrying a dirk, dagger or dangerous knife concealed on his person is guilty of the crime of carrying a concealed weapon” was harmless, where evidence showed that defendant ZDVDSSUHKHQGHGZKLOHFDUU\LQJVWHDNNQLIHLQKLVEDFNSRFNHWVKRUWO\DIWHUXVLQJNQLIHWRVWDE

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Ð116 Nev. 140, 142 (2000) Knight v. StateÐ Ð was apprehended while carrying steak knife in his back pocket shortly after using knife to stab two people. NRS 202.350(1)(b)(2).

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: FACTS The facts underlying the instant prosecution are unusual. Prior to the charged incident, appellant Samuel Knight had confronted Matthew Minton, a resident of an apartment in Las Vegas, on at least two prior occasions. Appellant complained to Minton that someone in the apartment had taken his car. On August 22, 1997, at approximately 8:30 a.m., appellant knocked on the door of the apartment where Minton was staying. Jenise Landolfa, another resident of the apartment, went to the door. Landolfa saw appellant through the peephole and told him that if he did not leave, she would call the police. Appellant yelled at Landolfa and proceeded to kick in the door. Appellant was carrying a steak knife and a fork. 1 Landolfa later testified that appellant cut her hand with the knife. Appellant entered the apartment. A guest in the apartment, Hiram Figgures, fled through a window. Appellant pursued Figgures to a convenience store. Police apprehended appellant at the store. At that time, police found the fork and knife in appellant's back pockets. Appellant's shirt fully concealed both the knife and the fork from view. An officer observed that the knife appeared to have some food on it and that it looked like it had been used for “cutting steak or something like that.” The State charged appellant, by criminal complaint, with one count each of invasion of the home, battery with the use of a deadly weapon, and carrying a concealed weapon. The State specifically alleged that appellant carried “concealed upon his person, a deadly weapon, to-wit: a knife.” The charge of battery with the use of a deadly weapon was dismissed following the preliminary hearing, but appellant was bound over on the other charges. Prior to trial, appellant obtained leave from the court to represent himself. Standby counsel from the public defender's office assisted appellant in subsequent proceedings. Following the trial, the jury found appellant guilty of one countRIWUHVSDVVDPLVGHPHDQRUDQG

OHVVHURIIHQVHWRLQYDVLRQRIWKHKRPH __________ 1

The fork was described by one witness as a barbecue fork, and in a police report as a large two-pronged fork.

Ð116 Nev. 140, 143 (2000) Knight v. StateÐ Ð

of trespass, a misdemeanor and lesser offense to invasion of the home. The jury also found appellant guilty of carrying a concealed weapon, a gross misdemeanor. On February 3, 1998, the district court entered the judgment of conviction. The court sentenced appellant to serve six months in the Clark County Detention Center for trespass and one year in the detention center for carrying a concealed weapon. This appeal followed. DISCUSSION State's motion to dismiss On December 16, 1998, the State filed a motion to dismiss this appeal on the ground that expiration of appellant's sentence had rendered the matter moot. In response, appellant conceded that he had expired his sentence but opposed dismissal of this appeal. This court deferred its decision on the State's motion until the completion of briefing. We now rule that the instant appeal is not moot. Accordingly, we deny the State's motion to dismiss. This court has concluded that an appeal in a misdemeanor or gross misdemeanor case was rendered moot by satisfaction of a fine or completion of a defendant's sentence. Bryan v. State, 78 Nev. 38, 368 P.2d 672 (1962); State v. Cohen, 45 Nev. 266, 201 P. 1027 (1921); see also State v. Pray, 30 Nev. 206, 94 P. 218 (1908). This court concluded that no effective relief would accrue from reversal of the defendant's conviction if the fine had been paid or the sentence served. See Bryan, 78 Nev. at 39-40, 368 P.2d at 672; Cohen, 45 Nev. at 272-73; 201 P. at 1029; Pray, 30 Nev. at 220, 94 P. at 220. [Headnote 1] More recently, however, this court has recognized that criminal convictions carry with them certain collateral consequences. See Hughes v. State, 112 Nev. 84, 910 P.2d 254 (1996); see also Angle v. State, 113 Nev. 757, 761 n.1, 942 P.2d 177, 180 n.1 (1997); Arterburn v. State, 111 Nev. 1121, 1124 n.1, 901 P.2d 668, 670 n.1 (1995). For example, even a gross misdemeanor conviction may impact penalty considerations in a subsequent criminal action. Hughes, 112 Nev. at 87, 910 P.2d at 255. Our recent holdings are consistent with the decisions of the United States Supreme Court which have recognized that it is an “obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.” Sibron v. New York, 392 U.S. 40, 55 (1968) (quoted in Spencer v. Kemna, 523 U.S. 1, 12 (1998)). Consequently, we expressly overrule Bryan, Cohen, and Pray to the extent that they hold that satisfaction of a fine or completion of a sentence renders a timely appeal from a criminal conYLFWLRQPRRW

Ð116 Nev. 140, 144 (2000) Knight v. StateÐ Ð viction moot. We recognize, however, that completion of a defendant's sentence may render a challenge to the sentence itself moot. See generally Johnson v. Director, Dep't Prisons, 105 Nev. 314, 316, 774 P.2d 1047, 1049 (1989) (stating that expiration of a defendant's sentence rendered any question concerning computation of the sentence moot). We now turn to the merits of this appeal. Prosecutorial misconduct [Headnote 2] First, appellant claims that the prosecutor improperly commented on appellant's failure to testify. As previously noted, appellant represented himself at trial. In closing argument, the prosecutor lodged several objections to appellant's attempts to make factual assertions. On one occasion, the prosecutor stated, “Objection once again, he's testifying. If he's going to testify, I would like him to take the stand and be put under oath, and I have some questions I'd like to ask him.” On this particular occasion, the court overruled the objection on the ground that appellant was explaining his theory of the case. Appellant complains that the prosecutor's objection was improper. Appellant further complains that the prosecutor made additional improper comments during summation.

The prosecutor told the jury that they should consider the testimony of the witnesses because each witness was placed under oath and subjected to cross-examination and possible impeachment. The prosecutor explained that this was to ensure reliable testimony. The prosecutor cautioned the jury that what appellant said in his opening statement and in closing argument was not evidence because appellant was acting in his capacity as counsel. [Headnotes 3, 4] Considered in context, the prosecutor's comments in the instant case do not warrant reversal. The prosecutor did not directly comment on appellant's failure to testify. When a 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.” Harkness v. State, 107 Nev. 800, 803, 820 P.2d 759, 761 (1991) (quoting United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968)). A prosecutor's comments should be viewed in context, and “a criminal conviction is not to be lightly overturned on the EDVLVRIDSURVHFXWRU VFRPPHQWVVWDQGLQJDORQH´

Ð116 Nev. 140, 145 (2000) Knight v. StateÐ Ð basis of a prosecutor's comments standing alone . . . .” United States v. Young, 470 U.S. 1, 11 (1985). Here, the prosecutor's comments are best understood as an attempt to dissuade the jury from relying on appellant's factual assertions, and to instead focus the jury's deliberation on the evidence adduced at the trial. Under these circumstances, the jury could not “naturally and necessarily” consider the prosecutor's comments as being directed at appellant's failure to testify. Carrying a concealed weapon Second, appellant claims that there was insufficient evidence to convict him of carrying a concealed weapon, pursuant to NRS 202.350(1)(b). The statute prohibits an individual from carrying, “concealed upon his person any: (1) Explosive substance, other than ammunition or any components thereof; (2) Dirk, dagger or machete; (3) Pistol, revolver or other firearm, or other dangerous or deadly weapon; or (4) Knife which is made an integral part of a belt buckle.” 2 Appellant asserts that a steak knife is not a weapon pursuant to the statute. 3 In respondent's appendix, the State includes color photographs of the knife at issue. It is a common steak knife with a serrated blade. The knife is photographed next to a ruler. It appears that the handle of the knife is approximately four inches in length with a blade of roughly equivalent length. [Headnote 5] Preliminarily, we note that the jury was not properly instructed. Jury Instruction No. 6 reads: “Every person found to be carrying a dirk, dagger or dangerous knife concealed on his person is guilty of the crime of Carrying a Concealed Weapon.” (Emphasis added.) Prior to 1995, NRS 202.350(1)(b)(2) prohibited concealment of a “[d]irk, dagger or dangerous knife,” but this court held that the term “dangerous knife” was unconstitutionally vague. Bradvica v. State, 104 Nev. 475, 477, 760 P.2d 139, 141 (1988). In 1995, the legislature replaced the term “dangerous knife” with “machete.” 1995 Nev. Stat., ch. 713, § 13, at 2726. Appellant did not object to the jury instruction in the district court or on appeal. Nonetheless, the instruction constitutes plain error readily apparent from our review of the record. See Patterson v. State, 111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995). We further note, however, that reversal is not warranted if WKLV HUURU LV

KDUPOHVV

__________ 2

Although NRS 202.350 has been amended since commission of the instant offense, the quoted provisions of NRS 202.350(1)(b) have not been changed. 3

As previously noted, appellant was also found in possession of a fork. Appellant was, however, only charged with carrying a concealed knife.

Ð116 Nev. 140, 146 (2000) Knight v. StateÐ Ð this error is harmless. See Donald v. State, 112 Nev. 348, 349-50, 913 P.2d 655, 656 (1996) (holding that a jury instruction that expanded the definition of an offense beyond the statutory definition was harmless beyond a reasonable doubt); see also Neder v. United States, 527 U.S. 1 (1999); Johnson v. United States, 520 U.S. 461, 469 (1997). Accordingly, we consider both the sufficiency of the evidence and the issue of whether the erroneous jury instruction was harmless, in view of the relevant statutory provisions. We conclude that the weapons specifically enumerated in NRS 202.350(1)(b) are all weapons for purposes of the statute as a matter of law. The bladed weapons enumerated are a dirk, dagger, machete, and a knife made an integral part of a belt buckle. Only the first two could arguably apply here. [Headnotes 6, 7] Our legislature has not provided its own definition of the terms “dirk” or “dagger.” This court has stated, however, that “a dagger is a short weapon used for thrusting and stabbing and that stabbing is using a pointed weapon to wound or kill.” Huebner v. State, 103 Nev. 29, 30 n.1, 731 P.2d 1330, 1331-32 n.1 (1987) (citing The Oxford Dictionary of English Etymology (1983)). Webster's Third New International Dictionary (1976) defines a dirk as “a long straight-bladed dagger.” Alternately, a dirk is described as “a short sword formerly worn by British junior naval officers.” Id. Thus, in most cases a dirk appears to be simply a type of dagger. [Headnote 8] “Relevant factors to consider” when determining whether a knife is a dirk or dagger include whether the knife has handguards and a blade that locks in place. Bradvica v. State, 104 Nev. 475, 477, 760 P.2d 139, 141 (1988). Thus, this court held that a small pocket knife with a 2 5/16-inch spring-loaded blade with less than 2 inches along the sharpened edge was not a dirk or dagger for purposes of NRS 202.350(1)(b)(2). Id. at 476-77, 760 P.2d at 140-41. [Headnotes 9, 10] A steak knife is a “pointed” implement that may be employed as a weapon “for thrusting and stabbing.” Nevertheless, a steak knife is not primarily designed or fitted for use as a weapon. A steak knife does not have handguards to prevent the hand from slipping onto the blade if it is used as a stabbing implement. Further, we doubt that the legislature sought to bar the concealment of common household items when it enacted the statutory provisions prohibiting concealment of a dirk or dagger. Penal statutes should be strictly construed and any reasonable doubts UHVROYHGLQIDYRURIWKHDFFXVHG

Ð116 Nev. 140, 147 (2000) Knight v. StateÐ Ð resolved in favor of the accused. See Sheriff v. Hanks, 91 Nev. 57, 60, 530 P.2d 1191, 1193 (1975). For these reasons, we conclude that the steak knife at issue here is not a dirk or dagger as a matter of law. This does not end our inquiry. NRS 202.350(1)(b)(3) also prohibits carrying a concealed “[p]istol, revolver or other firearm, or other dangerous or deadly weapon.” (Emphasis added.) Neither appellant nor the State makes any argument concerning this provision, nor does it appear that the jury was instructed to consider

whether the steak knife was a “dangerous or deadly weapon.” This court has not spoken on the issue of how this language should be interpreted. [Headnote 11] Having considered the issue, we conclude that the determination of whether a common steak knife is a dangerous or deadly weapon is a question of fact for the jury. Our approach is consistent with the approach employed by the Missouri Supreme Court in State v. Baldwin, 571 S.W.2d 236 (Mo. 1978). The court considered a statute that prohibited a person from carrying certain concealed weapons and “ ‘other similar deadly weapons.' ” Id. at 241. The court explained, It is obvious that there are many useful and practical items which are carried by persons for peaceful purposes. They are not normally thought of as dangerous and deadly weapons. Pocket knives, hammers, screwdrivers, wrenches, cutting tools and letter openers are examples of such articles. Other items such as butcher knives, steak knives, and ice picks, though not usually carried concealed on the person, are useful utensils utilized for peaceful purposes. Such everyday instruments become dangerous or deadly only when they are used or carried for use as a weapon. The determination of whether in a particular case such instrument is dangerous and deadly would depend on a variety of factors—the nature of the instrument itself, the circumstances under which it is carried, including time, place, and situation in which defendant is found in possession, the manner in which it is carried, the particular person carrying it, and perhaps other factors such as possible peaceful uses therefor which the possessor might have. Id. [Headnote 12] Consistent with this approach, we conclude that the error in the jury instruction was harmless, given the particular facts of this case. See Donald v. State, 112 Nev. 348, 350, 913 P.2d 655, 656  

Ð116 Nev. 140, 148 (2000) Knight v. StateÐ Ð (1996). This is not a case involving legitimate concealment of a knife for peaceful purposes. The attendant circumstances, including the time, place, and situation in which appellant was found in possession of the knife, unequivocally demonstrate that appellant was carrying the knife as a weapon. Critical to our determination are the events that occurred shortly before appellant's apprehension by police. Given that the jury found appellant guilty of trespass, it is apparent that the jury believed witness testimony that appellant improperly entered a Las Vegas apartment without permission. Further witness testimony established that at that time appellant behaved in an aggressive and threatening manner, while carrying the steak knife at issue. 4 CONCLUSION We affirm appellant's conviction. ____________

Ð116 Nev. 148, 148 (2000) Doyle v. StateÐ Ð Ð ANTHONY LAVON DOYLE, Appellant, v. THE STATE OF NEVADA, Respondent. No. 33216

February 3, 2000

995 P.2d 465

Appeal from an order of the district court denying a postconviction petition for a writ of habeas corpus in a death penalty case. Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge. Following final appellate affirmance of his convictions for first-degree murder, conspiracy to commit murder, and first-degree kidnapping, and of his sentence of death, 112 Nev. 879, 921 P.2d 901 (1996), petitioner sought post-conviction relief. The district court denied petition, and petitioner appealed. The supreme court held that: (1) trial counsel's failure to anticipate change in law governing pretextual stops and file suppression motion based thereon was not ineffective assistance of counsel, (2) affidavit in support of search warrant demonstrated substantial basis for concluding that probable cause existed, (3) petitioner was not prejudiced by admission of allegedly irrelevant evidence, (4) color autopsy photographs displayed by projection were admissible as to ERWK

FRQWHQWDQGIRUPDW

__________ 4

We reach only the issue of how NRS 202.350(1)(b) should be interpreted. We express no opinion concerning what constitutes a deadly weapon pursuant to the current provisions of NRS 193.165, the deadly weapon enhancement statute.

Ð116 Nev. 148, 149 (2000) Doyle v. StateÐ Ð both content and format, and (5) trial counsel's actions with respect to sexual assault instructions did not prejudice petitioner. Affirmed. [Rehearing denied March 28, 2000] Scott L. Bindrup, Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. To prevail on claim of ineffective counsel, defendant must show: (1) that counsel's performance was deficient, that is, it fell below objective standard of reasonableness; and (2) that deficient assistance prejudiced defense, that is, but for counsel's errors, result of trial would probably have been different. U.S. Const. amend. 6. 2. Criminal Law. Court may consider the two test elements for ineffective assistance of counsel in any order and need not consider both if defendant makes insufficient showing on either one. U.S. Const. amend. 6. 3. Criminal Law. When ineffective assistance of counsel claim is based upon counsel's failure to file motion to suppress confession or motion to suppress evidence allegedly obtained in violation of Fourth Amendment, prejudice prong must be established by showing that claim was meritorious and that there was reasonable likelihood that exclusion of the evidence would have changed result of trial. U.S. Const. amends. 4, 6. 4. Criminal Law. Failure of counsel to anticipate a change in the law does not constitute ineffective assistance, even where theory upon which court's later decision is based is available, although court had not yet decided issue. U.S. Const. amend. 6. 5. Criminal Law. Defense counsel's failure to anticipate change in law governing pretextual stops and file suppression motion based thereon was not ineffective assistance of counsel in capital murder case, although theory upon which subsequent change in law was based was available, but undecided. U.S. Const. amend. 6. 6. Courts. Rule governing determination of whether police stop was pretextual, announced on same date decision was rendered in post-conviction petitioner's direct appeal from his capital murder conviction, governed post-conviction review of ineffective assistance of counsel issues relating to defense counsel's failure to file suppression motion, where petitioner sought rehearing in his direct appeal, rendering decision nonfinal and newly articulated rule applicable thereto. U.S. Const. amends. 4, 6. 7. Criminal Law.

Assuming applicability at time of post-conviction petitioner's capital murder trial of pretext analysis whereby arrest was pretextual unless reasonable officer would have made arrest absent invalid purpose, defense FRXQVHO VIDLOXUHWRFKDOOHQJHDGPLVVLRQRI

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Ð116 Nev. 148, 150 (2000) Doyle v. StateÐ Ð counsel's failure to challenge admission of petitioner's statement to police on pretext grounds did not amount to ineffective assistance. Fact that petitioner's parole officer did not arrest petitioner until after giving him numerous warnings for parole violations over course of four months did not establish that petitioner would have been permitted to remain free indefinitely absent police officers' intent to question him concerning murder. U.S. Const. amend. 6. 8. Searches and Seizures. Whether probable cause is present to support search warrant is determined by totality of circumstances. U.S. Const. amend. 4. 9. Searches and Seizures. Deficiency in either informant's veracity and reliability or his basis of knowledge, as relevant to probable cause to support issuance of search warrant, may be compensated for, in determining overall reliability of tip, by strong showing as to the other, or by some other indicia of reliability. U.S. Const. amend. 4. 10. Criminal Law. Issuing judge's determination of probable cause to support search warrant should be given great deference by reviewing court. Duty of reviewing court is simply to determine whether there is substantial basis for concluding that probable cause existed. 11. Searches and Seizures. Affidavit in support of search warrant for capital murder defendant's residence demonstrated substantial basis for concluding that probable cause existed. Any deficiency in informant's reliability was adequately compensated through corroboration of his information, affidavit demonstrated adequate nexus between defendant's residence and items to be seized therefrom, and affidavit sufficiently demonstrated probable cause even considering information alleged to have been omitted and purging information alleged to have been misleading. U.S. Const. amend. 4. 12. Searches and Seizures. Any deficiency in veracity of informant whose tip to police formed basis for search warrant for capital murder defendant's residence arising by reason of fact that informant was incarcerated at time of his tip was adequately compensated, where information provided by him was corroborated by details from crime scene not released to public, further investigation by police, and statements from two other witnesses. U.S. Const. amend. 4. 13. Searches and Seizures. Affidavit in support of search warrant for capital murder defendant's residence demonstrated adequate nexus between residence and items to be seized therefrom, as required to support finding of probable cause to support issuance of warrant. Facts set forth in affidavit showed probable cause to believe that items used in crime and sought to be seized would be found at defendant's residence. U.S. Const. amend. 4. 14. Searches and Seizures. Probable cause to support issuance of search warrant requires showing of trustworthy facts and circumstances which would cause person of reasonable caution to believe that it is more likely than not that specific items to be searched for are seizable and will be found in place to be searched. U.S. Const. amend. 4. 15. Criminal Law. Alleged omissions from and misleading statements in affidavit supporting search warrant for capital murder defendant's residence did not UHTXLUHVXSSUHVVLRQRIIUXLWVRIZDUUDQW

Ð116 Nev. 148, 151 (2000) Doyle v. StateÐ Ð require suppression of fruits of warrant, where affidavit sufficiently demonstrated probable cause for warrant to issue even considering omitted information and purging information alleged to have been misleading. U.S. Const. amend. 4. 16. Criminal Law. Defendant is not entitled to suppression of fruits of search warrant, even based on intentional falsehoods or omissions, unless probable cause is lacking once false information is purged and any omitted information is considered. U.S. Const. amend. 4. 17. Criminal Law. Assuming that State failed to demonstrate relevance of stained denim pants seized from capital murder defendant's bedroom closet, defendant was not prejudiced by admission thereof at trial, and counsel therefore was not ineffective for failing to object to their admission, where other evidence adduced in support of defendant's guilt was strong, pants were introduced in perfunctory manner without comment or further reference, officer through whose testimony pants were introduced testified only that pants were seized “out of an abundance of caution,” and no testimony or argument suggested that stain was blood. U.S. Const. amend. 6. 18. Criminal Law. Color autopsy photographs displayed to jury in capital murder prosecution were not duplicative and were relevant to cause of death and manner of injury. Most photographs depicted patterns on victim's body consistent with footwear impressions and were additionally relevant to show relationship between victim's injuries and soles of shoes found in defendant's possession, and defense

counsel relied on some of the photographs to support defense of mere presence. 19. Criminal Law. Counsel's strategy decisions are not subject to challenge absent extraordinary circumstances. 20. Criminal Law. Even gruesome photographs are admissible if they aid in ascertaining the truth, such as when used to show cause of death, severity of wounds and manner of injury. 21. Criminal Law. Color autopsy photographs displayed to jury in capital murder prosecution were admissible to show cause of death, despite fact that defendant did not dispute cause of death, as defendant's not guilty plea put all elements of offense at issue. 22. Criminal Law. By pleading not guilty, a defendant puts all elements of the offense at issue. 23. Witnesses. Projection display of color autopsy photographs in capital murder prosecution did not render photographs inadmissible, where photographs were briefly projected onto screen to aid medical examiner in explaining his findings related to cause of death and manner of injury to the jury. 24. Witnesses. Images properly admissible as photographs may be projected to illustrate testimony of witnesses. 25. Witnesses. Where autopsy photographs are admissible, it is permissible to project same images onto a screen as means of assisting medical examiner in explaining his or her findings relevant to issues before jury.

Ð116 Nev. 148, 152 (2000) Doyle v. StateÐ Ð 26. Criminal Law. Defense counsel's failure to request jury instruction stating that sexual penetration of a dead body does not constitute sexual assault and to object to instruction given on sexual assault did not prejudice defendant charged with both capital murder and sexual assault, and therefore did not amount to ineffective assistance, where sexual assault instruction given did not constitute plain error, and where defendant's sexual assault conviction was reversed on direct appeal. U.S. Const. amend. 6. 27. Criminal Law. Defense counsel's failure to request jury instruction stating that sexual penetration of a dead body does not constitute sexual assault and to object to instruction given on sexual assault did not influence jury's verdict of death, and therefore did not amount to ineffective assistance of counsel, where jury did not find sexual assault aggravator, but rather rested its verdict of death on other aggravators, namely, that murder was committed by person under sentence of imprisonment, was committed while the person was engaged in commission of or attempt to commit kidnapping, and was committed to avoid or prevent lawful arrest or to effect escape from custody. U.S. Const. amend. 6.

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: The State tried and convicted appellant Anthony Lavon Doyle of first-degree murder, conspiracy to commit murder, first-degree kidnapping and sexual assault. The jury returned a sentence of death. On direct appeal, we reversed Doyle's conviction for sexual assault, but affirmed the remaining convictions and sentence of death. Doyle thereafter petitioned the district court for post-conviction relief and alleged that his trial counsel were ineffective on numerous grounds. After conducting an evidentiary hearing, the district court denied the petition. This appeal followed. On appeal, Doyle alleges that the district court erred in determining that trial counsel were not ineffective for (1) failing to seek suppression of Doyle's statement to police; (2) failing to seek suppression of evidence recovered during a search of Doyle's residence; (3) failing to object to the admission into evidence of a pair of stained denim pants; (4) failing to object to the admission and projection display of color autopsy photographs; (5) failing to request a jury instruction or object to the instruction given on sexual assault; and (6) failing to adequately research issues in preparation for trial. Doyle also argues that the district court erred in determining that reversal is not warranted on the basis of cumulative error caused by ineffective trial counsel. We reject Doyle's arguments and affirm.

Ð116 Nev. 148, 153 (2000) Doyle v. StateÐ Ð FACTS A full explanation of the facts is contained in our opinion resulting from Doyle's direct appeal. See Doyle v. State, 112 Nev. 879, 921 P.2d 901 (1996). As explained therein, on January 16, 1994, the nude body of twenty-year-old Ebony Mason was discovered in a desert area of Clark County, Nevada. Mason had been beaten and strangled to death, and a four-inch twig protruded from her rectum. Doyle in association with two co-defendants was charged with one count each of first-degree murder, conspiracy to commit murder, first-degree kidnapping and sexual assault. Doyle pleaded not guilty to all charges. The State filed notice of intent to seek the death penalty. The matter proceeded to a jury trial commencing January 3, 1995. Doyle presented a defense of “mere presence.” The jury returned a guilty verdict as to each count. Following a penalty hearing, the jury found three aggravating circumstances and no mitigating circumstances sufficient to outweigh the aggravating circumstances and imposed a sentence of death. The district court additionally sentenced Doyle to consecutive life terms of imprisonment for first-degree kidnapping and sexual assault, and a concurrent six-year term of imprisonment for conspiracy to commit murder. On direct appeal, this court concluded that insufficient evidence was adduced to show that sexual penetration occurred prior to Mason's death, and we reversed Doyle's conviction for sexual assault. Doyle, 112 Nev. at 895-900, 903, 921 P.2d at 912-15, 916. However, we rejected Doyle's remaining contentions and affirmed his remaining convictions and sentence of death. Id. at 903, 921 P.2d at 916. On June 26, 1997, Doyle filed in the district court a proper person post-conviction petition for a writ of habeas corpus claiming ineffective assistance of counsel. Appointed counsel filed documents in support of the petition. Counsel argued before the district court that Doyle's trial counsel were ineffective for (1) failing to seek suppression of Doyle's statement to police; (2) failing to seek suppression of evidence recovered during a search of Doyle's residence; (3) failing to object to the admission into evidence of the pair of stained denim pants; (4) failing to object to the admission and projection display of color autopsy photographs depicting injuries suffered by Mason; and (5) failing to request a jury instruction or object to the instruction given on sexual assault. Counsel also argued that reversal was warranted on the basis of cumulative error caused by ineffective trial counsel. On January 26, 1998, and July 8, 1998, the district court held an evidentiary hearing and heard argument on Doyle's petition. The district court then denied the petition. Doyle filed a timely appeal.

Ð116 Nev. 148, 154 (2000) Doyle v. StateÐ Ð DISCUSSION [Headnotes 1, 2] Pursuant to Strickland v. Washington, 466 U.S. 668 (1984), to prevail on a claim of ineffective counsel, a defendant must show (1) that counsel's performance was deficient, i.e., it fell below an objective standard of reasonableness, and (2) that the deficient assistance prejudiced the defense, i.e., but for counsel's errors, the result of trial would probably have been different. Dawson v. State, 108 Nev. 112, 115, 825 P.2d 593, 595 (1992) (citing Strickland, 466 U.S. at 687-88, 694). A court may consider the two test elements in any order and need not consider both if the defendant makes an insufficient showing on either one. Kirksey v. State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996) (citing Strickland, 466 U.S. at 697). I. Failure to challenge the admissibility of Doyle's statement to police as tainted by a pretextual arrest Doyle contends that the district court applied the wrong standard in determining that Doyle's trial counsel were not ineffective for failing to seek suppression of Doyle's post-arrest, post-Miranda statement to police. Doyle argues that the district court should have applied the standard first adopted in Alejandre v. State, 111 Nev.

1235, 1239-40, 903 P.2d 794, 796 (1995), reaffirmed in Taylor v. State, 111 Nev. 1253, 1255-57, 903 P.2d 805, 807-08 (1995), and subsequently abandoned in Gama v. State, 112 Nev. 833, 836-37, 920 P.2d 1010, 1012-13 (1996) (overruling Alejandre and Taylor), to determine whether Doyle's statement to police was tainted by an impermissibly pretextual arrest made by Doyle's parole officer. Doyle contends that under Alejandre's test, a motion to suppress his statement would have been meritorious, and thus, trial counsel were ineffective for failing to make such a motion. We conclude that this contention lacks merit. [Headnote 3] When an ineffective assistance of counsel claim is based upon counsel's failure to file a motion to suppress a confession or a motion to suppress evidence allegedly obtained in violation of the Fourth Amendment, “the prejudice prong must be established by a showing that the claim was meritorious and that there was a reasonable likelihood that the exclusion of the evidence would have changed the result of a trial.” Kirksey, 112 Nev. at 990, 923 P.2d at 1109. In Alejandre, we recognized that two competing tests had emerged to determine whether a stop by police which is alleged WREHSUHWH[WXDOYLRODWHVWKH)RXUWK$PHQGPHQW

Ð116 Nev. 148, 155 (2000) Doyle v. StateÐ Ð to be pretextual violates the Fourth Amendment: (1) the “would” test, under which a stop is impermissibly pretextual unless a reasonable officer would have made the stop absent the invalid purpose, and (2) the “could” test, under which a stop is valid so long as the officer was legally authorized to make the stop, even if the officer would have ignored the underlying valid justification for the stop but for his other suspicions. We then adopted the “would” test, concluding that it was supported by persuasive reasoning. Alejandre, 111 Nev. at 1239-40, 903 P.2d at 796; see also Taylor, 111 Nev. at 1257, 903 P.2d at 807-08. In Gama, this court recognized that the “would” test as applicable to claims of pretext was discredited by the Supreme Court's ruling in Whren v. United States, 517 U.S. 806 (1996). Gama, 112 Nev. at 836, 920 P.2d at 1012-13. In Whren, the Court held that the temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment's prohibition against unreasonable searches and seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective. Whren, 517 U.S. at 808-19. In so doing, the Court recognized that subjective intentions play no role in ordinary probable-cause Fourth Amendment analysis. 1 Id. at 813. Based on Whren's holding, this court in Gama stated that it was constrained to overrule Alejandre and Taylor to the extent that each required application of the “would” test to pretext claims under the Fourth Amendment and the Nevada Constitution, article 1, section 18 (protecting against unreasonable seizures and searches). Gama, 112 Nev. at 836, 920 P.2d at 1013. We then determined that the “could” test was the proper test to apply where a claim of pretext is made. Id. at 836-37, 920 P.2d at 1013. Doyle argues that Alejandre was the controlling law at the time of his arrest and that Gama applies prospectively only. Doyle acknowledges that Alejandre was not decided until October 4, 1995, which was after Doyle's January 1995 trial. Nevertheless, he argues that the Alejandre “would” test “did not materialize out of thin air,” as this court had previously recognized a “would” test in Hatley v. State, 100 Nev. 214, 678 P.2d 1160 (1984), and this test was already recognized in other jurisdictions DVLQGLFDWHGLQ$OHMDQGUH __________ 1

Doyle does not argue that his arrest is invalid under Gama or that the “could” test announced in Whren and adopted in Gama does not apply to arrests made by parole officers pursuant to NRS 176A.500. Moreover, we note that although Whren involved a traffic detention, its conclusion that subjective intentions play no role in ordinary probable-cause Fourth Amendment analysis is equally applicable to arrests. See United States v. Sayetsitty, 107 F.3d 1405, 1414 (9th Cir. 1997); United States v. Hathcock, 103 F.3d 715, 719 (8th Cir. 1997).

Ð116 Nev. 148, 156 (2000) Doyle v. StateÐ Ð as indicated in Alejandre. Therefore, he contends that trial counsel should have recognized the existence of legally-cognizable grounds to support a motion to suppress. Further, Doyle argues that if the issue had been preserved, appellate counsel could have raised it after Alejandre was decided. [Headnotes 4, 5] We conclude that Doyle is mistaken in his contention that Alejandre merely restated the law as it was declared in Hatley. In Hatley, the appellant claimed in a post-conviction petition that he had been illegally arrested at his home without a warrant. 100 Nev. at 215, 678 P.2d at 1161. The State opposed the petition by attaching a sworn affidavit stating that the appellant was arrested on a bench warrant for failure to appear for a traffic violation. The affidavit contradicted trial testimony. The district court denied the petition without an evidentiary hearing. This court concluded that an evidentiary hearing was necessary to resolve the conflict. Id. at 216-17, 678 P.2d at 1161-62. We then stated: Additionally, we note that an evidentiary hearing was necessary to determine the truth of appellant's alternate contention that even if the arresting officers were aware of the existence of the misdemeanor bench warrant at the time of appellant's arrest, they were nevertheless using it as an impermissible “pretext” to arrest appellant on the burglary charge. This contention, if true, would at least arguably entitle appellant to relief. Id. at 217, 668 P.2d at 1162 (emphasis added). Contrary to Doyle's suggestion, the above quoted language in Hatley was “inconclusive dictum,” which merely alluded to the pretext issue, but did not express this court's recognition of the “would” test as the proper test for pretext issues. Taylor, 111 Nev. at 1260, 1262, 903 P.2d at 809-10, 811 (Steffen, C. J., concurring in result). The “would” test was not squarely addressed or embraced by this court until Alejandre was decided. The failure of counsel to anticipate a change in the law does not constitute ineffective assistance. Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir. 1999); see also Leonard v. State, 114 Nev. 639, 659-60, 958 P.2d 1220, 1235 (1998), cert. denied, 525 U.S. 1154 (1999). This is true even where, as here, the theory upon which the court's later decision is based is available, although the court had not yet decided the issue. See Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir. 1996). [Headnote 6] Likewise flawed is Doyle's reasoning that because Alejandre ZDVGHFLGHGZKLOH'R\OH VDSSHDOZDV

SHQGLQJ Ð116 Nev. 148, 157 (2000) Doyle v. StateÐ Ð was decided while Doyle's appeal was pending, he would have been entitled to application of Alejandre's test had counsel preserved the issue for appeal. In Gama, which we decided on July 22, 1996, we adopted a new rule for determination of claims of pretext. “[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final” at the time the decision announcing the rule is rendered. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Under Griffith, “any new rule applies retroactively to all cases pending on direct review or not yet final . . . [and] [t]his is quite obviously equally true of [a] new ruling narrowing Fourth Amendment rights.” 5 Wayne R. LaFave, Search and Seizure § 11.5(d), at 358 (3d ed. 1996). See also State v. Thomas, 714 So. 2d 1176, 1177 (Fla. Dist. Ct. App. 1998) (applying Whren retroactively). A case is “final” when “a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith, 479 U.S. at 321 n.6. This court rendered its decision in Doyle's direct appeal on July 22, 1996, the same date we decided Gama, and Doyle subsequently petitioned for rehearing. This court denied Doyle's petition for rehearing on June 23, 1997. Clearly Doyle's case had not become final prior to this court's ruling in Gama, and therefore Gama's “could” test would apply to any pretext claim made by Doyle.

[Headnote 7] Furthermore, we conclude that Doyle has not demonstrated that his arrest was invalid even under Alejandre's “would” test. His assertion of pretext is speculative at best. Doyle put forth no evidence of the circumstances leading to the parole officer's decision to arrest other than evidence showing that Doyle had not been arrested for prior repeated violations of his parole conditions. The fact that Doyle's parole officer did not arrest Doyle until after giving him numerous warnings for parole violations over the course of four months does not establish that he would have been permitted to remain free indefinitely absent police officers' intent to question him regarding Mason's murder. Thus, Doyle has not demonstrated that a reasonable parole officer would not have arrested him for repeatedly violating the conditions of his parole absent the police officers' intent to question him for the murder. Accordingly, Doyle has failed to show that a motion to suppress based upon Alejandre's “would” test would have been meritorious. Therefore, we conclude that Doyle was not prejudiced by his counsel's failure to challenge admission of his statement to police.

Ð116 Nev. 148, 158 (2000) Doyle v. StateÐ Ð II. Failure to challenge the admissibility of the fruits of a search of Doyle's home on the basis that the search warrant was not based on probable cause Doyle argues that the district court erred in concluding that trial counsel were not ineffective for failing to seek suppression of a pair of denim pants and a pair of shoes which were recovered during a search of Doyle's residence pursuant to a search warrant. The shoes were used by the State to tie Doyle to the crime scene and injuries to Mason's body. Doyle contends that a motion to suppress this evidence would have been meritorious because the search warrant allowing for its seizure was not supported by probable cause. Doyle attacks the affidavit underlying the search warrant on grounds that the affidavit (1) was based on information furnished by an unreliable informant and insufficiently corroborated; (2) failed to show a nexus between the place to be searched, Doyle's residence, and the items to be seized therefrom; and (3) omitted information and was misleading. We disagree. [Headnotes 8-10] Whether probable cause is present to support a search warrant is determined by a totality of circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983); Keesee v. State, 110 Nev. 997, 1002, 879 P.2d 63, 67 (1994). A deficiency in either an informant's veracity and reliability or his basis of knowledge “may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Gates, 462 U.S. at 233. Further, the issuing judge's determination of probable cause should be given great deference by a reviewing court. Id. at 236. “ ‘A grudging or negative attitude by reviewing courts toward warrants,' is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; ‘courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a common-sense, manner.' ” Id. (alterations in original) (internal citation omitted) (quoting United States v. Ventresca, 380 U.S. 102, 108-09 (1965)). The duty of a reviewing court is simply to determine whether there is a substantial basis for concluding that probable cause existed. Id. at 238-39; Keesee, 110 Nev. at 1002, 879 P.2d at 67. [Headnotes 11, 12] We conclude that the affidavit here demonstrates a substantial basis for concluding that probable cause existed. The veracity of the informant may have been questionable based on the fact that he was incarcerated at the time of his tip to police. However, the information furnished by him was corroborated by details from WKH

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Ð116 Nev. 148, 159 (2000) Doyle v. StateÐ Ð the crime scene not released to the public, further investigation by police, and statements from two other witnesses. Therefore, we conclude that any deficiency in his reliability was adequately compensated. [Headnotes 13, 14] We reject Doyle's contention that the affidavit failed to demonstrate an adequate nexus between his residence and the items to be seized therefrom. Probable cause requires a showing of “trustworthy facts and circumstances which would cause a person of reasonable caution to believe that it is more likely than not that the specific items to be searched for are: seizable and will be found in the place to be searched.” Keesee, 110 Nev. at 1002, 879 P.2d at 66. Our review of the facts set forth in the affidavit shows probable cause to believe that items used in the crime and sought to be seized would be found at Doyle's residence. [Headnotes 15, 16] Moreover, Doyle has failed to show that any information omitted from the affidavit or stated in an allegedly “misleading” manner would have undermined the probable cause determination. A defendant is not entitled to suppression of the fruits of a search warrant, even based on intentional falsehoods or omissions, unless probable cause is lacking once the false information is purged and any omitted information is considered. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (addressing falsehoods); United States v. Cronan, 937 F.2d 163, 165 (5th Cir. 1991) (addressing omissions); see also Point v. State, 102 Nev. 143, 150, 717 P.2d 38, 43 (1986), disapproved of on other grounds by Stowe v. State, 109 Nev. 743, 857 P.2d 15 (1993). Here, considering the omitted information and purging the information claimed to be misleading, we conclude that the affidavit sufficiently demonstrates probable cause. A motion to suppress evidence seized from Doyle's residence on the grounds of an invalid search warrant would not have been meritorious. Thus, Doyle has failed to demonstrate prejudice to support his claim of ineffective counsel. III. Failure to object to admission into evidence of stained pants Doyle claims that the district court erred in concluding that trial counsel were not ineffective for failing to object to admission into evidence of the denim pants recovered during a search of the bedroom closet in Doyle's residence. Doyle specifically argues that the pants were not relevant evidence and their admission into evidence prejudiced him because the pants were stained with some unidentified substance, which the jury might have inferred was Mason's blood. We conclude that the district court did not err.

Ð116 Nev. 148, 160 (2000) Doyle v. StateÐ Ð [Headnote 17] Even assuming that the state failed to demonstrate the relevance of this evidence, Doyle has not shown that he was prejudiced by its admission at trial. The other evidence adduced in support of Doyle's guilt was strong. Additionally, Doyle does not dispute the court's findings that the pants were introduced in a perfunctory manner without comment or further reference. We further note that the officer through whose testimony the pants were introduced testified only that the pants were seized “out of an abundance of caution.” No testimony or argument suggested that the stain was blood. In light of the foregoing facts, we conclude that Doyle has failed to demonstrate that, but for deficient performance of counsel, the result of trial would probably have been different. IV. Failure to object to admission into evidence and projection display of multiple autopsy photographs Doyle contends that the district court erred in concluding that trial counsel were not ineffective for failing to object to the admission and projection display of color autopsy photographs depicting injuries to Mason's body. Doyle argues that the photographs were cumulative and gruesome, were inadmissible because the cause of

death was not disputed, and should not have been displayed to the jury through a projection system. We conclude that Doyle's contentions lack merit. [Headnotes 18-20] Doyle has not shown that any of the photographs were duplicative, and we conclude that all were relevant to the cause of death and manner of injury. Most of the photographs depicted patterns on Mason's body consistent with footwear impressions and were additionally relevant to show the relationship between Mason's injuries and the soles of shoes found in Doyle's possession. Trial counsel relied on some of these photographs to support Doyle's defense of mere presence. Therefore, it is apparent that defense counsel made a strategic decision not to object to these photographs. Counsel's strategy decisions are not subject to challenge absent extraordinary circumstances. Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996). Two of the photographs depict injuries to Mason's head and face, and are gruesome. However, even gruesome photographs are admissible if they aid in ascertaining the truth, such as when used to show the cause of death, the severity of wounds and the manner of injury. Browne v. State, 113 Nev. 305, 314, 933 P.2d 187, 192 (1997); Domingues v. State, 112 Nev. 683, 695, 917 P.2d 1364, 1373 (1996).

Ð116 Nev. 148, 161 (2000) Doyle v. StateÐ Ð [Headnotes 21, 22] Doyle's argument that the autopsy photographs could not be utilized to show the cause of death where he did not dispute it is without merit. By pleading not guilty, a defendant puts all elements of the offense at issue. Sonner v. State, 112 Nev. 1328, 1338-39, 930 P.2d 707, 714 (1996), modified in part on other grounds on rehearing, 114 Nev. 321, 955 P.2d 673, cert. denied, 525 U.S. 886 (1998). Therefore, in the wake of Doyle's not guilty plea, the photographs were admissible to prove the State's case with essential facts relating to Mason's murder. [Headnotes 23-25] We similarly reject Doyle's contention related to the display of the photographs. Here, the photographs were briefly projected onto a screen to aid the medical examiner in explaining his findings related to the cause of death and the manner of injury to the jury. While this court has not addressed the display of autopsy photographs through projection systems, we note that other state courts have approved of this method of facilitating the testimony of a medical examiner. See, e.g., People v. Harris, 633 P.2d 1095, 1098 (Colo. Ct. App. 1981) (no error in permitting autopsy photographs to be displayed to jury via projected color slides); Keperling v. State, 699 A.2d 317, 319 (Del. 1997) (where photographic slides are admissible evidence, allowing their projection before jury does not constitute error); Ottis v. State, 496 S.E.2d 264, 269 (Ga. 1998) (projection method of presenting photographs of murder victim is permissible absent distortion or disproportion of what is depicted). This court has previously approved of the use of enlargements for such purposes. See Thomas v. State, 114 Nev. 1127, 1141, 967 P.2d 1111, 1120-21 (1998) (enlarged diagram of murder victim's body), cert. denied, 528 U.S. 830 (1999); see also Lloyd v. State, 94 Nev. 167, 169, 576 P.2d 740, 742 (1978) (enlarged photograph depicting injuries to rape victim). Additionally, we have long recognized the generally sanctioned rule that images properly admissible as photographs “may be projected to illustrate the testimony of witnesses.” State v. Kuhl, 42 Nev. 185, 204, 175 P. 190, 196 (1918). We are thus persuaded that where autopsy photographs are admissible, it is permissible to project the same images onto a screen as a means of assisting a medical examiner in explaining his or her findings relevant to the issues before a jury. Moreover, we conclude that under the circumstances present here no error resulted from the projection display of autopsy photographs. The district court would have been within its discretion in overruling any objection to the admission and projection display of the DXWRSV\SKRWRJUDSKV

Ð116 Nev. 148, 162 (2000) Doyle v. StateÐ Ð autopsy photographs. Therefore, we fail to perceive any prejudice to Doyle to warrant relief on his claim of ineffective counsel. V. Failure to request a jury instruction and failure to object to the instructions given on sexual assault Doyle argues that the district court erred in denying relief based on Doyle's contention that trial counsel were ineffective for failing to request a jury instruction stating that sexual penetration of a dead body does not constitute sexual assault and for failing to object to the instruction given on sexual assault. We disagree. [Headnote 26] Doyle attempts to demonstrate prejudice by stating that any error as to the jury instruction on sexual assault was not preserved for appeal. However, Doyle fails to demonstrate the existence of any meritorious issues related to the jury instruction on sexual assault. We note that we have already determined on Doyle's direct appeal that the sexual assault instruction given did not constitute plain error. Doyle, 112 Nev. at 900, 921 P.2d at 915. Moreover, Doyle concedes that any prejudice may have been alleviated by this court's reversal on direct appeal of his conviction for sexual assault. For these reasons, we conclude that Doyle has failed to demonstrate prejudice flowing from the failure to preserve for appeal issues related to the jury instruction on sexual assault. [Headnote 27] Doyle further argues that counsel's failure to ensure that the jury was properly instructed during the guilt phase resulted in the jury's belief that Doyle committed a sexual assault. This, he contends, may have tipped the scales in the jury's decision to return a verdict of death. In support of his argument, he points to the fact that in the penalty phase the jury was instructed that it could find as an aggravator to first-degree murder that the murder was committed while the person was engaged in the commission of or an attempt to commit any sexual assault. Our review of the record, however, reveals that the jury only found three aggravators: that the murder was committed by a person under sentence of imprisonment; that the murder was committed while the person was engaged in the commission of or attempt to commit any first-degree kidnapping; and that the murder was committed to avoid or prevent a lawful arrest or to effect an escape from custody. Therefore, we conclude that Doyle has failed to demonstrate that the jury's verdict of death was influenced by counsel's performance in relation to the jury instruction on sexual assault.

Ð116 Nev. 148, 163 (2000) Doyle v. StateÐ Ð VI. Failure to adequately research issues in preparation for trial and cumulative error Relying on the same claims of error asserted above, Doyle contends the district court erred in concluding that trial counsel adequately researched issues in preparation for trial and that cumulative error resulting from counsel's ineffective assistance did not warrant reversal. However, Doyle has failed to demonstrate that he was prejudiced by deficient representation. Accordingly, we conclude that these additional claims lack merit. CONCLUSION All of Doyle's contentions having failed to meet the Strickland test for ineffective assistance of counsel, we hereby affirm the judgment of the district court. ____________

Ð116 Nev. 163, 163 (2000) Karadanis v. Washoe County Comm'rsÐ Ð Ð

GEORGE KARADANIS and ROBERT MALOFF, dba SUNDOWNER HOTEL AND CASINO, a Nevada Partnership; RON DRURY, dba RENO SOUVENIR STATION; KENNETH C. NICKS, and DON WHITE, Appellants, v. JOANNE BOND, Chairman; MIKE MOULIOT, Vice Chairman; SUE CAMP; JIM GALLOWAY; and JIM SHAW; Collectively Comprising THE COUNTY COMMISSIONERS OF WASHOE COUNTY, STATE OF NEVADA; CITY OF RENO, a Municipal Corporation; TRUCKEE RIVER WATER MANAGEMENT COUNCIL, a Nevada Non-Profit Corporation; DERMODY PROPERTIES, a Nevada Corporation; DERMODY INDUSTRIAL GROUP, a Nevada General Partnership; DP OPERATING PARTNERSHIP, L.P., a Delaware Limited Partnership; TRAMMEL CROW COMPANY, a Delaware Corporation; and UTAH STATE RETIREMENT FUND, Respondents. No. 33569 February 3, 2000

993 P.2d 721

Appeal from a district court order granting respondents' motion to dismiss. Second Judicial District Court, Washoe County; Steven P. Elliott, Judge. Local business owners challenged County's enactment of sales tax increase to finance railroad grade separation project. The district court treated City's and County's motion to dismiss as a motion for summary judgment and granted the motion. Business owners appealed. The supreme court held that: (1) City's loan

FRPPLWPHQWZDVXQHTXLYRFDO Ð116 Nev. 163, 164 (2000) Karadanis v. Washoe County Comm'rsÐ Ð commitment was unequivocal, and therefore it could be counted towards the written financial commitments the County was required by statute to receive before imposing the sales tax increase; (2) legislature ratified the City's and County's acts; and (3) legislature's validation of the County's sales tax ordinance did not violate separation of powers. Affirmed. Glade L. Hall, Reno, for Appellants. Richard A. Gammick, District Attorney, and Madelyn B. Shipman, Deputy District Attorney, Washoe County, for Respondents Washoe County Commissioners. Patricia Lynch, City Attorney, and Merri L. Belaustegui-Traficanti, Deputy City Attorney, Reno, for Respondent City of Reno. Lionel Sawyer & Collins and Madelene C. Amendola, Reno, for Respondents Truckee River Water Management, Dermody Properties, Dermody Industrial, DP Operating, Trammel Crow and Utah State Retirement. 1. Administrative Law and Procedure. The district court's and the supreme court's review of a government agency's determination is limited to whether the governmental body acted arbitrarily or capriciously. 2. Administrative Law and Procedure. On appeal from district court's summary judgment order regarding a government agency's determination, the supreme court's determination of whether the government agency acted arbitrarily is de novo, and the supreme court will construe the facts and evidence in a light most favorable to the non-moving party. 3. Taxation. Even if City overvalued income from railroad property and if City's special assessment district was invalid, City's resolution committing to loan more than $60 million for County's railroad grade separation project could be counted towards written financial commitments the County was required by statute to receive before imposing sales tax increase, where the loan commitment was unequivocal and the resolution merely referred to the railroad property and the special assessment district as possible sources for loan

repayment. 4. Taxation. Even if City's commitment to loan more than $60 million for County's railroad grade separation project was not unequivocal, such commitment could be counted towards written financial commitments the County was required by statute to receive before imposing sales tax increase, where the legislature enacted a curative statute expressly ratifying the acts of the County and the City. 5. Constitutional Law; Counties. Legislature's curative amendment validating County's sales tax ordinance for financing of railroad grade separation project did not violate VHSDUDWLRQRISRZHUVE\LQWHUIHULQJZLWKMXGLFLDU\ VLQGHSHQGHQFH

Ð116 Nev. 163, 165 (2000) Karadanis v. Washoe County Comm'rsÐ Ð separation of powers by interfering with judiciary's independence, even if the amendment applied retroactively, where the district court had validated the ordinance before enactment of the amendment. Const. art. 3, § 1. 6. Constitutional Law. The legislature violates the separation of powers principle by retrospectively abrogating judicial pronouncements of the state courts through a legislative interpretation of the law. Const. art. 3, § 1. 7. Constitutional Law. It is well within both the legislature's authority and the limits of the separation of powers principle to prospectively amend a statute, and thereby render a prior judicial decision interpreting that statute void. Const. art. 3, § 1.

Before Rose, C. J., Agosti and Leavitt, JJ. OPINION Per Curiam: SUMMARY This case concerns the funding of the railroad grade separation project (the “project”), which seeks to lower the railroad tracks through downtown Reno. In 1997, after years of attempts at funding the project, the Nevada State Legislature amended Assembly Bill 291 (the “amended statute”). This amended statute authorized the Board of County Commissioners of Washoe County (the “Board”) to impose a one-quarter cent sales tax increase. The amended statute, however, contained a condition precedent requiring the City of Reno (the “City”) to acquire written financial commitments for half the total cost of the project before the Board could lawfully enact the sales tax increase. Thereafter, at a public hearing, the City presented evidence of its written financial commitments, and the Board passed Bill No. 1223/Ordinance No. 1047 (the “sales tax ordinance”), which authorized a one-quarter cent increase of the sales tax in Washoe County. Several local business owners, however, filed a complaint and a motion for preliminary injunction seeking to enjoin the Board from enacting the sales tax. These local business owners, which included Kenneth Nicks, Robert White, the owners of the Sundowner Hotel and Casino, George Karadanis and Robert Maloff, and the owner of the Reno Souvenir Station, Ron Drury (collectively hereinafter the “Sundowner”), argued that the statute's condition precedent had not been met because the City had presented insufficient written financial commitments for half of the cost of the project. After an evidentiary hearing, the district court dismissed Sundowner's motion and complaint, ruling that the statute's conGLWLRQSUHFHGHQWKDGEHHQPHW

Ð116 Nev. 163, 166 (2000) Karadanis v. Washoe County Comm'rsÐ Ð dition precedent had been met. Subsequently, Sundowner filed this timely appeal arguing, in part, that the district court erred in making this ruling. We conclude that Sundowner's arguments lack merit. Accordingly, we affirm the order of the district court. STATEMENT OF THE FACTS The project proposes to lower the Union Pacific Railroad tracks through downtown Reno through the

construction of a 54-foot wide, 2.1 mile below-grade, open trainway trench along the existing Union Pacific right-of-way. This depressed trainway will be crossed over by eleven Reno streets from Keystone Avenue east to Sutro Avenue. It is surmised that this project will eliminate eleven at-grade street railroad crossings, and thus allow the unrestricted flow of vehicles above the railroad tracks. The estimated time period for the completion of the project is five and one-half years, and the estimated cost is $192,848,096.00. Sundowner, however, contends that this figure will ultimately be higher because it does not include numerous additional costs, such as the cost of treatment of contaminated soil and water underlying the railroad tracks and the cost of relocation or modification of the Amtrak station in Reno. Although the project has been discussed for many decades, the 1996 merger of the Union Pacific and Southern Pacific railroads created the opportunity for significantly increased train traffic. Therefore, since early 1996, the City began developing a funding plan. Part of this funding plan included revenue from a one-quarter cent increase in sales tax. The sales tax increase was authorized by the Nevada State Legislature in 1997 after amending Assembly Bill 291. The amended statute empowered Washoe County to enact an ordinance imposing a one-quarter cent sales tax, of which one-eighth cent was dedicated to the project. This statute, however, contained a condition precedent to the imposition of the tax, which is at issue in this case, requiring the City to present written financial commitments for one-half of the total cost of the project before the Board could impose the sales tax. As the estimated cost of the project was $192,848,096.00, in order to satisfy the statute's condition precedent, the City was required to provide the Board with a written financial commitment of $96,424,048.00 before the Board could lawfully increase the tax. Because the City believed it had met this condition precedent by securing financing, the Board scheduled a public hearing, on December 8, 1998, to consider enacting the sales tax authorized by the statute. At the public hearing, the City introduced evidence of its funding commitments of money or property, including: (1) $15,344,689.00 from Union Pacific Railroad, (2) $1,834,024.00IURPDIHGHUDOJUDQW

Ð116 Nev. 163, 167 (2000) Karadanis v. Washoe County Comm'rsÐ Ð from a federal grant, (3) $458,750.00 from the Nevada Department of Transportation, (4) $13,427,947.00 in Federal Surface Transportation Program funds; and (5) $60,777,774.00 in the form of a loan from the City authorized by Resolution No. 5557 (“Resolution 5557”). The loan from the City was to be repaid with non-tax revenue, including funds generated from a special assessment district comprised of property located near the project. The special assessment was authorized by the Reno City Council on October 27, 1998. After the public hearing, the Board enacted the sales tax increase by passing Bill No. 1223, Ordinance No. 1047, and thereby concluding that the condition precedent required by the statute was satisfied. Thereafter, the Nevada State Legislature passed Senate Bill 255 (“S.B. 255”) that explicitly ratified the acts of the Board. On December 7, 1998, however, a day prior to the public hearing, Sundowner filed a complaint and a motion for a preliminary injunction, which it amended on December 9, 1998. Sundowner sought to enjoin the Board from enacting the sales tax increase, alleging that it had failed to satisfy the statute's condition precedent to secure written financial commitments for at least half the cost of the project. In response to Sundowner's motion for preliminary injunction, the City and Washoe County filed a motion to dismiss (the “motion”), alleging that the City had fully satisfied the statute's condition precedent. After a full evidentiary hearing, the district court granted the City's motion, treating it as a motion for summary judgment. In granting summary judgment, the district court ruled that the sales tax ordinance was valid, as the statute's condition precedent requiring financial commitment for half of the project cost had been satisfied. Sundowner filed this timely appeal, alleging that the district court erred in making the aforementioned ruling. DISCUSSION [Headnotes 1, 2] The district court's and this court's review of a government agency's determination is limited to whether the governmental body acted arbitrarily or capriciously. See City of Reno v. Folsom, 86 Nev. 39, 44, 464 P.2d 454,

457 (1970). As this is a summary judgment order, however, this court's determination of whether the government agency acted arbitrarily is de novo, and this court will construe the facts and evidence in a light most favorable to the non-moving party. See Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992).

Ð116 Nev. 163, 168 (2000) Karadanis v. Washoe County Comm'rsÐ Ð [Headnote 3] In the present matter, the district court ruled that the sales tax ordinance was valid because the Board did not act arbitrarily in concluding that the City met the amended statute's condition precedent requiring written financial commitments for half the cost of the project. We agree with the district court that the Board validly enacted the sales tax ordinance because the Board had sufficient written financial commitments before it to support its conclusion that the City had met the statute's condition precedent. The evidence before the Board included five written funding commitments of money or property: (1) $15,344,689.00 from Union Pacific Railroad; (2) $1,834,024.00 from a federal grant; (3) $458,750.00 from the Nevada Department of Transportation; (4) $13,427,947.00 in Federal Surface Transportation Program funds; and (5) a $60,777,774.00 loan from the City authorized by City Council Resolution No. 5557. Sundowner argues, however, that this evidence is insufficient to meet the condition precedent under the amended statute, in part, because the resolution establishing a $60,700,774.00 loan from the City was invalid. 1 Specifically, Sundowner's attack on the validity of the loan is that there are insufficient sources identified in section two of Resolution 5557 for repayment because: (1) the income from the Union Pacific property contribution was overvalued, and (2) there could be no income from the special assessment district because it was unlawfully created. We disagree with Sundowner's contention that the resolution was invalid because we see no contingency in section two of the resolution requiring that the specific sources identified generate enough revenue to repay the loan. Resolution 5557 provided that: Section 1. The City hereby commits to expend not less than $60,700,744 on the Project . . . which can and will be repaid from sources other than the Taxes. Section 2. The Non-Tax Portion of the Loan will be repaid with payments of special assessments (the “Assessments”) to be levied by the City against properties benefited by the Project, certain sources of income provided by property (the “Property”) to be transferred to the City by Union Pacific Railroad (“U.P.R.R.”), and possibly federal or State grants for which a commitment has not yet been received . . . . (emphasis added). __________ 1

Sundowner asserts numerous other contentions concerning the validity of the sales tax ordinance and the resolution, including that they were enacted without authority and contrary to the legislature's intent. We have considered all contentions raised by Sundowner and conclude that they lack merit.

Ð116 Nev. 163, 169 (2000) Karadanis v. Washoe County Comm'rsÐ Ð The plain language of section one of Resolution 5557 sets forth an unequivocal commitment to loan $60,700,774.00 to be expended on the project. The only contingency established by this language is that the loan is not to be repaid with tax revenue. Further, although section two of Resolution 5557 identifies several sources for repayment, including the income generated from the Union Pacific property and the contested special assessments, the resolution does not mandate that repayment is contingent on the fact that the sources listed generate enough revenue to repay the loan. Indeed, the City has not even received a commitment, much less a total dollar amount, for one of the repayment sources listed in section two of the resolution—federal and state

grants. Based on the plain and unambiguous language of Resolution 5557, we therefore conclude that the resolution was valid because the City had made a valid commitment to expend $60,700,774.00 on the project even if the contemplated revenue from the Union Pacific property and the special assessment district is not realized. 2 [Headnote 4] As an aside, we note that even if there was such a contingency in the resolution, the legislature has explicitly ratified the acts of the Board and the City. A legislature may enact a curative statute to validate acts by municipalities provided both the act validated and the curative statute are constitutional. See Harris v. City of Reno, 81 Nev. 256, 260, 401 P.2d 678, 680 (1965). In Harris, we considered a challenge by several property owners to the City Council's authority to enact an ordinance imposing sewer charges on residents. Id. In our analysis, we reasoned that any doubts concerning the validity of the ordinance had been dispelled by the legislature's enactment of subsequent curative legislation that provided: SECTION 1. All of the provisions of [the ordinance] . . . passed and adopted by the city council of the City of Reno . . . are hereby authorized, ratified, approved and confirmed in all respects. SEC. 2. This act shall operate to supply such legislative authority as may be necessary to validate any and all acts performed, or proceedings taken, by or on behalf of the City of Reno, Nevada, pursuant to, or in anywise appertaining to Ordinance No. 1352. Id. at 259, 401 P.2d at 679-80 (emphasis added). Like the curative statute in Harris, the amendment to S.B. 255, __________ 2

Because we conclude that there is no contingency in the resolution, we need not and do not reach Sundowner's argument concerning the validity of the special assessment district.

Ð116 Nev. 163, 170 (2000) Karadanis v. Washoe County Comm'rsÐ Ð expressly ratified the actions of the Board. Indeed, S.B. 255 contains language similar to the curative statute in Harris, by providing that “[the sales tax ordinance] is hereby ratified, validated, approved and confirmed.” S.B. 255, 70th Leg. (Nev. 1999). In light of our holding in Harris, we conclude that subsequent curative legislation, mainly S.B. 255, renders the issue of the validity of the sales tax ordinance moot. [Headnote 5] Sundowner, however, raises a novel argument concerning the constitutionality of this curative statute. Sundowner argues that the curative statute was void because this legislative enactment was unconstitutional, as it violated the separation of powers doctrine set forth in article 3, section 1 of the Nevada Constitution. Specifically, Sundowner contends that the legislature unconstitutionally interfered with the discretion and independence of the judiciary by enacting a curative statute that validated the sales tax ordinance while the issue of its validity was pending before the district court. [Headnotes 6, 7] Indeed, we recognize that the legislature violates the separation of powers principle by retrospectively abrogating judicial pronouncements of the courts of this state through a legislative interpretation of the law. See Federal Express Corp. v. Skelton, 578 S.W.2d 1, 8 (Ark. 1979). We also recognize, however, that it is well within both the legislature's authority and the limits of this state's constitution to prospectively amend a statute, and thereby render a prior judicial decision interpreting that statute void. See id. at 7. In the case at bar, we see no constitutional violation of the separation of powers principle in the curative

statute before us. The curative statute did not abrogate a pending judicial controversy because the district court had already rendered its decision validating the ordinance prior to enactment of the curative statute. Therefore, in enacting a curative statute several months thereafter, the legislature did not retroactively impact the integrity of the district court's decision; rather, the legislature merely agreed with the district court's conclusion that the sales tax ordinance was valid. Accordingly, we note that even assuming there was some unmet contingency implicit in the resolution that rendered the loan from the City invalid, the sales tax ordinance was expressly validated by a subsequent curative statute. CONCLUSION We conclude that the Board did not act arbitrarily in ruling that the sales tax ordinance was valid because the City had met the FRQGLWLRQSUHFHGHQWLQWKHVWDWXWH

Ð116 Nev. 163, 171 (2000) Karadanis v. Washoe County Comm'rsÐ Ð condition precedent in the statute. We further recognize that the legislative validation of this municipal act was valid and constitutional because there was no retroactive abrogation of a pending judicial controversy. Finally, we conclude that the district court did not err in ruling that NRS 271.315(1) time barred Sundowner's objection to the validity of the special assessment district. Accordingly, we affirm the order of the district court granting summary judgment in this matter. ____________

Ð116 Nev. 171, 171 (2000) Boykins v. StateÐ Ð Ð PATRICIA YVONNE BOYKINS, Appellant, v. THE STATE OF NEVADA, Respondent. No. 29716 February 4, 2000

995 P.2d 474

Appeal from judgment of conviction, pursuant to a jury verdict, of one count of involuntary manslaughter with the use of a deadly weapon. Third Judicial District Court, Lyon County; Mario G. Recanzone, Judge. Defendant was convicted in the district court of involuntary manslaughter with the use of a deadly weapon, and was sentenced to prison for a minimum of nineteen months and a maximum term of forty-eight months. Defendant appealed. The supreme court, Leavitt, J., held that jury was improperly instructed regarding battered woman syndrome. Reversed and remanded. Young, J., dissented. Kenneth V. Ward, Public Defender, Lyon County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Robert E. Estes, District Attorney, and John Paul Schleglemilch, Deputy District Attorney, Lyon County, for Respondent. 1. Homicide. Jury instruction in prosecution for involuntary manslaughter improperly limited consideration of battered woman syndrome evidence to defendant's perceptions that victim's conduct put her in imminent fear of her life or great bodily harm, and failed to reflect that the syndrome could be used to evaluate defendant's state of mind at the time of the shooting and her claim that the shooting was an

“accident.” NRS 48.061, 200.200. 2. Criminal Law. Defendant in a criminal case is entitled, upon request, to a jury LQVWUXFWLRQRQKLVRUKHUWKHRU\RIWKHFDVHVRORQJDV

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Ð116 Nev. 171, 172 (2000) Boykins v. StateÐ Ð instruction on his or her theory of the case, so long as there is some evidence, no matter how weak or incredible, to support it. 3. Homicide. Effect of domestic violence on beliefs, behavior, and perception of a defendant is admissible to show the defendant's state of mind in murder prosecution. NRS 48.061, 200.200.

Before the Court En Banc. OPINION By the Court, Leavitt, J.: Appellant was charged with first degree murder with the use of a deadly weapon. She asserted self-defense and claimed that she suffered from battered woman syndrome. An expert testified concerning the effects of the syndrome on a battered woman's beliefs, behavior, and perceptions. The jury returned a guilty verdict of involuntary manslaughter with the use of a deadly weapon. Appellant was sentenced to the Nevada Department of Prisons for a minimum term of nineteen (19) months and a maximum term of forty-eight (48) months. FACTS Appellant Patricia Yvonne Boykins and the victim, Calvin Rochester Swazya were involved in a non-marital relationship for seven years and cohabited for six years. The couple constantly argued with resulting instances of verbal and physical abuse. Boykins testified that Swazya would beat her and “there were times when they [sic] were beatings . . . he always hit me, but there were times that were worse than others.” She also testified that she knew, by Swazya's expressions, when the argument would become violent. Boykins' testimony was corroborated by other witnesses who testified regarding the violent nature of Boykins' relationship with Swazya. Boykins was a general manager of the Sagebrush Ranch, a licensed brothel, where Swazya was a custodian. The relationship between the parties deteriorated, Swazya requested an early paycheck and was preparing to leave. The couple argued about financial issues for several hours. One witness testified that he observed Boykins in a corner of her office with her hands raised to protect her face while Swazya was standing over her with his hand raised as if to slap her. Swazya appeared to be in a rage. Boykins testified that she began loading a .357 revolver. When Swazya walked toward her, the gun discharged. Swazya was hit DERYHKLVOHIWH\HEURZDQGZDVIDWDOO\ZRXQGHG

Ð116 Nev. 171, 173 (2000) Boykins v. StateÐ Ð above his left eyebrow and was fatally wounded. Boykins stated that the gun accidentally discharged while she was trying to load it. 1 Although Boykins told the police and testified that the shooting was accidental, due to the physical evidence, an accidental discharge was considered unlikely by both the defense and prosecution experts. For this reason, accidental discharge was not the focus of the defense. Instead, counsel for Boykins argued that Boykins shot Swazya in self-defense and her insistence in describing the incident as an accident was a product of battered woman syndrome. Evidence was presented that women who suffer from battered woman syndrome often claim they accidentally killed their batterer. The jury convicted Boykins of involuntary manslaughter with the use of a deadly weapon. 2 The trial judge

sentenced Boykins to the Nevada State Prison for a minimum of nineteen (19) months and a maximum term of forty-eight (48) months without any enhancement. DISCUSSION [Headnote 1] Boykins offered the following jury instruction: Evidence of battered womens [sic] syndrome can be considered by you, the jury, for the following purposes[:] (1) To determine whether the defendant actually believed that she needed to use deadly force. (2) To determine whether, due to battered womens [sic] syndrome, her belief was reasonable, and (3) To assist in determining the credibility of the defendant's testimony. The district court declined to give this instruction, finding that there were other instructions, specifically Instruction 34, that adequately advised the jury on the effects of domestic violence to a claim of self-defense pursuant to NRS 48.061 and 200.200. [Headnote 2] Boykins claims that the failure to give the instruction deprived her of a fair trial. “A defendant in a criminal case is entitled, upon request, to a jury instruction on his or her theory of the FDVH __________ 1

Evidence was presented that due to the model of the revolver, in order to load the gun and close the cylinder, the gun would have to be pointing down toward the floor. 2

The State filed a motion to correct sentence as to the deadly weapon enhancement. We have held that the deadly weapon enhancement does not apply to the unintentional crime of involuntary manslaughter. Buschauer v. State, 106 Nev. 890, 895-96, 804 P.2d 1046, 1049 (1990).

Ð116 Nev. 171, 174 (2000) Boykins v. StateÐ Ð case, so long as there is some evidence, no matter how weak or incredible, to support it.” Williams v. State, 99 Nev. 530, 531, 665 P.2d 260, 261 (1983). Boykins asserts that the offered instruction was necessary to eliminate confusion created by other instructions. Boykins argues that Instruction 34 did not make it clear to the jury that evidence regarding battered woman syndrome could be considered in evaluating whether a reasonable person under the circumstances (i.e., suffering from battered woman syndrome) would believe that she was in imminent fear of her life or great bodily injury. Boykins also contends that Instruction 34 did not address the effect of the syndrome on her state of mind at the time of the shooting and her claim that the shooting was accidental despite physical evidence to the contrary. We agree. Dr. Lenore E. A. Walker 3 testified as an expert witness for Boykins. “Dr. Walker [has defined] a battered woman as ‘one who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without any concern for her rights.' ” Ann-Marie Montgomery, Note, State v. Riker, Battered Women under duress: The concept the Washington Supreme Court could not grasp, 19 Seattle U. L. Rev. 385, 391 (1996) (quoting Lenore E. Walker, The Battered Woman 15 (1980)). Dr. Walker testified that the abuse must occur twice before a woman can be considered a battered woman. The district court allowed her great latitude in describing aspects of the battered woman syndrome including the interaction between the “learned helplessness” and a process called the “three phases of violence” (the cycle theory). 4 Dr. Walker's three phases of violence theory has been described as follows:

This theory describes three distinct phases to a battering relationship. In phase one, the tension building phase, the batterer indulges in psychological torture of the woman. This torture is followed by phase two, an “acute battering incident,” in which the inevitable tension that has built up results in an uncontrollable discharge of violence. In phase three, the batterer expresses “loving contrition” by apologizing profusely and showing kindness and remorse. It is this third phase that is the most troublesome because the batterer's EHKDYLRU SURYLGHV WKH ZRPDQ ZLWK SRVLWLYH

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Dr. Walker is a psychologist who has done extensive research on battered woman syndrome. She has published several articles and books on the subject, and she has testified as an expert on battered woman syndrome in thirty-five states, five federal courts, and a court in Greece. 4

Dr. Walker indicated learned helplessness occurs when a battered woman is unable to control her batterer's abuse.

Ð116 Nev. 171, 175 (2000) Boykins v. StateÐ Ð behavior provides the woman with positive reinforcement for staying in the relationship. This positive reinforcement leads battered women to experience a sense of learned helplessness. The theory of learned helplessness explains the counter-intuitive nature of the battered woman's responses to the incessant abuse she suffers . . . . When a woman realizes that her behavior bears no relationship to the violence she receives, she develops “survival or coping skills that keep [her] alive with minimal injuries.” For example, many battered women become passive after an abusive incident. These coping skills are developed at the expense of escaping skills, which may include anger and active behavior, skills that would enable the battered woman to leave the relationship. The synergistic effects of the cycles of violence and learned helplessness are profound. A symptom of these effects is hypervigilance, a symptom that all battered women share. Battered women are hypervigilant to cues of potential danger and are acutely aware of their surroundings. To a battered woman, otherwise insignificant behaviors such as an eye twitch, a particular tone of voice, or a certain movement are all things that may signal an impending attack by a male. Montgomery, supra, at 392-94 (footnotes omitted) (quoting Lenore E. A. Walker, Battered Women Syndrome and Self- Defense, 6 Notre Dame J.L. Ethics and Pub. Pol'y 321, 326 (1992) & Lenore E. Walker, The Battered Woman Syndrome (1984)). Several state courts have accepted evidence of battered woman syndrome: [[S]eventy-six] percent of the states [thirty-nine] have found expert testimony on battering and its effects admissible to prove the defendant is a battered woman or “suffers from battered woman syndrome.” Nearly as many, [thirty-five] states [sixty-nine percent] have found “generic” expert testimony admissible, i.e., to explain battering and its effects generally. Janet Parrish, Trend analysis: Expert testimony on battering and its effects in criminal cases, 11 Wis. Women's L.J. 75, 117-18 (1996) (footnote omitted). The Nevada Legislature recognized the theory in NRS 48.061 as follows: Evidence of domestic violence as defined in NRS 33.018 and expert testimony concerning the effect of domestic vioOHQFHRQWKHEHOLHIV

Ð116 Nev. 171, 176 (2000) Boykins v. StateÐ Ð lence on the beliefs, behavior and perception of the person alleging the domestic violence is admissible in chief and in rebuttal, when determining: 1. Whether a person is excepted from criminal liability pursuant to subsection 7 of NRS 194.010, [5] to show the state of mind of the defendant. 2. Whether a person in accordance with NRS 200.200 [6] has killed another in self-defense, toward the establishment of the legal defense. [Headnote 3] Under Nevada law, the effect of domestic violence on “beliefs, behavior, and perception” of a defendant is admissible to “show the defendant's state of mind.” However, battered woman syndrome is not a complete defense. The United States District Court for the District of Kansas explains: [B]attered woman syndrome is not a defense. It is some evidence to be considered to support a defense, such as self-defense, duress, compulsion, and coercion. Because women who suffer from the battered woman syndrome do not act in a typical manner as compared with women who do not suffer from it, evidence of the syndrome is used to explain their behavior. Evidence of [battered woman] syndrome is presented through expert testimony to assist the jury's evaluation of the defendant's state of mind. U.S. v. Brown, 891 F. Supp. 1501, 1505 (D. Kan. 1995) (citation omitted). NRS 48.061 is modeled after Oklahoma's Battered Woman Statute. See Hearing on A.B. 637 Before the Assembly Comm. on Judiciary, 67th Leg. (Nev., May 27, 1993), Exhibit E; Senate 'DLO\-RXUQDO __________ 5

NRS 194.010 provides in pertinent part as follows: All persons are liable to punishment except those belonging to the following classes: .... 7. Persons, unless the crime is punishable with death, who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to believe, and did believe, their lives would be endangered if they refused, or that they would suffer great bodily harm.

6

NRS 200.200 states as follows: If a person kills another in self-defense, it must appear that: 1. The danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and 2. The person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given.

Ð116 Nev. 171, 177 (2000) Boykins v. StateÐ Ð Daily Journal, A.B. 637, at 27 (67th Leg. Nev., June 26, 1993). Oklahoma's Statute located at § 40.7 of Title 22 contains the following: “In an action in a court of this state, if a party offers evidence of domestic abuse, testimony of an expert witness concerning the effects of such domestic abuse on the beliefs, behavior and perception of the person being abused shall be admissible as evidence.” After Oklahoma passed the Battered Woman Syndrome Statute, an Oklahoma court examined a newly revised jury instruction and stated that the jury instruction was consistent with the new statute. See Bechtel v. State, 840 P.2d 1, 11 (Okla. Crim. App. 1992). The revised jury instruction contained the following: A person is justified in using deadly force in self-defense if that person believed that use of deadly force

was necessary to protect herself from imminent danger of death or great bodily harm. Self-defense is a defense although the danger to life or personal security may not have been real, if a person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that she was in imminent danger of death or great bodily harm. Id. The theory behind the use of evidence regarding domestic violence and the battered woman syndrome centers upon the state of mind of the individual who has been subjected to such violence. Self-defense is shown when a person, under the circumstances, reasonably believes she is in imminent danger of death or great bodily harm, even if no actual threat exists. Where the “circumstances” include domestic violence, the battered woman syndrome is relevant to the reasonableness of an individual's belief that death or great bodily harm is imminent. The district court gave a number of instructions to the jury that dealt with the concept of self-defense. 7 Of the twelve instructions involving issues of self-defense, only one, Instruction 34, discusses the relationship between domestic violence or the battered woman syndrome and Boykins' claim of self-defense. Instruction 34 did not properly encompass Boykins' theory of the case. The instruction limits the consideration of the battered woman syndrome evidence to Boykins' perceptions that Swazya's conduct put her in imminent fear of her life or great bodily harm. It did not reflect that the syndrome could be used to evaluate Boykins' state of mind at the time of the shooting and her claim that the shooting was an “accident.” The failure to give an instruction regarding Boykins' state of PLQG ZDV FRPSRXQGHG E\ WKH

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Instructions 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34 and 36 all involved self-defense and the concept of what constitutes a reasonable belief that death or great bodily injury is imminent.

Ð116 Nev. 171, 178 (2000) Boykins v. StateÐ Ð mind was compounded by the wording of the eleven other instructions encompassing the law on self-defense. Many of the instructions did not contain any language that the reasonableness of a person's belief must be considered under the circumstances that existed when the belief was formed. For example, Instruction 23 indicated that deadly force was only authorized when a person believes “with good reason” that such force is necessary to prevent great bodily harm. “Good reason” is not the equivalent of “good reason under the circumstances.” The lack of consistency amongst the various self-defense instructions together with the failure to give an instruction regarding the relationship between a person's state of mind and the battered woman syndrome constitutes error. Although we are mindful of the fact, as pointed out by the dissent, that Boykins was not convicted of first degree murder, we cannot conclude that the failure to properly instruct the jury is harmless error. CONCLUSION The district court allowed evidence of the battered woman syndrome and correctly refused to allow the expert witness to testify on the ultimate issue that appellant was suffering from the syndrome. See Townsend v. State, 103 Nev. 113, 734 P.2d 705 (1987). However, the trial court failed to properly instruct the jury on Boykins' theory that battered woman syndrome should be considered by the jury not only as to the reasonableness of Boykins' conduct, but as to her state of mind at the time of the shooting. Therefore, the case must be reversed and remanded for a new trial. At the new trial, the court should give the following instruction: You have heard expert testimony concerning the effect of domestic violence on the beliefs, behavior, and perception of a woman who may be suffering from battered woman syndrome. The defendant asserts that she was suffering from battered woman syndrome at the time of the killing. This, in itself, is not a legal defense. However, if you believe that the defendant was suffering from battered woman syndrome, you may consider such evidence when determining the defendant's state of mind at the time of the killing

and whether she acted in self-defense. You may also consider such evidence as to the defendant's credibility and the reasonableness of her belief that she was about to suffer imminent death or great bodily harm and the need to slay an aggressor. By reason of the foregoing, the case is reversed and remanded for a new trial in accordance with the views expressed herein.

Ð116 Nev. 171, 179 (2000) Boykins v. StateÐ Ð Rose, C. J., Maupin, Shearing, Agosti and Becker, JJ., concur. Young, J., dissenting: I respectfully dissent. I conclude that battered woman syndrome is inapplicable to the instant matter. Even assuming that battered woman syndrome is relevant to this case, I further conclude that the district court properly refused Boykins' proffered jury instruction. The majority states that Boykins asserted self-defense. After a careful review of the entire record on appeal, I conclude that the record belies the majority's statement. In fact, Boykins consistently maintained that the shooting was accidental while her attorney pursued a theory of self-defense based on battered woman syndrome. Between the time of the shooting and the beginning of the trial, Boykins gave several versions of events surrounding the shooting with each version containing changed details. Most importantly, Boykins gave two different versions of the actual shooting. Within hours of the shooting, Boykins told two separate police officers that the gun went off when she closed the cylinder while loading it. Boykins testified at trial nearly a year later that the incident occurred differently. Boykins testified that as Swazya approached her, she pointed the gun at him while holding it with both hands. Boykins pulled the hammer back on the gun in order “to scare him.” Boykins then decided to turn and leave, but she stumbled into a desk and chair while still pointing the gun at Swazya. At that time, Boykins testified that the gun accidentally discharged. There were no other witnesses to the shooting. Though Boykins changed her description of the shooting, she has nonetheless remained consistent about the accidental nature of the shooting. Boykins has never indicated that she intentionally shot and killed Swazya. In State v. Hanson, 793 P.2d 1001 (Wash. Ct. App. 1990), the defendant was convicted of second degree murder. She asserted that the trial court erred in excluding testimony regarding battered woman syndrome. The Washington Court of Appeals held that the defendant's offer of proof regarding battered woman syndrome testimony was insufficient. Even if it reached the issue of the relevancy of battered woman syndrome testimony, the court determined that expert testimony concerning battered woman syndrome was not relevant in this case because the defendant asserted that she accidentally shot and killed the victim. Thus, the court stated that the battered woman syndrome testimony would only be relevant where the defendant intentionally shot the victim and then claimed self-defense. Id. at 1002-04; see also State v. Sallie, 693 N.E.2d 267, 270 (Ohio 1998) (holding that defendant's attorney ZDV QRW LQHIIHFWLYH EHFDXVH WHVWLPRQ\ FRQFHUQLQJ EDWWHUHG

ZRPDQ V\QGURPH ZDV LUUHOHYDQW ZKHUH GHIHQGDQW FODLPHG WKDW WKH VKRRWLQJ ZDV DFFLGHQWDO  Ð116 Nev. 171, 180 (2000) Boykins v. StateÐ Ð was not ineffective because testimony concerning battered woman syndrome was irrelevant where defendant claimed that the shooting was accidental). In the instant matter, Boykins similarly maintained that she shot Swazya accidentally. Thus, battered woman syndrome testimony is simply irrelevant because the testimony only relates to a claim of self-defense, and self-defense only arises to legally justify a killing. If the killing is an accident, legal justification is not required. Moreover, at trial and on appeal, Boykins relied solely on People v. Humphrey, 921 P.2d 1 (Cal. 1996), in which the California Supreme Court held that battered woman syndrome testimony is admissible. The district court

specifically rejected Boykins' reliance on Humphrey based on Nevada law. Further, Humphrey is easily distinguishable from the instant matter. In Humphrey, the defendant consistently maintained that she intentionally shot and killed the victim, whereas Boykins steadfastly claimed that she shot Swazya accidentally. In addition, the Humphrey court based its decision on section 1107 of the California Evidence Code, which is substantially different from Nevada's statutory framework. Therefore, I conclude that Humphrey provides no support for Boykins' argument. At trial, Boykins and her attorney asserted two opposing theories of the shooting. As the Hanson court stated, “[I]t would be a strange anomaly if the same evidence could support two diametrically opposed theories of how the death ensued, by intentional self-defense or by accident.” Hanson, 793 P.2d at 1003. Boykins and her attorney cannot have it both ways in pursuing patently inconsistent theories of the shooting. Accordingly, I conclude that battered woman syndrome testimony is inapplicable to this case because there is no need to explain or justify why Boykins intentionally shot Swazya since Boykins consistently maintained for nearly a year that the shooting was an accident. Even if testimony concerning battered woman syndrome is relevant, Nevada's statutory framework explicitly indicates how this testimony can be used at trial. NRS 48.061 provides, in part: Evidence of domestic violence as defined in NRS 33.018 and expert testimony concerning the effect of domestic violence on the beliefs, behavior and perception of the person alleging the domestic violence is admissible in chief and in rebuttal, when determining: .... 2. Whether a person in accordance with NRS 200.200 has killed another in self-defense, toward the establishment of the legal defense. (Emphasis added.)

Ð116 Nev. 171, 181 (2000) Boykins v. StateÐ Ð NRS 200.200 states, in part: If a person kills another in self-defense, it must appear that: 1. The danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and 2. The person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given. (Emphasis added.) Thus, when the statutes are read together, evidence of domestic violence is clearly admissible when a theory of self-defense is presented. Consequently, evidence of domestic violence and expert testimony concerning the effects of domestic violence on a defendant's beliefs, behavior, and perceptions are admissible only in relation to the defendant's perception of imminent danger and the defendant's perceived need to use deadly force. Instruction 34 provided: During this trial, there has been evidence presented relating to the effect that Battered Woman Syndrome may have had on the defendant. You, as Jurors, may only use that evidence insofar as it relates to the defendant's perceptions that: 1. the danger was so urgent and pressing that, in order to save her own life, or to prevent her from receiving great bodily harm, the killing of Calvin[ ] Rochester Swazya was absolutely necessary, and 2. to determine whether the defendant actually believed that she needed to use deadly force. Thus, I conclude that the district court properly instructed the jury on evidence relating to the effects of domestic violence and its application to Boykins' theory of self-defense. Instruction 34 accurately stated Nevada

law by integrating NRS 48.061 and NRS 200.200. Indeed, the instruction echoes the language of NRS 200.200(1). Moreover, pursuant to NRS 48.061, the instruction expressly limits the use of this type of evidence to Boykins' perceptions. Accordingly, I conclude that the district court did not err in giving Instruction 34 because it properly limited the use of evidence of domestic violence. In contrast, Boykins' proffered instruction fails to incorporate the language of NRS 200.200. For example, the proffered instruction fails to include an imminency element as required under NRS 200.200(1). Furthermore, NRS 48.061 and NRS 200.200 do not discuss the applicability of domestic violence evidence to a witness's credibility. Nonetheless, Boykins' proffered instruction sought to admit this evidence in an apparent attempt to reconcile the inconsistent versions of the accidental shooting that she UHOD\HGWRRWKHUV

Ð116 Nev. 171, 182 (2000) Boykins v. StateÐ Ð relayed to others. Indeed, by finding Boykins guilty of involuntary manslaughter, the jury apparently believed her testimony that she shot Swazya accidentally. If either Boykins' proffered instruction or the majority's proposed instruction is used, it would rest on the premise that the jury should completely disregard testimony given under oath by Boykins that she did not intend to shoot Swazya. Instead, the premise of either such instruction would be that Boykins really did not understand what happened; but that with the insight provided by psychiatric testimony, she intended to kill him all along. This would require the jury to engage in mental gymnastics that only the science of psychiatry could understand. Moreover, it is important to point out that the verdict was the result of a remarkably comprehensive deliberative process. The trial lasted ten days, and the jury received upwards of fifty jury instructions. The jury also deliberated for more than fifteen hours. After hearing all the evidence and even after the lengthy testimony provided by Boykins' expert, Dr. Lenore E. A. Walker, the jury accepted Boykins' testimony that she shot Swazya accidentally and clearly rejected the alternative defense theory based on battered woman syndrome. The jury apparently favored the testimony of the State's expert, Dr. Alice S. Brill, that Boykins did not fit the typical profile of a battered woman. For example, Boykins successfully managed a brothel with dozens of employees, she was financially independent, and earned approximately $65,000 annually for her work at the brothel. Moreover, Boykins had previously exhibited aggressive and dominant personality characteristics. In addition, Swazya's ex-wife testified that he had never physically abused her during their eighteen-year marriage. For these reasons, I believe that the jury's decision after fifteen hours of deliberation should not be lightly reversed. 1 Additionally, the district court expressly found that the self-defense instructions and Instruction 34 sufficiently covered the subject of Boykins' proffered instruction. 2 It is well-settled that “if 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). Nonetheless, the majority concludes that the district court committed reversible error because Instruction 34 did not permit evidence of battered ZRPDQV\QGURPHWR

EHXVHGWRHYDOXDWH%R\NLQV VWDWHRIPLQGRUWKHUHDVRQDEOHQHVVRIKHUDFWLRQV __________ 1

It is important to note that the Department of Parole and Probation paroled Boykins on June 11, 1998. Boykins was then discharged from parole on January 29, 1999. 2

As previously noted, Boykins only offered People v. Humphrey, 921 P.2d 1 (Cal. 1996), in support of her proposed instruction. Humphrey involved an admittedly intentional killing. See id. at 3-4. It was Boykins' responsibility to provide authority in support of her position. This was not done, and she cannot now be heard to complain.

Ð116 Nev. 171, 183 (2000) Boykins v. StateÐ Ð woman syndrome to be used to evaluate Boykins' state of mind or the reasonableness of her actions.

However, NRS 48.061 and NRS 200.200 do not permit evidence concerning battered woman syndrome to be used in order to evaluate Boykins' state of mind or the reasonableness of her actions. A consideration of Boykins' state of mind and the reasonableness of her actions is the proper subject of self-defense instructions. In this case, the district court gave no less than twelve self-defense jury instructions regarding issues related to Boykins' state of mind and the reasonableness of her actions. Importantly, Boykins did not object to any of the self-defense instructions, which would typically preclude appellate review. See Etcheverry v. State, 107 Nev. 782, 784-85, 821 P.2d 350, 351 (1991) (holding that failure to object to jury instruction at trial bars appellate review). Even assuming that the self-defense instructions contain minor inconsistencies, I conclude that Instruction 34 and the twelve self-defense jury instructions adequately cover Nevada law. Accordingly, I view the majority's attempt to integrate the jury instructions regarding self-defense and battered woman syndrome as confusing and unnecessary. Simply put, I believe that battered woman syndrome is inapplicable based on the facts of this case. Even if testimony concerning battered woman syndrome is considered relevant, I believe that Boykins' proffered instruction and the majority's proposed instruction overstate the admissibility of evidence concerning domestic violence. Both NRS 48.061 and NRS 200.200 clearly provide for when and how evidence of domestic violence may be used. Instruction 34 properly abides by these statutes, whereas Boykins' proffered instruction and the majority's proposed instruction do not. Domestic violence is no doubt a serious problem. However, by going beyond the plain language of NRS 48.061 and NRS 200.200, I fear that the majority embarks upon a dangerous path of incrementally broadening the application of self-defense claims without the legislature's explicit approval. Our duty is to interpret laws enacted by the legislature, not make our own when we deem it desirable. Accordingly, I dissent. 3 __________ 3

In this dissent, I reluctantly use the term “battered woman syndrome.” The term connotes more than the legislature apparently deemed admissible. The term does not appear in NRS 48.061 or NRS 200.200. The original version of NRS 48.061 included the term “domestic abuse syndrome.” See A.B. 637, 67th Leg. (Nev., May 17, 1993). However, the legislature subsequently adopted NRS 48.061 in its current form and excluded references to “domestic abuse syndrome.” See 1993 Nev. Stat., ch. 346, §§ 1-2, at 1107. Thus, I prefer the explicit language of NRS 48.061 and NRS 200.200 instead of the term “battered woman syndrome” or “domestic abuse syndrome.” ____________

Ð116 Nev. 184, 184 (2000) State v. ConnersÐ Ð THE STATE OF NEVADA, Appellant, v. SATAN RENEE CONNERS, Respondent. No. 33964 February 4, 2000

994 P.2d 44

Appeal from an order of the district court suppressing evidence. Fifth Judicial District Court, Nye County; John P. Davis, Judge. In drug prosecution, the district court granted defendant's motion to suppress evidence, and state appealed. The supreme court held that police officer conducting a Terry pat-down search of an individual's clothing violates the individual's Fourth Amendment rights by continuing to feel an unidentified object after ruling out that the object could be a weapon. Affirmed. Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District Attorney, and Marla

Zlotek, Deputy District Attorney, Nye County, for Appellant. Gensler & Kuehn and Harry R. Gensler, Public Defender, Nye County, for Respondent. 1. Searches and Seizures. Under the “plain-feel” doctrine, a police officer conducting a Terry pat-down search of an individual's clothing violates the individual's Fourth Amendment rights by continuing to feel an unidentified object after ruling out that the object could be a weapon. U.S. Const. amend. 4. 2. Arrest; Searches and Seizures. Under the “plain-feel” doctrine, police officer violated defendant's Fourth Amendment rights when, during a Terry frisk, he continued to feel the object in defendant's pocket even after determining that it was not a weapon. Officer felt something small in defendant's pocket with an open hand and immediately ruled out that the object was a knife, gun, dirk, dagger, or other hidden instrument for the assault of a police officer, yet continued to palpate the object, changing his hand so as to feel the object with his fingertips before discovering that the item was a vial of the size and shape commonly used to contain contraband. U.S. Const. amend. 4.

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: [Headnote 1] The question before us is whether a police officer conducting a 7HUU\ SDWGRZQ VHDUFK RI DQ LQGLYLGXDO V FORWKLQJ YLRODWHV DQ LQGLYLGXDO V )RXUWK $PHQGPHQW ULJKWV E\ FRQWLQXLQJ WR IHHODQXQLGHQWLILHGREMHFWDIWHUUXOLQJRXWWKDWWKHREMHFWFRXOGEHDZHDSRQ Ð116 Nev. 184, 185 (2000) State v. ConnersÐ Ð Terry 1 pat-down search of an individual's clothing violates an individual's Fourth Amendment rights by continuing to feel an unidentified object after ruling out that the object could be a weapon. Applying the “plain-feel” doctrine announced in Minnesota v. Dickerson, 508 U.S. 366 (1993), we answer this question in the affirmative and conclude that the methamphetamine evidence seized from respondent Satan Renee Conners is the fruit of an unconstitutional search. FACTS One night in Pahrump, Nevada, in March 1998, Nye County Deputy Sheriff Jan Moore stopped Conners for speeding on a motorcycle and failing to stop at a stop sign. When Deputy Moore approached, Conners was visibly nervous, gave inconsistent answers about who owned the motorcycle, and repeatedly placed his hands in the front pockets of his jeans despite Deputy Moore's instructions to the contrary. Conners was unable to accurately state the make and model of the motorcycle. The motorcycle also did not have a license plate. At that point, a friend of Conners in another vehicle stopped at the scene. Deputy Moore asked Conners to whom the motorcycle belonged, and Conners replied that it belonged to the individual in the vehicle. Conners stated that he sold the bike to him six months earlier. Deputy Moore then approached the second vehicle and asked Conners' friend to whom the motorcycle belonged. The man replied that it was his and that he had purchased it from Conners about two weeks earlier. Suspecting the motorcycle might be stolen, Deputy Moore placed Conners in handcuffs, but did not arrest him. 2 Deputy Moore then conducted a pat-down search of Conners to check for weapons. In the course of the pat-down search, Deputy Moore felt a small, hard object in Conners' right front pocket. Deputy Moore changed his grip to determine what the object was, and deduced that it was a glass vial commonly used to contain methamphetamine. Deputy Moore reached in Conners' pocket and extracted the vial. It contained a white powdery substance, which Deputy Moore identified as methamphetamine. Deputy Moore then arrested Conners for possession of methamphetamine and various traffic code violations.

The state filed a criminal complaint against Conners, charging KLPZLWKSRVVHVVLRQRIDFRQWUROOHG

VXEVWDQFH __________ 1

Terry v. Ohio, 392 U.S. 1 (1968).

2

A computer check later revealed that the motorcycle was not stolen. Additionally, the state does not argue that Deputy Moore had probable cause to arrest Conners. Accordingly, we need not consider the propriety of the issue of whether the subsequent pat-down search was a custodial search incident to a lawful arrest.

Ð116 Nev. 184, 186 (2000) State v. ConnersÐ Ð him with possession of a controlled substance. Conners waived his right to a preliminary hearing and was charged by information with possession of a controlled substance in violation of NRS 453.336. Conners filed with the district court a pre-trial motion to suppress the methamphetamine. He argued that the drugs were the fruits of an illegal search of his person. On direct examination by Conners' counsel at the suppression hearing, Deputy Moore conceded that upon patting the object in Conners' pocket, Moore first ruled out that it was a firearm, knife, or any other weapon that might be used against Moore. Deputy Moore further testified that upon determining that the object was not a weapon, Moore changed his grip and determined that it was, in fact, a vial. The district court orally granted Conners' motion to suppress, citing Dickerson as the basis for its decision. This appeal followed. DISCUSSION The United States Supreme Court first addressed the “plain-feel” doctrine in Dickerson. In Dickerson, two Minneapolis police officers noticed the defendant leaving a residence that they knew to be a “notorious crack house.” 508 U.S. at 368. The defendant was walking toward the officers, but immediately stopped and changed direction upon spotting them. The defendant then turned and entered an alley. Their suspicions aroused, the officers stopped the defendant. Id. at 368-69. One of the officers pat-searched the defendant. The officer later testified: “[A]s I pat-searched the front of his body, I felt a lump, a small lump, in the front pocket. I examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane.” Id. at 369. The officer then retrieved the item from the defendant's pocket and discovered a small plastic bag containing crack cocaine. Id. The defendant challenged the seizure of the drugs. In its decision, the United States Supreme Court reiterated its holding in Terry with regard to the permissible scope of an investigative stop and frisk. A police officer may briefly stop a person to make “ ‘reasonable inquiries' ” into unusual conduct that leads the officer to believe “ ‘that criminal activity may be afoot.' ” Id. at 373 (quoting Terry, 392 U.S. at 30). If the officer believes that the individual may be carrying a weapon, he or she may conduct a pat-down search of the individual in the interest of officer safety. However, “[i]f the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.” Id. (citing Sibron v. New York, 392 U.S. 40, 65-66 (1968)). In some instances, however, a police officer conducting a Terry VHDUFKPD\VHL]HFRQWUDEDQGIURP

WKH LQGLYLGXDO ZKHUH LWV LGHQWLILFDWLRQ DV FRQWUDEDQG LV ³LPPHGLDWHO\ DSSDUHQW´ WR WKH RIILFHU Ð116 Nev. 184, 187 (2000) State v. ConnersÐ Ð search may seize contraband from the individual where its identification as contraband is “immediately apparent” to the officer. This is analogous to the “plain-view” doctrine, 3 perception is sight rather than touch. Id. at 375-76.

where the officer's means of

The Court applied this “plain-feel” doctrine to the facts in Dickerson. The record showed that the Minneapolis police officer did not claim that he suspected the object might be a weapon. In fact, the officer's testimony revealed that he did not “immediately” recognize the lump to be crack cocaine. The identification of the object as contraband came only after the officer manipulated the object within the defendant's pocket “—a pocket which the officer already knew contained no weapon.” Id. at 378. The Court concluded that the manipulation of the object in the defendant's pocket amounted to an unconstitutional search because the officer continued to feel the pocket after determining that no weapon was present. Id. Therefore, the Court affirmed the suppression of the cocaine evidence. Id. at 379. [Headnote 2] In the present case, Conners concedes that Deputy Moore lawfully stopped him and was justified in conducting a Terry pat-down search. However, Conners argues that Deputy Moore's seizure of the methamphetamine was the result of an unlawful search that continued after the officer had determined the object was not a weapon. We agree. In conducting the pat-down search, Deputy Moore felt something small in Conners' pocket with an open hand and immediately ruled out that the object was a knife, gun, dirk, dagger, or other hidden instrument for the assault of a police officer. Even so, Deputy Moore continued to palpate the object, changing his hand so as to feel the object with his fingertips. Only then did the officer discover that the item was a vial of the size and shape commonly used to contain contraband. The state's argument that the object was “immediately apparent” to Moore is belied by the officer's own testimony. Deputy Moore admitted on direct examination that he changed his grip only after ruling out the object was a weapon. These facts fall squarely within the definition of a search that oversteps the bounds of Terry. The officer exceeded the scope of Terry by continuing to feel the object in Conners' pocket, “a pocket which the officer already knew contained no ZHDSRQ´ __________ 3

The “plain-view” doctrine holds that “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Dickerson, 508 U.S. at 375 (citing Horton v. California, 496 U.S. 128, 136-37 (1990); Texas v. Brown, 460 U.S. 730, 739 (1983)). However, if the incriminating character of the item is not immediately apparent, the officer may not seize it. Id.

Ð116 Nev. 184, 188 (2000) State v. ConnersÐ Ð weapon.” Dickerson, 508 U.S. at 378. The subsequent seizure of the vial was, therefore, the result of an unconstitutional search because Deputy Moore lacked probable cause to extract the item from Conners' pocket. See id. Accordingly, we affirm the district court's order suppressing the methamphetamine evidence.

____________

Ð116 Nev. 188, 188 (2000) Sheriff v. MarcusÐ Ð Ð SHERIFF, WASHOE COUNTY, Appellant, v. RICHARD ALAN MARCUS, Respondent. No. 32958 February 23, 2000

995 P.2d 1016

This is an appeal from an order of the district court granting respondent's pretrial petition for a writ of habeas

corpus and dismissing the complaint against respondent. Second Judicial District Court, Washoe County; Deborah A. Agosti, Judge. Defendant charged with misdemeanor driving under the influence filed a pretrial petition for a writ of habeas corpus. The district court granted the petition and dismissed the complaint. State appealed. The supreme court held that: (1) statute granting prosecutors one chance to dismiss a misdemeanor complaint and later refile without prejudice preempted any common law requirement that the prosecution show due diligence and good faith before dismissing criminal charges, and (2) the statute does not violate the Equal Protection Clause. Reversed. Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Appellant. Martin H. Wiener, Reno, for Respondent. 1. Criminal Law. Statute granting prosecutors one chance to dismiss a misdemeanor complaint and later refile without prejudice preempted any common law requirement that the prosecution show due diligence and good faith before dismissing criminal charges. NRS 174.085(5). 2. Criminal Law. Prosecutors' statutorily conferred power to dismiss a misdemeanor complaint and later refile without prejudice may not be used to violate any constitutional right guaranteed to the defendant. NRS 174.085(5). 3. Constitutional Law; Criminal Law. Statute granting prosecutors one chance to dismiss a misdemeanor complaint and later refile without prejudice does not violate the Equal Protection Clause by impermissibly discriminating against the class of misdemeanor defendants with regard to a fundamental trial right. The VWDWXWH LV UDWLRQDOO\ UHODWHG WR WKH OHJLWLPDWH JRYHUQPHQW LQWHUHVW RI JLYLQJ SURVHFXWRUV D

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Ð116 Nev. 188, 189 (2000) Sheriff v. MarcusÐ Ð statute is rationally related to the legitimate government interest of giving prosecutors a qualified right to dismiss and refile charges so that evidence may be more fully developed before trial and the burdensome grand jury process may be avoided before reinstatement of charges. U.S. Const. amend. 14, § 1; NRS 174.085(5). 4. Constitutional Law. Misdemeanor defendants do not constitute a suspect class warranting a stricter standard of review for purposes of equal protection analysis. U.S. Const. amend. 14, § 1. 5. Constitutional Law. Right to have a complaint dismissed by the prosecutor only upon a showing to the court of good cause is not one that is fundamental for equal protection purposes. U.S. Const. amend. 14, § 1.

Before Rose, C. J., Young and Leavitt, JJ. OPINION Per Curiam: SUMMARY This is a case concerning recent legislation granting prosecutors the ability to once dismiss without prejudice a misdemeanor complaint against a defendant before trial. Based on our review of the legislation in light of our case law, which requires a showing of good cause before a prosecutor may seek a continuance, we conclude that the legislation is clear and unambiguous on its face and allows prosecutors, within constitutional limitations, to make such a dismissal without consent of the court. STATEMENT OF FACTS In October 1997, Richard A. Marcus (“Marcus”) was arrested and charged with misdemeanor driving under the influence. After Marcus entered a not guilty plea at his arraignment hearing, the Sparks Justice

Court set the case for trial. Prior to trial, however, the State filed a motion for continuance supported by an affidavit from the district attorney as required by NRS 174.515 and Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969). In this affidavit, the district attorney swore, in relevant part, that the arresting officer who was the sole witness to Marcus's arrest was unavailable because of mandatory self-defense training. Further, the affidavit stated that the request for continuance was made in good faith and not for the purposes of delay. In response, Marcus filed an opposition to the motion for continuance. Therein, Marcus argued that the State failed to show “good cause” for the trial continuance because it had failed to GHPRQVWUDWHZKDW

GLOLJHQFHKDGEHHQXVHGWRSURFXUHWKHZLWQHVV VDWWHQGDQFH Ð116 Nev. 188, 190 (2000) Sheriff v. MarcusÐ Ð demonstrate what diligence had been used to procure the witness's attendance—an affidavit element required by Hill. On the previously scheduled trial date, the justice of the peace heard oral argument on the motion for continuance. In this hearing, the State reiterated the fact that the arresting officer was unavailable due to his mandatory self-defense training and that, as a result, the State was “obviously . . . not ready to proceed to trial.” With regard to the sufficiency of the affidavit attached to the motion for continuance, the State noted that its affidavit did not appear to adequately evidence the necessary diligence or effort to obtain the missing witness. Therefore, rather than seeking a continuance supported by the possibly defective affidavit, the State invoked the statute at issue, NRS 174.085(5), and successfully moved that the complaint be dismissed without prejudice. In early February of 1998, the State refiled the same charges against Marcus in Sparks Justice Court by way of criminal complaint and served him with a summons. Thereafter, Marcus moved to dismiss the refiled case, arguing that the justice court had had no authority to dismiss the original proceeding without prejudice. In an order issued to resolve the matter, the justice court concluded that the statute in question, NRS 174.085(5), clearly gave the State “two bites at the apple,” thereby allowing the prosecutor to once dismiss a misdemeanor charge before trial without prejudice. Further, the justice of the peace indicated that a subpoena had been issued for the arresting officer's attendance at trial, but that the officer had earlier informed the district attorney of his prior commitment. Therefore, the justice of the peace concluded that, even though the district attorney decided to rely on NRS 174.085(5) for dismissal, the district attorney may have been able to show the requisite due diligence at the first hearing. One day before the rescheduled trial date, Marcus filed a petition for writ of habeas corpus in district court. In that petition, Marcus argued that Nevada common law has established a “be prepared or lose” rule that cannot be and is not modified by revised NRS 174.085. At a brief hearing on the matter, the district court granted the writ, concluding that the statute did not excuse the State's obligation to act in good faith and that the State had no right to dismiss and refile if it could not get a proper motion for continuance. The State now appeals the district court's granting of Marcus's writ. DISCUSSION [Headnote 1] The State contends that the district court erred in granting Marcus's writ of habeas corpus because the legislature amended 156   LQ RUGHU WR JUDQW 1HYDGD SURVHFXWRUV RQH FKDQFH WR

GLVPLVVDPLVGHPHDQRUFRPSODLQWDQGODWHUUHILOHZLWKRXWSUHMXGLFH Ð116 Nev. 188, 191 (2000) Sheriff v. MarcusÐ Ð NRS 174.085(5) in order to grant Nevada prosecutors one chance to dismiss a misdemeanor complaint and later refile without prejudice. Further, the State argues that because of the legislative power to enact and modify criminal procedure, any common law requirement that the prosecution show due diligence and good faith before dismissing criminal charges is preempted. We agree.

Before discussing revised NRS 174.085(5) and its effect on prosecutors, we will briefly review the case law on which Marcus and the district court below rely. The common law rule requiring prosecutors to make a showing of good cause before being granted a continuance by a justice court is grounded in this court's decision in Hill where the “good cause” language of a different procedural statute—NRS 171.196(2)—was interpreted. 1 85 Nev. 234, 452 P.2d 918 (1969). With respect to NRS 171.196(2), this court held that “good cause” can be satisfied when the party seeking a continuance attaches an affidavit complying with DCR 14. Hill, 85 Nev. at 235-36, 452 P.2d at 919. However, in certain emergency situations, the prosecution could make an oral motion for continuance supported by an oral affidavit, or could supplement deficiencies in supporting affidavits with oral testimony. See Bustos v. Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971); Jasper v. Sheriff, 88 Nev. 16, 492 P.2d 1305 (1972). Then, in Maes v. Sheriff, a case in which the prosecutor sought to refile a complaint after an earlier complaint had been dismissed because of a prosecutor's improper motion for continuance, we held that the new proceeding was barred if the first was dismissed as a result of the “willful failure of the prosecutor to comply with important procedural rules.” 86 Nev. 317, 319, 468 P.2d 332, 333 (1970). Later, this court expanded the term “willful” to include not only intentional derelictions on the part of the prosecution, but also situations where there had been a “conscious indifference to rules of procedure affecting a defendant's rights.” State v. Austin, 87 Nev. 81, 83, 482 P.2d 284, 285 (1971). Finally, we have noted that the prosecution bears the burden of showing good cause before seeking a continuance and of proving an excuse where it has caused the justice court's dismissal of an earlier complaint by failing to make a proper motion for continuance. See McNair v. Sheriff, 89 Nev. 434, 438, 514 P.2d 1175, 1177 (1973). In 1997, the Nevada State Legislature amended NRS 174.085(5) to its current form, which states in relevant part: The prosecuting attorney in a case that he has initiated, may voluntarily dismiss a complaint: __________ 1

NRS 171.196(2) requires a magistrate to hear evidence of a charge within 15 days of arrest unless time is extended for “good cause.”

Ð116 Nev. 188, 192 (2000) Sheriff v. MarcusÐ Ð (a) Before a preliminary hearing if the crime with which the defendant is charged is a felony or gross misdemeanor; or (b) Before trial if the crime with which the defendant is charged is a misdemeanor, without prejudice to the right to file another complaint, unless the State of Nevada has previously filed a complaint against the defendant which was dismissed at the request of the prosecuting attorney. After the dismissal, the court shall order the defendant released from custody or, if he is released on bail, exonerate the obligors and release any bail. When reviewing a lower court's construction of a statute, this court has held that the question is one of law, and therefore independent appellate review, rather than a more deferential standard, is appropriate. Tighe v. Las Vegas Metro. Police Dep't, 110 Nev. 632, 634-35, 877 P.2d 1032, 1034 (1994). Accordingly, the district court's holding is to be reviewed de novo. See also SIIS v. Snyder, 109 Nev. 1223, 1227, 865 P.2d 1168, 1170 (1993). When construing the meaning and effect of a statute, this court has consistently held that “[w]here the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.” Erwin v. State of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995) (quoting Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990)). Additionally, we have held that “the legislature clearly has the power to regulate procedure in criminal cases.” Colwell v. State, 112 Nev. 807, 813, 919 P.2d 403, 407 (1996). Finally, this court has held that the legislature may preempt common law where such

preemption is clear from the statute. Holliday v. McMullen, 104 Nev. 294, 296, 756 P.2d 1179, 1180 (1988). [Headnote 2] After reviewing NRS 174.085(5), we conclude that the statute clearly and unambiguously authorizes a prosecutor to once dismiss without prejudice a misdemeanor complaint before trial without a showing of good cause. The absence of any good cause requirement is apparent from a comparison of the current language with the pre-amendment language. Before 1997, NRS 174.085(5) required that good cause be shown before a prosecutor could voluntarily dismiss an indictment, information, or complaint after the defendant had been arrested or incarcerated. 1997 Nev. Stat., ch. 504, § 1, at 2392. In contrast, revised NRS 174.085(5) removes any good cause prerequisite for a prosecutor dismissing a complaint before a misdemeanor trial and further

UHTXLUHVWKHLPPHGLDWHUHOHDVHRIWKHGHIHQGDQWIURPFXVWRG\DQGWKHH[RQHUDWLRQRIDQ\ EDLOREOLJDWLRQ Ð116 Nev. 188, 193 (2000) Sheriff v. MarcusÐ Ð requires the immediate release of the defendant from custody and the exoneration of any bail obligation. 2 With respect to a prosecutor dismissing an indictment or information after the arrest or incarceration of the defendant, however, revised NRS 174.085(7) retains the good cause requirement. Accordingly, we conclude that the legislature's amendment containing no requirement that the prosecutor show good cause before once dismissing a misdemeanor complaint must be given effect and that the requirements announced in the Hill line of cases do not apply to the one dismissal allowed under NRS 174.085(5). However, we note that this power may not be used to violate any constitutional right guaranteed to the defendant. [Headnote 3] Our next concern is the general constitutionality of NRS 174.085(5), which Marcus challenges by invoking an equal protection clause argument. Based on our review of the parties' arguments, the common law underpinnings of NRS 174.085(5), and the law in other jurisdictions, we conclude that the statute is constitutional. 3 __________ 2

Although not necessary to our decision, we note that the legislative intent of amended NRS 174.085 supports our holding. As stated by the drafters, the general purpose of the legislation was to make it easier to dismiss and refile felony or gross misdemeanor complaints before preliminary hearings and misdemeanor complaints before trial without first having to go through the burdensome grand jury process. See Minutes of the Senate Committee on Judiciary at 5, 69th Leg. (Nev., June 30, 1997). Further, the drafters noted that many prosecutors in the state do not have the benefit of a grand jury available to them on a regular basis. See id. Finally, during the drafting stages of the bill, there was concern voiced by the public defender that the legislation protected unprepared prosecutors and affected Nevada case law regarding a prosecutor's preparedness at trial. See Minutes of the Assembly Committee on Judiciary at 5, 69th Leg. (Nev., April 7, 1997). However, after several amendments and negotiations, the public defender offices of both Washoe and Clark counties appeared to approve of the statute's current wording, apparently satisfied with the protections contained therein. See Minutes of the Assembly Committee on Judiciary at 13, 69th Leg. (Nev., June 20, 1997). 3

Although not raised by Marcus, we recognize the validity of NRS 174.085 with respect to other constitutional concerns. First, although the right to a speedy trial appears to be the most obviously impacted by the legislation, other provisions in NRS 174.085 resolve any concern. Specifically, NRS 174.085(5) provides for the defendant's immediate release from confinement or from any bail obligation upon a dismissal of a complaint, and NRS 174.085(6) requires that any subsequent complaint be brought by way of summons—not arrest. Thus, because the Supreme Court of the United States has stated that the speedy trial clause does not apply when a defendant is neither incarcerated nor subject to a pending indictment, complaint, or other substantial restriction on their liberty, the right is not violated by the legislation's dismissal procedure. See United States v. Loud Hawk, 474 U.S. 302, 312 (1986). Additionally, the legislation requires any subsequent proceeding to be

Ð116 Nev. 188, 194 (2000) Sheriff v. MarcusÐ Ð [Headnotes 4, 5] Marcus contends that NRS 174.085(5) violates the Equal Protection Clause of the Constitution by impermissibly discriminating against the class of misdemeanor defendants with regard to a fundamental trial right. See U.S. Const. amend. XIV, § 1. We first conclude that misdemeanor defendants do not constitute a suspect class warranting a stricter standard of review. See Dohany v. Rogers, 281 U.S. 362, 369 (1930) (“The Legislature may classify and adopt one type of procedure for one class [of litigants] and a different type for another.”); see, e.g., Blanton v. North Las Vegas Mun. Ct., 103 Nev. 623, 748 P.2d 494 (1987) (no right to jury trial for misdemeanor driving-under-the-influence defendants). Further, we conclude that the right to have a complaint dismissed by the prosecutor only upon a showing to the court of good cause is not one that is fundamental for equal protection purposes. See 16B Am. Jur. 2d Constitutional Law § 816 (1998) (“only those liberties explicitly or implicitly guaranteed by [the] Federal Constitution” are fundamental for purposes of equal protection analysis). Thus, applying rational basis review to the legislation, we conclude that NRS 174.085(5) is rationally related to the legitimate government interest of giving prosecutors a qualified right to dismiss and refile charges so that evidence may be more fully developed before trial and the burdensome grand jury process may be avoided before reinstatement of charges. See Minutes of the Senate Committee on Judiciary at 5, 69th Leg. (Nev., June 30, 1997) (stating legislative purpose). Accordingly, NRS 174.085(5) does not violate any protections guaranteed by the Equal Protection Clause. See U.S. Const. amend. XIV, § 1. More generally, we recognize that the ability of a prosecutor to dismiss and reinstate a charge, known as a nolle prosequi order at common law, is one that has been widely accepted as constitutional. See, e.g., Basing v. Cady, 208 U.S. 386 (1908) (recognizing that “no right secured . . . by the Constitution or laws of the United States” is violated by a prosecutor's dismissal of charges and release of the defendant from custody followed by a later reinstatement of those charges). Moreover, while many jurisdictions have instituted statutory schemes requiring some consent of or showing to the court before prosecutors can effect a pretrial dismissal without prejudice, other jurisdictions continue to grant prosecutors the absolute discretion to dismiss and refile. See generally 21 Am. Jur. 2d Criminal Law § 770-84 (1998) (citing 0LVVRXUL DQG ,QGLDQD DV VXFK

MXULVGLFWLRQV  __________ heard by the original judge, protecting the defendant from any forum-shopping concerns. Finally, the legislation does not raise any double jeopardy concern with respect to a subsequent charge because jeopardy in Nevada does not attach prior to the taking of testimony at trial. See State v. Blackwell, 65 Nev. 405, 415, 200 P.2d 698, 698 (1948).

Ð116 Nev. 188, 195 (2000) Sheriff v. MarcusÐ Ð Missouri and Indiana as such jurisdictions); 3 Wharton's Criminal Procedure, § 445, pp. 926-33 (13th ed. 1991) (citing Florida, Louisiana, Maryland, and Vermont as such jurisdictions). Thus, the continuing vitality of the nolle prosequi power in other states further evidences the constitutionality of the practice. Accordingly, we conclude that NRS 174.085(5) and the power it vests with prosecutors is constitutional. Further, although we recognize that under a different set of facts the statute may be applied unconstitutionally, the prosecutor here properly moved for dismissal under NRS 174.085(5), and thus the district court's granting of Marcus's writ of habeas corpus must be reversed. CONCLUSION Based on the foregoing analysis, we conclude that the prosecutor had the power to once dismiss Marcus's

misdemeanor charge without prejudice prior to trial, and thus we reverse the district court order granting Marcus's writ of habeas corpus and dismissing the complaint against Marcus. ____________

Ð116 Nev. 195, 195 (2000) Desimone v. StateÐ Ð Ð CORKY DESIMONE, Appellant, v. THE STATE OF NEVADA, Respondent. No. 24971 February 23, 2000

996 P.2d 405

Appeal from a judgment of conviction of one count of possession of a trafficking quantity of a controlled substance. Second Judicial District Court, Washoe County; Mills Lane, Judge. Proceedings on remand from the Supreme Court of the United States. Defendant was convicted in the district court of one count of possession of a trafficking quantity of a controlled substance, and he appealed, claiming that conviction violated Double Jeopardy Clause due to prior civil assessment of taxes and penalties for possession of a controlled substance. The supreme court, 111 Nev. 1221, 904 P.2d 1 (1995), reversed. The state petitioned for writ of certiorari, and the United States Supreme Court, 518 U.S. 1030 (1996), vacated and remanded with instruction. On remand, the supreme court held that civil taxes and penalties previously assessed against defendant and reduced to judgment prior to entry of criminal conviction based upon same conduct was sufficiently punitive to transform civil sanction into criminal penalty, and thus subsequent criminal conviction violated double jeopardy. Judgment of conviction reversed and vacated.

Ð116 Nev. 195, 196 (2000) Desimone v. StateÐ Ð Michael R. Specchio, Public Defender, and John Reese Petty, Deputy Public Defender, Washoe County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent. 1. Double Jeopardy. In assessing the double jeopardy implications of a civil sanction, the first inquiry is whether the legislature intended the provision in question to be civil or criminal in nature, and even in those cases where the legislature has indicated an intention to establish a civil mechanism, the court must further inquire into whether the statutory scheme is so punitive, either in purpose or effect, as to transform what was clearly intended as a civil remedy into a criminal penalty. U.S. Const. amend. 5. 2. Double Jeopardy. Tax on Controlled Substances Act (CSA), which levies taxes and penalties on possession of controlled substances, was intended by legislature to be civil in nature, for purposes of determining double jeopardy implications of statute. U.S. Const. amend. 5; NRS 372A.050. 3. Double Jeopardy. Civil taxes and penalties assessed against defendant under Tax on Controlled Substances Act (CSA) and reduced to judgment prior to entry of criminal conviction for possession of a trafficking quantity of a controlled substance based upon same conduct was sufficiently punitive to transform civil sanction into criminal penalty, and thus subsequent criminal conviction violated double jeopardy, even though CSA made provisions for anonymous prepayment of drug tax by dealers in controlled substances and did not condition tax upon arrest for controlled substance violation. U.S. Const. amend. 5; NRS 372A.050.

Before Rose, C. J., Young, Maupin and Shearing, JJ. 1

OPINION Per Curiam: In Desimone v. State, 111 Nev. 1221, 904 P.2d 1 (1995) (Desimone I), this court held that appellant Corky Desimone's criminal conviction of one count of possession of a trafficking quantity of a controlled substance constituted successive punishment in violation of the Double Jeopardy Clause of the United States Constitution. See U.S. Const. amend. V. The United States Supreme Court thereafter vacated our decision and remanded the matter to this court with instructions to reconsider in light of 8QLWHG6WDWHV

Y8UVHU\ __________ 1

This matter was submitted for decision prior to the expansion of the court from five to seven justices on January 4, 1999. Only those justices remaining on the court at the time this matter was submitted for decision participated in this decision.

Ð116 Nev. 195, 197 (2000) Desimone v. StateÐ Ð United States v. Ursery, 518 U.S. 267 (1996). See Nevada v. Desimone, 518 U.S. 1030 (1996). Having reconsidered our prior decision in light of Ursery, as well as the Supreme Court's subsequent holding in Hudson v. United States, 522 U.S. 93 (1997), we again conclude that Desimone's criminal conviction violates the Double Jeopardy Clause of the United States Constitution and must be vacated. FACTS Desimone was arrested and charged with possession and sale of methamphetamine after he provided three ounces of the substance to undercover police officers in exchange for what he believed to be stolen property. Following his arrest, the Nevada Department of Taxation initiated proceedings to collect $166,000 in unpaid taxes and penalties pursuant to NRS chapter 372A, Nevada's Tax on Controlled Substances Act (CSA). On May 20, 1993, the district court entered a civil judgment in the tax proceeding in favor of the Department and against Desimone in the amount of $166,000. Desimone I, 111 Nev. at 1223-24, 904 P.2d at 2-3. Thereafter, on September 22, 1993, the district court convicted Desimone in the separate criminal proceeding of one count of possession of a trafficking quantity of a controlled substance. The district court sentenced him to serve a term of fifteen years in the Nevada State Prison and to pay a fine of $100,000. Id. On appeal, a majority of this court concluded that the taxes and penalties assessed under the CSA constituted “punishment for double jeopardy purposes.” Desimone I, 111 Nev. at 1228, 904 P.2d at 6. Because the tax against Desimone had been reduced to judgment before the judgment of conviction was entered, this court held that his subsequent criminal conviction constituted impermissible successive punishment under the Double Jeopardy Clause. Desimone I, 111 Nev. at 1230, 904 P.2d at 6-7. As noted, the United States Supreme Court subsequently vacated this court's decision and remanded the matter for reconsideration in light of United States v. Ursery, 518 U.S. 267 (1996). See Nevada v. Desimone, 518 U.S. 1030 (1996). DISCUSSION Relevant Supreme Court decisions This court's decision in Desimone I primarily adhered to the analytical approach delineated by the United States Supreme Court in Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994). Kurth Ranch addressed whether a Montana tax assessed on marijuana was invalid as successive punishment under the Double Jeopardy Clause where the taxpayers had already been FULPLQDOO\FRQYLFWHGRIRZQLQJWKHPDULMXDQD

WKDWZDVWD[HG

Ð116 Nev. 195, 198 (2000) Desimone v. StateÐ Ð criminally convicted of owning the marijuana that was taxed. The Court held that the Montana tax proceeding “was the functional equivalent of a successive criminal prosecution that placed the [taxpayers] in jeopardy a second time ‘for the same offense.' ” Kurth Ranch, 511 U.S. at 784. After this court decided Desimone I, the Supreme Court issued two decisions significantly clarifying the proper analysis for determining whether a civil forfeiture or penalty constitutes punishment for double jeopardy purposes. See United States v. Ursery, 518 U.S. 267 (1996) (addressing civil in rem forfeiture proceedings); Hudson v. United States, 522 U.S. 93 (1997) (addressing administrative proceedings involving imposition of monetary penalties and occupational debarment). In Hudson, the Court largely disavowed the double jeopardy analysis previously announced in United States v. Halper, 490 U.S. 435 (1989). 2 Instead, Hudson articulated a two-part test, previously outlined in Ursery, for determining whether a particular punishment is criminal or civil. This court has since adopted and applied the Ursery and Hudson analysis in examining double jeopardy concerns in cases involving civil forfeitures and administrative penalties. See Levingston v. Washoe County, 114 Nev. 306, 956 P.2d 84 (1998) (applying Ursery analysis in forfeiture context); State v. Lomas, 114 Nev. 313, 955 P.2d 678 (1998) (applying Hudson analysis in civil driver's license revocation proceedings). [Headnote 1] As Hudson instructs, in assessing the double jeopardy implications of a civil sanction, we look first to whether the legislature intended the provision in question to be civil or criminal in nature. Hudson, 522 U.S. at 99 (first question is whether the legislature “ ‘indicated either expressly or impliedly a preference for one label or the other' ”) (quoting United States v. Ward, 448 U.S. 242, 248 (1980)). Second, even in those cases where the legislature has indicated an intention to establish a civil mechanism, this court must inquire further into whether the statutory scheme is so punitive either in purpose or effect, “as to ‘transfor[m] what was clearly intended as a civil remedy into a criminal penalty.' ” Hudson, 522 U.S. at 99 (quoting Rex Trailer Co. v. United States, 350 U.S. 148, 154 (1956)); see also Ursery, 518 U.S. at 288 (court must first look to whether Congress intended the provision to be civil or criminal and then to whether the proceedings are so punitive in fact as to persuade the court that they may not legitimately be viewed as civil in nature despite &RQJUHVV LQWHQW __________ 2

Although this court cited Halper in Desimone I, as noted above, our prior decision was guided primarily by the analysis in Kurth Ranch.

Ð116 Nev. 195, 199 (2000) Desimone v. StateÐ Ð Congress' intent) (citing United States v. One Assortment of 89 Firearms, 465 U.S. 354, 366 (1984)). Hudson explains: In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), provide useful guideposts, including: (1) “[w]hether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter”; (4) “whether its operation will promote the traditional aims of punishment—retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” Id. at 99-100. Hudson emphasizes that these “Kennedy” factors must be considered “in relation to the statute on its face,” and “only the clearest proof will suffice to override legislative intent and transform what has been

denominated a civil remedy into a criminal penalty.” Id. (internal quotation marks and citations omitted). Neither Ursery nor Hudson specifically call into question the holding or double jeopardy analysis applied in Kurth Ranch in the tax context. See, e.g., Commissioner of Revenue v. Mullins, 702 N.E.2d 1, 4 (Mass. 1998) (“nothing in the Court's Hudson decision indicates that the mode of examination employed in Kurth Ranch is no longer appropriate in the tax context”). In fact, both opinions appear to acknowledge that the Kurth Ranch analysis encompasses at least to some extent the two-part test of Hudson and Ursery. Id. Nonetheless, Ursery and Hudson both highlight the key, determinative factors that persuaded the Court in Kurth Ranch to conclude that the Montana tax at issue implicated double jeopardy concerns. For example, in summarizing the Kurth Ranch analysis, the Ursery Court explained: We first established that the fact that Montana had labeled the civil sanction a “tax” did not end our analysis. We then turned to consider whether the tax was so punitive as to constitute a punishment subject to the Double Jeopardy Clause. Several differences between the marijuana tax imposed by Montana and the typical revenue-raising tax were readily apparent. The Montana tax was unique in that it was conditioned on the commission of a crime and was imposed only after the taxpayer had been arrested: Thus, only a person FKDUJHGZLWKDFULPLQDORIIHQVHZDVVXEMHFWWRWKHWD[

Ð116 Nev. 195, 200 (2000) Desimone v. StateÐ Ð charged with a criminal offense was subject to the tax. We also noted that the taxpayer did not own or possess the taxed marijuana at the time that the tax was imposed. From these differences, we determined that the tax was motivated by a “penal and prohibitory intent rather than the gathering of revenue.” Concluding that the Montana tax proceeding “was the functional equivalent of a successive criminal prosecution,” we affirmed the Court of Appeals' judgment barring the tax. Ursery, 518 U.S. at 282 (quoting Kurth Ranch, 511 U.S. at 781, 784) (internal citations omitted). Ursery further explained: [Kurth Ranch] expressly disclaimed reliance upon Halper, finding that its case-specific approach was impossible to apply outside the context of a fixed civil-penalty provision. Reviewing the Montana marijuana tax, we held that because “tax statutes serve a purpose quite different from civil penalties, . . . Halper's method of determining whether the exaction was remedial or punitive simply does not work in the case of a tax statute.” Ursery, 518 U.S. at 285-86 (quoting Kurth Ranch, 511 U.S. at 784). 3 The Court's subsequent decision in Hudson also distinguished Kurth Ranch from Halper, emphasizing with approval Kurth Ranch's recognition that all civil penalties have some deterrent effect, and that “the presence of a deterrent purpose or effect is not dispositive of the double jeopardy question.” Hudson, 522 U.S. at 102 n.6 (quoting Kurth Ranch, 511 U.S. at 781). 4 The &RXUWDOVRQRWHGWKDWXQOLNHWKH+DOSHUGHFLVLRQ __________ 3

This court's decision in Desimone I also acknowledged this instruction from Kurth Ranch that the Halper approach could not be applied in the case of a tax provision. See Desimone I, 111 Nev. at 1231, 904 P.2d at 7 (quoting Kurth Ranch, 511 U.S. at 784). 4

In Desimone I, this court, in dictum, along with many other state and federal courts, broadly construed Halper as holding that a civil penalty would be considered punishment for double jeopardy purposes whenever that penalty did not “solely ‘serve a remedial purpose, but rather [could] only be explained as also serving either retributive or deterrent purposes.' ” Desimone I, 111 Nev. at 1225, 904 P.2d at 3 (quoting Halper, 490 U.S. at 448). As we have previously noted, however, Halper announced a rule “for the rare case . . . where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused.” See Lomas, 114 Nev. at 316 n.2, 955 P.2d at 680 n.2 (quoting

Halper, 490 U.S. at 449). In any event, acknowledging the confusion created by Halper, the Court concluded in Hudson that “Halper's test for determining whether a particular sanction is ‘punitive,' and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable.” Hudson, 522 U.S. at 102. Specifically, Hudson explained, “[i]f a sanction must be ‘solely' remedial (i.e., entirely nondeterent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause.” Id. at 102.

Ð116 Nev. 195, 201 (2000) Desimone v. StateÐ Ð Court also noted that unlike the Halper decision, Kurth Ranch “applied a Kennedy-like test, before concluding that Montana's dangerous drug tax was ‘the functional equivalent of a successive criminal prosecution.' ” Hudson, 522 U.S. at 102 n.6 (internal citations omitted). Finally, Justice Breyer's concurrence in Hudson further identified and defined factors considered in Kurth Ranch in assessing the double jeopardy implications of the Montana tax. See Hudson, 522 U.S. at 115 (Breyer, J., concurring). Justice Breyer explained, Kurth Ranch properly tracked the following “nonexclusive list of factors set forth in Kennedy.” [The Montana] tax was “remarkably high”; it had “an obvious deterrent purpose”; it was “conditioned on the commission of a crime”; it was “exacted only after the taxpayer ha[d] been arrested for the precise conduct that gives rise to the tax obligation”; its alternative function of raising revenue could be equally well served by increasing the fine imposed on the activity; and it departed radically from “normal revenue laws” by taxing contraband goods perhaps destroyed before the tax was imposed. Hudson, 522 U.S. at 115 (Breyer, J., concurring) (quoting Kurth Ranch, 511 U.S. at 781-84). With the above-stated principles in mind, we now reconsider whether Desimone's criminal conviction constituted impermissible successive punishment under the Double Jeopardy Clause. In so doing, we first assess whether the legislature intended the CSA, either expressly or impliedly, to be civil or criminal in nature. Second, even assuming that the legislature intended the provision to be civil in nature, we next consider whether the $166,000 tax judgment imposed in this case pursuant to the CSA is so punitive in purpose or effect as to constitute punishment subject to the Double Jeopardy Clause. In making this latter determination, we have paid due regard to the “Kennedy-like” factors identified above in Kurth Ranch, Ursery, and Hudson. Legislative intent [Headnote 2] As Hudson and Ursery instruct, any assessment of whether an exaction is civil or criminal in character should begin with an analysis of legislative intent. In the instant case, several factors are indicative of the legislature's intent to enact a civil provision. First, the CSA is quite clearly labeled a “tax.” See NRS chapter 372A (entitled: “Tax on Controlled Substances”). Second, the penalties assessed for failure to register and pay the tax are specifically denominated as “civil” and must be collected “as part ofWKHWD[´

Ð116 Nev. 195, 202 (2000) Desimone v. StateÐ Ð the tax.” See NRS 372A.070(4). Third, NRS 372A.050 confers authority upon the Nevada Department of Taxation to “adopt all necessary regulations to carry out the provisions of this chapter.” As we have previously observed, the legislature's decision to confer such authority on an administrative agency is prima facie evidence that the legislature intended to provide for a civil sanction. 5 See Lomas, 114 Nev. at 317, 955 P.2d at 680-81 (citing Hudson, 522 U.S. at 103). Accordingly, for the purposes of this analysis, we discern from the face of the CSA itself a legislative preference to label the CSA as essentially civil in nature. This alone, however, does not immunize the provision from double jeopardy scrutiny. See Lynn v. West, 134

F.3d 582, 589 n.5 (4th Cir.) (Kurth Ranch dictates that the tax be analyzed according to its substantive effect, not its formal label), cert. denied, 525 U.S. 813 (1998). Therefore, we now turn to consider whether the characteristics of the statutory scheme are so punitive in effect as to subject the provision to the constraints of the Double Jeopardy Clause. Punitive characteristics and effects [Headnote 3] We note initially that the Nevada CSA is exclusively applicable only to illegal activities, and the “behavior to which it applies is already a crime.” See Hudson, 522 U.S. at 99 (quoting Kennedy, 372 U.S. at 168). For example, the preamble to the CSA describes the provision as: AN ACT relating to controlled substances; requiring illegal dealers in controlled substances to register with the department of taxation; imposing a tax on illegally sold controlled substances; providing for the confidentiality of certain information submitted by dealers; providing a penalty; and providing other matters properly relating thereto. See 1987 Nev. Stat., ch. 717, at 1737. Moreover, any person lawfully in possession of a controlled substance is specifically exempted from the tax. See NRS 372A.060(1). Thus, as in Kurth Ranch, Nevada's tax in substantive and practical effect is “conditioned on the commission of a crime.” Ursery, 518 U.S. at 282. As the Supreme Court has observed, this is “significant of penal and prohibitory intent.” Kurth Ranch, 511 U.S. at 781 (quoting United States v. Constantine, 296 U.S. 287, 295 (1935)). Unlike the Montana tax at issue in Kurth Ranch, however, the 1HYDGDWD[LVGXHDQGSD\DEOHSULRU

WR RU XSRQ WKH RFFXUUHQFH RI WKH WD[DEOH DFWLYLW\ UDWKHU WKDQ XSRQ DQ DUUHVW IRU WKDW DFWLYLW\ __________ 5

Notably, NRS 372A.070(5) also authorizes the district attorney of any county in which a dealer resides to “institute and conduct the prosecution of any action” for failure to register or pay the tax. See also NRS 372A.070(1) and (4).

Ð116 Nev. 195, 203 (2000) Desimone v. StateÐ Ð Nevada tax is due and payable prior to or upon the occurrence of the taxable activity, rather than upon an arrest for that activity. Under Nevada's CSA, a dealer must purchase and affix revenue stamps to all illegal drugs the dealer sells. NAC 372A.020. Thus, theoretically at least, the Nevada tax is not necessarily exacted only after the taxpayer has been arrested for the conduct giving rise to the tax obligation. Rather, the tax is broadly applicable to any person who unlawfully sells, offers to sell, or possesses with the intent to sell a controlled substance. See NRS 372A.070(1). Further, Nevada's CSA provides for anonymous payment and specifically precludes use of tax information in criminal prosecutions. Illegal drug dealers are not required to give a name, address, social security number or other identifying information, see NRS 372.070(3); information obtained from a dealer who registers or pays the tax is confidential, see NRS 372A.080(1); no criminal prosecution may be initiated on the basis of such information, see NRS 372A.080(2); and no such information is admissible in a criminal prosecution unless the information was independently or inevitably would have been discovered, see NRS 372A.080(3). It is these features which primarily distinguish our state's statutory scheme from the Montana scheme at issue in Kurth Ranch. We recognize that other courts have distinguished Kurth Ranch and have rejected double jeopardy challenges to statutory schemes similar to Nevada's on the basis of these distinctions. See, e.g., Com. v. Bird, 979 S.W.2d 915 (Ky. 1998), cert. denied, 119 S. Ct. 2019 (1999); Covelli v. Commissioner of Revenue Servs., 668 A.2d 699 (Conn. 1995), vacated and remanded, 518 U.S. 1031, aff'd after remand, 683 A.2d 737 (Conn. 1996), cert. denied, 520 U.S. 1174 (1997); Milner v. State, 658 So. 2d 500 (Ala. Civ. App. 1994); State v.

Lange, 531 N.W.2d 108 (Iowa 1995); State v. Gulledge, 896 P.2d 378 (Kan. 1995); McMullin v. South Carolina Dept. of Rev. & Taxation, 469 S.E.2d 600 (S.C. 1996). We conclude, however, that such constitutional distinctions based on the pretense that dealers may prepay taxes are unpersuasive and elevate form over substance and practicality. As a practical matter, it will be the rare circumstance indeed where a dealer in illegal drugs will register and tender prior payment of taxes due under Nevada's CSA, particularly where, as here, the high rate of taxation appears even more remarkable than that assessed against the Kurth Ranch taxpayers. 6 As Chief Justice

5HKQTXLVWQRWHGLQKLVGLVVHQWLQ.XUWK5DQFK __________ 6

Nevada's CSA requires an illegal dealer in controlled substances to register with the Nevada Department of Taxation, pay an annual fee of $250, pay a tax of $100 for each gram of marijuana or portion thereof; $1,000 for each gram of any other controlled substance or portion thereof; and $2,000 for each 50 dosage units or smaller portion of controlled substances not sold by

Ð116 Nev. 195, 204 (2000) Desimone v. StateÐ Ð Rehnquist noted in his dissent in Kurth Ranch: “Because the activity sought to be taxed is illegal, individuals cannot be expected to voluntarily identify themselves as subject to the tax.” Kurth Ranch, 511 U.S. at 788 n.2 (Rehnquist, C. J., dissenting). We are not persuaded that these essentially illusory, anonymous payment provisions constitute credible constitutional bases for distinguishing Nevada's CSA from the provision addressed in Kurth Ranch. Instead, we conclude that the similarities between Nevada's tax and the Kurth Ranch tax are more compelling than the differences. We agree with those courts that expressly or implicitly recognize that, realistically, imposition of a tax like Nevada's will follow only after a dealer is apprehended and subject to arrest and that double jeopardy concerns are indeed implicated where such taxation is expressly limited to the unlawful drug activity. See, e.g., Lynn v. West, 134 F.3d 582 (4th Cir.) (finding drug tax punitive although double jeopardy question not at issue), cert. denied, 525 U.S. 813 (1998); Commissioner of Revenue v. Mullins, 702 N.E.2d 1 (Mass. 1998) (holding that revenue stamp tax on controlled substances is punishment for double jeopardy purposes); Brunner v. Collection Div. of Tax Com'n, 945 P.2d 687 (Utah 1997) (same); Wilson v. Department of Revenue, 662 N.E.2d 415 (Ill. 1996) (same); Bryant v. State, 660 N.E.2d 290 (Ind. 1995) (Indiana controlled substance tax constitutes punishment for double jeopardy purposes), cert. denied, 519 U.S. 926 (1996); see also People v. Maurello, 932 P.2d 851 (Colo. Ct. App. 1997) (addressing double jeopardy concerns of Colorado drug tax that did not contain confidentiality or anonymity provisions and that did not prohibit use of drug information in criminal prosecution). Thus, we conclude that, as in Kurth Ranch, Nevada's CSA hinges on the commission of a crime and realistically, will normally be exacted only after the taxpayer is apprehended and subject to arrest for the same conduct giving rise to the tax obligation. We have assessed the remaining factors identified in Kurth Ranch, Ursery, and Hudson, and are persuaded by the “clearest proof” that the tax assessed against Desimone was the functional equivalent of a criminal prosecution. First, as noted above, the Nevada tax is at least as high as the tax at issue in Kurth Ranch. __________ weight. See NRS 372A.070(1). Dealers who ignore the tax are subject to civil penalties of 100% of the tax. See NRS 372A.070(4). Thus, realistically, the class of taxpayers will generally be liable for penalties amounting to 100% of the unpaid tax. In contrast, the Montana tax at issue in Kurth Ranch was either 10% of the assessed market value of the drugs or a specified amount depending on the drug ($100 per ounce for marijuana). Kurth Ranch, 511 U.S. at 780 n.17.

Ð116 Nev. 195, 205 (2000) Desimone v. StateÐ Ð

Second, it has an obvious deterrent purpose and clearly “promote[s] the traditional aims of punishment-retribution and deterrence.” 7 Hudson, 522 U.S. at 99 (quoting Kennedy, 372 U.S. at 168). Third, “its alternative function of raising revenue could be equally well served by increasing the fine imposed” on illegal drug transactions. Id. at 115 (Breyer, J., concurring). Fourth, in light of the exceedingly high taxation rate and the improbability that a taxpayer will possess the contraband goods when the tax and penalties are levied, we conclude that the Nevada tax “depart[s] radically from ‘normal revenue laws.' ” Id. We conclude that, taken as a whole, Nevada's tax in practice and effect is a “concoction” of the same “anomalies” and unusual features that the Court found in Kurth Ranch to be “too far removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of double jeopardy analysis.” Kurth Ranch, 511 U.S. at 783. CONCLUSION We recognize the need for innovative and imaginative approaches in the battle against illegal drug usage, and we emphasize that the State is not constitutionally prohibited from seeking a judgment pursuant to the provisions of Nevada's CSA where there has been no prior criminal conviction for the conduct giving rise to the tax obligation. The reality is, however, that drug dealers operating outside the ODZ ZLOO QRW UHJLVWHU DQG SUHSD\

WKHVHWD[HV __________ 7

The legislative history of the CSA amply illustrates this point. As we previously noted in Desimone I: [T]he sponsor of the bill giving rise to NRS chapter 372A introduced the legislation as serving two purposes: first, to “get the drug dealers where it really hurts—in the pocketbook,” and second, to provide “a whole new avenue of deterrents and punishment for drug dealers outside of the fines, sentences and courtroom procedures under current law.” See Desimone I, 111 Nev. at 1227-28, 904 P.2d at 5 (quoting Minutes of the Senate Taxation Committee, 64th Sess. 1-8, Exhibit C (March 12, 1987) (Senator John M. Vergiels, Introductory Remarks for Senate Bill 144) (emphasis added)). At the very least, this legislative history, coupled with the exceedingly high rate of taxation, is clear evidence supporting “a conclusion that the statute's primary function is to serve as an additional penalty.” See Kennedy, 372 U.S. at 169-70. Moreover, these factors come close to the “objective manifestations” of legislative intent that, under Kennedy, “indicate conclusively that the provisions in question can only be interpreted as punitive.” Id.; see also Stennett v. State, 941 S.W.2d 914, 916-17 (Tex. Crim. App. 1996) (where satisfactory evidence showed that legislature intended controlled substance tax to serve as further punishment, the court held that the tax was punishment subject to constraints of Double Jeopardy Clause), overruled on other grounds by, Ex Parte Ward, 964 S.W.2d 617 (Tex. Crim. App.), cert. denied, 525 U.S. 823 (1998).

Ð116 Nev. 195, 206 (2000) Desimone v. StateÐ Ð law will not register and prepay these taxes. We decline to engage in the pretense that the remote possibility they might constitutes a constitutional basis for distinguishing Nevada's tax from the tax found to implicate double jeopardy concerns in Kurth Ranch. The tax imposed against Desimone by a final judgment pursuant to NRS chapter 372A is the functional equivalent of a criminal prosecution. Where, as here, the tax has been reduced to judgment before a criminal judgment of conviction is entered for engaging in the same unlawful conduct, the conviction violates the Double Jeopardy Clause and cannot stand. See Desimone I, 111 Nev. at 1229-30, 904 P.2d at 6-7 (quoting and discussing United States v. Sanchez-Escareno, 950 F.2d 193 (5th Cir. 1991), cert. denied, 506 U.S. 841 (1992)). Accordingly, we reverse and vacate Desimone's criminal conviction. ____________

Ð116 Nev. 206, 206 (2000) Paige v. StateÐ Ð Ð CHRISTOPHER DOUGLAS PAIGE, Appellant, v. THE STATE OF NEVADA, Respondent. No. 33446 February 24, 2000

995 P.2d 1020

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of offering, agreeing, or arranging to sell or give away a controlled substance. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge. Following jury trial before the district court, defendant was convicted of offering to sell a controlled substance. Defendant appealed. The supreme court held that conviction of offering to sell controlled substance requires existence of actual controlled substance. Reversed. Morgan D. Harris, Public Defender, and Craig F. Jorgenson, Deputy Public Defender, Clark County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Christopher J. Laurent, Chief Deputy District Attorney, and Martin W. Hart, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. Questions of law are subject to de novo review. 2. Drugs and Narcotics. Conviction of offering to sell controlled substance requires existence of actual controlled substance. NRS 453.321.

Ð116 Nev. 206, 207 (2000) Paige v. StateÐ Ð 3. Drugs and Narcotics. In absence of evidence that substance defendant sold to undercover officer as rock cocaine was actually a controlled substance as opposed to an imitation, evidence was insufficient to sustain conviction of offering to sell controlled substance. NRS 453.321.

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: On April 5, 1998, Las Vegas Metropolitan Police Department Detective John Turney (“Turney”) was working undercover on narcotics-related crimes near Stewart and Thirteenth Streets. As Turney walked down Stewart Street, Donald Monroe (“Monroe”) walked up to him. Turney told Monroe that he was looking to buy two rocks of cocaine for $20.00. Monroe then told Turney to wait by a pay phone. Monroe walked away from Turney and toward a vacant building. In front of the vacant building, Monroe approached appellant Christopher Douglas Paige (“Paige”). Monroe and Paige engaged in a brief conversation that Turney could not hear. The conversation took approximately two minutes. After the conversation, Monroe then left the scene, and Paige walked toward Turney. Before Turney could speak, Paige said, “Where's the money?” Turney took out $20.00, and Paige then took out what appeared to be rocks of cocaine. Turney and Paige exchanged the money and rocks of cocaine. After Paige handed the rocks of cocaine to Turney, Turney asked Paige “if they were good rocks.” Paige

responded by saying, “Yes, good coke.” Turney and Paige then walked in separate directions. When Turney returned to the undercover command post, the rocks of cocaine that Paige gave him were tested. The test results were inconclusive as to cocaine and were made of an unknown substance. 1 Due to the undercover nature of the investigation, another officer briefly detained, interviewed, and then released Paige. On April 8, 1998, after the undercover operation ended, Turney identified Paige and the police arrested him. Paige was tried and convicted of one count of offering, agreeing, or arranging to sell or give away a controlled substance, a IHORQ\XQGHU156 __________ 1

At trial, Turney testified that based on his education, training, and experience, he believed that the rocks were cocaine at the time of the transaction. Turney testified further that these types of “turkey buys” are common in Las Vegas.

Ð116 Nev. 206, 208 (2000) Paige v. StateÐ Ð felony under NRS 453.321. The district court sentenced Paige to serve twenty-eight to seventy-two months in prison. Paige argues that an essential element of the crime of offering to sell a controlled substance under NRS 453.321 requires the State to prove that he offered to sell an actual controlled substance. Because the substance Paige sold to the undercover detective was not cocaine, he argues that the State failed to present sufficient evidence to convict him under NRS 453.321. We agree. [Headnote 1] “The construction of a statute is a question of law.” Anthony Lee R., A Minor v. State, 113 Nev. 1406, 1414, 952 P.2d 1, 6 (1997). Questions of law are subject to de novo review. See Clark v. Lubritz, 113 Nev. 1089, 1093, 944 P.2d 861, 864 (1997). In interpreting statutes, “[t]his court has long held that statutes should be given their plain meaning.” Alsenz v. Clark Co. School Dist., 109 Nev. 1062, 1065, 864 P.2d 285, 286 (1993). [Headnote 2] NRS 453.321 2 provides in relevant part: 1. [I]t is unlawful for a person to import, transport, manufacture, compound, sell, exchange, barter, supply, prescribe, dispense, give away or administer a controlled or counterfeit substance or to offer or attempt to do any such act. The State asserts that Paige committed a crime when he offered to sell a controlled substance and that NRS 453.321 does not require that the substance actually be a controlled substance. Indeed, the State's interpretation of NRS 453.321 is one that requires a controlled substance to be involved in every type of transaction described in the statute except for offering to sell a controlled substance. For example, under the State's view of NRS 453.321, a defendant cannot be convicted of selling a controlled substance if the substance was not truly a controlled substance. In contrast, the State argues that Paige can be convicted of offering to sell a controlled substance even if the substance was not truly a controlled substance. The State cannot have it both ways. NRS 453.321 contains no language indicating that “offering to sell” does not also require the existence of a controlled substance. We note that the State's theory of NRS 453.321 actually encourages, not discourages, an individual to complete a drug sale. __________ 2

In 1999, the Nevada Legislature amended NRS 453.321. See 1999 Nev. Stat., ch. 517, § 3, at 2637-38. The version of NRS 453.321 cited above was in effect at the time of Paige's offense on April 5, 1998. Therefore, the unamended statute applies to the case before us. Additionally, the 1999 amendments to NRS 453.321 do not

alter our analysis of the issues before us in the instant matter.

Ð116 Nev. 206, 209 (2000) Paige v. StateÐ Ð Moreover, the State concedes we have previously concluded that “[p]roof beyond a reasonable doubt that the substance sold was in fact contraband must be offered at trial.” Bolden v. Sheriff, 93 Nev. 8, 9, 558 P.2d 628, 628 (1977) (holding that proof that the substance was a controlled substance at the preliminary hearing is unnecessary if the accused represents it to be a controlled substance); see also Glosen v. Sheriff, 85 Nev. 145, 451 P.2d 841 (1969). The State argues that Bolden is distinguishable from the instant matter because Bolden involved a sale, not an offer to sell. We conclude that the State's argument ignores the plain language of NRS 453.321 and the reasoning underlying Bolden, i.e., proof of a controlled substance is still required at trial. Additionally, our interpretation of NRS 453.321 is further supported by an analysis of NRS 453.323(1) 3 and NRS 453.332. 4 Both NRS 453.323(1) and NRS 453.332 appear to apply to Paige's conduct in that both statutes involve non-controlled substances. In this case, it is undisputed that the substance sold to Turney was not a controlled substance. Consequently, NRS 453.321, NRS 453.323(1), and NRS 453.332 are part of an overall statutory scheme that is designed to supplement, not supplant, the intended coverage of one another. Therefore, we conclude that the plain language of NRS 453.321 covers particular offenses relating to the sale of an actual controlled substance, whereas both 156   DQG 156  FRYHU RIIHQVHV QRW

LQYROYLQJWKHVDOHRIDQDFWXDOFRQWUROOHGVXEVWDQFH __________ 3

NRS 453.323 provides in relevant part: 1. A person who offers, agrees or arranges unlawfully to sell, supply, transport, deliver, give or administer any controlled substance classified in schedule I or II and then sells, supplies, transports, delivers, gives or administers any other substance in place of the controlled substance is guilty of a category C felony . . . .

4

NRS 453.332 provides in relevant part: 1. [I]t is unlawful for a person to manufacture, distribute, sell or possess with the intent to distribute or sell an imitation controlled substance. .... 5. For the purposes of this section: .... (b) “Imitation controlled substance” means a substance, not a controlled substance . . . . (1) In the form distributed is shaped, marked or colored so as to lead a reasonable person to believe it is a controlled substance; or (2) Is represented to be a controlled substance. In determining whether such a representation was made, the court shall consider, in addition to all other logically relevant factors: (I) Statements made by the defendant regarding the nature of the substance, its use or effect. (II) Statements made by the defendant regarding the recipient's ability to resell the substance at a substantially higher price than is customary for the substance. (III) Whether the substance is packaged in a manner normally used for illicit controlled substances.

Ð116 Nev. 206, 210 (2000) Paige v. StateÐ Ð NRS 453.323(1) and NRS 453.332 cover offenses not involving the sale of an actual controlled substance. Any

other interpretation of NRS 453.321 renders NRS 453.323(1) and NRS 453.332 superfluous. [Headnote 3] Accordingly, we conclude that the plain language of NRS 453.321 requires the existence of an actual controlled substance in order to sustain a conviction for offering to sell a controlled substance. We further conclude that the State failed to present sufficient evidence to convict Paige under NRS 453.321. For this reason, we reverse and vacate Paige's conviction. 5

____________

Ð116 Nev. 210, 210 (2000) Guerin v. GuerinÐ Ð Ð TRACY O. GUERIN, Now by Marriage TRACY O. HILL; CHARLES A. HILL, Individually; and THE HILL FAMILY TRUST, Appellants, v. HAROLD D. GUERIN, THOMAS M. GUERIN, and TERAN ANN DAVIS, Respondents. No. 33741 February 24, 2000

993 P.2d 1256

Motion to dismiss appeal of Tracy O. Guerin under the fugitive disentitlement doctrine. Eighth Judicial District Court, Clark County; William O. Voy, Judge, Family Court Division. After remand from the supreme court, 114 Nev. 127, 953 P.2d 716 (1998), the district court found former wife in criminal contempt for failing to transfer real property pursuant to amended divorce decree and instead transferring the property to her family trust. Wife and trust appealed. The supreme court held that: (1) supreme court would exercise its discretion under fugitive disentitlement doctrine to dismiss former wife's appeal, and (2) trust's notice of appeal was the product of unauthorized practice of law, and thus, supreme court was without jurisdiction over trust's appeal. Motion granted; appeal dismissed in part. Jack G. Perry, Las Vegas, for Appellant Hill Family Trust. __________ 5

Paige also argues that the district court erred by refusing to instruct the jury that the offense of unlawful sale of an imitation controlled substance under NRS 453.332 is a lesser-related offense of NRS 453.321. In light of our conclusion that the State failed to present sufficient evidence to convict Paige of offering to sell a controlled substance, we find it unnecessary to address this issue.

Ð116 Nev. 210, 211 (2000) Guerin v. GuerinÐ Ð Tracy O. Hill and Charles A. Hill, Las Vegas, in Proper Person. Law Office of Daniel Marks and Adam Levine, Las Vegas, for Respondents. 1. Contempt. An appellate court has the discretion to dismiss an appeal of a party who is evading arrest pursuant to a contempt order and bench warrant. 2. Divorce.

3.

4.

5.

6.

7. 8. 9.

Supreme court would exercise its discretion under fugitive disentitlement doctrine to dismiss former wife's appeal of trial court's orders finding her in criminal contempt for failing to transfer real property pursuant to amended divorce decree and ordering her to transfer property to former husband, where wife was in Mexico and she had notified the trial court of her refusal to comply with its property-transfer order. Divorce. Supreme court had no jurisdiction over the appeal by wife's family trust in divorce action, where the notice of appeal was filed by a proper person who was not an active member of the bar, so that the notice of appeal was the product of the unauthorized practice of law. Attorney and Client. A proper person is not permitted to represent an entity such as a trust; rather, a trust must be represented by a licensed attorney in the state courts. Attorney and Client. Only an active member of the State Bar of Nevada, pursuant to the rules of the supreme court, is permitted to practice law in Nevada, and a violation of this rule is a crime. NRS 7.285; SCR 77. Attorney and Client. Although an individual is entitled to represent himself or herself in the district court, no rule or statute permits a non-attorney to represent any other person, a company, a trust, or any other entity in the district courts or in the supreme court. SCR 44. Appeal and Error. The proper and timely filing of a notice of appeal is jurisdictional. Appeal and Error. The supreme court cannot treat an improperly-filed notice of appeal as vesting jurisdiction in the supreme court. Appeal and Error. The supreme court cannot treat a notice of appeal, which is the product of unauthorized practice of law, as having been properly filed and as vesting jurisdiction in the supreme court.

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: This is a proper person appeal from a second amended divorce decree, an order directing appellant Tracy O. Hill (formerly Tracy 2*XHULQ

Ð116 Nev. 210, 212 (2000) Guerin v. GuerinÐ Ð O. Guerin) to effect the transfer of certain real property in Mexico to respondent Harold D. Guerin and to appear in the district court to demonstrate full compliance with its orders, and an order sanctioning Ms. Hill for contempt of court. Upon respondents' motion, we dismiss appellant Tracy Hill's appeal under the fugitive disentitlement doctrine because she has flaunted the authority of the district court. We also dismiss the appeal of the Hill Family Trust because its notice of appeal is defective. Ms. Hill and Guerin previously came before this court in Guerin v. Guerin, 114 Nev. 127, 953 P.2d 716 (1998), which consolidated two appeals and a writ petition. In Guerin, the district court, inter alia, denied Guerin's motion to set aside the default divorce decree that Ms. Hill had obtained against him. The district court also found Ms. Hill in contempt for violating an injunction against transferring certain assets that the parties had created during their marriage from the Guerin Family Trust to the Hill Family Trust, which Ms. Hill subsequently created with her new husband, Charles Hill. This court concluded that the district court abused its discretion in refusing to set aside the default divorce decree because Ms. Hill had failed to provide Guerin the requisite three-day notice of the default hearing pursuant to NRCP 55(b)(2). See Guerin, 114 Nev. at 133, 953 P.2d at 720. This court also upheld the district court's contempt order after concluding that Ms. Hill “clearly did not comply with the district court's orders.” Id. at 134, 953 P.2d at 721. On remand, the parties participated in settlement negotiations that produced an amended divorce decree. Pursuant to a motion to alter or amend the amended divorce decree filed by the Hills, the district court entered a second amended divorce decree on January 6, 1999. The second amended divorce decree, inter alia, awarded Guerin two beach houses in San Carlos, Mexico, and directed Ms. Hill to provide a court-appointed receiver with documentary proof that she had transferred title to the two houses to Guerin by January 11, 1999. The district court subsequently found that following the settlement negotiations and prior to the entry of the second

amended divorce decree, Ms. Hill had transferred title to one of the beach houses (“No. 21”) 1 to a Mexican national who had been acting as her agent for the property. In an order entered on January 13, 1999, the district court ordered Ms. Hill (1) to execute the necessary documents to transfer title to both beach houses to Guerin by January 15, 1999, and (2) to appear in court on January 15, 1999, to demonstrate full compliance with its orders. Through their counsel, the Hills notiILHGWKH

FRXUWRIWKHLUUHIXVDOWRFRPSO\ZLWKLWVRUGHU __________ 1

Ms. Hill possesses the two beach houses in San Carlos: one is number 19 Paseo Almajas, the other is number 21.

Ð116 Nev. 210, 213 (2000) Guerin v. GuerinÐ Ð fied the court of their refusal to comply with its order. 2 In an order entered on January 19, 1999, the court found Ms. Hill in contempt and sentenced her to thirty days in jail. The district court's order explained that Ms. Hill could purge the contempt and jail sentence on the condition (1) that she appear in court on January 21, 1999, (2) that she execute the transfer of title to both beach houses before that date, and (3) that she immediately surrender possession of No. 21 to Guerin. Ms. Hill again failed to appear in court or execute the transfer of title. In an order entered on January 28, 1999, the court (1) reaffirmed its finding of contempt but reduced Ms. Hill's jail sentence to twenty-five days, (2) decreed that Ms. Hill's transfer of title to No. 21 to her Mexican agent was void, (3) directed Ms. Hill to pay Guerin reasonable rental value for No. 21 until possession of the property was transferred to Guerin, (4) authorized Guerin to take immediate possession of the beach houses, and (5) directed the release to Guerin of certain funds held by the court-appointed receiver. The court also issued a warrant for Ms. Hill's arrest. [Headnotes 1, 2] Respondent Guerin has filed a motion to dismiss the appeal on the ground that Ms. Hill is a fugitive who has refused to comply with the district court's order of contempt. An appellate court has the discretion to dismiss an appeal of a party who is evading arrest pursuant to a contempt order and bench warrant. See United States v. Barnette, 129 F.3d 1179 (11th Cir. 1997); see also Closset v. Closset, 71 Nev. 80, 280 P.2d 290 (1955). In light of Ms. Hill's fugitive status and continued refusal to comply with the district court's orders, we exercise our discretion to dismiss her appeal, and hereby dismiss the appeal as to Tracy O. Hill. [Headnote 3] Guerin also sought to dismiss the appeal as to Charles Hill and the Hill Family Trust, contending that Mr. Hill was not in compliance with certain orders of the district court. On August 20, 1999, Guerin filed a motion for expedited consideration of its motion to dismiss, in which he conceded that Mr. Hill may now be in compliance with the orders of the district court. We, therefore, deny the motion to dismiss the appeal as to Mr. Hill individually. [Headnotes 4-6] Charles Hill, purporting to represent the Hill Family Trust as LWVWUXVWHHILOHGDQRWLFHRIDSSHDORQ

LWVEHKDOI __________ 2

It appears that counsel subsequently withdrew because of their clients' refusal to comply with the court's orders. Ms. Hill is currently living in one of the beach houses in San Carlos, according to Guerin.

Ð116 Nev. 210, 214 (2000) Guerin v. GuerinÐ Ð its trustee, filed a notice of appeal on its behalf. A proper person, however, is not permitted to represent an entity such as a trust. See Sunde v. Contel of California, 112 Nev. 541, 915 P.2d 298 (1996); Salman v. Newell, 110 Nev. 1333, 885 P.2d 607 (1994). As we stated previously in Salman, a trust must be represented by a licensed attorney in Nevada state courts. 110 Nev. at 1335-36, 885 P.2d at 608. Only an active member of the State Bar of Nevada, pursuant to the rules of this court, is permitted to practice law in this state; a violation of this rule is a crime. See NRS 7.285. In addition, SCR 77 provides that, with certain inapplicable exceptions, no person may practice law as an officer of the courts in this state who is not an active member of the state bar. Although an individual is entitled to represent himself or herself in the district court, see SCR 44, no rule or statute permits a non-attorney to represent any other person, a company, a trust, or any other entity in the district courts or in this court. Salman, 110 Nev. at 1336, 885 P.2d at 608. In the present case, Mr. Hill could not represent the Hill Family Trust in a court of law because his actions would amount to unauthorized practice. [Headnotes 7-9] The proper and timely filing of a notice of appeal is jurisdictional. Rust v. Clark Cty. School District, 103 Nev. 686, 747 P.2d 1380 (1987). This court cannot treat an improperly-filed notice of appeal as vesting jurisdiction in this court. In particular, we cannot treat a notice of appeal, which is the product of unauthorized practice of law, as having been properly filed. Hence, the notice of appeal that Mr. Hill filed on behalf of the Hill Family Trust is invalid, and we therefore lack jurisdiction to consider its appeal. Accordingly, we dismiss the appeal of the Hill Family Trust. 3 __________ 3

Although Ms. Hill and Mr. Hill were not granted leave to file papers in proper person, see NRAP 46(b), we have considered the proper person documents received from them. We grant Guerin's motion to file a reply, and direct the clerk of this court to file the reply received from him. We deny Guerin's motion to expedite his motion to dismiss Ms. Hill's appeal as moot in light of this partial disposition. We deny the motion to disqualify the attorney for the Hill Family Trust as moot. We direct the clerk of the court to modify the caption on this court's docket to reflect the partial disposition set forth in this opinion. ____________

Ð116 Nev. 215, 215 (2000) Byford v. StateÐ Ð ROBERT BYFORD, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32207 February 28, 2000

994 P.2d 700

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. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure, Judge. Defendant and codefendant were convicted in the district court of first-degree murder with use of deadly weapon and were sentenced to death, and they appealed. The supreme court, 113 Nev. 11, 930 P.2d 121 (1997), reversed and remanded for retrial. On remand, defendant was again convicted in the district court of first-degree murder with use of deadly weapon and was again sentenced to death. Defendant appealed. The supreme court, Shearing, J., held that: (1) defendant's testimony from first trial was admissible on retrial; (2) any error in

accomplice's reference during direct examination by State to first meeting murder defendant at “the 120-day evaluation” was harmless; (3) error in admitting at retrial murder defendant's testimony from first trial that he had prior felony conviction for attempted possession of a stolen vehicle did not require reversal; (4) prosecutor's improper statement during closing argument referring to defendant's failure in first trial to call witness to corroborate alibi was harmless; (5) denial of motion to sever did not prejudice defendant; (6) defendant's right to speedy trial was not violated; (7) photographs of victim's body and preserved sample of maggots taken from body were admissible; (8) instruction defining mens rea required for first-degree murder conviction was warranted by evidence; and (9) finding that aggravating circumstance of torture or mutilation existed in capital murder case was supported by evidence. Affirmed. [Rehearing denied June 1, 2000] David M. Schieck, Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and Christopher J. Lalli, Deputy District Attorney, Clark County, for Respondent. 1. Witnesses. An explicit warning to a defendant that his or her testimony might be used against him or her in a future trial is not required in order for the defendant's waiver of the right to remain silent to be valid.

Ð116 Nev. 215, 216 (2000) Byford v. StateÐ Ð 2. Criminal Law. If a defendant has been compelled to testify at his or her first trial due to constitutional violations during that trial, that testimony is not admissible at any subsequent trial. 3. Criminal Law. Prosecutor's improper comments on murder defendant's Fifth Amendment right to remain silent did not compel defendant to testify during first trial, and thus defendant's testimony from first trial was admissible on retrial, where comments were made by prosecutor after defendant had concluded his testimony. U.S. Const. amend. 5. 4. Criminal Law. Generally, a defendant's testimony at a former trial is admissible against him in later proceedings. 5. Criminal Law. Introduction of murder defendant's testimony from first trial did not constitute improper comment on defendant's decision not to testify on retrial, where former testimony was introduced by codefendant, and State never referred to prior testimony as way of commenting on defendant's silence at second trial. 6. Criminal Law. Murder defendant's testimony from first trial was admissible in subsequent retrial under statutory hearsay exception for former testimony, where defendant was unavailable due to invocation of his Fifth Amendment right not to testify, issues in both trials were identical, and codefendant offered prior testimony against State, which was party to first trial. U.S. Const. amend. 5; NRS 51.325. 7. Criminal Law. Accomplice's reference during direct examination by State to first meeting murder defendant at “the 120-day evaluation” was improper. Reasonable juror could conclude from accomplice's statement that defendant had engaged in prior criminal activity. 8. Criminal Law. Any error in accomplice's reference during direct examination by State to first meeting murder defendant at “the 120-day evaluation” was harmless, where statement was unsolicited and inadvertent, reference to criminal activity was brief and indirect, and defendant declined district court's offer to give curative instruction. 9. Witnesses. Defendant's testimony at first trial that he had prior felony conviction for attempted possession of a stolen vehicle was not admissible in retrial for murder under statute which provides that witness's felony conviction is admissible for purpose of attacking credibility of that witness, where defendant had invoked his Fifth Amendment right not to testify. U.S. Const. amend. 5; NRS 50.095(1). 10. Criminal Law; Witnesses. Defendant's testimony at first trial that he had prior felony conviction for attempted possession of a stolen vehicle was not admissible in retrial for murder under statutory hearsay exception for evidence attacking or supporting credibility of declarant, where defendant had invoked his Fifth Amendment right not to testify. U.S. Const. amend. 5; NRS 51.069(1). 11. Criminal Law.

Error in admitting at retrial murder defendant's testimony from first trial that he had prior felony conviction for attempted possession of DVWROHQYHKLFOHGLGQRWUHTXLUHUHYHUVDORIFRQYLFWLRQ

Ð116 Nev. 215, 217 (2000) Byford v. StateÐ Ð

12.

13.

14.

15.

16.

17.

18. 19.

20.

21.

a stolen vehicle did not require reversal of conviction, where prior conviction was not heinous, and evidence of defendant's guilt was overwhelming. Criminal Law. It is generally improper for a prosecutor to comment on a defendant's failure to call a witness, as such comment can be viewed as impermissibly shifting the burden of proof to the defense. Criminal Law. Statement by prosecutor during closing argument in retrial of murder charge, in which prosecutor commented on defendant's failure in first trial to call witness to corroborate alibi which defendant admitted he fabricated, was improper. Statement incorrectly implied that defendant bore burden of proof on issue. Criminal Law. Prosecutor's improper statement during closing argument in retrial of murder charge, in which prosecutor commented on defendant's failure in first trial to call witness to corroborate alibi which defendant admitted he fabricated was harmless. Issue was of little significance, and district court immediately sustained defendant's objection, and evidence of defendant's guilt was overwhelming. Criminal Law. Denial of murder defendant's motion to sever his retrial from that of codefendant did not result in prejudice to defendant, even though codefendant introduced defendant's prior testimony from first trial against him. Had trials been severed, State would also have been permitted to introduce defendant's prior testimony. Criminal Law. Joinder of defendants is within the discretion of the district court, and its decision will not be reversed absent an abuse of discretion. NRS 174.165(1). Criminal Law. In determining whether to grant or deny a motion for severance, the district court must consider not only the possible prejudice to the defendant, but also the possible prejudice to the State resulting from expensive, duplicitous trials. NRS 174.165(1). Criminal Law. A nontestifying defendant's admission which expressly incriminates another defendant cannot be used at a joint trial. Criminal Law. To determine if a defendant's Sixth Amendment right to a speedy trial was violated, a court must conduct a balancing test, considering the length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Unless the delay is long enough to be presumptively prejudicial, inquiry into the other factors is not necessary. U.S. Const. amend. 6. Criminal Law. Retrial of murder defendant approximately one year after defendant's original conviction was reversed did not violate defendant's right to speedy trial, where one delay attributable to State was caused by unavailability of witnesses, remaining delays were attributable to codefendant, and defendant could show no prejudice resulting from delay. U.S. Const. amend. 6. Criminal Law. Six photographs of murder victim's burned and partially decomSRVHGERG\DQGSUHVHUYHGVDPSOHRIPDJJRWVWDNHQ

IURPYLFWLP VERG\ZHUHDGPLVVLEOHWRSRUWUD\FULPHVFHQH

Ð116 Nev. 215, 218 (2000) Byford v. StateÐ Ð

22.

23. 24.

25.

26.

27.

posed body and preserved sample of maggots taken from victim's body were admissible to portray crime scene, to aid witness in describing cause of death, to corroborate accomplice's testimony as to how murder occurred, and to show extent of damage to victim's body and demonstrate why so few bullets were found in her body. Criminal Law. Admission of evidence is within the trial court's sound discretion. The supreme court will respect the trial court's determination as long as it is not manifestly wrong. Criminal Law. Gruesome photos are admissible in a criminal prosecution if they aid in ascertaining the truth. Criminal Law. Despite gruesomeness, photographic evidence is admissible when it accurately shows the scene of the crime or when it is utilized to show the cause of death and when it reflects the severity of wounds and the manner of their infliction. Courts; Criminal Law. A trial court ruling does not constitute law of the case. The law of a first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same. Criminal Law. Evidence that a statement was made and the listener was affected by the statement is not hearsay if not offered to show the truth of the statement. Homicide.

28.

29.

30. 31. 32.

33.

Implied malice instruction, which states that “malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart,” is proper in murder prosecution if the jury is properly instructed on the presumption of innocence. NRS 200.020(2). Criminal Law. “Antisympathy instruction” does not undermine a murder defendant's right to have the jury consider all mitigating evidence if the jury has also been instructed to consider any mitigating factors. Homicide. Kazalyn instruction, which defines mens rea required for first-degree murder conviction, was warranted by evidence that defendant and codefendant had talked of “get[ting] rid” of victim on prior occasions, that defendant and codefendant discussed shooting victim before actually doing so, and that defendant took gun from codefendant and shot victim several times as she lay helpless on the ground. Homicide. Conviction for willful first-degree murder requires that the killer actually intend to kill. NRS 200.030(1)(a). Homicide. Deliberation and premeditation are the truly distinguishing elements of first-degree murder. NRS 200.030(1)(a). Homicide. All three elements of willfulness, deliberation, and premeditation must be proven beyond a reasonable doubt before an accused can be convicted of first-degree murder. NRS 200.030(1)(a). Homicide. “Deliberation” remains a critical element of the mens rea necesVDU\IRUILUVWGHJUHHPXUGHU

Ð116 Nev. 215, 219 (2000) Byford v. StateÐ Ð

34.

35.

36.

37. 38.

39. 40.

41.

42.

43.

sary for first-degree murder, connoting a dispassionate weighing process and consideration of consequences before acting. NRS 200.030(1)(a). Homicide. In order to establish first-degree murder, the premeditated killing must also have been done “deliberately,” that is, with coolness and reflection. NRS 200.030(1)(a). Homicide. Kazalyn instruction, which defines mens rea required for first-degree murder conviction without reference to deliberation element of that offense, should not be used. If jury is instructed separately on meaning of premeditation, it should also be instructed on meaning of deliberation. NRS 200.030(1)(a). Homicide. If jurors find that a defendant killed the victim under the influence of uncontrollable passion, and without any mixture of deliberation, and if at the same time they think that the circumstances were not such as to justify the existence or persistence of irresistible passion in a reasonable man, then a verdict of second-degree murder is warranted. Homicide. Neither slight provocation nor an assault of a trivial nature will reduce a homicide from murder to manslaughter. Homicide. In penalty phase of capital murder prosecution, district court is statutorily required to instruct jury on alleged mitigators upon which evidence has been presented, and is not restricted to instructing jury only as to enumerated statutory mitigators. NRS 175.554(1). Criminal Law. It is the appellant's responsibility to provide the materials necessary for the supreme court's review. Homicide. Defendant failed to preserve for appellate review issue as to whether district court erred in refusing to give his proposed mitigation instruction during penalty phase of capital murder trial, where defendant failed to provide supreme court with copy of his proposed instruction, and defendant did not cite to district court statute requiring that jury be instructed on all mitigating factors as to which evidence has been presented. NRS 175.554(1). Homicide. District court did not plainly err in refusing to give defendant's proposed mitigation instruction during penalty phase of capital murder trial, where defendant was able to present his theories of mitigation to jury in closing argument, and nothing precluded jury from considering that argument and any evidence presented in mitigation. Criminal Law. The absence of instructions on particular mitigating factors in the penalty phase of a capital murder trial does not violate the Eighth and Fourteenth Amendments. U.S. Const. amends. 8, 14. Homicide. Instructions during penalty phase of capital murder trial that jury could impose death sentence only if jurors unanimously found existence of at least one aggravating factor beyond reasonable doubt, unanimously determined that any mitigating circumstances did not outweigh aggravating circumstances, and unanimously determined that death sentence was appropriate, and that other arrests, conduct or bad acts, if any, commitWHG E\ GHIHQGDQW ZHUH WR EH FRQVLGHUHG IRU FKDUDFWHU RQO\ DQG QRW DV

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Ð116 Nev. 215, 220 (2000) Byford v. StateÐ Ð

44.

45. 46.

47.

48.

ted by defendant were to be considered for character only and not as aggravating circumstances properly informed jurors that, in deciding whether to impose death sentence, they could not consider general character evidence until they determined that defendant was eligible for death penalty. Homicide. Finding that aggravating circumstance of torture or mutilation existed in capital murder case was supported by evidence that defendant and codefendant killed victim for revenge, that codefendant shot victim in back several times and then denied shooting her, that codefendant shot victim several more times and called her “a bitch,” and that defendant and codefendant attempted to burn victim's body after she was dead. NRS 200.033(8). Homicide. Basing aggravating circumstances on the actions of the murderer following the victim's death is proper. Homicide. Mutilation of a murder victim's body, whether it occurs before or after the victim's death, is an aggravating circumstance for purposes of capital murder prosecution. NRS 200.033(8). Criminal Law. Although individual errors may be harmless, the cumulative effect of multiple errors may violate a defendant's constitutional right to a fair trial. Criminal Law. Death sentence imposed on murder defendant was not excessive, even though codefendant who was arguably more culpable was sentenced to life imprisonment, where defendant had worse criminal record prior to murder than codefendant, codefendant was younger than defendant, and defendant fired two fatal shots into victim's head as she lay helpless on ground. NRS 177.055(2).

Before the Court En Banc. OPINION By the Court, Shearing, J.: In 1992, the State charged appellant Robert Royce Byford and two codefendants, Christopher Garth Williams and Todd Smith, with the murder of Monica Wilkins. Smith later pleaded guilty to one count of accessory to murder and agreed to testify against Byford and Williams. In 1994, Byford and Williams were found guilty by a jury and sentenced to death, but this court reversed their convictions and remanded for retrial due to violation of their Fifth Amendment right to remain silent. Murray v. State, 113 Nev. 11, 930 P.2d 121 (1997). After retrial, Byford and Williams were again convicted. Byford received a death sentence, and Williams a term of life in prison without the possibility of parole. Byford appeals on a number of grounds. We conclude that none warrant relief and affirm.

Ð116 Nev. 215, 221 (2000) Byford v. StateÐ Ð FACTS Byford's second trial began in February 1998, at which time the following evidence was adduced. Byford, Williams, and two teenage girls were visiting Smith at his parents' residence in Las Vegas on March 8, 1991. Byford was twenty years old, Williams seventeen, and Smith nineteen. Monica Wilkins, who was eighteen, called and told Smith she would pay him for a ride home from a local casino. Smith drove his jeep to pick Wilkins up, accompanied by Williams and one of the girls. After Smith picked up Wilkins and her friend, Jennifer Green, he asked Wilkins for gas money. Wilkins had Smith stop at a Burger King so that she could get some money. Williams went inside the store to see what was taking her so long, and Wilkins told him that she had gotten another ride. Smith and Williams were upset with Wilkins, and after they drove away, Williams fired

a handgun out the window of the jeep. Smith testified that Wilkins had angered him, Williams, and Byford before because she had invited them to her apartment to party but then left with other men. Byford and Williams had talked about “get[ting] rid of her” because she was always “playing games with our heads.” Smith participated in the talk but took the threats as jokes. Later that night, Smith, Williams, and Byford were together at Smith's house when Wilkins called again for a ride home. Accompanied by Byford and Williams, Smith drove to pick her up. Smith then drove all four of them to the desert outside of town to find a party that Byford heard was taking place. Wilkins told the other three that she had taken LSD earlier and was hallucinating. Smith drove to the usual area for parties, but they found no party. They then stopped so that everyone could urinate. Wilkins walked up a ravine to do so. Smith testified to the following. As Wilkins finished, Byford handed Williams a handgun and said he “couldn't do it.” Smith asked Byford what he was doing with the gun, and Byford told Smith to “stay out of it.” Williams then shot Wilkins in the back three to five times. She screamed and fell to the ground. Wilkins got up, walked to Williams, and asked him why he had shot her. He told her that he had only shot around her. Wilkins walked up out of the ravine but then felt the back of her neck, saw that she was bleeding, and again confronted Williams. Williams told her that he shot her because she was “a bitch.” He then walked behind her and shot her again repeatedly. Wilkins screamed and fell to the ground again. Byford then took the gun from Williams, said that he would “make sure the bitch is dead,” and fired two shots into her head. Byford then got a can of gasoline from the MHHSDQGSRXUHGLWRQ:LONLQV Ð116 Nev. 215, 222 (2000) Byford v. StateÐ Ð jeep and poured it on Wilkins. Byford tried to hand a lighter to Smith and get him to light the gasoline, but Smith refused. Byford called him a “wussie” and lit the body. As it burned, the three drove off. As they returned to Las Vegas, Byford pointed the handgun at Smith and threatened to kill him if he ever told anyone. Smith further testified that about a week after the murder, Byford and Williams had him drive them back to the desert to bury the body. An inmate who was incarcerated in jail with Byford and Williams after their arrest also testified that the two told him about this trip back to the body. They told the inmate that the body was decomposing and had maggots on it. Byford and Williams rolled the corpse into the ravine and partly covered it with a few shovelfuls of dirt. After about two more weeks, the body was discovered by target shooters. Las Vegas Metropolitan Police Department investigators collected sixteen .25 caliber shell casings at the site; ballistic testing showed that all were fired from the same weapon. Ten .25 caliber bullets were recovered; five were in the body. Three bullets were in the chest and abdomen, and two were in the head. Either of the bullets in the head would have been fatal. The body was partly eaten by coyotes or wild dogs. Other bullets could have been lost from the body due to this eating or the burning and decomposition of the body. The burning appeared to be postmortem. In mid-April 1991, Byford's friend, Billy Simpson, was visiting Byford's residence. When the two came upon a dead rabbit covered with maggots, Byford told Simpson that he had seen maggots on a human body before. That same night, Simpson and his brother Chad observed Byford and Williams engage in “play acting” in which Williams acted as if he shot Byford with a gun, Byford fell and then stood back up, and Williams opened his eyes wide and pretended to reload and shoot him again. Byford and Williams explained that they had shot and killed Wilkins in the desert and then burned her body. In the spring or summer of 1991, Byford conversed with two girls in a city park. He admitted to them that he and Williams had shot and killed a girl in the desert and then burned her body. He told them that he wanted to see what would happen when someone under the influence of “acid” was shot. In August 1991, Byford told another friend that he was a “bad person” and “had done evil things” because he had shot and killed someone in order to know what it felt like to kill someone. After the police investigation led to Byford and Williams, Byford asked his girlfriend to provide an alibi for him by telling the police that on the night of the murder they had been on the phone all night.

Ð116 Nev. 215, 223 (2000) Byford v. StateÐ Ð Neither Byford nor Williams testified. However, Williams introduced, over Byford's objection, Byford's testimony from the first trial. The gist of that prior testimony was that Smith and Wilkins were boyfriend and girlfriend, that they argued that night, that Smith shot Wilkins, and that Byford and Williams only aided Smith in concealing the crime. The testimony also included Byford's admission that he had a prior felony conviction for attempted possession of a stolen vehicle. In closing argument, the prosecutor referred to Byford as a convicted felon. The jury found Byford and Williams guilty of first-degree murder with the use of a deadly weapon. At the penalty hearing, the State called Marian Wilkins, the mother of the victim, to testify on the impact of losing her daughter. A probation officer testified that Byford had violated his probation conditions in 1991 and been placed under house arrest. Byford violated house arrest in 1992 by removing his transmitter bracelet and absconding. The officer also described Byford's juvenile record, which included burglary in 1984 and carrying a concealed weapon in 1987. A detention officer testified that in 1994 Byford was disciplined for fighting with another inmate at the Clark County Detention Center; the officer considered Byford to be a behavioral problem for the Center. Two of Byford's aunts testified to Byford's good character growing up, as did his sister. Byford's mother also testified on his behalf and described him as a good boy and a caring son. Byford and his father had often got in conflicts, and his father was “heavy-handed” in disciplining him. Byford was very close to his grandfather. When his grandfather died, he became angry and withdrawn and quit attending church. Byford's mother was raising Byford's son. Byford talked with his son on the phone and was a good influence on him. Thomas Kinsora, a Ph.D. in clinical neuropsychology, testified for Byford. Byford was diagnosed with attention deficit disorder as a child. He had conflicts with and anger toward his father for the latter's abuse of alcohol and emotional distance. Byford lost interest in school and immersed himself in alcohol and marijuana after his grandfather's death. He later used methamphetamines heavily for a time. After testing Byford, Dr. Kinsora concluded that the results were largely unremarkable and that Byford was not psychopathic. Byford spoke briefly in allocution and said that he was sorry for his part in Wilkins's death. In Byford's case, jurors found one mitigating circumstance: possible substance abuse. The jury found two aggravating circumstances: the murder was committed by a person under sentence of imprisonment and involved torture or mutilation of the YLFWLP

Ð116 Nev. 215, 224 (2000) Byford v. StateÐ Ð victim. Byford received a sentence of death. In Williams's case, jurors found six mitigating circumstances. One aggravating circumstance was found: the murder involved torture or mutilation of the victim. Williams received a sentence of life imprisonment without possibility of parole. DISCUSSION I. Alleged errors related to the admission of appellant's prior testimony Neither Byford nor Williams testified during the guilt phase. However, Williams introduced, over Byford's objection, Byford's testimony from the first trial. As stated above, the gist of that prior testimony was that Smith and Wilkins were boyfriend and girlfriend, that they argued that night, that Smith shot Wilkins, and that Byford and to a lesser extent Williams only aided Smith in concealing the crime. The testimony also included Byford's admission that he had a prior felony conviction for attempted possession of a stolen vehicle, and in closing argument the prosecutor referred to Byford as a convicted felon. A. Admission of the prior testimony and appellant's constitutional rights Byford asserts that admission of his prior testimony violated his constitutional rights. We conclude that this assertion lacks merit. 1

[Headnote 1] First, Byford argues that his waiver of the right to remain silent at his first trial was invalid because he was not informed that his testimony could be used at a later proceeding. He offers no authority to support this argument. The New Mexico Court of Appeals rejected the same argument, holding that an explicit warning that testimony might be used in a future trial is not required. State v. DeSantos, 575 P.2d 612, 614 (N.M. Ct. App. 1978). DeSantos does not provide much explanation for its holding, but we conclude that the holding is correct because Byford's argument is not persuasive when scrutinized. It rests on the unspoken premise that even though he considered it in his best interest to testify when faced with the certainty of his first trial, he would nevertheless have chosen not to testify to avoid the possibility, if he had been informed of it, that his testimony might be used at a retrial. This premise makes no sense, and the argument has no merit. __________ 1

The fact that this prior testimony included evidence of Byford's prior felony conviction is a separate issue which we address below.

Ð116 Nev. 215, 225 (2000) Byford v. StateÐ Ð [Headnotes 2, 3] Second, Byford contends that he was compelled to testify at the first trial due to constitutional violations during that trial. If so, his prior testimony would not be admissible. See Harrison v. United States, 392 U.S. 219, 222 (1968); U.S. v. Pelullo, 105 F.3d 117, 125 (3d Cir. 1997). Byford's first conviction was reversed because of improper comments on his Fifth Amendment right to remain silent; however, he concedes that the comments occurred after he had testified, therefore, those comments could not have compelled him to testify. He asserts that other errors occurred earlier in the first trial which caused him to testify, but he fails to specify them. This claim therefore warrants no relief. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (this court need not address issues unsupported by cogent argument). [Headnotes 4, 5] Third, Byford contends that the use of his prior testimony constituted an improper comment on his decision not to testify at the second trial. Byford does not cite authority or refer to any facts to support this contention. Generally, a defendant's testimony at a former trial is admissible against him in later proceedings. Harrison, 392 U.S. at 222. “[I]f otherwise admissible, a defendant's prior testimony may be introduced at a second trial as part of the state's case-in-chief.” Turner v. State, 98 Nev. 103, 106, 641 P.2d 1062, 1064 (1982). Moreover, in this case, the State did not introduce the prior testimony; Williams, Byford's codefendant, did. Our review of the record indicates that the State never referred to the prior testimony as a way of commenting on Byford's silence at the second trial. B. Admission of the prior testimony and the rules of evidence [Headnote 6] Byford maintains that admission of his prior testimony was improper under the rules of evidence. In response, the State primarily cites authority which would have allowed it to introduce the testimony against Byford, but this misses the point since Williams introduced the testimony. For example, NRS 51.035(3) allows a statement made by or attributable to a party to be offered against that party, but Williams did not offer Byford's prior testimony against Byford, but against the State. Nevertheless, the prior testimony was admissible pursuant to NRS 51.325, which provides: Testimony given as a witness at another hearing of the VDPHRUDGLIIHUHQWSURFHHGLQJ

Ð116 Nev. 215, 226 (2000) Byford v. StateÐ Ð 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 or is in privity with one of the former parties and the issues are substantially the same. This statute applies here. First, Byford, the declarant, was unavailable due to invocation of his Fifth Amendment right not to testify. See Funches v. State, 113 Nev. 916, 923, 944 P.2d 775, 779 (1997). Second, the issues in both trials were the same. Third, the party against whom Williams offered the prior testimony was the State, a former party. C. Admission of evidence of prior bad acts The reading of Byford's prior testimony revealed that he had a prior felony conviction for attempted possession of a stolen vehicle, and in closing argument the prosecutor referred to Byford as a convicted felon. Also, when Smith testified for the State, the prosecutor asked him how long he had known Byford before he met Williams. Smith said, “I'd say—well, I met him in the 120-day evaluation in—.” The prosecutor interrupted, “What—no, I'm talking about Mr. Williams, not [Byford].” Byford moved unsuccessfully for a mistrial after the latter incident and declined a curative instruction. Later in Smith's testimony, the jury learned that before the murder in this case occurred, Smith had been convicted of a felony and served some time in prison. Byford contends that these references to his prior conviction and 120-day evaluation were improper character evidence. The State asserts that the jury would not have taken the statement regarding “the 120-day evaluation” as a reference to a bad act. [Headnotes 7, 8] Smith's reference to meeting Byford at “the 120-day evaluation” was improper because a reasonable juror could conclude from Smith's statement that Byford had engaged in prior criminal activity. See Rice v. State, 108 Nev. 43, 44, 824 P.2d 281, 281-82 (1992). However, we conclude that the error was harmless. The statement was unsolicited and inadvertent, the reference to criminal activity was brief and indirect, and Byford declined the district court's offer to give a curative instruction. See id. [Headnote 9] The evidence of Byford's prior conviction was also improperly admitted. The State first argues that it was admissible under NRS 50.095(1), which provides that a witness's felony conviction is DGPLVVLEOH IRU WKH

SXUSRVHRIDWWDFNLQJWKHFUHGLELOLW\RIWKHZLWQHVV Ð116 Nev. 215, 227 (2000) Byford v. StateÐ Ð admissible for the purpose of attacking the credibility of the witness. However, Byford was not a witness at the second trial; on its face, therefore, NRS 50.095(1) does not apply. Cf. Commonwealth v. Boyle, 447 A.2d 250, 255 (Pa. 1982) (nontestifying defendant's prior testimony was admissible as substantive evidence of guilt, but the defendant's “credibility as a witness was not in issue and therefore there was no basis for the allowance of evidence to demonstrate his unreliability as a witness”). [Headnote 10] The State also argues the evidence was admissible based on NRS 51.069(1), which provides: “When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked or supported by any evidence which would be admissible for those purposes if the declarant had testified as a witness.” We reject this argument as well since it does not consider that the declarant in this case was a criminal defendant who invoked his Fifth Amendment right not to testify and enjoyed a due process right to a fair trial. In light of these

rights, we conclude that the legislature did not intend NRS 51.069(1) as a basis for admitting evidence of a criminal defendant's prior convictions any time another party introduces a hearsay statement made by the defendant. Byford likens the use of his prior testimony to the use of a confession. Prior bad act evidence disclosed in a defendant's confession is only admissible subject to NRS 48.045(2) after a hearing outside the presence of a jury. Walker v. State, 112 Nev. 819, 823-24, 921 P.2d 923, 926 (1996). We consider Byford's analogy between use of a defendant's prior testimony and use of a defendant's confession under Walker to be apt. Both implicate the same concern that prior bad acts not be allowed in simply as character evidence. [Headnote 11] Here, the district court should simply have redacted the portion of the prior testimony relating to Byford's prior conviction. Byford asked the court to do so, but the court refused. Therefore, the evidence of Byford's prior conviction was improperly admitted, and the prosecutor improperly referred to Byford as a convicted felon. Nevertheless, reversal is not warranted if “the result would have been the same if the trial court had not admitted the evidence.” Qualls v. State, 114 Nev. 900, 903-04, 961 P.2d 765, 767 (1998). Even without this evidence and Smith's reference to “the 120-day evaluation,” we conclude that the jury would have convicted Byford of murder. The prior conviction was not heinous—attempted possession of a stolen vehicle—and the evidence against Byford in this case, particularly in light of his numerous admissions, was overwhelming.

Ð116 Nev. 215, 228 (2000) Byford v. StateÐ Ð D. Reference to the prior testimony during the prosecutor's closing argument In closing argument in the guilt phase, the prosecutor referred to Byford's prior testimony several times. Byford claims that this was improper. At one point in his prior testimony, Byford admitted that he had intended to build an alibi for Smith, Williams, and himself by pretending that they had bowled the night of the murder; Byford said that he knew a person who worked at the bowling alley. The prosecutor referred to this evidence in closing argument and asked, “Where's that person?” Byford immediately objected, and the court ordered the question stricken. The State contends that the prosecutor was simply saying that this evidence was uncorroborated. Alternatively, it argues that the error was harmless. [Headnotes 12-14] “It is generally improper for a prosecutor to comment on a defendant's failure to call a witness. Such comment can be viewed as impermissibly shifting the burden of proof to the defense.” Rippo v. State, 113 Nev. 1239, 1253, 946 P.2d 1017, 1026 (1997) (citation omitted), cert. denied, 525 U.S. 841, 119 S. Ct. 104 (1998). The prosecutor's rhetorical question improperly implied that Byford carried a burden of proof on this issue; however, the issue was of little significance. It is not clear why the prosecutor even challenged Byford's claim regarding the aborted alibi attempt; Byford admitted in his prior testimony that it was a fabrication. Furthermore, the district court immediately sustained the objection and struck the question. Given the evidence against Byford, the error was clearly harmless. See id. Byford challenges several other references to his prior testimony as improper comments on his decision not to testify. We conclude that the prosecutor's references were neither intended as, nor reasonably understood to be, comments on Byford's decision not to testify at the second trial. Byford complains that the prosecutor specifically referred to his “testimony” and even his “cross-examination.” However, before Byford's statements were read, the jury was expressly told that they were his “prior sworn testimony.” Byford did not object either to this or to any of the State's references which he now takes exception to. We discern no error in these statements by the prosecutor. E. Denial of appellant's motion to sever

[Headnote 15] Before trial, Byford moved unsuccessfully to sever his trial from Williams's. Byford says that joinder was improper because LWSUHMXGLFHGKLP

Ð116 Nev. 215, 229 (2000) Byford v. StateÐ Ð it prejudiced him. His primary argument is that use of his prior testimony by Williams damaged his defense. 2 [Headnotes 16, 17] Joinder of defendants is within the discretion of the district court, and its decision will not be reversed absent an abuse of discretion. Lisle v. State, 113 Nev. 679, 688, 941 P.2d 459, 466 (1997), cert. denied, 525 U.S. 830 (1998); see also NRS 174.165(1). A court must consider not only the possible prejudice to the defendant but also the possible prejudice to the state resulting from expensive, duplicitous trials. Lisle, 113 Nev. at 688-89, 941 P.2d at 466. [Headnote 18] The State chose not to introduce either defendant's prior testimony, apparently because Byford and Williams did not testify at the second trial and the State feared that introducing the testimony of each would violate the other's Sixth Amendment right of confrontation under Bruton v. United States, 391 U.S. 123 (1968). Bruton holds that a nontestifying defendant's admission which expressly incriminates another defendant cannot be used at a joint trial. See, e.g., Ducksworth v. State, 114 Nev. 951, 966 P.2d 165 (1998) (due to Bruton violation, it was reversible error not to grant severance of codefendants' trials). However, if Byford's trial had been severed, then the State could have used Byford's prior testimony against him as an admission without violating Williams's Sixth Amendment right of confrontation. See NRS 51.035(3)(a). Therefore, severance would not have prevented the introduction of his prior testimony, and the joint trial did not unfairly prejudice Byford in this regard. II. Appellant's right to a speedy trial Byford contends that his right to a speedy trial was violated as a result of the joinder of his trial with Williams's. On January 3, 1997, this court reversed the original convictions and remanded. Murray, 113 Nev. at 11, 930 P.2d at 121. At a hearing on February 20, 1997, Byford invoked his right to a speedy trial, and trial was scheduled for April 28, 1997. Williams moved to continue the trial. At a hearing on April 1, 1997, trial was reset for August 18, 1997. Byford's counsel did not oppose the resetting, although Byford himself said that he was not waiving his speedy trial right. On July 30, 1997, the State moved to continue the trial due to the unavailability of two witnesses. Both %\IRUGDQG:LOOLDPVRSSRVHGWKHPRWLRQEXWWKHGLVWULFWFRXUWJUDQWHGLW

DQGUHVHWWKHWULDOIRU2FWREHU __________ 2

Byford also complains that several continuances by Williams violated his right to a speedy trial. We address this issue in the next section.

Ð116 Nev. 215, 230 (2000) Byford v. StateÐ Ð Byford and Williams opposed the motion, but the district court granted it and reset the trial for October 13, 1997. On August 21, 1997, lead counsel for Williams was allowed to withdraw due to a conflict with Williams. Byford objected to any continuance. On September 8, 1997, Williams's new counsel requested a continuance. Although Byford and the State opposed continuance, the court reset the trial for February 23, 1998. The jury

trial began on that date. NRS 178.556(1) provides that if the defendant has not postponed the trial, the district court may dismiss a case not brought to trial within sixty days after arraignment. The State argues that this provision is not applicable here because no arraignment occurred after remand. Even if this argument is sound, Byford still had a constitutional right to a speedy trial. If the statute applies, its sixty-day time frame is mandatory only when there is no good cause for delay. Sessions v. State, 111 Nev. 328, 332 n.4, 890 P.2d 792, 796 n.4 (1995). As discussed below, we conclude that there was good cause. [Headnote 19] To determine if a defendant's Sixth Amendment right to a speedy trial was violated, a court must conduct a balancing test. Barker v. Wingo, 407 U.S. 514, 530 (1972). The court should consider the length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Id. Unless the delay is long enough to be presumptively prejudicial, inquiry into the other factors is not necessary. Id. [Headnote 20] First, the delay here totaled about one year. This is not extreme, but long enough to conceivably cause prejudice. Second, although Byford was not responsible for any delays, the delays all appear proper. The State was responsible for one continuance, but Byford does not dispute that the State had good reason for the delay. Williams was responsible for the other two continuances, and again Byford has not alleged that they were not legitimate. Third, Byford asserted his speedy trial right in a timely fashion. Finally and most importantly, Byford has not demonstrated that he was prejudiced by the delay. He complains that the delay allowed the State to reassemble its witnesses, but such “prejudice” is not unfair. He also notes that he was held without bail awaiting retrial, but he does not explain how this was improper or prejudicial in this case. Byford suffered no prejudice; therefore, his right to a speedy trial was not violated, and the joint trial was not erroneous.

Ð116 Nev. 215, 231 (2000) Byford v. StateÐ Ð III. Admission of photographs of the victim and maggots collected from her body [Headnote 21] Byford contends that maggots found on Wilkins's body (and preserved in a jar of formaldehyde) and photographs of the body lacked probative value, were highly prejudicial, and were therefore erroneously admitted. The State responds that the photos were admitted to portray the crime scene, to aid a witness in describing the cause of death, to corroborate Smith's testimony as to how the murder occurred, and to show the extent of damage to the body and demonstrate why so few bullets were found in the body. The State asserts that it introduced the maggots to corroborate testimony that Byford had admitted to having seen maggots on the body. The photographs in question numbered six. The district court considered them and Byford's objections and concluded that the photos were relevant to show the crime scene and the condition of the victim's body. The court admitted the maggots as corroborative of the testimony regarding Byford's admissions. [Headnotes 22-24] “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.” Colon v. State, 113 Nev. 484, 491, 938 P.2d 714, 719 (1997). Gruesome photos are admissible if they aid in ascertaining the truth. Scott v. State, 92 Nev. 552, 556, 554 P.2d 735, 738 (1976). “Despite gruesomeness, photographic evidence has been held admissible when it accurately shows the scene of the crime or 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), overruled on other grounds by Alford v. State, 111 Nev. 1409, 1415 n.4, 906 P.2d

714, 717 n.4 (1995). We conclude that the district court's decision to admit this evidence was not manifestly wrong. IV. The district court's refusal to allow defense counsel to question a state's witness regarding her conversation with prosecutors At the first trial, the State called Jennifer Green as a witness. On cross-examination, she testified that she had spoken to prosecutors before the trial and they had told her that they did not believe Smith was as innocent as he was saying. The State objected to the statement as hearsay, and the district court overUXOHG WKH

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Ð116 Nev. 215, 232 (2000) Byford v. StateÐ Ð ruled the objection. Green testified again at the second trial, but this time the district court sustained the State's objection when Williams's counsel asked her what prosecutors had said about Smith. Byford contends that the district court erred in the second trial. He argues that the ruling in the first trial was the law of the case because the State did not appeal the ruling. He also argues that the evidence was not hearsay because it was offered not for its truth but to show the effect it had on the witness. [Headnote 25] First, a trial court ruling does not constitute law of the case. “The law of a first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same.” Walker v. State, 85 Nev. 337, 343, 455 P.2d 34, 38 (1969) (emphasis added), vacated in part on other grounds by 408 U.S. 935 (1972). This court did not adjudicate this issue in the first appeal so no law of the case exists in regard to it. [Headnote 26] Second, evidence that a “statement was made and the listener was affected by the statement” is not hearsay if not offered to show the truth of the statement. See Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227 (1990). However, Byford fails to show here how any effect on the witness was relevant. He does not claim that evidence of the prosecutor's statement was necessary to provide context for any action by the witness—the usual basis for such evidence. See id. He argues that it was relevant to show a possible effect on the witness's testimony, but does not explain what that effect was or how it was relevant. “The decision to admit or exclude evidence is within the sound discretion of the district court.” Johnson v. State, 113 Nev. 772, 776, 942 P.2d 167, 170 (1997). We conclude that it was within the district court's sound discretion to exclude this evidence. V. The instruction on implied malice and the “antisympathy” instruction [Headnote 27] Pursuant to NRS 200.020(2), the jury was instructed: “Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.” (Emphasis added.) Byford contends that the emphasized language creates a mandatory presumption, which is unconstitutional. We have held that this instruction is proper if the jury is properly instructed on the presumption of innocence. See Doyle v. State, 112 Nev. 879, 900-02, 921 P.2d 901, 915-16 (1996). The jury received such instruction here.

Ð116 Nev. 215, 233 (2000) Byford v. StateÐ Ð [Headnote 28]

The jury also received a so-called “antisympathy instruction,” which Byford contends undermined his right to have the jury consider all mitigating evidence. This court has rejected this contention where the jury was also instructed to consider any mitigating factors. See Wesley v. State, 112 Nev. 503, 519, 916 P.2d 793, 803-04 (1996). The jury was so instructed here. We conclude that these instructions were proper. VI. The instructions defining the mens rea required for first degree murder [Headnote 29] The jury in this case was instructed: Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or at the 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 act 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. We will refer to this as the Kazalyn instruction because it first appears in this court's case law in Kazalyn v. State, 108 Nev. 67, 75, 825 P.2d 578, 583 (1992). Byford argues that this instruction is improper because it mandates a finding of willful, deliberate, and premeditated murder based only on the existence of premeditation. Although we reject this argument as a basis for any relief for Byford, we recognize that it raises a legitimate concern which this court should address. We conclude that the evidence in this case is clearly sufficient to establish deliberation and premeditation on Byford's part. Byford and Williams had talked of “get[ting] rid” of the victim on prior occasions. On the night of the murder, Byford handed the gun to Williams, saying that he (Byford) “couldn't do it,” and told Smith to “stay out of it.” Thus, it is evident that Byford and Williams discussed shooting the victim before doing so. Williams and Byford then calmly and dispassionately shot the victim in the absence of any provocation, confrontation, or stressful circumstances of any kind. Williams first shot her several times and then, after a passage of some time, shot her several more times. Byford watched this transpire, and when the victim was helpless on the ground, he took the gun from Williams, said that he would make sure she was dead, and shot her in the head twice. This evidence ZDVVXIILFLHQWIRUWKHMXURUVWRUHDVRQDEO\ILQGWKDWEHIRUHDFWLQJWRNLOOWKHYLFWLP

%\IRUG ZHLJKHG WKH UHDVRQV IRU DQG DJDLQVW KLV DFWLRQ FRQVLGHUHG LWV FRQVHTXHQFHV GLVWLQFWO\ IRUPHG D GHVLQJ WR NLOO DQG GLG QRW DFW VLPSO\ IURP D UDVK XQFRQVLGHUHG LPSXOVH Ð116 Nev. 215, 234 (2000) Byford v. StateÐ Ð was sufficient for the jurors to reasonably find that before acting to kill the victim Byford weighed the reasons for and against his action, considered its consequences, distinctly formed a design to kill, and did not act simply from a rash, unconsidered impulse. See Briano v. State, 94 Nev. 422, 425, 581 P.2d 5, 7 (1978) (evidence of premeditation and deliberation is seldom direct, and circumstantial evidence may be taken into account to provide sufficient evidence). The Kazalyn instruction, however, does raise a concern which we will now consider. [Headnote 30] NRS 200.030(1)(a) provides in relevant part that murder perpetrated by “willful, deliberate and premeditated killing” is first degree murder. In this regard, willful means intentional. See State v. Brown, 836 S.W.2d 530, 538 (Tenn. 1992). Therefore, willful first-degree murder requires that the killer actually intend to kill. Cf. Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 7.7, at 642 (2d ed. 1986). Not every murder requires an intent to kill. For example, murder can also exist when a killer acts with a reckless disregard for human life amounting

to “an abandoned and malignant heart.” See NRS 200.020(2); cf. Model Penal Code and Commentaries § 210.2 cmt. 1 at 13-15 (Official Draft and Revised Comments 1980); LaFave & Scott, Criminal Law, § 7.1(a), at 605-07. However, such a murder would not constitute willful first-degree murder. [Headnote 31] In addition to willfulness, the statutory provision in question requires deliberation and premeditation. These are the truly distinguishing elements of first-degree murder under this provision. Cf. Brown, 836 S.W.2d at 538. But the jurisprudence of Nevada, like that of other states, has shown a “trend toward a confusion of premeditation and deliberation.” Id. at 540. We therefore take this opportunity to “adhere to long-established rules of law and . . . abandon the modern tendency to muddle the line between first- and second-degree murder.” Id. at 543. The Kazalyn instruction and some of this court's prior opinions have underemphasized the element of deliberation. The neglect of “deliberate” as an independent element of the mens rea for first degree murder seems to be a rather recent phenomenon. Before Kazalyn, it appears that “deliberate” and “premeditated” were both included in jury instructions without being individually defined but also without “deliberate” being reduced to a synonym of “premeditated.” See, e.g., State of Nevada v. Harris, 12 Nev. 414, 416 (1877); State v. Scott, 92 Nev. 552, 554 n.2, 554 P.2d 735, 737 n.2 (1976). We did not address this issue in our Kazalyn GHFLVLRQ

Ð116 Nev. 215, 235 (2000) Byford v. StateÐ Ð decision, but later the same year, this court expressly approved the Kazalyn instruction, concluding that “deliberate” is simply redundant to “premeditated” and therefore requires no discrete definition. See Powell v. State, 108 Nev. 700, 708-10, 838 P.2d 921, 926-27 (1992), vacated on other grounds by 511 U.S. 79 (1994). Citing Powell, this court went so far as to state 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.” Greene v. State, 113 Nev. 157, 168, 931 P.2d 54, 61 (1997). We conclude that this line of authority should be abandoned. By defining only premeditation and failing to provide deliberation with any independent definition, the Kazalyn instruction blurs the distinction between firstand second-degree murder. Greene's further reduction of premeditation and deliberation to simply “intent” unacceptably carries this blurring to a complete erasure. [Headnote 32] We acknowledge that the jurisprudence of this court on this issue has not been consistent, but in Powell we overlooked earlier pronouncements of this court which recognized that “deliberate” and “premeditated” define distinct elements. In Hern v. State, 97 Nev. 529, 532, 635 P.2d 278, 280 (1981), this court stated: “It is clear from the statute that all three elements, willfulness, deliberation, and premeditation, must be proven beyond a reasonable doubt before an accused can be convicted of first degree murder.” (Emphasis added.) See also State v. Wong Fun, 22 Nev. 336, 341, 40 P. 95, 96 (1895). But see State of Nevada v. Lopez, 15 Nev. 407, 414 (1880). [Headnotes 33, 34] In sum, the Kazalyn instruction and Powell and its progeny do not do full justice to the phrase “willful, deliberate, and premeditated.” Deliberation remains a critical element of the mens rea necessary for first-degree murder, connoting a dispassionate weighing process and consideration of consequences before acting. “In order to establish first-degree murder, the premeditated killing must also have been done deliberately, that is, with coolness and reflection.” Brown, 836 S.W.2d at 539; see also LaFave & Scott, Criminal Law § 7.7(a), at 643. [Headnote 35] Because deliberation is a distinct element of mens rea for first-degree murder, we direct the district courts to cease instructing juries that a killing resulting from premeditation is “willful, deliberate, and premeditated

murder.” Further, if a jury is LQVWUXFWHGVHSDUDWHO\RQWKHPHDQLQJRISUHPHGLWDWLRQLWVKRXOG

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Ð116 Nev. 215, 236 (2000) Byford v. StateÐ Ð instructed separately on the meaning of premeditation, it should also be instructed on the meaning of deliberation. 3 [Headnotes 36, 37] Accordingly, we set forth the following instructions for use by the district courts in cases where defendants are charged with first-degree murder based on willful, deliberate, and premeditated killing. Murder of the first degree is murder which is perpetrated by means of any kind of willful, deliberate, and premeditated killing. All three elements—willfulness, deliberation, and premeditation—must be proven beyond a reasonable doubt before an accused can be convicted of first-degree murder. Willfulness is the intent to kill. There need be no appreciable space of time between formation of the intent to kill and the act of killing. Deliberation is the process of determining upon a course of action to kill as a result of thought, including weighing the reasons for and against the action and considering the consequences of the action. A deliberate determination may be arrived at in a short period of time. But in all cases the determination must not be formed in passion, or if formed in passion, it must be carried out after there has been time for the passion to subside and deliberation to occur. A mere unconsidered and rash impulse is not deliberate, even though it includes the intent to kill. [4] __________ 3

Instructions defining deliberation and premeditation are not even required. See Ogden v. State, 96 Nev. 258, 263, 607 P.2d 576, 579 (1980); cf. Dawes v. State, 110 Nev. 1141, 1145-46, 881 P.2d 670, 673 (1994). “There is nothing to indicate that such words are used in law other than in their ordinary sense.” Ogden, 96 Nev. at 263, 607 P.2d at 579. 4

A homicide arising from an impulse of passion can be either second-degree murder or voluntary manslaughter depending on the circumstances. Voluntary manslaughter requires “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.” NRS 200.050; see also NRS 200.040 and 200.060. If jurors find that a defendant “killed the deceased under the influence of uncontrollable passion, and without any mixture of deliberation, and if at the same time they [think] that the circumstances were not such as to justify the existence or persistence of irresistible passion in a reasonable man,” then a verdict of second-degree murder is warranted. State of Nevada v. Ah Mook, 12 Nev. 369, 386-87 (1877). “Neither slight provocation nor an assault of a trivial nature will reduce a homicide from murder to manslaughter.” State v. Fisko, 58 Nev. 65, 75, 70 P.2d 1113, 1116 (1937), overruled in part on other grounds by Fox v. State, 73 Nev. 241, 247, 316 P.2d 924, 927 (1957).

Ð116 Nev. 215, 237 (2000) Byford v. StateÐ Ð Premeditation is a design, a determination to kill, distinctly formed in the mind by the 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 act constituting the killing has been preceded by and has been the result of premeditation, no matter how rapidly the act

follows the premeditation, it is premeditated. The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree. VII. The district court's refusal of a proposed instruction on mitigating circumstances During the settling of penalty phase jury instructions, Byford objected to the district court's instruction on mitigators and offered his own instruction setting forth the mitigating circumstances which he alleged existed in his case. The court rejected the proposed instruction. (The rejected instruction does not appear in the record.) The jury was simply instructed in regard to six of the seven mitigators enumerated in NRS 200.035, including the general one: “Any other mitigating circumstances.” Byford contends that the district court erred. He argues that a defendant has a right to instruct the jury on his defense theory as long as there is some evidence, no matter how weak or incredible, to support it. 5 See, e.g., Williams v. State, 99 Nev. 530, 665 P.2d 260 (1983). [Headnote 38] It is possible that the district court erred in disallowing Byford's proposed instruction. NRS 175.554(1) provides that in a capital penalty hearing before a jury, the court shall instruct the jury on the relevant aggravating circumstances and “shall also instruct the MXU\DVWRWKHPLWLJDWLQJFLUFXPVWDQFHVDOOHJHG

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Byford also asserts that it is unconstitutional to prevent a sentencing jury from considering any mitigating evidence proffered by the defendant. See, e.g., Lockett v. Ohio, 438 U.S. 586, 602-08 (1978). This is a correct statement of the law, but Byford has not shown that the jury was precluded from considering any evidence offered in mitigation.

Ð116 Nev. 215, 238 (2000) Byford v. StateÐ Ð jury as to the mitigating circumstances alleged by the defense upon which evidence has been presented during the trial or at the hearing.” NRS 175.554(1) therefore requires instructions on alleged mitigators upon which evidence has been presented and does not restrict such instructions to the enumerated statutory mitigators. Therefore, Byford was entitled to appropriate jury instructions on unenumerated mitigating circumstances for which he had presented evidence. [Headnotes 39, 40] However, Byford has not provided this court with the contents of his proposed instruction, so we cannot ascertain whether the specific instruction at issue was proper or not. “It is the appellant's responsibility to provide the materials necessary for this court's review.” Jacobs v. State, 91 Nev. 155, 158, 532 P.2d 1034, 1036 (1975). Furthermore, Byford did not cite NRS 175.554(1) to the district court as grounds for his proposed instruction. Therefore, he did not properly preserve this issue for appeal. See Lizotte v. State, 102 Nev. 238, 239-40, 720 P.2d 1212, 1214 (1986) (appellate review requires that the district court be given a chance to rule on the legal and constitutional questions involved).

[Headnotes 41, 42] Even assuming that rejecting the proposed instruction was error, we do not deem it plain or constitutional error. The United States Supreme Court has held that the absence of instructions on particular mitigating factors does not violate the Eighth and Fourteenth Amendments. Buchanan v. Angelone, 522 U.S. 269, 275, 118 S. Ct. 757, 761 (1998). Byford was able to present his theories of mitigation to the jury in closing argument. Nothing precluded the jury from considering that argument and any evidence presented in mitigation. Thus, we are confident that no error requiring reversal occurred. VIII. The penalty instructions regarding the use of character evidence [Headnote 43] During the penalty phase the State presented general character evidence against Byford in addition to evidence on the two alleged aggravating circumstances. Before the penalty hearing began, Williams and Byford unsuccessfully moved for a bifurcated proceeding at which the character evidence would not be introduced unless and until the jury had found aggravating circumstances to exist. Byford claims that the jury was never instructed that the character evidence could not be used in “the weighing process to determine death eligibility.” The record belies this claim.

Ð116 Nev. 215, 239 (2000) Byford v. StateÐ Ð The jury was instructed: The jury may impose a sentence of death only if: (1) The jurors find unanimously and beyond a reasonable doubt that at least one aggravating circumstance exists; (2) Each and every juror determines that the mitigating circumstance or circumstances, if any, which he or she has found do not outweigh the aggravating circumstance or circumstances; and (3) The jurors unanimously determine that in their discretion a sentence of death is appropriate. This instruction is proper. See Geary v. State, 114 Nev. 100, 105, 952 P.2d 431, 433 (1998). The jury was further instructed that the State had alleged two aggravating circumstances against Byford and that [o]ther arrests, conduct or bad acts, if any, committed by . . . Byford are to be considered for character only and not as aggravating circumstances. Evidence of any uncharged crimes, bad acts or character evidence cannot be used or considered in determining the existence of the alleged aggravating circumstance or circumstances. These instructions properly inform jurors that in deciding whether to impose a death sentence, they may not consider general character evidence until they have determined that a defendant is eligible for the death penalty by finding: first, that at least one aggravator exists; and second, that any aggravators are not outweighed by any mitigators. See Middleton v. State, 114 Nev. 1089, 1117, 968 P.2d 296, 315 (1998), cert. denied, 528 U.S. 927 (1999). Byford criticizes Lisle, 113 Nev. at 704, 941 P.2d at 475-76, but does not show how the criticism applies to this case. This court has stated: “To the extent that any language in Lisle suggests that [character evidence admitted pursuant to NRS 175.552(3)] can be used to determine death eligibility itself, we hereby reject that suggestion.” Middleton, 114 Nev. at 1117 n.9, 968 P.2d at 315 n.9. The instructions here made no such suggestion. IX. The aggravating circumstance of torture or mutilation [Headnote 44]

Byford asserts that the decisions in which this court has considered the aggravating circumstance of torture or mutilation are inconsistent and irreconcilable, rendering this aggravator unconstitutionally vague. He also maintains that the victim was simply NLOOHGE\PXOWLSOHJXQVKRWVDQGWKDWWKHUHZDVQRHYLGHQFH

RIWRUWXUHRUPXWLODWLRQ Ð116 Nev. 215, 240 (2000) Byford v. StateÐ Ð killed by multiple gunshots and that there was no evidence of torture or mutilation. We disagree. Regardless of whether there is any inconsistency in this court's decisions regarding this aggravating circumstance, we conclude that Byford has failed to show that the aggravator was found unconstitutionally in this case. The jury instructions defining torture and mutilation in this case were ones which we have determined are not unconstitutionally vague. See Browne v. State, 113 Nev. 305, 315-16, 933 P.2d 187, 193 (1997); Robins v. State, 106 Nev. 611, 627-30, 798 P.2d 558, 568-70 (1990). And the evidence was sufficient to establish that this murder involved torture and mutilation. NRS 200.033(8) provides as an aggravating circumstance that “[t]he murder involved torture or the mutilation of the victim.” Establishing either torture or mutilation is sufficient to support the jury's finding of this aggravating circumstance. See Parker v. State, 109 Nev. 383, 395, 849 P.2d 1062, 1070 (1993). In discussing torture, we have held that “NRS 200.033(8) requires that the murderer must have intended to inflict pain beyond the killing itself.” Domingues v. State, 112 Nev. 683, 702, 917 P.2d 1364, 1377 (1996). In Domingues, the evidence did not indicate that the appellant's “intent was anything other than to kill” the victim; there was 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. “Torture involves a calculated intent to inflict pain for revenge, extortion, persuasion or for any sadistic purpose.” Id. at 702 n.6, 917 P.2d at 1377 n.6. In maintaining that no evidence of torture exists here, Byford ignores the circumstances of the killing. Evidence indicated that Byford and Williams resented Wilkins because of perceived slights they had received from her. Thus revenge of a sort appears to have been their primary reason for shooting her. After shooting her in the back, Williams lied to Wilkins—who was under the influence of LSD—denying that he had shot her and telling her that he had only shot around her. When she realized she had been shot and asked why, he said because she was “a bitch” and then walked behind her and shot her again repeatedly. We conclude that the jury could have reasonably found that this behavior had a vengeful, sadistic purpose and was intended to inflict pain beyond the killing itself and therefore constituted torture. Byford, of course, was equally culpable of this torture: a person who aids and abets an act constituting an offense is a principal and subject to the same punishment as one who directly commits the act. See NRS 195.020. [Headnote 45] This court has never expressly decided whether postmortem PXWLODWLRQIDOOVZLWKLQWKHSXUYLHZRI

156  Ð116 Nev. 215, 241 (2000) Byford v. StateÐ Ð mutilation falls within the purview of NRS 200.033(8). Basing aggravating circumstances on the actions of the murderer following the victim's death is proper. See Lewis v. Jeffers, 497 U.S. 764, 783-84 (1990) (concluding that the state court's finding of the aggravating circumstance of gratuitous violence was rationally supported by evidence that the defendant inflicted additional wounds on the dead victim); Conklin v. State, 331 S.E.2d 532, 539 (Ga. 1985) (rejecting the argument that murder “terminates at the instant of death, so that nothing that happens afterward can be considered” in determining whether an aggravator exists). In Flanagan v. State, 105 Nev. 135, 141, 771 P.2d 588, 592 (1989), this court declined to decide if dismemberment of a corpse is mutilation within the meaning of the statute. In another case, we also did not reach the issue, but stated that postmortem amputations of the victim's body showed depravity of mind (a former aggravator). See Cavanaugh v. State, 102 Nev. 478, 487, 729 P.2d 481, 486 (1986). In at least two other cases, without discussing this issue, we noted attacks inflicted on victims after their death as additional evidence of

mutilation. Calambro v. State, 114 Nev. 106, 111, 952 P.2d 946, 949 (1998) (“After driving the bar through the skull, appellant attempted to separate the victim's skull in half.”); Parker, 109 Nev. at 395, 849 P.2d at 1070 (the murderer plunged a knife into the dead victim's chest). [Headnote 46] Our case law thus tends to support the conclusion that the aggravating circumstance set forth in NRS 200.033(8) includes postmortem mutilation. More important, this conclusion is consistent with the statutory language. Although a victim who has died cannot be tortured, mutilation can occur after death. By including both terms as a basis for the aggravator, the statute penalizes egregious behavior whether it occurs before or after a victim's death. We agree with the State's assertion that the legislative intent in making mutilation an aggravating circumstance “was to discourage the desecration of a fellow human being's body.” We therefore take this opportunity to expressly hold that mutilation, whether it occurs before or after a victim's death, is an aggravating circumstance under NRS 200.033(8). Postmortem mutilation occurred here when Byford set the body on fire. See Ortiz v. Stewart, 149 F.3d 923, 942 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999). Therefore, the evidence in this case supports a finding of both torture and mutilation. X. Cumulative error [Headnote 47] Although individual errors may be harmless, the cumulative HIIHFWRIPXOWLSOHHUURUVPD\YLRODWHD

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Ð116 Nev. 215, 242 (2000) Byford v. StateÐ Ð effect of multiple errors may violate a defendant's constitutional right to a fair trial. Pertgen v. State, 110 Nev. 554, 566, 875 P.2d 361, 368 (1994). Byford argues that such a cumulative effect exists here. We have concluded that two errors occurred: improper references were made to Byford's prior criminal activity, and the prosecutor improperly implied that Byford had the burden of calling a witness. Also, the district court possibly erred in disallowing Byford's proposed instruction on mitigating circumstances. Even considered cumulatively, these errors were harmless. XI. Review of the death sentence under NRS 177.055 NRS 177.055(2), in part, requires this court to review: (c) Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor; and (d) Whether the sentence of death is excessive, considering both the crime and the defendant. [Headnote 48] Byford contends that his death sentence is excessive, arguing as follows. Smith's testimony was the State's primary evidence of the murder, and that testimony showed that Williams was more culpable in murdering Wilkins. The penalty hearing evidence also showed that Williams had caused a great deal of trouble while in prison between the first and second trials. Byford asserts that he has been “an exemplary prisoner” during his years of imprisonment and was only twenty at the time of the murder. Yet he was sentenced to death while Williams received a sentence less than death. The record indeed shows that Williams took the initiative in murdering Wilkins and has caused worse disciplinary problems as an inmate. But Byford overlooks the fact that his criminal record prior to the murder was worse than Williams's. Because Byford was on probation at the time of the murder, the jury found an additional aggravating circumstance in his case, for a total of two, versus one for Williams. And the jury found only one mitigating circumstance in Byford's case, versus six for Williams. One was Williams's youth: he was

younger than Byford, only seventeen, at the time of the murder. Finally, the evidence showed that Byford fired two fatal shots into the victim's head when she was completely helpless, threatened to kill Smith if he told, and took the initiative in concealing the crime. Thus, Byford's culpability in the murder was comparable to Williams's. We conclude that Byford's death sentence is not excessive and that there is no evidence it was imposed under the influence of passion, prejudice, or any arbitrary factor.

Ð116 Nev. 215, 243 (2000) Byford v. StateÐ Ð CONCLUSION We affirm Byford's conviction and sentence of death. Rose, C. J., Young, Agosti, Leavitt and Becker, JJ., concur. Maupin, J., concurring: The jury in this case was instructed in the following manner: Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or at the 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 act 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. As noted by the majority, this instruction mirrors our observations in Kazalyn v. State, 108 Nev. 67, 75, 825 P.2d 578, 583 (1992). I write separately to offer an alternative approach to the concern that the line between first- and second-degree murder has arguably been blurred by Kazalyn and other opinions of this court discussing premeditation as a separate element of first-degree murder. DISCUSSION NRS 200.010 defines murder in relevant part as the “unlawful killing of a human being, with malice aforethought, either express or implied . . . .” Once it has been established that a murder has been committed, that is an unlawful killing with malice aforethought, the offense must then be classified by degree. See Graham v. State, 116 Nev. 23, 992 P.2d 255 (2000). Under NRS 200.030(1)(a), (b) and (c), the specifically enumerated homicides definitionally constitute murder in the first degree. 1 Id. The only subcategory of first-degree murder where first-degree murder is not self-defined is the broad general category of murders not specifically enumerated, i.e., the “other NLQG>V@RI

ZLOOIXO GHOLEHUDWH DQG SUHPHGLWDWHG NLOOLQJ´ UHIHUUHG WR LQ WKH VHFRQG SKUDVH RI 156  D  __________ 1

Murders committed by means of poison, lying in wait, torture or child abuse; murders committed in the commission of certain enumerated life-endangering felonies (the felony-murder rule); and murders committed to avoid lawful arrest or to escape from legal custody. NRS 200.030 (1)(a), (b) and (c). (The 1999 legislature amended NRS 200.030, transferring murders perpetrated by child abuse into the felony-murder subcategory of first-degree murder. 1999 Nev. Stat., ch. 319, § 3, at 1335.) Felony-murder is the only category of murder where malice is statutorily presumed.

Ð116 Nev. 215, 244 (2000) Byford v. StateÐ Ð kind[s] of willful, deliberate and premeditated killing,” referred to in the second phrase of NRS 200.030(1)(a). It is therefore the second phrase of NRS 200.030(1)(a) that provides the first line of departure in the analysis of whether a particular fact pattern falls within the first-degree murder construct or within the second-degree murder construct. See State v. Randolph, 49 Nev. 241, 246-47, 242 P. 697, 698 (1926); Graham, 116 Nev. at 28, 992 P.2d at 258 (2000). The Kazalyn instruction invites concern when it defines premeditation as a “determination to kill” 2 because express malice means a deliberate intention to kill (see NRS 200.020(1); Keys v. State, 104 Nev. 736, 740, 766 P.2d 270, 272 (1988)), and, by definition, an “intention” is “a determination to act in a certain way.” See Webster's Ninth New Collegiate Dictionary 629 (1985). Indeed, there is very little distinction between premeditation and malice aforethought, and therefore first- and second-degree murder, when we define premeditation in terms of a “determination to kill” and malice aforethought as an “intention to kill.” 3 My second concern arises from our decisional law discussing the three elements set forth in the second phrase of NRS 200.030(1)(a). In Hern v. State, 97 Nev. 529, 635 P.2d 278 (1981), we concluded that “all three elements, willfulness, deliberation, and premeditation, must be proven beyond a reasonable doubt before an accused can be convicted of first degree murder.” Id. at 532, 635 P.2d at 280 (emphasis added). One could fairly deduce from this declaration that deliberation and premeditation DUHQRWV\QRQ\PRXVDQGHDFKPXVWEH

SURYHQVHSDUDWHO\ __________ 2

The specific language of the Kazalyn instruction is that premeditation is “a design, a determination to kill.” Kazalyn, 108 Nev. at 75, 825 P.2d at 583. The language arguably implies that a design and a determination are one and the same. Thus, the discourse in which we are engaged has become necessary. This having been said, use of the Kazalyn instruction does not warrant reversal of any prior convictions rendered in this State. This is because the use of the term “design,” regardless of the potential ambiguity, is sufficient to convey a distinction between malice and either deliberation or premeditation, especially where, as here, there is substantial evidence to support findings of deliberation and premeditation as either the majority or this concurrence have defined these terms. 3

This court has previously concluded that the terms “deliberate, premeditated, and willful,” as used in defining first-degree murder, connote the same general idea—“the intention to kill” (see Powell v. State, 108 Nev. 700, 709, 838 P.2d 921, 922 (1992), vacated on other grounds, 511 U.S. 79 (1994)), notwithstanding the fact that we have previously declared that “[m]alice is not synonymous with either deliberation or premeditation.” Hern v. State, 97 Nev. 529, 532, 635 P.2d 278, 280 (1981); see also Greene v. State, 113 Nev. 157, 168, 931 P.2d 54, 61 (1997) (“[T]he 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.”).

Ð116 Nev. 215, 245 (2000) Byford v. StateÐ Ð are not synonymous and each must be proven separately. 4 In Powell v. State, 108 Nev. 700, 838 P.2d 921 (1992), however, we noted: In [DePasquale v. State, 106 Nev. 843, 803 P.2d 218 (1990), cert. denied, 502 U.S. 829 (1991)], as in [Briano v. State, 94 Nev. 422, 581 P.2d 5 (1978)], we used the terms premeditated and deliberate as a single term. Other jurisdictions have held that the terms deliberate, premeditate and willful are a single phrase, meaning simply that the actor intended to commit the act and intended death to result. . . .

.... We have set forth the requirement for premeditation in [Briano], where we stated “[T]he state must prove that a design to kill was distinctly and rationally formed in the mind of the perpetrator, at or before the time the fatal blows were struck. . . . [I]t [does not] matter how short a time existed between the formation of the design to kill and the killing itself.” As long as the instruction on premeditation which is given to the jury comports with Briano, it is not necessary to separately define deliberateness or willfulness. Id. at 709-10, 838 P.2d at 927 (quoting Briano, 94 Nev. at 425, 581 P.2d at 7) (citations omitted); see also Williams v. State, 113 Nev. 1008, 1017, 945 P.2d 438, 443 (1997) (affirming Powell); Doyle v. State, 112 Nev. 879, 900, 921 P.2d 901, 915 (1996) (affirming Powell); Witter v. State, 112 Nev. 908, 918, 921 P.2d 886, 893 (1996) (in affirming Powell, expressly concluding that a jury instruction identical to the one given in Byford's case gave the jury an accurate definition of premeditation and deliberation, and, therefore, that it was unnecessary to provide an additional instruction defining “deliberation”). Thus, whether deliberation and premeditation must be proven separately, or whether they refer to the same reflective process whereby proof of one necessarily proves the presence of the other, has become uncertain. Accordingly, a majority of this court has concluded that some clarification of our murder jurisprudence is needed. First, because express malice means a deliberate intention to kill (see 200.020(1); Keys, 104 Nev. at 740, 766 P.2d at 272), and because a willful killing means one that is intentional (see Webster's Ninth New Collegiate Dictionary 1350 (1985) (defining “willful” as “done deliberately: Intentional”)), the statutory requirement of NRS 200.030(1)(a) that “other” first-degree murders must be perpetrated willfully is merely a reiteration of the fact that express PDOLFHLVDOZD\VDQHOHPHQWRIWKLVVXEFDWHJRU\RIILUVWGHJUHH

PXUGHU __________ 4

Compare State v. Brown, 836 S.W.2d 530, 539 (Tenn. 1992) (“In order to establish first-degree murder, the premeditated killing must also have been done deliberately, that is, with coolness and reflection.”).

Ð116 Nev. 215, 246 (2000) Byford v. StateÐ Ð malice is always an element of this subcategory of first-degree murder. Thus, if the State can only prove that the killing was done willfully and unlawfully, but cannot separately prove premeditation, the defendant is guilty of second-degree murder. Secondly, given the synonymous nature of express malice and “willfulness” as used in our murder jurisprudence, it is the presence of premeditation and deliberation that distinguishes first-degree murder from second-degree murder. We have previously concluded that “[t]here is nothing to indicate that [“premeditated” and “deliberate”] are used in law other than in their ordinary sense. Ogden v. State, 96 Nev. 258, 263, 607 P.2d 576, 579 (1980) (citing People v. Anderson, 447 P.2d 942, 948 (Cal. 1968) (recognizing that the California Legislature did not intend to give “deliberate” and “premeditated” meaning other than their ordinary dictionary meanings)). Therefore, because the word “premeditate” is defined as “to think, consider, or deliberate beforehand” (see Webster's Ninth New Collegiate Dictionary 928 (1985) (emphasis added)), I have concluded that there is no meaningful or appreciable difference between “premeditation” and “deliberation.” In doing so, I would not completely disavow this court's previous conclusion in Hern that all three elements—willfulness, deliberation, and premeditation must be present in order to prove first-degree murder. Rather, I would simply reject any implication that premeditation and deliberation must be proven as separate and distinct concepts, and conclude that proof of premeditation will also suffice as proof of deliberation, 5 and vice versa. Thirdly, premeditation is not merely an intention or “determination” to kill. The terms “willful, deliberate, and premeditated” do not connote the same general idea of an intention to kill. 6 Our acceptance of as much obscures the distinction between murders of the first and second degree because it renders premeditation synonymous with one form of malice aforethought. All three terms (willfulness, deliberation and premeditation) involve intention but, as noted above, only “willfulness” exclusively connotes an intention to kill. As terms of

art, separate and apart from willfulness, “premeditation” and “deliberation” additionally refer to DFWXDO

UHIOHFWLRQWKDWRFFXUVIRUDQ\OHQJWKRIWLPHSULRUWRWKDWLQVWDQWZKHQDQLQGLYLGXDOLVLQ SRVVHVVLRQRIDGHWHUPLQDWLRQRULQWHQWLRQWRNLOO __________ 5

The second phrase of NRS 200.030(1)(a) uses the words “willful, deliberate and premeditated.” Our cases have treated the word “deliberate” as meaning “deliberation.” As noted, I believe that deliberation as an element is subsumed within the process of premeditation. However, if the word deliberate does not mean “deliberated” or “deliberation,” but means “to do on purpose,” the term is simply a synonym for willfulness. Thus, the term “deliberate” does not as a practical matter affect the distinction between murders of the first and second degree. 6

I would clarify Powell and its progeny to the extent that they conclude the contrary.

Ð116 Nev. 215, 247 (2000) Byford v. StateÐ Ð actual reflection that occurs for any length of time prior to that instant when an individual is in possession of a determination or intention to kill. 7 That this period of reflection may be “as instantaneous as successive thoughts of the mind” is of no consequence, as such language merely instructs that the amount of time one spends premeditating and deliberating is irrelevant. Indeed, the true test is not the duration of time as much as it is the extent and quality of the reflection. 8 Thus, what matters is that there is a period of time during which the mind actually thinks upon or considers the act (i.e., premeditates and deliberates). The end result is the formation of an intention or determination to kill and an act resulting in the death of another. If this sequence occurs, the crime is first-degree murder. 9 If the defendant has not had time to think upon or consider the act (i.e., has not premeditated and deliberated), but has intentionally killed another as the “instant effect of impulse,” the crime is arguably second-degree murder. 10 __________ 7

As we stated in Payne v. State, 81 Nev. 503, 508-09, 406 P.2d 922, 925-26 (1965): To make a killing deliberate[d] as well as premeditated, it is unnecessary that the intention to kill shall have been entertained for any considerable length of time. It is enough if there is time for the mind to think upon or consider the act, and then determine to do it. If, therefore, the killing is not the instant effect of impulse—if there is hesitation or doubt to be overcome, a choice made as the result of thought, however short the struggle between the intention and the act—it is sufficient to characterize the crime as deliberate and premeditated murder. (Citation omitted.) 8

The court in State v. Ramirez, 945 P.2d 376, 380 (Ariz. 1997) stated: We conclude that the first degree murder statute has never been aimed at those who had time to reflect but did not; it has always been aimed at those who actually reflected—and then murdered. If the difference between first and second degree murder is to be maintained, premeditation has to be understood as reflection. It is fair to talk of the period of time in which reflection might occur; but it is not fair to define reflection as the period of time in which it might occur. To have meaning, the element of premeditation must describe something that defendant actually does. Just as murder requires actual killing, premeditation requires actual reflection.

9

See Briano v. State, 94 Nev. 422, 425, 581 P.2d 5, 7 (1978) (evidence of premeditation and deliberation is seldom direct, and circumstantial evidence may be taken into account to provide sufficient evidence). 10

This does not override the fact that our statutes define voluntary manslaughter as an unlawful killing that occurs “upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible” (i.e., “a serious and highly provoking injury”). NRS 200.040(2); NRS 200.050. Indeed, as we noted in State v. Salgado, 38 Nev. 413, 416-17, 150 P. 764, 765 (1915) (quoting Francis Wharton, Law of Homicide §

163 (3d ed. 1907)): [a]uthority exists in support of the proposition that implied malice and

Ð116 Nev. 215, 248 (2000) Byford v. StateÐ Ð To effectuate these points of clarification, I would depart from the majority and suggest the following jury instructions for use by the district courts in cases where defendants are charged with first-degree murder pursuant to the second phrase of NRS 200.030(1)(a): Murder is the unlawful killing of another with either express or implied malice aforethought. Malice aforethought for these purposes is the intent to kill. An individual acts with express malice when he or she unlawfully intends to kill another. Malice may be 11 implied to that individual when he or she unlawfully kills without considerable provocation or when the circumstances of the killing show an abandoned and malignant heart. Murder of the first degree is the willful, deliberate, and premeditated killing of another in an unlawful manner. All three elements—willfulness, deliberation, and premeditation—must be proven beyond a reasonable doubt before an accused can be convicted of first-degree murder. In this conWH[WWKHWHUP

³ZLOOIXO´KDVWKHVDPHPHDQLQJDVH[SUHVVPDOLFH __________ sudden passion may coexist, in which case the offense is not reduced to the grade of manslaughter. . . . “If malice existed, the crime is murder, and not manslaughter, though sudden passion coexisted and the homicide was the product of both. . . . If the provocation is inconsiderable, the law implies malice, and the homicide is murder; if it is great, malice will not be inferred, and it will be deemed to be manslaughter.” See also State v. Fisko, 58 Nev. 65, 75, 70 P.2d 1113, 1116 (1937) (“Neither slight provocation nor an assault of a trivial nature will reduce a homicide from murder to manslaughter.”). 11

NRS 200.020(2) provides that “[m]alice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.” (Emphasis added.) In Witter v. State, 112 Nev. 908, 917, 921 P.2d 886, 895 (1996), cert. denied, 520 U.S. 1217 (1997), this court approved an instruction stating that malice “may” be implied “when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.” Unfortunately, the court wrongly stated that the exact language of the instruction used at trial in Witter had been approved in Guy v. State, 108 Nev. 770, 839 P.2d 578 (1992). This court also wrongly cited NRS 200.020(2) in support of its conclusion in this regard. In point of fact, the implied malice instruction in Guy followed NRS 200.020(2), utilizing the statutory term “shall” instead of “may.” Technically, a defendant in a murder prosecution is not entitled to the instruction approved in Witter. Thus, to the extent Witter implies that “may” must be substituted for the statutory term “shall,” it was decided in error. However, I would argue that it is not error to give the instruction approved in Witter because the use of “may” instead of “shall” does not affect any due process rights. Further, the instruction approved in Witter is preferable to the statutory instruction because it clearly eliminates the need to look to other instructions to determine if the State's burden of proof has been properly articulated. See Doyle v. State, 112 Nev. 879, 900-02, 921 P.2d 901, 915 (1996).

Ð116 Nev. 215, 249 (2000) Byford v. StateÐ Ð text, the term “willful” has the same meaning as express malice. Therefore, proof that the killing was done with malice aforethought is also proof that the killing was done willfully. In determining whether the elements of willfulness, deliberation and premeditation have been satisfied beyond a reasonable doubt, you must apply the ordinary meaning a reasonable person would apply to

these terms. Premeditation and deliberation refer to the same thought process. They each refer to a period of actual reflection that occurs prior to the formation of an intention to kill. Proof of premeditation is also proof of deliberation, and vice versa. Premeditation is therefore a design, a determination to kill, distinctly formed in the mind at any moment before or at the time of the killing. Premeditation and deliberation need not be for a day, an hour or even a minute. They may be a period of time that is as instantaneous as successive thoughts of the mind. For, if the jury believes from the evidence that the act constituting the killing has been preceded by a period of premeditation and deliberation that results in the formation of an intention to kill, no matter how rapidly this period and formation of an intention to kill is followed by the act constituting the killing, it is willful, deliberate and premeditated murder. The majority notes that “[d]eliberation remains a critical element of the mens rea necessary for first-degree murder, connoting a dispassionate weighing process and consideration of consequences before acting,” and that “[i]n order to establish first-degree murder, the premeditated killing must also have been done deliberately, that is, with coolness and reflection.” The majority relies on State v. Brown, 836 S.W.2d 530, 539 (Tenn. 1992) with approval in support of this proposition. In my view, defining deliberation and premeditation in terms of an elaborate weighing process or “cold calculation” may very well define many types of premeditated murder out of existence and tacitly overrule our prior rulings on this issue in Williams and Witter. Further, although the instruction proposed by the majority does not actually require “coolness” or “cold calculation” as a condition of proof of deliberation or premeditation, the majority's language quoted above supported by the Tennessee decision in Brown will arguably require that district courts, upon request, give special jury instructions defining this category of first-degree murder in these terms. As noted by the majority, the evidence in this case is clearly sufficient to establish willfulness, deliberation, and premeditation on Byford's part. Thus, Byford's conviction should be sustained XQGHU WKH PDMRULW\

DQDO\VLVDQGWKHDQDO\VLVLQWKLVVHSDUDWHFRQFXUUHQFH Ð116 Nev. 215, 250 (2000) Byford v. StateÐ Ð under the majority analysis and the analysis in this separate concurrence. As noted above, 12 the use of the Kazalyn instruction does not mandate reversal.

____________

Ð116 Nev. 250, 250 (2000) Calloway v. City of RenoÐ Ð Ð 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

February 29, 2000

993 P.2d 1259

Appeal from district court orders granting summary judgment in a construction defects case. Second Judicial District Court, Washoe County; James A. Stone, Judge. Townhouse owners brought class action against 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 for subcontractor, and for developer and contractor on City's cross-claim for indemnity and contribution. Owners and City appealed. On rehearing, superseding its prior opinion at 113 Nev. 564, 939 P.2d 1020 (1997), the supreme court, Young, J., held that: (1) economic loss doctrine applies to construction defects cases; (2) damage to townhouses caused by allegedly defective framing of integrated structures constituted damage to the structures themselves, such that owners suffered purely economic losses for which the economic loss doctrine barred recovery; (3) overruling Charlie Brown Construction Co. Y%RXOGHU&LW\1HY __________ 12

See note 2.

Ð116 Nev. 250, 251 (2000) Calloway v. City of RenoÐ Ð v. Boulder City, 106 Nev. 497, 797 P.2d 946 (1990), foreseeability of damages plays no role with respect to the economic loss doctrine; (4) overruling Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971), townhouses were not “products,” for purposes of strict products liability; and (5) City was not an “aggrieved party” entitled to appeal. Affirmed on rehearing. [Rehearing denied October 3, 2000] Maupin, J., dissented in part. Rose, C. J., dissented. Robert C. Maddox & Associates, Reno, for Appellants/Cross-Respondents Charles Calloway, Marlene Iacometti, and other property owners of Huffaker Hills. Lemons, Grundy & Eisenberg, Reno, for Respondent/Cross-Appellant City of Reno. Beasley, Holden & Kern, Reno, for Respondents P & H Construction, Inc., Clarence Poehland and John Carl Construction Company. Erickson, Thorpe & Swainston, Ltd., and Thomas Beko, Reno, for Cross-Respondents Highland Construction, Inc., and Offenhauser and Oetjen Construction, Inc. Haefner & Enzenberger, Reno, for Cross-Respondent Offenhauser Development Company. Mortimer, Sourwine, Mousel & Sloane, Ltd., Reno, for Cross-Respondent 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. Appeal and Error. Summary judgment is reviewed de novo. 2. Appeal and Error. On appeal from a summary judgment, supreme court may be required to determine whether the law has been correctly perceived

and applied by the district court. 3. Action. In determining whether a claim sounds in contract or in tort, the pleadings and the alleged facts must be considered. 4. Contracts; Torts. “Breach of contract” may be said to be a material failure of performance of a duty arising under or imposed by agreement, while a

³WRUW´RQWKHRWKHUKDQGLVDYLRODWLRQRIDGXW\LPSRVHGE\ODZDZURQJLQGHSHQGHQWRIFRQWUDFW

Ð116 Nev. 250, 252 (2000) Calloway v. City of RenoÐ Ð “tort,” on the other hand, is a violation of a duty imposed by law, a wrong independent of contract. 5. Torts. In deciding whether a tort has been committed by a party to a contract, question to be determined is whether the actions or omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged express agreement between the parties. 6. Negligence; Torts. Economic loss doctrine serves to distinguish between tort, or duty-based recovery, and contract, or promise-based recovery, and clarifies that economic losses cannot be recovered under a tort theory. 7. Products Liability; Sales. Products liability plaintiff may not recover economic loss under theories of strict products liability or negligence, but purely economic loss may be recovered under a breach of warranty theory. 8. Negligence; Products Liability. Economic loss doctrine applies to construction defects cases. Damages sought, in tort, for economic losses from a defective building are just as offensive to tort law as damages sought for economic losses stemming from a defective product. 9. Contracts. Contract law is designed to enforce the expectancy interests created by agreement between the parties and seeks to enforce standards of quality. This standard of quality must be defined by reference to that which the parties have agreed upon. 10. Torts. Tort law is designed to secure the protection of all citizens from the danger of physical harm to their persons or to their property and seeks to enforce standards of conduct. These standards are imposed by society, without regard to any agreement. 11. Negligence; Torts. Economic loss doctrine precludes recovery for strictly economic losses in tort, regardless whether such damages are sought from an injurious product. 12. Negligence. Under the economic loss doctrine, economic losses are not recoverable in negligence absent personal injury or damage to property other than the defective entity itself. 13. Negligence. Damage to townhouses caused by allegedly defective framing of integrated structures of which townhouses were a part constituted damage to the structures themselves, such that owners of the townhouses suffered purely economic losses for which the economic loss doctrine barred recovery, despite claim that the framing was a defective product which caused “other” property damage. The alleged inferior workmanship did not implicate the overriding policy of tort law, to promote safety. 14. Negligence; Products Liability. When a heating and plumbing system damages the building as a whole, the building has injured itself, and only economic losses have occurred for purposes of the economic loss doctrine. 15. Negligence; Torts. Foreseeability of damages plays no role with respect to the applicability of the economic loss doctrine. Purely economic losses fall outVLGHWKHSXUYLHZRIWRUWUHFRYHU\HYHQLIVXFKORVVHVDUHIRUHVHHDEOH

Ð116 Nev. 250, 253 (2000) Calloway v. City of RenoÐ Ð side the purview of tort recovery, even if such losses are foreseeable; overruling Charlie Brown Construction Co. v. Boulder City, 106 Nev. 497, 797 P.2d 946 (1990). 16. Products Liability. Damage to townhouses caused by allegedly defective framing of integrated structures of which townhouses were a part constituted damage to the structures themselves, such that owners of the townhouses suffered purely economic losses as to which the doctrine of strict products liability was inapplicable. 17. Products Liability. Townhouses were not “products,” for purposes of strict products liability; overruling Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971). Restatement (Second) of Torts § 402A. 18. Products Liability. Certain products may be installed in a building and may retain their separate identities as products, without becoming an

integrated part of the structure, and in such instances, the doctrine of strict products liability could apply to the manufacturers of these distinct products, if dangerously defective. 19. Appeal and Error. City, against whom all claims were dismissed, was not an “aggrieved party” entitled to appeal the dismissal of its cross-claims for indemnity and contribution. 20. Appeal and Error. Only an aggrieved party has standing to appeal.

Before Rose, C. J., Young, Maupin, Shearing and Agosti, JJ. 1 OPINION ON REHEARING By the Court, Young, J.: On May 22, 1997, this court issued an opinion in the above-captioned appeal affirming in part, reversing in part and remanding the matter to the district court. Calloway v. City of Reno, 113 Nev. 564, 939 P.2d 1020 (1997). Respondents P & H Construction, Inc. (P & H), Clarence Poehland (Poehland), and John Carl Construction Co. (Carl) (collectively referred to as the subcontractors), petitioned this court for rehearing, and the City of Reno (the City) subsequently joined in the petition. On December 3, 1998, we granted rehearing and withdrew our opinion. We now issue this opinion in place of our prior opinion. For the reasons set forth below, we conclude that the district court properly applied the economic loss doctrine to preclude DSSHOODQWV QHJOLJHQFHFODLPVDJDLQVWWKHVXEFRQWUDFWRUVDQGWKH&LW\ __________ 1

This matter was submitted for decision prior to expansion of the court from five to seven justices on January 4, 1999. See Dow Chemical Co. v. Mahlum, 115 Nev. 13, 973 P.2d 842 (1999). Justice Maupin is successor in office to former Chief Justice Steffen, and Justice Agosti is successor in office to former Chief Justice Springer.

Ð116 Nev. 250, 254 (2000) Calloway v. City of RenoÐ Ð appellants' negligence claims against the subcontractors and the City. We further conclude that the economic loss doctrine bars appellants' claim in strict products liability, and that the district court properly determined that the structures at issue in this case are not “products” for purposes of strict products liability. Finally, we conclude that we lack jurisdiction to consider the City's cross-appeal. FACTS This class action arose from 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 action (appellants). In their original complaint, appellants asserted that their homes were built with defective roofing and siding that was responsible for extensive water damage from rain and snow. That complaint named Offenhauser Development Company, Highland Construction, Inc. (collectively referred to as the developer and contractor), and Sparks Roofing and Siding Service, Inc. (Sparks Roofing and Siding), all Nevada corporations, as defendants. Pursuant to NRCP 10(a), the complaint also named thirty fictitious individuals or entities as Doe defendants. Appellants sought recovery based upon breach of express and implied warranties, negligence, strict liability, fraud and misrepresentation. Thereafter, appellants amended their complaint four times during the next two years. The first amended complaint omitted appellants' claims for fraud and misrepresentation against the developer and contractor. Appellants' second amended complaint named the City, among others, as a defendant. The claim against the City was based upon negligent inspection of construction. In particular, appellants asserted that the City approved the construction with actual knowledge of the alleged defects. The third amended complaint added Gardner Plumbing and Heating (Gardner), and Cavallero Heating and Air Conditioning, Inc. (Cavallero), as

defendants. Additionally, the third amended complaint set forth allegations of construction defects related to roofing, framing, plumbing, and heating and air conditioning. In the interim, the developer and contractor, pursuant to NRCP 14(a), filed a first amended third party complaint naming P & H and Poehland as third party defendants. Ultimately, all third party claims and/or cross-claims filed by the developer and contractor were dismissed without prejudice pursuant to the stipulation of the parties. Subsequently, appellants moved the district court for an order permitting the amendment of the complaint to name the subcontractors in place of fictitiously named Doe defendants as HQWLWLHVUHVSRQVLEOH

IRUWKHIUDPLQJRIWKHWRZQKRXVHV Ð116 Nev. 250, 255 (2000) Calloway v. City of RenoÐ Ð entities responsible for the framing of the townhouses. The district court granted appellants' motions, and thereafter, appellants filed their fourth, and final, amended complaint adding the subcontractors as defendants. The claims against the subcontractors were based on defective framing. Appellants sought recovery against the subcontractors on theories of breach of express and implied warranties, negligence, and strict liability. The subcontractors moved the district court for summary judgment on appellants' claims against them. The district court, applying the economic loss doctrine, granted the subcontractors' motion for summary judgment after determining that recovery for pure economic loss was not appropriate in negligence and that plaintiffs had to rely on their contractual remedies to recover for economic losses. Accordingly, the district court limited appellants' claims against the subcontractors and the City to recovery in contract, or for personal injury or harm to property in tort, and concluded that the repairs and replacement costs appellants sought to recover in tort were economic losses not amenable to tort recovery. In addition, the district court summarily dismissed appellants' strict liability claims on the ground that a townhouse is not a product. The district court explained that this court “has not yet pushed Nevada into the fold of those few jurisdictions [that] recognize strict liability for recovery of economic loss” and the district court declined to “lead the way.” The district court also summarily dismissed sixty-five members of appellants' class based upon the statutes of repose. Shortly thereafter, appellants settled their claims against the developer and contractor, and Sparks Roofing and Siding in the amount of $826,500.00. Appellants also settled their claims against Gardner and Cavallero in the amount of $225,000.00. Appellants then voluntarily dismissed their warranty claims and claims for damage to personal property against the subcontractors. In addition to the claims brought by appellants, the City cross-claimed against the developer and contractor for indemnity and contribution. The developer and contractor moved for summary judgment on the City's cross-claims, and the district court granted the motion. In this appeal, appellants challenge the district court's use of the economic loss doctrine to preclude their negligence claims against the subcontractors and the City. Appellants also take issue with the district court's determination that the doctrine of strict liability does not apply to the townhouses at issue here. Additionally, appellants contend that the district court misinterpreted and improperly applied the statutes of repose retroactively to bar the claims of sixty-five appellants whose homes were substantially completed before October 30, 1981. The City has also ILOHGDQDSSHDODQGFKDOOHQJHVWKHGLVWULFWFRXUW VGLVPLVVDORILWV

FURVVFODLPIRULQGHPQLW\DQGFRQWULEXWLRQDJDLQVWWKHGHYHORSHUDQGFRQWUDFWRU Ð116 Nev. 250, 256 (2000) Calloway v. City of RenoÐ Ð filed an appeal and challenges the district court's dismissal of its cross-claim for indemnity and contribution against the developer and contractor. DISCUSSION I. Standard of review [Headnotes 1, 2]

Under NRCP 56(c), summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Butler v. Bogdanovich, 101 Nev. 449, 705 P.2d 662 (1985). A summary judgment is reviewed de novo. Dermody v. City of Reno, 113 Nev. 207, 931 P.2d 1354 (1997); see also SIIS v. United Exposition Services Co., 109 Nev. 28, 846 P.2d 294 (1993) (summarizing authority for the conclusion that matters of law are reviewed de novo). On appeal from a summary judgment, this court may “be required to determine whether the law has been correctly perceived and applied by the district court.” Mullis v. Nevada National Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982). II. Application of the economic loss doctrine A. Overview of the economic loss doctrine [Headnotes 3-5] “The economic loss doctrine marks the fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby encourages citizens to avoid causing physical harm to others.” Sidney R. Barrett, Jr., Recovery of Economic Loss in Tort for Construction Defects: A Critical Analysis, 40 S.C. L. Rev. 891, 894 (1989) [hereinafter Construction Defects]. In determining whether a claim sounds in contract or in tort, the pleadings and the alleged facts must be considered. A breach of contract may be said to be a material failure of performance of a duty arising under or imposed by agreement. A tort, on the other hand, is a violation of a duty imposed by law, a wrong independent of contract. Torts can, of course, be committed by parties to a contract. The question to be determined . . . is whether the actions or omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged express agreement between the parties. Bernard v. Rockhill Dev. Co., 103 Nev. 132, 135, 734 P.2d 1238, 1240 (1987) (quoting Malone v. University of Kansas Medical Center, 552 P.2d 885, 888 (Kan. 1976)).

Ð116 Nev. 250, 257 (2000) Calloway v. City of RenoÐ Ð Under the economic loss doctrine “there can be no recovery in tort for purely economic losses.” American Law of Products Liability (3d) § 60:39, at 69 (1991). Purely economic loss is generally defined as “the loss of the benefit of the user's bargain . . . including . . . pecuniary damage for inadequate value, the cost of repair and replacement of the defective product, or consequent loss of profits, without any claim of personal injury or damage to other property.” Id. § 60:36, at 66. The economic loss doctrine arose, in large part, from the development of products liability jurisprudence. 2 Early American courts embraced the doctrine of caveat emptor, under which a seller was not liable to the buyer in contract or tort for product defects, unless the seller engaged in fraud or provided an express guarantee. Express and implied warranty theory later developed within the parameters of contract law. See W. Page Keeton et al., Prosser and Keeton on the Law on Torts § 95A, at 679-80 (5th ed. 1984) [hereinafter Prosser and Keeton]. Thus, liability for economic losses was viewed as contractual, and privity of contract was required. Additionally, fairly negotiated disclaimers on liability were enforceable. Id. at 681. With the subsequent introduction of negligence liability for defective products, buyers could recover from sellers for personal injury and later, property damage. Id. § 96, at 681-82 (citing MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916)). Negligence was often difficult to prove, however, and courts viewed the manufacturer as being in a better position to pay for injuries. Consequently, courts created the doctrine of strict liability of warranty. After some preliminary decisions from other jurisdictions, the New Jersey Supreme Court decided Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960), in which both an automobile manufacturer and dealer were held liable to the purchaser's wife on a theory of implied warranty of safety. “What followed was the most rapid and altogether spectacular overturn of an established rule in the entire history of the law of torts.” Prosser and

Keeton § 97, at 690. Under the strict liability of warranty doctrine, the seller became the insurer of the ultimate user's safety, and the “citadel of privity” was eradicated. Id. In other words, although recovery was based on warranty, which was intimately connected to contract law, the existence of a contract was not necessary for recovery. __________ 2

As pointed out by one commentator, “[j]udicial hostility to the use of tort theory to recover purely economic losses predates the twentieth-century battle over product liability. This hostility was motivated primarily by the fear of mass litigation and the concern that traditional tort concepts were not capable of providing clear limitations on potentially limitless liability.” Construction Defects at 898.

Ð116 Nev. 250, 258 (2000) Calloway v. City of RenoÐ Ð Since such liability far exceeded traditional contractual liability and created confusion between the law of contracts and torts, as well as complications with the Uniform Commercial Code, courts eventually abandoned the doctrine in favor of strict liability in tort. Id. § 99, at 692-94 (citing Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963)). [Headnote 6] Because of this doctrinal development, and the resulting confusion created between tort and warranty theories, the economic loss doctrine gained recognition and support. The doctrine serves to distinguish between tort, or duty-based recovery, and contract, or promise-based recovery, and clarifies that economic losses cannot be recovered under a tort theory. See Seely v. White Motor Company, 403 P.2d 145 (Cal. 1965) (concluding that if a defective product causes purely economic harm, tort liability is precluded, in order to preserve the law of warranty). As noted by the United States Supreme Court, “[p]roducts liability grew out of a public policy judgment that people need more protection from dangerous products than is afforded by the law of warranty. It is clear, however, that if this development were allowed to progress too far, contract law would drown in a sea of tort.” East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 866 (1986) (citations omitted). The Supreme Court recognized that maintaining the distinction between contract and tort is consistent with the different purposes behind these theories of recovery: “The distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss is not arbitrary and does not rest on the ‘luck' of one plaintiff in having an accident causing physical injury. The distinction rests, rather, on an understanding of the nature of the responsibility a manufacturer must undertake in distributing his products.” . . . The tort concern with safety is reduced when an injury is only to the product itself. . . . Damage to a product itself is most naturally understood as a warranty claim. Such damage means simply that the product has not met the customer's expectations, or, in other words, that the customer has received “insufficient product value.” Id. at 871-72 (quoting Seely, 403 P.2d at 151) (other citations omitted). [Headnote 7] This court, along with most other jurisdictions, has applied the economic loss doctrine in products liability actions and has recRJQL]HG WKH HFRQRPLF ORVV GRFWULQH V GLVWLQFWLRQ EHWZHHQ WRUW DQG

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Ð116 Nev. 250, 259 (2000) Calloway v. City of RenoÐ Ð

ognized the economic loss doctrine's distinction between tort and warranty: “It is true that a plaintiff may not recover economic loss under theories of strict products liability or negligence. However, purely economic loss may be recovered under a breach of warranty theory.” Central Bit Supply v. Waldrop Drilling, 102 Nev. 139, 140-41, 717 P.2d 35, 36-37 (1986) (citation omitted); see generally Arco Prods. Co. v. May, 113 Nev. 1295, 948 P.2d 263 (1997); Nat'l Union Fire Ins. v. Pratt and Whitney, 107 Nev. 535, 815 P.2d 601 (1991); Bernard, 103 Nev. at 135, 734 P.2d at 1240; American Law of Products Liability (3d) § 60:39, at 70. We have also applied or discussed the economic loss doctrine in other contexts as well. For instance, in Local Joint Executive Board v. Stern, 98 Nev. 409, 651 P.2d 637 (1982), we determined that employees of the MGM Grand Hotel could not recover, under theories of negligence and strict liability, economic losses in the form of lost wages and employment benefits. Later, in Oak Grove Investors v. Bell & Gossett Co., 99 Nev. 616, 625, 668 P.2d 1075, 1080 (1983), we noted that an apartment complex's defective heating and plumbing system, which caused substantial leakage of water throughout the complex and damage to the apartments, did not cause “purely economic losses.” We therefore suggested, in dicta, that the action could proceed on claims of negligence and strict liability. Id., 668 P.2d at 1080-81. B. Application of the economic loss doctrine in construction defects cases [Headnote 8] Oak Grove represents the only case in which this court considered whether the economic loss doctrine might preclude tort recovery for damages to a building. Even though Oak Grove suggested that the economic loss doctrine should be considered in such circumstances, this court later stated, in dictum, that the economic loss doctrine should not apply to construction defects cases: [T]he economic loss doctrine was never intended to apply to construction projects that reflect the products and efforts of so many different manufacturers, laborers, crafts, supervisors and inspectors in the creation of an essentially permanent place of habitation. On the other hand, as will be noted in greater detail hereafter, commercial products that may, for whatever reason, injure themselves are readily insured and suitable for inclusion within the economic loss doctrine. Pratt and Whitney, 107 Nev. at 539, 815 P.2d at 603. Pratt and Whitney involved litigation over damages to an airplane and had nothing to do with building construction. As the dissent aptly QRWHG³>Z@KLOHWKLVPD\EH

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Ð116 Nev. 250, 260 (2000) Calloway v. City of RenoÐ Ð noted, “[w]hile 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 issue is] properly before this court.” Id. at 546-47, 815 P.2d at 608 (Rose, J., dissenting). Although the Pratt and Whitney dictum cogently points out why construction projects should not be considered “products” for the purpose of products liability, this dictum unfortunately blurs the distinction between the economic loss doctrine and products liability. As stated previously, the economic loss doctrine arose, in large part, from the development of products liability, but its application is broader and serves to maintain a distinction between contract and tort principles. See Ramerth v. Hart, 983 P.2d 848, 851 (Idaho 1999) (stating that the economic loss doctrine “applies to negligence in general; its application is not restricted to products liability cases”). [Headnotes 9, 10] “The crux of the doctrine is . . . the premise that economic interests are protected, if at all, by contract principles, rather than tort principles.” Construction Defects at 895. Contract law is designed to enforce the

expectancy interests created by agreement between the parties and seeks to enforce standards of quality. “This standard of quality must be defined by reference to that which the parties have agreed upon.” Crowder v. Vendendeale, 564 S.W.2d 879, 882 (Mo. 1978), overruled on other grounds by Sharp Bros. Contracting Co. v. American Hoist & Derrick Co., 703 S.W.2d 901 (Mo. 1986). In contrast, tort law is designed to secure the protection of all citizens from the danger of physical harm to their persons or to their property and seeks to enforce standards of conduct. These standards are imposed by society, without regard to any agreement. Tort law has not traditionally protected strictly economic interests related to product quality—in other words, courts have generally refused to create a duty in tort to prevent such economic losses. See Construction Defects at 894-95, 902. [Headnote 11] As set forth above, the economic loss doctrine serves to define the scope of duty and “shield[s] a defendant from unlimited liability for all of the economic consequences of a negligent act, particularly in a commercial or professional setting, and thus . . . keep[s] the risk of liability reasonably calculable.” Stern, 98 Nev. at 411, 651 P.2d at 638. Permitting plaintiffs to recover in tort for purely economic losses would result in open-ended liability, since it is virtually impossible to predict all the economic consequences of a given act. See State of La. ex rel. Guste v. M/V Testbank, )GWK&LU 

Ð116 Nev. 250, 261 (2000) Calloway v. City of RenoÐ Ð 752 F.2d 1019, 1022 (5th Cir. 1985). Thus, the economic loss doctrine precludes recovery for strictly economic losses in tort—regardless whether such damages are sought from an injurious product. This court has applied the economic loss doctrine outside of the products liability context, see Stern, 98 Nev. at 410-11, 651 P.2d at 638, and has suggested that it could apply with respect to damages to a dwelling. See Oak Grove, 99 Nev. at 625, 668 P.2d at 1080. Additionally, the economic loss doctrine has been specifically applied by other jurisdictions in construction defects cases. See, e.g., Nastri v. Wood Bros. Homes, Inc., 690 P.2d 158 (Ariz. Ct. App. 1984) (applying the economic loss doctrine to a negligent construction action against builder); 2314 Lincoln Park West Condo. v. Mann, 555 N.E.2d 346 (Ill. 1990) (applying the economic loss doctrine to an architectural malpractice action); Atherton Condo. Bd. v. Blume Dev., 799 P.2d 250 (Wash. 1990) (applying the economic loss doctrine to a negligent construction claim). We conclude that damages sought, in tort, for economic losses from a defective building are just as offensive to tort law as damages sought for economic losses stemming from a defective product. The Florida Supreme Court has fittingly recognized that the economic loss doctrine must be considered in construction defects cases: Buying a house is the largest investment many consumers ever make, and homeowners are an appealing, sympathetic class. If a house causes economic disappointment by not meeting a purchaser's expectations, the resulting failure to receive the benefit of the bargain is a core concern of contract, not tort, law. There are protections for homebuyers, however, such as statutory warranties, the general warranty of habitability, and the duty of sellers to disclose defects, as well as the ability of purchasers to inspect houses for defects. Coupled with homebuyers' power to bargain over price, these protections must be viewed as sufficient when compared with the mischief that could be caused by allowing tort recovery for purely economic losses. Casa Clara v. Charley Toppino and Sons, 620 So. 2d 1244, 1247 (Fla. 1993) (citations and footnotes omitted). Accordingly, our Pratt and Whitney dictum notwithstanding, we conclude that the economic loss doctrine applies to construction defects cases. 3 __________ 3

We note that our dissenting colleague would create an absolute exception to the economic loss doctrine for construction defects cases, at least in the residential context. However, any attempt to exempt a certain type of case from the doctrine's application, without analyzing the policy rationales under-

Ð116 Nev. 250, 262 (2000) Calloway v. City of RenoÐ Ð C. Appellants' negligence claim against the subcontractors [Headnotes 12, 13] With respect to the construction industry, courts have recognized negligence actions brought by real property owners for personal injury and property damage. See generally Edie Lindsay, Strict Liability and the Building Industry, 33 Emory L.J. 175, 201-02 (1984); see also Woodward v. Chirco Constr. Co., 687 P.2d 1269 (Ariz. 1984); Cosmopolitan Homes, Inc., v. Weller, 663 P.2d 1041 (Colo. 1983); Theis v. Heuer, 280 N.E.2d 300 (Ind. 1972). Under the economic loss doctrine, however, economic losses are not recoverable in negligence absent personal injury or damage to property other than the defective entity itself. See Central Bit Supply, 102 Nev. at 140-41, 717 P.2d at 36-37; Stern, 98 Nev. at 410-11, 651 P.2d at 638; see generally American Law of Products Liability (3d) § 60:52, at 90. Appellants contend that the district court erroneously dismissed their negligence claim against the subcontractors based upon the economic loss doctrine because a defective “product,” the framing, caused “other” property damage—namely, water intrusion, damage to flooring and ceilings, and structural and wood decay—thereby rendering the economic loss doctrine inapplicable. We disagree. In Pratt and Whitney, 107 Nev. at 539, 815 P.2d at 603, we determined that an airplane engine that failed and caused the plane to crash damaged only the product (airplane) itself, and therefore, the economic loss doctrine barred recovery in tort. In concluding that a component part of the airplane injured the integrated product and caused only economic losses, our Pratt and Whitney decision relied on East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858 (1986). There, the U.S. Supreme Court determined that component parts of a product cannot cause “other property damage” compensable in tort: __________ lying the doctrine, and without considering the very real distinctions between the policies governing recovery in contract and tort, necessarily shifts the focus to a particular plaintiff or group of plaintiffs. Such an approach undermines the very purpose of the economic loss doctrine—to provide a boundary between contract law and tort law—and results in outcome-determinative decisions that may have no analytical consistency. Such decision making will inevitably blur and potentially destroy the distinctions between these two fundamentally different civil remedies. In our view, the more reasoned method of analyzing the economic loss doctrine is to examine the relevant policies in order to ascertain the proper boundary between the distinct civil law duties that exist separately in contract and tort. In the case at bar, permitting tort recovery for economic losses from construction defects would create a general, societally imposed duty on the part of builders and developers to avoid such losses. These losses are not properly addressed by tort law, which has as its underlying policy the promotion of safety. Instead, such harm is paradigmatically addressed by the policies underlying contract law—to enforce standards of quality as defined by the parties' contractual relationships.

Ð116 Nev. 250, 263 (2000) Calloway v. City of RenoÐ Ð [I]n the traditional “property damage” cases, the defective product damages other property. . . . “Since all but the simplest machines have component parts, [a contrary] holding would require a finding of ‘property damage' in virtually every case where a product damages itself. Such a holding would eliminate the distinction between warranty and strict products liability.” Northern Power & Engineering Corp. v. Caterpillar Tractor Co., 623 P.2d 324, 330 (Alaska 1981). . . . Obviously, damage to a product itself has certain attributes of a products-liability claim. But the injury suffered—the failure of the product to function properly—is the essence of a warranty action, through which a contracting party can seek to recoup the benefit of its bargain.

Id. at 867-68, quoted, in part, with approval in Pratt and Whitney, 107 Nev. at 540, 815 P.2d at 604. Thus, we have unequivocally concluded, with respect to factory-assembled products, that when an integral component injures the rest of the product, only economic loss has occurred. Determining whether part of a structure has caused economic loss or property damage is analytically more difficult than with factory-assembled products. As discussed below, buildings generally represent the cooperative work of a variety of parties at different times, and each building may involve unique materials and methods, as well as an original design. Additionally, buildings, because of their long life span, are subject to remodeling and other changes, which may involve additional designs, laborers and materials. In Oak Grove, 99 Nev. at 625, 668 P.2d at 1080-81, we suggested, in dictum, that the owner of an apartment complex, who sued the manufacturer of fittings used in the complex's plumbing and heating system, had stated causes of action in negligence and strict liability. The fittings had allegedly increased water velocity beyond safe limits and caused extensive erosion, corrosion and leakage throughout the complex. Id. at 619, 668 P.2d at 1077. Our dictum stated that the owners were not seeking to recover purely economic losses. Id. at 625, 668 P.2d at 1080. In our subsequent Pratt and Whitney opinion, we distinguished Oak Grove as follows: In Oak Grove, . . . there was little factual basis for invoking the economic loss doctrine. Indeed, rather than receding from our rulings in Stern and Central Bit Supply, we concluded, by way of dictum, that the factual scenario in Oak Grove did not implicate the economic loss doctrine because it involved a defective heating and plumbing system that caused water leakage and damage throughout the apartment

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Ð116 Nev. 250, 264 (2000) Calloway v. City of RenoÐ Ð complex. It was thus clear that, in contrast to the instant case, Oak Grove did not involve a single integrated product that “injured itself.” The apartment complex there consisted of a number of separate apartment units that were each self-contained and constructed for the separate occupancy of the end users. Pratt and Whitney, 107 Nev. at 538-39, 815 P.2d at 603. [Headnote 14] Oak Grove did involve an entire apartment complex with separate apartment units; nevertheless, these units were part of the larger structure, and the heating and plumbing system served the entire complex. Although buildings may involve a more complicated system of “components,” we do not discern a meaningful analytical difference between an airplane's engine and a building's heating and plumbing system. Both an airplane's engine and a building's heating and plumbing system are necessary and integrated parts of the greater whole; additionally, both are themselves comprised of smaller components. Consequently, when a heating and plumbing system damages the building as a whole, the building has injured itself and only economic losses have occurred. We therefore disapprove of our dictum in Oak Grove, which stated that the leaky fittings had not caused purely economic losses. Other jurisdictions have concluded that a defective building creates only economic loss, even if the particular defect causes damage to other parts of the structure. See, e.g., Chicago Heights Venture v. Dynamit Nobel of America, 782 F.2d 723 (7th Cir. 1986) (holding roof material that failed during windstorm, resulting in leaks, was not legally significant, and only economic losses were at issue); Nastri v. Wood Bros. Homes, Inc., 690 P.2d 158 (Ariz. Ct. App. 1984) (holding cracks in kitchen floor, vinyl flooring, family room and bedroom, and buckling of the roof, cracked bricks and joists, all involved damage to the structure itself; therefore, only economic losses were presented and owners could not sue in tort); Danforth v. Acorn Structures, Inc., 608 A.2d 1194 (Del. 1992) (holding homeowner who brought tort action against seller of building kit for negligent design could not recover because deterioration of windows, door frames and exterior siding was strictly economic loss); Casa Clara v. Charley Toppino and Sons, 620 So. 2d 1244 (Fla. 1993) (holding homeowners could not recover

in tort for allegedly defective concrete that cracked and broke off); Redarowicz v. Ohlendorf, 441 N.E.2d 324 (Ill. 1982) (holding owner of home who sought recovery for costs of repair and replacement for defectively constructed chimney, wall and patio suffered only economic losses QRW UHFRYHUDEOH LQ WRUW EHFDXVH

KRPHRZQHUDOOHJHGRQO\TXDOLWDWLYHGHIHFWV Ð116 Nev. 250, 265 (2000) Calloway v. City of RenoÐ Ð not recoverable in tort because homeowner alleged only qualitative defects; inferior workmanship that leads to eventual deterioration is not properly addressed by tort law); Chenango C. Indus. D.A. v. Lockwood Greene E., 494 N.Y.S.2d 832 (1985) (holding building owners could not sue roofing material manufacturer in tort for cracks, splits and leaks in the roof because owners suffered only economic losses); American Towers Owners v. CCI Mechanical, 930 P.2d 1182 (Utah 1996) (holding condominium association could not pursue negligence claim against contractor and subcontractors for economic losses, which included repair costs and diminution of property values, plumbing problems, including pipe breaks and leaks and pressure loss and failures, as well as substandard components). 4 Here, the townhouses are part of larger, integrated structures, and the framing was an integral component of these structures. The damage caused by the allegedly defective framing therefore constituted damage to the structures themselves—no “other” property damage resulted, and appellants suffered purely economic losses. Because of the alleged construction defects appellants failed to receive the benefit of their bargains; the defects resulted in a lower standard of quality than that expected. Such inferior workmanship, which leads to building deterioration, is not properly addressed by tort law. See Redarowicz, 441 N.E.2d at 327. In such circumstances, the overriding policy of tort law, to promote safety, is not implicated. We therefore discern no reason to impose, in tort law, a general societal duty to prevent such economic losses. [Headnote 15] Appellants further attempt to overcome the economic loss doctrine limitation on tort actions by asserting that this court should apply the foreseeability exception to the economic loss rule. According to appellants, the “[d]amage from defective construction and the repair costs to correct the defects are foreseeable and determinable with relative certainty.” Previously, in Stern, we were urged to adopt a foreseeability exception to the economic loss doctrine; we concluded, however, that “[t]he foreseeability of economic loss, even when modified by other factors, is a standard that sweeps too broadly in a professional or commercial context, portending liability that is socially harmful in its potential scope and uncertainty.” Stern, 98 Nev. at 411, 651 P.2d at 638. __________ 4

We are aware that other courts have concluded that a defective part of a building can cause damage to “other property” cognizable in tort. See, e.g., Lamb v. Georgia Pacific Corp., 392 S.E.2d 307 (Ga. Ct. App. 1990); Kristek v. Catron, 644 P.2d 480 (Kan. Ct. App. 1982); Board of Education v. A, C, and S, Inc., 546 N.E.2d 580 (Ill. 1989); Northridge Co. v. W.R. Grace and Co., 471 N.W.2d 179 (Wis. 1991). We do not find these cases analytically persuasive, however.

Ð116 Nev. 250, 266 (2000) Calloway v. City of RenoÐ Ð Subsequently, in Charlie Brown Construction Co. v. Boulder City, 106 Nev. 497, 797 P.2d 946 (1990), we considered a situation in which the subcontractors on a subdivision project approved by the City brought an action against the City to recover for unpaid work following the subdivider's default. One of the claims for relief was that the City negligently released funds deposited by the subdivider and failed to require the subdivider to post a payment bond as mandated by city ordinance. On appeal, the City argued that appellants suffered only economic losses, and therefore, the negligence claim was barred by the economic loss doctrine. We disagreed and stated that

[t]his case is readily distinguishable from the economic loss cases we have decided. . . . .... Both Stern and Central Bit are cases where individuals and entities who suffered damage to their economic expectancies because of allegedly defective products sought recovery from the parties participating in the supplying of the product. As we explained in Central Bit, this rule is really the seller foreseeability rule for consequential damages first enunciated in Hadley v. Baxendale, 156 Eng. Rep. 145 (1854). [Here, appellants'] injuries were not caused by a faulty product. They are not third parties to an injury or tort seeking recovery for derivative harm. [Appellants] are directly injured parties seeking direct recovery from the tortfeasor. It is not consequential damages they seek but direct damages from the failure to perform a mandatory act. . . . Additionally, although appellants did not suffer property injury in the more traditional tort sense in which we generally view the matter, it is not at all clear that they did not suffer an injury to property. They certainly suffered injury to their respective property interests in the amount of their unpaid claims when they performed labor and added materials to the City's land. Also, given the context of the dispute, it would be disingenuous for the City to claim that appellants' injuries were unforeseeable. . . . As the purely economic recovery rule is bound up in foreseeability, the rule enunciated in Stern and Central Bit is simply inapplicable to this case. Charlie Brown, 106 Nev. at 507-09, 797 P.2d at 952-53 (footnote omitted). Unfortunately, Charlie Brown failed to recognize that the damages at issue were strictly economic losses, not cognizable in tort. No physical injury to persons or property existed. Moreover, the policy rationale supporting the imposition of damages for negliJHQFHLQWRUWZDVQRWWULJJHUHG²

Ð116 Nev. 250, 267 (2000) Calloway v. City of RenoÐ Ð gence in tort was not triggered—this court's conclusion that the subcontractors had stated a cause of action in tort did not promote the goal of safety. Further, although Charlie Brown suggests that the economic loss doctrine's application turns on foreseeability, this notion was expressly disapproved in Stern. We now reiterate that foreseeability of damages plays no role with respect to the economic loss doctrine. Purely economic losses fall outside the purview of tort recovery, even if such losses are foreseeable. As discussed above, the doctrine's application turns on the type of damages at issue, and the policies underlying recovery in tort and contract. Accordingly, we overrule Charlie Brown with respect to its analysis and application of the economic loss doctrine, and we reject appellants' argument that the foreseeability exception to the economic loss doctrine should be adopted. Based upon the foregoing discussion, we conclude that the district court properly applied the economic loss doctrine to preclude appellants' negligence claim against the subcontractors. D. Appellants' negligence claim against the City In their complaint for negligence against the City, appellants assert that the City approved the construction of the townhouses with full knowledge of the defects alleged, and failed to act reasonably after learning of the alleged defects by not requiring the contractor to comply with the applicable building codes. The district court precluded appellants' negligence claim against the City under the economic loss doctrine. Specifically, the district court found that appellants' claims against the City were all based on negligence, and that appellants did not allege any personal injury or property damage, but instead sought to recover damages for costs of repair and/or replacement to the townhouses. As explained previously, under the economic loss doctrine there can be no recovery in tort for purely economic loss. Additionally, although a cause of action for an intentional tort is not precluded under the economic loss doctrine, see Stern, 98 Nev. at 411, 651 P.2d at 638; Construction Defects at 892 n.2, appellants did not plead facts to support an intentional tort. See Tahoe Village Homeowners v. Douglas County, 106 Nev. 660, 799 P.2d 556 (1990). Accordingly, we conclude that the district court properly dismissed appellants' claim against the City.

E. Appellants' strict liability claims against the subcontractors and the City [Headnote 16] The district court concluded that appellants could not pursue their strict liability claims against the subcontractors and the City because a house is not a “product” for strict liability purposes DQG EHFDXVH

VXFKFODLPVDUHSUHFOXGHGE\WKHHFRQRPLFORVVGRFWULQH Ð116 Nev. 250, 268 (2000) Calloway v. City of RenoÐ Ð and because such claims are precluded by the economic loss doctrine. Appellants contend that they had no meaningful opportunity to discover the framing deficiencies and that they were required to rely on the framers' “superior and exclusive” knowledge. We explained in Stern, 98 Nev. at 411, 651 P.2d at 638, that “[t]he 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.” See also May, 113 Nev. at 1299 n.1, 948 P.2d at 266 n.1; Central Bit Supply, 102 Nev. at 140-41, 717 P.2d at 36. As discussed above, appellants seek to recover purely economic loss with respect to the defective townhouses. Consequently, the district court properly dismissed their strict liability claims. [Headnote 17] Moreover, we agree with the district court's conclusion, in this instance, that the townhouses are not “products” for purposes of strict products liability. The Restatement of Torts (Second) section 402A defines strict liability as follows: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product or entered into any contractual relation with the seller. The doctrine of strict products liability developed from judicial concerns about a plaintiff's ability to prove a remote manufacturer's or seller's negligence, to spread the costs of damage from dangerously defective products to the consumer by imposing them on the manufacturer or seller, and to promote safety by eliminating the negligence requirement. See generally Prosser and Keeton § 98, at 692-93. Some courts have concluded that a building can constitute a “product” under strict products liability. See, e.g., Blagg v. Fred Hunt Co., 612 S.W.2d 321 (Ark. 1981) (stating that “product” DSSOLHVWRDKRXVHMXVW

DV LW DSSOLHV WR DQ DXWRPRELOH REOLJDWLRQ RI VHOOHU RU PDQXIDFWXUHU LV RQH RI HQWHUSULVH OLDELOLW\  Ð116 Nev. 250, 269 (2000) Calloway v. City of RenoÐ Ð applies to a house just as it applies to an automobile; obligation of seller or manufacturer is one of enterprise liability); Miller v. Los Angeles County Flood Control District, 505 P.2d 193 (Cal. 1973) (ruling that the doctrine of strict products liability applied to homes, since they can be defective products); see generally

Annotation, Recovery, Under Strict Liability in Tort, for Injury or Damage Caused by Defects in Building or Land, 25 A.L.R. 4th 353, 365-66 (1983) [hereinafter Defects in Building]. Other courts however, have concluded that strict products liability does not apply to buildings. In reaching their conclusions, these courts have distinguished the policies underlying strict products liability from those involved in the situation where a house or building is defective. More specifically, these courts have recognized that in the construction context, tracing a defect to a manufacturer or supplier and locating that entity generally poses no significant problem, unlike the situation with the remote manufacturer of a product that travels through interstate commerce. Additionally, these courts have pointed out that a builder cannot easily limit his liability by express warranties in disclaimers and that the purchaser of a building has the opportunity to make a meaningful inspection of the property at issue. See Defects in Building at 366-67, and cases cited therein. Other commentators have provided additional reasons why construction products should not be subject to strict liability: The uncritical application of the strict tort liability doctrine . . . disregards some very real differences between mass-produced goods and buildings and their respective methods of production. The raising of a building and the assembly-line manufacturing of a product are not analogous processes. From start to finish, the construction of a building depends on the cooperative interaction of a number of independent parties. .... [M]ost buildings are one-of-a-kind, requiring methods and materials that change with each project. The architect cannot work out design weaknesses in a series of prototypes, which are built but never put on the market, as is often done with manufactured goods. Neither can the contractor test a variety of method and material combinations before putting up the final structure. Even identical model subdivision homes are subject to the vagaries of subsurface soil conditions. . . . Furthermore, in construction work the project is generally designed by one independent firm and built by another. The consistent interplay between designer and builder, usually present in the manufacturing industry, is absent in the construction industry. . . .

Ð116 Nev. 250, 270 (2000) Calloway v. City of RenoÐ Ð Another major distinction between manufactured goods and buildings is that normally a building is put up at the direction of the owner/developer, and if his needs change, the final product may be quite different from that shown in the original plans. . . . A final difference between buildings and manufactured goods [is that] [b]uildings have significantly longer expected useful life than do other products, which warrants different standards of maintenance and repair. Edie Lindsay, Strict Liability and the Building Industry, 33 Emory L.J. 175, 184-91 (1984). In Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971), we considered whether a contractor who had performed remodeling work on a home could be subject to strict liability in tort. The contractor had installed a gas line to a new water heater, and the gas line had a leaky fitting. The leak caused a fire that damaged the house and its contents. After the district court dismissed the homeowners' strict liability and warranty claims, the homeowners appealed. On appeal, this court noted that strict liability had been applied to buildings: As in the application of the doctrine to cases where injury was caused by foodstuffs, automobiles, medicine and others, strict liability has been applied to homes or builders. The nature of the product is such that superior and exclusive knowledge in the builder or fabricator is called for and he therefore must bear the responsibility of its quality within reasonable limits. Id. at 207, 484 P.2d at 575. We then explained that the allegedly defective product was that part of the gas system added onto the

original system by the contractor. We concluded that a “leaky fitting comes within the definition of a defective product” and “that [the contractor] must be said to have manufactured and sold a ‘product' so as to bring into operation the doctrine of strict liability.” Id. at 208, 484 P.2d at 576. [Headnote 18] The contractor who installed the gas line fitting in Worrell should not have been subject to the doctrine of strict products liability. As set forth above, one is strictly liable for damages from a dangerously defective product only if one is a seller “engaged in the business of selling such a product.” See Restatement (Second) of Torts § 402A (1965). Although a contractor may, as part of a construction or remodeling project, install certain products, a contractor, without doing more, is not engaged in the busiQHVVRI³PDQXIDFWXULQJ´RUVHOOLQJ

VXFKSURGXFWVDQGWKHUHIRUHGRHVQRWFRPHZLWKLQWKHDPELWRIVHFWLRQ$ Ð116 Nev. 250, 271 (2000) Calloway v. City of RenoÐ Ð ness of “manufacturing” or selling such products and therefore does not come within the ambit of section 402A. Consequently, we overrule Worrell with respect to its application of strict products liability. 5 For the reasons set forth above, we conclude that the district court properly determined that appellants' strict liability claims were not viable. 6 III. The City's cross-appeal [Headnotes 19, 20] The City filed a cross-appeal contending that the district court erred in dismissing its cross-claims against the developer and contractor for indemnity and contribution. We conclude that we lack jurisdiction to consider the City's cross-appeal. Only an aggrieved party has standing to appeal. See NRAP 3A(a); Valley Bank of Nevada v. Ginsburg, 110 Nev. 440, 446, 874 P.2d 729, 734 (1994). The district court granted the City's motion for summary judgment and dismissed all of appellants' claims against the City. Because the City prevailed in the district court, the City is not an aggrieved party. We therefore dismiss the City's cross-appeal for lack of jurisdiction. 7 CONCLUSION Based upon the discussion above, we affirm the district court's orders dismissing appellants' negligence and strict liability claims against the subcontractors and the City because the claims are barred by the economic loss doctrine and because the townhouses are not “products” for purposes of strict products liability. Additionally, we conclude that we lack jurisdiction to consider the City's cross-appeal. Shearing and Agosti, JJ., concur. __________ 5

We acknowledge that certain products may be installed in a building and may retain their separate identities as products, without becoming an integrated part of the structure. In such instances, the doctrine of strict products liability could apply to the manufacturers of these distinct products, if dangerously defective. Nevertheless, at this point, we need not decide as a general matter when a separate product becomes part of the structure itself. 6

Appellants also maintain that the district court erred in applying the statutes of repose retroactively to preclude the claims of sixty-five class members. In light of our conclusions regarding the economic loss doctrine and strict products liability, we need not reach this issue. For a thorough discussion of the statutes of repose and their retroactive application, see G and H Assocs. v. Ernest W. Hahn, Inc., 113 Nev. 265, 934 P.2d

229 (1997). 7

On June 3, 1999, two years after the rehearing petition was filed, various municipalities and counties filed a motion for leave to file an amicus brief in support of the City's cross-appeal. In light of our conclusion that we lack jurisdiction to consider the City's cross-appeal, we deny the motion as moot.

Ð116 Nev. 250, 272 (2000) Calloway v. City of RenoÐ Ð Maupin, J., concurring in part and dissenting in part: The internal inconsistency that marks our jurisprudence on the economic loss doctrine is not unique to Nevada. Almost every state that has adopted the economic loss rule has carved out discreet exceptions that to some degree undermine the public policies behind it. The majority on rehearing in this matter, I believe, substantially reconciles our prior authority on this subject and, in large part, provides a reasonable synthesis that will facilitate predictability in the future. I write separately to expand on the history behind the economic loss doctrine in Nevada and because I believe the majority may have unnecessarily broadened its scope. The starting point of any analysis of our version of the rule must be Local Joint Executive Board v. Stern, 98 Nev. 409, 651 P.2d 637 (1982). In that case, former employees of the MGM Grand Hotel sought to recover lost salaries and employment benefits for the period during which the resort remained closed following a catastrophic fire in November 1980. This court reaffirmed the common law rule that, “absent privity of contract or personal injury or property damage,” a plaintiff may not recover in negligence or strict tort liability for purely economic losses. Id. at 411, 651 P.2d at 638. We consistently applied Stern to prevent tort recovery for purely economic losses in Central Bit Supply v. Waldrop Drilling, 102 Nev. 139, 717 P.2d 35 (1986) (holding that economic losses in connection with a broken drill bit could only be recovered under a breach of warranty theory), and in Arco Product Co. v. May, 113 Nev. 1295, 948 P.2d 263 (1997) (ruling that loss of sales by a convenience store from allegedly defective inventory control system could not, as a matter of law, be the subject of a negligence or strict tort liability claim). 1 As noted, a general statement of the “economic loss” rule is that recovery for purely economic losses may not be had in tort. Our decisions in Stern, Central Bit and Arco demonstrate this court's clear and continuing embrace of the economic loss doctrine. There are several corollaries to the economic loss rule. First, claims for personal injuries and/or property damage do not implicate the economic loss rule. Second, economic losses are recoverable in tort only when they are incidental to claims for personal injuries and/or property damage. Third, when a product causes injury to itself, i.e., where a defective component of an integrated product damages all or part of the remaining whole, the damages are purely economic, leaving the parties to the acquisiWLRQRIWKH

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Stern may arguably be read to imply that a plaintiff may recover purely economic losses in tort if he also has a contractual relationship with the defendant. Central Bit, in my view, dispels this notion in its holding that a plaintiff with express or implied indemnity rights must bring suit in contract, not in tort.

Ð116 Nev. 250, 273 (2000) Calloway v. City of RenoÐ Ð tion of the product to their contractual remedies. Fourth, a product that injures “other property” causes property damage recoverable in tort. See American Law of Products Liability (3d) § 60:36, at 66. We have directly or impliedly adopted these correlative principles in all of our cases dealing with this subject. 2 The primary policy behind the rule articulated in Stern 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, 3 and thus to keep the risk of liability reasonably calculable. Stern, 98 Nev. at 411, 651 P.2d at 638 (emphasis and footnote added). The majority in this matter has most ably articulated the history behind the rule and the divergence in scope between tort and contract based recovery. 4 As also noted by the majority, the fundamental policy behind this rule is to restrict parties to commercial transactions to contractual remedies based simply upon the foreseeability of loss of financial expectancies. Unfortunately, beyond Stern, Central Bit and Arco, several of our other cases have obscured the scope of the economic loss rule. Oak Grove Investors v. Bell & Gossett Co. In Oak Grove Investors v. Bell & Gossett Co., 99 Nev. 616, 668 P.2d 1075 (1983), a case decided only one year after Stern, this court discussed the economic loss doctrine in the context of a “construction-defect” dispute. A unanimous court concluded WKDWDQHJOLJHQFHDQGVWULFWWRUWOLDELOLW\FODLPDULVLQJIURP

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The third and fourth of these corollaries were examined in the United States Supreme Court cases of East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858 (1986), Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875 (1997), and in our decision in National Union Fire Insurance v. Pratt and Whitney, 107 Nev. 535, 815 P.2d 601 (1991). See the discussion below. 3

Our cases have never made it clear what the Stern court meant by its statement of protection from tort liability in the “professional” setting. Certainly, economic losses without property damage or personal injury have been deemed recoverable in tort in connection with various types of professional malpractice/negligence claims. 4

In Bernard v. Rockhill Development Co., 103 Nev. 132, 135, 734 P.2d 1238, 1240 (1987) (quoting Malone v. University of Kansas Medical Center, 552 P.2d 885, 888 (Kan. 1976)), we observed: A breach of contract may be said to be a material failure of performance of a duty arising under or imposed by agreement. A tort, on the other hand, is a violation of a duty imposed by law, a wrong independent of contract. Torts can, of course, be committed by parties to a contract. The question to be determined . . . is whether the actions or omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged express agreement between the parties.

Ð116 Nev. 250, 274 (2000) Calloway v. City of RenoÐ Ð that a negligence and strict tort liability claim arising from a defective plumbing fitting should not have been dismissed on statute of limitation grounds, or because of a failure of proof as to whether a defect with regard to the fitting had been shown. Although not necessary to the decision, this court went on to observe via obiter dictum that water leakage caused “substantial leakage of water throughout, and damage to, the apartment [sic] within the . . . complex.” Oak Grove, 99 Nev. at 625, 668 P.2d at 1080. From this factual pattern, this court concluded that the water damage claim in Oak Grove constituted “property damage” for purposes of an “economic loss” analysis. 5 Thus, a completed entity that “injured itself” caused “property damage,” taking the case out of the economic loss doctrine. 6 National Union Fire Insurance v. Pratt and Whitney An attempted extension of the policy behind the economic loss doctrine is reflected by our split decision in

National Union Fire Insurance v. Pratt and Whitney, 107 Nev. 535, 815 P.2d 601 (1991). In that case, this court embraced the well-accepted rule, noted above, that a plaintiff may not recover in tort for the loss of a product that injures itself. In Pratt and Whitney, this court considered an entire airplane a “product” for the purpose of the economic loss rule. Thus, this court rejected the notion that a readily identifiable component part of the aircraft, namely the engine, was the cause of “property” damage, to wit: the destruction of the entire aircraft. This approach is consistent with that taken by the United States Supreme Court in East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858 (1986) (a steamship injuring itself causes pure economic loss). However, in its analysis of this issue, the Pratt and Whitney opinion contains several problematic justifications of its result that have serious implications with respect to the scope of the rule in the context of construction defect litigation. First, the majority attempted to distinguish Oak Grove with the following observation: In Oak Grove, however, there was little factual basis for invoking the economic loss doctrine. Indeed, rather than receding from our rulings in Stern and Central Bit Supply, 7 we concluded, by way of dictum, that the factual scenario in 2DN *URYH GLG QRW LPSOLFDWH WKH HFRQRPLF ORVV GRFWULQH

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Oak Grove cites Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971), for the limited proposition that strict tort liability applies to claims for property damage as well as to personal injury cases. This court did not reach “economic loss” issues in Worrell. 6

See the first corollary to the rule discussed above.

7

Central Bit was actually decided subsequent to Oak Grove.

Ð116 Nev. 250, 275 (2000) Calloway v. City of RenoÐ Ð Oak Grove did not implicate the economic loss doctrine because it involved a defective heating and plumbing system that caused water leakage and damage throughout the apartment complex. It was thus clear that, in contrast to the instant case, Oak Grove did not involve a single integrated product that “injured itself.” The apartment complex there consisted of a number of separate apartment units that were each self-contained and constructed for the separate occupancy of the end users. Indeed, this court has not yet entered the fray among courts as to whether even a “house” constitutes a product for purposes of the law of strict products liability, let alone an entire apartment complex. Pratt and Whitney, 107 Nev. at 538-39, 815 P.2d at 603 (footnote added). The primary distinction drawn by the majority between Pratt and Whitney and Oak Grove involved the fact that a component part of one apartment unit damaged other units in the complex rather than a component part of a single integrated entity (or apartment unit) causing injury to itself. This seemingly ignores the fact that Oak Grove does not, in its dictum on the subject, draw any distinction between damages to the individual units in which the fittings were installed and damages caused by any one fitting to any or all of the other units. Further, in Oak Grove, the offending fittings had been installed in all of the separate apartment units. Thus, we cannot determine from the facts of Oak Grove whether the water damage resulting from any one fitting caused damage to “other property,” to wit: the other units. Secondly, the Pratt and Whitney majority observes that the economic loss doctrine was never intended to apply to construction projects that “reflect the products and efforts of so many different manufacturers, laborers, crafts, supervisors and inspectors in the creation of an essentially permanent place of habitation.” Pratt and Whitney, 107 Nev. at 539, 815 P.2d at 603. Of course, this comment applies with equal force to the manufacture of an airplane—a much more complex entity than many commercial or residential buildings. Third, the Pratt and Whitney majority notes that commercial products that injure themselves are readily

insurable, and thus, suitable for inclusion in the economic loss doctrine. This distinction is questionable because residential and commercial structures are also readily covered by first-party casualty insurance. Thus, the distinctions attempted did not demonstrate a sufficient doctrinal reason as a matter of public policy to justify variant treatment for these purposes between apartment, commercial or home construction on one hand, and complex conveyances VXFKDVDXWRPRELOHVVWHDPVKLSVRUDLUSODQHVRQWKHRWKHU

Ð116 Nev. 250, 276 (2000) Calloway v. City of RenoÐ Ð such as automobiles, steamships or airplanes on the other. Again, airplanes as well as apartment complexes or houses are self-contained entities that are the end result of an integration of hundreds, if not thousands of component parts. Thus, in my view, Pratt and Whitney cannot be reconciled with this court's decision in Oak Grove. Notwithstanding the statements made in Pratt and Whitney, and as noted by the majority in this case, there are numerous cases from other jurisdictions in which the economic loss doctrine is applied to construction defect cases. Given the parallel policies that could apply to both construction and products defects cases, Pratt and Whitney should have rejected the dictum in Oak Grove as no longer valid. I therefore agree that the economic loss doctrine is generally implicated when a product or an integrated piece of construction injures itself. 8 This, of course, is the position taken by the U.S. Supreme Court in East River. 9 Thus, Stern, Central Bit, Arco and Pratt and Whitney (excepting its attempt to distinguish Oak Grove) all represent a sound and consistent application of the economic loss doctrine. 10 However, in the situation alluded to by the majority in Pratt and Whitney, where a defect in one unit of a multiple occupancy structure causes property damage throughout the building, I would leave the issue of whether “other property” has been damaged to a case-by-case factual analysis. Such factual issues should turn on whether each unit is self-contained. Thus, to the extent that the VDPHDOWHUQDWHVFHQDULRH[LVWVLQWKLV

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The reason I would not overturn Pratt and Whitney is that it would be difficult, if not impossible, to determine where to draw the line as to when the doctrine would be implicated when a commercial product injures itself. For example, an electric lamp can destroy itself because of an electric malfunction and is made up of component parts. No one could seriously debate whether the economic loss doctrine applies to a suit against the wiring manufacturer for loss of the lamp or loss of income from its projected use. 9

This doctrine has recently been refined in Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875 (1997), in which economic losses were deemed recoverable where the product, a steamship, injured “other property,” to wit: equipment added to the original assembly of a ship by the original purchaser. 10

The majority correctly overturns Charlie Brown Construction Co. v. Boulder City, 106 Nev. 497, 797 P.2d 946 (1990). Charlie Brown is the one case that cannot be reconciled with any of our other decisions on the economic loss doctrine. Citing Hadley v. Baxendale, 156 Eng. Rep. 145 (1854), Charlie Brown, at least by implication, embraced in the tort context a rule of general foreseeability that has historically applied in contract but not in tort. Thus, taken literally, Charlie Brown arguably eviscerated the economic loss doctrine. I am certain this was not the intent of this court in Charlie Brown. Thus, it is important that we finally eliminate any misconceptions in this regard.

Ð116 Nev. 250, 277 (2000) Calloway v. City of RenoÐ Ð same alternate scenario exists in this case, I would partially dissent from the majority.

Going further, when an identifiable component part added to the original “product” or an original piece of construction injures or damages all or part of the remainder, the added component is “other property” that may be defective from a negligence or strict liability standpoint. Thus, the added component injures “other property” for tort recovery purposes. See Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971), Saratoga and the fourth corollary discussed above. 11 Again, this notion would seem to apply equally well to products and construction litigation. Worrell v. Barnes According to the majority, Worrell v. Barnes wrongly held that contractors were not in the business of “manufacturing” or selling products “within the ambit of section 402A” of the Restatement (Second) of Torts. The property damage in Worrell resulted from a residential fire allegedly caused by a portion of a heating system installed by the defendant during a remodeling project. This court concluded that the contractor “manufactured and sold a ‘product,' ” which included a defective gas fitting and the portion of the gas water heating system installed during the remodeling project. Worrell, 87 Nev. at 208, 484 P.2d at 576. While the contractor did not actually manufacture the fitting, he was deemed in Worrell to have manufactured a product, to wit: the fitting and, at least impliedly, the newly installed portion of the plumbing system. Interestingly, the Worrell court implied that the doctrine of strict tort liability would apply to any kind of defect in construction, regardless of whether the defect was part of the original construction, or added subsequent to completion: The ordinary purchaser is not more capable of detecting a defect in a chimney flue or vent of a heating apparatus (Schipper, supra) or faulty plumbing covered by a concrete slab foundation (Humber, supra), in a house erected by a builder of two than in one constructed by a quantity builder of 200. Avner v. Longridge Estates, 77 Cal.Rptr. 633 (Cal.App. 1969); 1969-70 Annual Survey of American Law, p. 474; 13 A.L.R.3d 1057, 1097 (1967). When a plaintiff proves that while he was using an instrumentality in a way it was intended to be used he was injured as a result of a defective design and/or manufacture which made the instrumentality unsafe for its intended use, and that he was unaware of the defect his burden has been accomplished. Restatement of Torts 2d, Comment G, § 402A. An owner relies upon the VNLOORI

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See Note 2.

Ð116 Nev. 250, 278 (2000) Calloway v. City of RenoÐ Ð skill of the fabricator of a piping system, and he has a right to expect freedom from injury on the basis of the fabricator's superior knowledge. 12 Worrell, 87 Nev. at 207, 484 P.2d at 575-76 (footnote added). The Worrell court did not reach the issue of whether the economic loss rule was implicated in a construction defects suit where the finished or remodeled construction damaged itself. However, for future reference, an analysis of the economic loss doctrine under the facts of Worrell is instructive. To compare, the primary damages deemed recoverable in tort via negligence or strict liability in Oak Grove were arguably economic losses. Thus, notwithstanding the language quoted immediately above, had the gas fitting in Worrell been part of the original construction, the damages would have been restricted to economic losses. However, the losses actually sustained as described in Worrell were not pure economic losses under East River, Pratt and Whitney and Saratoga because an outside component was incorporated into the original construction, which caused damage to “other property.” Therefore, in my view, had we reached the issue of whether pure economic losses had been sustained in Worrell, the outcome would have remained unchanged. I also believe that the component parts or subsystems of a house or other building implicate strict liability and

negligence issues when personal injuries from construction defects have been sustained or where the defective building component damages “other property,” such as a free standing neighboring dwelling. I concede that the fact pattern in Worrell does not fit neatly within the Restatement Second formulation. However, I would leave Worrell intact and interpret it as invoking a salutory and beneficial public policy allowing recovery when a defect in an addition to a structure causes property damage to the remaining whole, or causes personal injuries, or causes property damage to other structures or self-contained but attached units. CONCLUSION While I agree that the economic loss rule is implicated in conVWUXFWLRQGHIHFWOLWLJDWLRQ __________ 12

I take issue with the majority's reference to Casa Clara v. Charley Toppino, 620 So. 2d 1244, 1247 (Fla. 1993). New home purchasers do not generally have a “meaningful” ability to inspect houses for defects. Further, unlike the situation of a purchaser of a pre-owned residence, a new homebuyer's power to bargain over price in the modern market can only be described as marginal at best. Thus, I would reject such considerations in determining the efficacy of applying the economic loss doctrine in this context.

Ð116 Nev. 250, 279 (2000) Calloway v. City of RenoÐ Ð struction defect litigation, I believe that application of the rule should be limited as suggested above. 13 Rose, C. J., dissenting: I dissent to the application of the economic loss doctrine to construction defect cases. While our prior decisions in this area of the law are neither consistent nor uniformly well reasoned, they do show a clear reluctance to apply the economic loss doctrine to construction defect cases and, in dicta, expressly state just that. This court first expressed its reluctance to extend the economic loss doctrine to construction defect cases in Oak Grove Investors v. Bell & Gossett Co., 99 Nev. 616, 617, 668 P.2d 1075, 1077 (1983). In Oak Grove, a defective plumbing and heating system caused water leakage and damage throughout an apartment complex. The district court granted summary judgment, concluding that there was no material issue of fact concerning whether the plumbing fitting manufactured by Bell & Gossett was defective and whether the statute of limitations precluded recovery. Id. at 620, 668 P.2d at 1077. We reversed the district court order granting summary judgment, concluding that there were triable issues of material fact as to whether the manufacturer's failure to warn may have rendered the product defective, and whether the statute of limitations had run. Id. at 625, 668 P.2d at 1081. Although in Oak Grove the district court did not rule on the applicability of the economic loss doctrine, in dicta we refused to extend the economic loss doctrine by stating: the defective plumbing and heating system caused “substantial leakage of water throughout, and damage to, the apartment [sic] within the . . . complex.” The amount of property damage sustained is a question for the finder of fact. Appellant is not seeking to recover purely economic losses, and therefore has stated causes of action in negligence and strict liability. 99 Nev. at 625, 668 P.2d at 1080-81 (citations omitted). While not expansive in its reasoning, the Oak Grove court clearly UHIXVHGWRDSSO\WKHHFRQRPLFORVVGRFWULQHWRDFRQVWUXFWLRQGHIHFWFDVH __________ 13

In an appropriate future case, we may be called upon to determine whether lack of privity of contract between property owners and remote subcontractors bars recovery under various implied warranties when a

defect in construction causes a problem that is restricted to economic loss (i.e., where the claimant is restricted to his, her or its recovery in contract). To the extent that building construction is treated by the majority as analogous to an integrated product for economic loss considerations, we may wish to examine whether this court's ruling in Hiles v. Johnson Pump Co., 93 Nev. 73, 560 P.2d 154 (1977), should apply by analogy to implied warranty claims made in this context. This issue is not before us because appellants' warranty claims were voluntarily dismissed below.

Ð116 Nev. 250, 280 (2000) Calloway v. City of RenoÐ Ð refused to apply the economic loss doctrine to a construction defect case. Many years later, in Charlie Brown Construction Co. v. Boulder City, 106 Nev. 497, 797 P.2d 946 (1990), we again rejected the applicability of the economic loss doctrine to construction defect cases, and thereby permitted recovery of tort damages. Although we rejected the economic loss doctrine on the basis that the damages sustained were foreseeable, we expressed a clear intent to permit tort damages in a construction defect case: Brown and Delta are directly injured parties seeking direct recovery from the tortfeasor. It is not consequential damages they seek but direct damages from the failure to perform a mandatory act. Our citation in [Local Joint Exec. Bd. v. Stern, 98 Nev. 409, 651 P.2d 637 (1982)] to The Restatement (Second) of Torts § 766 (1979) . . . makes it clear that the prohibition does not extend to this circumstance [where city failed to require payment bond that would have secured payment to two subcontractors after general contractor became insolvent]. Id. at 508, 797 P.2d at 953. Further evidence of this court's long-standing reluctance to extend the economic loss doctrine to construction defect cases is found in National Union Fire Insurance v. Pratt and Whitney, 107 Nev. 535, 540, 815 P.2d 601, 604 (1991). In Pratt and Whitney, an entire aircraft was destroyed because of a defective engine. Id. at 540 816 P.2d at 604. While the majority concluded that the economic loss doctrine applied and precluded recovery on tort theories, it carefully explained that it was not overruling the Oak Grove decision and that the economic loss doctrine should not preclude recovery on tort theories in construction defect cases. Id. at 538-39, 815 P.2d at 603. The majority in Pratt and Whitney distinguished construction defect cases, where the economic loss doctrine was not applicable, from those cases involving a “single integrated product that ‘injured itself' ”: The apartment complex [in Oak Grove] consisted of a number of separate apartment units that were each self-contained and constructed for the separate occupancy of the end users. Indeed, this court has not yet entered the fray among courts as to whether even a “house” constitutes a product for purposes of the law of strict products liability, let alone an entire apartment complex. We deem it safe to conclude, however, that the economic loss doctrine was never intended to apply to construction projects that reflect the products and efforts of so many different manufacturers, laborers, crafts, superviVRUVDQGLQVSHFWRUV

LQWKHFUHDWLRQRIDQHVVHQWLDOO\SHUPDQHQWSODFHRIKDELWDWLRQ Ð116 Nev. 250, 281 (2000) Calloway v. City of RenoÐ Ð sors and inspectors in the creation of an essentially permanent place of habitation. Id. at 539, 815 P.2d at 6023 (citation omitted) (emphasis added). I appreciate the attempt to establish a clear line of demarcation between contract and to damages in the majority opinion, even though it is difficult in construction defect cases. My concern in doing this is that there will be times where unusual factual situations will fall between the clearly defined recovery theories of contract and tort and leave a homeowner of a defectively constructed home without a remedy. Under the majority's

opinion and the present state of the law, a subsequent purchaser of a condominium with a latent defect created by a subcontractor and found five years after construction will fall in that category if the contractor has gone bankrupt or out of business. This would occur because tort law would be inapplicable because of the economic loss doctrine and contract damages would provide no viable vehicle for recovery because the homeowner is not in privity with the subcontractor, the contractor is defunct and the construction bond long since exonerated. The owner of the defective condominium would have no viable remedy against the subcontractor even though he may be in business and making millions of dollars. To avoid situations like this from occurring, I see no problem with letting contract and tort theories of recovery apply to construction defect cases as has been done by several states. See Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041 (Colo. 1983); Kristek v. Catron, 644 P.2d 480 (Kan. Ct. App. 1982); Keyes v. Guy Bailey Homes, Inc., 439 So. 2d 670 (Miss. 1983); Juliano v. Gaston, 455 A.2d 523 (N.J. Super. Ct. App. Div. 1982); McMillan v. Brune-Harpenau-Torbeck Builders, Inc., 455 N.E.2d 1276 (Ohio 1983); Blake v. Doe, 623 N.E.2d 1229 (Ohio Ct. App. 1993); Moxley v. Laramie Builders, Inc., 600 P.2d 733 (Wyo. 1979). While legal theories of recovery may overlap somewhat in any given construction defect case, I see no practical harm in this. Before recovery can be made, proof that the contractor, subcontractor or supplier was negligent must be established and no plaintiff is entitled to more than one recovery no matter how many theories of recovery may be applicable. See Ambassador Hotel Co. v. Wei-Chuan Inv., 189 F.3d 1017 (9th Cir. 1999); Bradford v. Vento, 997 S.W.2d 713 (Tex. App. 1999). My clear preference is to provide a remedy, be it tort or contract, in all construction defect cases whether the loss is considered the result of a breach of contract or negligent conduct. This can be done simply by refusing to apply the economic loss doctrine to construction defect cases. Moreover, in its sweeping application of the economic loss docWULQH

Ð116 Nev. 250, 282 (2000) Calloway v. City of RenoÐ Ð trine, the majority narrows the long-standing exception to NRS 41.033, Nevada's governmental immunity statute, that this court created in Butler v. Bogdanovich, 101 Nev. 449, 705 P.2d 662 (1985), and reaffirmed in Lotter v. Clark County Board of Commissioners, 106 Nev. 366, 793 P.2d 1320 (1990) and Tahoe Village Homeowners Association v. Douglas County, 106 Nev. 660, 799 P.2d 556 (1990). In the aforementioned cases, we declared that governmental immunity will not bar a tort action against the government if it failed to act reasonably after learning of a hazard. Butler, 101 Nev. at 451, 705 P.2d at 663; Lotter, 106 Nev. at 369, 793 P.2d at 1322; Tahoe Village, 106 Nev. at 662, 799 P.2d at 557-58. In this prior precedent, governmental conduct deemed unreasonable included an inspector's approval of a contractor's work with knowledge of its defective condition. See id. Without explicitly overruling Butler, Lotter, or Tahoe Village, the majority eliminates the very loss sought in these type of cases, property damage. Effectively, this line of authority is eliminated by today's opinion. The economic loss doctrine is a judicial creation—it is not a statute that we are compelled to follow. It is a principle of law we can adopt or reject depending on what better serves Nevadans. With so much hasty construction taking place in Nevada today, I think the better path would be to arm our home purchasers with all available remedies, when faced with a defectively constructed home, rather than the one taken by the majority today. I respectfully dissent. ____________

Ð116 Nev. 282, 282 (2000) Chen v. State, Gaming Control BoardÐ Ð Ð RICHARD CHEN, Appellant, v. NEVADA STATE GAMING CONTROL BOARD and MONTE CARLO RESORT & CASINO, Respondents. No. 31959

March 9, 2000

994 P.2d 1151

Appeal from a district court order denying review of a Nevada Gaming Control Board decision in a patron dispute. The Board allowed the casino to retain appellant Richard Chen's $40,400 blackjack winnings. Eighth Judicial District Court, Clark County; Jack Lehman, Judge. Casino patron sought judicial review of Gaming Control Board decision allowing the casino to retain patron's $40,400 blackjack winnings. The district court denied petition for judicial review, and patron appealed. The supreme court, Shearing, J., held that casino failed to show either that it detrimentally relied on patron's IDOVH

SDVVSRUWRUWKDWKLVPLVUHSUHVHQWDWLRQZDVDSUR[LPDWHFDXVHRIFDVLQR VGDPDJHV Ð116 Nev. 282, 283 (2000) Chen v. State, Gaming Control BoardÐ Ð false passport or that his misrepresentation was a proximate cause of casino's damages. Reversed and remanded. Maupin, J., dissented. Lyles & Hawley, Las Vegas, for Appellant. Steven A. Boelhouwer, Carson City, for Respondent Gaming Control Board. Kevin J. Blair, General Counsel, Las Vegas, for Respondent Monte Carlo Resort & Casino. 1. Gaming. While the supreme court shows deference to Gaming Control Board decisions on appeal, the court will reverse where the Board's decision is arbitrary, capricious, or contrary to law. 2. Fraud. To establish fraud, a plaintiff must show that: (1) the defendant provided a false representation of a material fact, which he knew to be false; (2) the defendant intended the plaintiff to rely on the misrepresentation; (3) the plaintiff detrimentally relied on the misrepresentation; and (4) the misrepresentation proximately caused damages. 3. Gaming. Casino required a patron seeking more than $10,000 in playing chips to present identification only for regulatory compliance, rather than to determine whether the patron was a card counter, and, thus, there was no evidence that casino detrimentally relied on card counter's false passport when it allowed him to play blackjack. 4. Gaming. Card counter's skill in playing blackjack, rather than his misrepresentation of his identity when he presented a false passport to obtain playing chips, was the proximate cause of his blackjack winnings, for purposes of casino's claim to winnings on the basis of fraud. The false identification allowed the card counter to receive $44,000 in chips, but it did not cause him to win.

Before the Court En Banc. OPINION By the Court, Shearing, J.: Appellant Richard Chen argues that the Nevada Gaming Control Board erred by allowing the Monte Carlo Resort & Casino to retain his blackjack winnings of $40,400. Chen contends that the Monte Carlo is unable to show either that it detrimentally relied on Chen's false passport or that Chen's

PLVUHSUHVHQWDWLRQZDVWKHSUR[LPDWHFDXVHRIWKH0RQWH&DUOR VGDPDJHV Ð116 Nev. 282, 284 (2000) Chen v. State, Gaming Control BoardÐ Ð misrepresentation was the proximate cause of the Monte Carlo's damages. We agree. The facts in this case are not in dispute. Chen, a card counter, 1 entered the Monte Carlo and exchanged

$29,000 in cash for casino chips. Monte Carlo personnel asked Chen for identification, and Chen gave them a fictitious Burma passport. Chen played blackjack for several hours, quit, and then returned during the graveyard shift to resume play. At that time, he exchanged another $15,000 in cash for playing chips. As Chen's winnings mounted, a Monte Carlo pit supervisor recognized Chen as a card counter. The Monte Carlo terminated Chen's playing and instructed him to cash in his chips. Chen's chips totaled $84,400. Again, Monte Carlo staff requested Chen's identification, and this time they noticed it was false. An agent of the Nevada Gaming Control Board arrived at the Monte Carlo and spoke with Chen. Chen admitted that the Burma passport was false and revealed his true identity. The agent then instructed the Monte Carlo to provide Chen with a receipt in the amount of $84,400 pending a criminal investigation. Two investigations uncovered no crime, and the agent told the Monte Carlo it could release the full $84,400 to Chen. However, the Monte Carlo only returned $44,000 to Chen, the amount he had exchanged for chips. Unsatisfied with the investigator's recommendation, the Monte Carlo filed a petition for reconsideration with the Gaming Control Board. The Monte Carlo's petition was successful, and the Gaming Control Board denied Chen his $40,400 in winnings. The district court denied Chen's petition for judicial review. We reverse. DISCUSSION [Headnotes 1, 2] While this court shows deference to Gaming Control Board decisions on appeal, we will reverse where the Board's decision is arbitrary, capricious, or contrary to law. See Redmer v. Barbary Coast Hotel & Casino, 110 Nev. 374, 378, 872 P.2d 341, 378 (1994). In this case, the Board's decision hinges on whether Chen committed a fraud on the Monte Carlo. To establish fraud, the Monte Carlo must show that Chen provided a false representation of a material fact, which he knew to be false; that Chen intended the Monte Carlo to rely on the misrepresentation; that the Monte Carlo detrimentally relied on the misrepresentation; and that the misrepresentation proximately caused damages. See Lubbe v. %DUED1HY __________ 1

Card counting is a mathematical process which enables the player to achieve better odds when playing blackjack.

Ð116 Nev. 282, 285 (2000) Chen v. State, Gaming Control BoardÐ Ð Barba, 91 Nev. 596, 599, 540 P.2d 115, 117 (1975). We address the issues of detrimental reliance and proximate cause of damages. [Headnotes 3, 4] The Monte Carlo did not show either that it detrimentally relied on Chen's misrepresentation or that Chen's misrepresentation was the proximate cause for the casino's damages for two reasons. First, the Monte Carlo requires a patron seeking more than $10,000 in playing chips to present identification only for regulatory compliance rather than to determine whether the patron is a card counter. 2 The Monte Carlo has no policy instructing casino employees to cross-check the patron's identification with any sources that might identify card counters. Thus, there is no evidence that the Monte Carlo detrimentally relied on Chen's false passport when it allowed him to play blackjack. Second, Chen's skill in playing blackjack, rather than his misrepresentation of identity, was the proximate cause of his winnings. The false identification allowed Chen to receive $44,000 in chips, but it did not cause Chen to win. Thus, we hold that the Gaming Control Board's determination that Chen committed fraud is contrary to law because the Monte Carlo did not establish all of the elements of fraud. We reverse the order of the district court denying Chen's petition for judicial review and remand this matter to the district court. On remand, the district court shall grant Chen's petition and direct the Gaming Control Board to award Chen his $40,400 in blackjack winnings. 3

Agosti and Leavitt, JJ., concur. Maupin, J., dissenting: In my view, the decision of the Nevada Gaming Control Board was not arbitrary, capricious or contrary to law. This case presents a conflict between two inconsistent public policies that have developed over the years with regard to the gaming industry. On one hand, gaming establishments have the unquestioned right to protect themselves against so-called “card counters” who have developed expertise in the game of “blackjack” (“twenty-one”). On the other hand, neither card counting QRUWKHXVHRIDOHJDOVXEWHUIXJHVXFKDVD

GLVJXLVHWRJDLQDFFHVVWRWKLVWDEOHJDPHLVLOOHJDOXQGHU1HYDGDODZ __________ 2

Nevada Gaming Regulation 6A requires that gaming patrons present identification and complete a currency transaction report, which is submitted to the Board within fifteen days when more than $10,000 worth of chips is purchased. 3

The Honorable Robert E. Rose, Chief Justice, and The Honorable Cliff Young, and The Honorable Nancy Becker, Justices, voluntarily recused themselves from the decision of this matter.

Ð116 Nev. 282, 286 (2000) Chen v. State, Gaming Control BoardÐ Ð nor the use of a legal subterfuge such as a disguise to gain access to this table game is illegal under Nevada law. I conclude, however, that the misrepresentation here, the use of a fraudulent passport for identification, was not a legal subterfuge and enabled appellant access to high stakes play for the purpose of frustrating legitimate attempts by the respondent to prevent this from occurring. Certainly, appellant would have needed no identification to play if he had not sought chips valued in excess of $10,000.00. However, playing without showing fraudulent identification involves no fraud or other illegal activity. While respondent did not generally rely on identification via passport or otherwise to allow participation in table games, Chen's access to large denominations of gaming tokens could not have occurred in absence of the fraud. Therefore, the misrepresentation was specific and material to the caliber of play in which appellant sought to become engaged. Therefore, I would affirm the decision below. ____________

Ð116 Nev. 286, 286 (2000) Bd. of Gallery of History v. Datecs Corp.Ð Ð Ð BOARD OF GALLERY OF HISTORY, INC., Also Known as AMERICAN MUSEUM OF HISTORICAL DOCUMENTS, CHARTERED, a Nevada Corporation, Appellant, v. DATECS CORPORATION, a Nevada Corporation dba FORWARD EDGE TECHNOLOGIES, and SOFTWARE SERVICES, INC., a Nevada Corporation, a Wholly Owned Subsidiary of DATECS CORPORATION, Respondents. No. 27865 March 9, 2000

994 P.2d 1149

Appeal from an order granting a motion for attorney fees and costs. Eighth Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge.

After the supreme court's dismissal of the appeal in a contract dispute, the district court awarded supplemental attorney fees and costs to the prevailing party. Appeal was taken. The supreme court held that: (1) the district court lacked authority to award attorney fees and costs on appeal, and (2) after dismissal of the appeal, the district court lacked authority to award attorney fees and costs for defending against post-trial motions in the district court. Reversed. Croteau & Shawhan, Las Vegas, for Appellant.

Ð116 Nev. 286, 287 (2000) Bd. of Gallery of History v. Datecs Corp.Ð Ð Christensen & Boggess, Las Vegas, for Respondents. 1. Costs. District court lacked authority under appellate rules to award supplemental attorney fees and costs on appeal. NRAP 38(b). 2. Costs. Attorney fees are not recoverable absent a statute, rule, or contractual provision to the contrary. 3. Appeal and Error. Supreme court's order dismissing the appeal and specifically holding that appellant's conduct on appeal did not merit sanctions was law of the case, precluding the district court from making a contrary finding. 4. Costs. Supreme court's award of fees for defending against a frivolous appeal is discretionary. NRAP 38(b). 5. Costs. District court lacked statutory authority, after dismissal of appeal, to award appellee supplemental attorney fees for defending against appellant's post-trial motions in the district court. NRS 18.010(2)(b). 6. Costs. The absence of a ruling by the district court awarding the attorney fees and costs requested by prevailing party constituted a denial of the request. 7. Appeal and Error. Supreme court's affirmance of district court's denial of award of attorney fees and costs to prevailing party became the law of the case, thereby precluding district court from awarding supplemental attorney fees and costs to prevailing party for defending against opposing party's post-trial motions in the district court. NRS 18.010.

Before Maupin, Shearing and Becker, JJ. OPINION Per Curiam: The issue before this court is the authority of the district court to award attorney fees and costs, after the appeal from the final judgment in the action was dismissed by this court. We conclude that the district court had no such authority in this case. In a contract dispute between Datecs Corporation (“Datecs”) and Board of Gallery of History, Inc. (“Gallery”), the district court found in favor of Datecs and awarded it a judgment in the amount of $31,872.84 plus $5,000.00 in attorney fees and $1,365.70 in costs. The district court awarded the attorney fees pursuant to NRS 18.010(2)(b) and costs pursuant to NRS 18.020(3). After making several unsuccessful post-trial motions, Gallery appealed the judgment and the district court's denial of its post-WULDOPRWLRQV

Ð116 Nev. 286, 288 (2000) Bd. of Gallery of History v. Datecs Corp.Ð Ð trial motions. This court affirmed the district court's judgment, including the award of attorney fees and costs. This court also concluded that Gallery's conduct on appeal did not merit imposition of sanctions and expressly rejected Datecs's request for attorney fees pursuant to NRAP 38(b).

After the dismissal of Gallery's appeal, Datecs moved the district court for supplemental attorney fees and costs incurred “in enforcing and protecting the Judgment from the Post-Trial Motions and Defendant's Appeal.” The district court found that Gallery's post-trial motions and the appeal were actions undertaken “without reasonable ground or to harass” and awarded Datecs an additional $7,500.00 in attorney fees pursuant to NRS 18.010(2)(b) and $697.53 in costs pursuant to NRAP 39(a). Gallery appeals from the district court's order. DISCUSSION [Headnote 1] Gallery contends that the district court lacked authority to award the additional attorney fees and costs. We agree. [Headnote 2] Attorney fees are not recoverable absent a statute, rule, or contractual provision to the contrary. See Rowland v. Lepire, 99 Nev. 308, 315, 662 P.2d 1332, 1336 (1983). There is no provision in the statutes authorizing the district court to award attorney fees incurred on appeal. NRAP 38(b) authorizes only this court to make such an award if it determines that the appeals process has been misused. 1 [Headnotes 3, 4] Furthermore, this court's order dismissing the original appeal specifically held that Gallery's conduct on appeal did not merit sanctions. 2 This is the law of the case and the district court was without authority to make a contrary finding. __________ 1

NRAP 38(b) provides: In any civil matter, when an appeal has frivolously been taken or been processed in a frivolous manner; when circumstances indicate that an appeal has been taken or processed solely for purposes of delay, when an appeal has been occasioned through respondent's imposition on the court below; or whenever the appellate processes of this court have otherwise been misused, this court may, on its own motion, require the offending party to pay, as costs on appeal, such attorney fees as it deems appropriate to discourage like conduct in the future.

2

The apparent inconsistency between this court's affirmance of the district court's finding that the defense was frivolous and this court's failure to find the appeal frivolous is illusory. The district court's finding was based on the arguments and proceedings in district court, while this court's finding was based on the arguments in this court. Furthermore, this court's award of fees under NRAP 38(b) is discretionary.

Ð116 Nev. 286, 289 (2000) Bd. of Gallery of History v. Datecs Corp.Ð Ð In general, “where an appellate court deciding an appeal states a principal [sic] or rule of law, necessary to the decision, the principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress both in the lower court and upon subsequent appeal.” LoBue v. State ex rel. Dep't Hwys., 92 Nev. 529, 532, 554 P.2d 258, 260 (1976). [Headnote 5] The district court also awarded Datecs attorney fees for defending Gallery's post-trial motions, purportedly pursuant to NRS 18.010(2)(b). However, the district court was not authorized to award attorney fees for defending the post-trial motions after the dismissal of the appeal in this case.

[Headnote 6] Datecs's opposition to Gallery's post-trial motions in district court had included a countermotion for “all attorneys fees and costs incurred in opposing these Motions,” citing no authority, other than suggesting that an NRCP Rule 11 sanction might be appropriate. Although the district court did not expressly deny Datecs's countermotion at the time it decided Gallery's motions, it made no findings which would justify an award of attorney fees and costs. The absence of a ruling awarding the requested expenses constitutes a denial of the claim. See, e.g., McClure v. Moore, 565 So. 2d 8, 11 (Ala. 1990) (failure to rule on request for expenses constitutes a denial of that claim). [Headnote 7] On appeal, this court reviewed and affirmed the district court's order. In so doing, this court also affirmed the district court's decision not to award Datecs attorney fees or costs incurred in opposing the post-trial motions in district court. Thus, the issue of whether Datecs could recover attorney fees and costs relating to the post-trial motions was finally adjudged by this court and became the law of the case. Although there is no time limit specified in NRS 18.010 for applications for fees, litigants do not have the option of relitigating the issue after it has already been determined. Accordingly, the district court's post-appeal order awarding attorney fees and costs incurred by Datecs in prosecuting the appeal and in opposing Gallery's post-trial motions was in excess of its jurisdiction; the district court's order is reversed. ____________

Ð116 Nev. 290, 290 (2000) State, Div. of Insurance v. State FarmÐ Ð THE STATE OF NEVADA, DIVISION OF INSURANCE, COMMISSIONER OF INSURANCE, ALICE MOLASKY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and STATE FARM FIRE AND CASUALTY COMPANY, Respondents. No. 31102 March 9, 2000

995 P.2d 482

Appeal from an order of the district court granting summary judgment in a declaratory relief action involving the validity of an insurance regulation. Eighth Judicial District Court, Clark County; Mark W. Gibbons, Judge. Automobile insurer brought declaratory judgment action challenging validity of regulation defining “chargeable accidents” for the purpose of cancellation of coverage as an accident for which the insured is more than fifty percent at fault. The district court granted insurer's motion for summary judgment and permanently enjoined the regulation's enforcement, and Division of Insurance appealed. The supreme court held that regulation conflicted with statutes barring adverse action if the insured is not “at fault” and requiring insurers to pay covered claims when the insured's responsibility for an accident is fifty percent or more, rendering the regulation invalid. Affirmed. Frankie Sue Del Papa, Attorney General, and Edward T. Reed, Deputy Attorney General, Carson City, for Appellant. Pearson, Patton, Shea, Foley & Kurtz, Las Vegas, for Respondents.

1. Appeal and Error. Review in supreme court from a district court's interpretation of a statute is de novo. 2. Appeal and Error. Matters involving the construction of an administrative regulation are a question of law subject to independent appellate review. 3. Administrative Law and Procedure; Statutes. When determining the validity of an administrative regulation, courts generally give great deference to an agency's interpretation of a statute that the agency is charged with enforcing. However, a court will declare a regulation invalid when the regulation violates the constitution, conflicts with existing statutory provisions or exceeds the statutory authority of the agency or is otherwise arbitrary and capricious. NRS 233B.110. 4. Statutes. Even a reasonable agency interpretation of an ambiguous statute may be stricken by a court when a court determines that the agency interpretation conflicts with legislative intent.

Ð116 Nev. 290, 291 (2000) State, Div. of Insurance v. State FarmÐ Ð 5. Statutes. Where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself. 6. Statutes. Where a statute has no plain meaning, a court should consult other sources such as legislative history, legislative intent and analogous statutory provisions. 7. Statutes. Statutes are said to be “in para materia” when they involve the same classes of persons or things or seek to accomplish the same purpose or object. 8. Administrative Law and Procedure; Statutes. Whenever possible, supreme court will interpret a rule or statute in harmony with other rules or statutes. 9. Statutes. When the legislature enacts a statute, supreme court presumes that it does so with full knowledge of existing statutes relating to the same subject. 10. Insurance. Legislature intended that the term “at fault” contained in statute barring the cancellation of an automobile insurance policy as a result of claim for an accident for which the insured is not “at fault” means a chargeable accident does not occur unless the insured is fifty percent at fault. NRS 687B.385. 11. Insurance. Regulation barring automobile insurers from taking underwriting action against an insured that is fifty percent at fault in connection with an accident conflicted with statutes barring adverse action if the insured is not “at fault” and requiring insurers to pay covered claims when the insured's responsibility for an accident is fifty percent or more, rendering the regulation invalid. NRS 41.141, 687B.385; NAC 690B.230(2).

Before Maupin, Shearing and Becker, JJ. OPINION Per Curiam: State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company (“State Farm”) filed a declaratory relief action below contesting the validity of a 1996 amendment to NAC 690B.230(2). State Farm argued that the amendment, promulgated by the Division of Insurance of the State of Nevada (“Division”), violated NRS 679B.130(1) by creating a definition of “chargeable accident” which modified, or conflicted with, existing statutes. The Division denied the allegations and asserted that the regulation, as amended, was a reasonable requirement related to the administration or effectuation of a provision of the Nevada insurance code, namely NRS 687B.385.

Ð116 Nev. 290, 292 (2000) State, Div. of Insurance v. State FarmÐ Ð State Farm filed a motion for summary judgment. The district court concluded that NAC 690.230(2) did not aid in the administration of NRS 687B.385 but was, in fact, in conflict with NRS 687B.385 as well as NRS

41.141, the Nevada comparative negligence statute. The district court granted State Farm's motion for summary judgment and entered a permanent injunction against enforcement of the regulation. We agree with the determinations of the district court and for the reasons set forth below, we affirm the district court's order. FACTS NAC 690B.230 is one of a series of administrative rules designed to regulate transactions between insurers and insureds. This specific regulation defines the term “chargeable accidents” for the purpose of underwriting, rating, cancellation and renewal of automobile insurance coverages. NAC 690B.230(2), as amended in 1996, reads as follows: 2. Each insurer shall file with the division its definition of a “chargeable accident” and shall use the filed definition. The insurer's definition of a “chargeable accident” may include only those accidents for which the insured is more than 50 percent at fault. The regulation was promulgated for the purpose of enforcing NRS 687B.385, which provides: An insurer shall not cancel, refuse to renew or increase the premium for renewal of a policy of casualty or property insurance as a result of any claims made under the policy with respect to which the insured was not at fault. 1 (Emphasis added.) Because the legislature did not define the phrase “not at fault,” the Division exercised its rule-making authority under NRS 679B.130(1) to restrict the criteria that an insurance company could use in determining fault under the statute. Prior to the enactment of the regulation, State Farm instituted internal company policies that defined a “chargeable accident” for purposes of canceling, renewing or increasing premiums pursuant to NRS 687B.385 to mean any accident for which the insured was fifty percent or more at fault. State Farm sought declaratory relief to resolve its differences over the Division's regulatory interpretation of NRS 687B.385. __________ 1

This statute was amended in 1997. The 1997 amendments did not alter the language regarding fault and have no bearing on this opinion.

Ð116 Nev. 290, 293 (2000) State, Div. of Insurance v. State FarmÐ Ð DISCUSSION Standard of review [Headnotes 1, 2] “Orders granting summary judgment are reviewed de novo.” Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992). Further, “[r]eview in this court from a district court's interpretation of a statute is de novo.” State, Dep't of Mtr. Vehicles v. Frangul, 110 Nev. 46, 48, 867 P.2d 397, 398 (1994). Finally, matters involving the construction of an administrative regulation are a question of law subject to independent appellate review. See SIIS v. Miller, 112 Nev. 1112, 1116, 923 P.2d 577, 579 (1996). Statutory construction [Headnote 3]

When determining the validity of an administrative regulation, courts generally give “great deference” to an agency's interpretation of a statute that the agency is charged with enforcing. See State v. State Engineer, 104 Nev. 709, 713, 766 P.2d 263, 266 (1988) (quoting Clark Co. Sch. Dist. v. Local Gov't, 90 Nev. 442, 446, 530 P.2d 114, 117 (1974)). However, a court will not hesitate to declare a regulation invalid when the regulation violates the constitution, conflicts with existing statutory provisions or exceeds the statutory authority of the agency or is otherwise arbitrary and capricious. See NRS 233B.110; Clark Co. Social Service Dep't v. Newkirk, 106 Nev. 177, 179, 789 P.2d 227, 228 (1990); Roberts v. State, 104 Nev. 33, 37, 752 P.2d 221, 223 (1988). [Headnote 4] Finally, even a reasonable agency interpretation of an ambiguous statute may be stricken by a court when a court determines that the agency interpretation conflicts with legislative intent. See Hotel Employees v. State, Gaming Control Bd., 103 Nev. 588, 591, 747 P.2d 878, 880 (1987). Thus, the decision in this case must begin with an analysis of NRS 687B.385, pursuant to which the regulation was promulgated. [Headnotes 5, 6] “Where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.” State v. Jepsen, 46 Nev. 193, 196, 209 P. 501, 502 (1922), quoted in Erwin v. State of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995); Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 

Ð116 Nev. 290, 294 (2000) State, Div. of Insurance v. State FarmÐ Ð 949 (1990). However, where a statute has no plain meaning, a court should consult other sources such as legislative history, legislative intent and analogous statutory provisions. See Moody v. Manny's Auto Repair, 110 Nev. 320, 325, 871 P.2d 935, 938-39 (1994). This court has previously determined that the exact meaning of the words “at fault” in NRS 687B.385 is not clear and unmistakable. See State Farm Mut. v. Comm'r of Ins., 114 Nev. 535, 541, 958 P.2d 733, 736-37 (1998) (State Farm I). In State Farm I, we concluded that: A reading of the legislative history as a whole shows that the legislature believed that an insured's individual premium structure would be adversely affected by a claim only if the insured was at fault. The legislators viewed the issue of fault, under NRS 687B.385, in the context of whether or not the insurance company would be required to pay a claim against the insured. Id. The legislative history also indicates that the legislature clearly understood that more than one person could be at fault with regard to a single accident and that an accident should only be charged against an insured when the insured's conduct was responsible in some form for the accident. See Hearings on A.B. 308 Before the Nevada Assembly Committee on Commerce, 64th Leg. (Nev., March 25, 1987). [Headnote 7] The court in State Farm I then determined that NRS 687B.385 should be read “in pari materia” with NRS 41.141, the Nevada “Comparative Negligence” Statute. Statutes are said to be “in para materia” when they involve the same classes of persons or things or seek to accomplish the same purpose or object. See Goldstein v. State, 803 S.W.2d 777, 788 (Tex. App. 1991). In State Farm I, we compared the provisions of NRS 41.141 with NRS 687B.385 and concluded that there “is a direct doctrinal connection between the resolution of a claim under the liability coverage of an auto insurance policy and the determination of ‘fault' pursuant to the statutory doctrine governing tort liability.” State Farm I, 114 Nev. at 542, 958 P.2d at 737. NRS 41.141 relates to the assignment of fault between parties to a lawsuit and bars a plaintiff from recovery if the plaintiff's negligence is more than fifty percent responsible for a

covered accident. Thus, under NRS 41.141, a casualty liability insurer is required to pay a judgment where its insured is determined to be fifty percent or more at fault in connection with an accident. Based upon the foregoing analysis, the court concluded that State Farm's construction of the “at fault” provision in NRS % ZDV UHDVRQDEOH DQG WKH 'LYLVLRQ FRXOG QRW LPSRVH D GLIIHUHQW

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Ð116 Nev. 290, 295 (2000) State, Div. of Insurance v. State FarmÐ Ð 687B.385 was reasonable and the Division could not impose a different interpretation upon State Farm without first enacting a valid regulation in accordance with the procedures of NRS chapter 233B, the Administrative Procedure Act (APA). 2 [Headnotes 8, 9] We note that there are additional rules of statutory construction that apply in this instance. Whenever possible, this court will interpret a rule or statute in harmony with other rules or statutes. Bowyer v. Taack, 107 Nev. 625, 627, 817 P.2d 1176, 1177 (1991); City Council of Reno v. Reno Newspapers, 105 Nev. 886, 892, 784 P.2d 974, 978 (1989). Finally, when the legislature enacts a statute, this court presumes that it does so “with full knowledge of existing statutes relating to the same subject.” City of Boulder v. General Sales Drivers, 101 Nev. 117, 118-19, 694 P.2d 498, 500 (1985). NRS 41.141 existed when the legislature enacted NRS 687B.385. [Headnote 10] Although the subject matter of NRS 687B.385 is not precisely the same as NRS 41.141, the two concepts of fault are so closely related that they should be construed harmoniously. Accordingly, we conclude that the legislature intended that the term “at fault” contained in NRS 687B.385 means a chargeable accident does not occur unless the insured is fifty percent at fault. Having determined the legislative intent behind NRS 687B.385, we must now examine the Division's regulation, NAC 690B.230(2), to determine if it was enacted in accordance with the Division's authority under NRS 679B.130. NRS 679B.130 provides in relevant part that “[a] regulation shall not extend, modify or conflict with any law of this state or the reasonable implications thereof.” [Headnote 11] NAC 690B.230(2) forbids insurers to take any underwriting action against an insured that is fifty percent at fault. Under NRS 41.141, insurers must pay a covered claim where the insured's responsibility for an accident is fifty percent or more. The legislature, in its enactment of NRS 687B.385, intended to protect insureds from re-rating premiums only when the insured bore no legal responsibility for an accident. Any regulation that prohibits a casualty insurer from charging an accident against an insured even though the insured is legally liable for the accident under NRS 41.141 is clearly in conflict with both NRS 687B.385 and  __________ 2

Although both State Farm and the Division argue that State Farm I is dispositive of this case, footnote 4 of State Farm I specifically reserved the question of the validity of any promulgated regulation for a future date.

Ð116 Nev. 290, 296 (2000) State, Div. of Insurance v. State FarmÐ Ð 41.141. Therefore, we conclude that the Division exceeded its authority under NRS 679B.130 by promulgating NAC 690B.230(2).

CONCLUSION We conclude that the language of NAC 690B.230(2) that limits an insurer's definition of a “chargeable accident” to those accidents for which the insured is more than fifty percent at fault is in conflict with NRS 687B.385. We further conclude that the conflict between NAC 690B.230(2) and NRS 687B.385 renders NAC 690B.230(2) invalid. Accordingly, we affirm the order of the district court.

____________

Ð116 Nev. 296, 296 (2000) SIIS v. PerezÐ Ð Ð THE STATE INDUSTRIAL INSURANCE SYSTEM, nka EMPLOYERS INSURANCE COMPANY OF NEVADA, an Agency of THE STATE OF NEVADA, Appellant, v. AURELIO PEREZ and FORREST CONCRETE, Respondents. No. 31760 March 9, 2000

994 P.2d 723

Appeal from a denial for judicial review which affirmed an appeals officer's determinations in a contested workers' compensation case. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge. Workers' compensation insurer sought judicial review of appeals officer's reversal of insurer's de facto denial of claim for permanent total disability benefits under the odd-lot doctrine. The district court affirmed the appeals officer's determination. Insurer appealed. The supreme court, Shearing, J., held that: (1) claimant was not required to submit medical evidence supporting his application to re-open his claim, and (2) letter to vocational rehabilitation counselor from claimant's attorney qualified as an application for re-opening the claim. Affirmed. Lenard T. Ormsby, General Counsel, and Michael D. Wymer, Associate General Counsel, State Industrial Insurance System, Carson City, for Appellant. George T. Bochanis, Ltd., and Scott Schreiber and Kevin Johnson, Las Vegas, for Respondent Perez. Forrest Concrete, Las Vegas, in Proper Person.

Ð116 Nev. 296, 297 (2000) SIIS v. PerezÐ Ð 1. Appeal and Error. The construction of a statute is a question of law which the appellate court reviews de novo. 2. Workers' Compensation. Factors other than physical impairment, including the worker's age, experience, training, and education, may be considered in determining whether an injury qualifies a worker for permanent total disability benefits. 3. Workers' Compensation. Claimant who had received a lump sum permanent partial disability award was not subject to statutory requirement of providing medical evidence supporting an application to re-open a claim, where it was not new medical evidence that made claimant eligible for permanent total disability benefits under the odd-lot doctrine, but instead limitations from his previous physical injury, combined with non-medical intellectual and social factors, that made him unamenable to vocational rehabilitation. NRS 616C.390(2), (4), 616C.495(2), 616C.555. 4. Workers' Compensation.

Letter to vocational rehabilitation counselor from claimant's attorney qualified as an application for re-opening the claim, and the failure of workers' compensation insurer to respond was, in effect, a denial of the claim, granting claimant the right to appeal. NRS 616C.390(2), (4), 616C.495(2), 616C.555.

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Shearing, J.: FACTS On August 19, 1995, respondent Aurelio Perez injured his back in the course and scope of his employment as a laborer with Forrest Concrete Company. Perez accepted a lump sum Permanent Partial Disability (PPD) award of $14,721.51. Thereafter, he was referred to a vocational rehabilitation program pursuant to NRS 616C.555. The program was unsuccessful, and therefore Perez claimed that he was entitled to Permanent Total Disability (PTD) status under the “odd-lot” doctrine. 1 Perez made this request for permanent total disability in a letter from his attorney to Delia Martinez, a rehabilitation counselor with the

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The odd-lot doctrine is “[a] doctrine which permits finding of total disability where claimant is not altogether incapacitated for any kind of work but is nevertheless so handicapped that he will not be able to obtain regular employment in any well-known branch of the competitive labor market absent superhuman efforts, sympathetic friends or employers, a business boom, or temporary good luck.” Black's Law Dictionary 1080 (6th ed. 1990). See Nevada Indus. Comm'n v. Hildebrand, 100 Nev. 47, 675 P.2d 401 (1984).

Ð116 Nev. 296, 298 (2000) SIIS v. PerezÐ Ð Employers Insurance Company of Nevada (EICON). EICON did not respond to this request. Perez appealed and ultimately an appeals officer reversed EICON's de facto denial of Perez's claim for permanent total disability. EICON contends that the appeals officer was without jurisdiction to entertain the claim for permanent total disability status because Perez failed to comply with the formal re-opening procedures required by NRS 616C.495(2) and 616C.390(4). NRS 616C.495(2) provides: If the claimant elects to receive his payment for a permanent partial disability in a lump sum . . . all of his benefits for compensation terminate. His acceptance of that payment constitutes a final settlement of all factual and legal issues in the case. By so accepting he waives all of his rights regarding the claim, including the right to appeal from the closure of the case or the percentage of his disability, except: (a) His right to reopen his claim according to the provisions of NRS 616C.390; and (b) Any counseling, training or other rehabilitative services provided by the insurer. NRS 616C.390(4) provides: . . . [I]f an application to reopen a claim is made in writing within 1 year after the date on which the claim was closed, the insurer shall reopen the claim only if: (a) The application is supported by medical evidence demonstrating an objective change in the medical condition of the claimant; and (b) There is clear and convincing evidence that the primary cause of the change of circumstances is the injury for which the claim was originally made.

(Emphasis added.) EICON contends that the appeals officer had no jurisdiction to consider the claim for permanent total disability because Perez failed to seek re-opening via the formalities required by NRS 616C.495(2) and that Perez's letter seeking re-opening was deficient because it made no reference to any medical evidence. EICON also contends that, to the extent that the letter is treated as initiating a formal re-opening process, there was no objective medical evidence to support re-opening. DISCUSSION [Headnote 1] The construction of a statute is a question of law which this court reviews de novo. See Maxwell v. SIIS, 109 Nev. 327, 329, 849 P.2d 267, 269 (1993).

Ð116 Nev. 296, 299 (2000) SIIS v. PerezÐ Ð There is no question that Perez did not include supporting medical evidence in his request for a change from permanent partial disability to permanent total disability as is specified in NRS 616C.390(2). However, total disability claims may have nonmedical, as well as medical components. After accepting his permanent partial disability award, Perez was evaluated for vocational rehabilitation. The results showed that he had low vocational aptitudes, a third-grade education and little English. At his request, he was nevertheless referred to vocational programs, but was unsuccessful in developing a rehabilitation plan. The appeals officer made the following findings: 21. That the testimony from the Claimant, as well as reporting from Ray Figeroa of ARC, indicated that Claimant is a poor candidate for vocational rehabilitation because of his extremely low vocational aptitude scores, his inability to communicate in the English language, his minimal formal education (3rd grade) and very limited job background (exclusively construction). 22. In addition, Claimant testified that he has difficulty in seeing which would make him a poor vocational rehabilitation candidate and that he has pain in his hands and his inability to move or separate the right ring finger and pinky finger on his right hand which limits his manual dexterity. 23. That Claimant has shown by a preponderance of the evidence that he is a candidate and should be provided with permanent total disability benefits pursuant to the “odd-lot” doctrine. [Headnotes 2, 3] Factors other than physical impairment may be considered in determining whether an injury qualifies a worker for permanent total disability benefits. Nevada Indus. Comm'n v. Hildebrand, 100 Nev. 47, 51, 675 P.2d 401, 404 (1984). Such factors may include, among others, the worker's age, experience, training, and education. Id. Here, the limitations from the previous physical injury, combined with the other non-medical intellectual and social factors, made Perez eligible for permanent total disability after his permanent partial disability award. It was not new medical evidence which made Perez eligible for permanent total disability. It was his old disability plus the newly discovered factors which made him eligible. Therefore the requirement in NRS 616C.390(2) for medical evidence was not appropriate to his situation. There does not appear to be any intention on the part of the legislature to deprive someone of permanent total disability benefits after it is discovered that he is not amenable to vocational rehabilitation. Therefore, we do not construe the requirement in 156&

Ð116 Nev. 296, 300 (2000) SIIS v. PerezÐ Ð NRS 616C.390(4) for medical testimony to be a jurisdictional requirement for re-opening a claim.

[Headnote 4] Furthermore, we conclude that the letter to Ms. Martinez from Perez's attorney qualified as an application for re-opening the claim. The failure of EICON to respond was, in effect, a denial of the claim, granting Perez the right to appeal. We conclude that the appeals officer had jurisdiction to review this de facto denial, and that the appeals officer's findings were supported by substantial evidence. The other arguments of EICON are without merit. The judgment of the district court is affirmed. Becker, J., concurs. Maupin, J., concurring: Two types of permanent partial disability (“PPD”) re-openings are contemplated under NRS 616C.390(4): (1) to increase PPD benefits based upon a medical change in the worker's condition; and (2) to seek a change in the characterization of the award to permanent total disability (“PTD”). 1 Here, Perez seeks reclassification under the “odd-lot” doctrine. See NRS 616C.435(2); Nevada Indus. Comm'n v. Hildebrand, 100 Nev. 47, 675 P.2d 401 (1984). The question of utmost importance on this appeal is whether, as a jurisdictional matter, the industrial insurer itself or the Department of Administration may never entertain a claim for conversion of PPD to PTD status in the absence of medical evidence of an objective change in the worker's condition. Clearly, NRS 616C.390 requires competent medical evidence as a precondition to re-opening. Further, the statutory scheme, as indicated, contemplates re-opening to convert PPD status to PTD status. However, “odd-lot” total disability claims have two components, only one of which is addressed in NRS 616C.390(4). Unlike the re-opening of a PPD claim to effect a simple increase in the PPD rating, the re-opening of a claim seeking SHUPDQHQW WRWDO GLVDELOLW\ VWDWXV PD\ KDYH HLWKHU PHGLFDO RU QRQPHGLFDO

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Perez contends that he was not required to seek formal re-opening with supporting medical evidence because a claim to convert a worker's PPD status to PTD status is simply the end result of a failure of rehabilitative services which are allowed under NRS 616C.495(2). In light of the plain language of NRS 616C.390(4), I disagree. However, in my view, the letter to Ms. Martinez qualified as formal application for re-opening. I am also of the opinion that the statutory language requiring that such applications be supported with medical evidence does not require that the evidence itself be physically attached to the actual communication stimulating the re-opening process. It is sufficient if there is a general averment mentioning the supporting evidence, which must be provided during the administrative proceedings over the claim.

Ð116 Nev. 296, 301 (2000) SIIS v. PerezÐ Ð permanent total disability status may have either medical or nonmedical components. First, a condition may have ripened into a scheduled disability under NRS 616C.435(1). This type of change in status is addressed by the terms of the re-opening statute because the change could only be demonstrated by objective medical evidence. Second, a program of rehabilitation undertaken after a PPD award may demonstrate an inability of the worker to return to employment because of the effect of non-medical issues acting in synergy with the known medical condition. This is the sine qua non of “odd-lot” permanent total disability. In Hildebrand, this court identified examples of non-medical components, i.e., age, experience, training and education. Third, the medical condition could worsen and, along with non-medical issues, cause the worker's status to deteriorate to the extent “odd-lot” status is appropriate.

Again, the re-opening statute requires proof of an objective change in the industrial medical condition as a condition to re-opening a claim following an award. It makes no mention of a change of the non-medical or “social” circumstances as a basis for re-opening a PPD award to claim “odd-lot” PTD status. I do not believe that this omission was intentional. I would therefore elaborate on the majority analysis as follows. A PPD award may be re-opened to claim PTD status if the following is established with legally competent evidence documenting: (1) an objective change in the worker's medical condition stemming from the industrial injury which demonstrates a scheduled total disability under NRS 616C.435(1); (2) a legitimate inability to rehabilitate the worker such that he or she qualifies for unscheduled (“odd-lot”) permanent disability; or (3) changes in the worker's medical condition which, in combination with nonmedical issues, would justify “odd-lot” status. Of course, these proofs must satisfy the requirements of NRS 616C.435. If the various permutations are not recognized, the statutory re-opening scheme would not fully account for the possibilities attendant to PTD claims based upon the “odd-lot” doctrine. ____________

Ð116 Nev. 302, 302 (2000) Moore v. StateÐ Ð JAMES LAMONT MOORE, Appellant, v. THE STATE OF NEVADA, Respondent. No. 28896 March 10, 2000

997 P.2d 793

Appeal from a judgment of conviction, pursuant to jury verdicts of guilty on one count of murder with the use of a deadly weapon, and five counts of robbery with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge. Defendant was convicted, pursuant to jury verdicts, in the district court of murder with the use of a deadly weapon and robbery with the use of a deadly weapon, and he appealed. The supreme court held that: (1) State was permitted to proceed under alternative theories of premeditation/deliberation and felony-murder to prove the elements of first-degree murder, (2) information was sufficient to place defendant on notice that the State was seeking a felony-murder conviction, and (3) error stemming from impropriety during the State's closing argument was harmless. Affirmed. Morgan D. Harris, Public Defender, and Michael L. Miller, Deputy Public Defender, Clark County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent. 1. Homicide. State was permitted to proceed under alternative theories of premeditation/deliberation and felony-murder to prove the elements of first-degree murder. NRS 200.030(1)(a), (b). 2. Criminal Law. Jury need not even reach unanimity with respect to alternative theories in first-degree murder prosecution. NRS 200.030. 3. Homicide. Information alleging that the murder occurred during the course of a robbery was sufficient to place defendant on notice that the State was seeking a felony-murder conviction. NRS 200.030(1)(b). 4. Homicide. First-degree murder conviction based on felony-murder cannot be sustained unless the State gives notice in its charging document that it is seeking a conviction based upon such a theory and states specific facts supporting the conclusion that the murder was

committed during the commission of a particular identified felony. NRS 200.030(1)(b). 5. Criminal Law. Prosecutors must be free to express their perceptions of the record, evidence, and inferences, properly drawn therefrom; however, prosecutors must not place their own personal certification on a jury argument E\ WKH XVH RI VXFK H[SUHVVLRQV DV ³,

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Ð116 Nev. 302, 303 (2000) Moore v. StateÐ Ð by the use of such expressions as “I personally believe” or “in my humble opinion.” 6. Criminal Law. Criminal conviction is not to be lightly overturned on the basis of a prosecutor's comment standing alone. 7. Criminal Law. Relevant statements or conduct must be viewed in context to determine whether a prosecutor's conduct affected the fairness of the trial. If the error is harmless, beyond a reasonable doubt, the conviction will stand. 8. Criminal Law. Prosecutor's closing argument statement, “I am telling you now with all sincerity, I kept my promise” to prove defendant was guilty of murder and robbery beyond a reasonable doubt, was improper, but statement that defendant was not overcharged was not. 9. Criminal Law. Any resulting error from prosecutor's improper statement during closing argument that he kept his promise to prove defendant was guilty of murder and robbery beyond a reasonable doubt was harmless beyond a reasonable doubt.

Before Maupin, Shearing and Becker, JJ. OPINION Per Curiam: Appellant, James Lamont Moore, was convicted in district court of first-degree murder and multiple robberies, all with the use of a deadly weapon. Moore appeals, arguing three assignments of error in support of reversal of the judgment entered upon his convictions. First, the State should have been required to elect between theories of premeditated murder under NRS 200.030(1)(a) and felony-murder under NRS 200.030(1)(b). Second, the criminal information containing the charges against him was not sufficiently definite with regard to the felony-murder allegations. Third, the prosecutor was guilty of misconduct during closing arguments to the jury. We reject all of Moore's contentions on appeal. FACTS On April 24, 1994, Moore shot and killed Jimmie Wyant, a bartender at Granny's bar in North Las Vegas, Nevada. Moore had been a regular customer of the establishment. The shooting took place after Wyant refused Moore's armed demands for money and after threats that he would kill Wyant if the refusals to comply continued. After shooting Wyant, Moore took money from the cash register and several other customers. Moore then OHIW WKH VFHQH DW ZKLFK WLPH RQH RI WKH FXVWRPHUV VXPPRQHG WKH

SROLFH Ð116 Nev. 302, 304 (2000) Moore v. StateÐ Ð left the scene, at which time one of the customers summoned the police. In the interim, Moore returned but fled upon the arrival of law enforcement officials. Police ultimately arrested Moore, recovered the murder weapon, and conducted a custodial interview in compliance with Miranda v. Arizona, 384 U.S. 486 (1966). Although Moore admitted his involvement in the shooting and the robberies, he claimed that the shooting was an accident, that the gun “just went off,” and that he had returned to the bar to check on Wyant's condition. On April 30, 1996, Moore was convicted of one count of first-degree murder with the use of a deadly weapon and five counts of robbery with the use of a deadly weapon. DISCUSSION

Election of theories by the State [Headnote 1] Moore first contends that the district court erroneously denied his request to compel the State to elect a theory of prosecution, i.e., between premeditated murder and “felony-murder.” See NRS 200.030(1)(a) and (b). 1 [Headnote 2] In Holmes v. State, 114 Nev. 1357, 1363-64, 972 P.2d 337, 342 (1998), we concluded that the commission of a felony and premeditation are merely alternative means under NRS 200.030 of establishing the single mens rea element of first-degree murder, rather than constituting independent elements of the crime. See Doleman v. State, 107 Nev. 409, 417, 812 P.2d 1287, 1292 (1991) (jury instructed on various theories of first-degree murder including premeditation and felony-murder); Nevius v. State, 101 Nev. 238, 243, 699 P.2d 1053, 1060 (1985) (jury instructed on both premeditation/deliberation and felony-murder theories of liability for first-degree murder). Further, a jury need not even reach unanimity with respect to either theory. See Schad v. Arizona, 501 U.S. 624, 631 (1991), cited with approval in Holmes. Thus, there is no requirement that the State elect a single theory of prosecution for murder. We conclude that Moore's motion was properly denied and hold that the State is permitted to proceed under alternative theories of premeditation/deliberation and felony-murder to prove the elements of first-degree murder. __________ 1

“Murder of the first degree is murder which is: (a) Perpetrated by means of poison, . . . or by any other kind of willful, deliberate and premeditated killing; [or] (b) Committed in the perpetration of . . . robbery . . . .” NRS 200.030(1)(a) and (b).

Ð116 Nev. 302, 305 (2000) Moore v. StateÐ Ð Sufficiency of the criminal information [Headnote 3] Moore contends that the felony-murder charge set forth in the criminal information was fatally defective for lack of factual specificity. [Headnote 4] A first-degree murder conviction based on felony-murder cannot be sustained unless the State gives notice in its charging document that it is seeking a conviction based upon such a theory and states specific facts supporting the conclusion that the murder was committed during the commission of a particular identified felony. See Alford v. State, 111 Nev. 1409, 1410-11, 906 P.2d 714, 715 (1995). Count I of the information read, in part, as follows: COUNT I—MURDER WITH USE OF A DEADLY WEAPON . . . [O]n or about April 24, 1994, defendant . . . did then and there, willfully, feloniously, without authority of law, with malice aforethought and premeditation and/or during the course of committing Robbery and/or Attempt Robbery, kill JIMMIE EARL WYANT with a deadly weapon, to-wit: a firearm, during the commission of said crime. . . . We conclude that the information was sufficient to place Moore on notice that the State was seeking a felony-murder conviction. The facts stated in the information clearly allege that the murder occurred during the course of a robbery on April 24, 1994.

Charges of misconduct by the prosecutor Moore contends that the prosecutor improperly argued that the State had kept its promise to prove Moore guilty beyond a reasonable doubt and that Moore was not overcharged. The statements in controversy are: Ladies and gentlemen, when I stood before you and made my opening statement I also made a promise. The promise was that the evidence would prove beyond a reasonable doubt James Lamont Moore committed the crimes charged. I am telling you now with all sincerity, I kept my promise, . . . (Emphasis added.) Mr. Wall also alluded to his concern that as a jury you consider individually all six of the counts. I don't disagree with that. In fact, the Court tells you in the instructions that you must consider the evidence individually regarding the YDULRXVFRXQWV

Ð116 Nev. 302, 306 (2000) Moore v. StateÐ Ð various counts. They are all serious or they wouldn't be alleged. I do want to say however, that no one has tried to pile on charges in this case. (Emphasis added.) [Headnotes 5-7] Prosecutors must be free to express their perceptions of the record, evidence, and inferences, properly drawn therefrom. See Jimenez v. State, 106 Nev. 769, 773, 801 P.2d 1366, 1368 (1990). However, prosecutors must not place their own personal certification on a jury argument by the use of such expressions as “I personally believe” or “in my humble opinion.” Id. However, a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comment standing alone. See United States v. Young, 470 U.S. 1, 11 (1985). Relevant statements or conduct must be viewed in context to determine whether the prosecutor's conduct affected the fairness of the trial. Id. If the error is harmless, beyond a reasonable doubt, the conviction will stand. See Manning v. Warden, 99 Nev. 82, 87, 659 P.2d 847, 850 (1983). [Headnotes 8, 9] We conclude that the first disputed statement made by the prosecution was improper, but the second disputed statement was not. However, a careful review of the record suggests that the fairness of Moore's trial was unaffected by the improper statement. We therefore hold that while one of the disputed statements was improper, any resulting error was harmless beyond a reasonable doubt. CONCLUSION We conclude that Moore's motion to require the State to elect a theory of prosecution of first-degree murder was properly denied. We further conclude that the facts alleged in the criminal information were sufficiently specific to put Moore on notice that the State sought a conviction based upon a felony-murder theory. We finally conclude that error stemming from an impropriety during the State's closing argument was harmless. ____________

Ð116 Nev. 307, 307 (2000) Krauss v. StateÐ Ð HAROLD JAMES KRAUSS, Appellant, v. THE STATE OF NEVADA, Respondent. No. 30264 March 10, 2000

998 P.2d 163

Proper person appeal from a district court order denying appellant's post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge. Defendant convicted of felony driving while under the influence (DUI), as a third DUI offense, brought post-conviction petition for writ of habeas corpus. The district court denied the petition. Defendant appealed. The supreme court, Maupin, J., held that: (1) a defendant may stipulate to or waive proof of prior DUI convictions, for purposes of sentence enhancement, overruling Robertson v. State, 109 Nev. 1086, 863 P.2d 1040 (1993); and (2) trial counsel was not ineffective in failing to challenge the prior convictions. Affirmed. Harold James Krauss, Las Vegas, in Proper Person. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Clark County, for Respondent. 1. Automobiles. A prior driving while under the influence (DUI) conviction for which defendant was not represented by counsel would be invalid for purposes of enhancing the sentence for a subsequent DUI conviction, absent sufficient evidence that defendant had validly waived the right to counsel and that the spirit of constitutional principles was respected. U.S. Const. amend. 6; NRS 484.3792. 2. Criminal Law. Trial counsel was not ineffective in failing to challenge the validity of one of defendant's prior driving while under the influence (DUI) convictions, which was used to enhance defendant's sentence for the present DUI offense, where defendant had indicated in open court that he did not wish to challenge the validity of prior convictions and that he had been represented by counsel in the prior proceedings. U.S. Const. amend. 6; NRS 484.3792. 3. Automobiles. Defendant's statements on the record, indicating that he did not wish to challenge the validity of his prior driving while under the influence (DUI) convictions and that he had been represented by counsel in the prior proceedings, made it unnecessary for State to offer evidence of the prior convictions for purposes of enhancing defendant's sentence for the present DUI offense, though the better practice would have been for the State to make a clear record of defendant's prior convictions by producing proof at the sentencing hearing. U.S. Const. amend. 6; NRS 484.3792.

Ð116 Nev. 307, 308 (2000) Krauss v. StateÐ Ð 4. Automobiles. A defendant may stipulate to or waive proof of prior driving while under the influence (DUI) convictions, for purposes of sentence enhancement; overruling Robertson v. State, 109 Nev. 1086, 863 P.2d 1040 (1993). NRS 484.3792. 5. Estoppel. Generally, a defendant is entitled to enter into agreements that waive or otherwise affect his or her fundamental rights. 6. Criminal Law. A defendant charged with driving while under the influence (DUI) may waive a preliminary hearing, even though a statute indicates that, if a felony DUI offense is alleged, the facts of the prior convictions “must also be shown at the preliminary examination or presented to the grand jury.” NRS 484.3792(2). 7. Criminal Law. By pleading guilty, a defendant may waive the trial itself, thereby relieving the State of its obligation to prove the substantive offense. 8. Criminal Law. Trial counsel was not ineffective in allegedly failing to review the presentence investigation report and to bring alleged errors in the report to the district court's attention, where the alleged errors were comparatively minor, so that defendant was not prejudiced. U.S. Const. amend. 6.

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Maupin, J.: This is a proper person appeal from a district court order denying appellant's post-conviction petition for a writ of habeas corpus. In his petition, appellant alleged: (1) that his trial counsel was ineffective; and (2) that the State failed to prove the prior convictions for driving while under the influence (DUI) required to enhance appellant's present conviction to felony, third-offense DUI. See NRS 484.3792(2). Although we conclude that appellant's claims lack merit, we issue this opinion to establish that a defendant charged with felony DUI may stipulate to the existence of prior convictions for enhancement purposes. On December 19, 1995, the district court convicted appellant, pursuant to a guilty plea, of one count of DUI, appellant's third offense within seven years. See NRS 484.3792. The court sentenced appellant to serve five years in the Nevada State Prison. This court dismissed appellant's untimely direct appeal for lack of jurisdiction. Krauss v. State, Docket No. 29710 (Order Dismissing Appeal, March 14, 1997). On June 14, 1996, appellant filed a proper person post-conviction petition for a writ of habeas corpus in the district FRXUW

Ð116 Nev. 307, 309 (2000) Krauss v. StateÐ Ð court. The State opposed the petition. The district court declined to appoint counsel or hold a formal evidentiary hearing. However, the court did admit evidence of appellant's prior convictions that the State alleged should enhance appellant's present conviction to felony, third-offense DUI. The court summarily denied appellant's petition. This appeal followed. In his petition, appellant raised two primary claims. First, appellant argued that his counsel was ineffective for failing to test the validity of the prior DUI convictions during the district court proceedings or on direct appeal. Second, appellant claimed that the State failed to prove his prior DUI convictions with sufficient competent evidence. [Headnote 1] From the existing record, it is unclear whether the State produced any proof of the prior convictions before the post-conviction proceedings. Further, it appears that appellant might not have been represented by counsel in one of the two prior DUI cases used to enhance his sentence. The conviction in that case would be invalid for enhancement purposes absent sufficient evidence that appellant “validly waived the right to counsel and that the spirit of constitutional principles was respected.” See Davenport v. State, 112 Nev. 475, 478, 915 P.2d 878, 880 (1996). [Headnote 2] Nevertheless, appellant led his attorney and the sentencing court to believe that he had been represented by counsel in both cases and that both prior convictions were valid for enhancement purposes. Notably, the following exchange occurred at sentencing: THE COURT: By virtue of your previous guilty plea you are hereby adjudged guilty of the offense of driving and/or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor. Did we establish the toxicology of the previous offense? I believe we did that at the time we took the plea, didn't we? [DEFENSE COUNSEL]: I think so, Your Honor. THE COURT: He was represented by an attorney in each of these cases?

[DEFENSE COUNSEL]: I believe we did, Your Honor. THE COURT: Well, Mr. Krauss, do you dispute any of the prior convictions as shown in the presentence report where you had been charged with driving under the influence of intoxicating liquor within the last seven years? THE DEFENDANT: No, Your Honor. THE COURT: You were represented by an attorney in reach [sic] one of those cases, weren't you? THE DEFENDANT: Yes, sir.

Ð116 Nev. 307, 310 (2000) Krauss v. StateÐ Ð Given appellant's statements on the record, we reject his claim that his counsel was ineffective for failing to test the validity of the prior DUI convictions. The United States Supreme Court has explained, “The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Strickland v. Washington, 466 U.S. 668, 691 (1984). Here, the information supplied by appellant, in open court, indicated that he did not wish to challenge the validity of the prior DUI convictions and that he had been represented by counsel in the prior proceedings. It was reasonable for appellant's counsel to rely on his client's assertions. [Headnote 3] Similarly, we conclude that relief is unwarranted even assuming that the State failed to offer sufficient competent evidence of appellant's prior convictions. Assuming the State was prepared to produce proof of appellant's prior convictions at the time of sentencing, appellant's statements on the record obviated the need for it to do so. 1 [Headnote 4] We recognize that our ruling today is inconsistent with dictum in Robertson v. State, 109 Nev. 1086, 863 P.2d 1040 (1993). In Robertson, the State acknowledged “that the validity of prior convictions is a legal status to which a defendant may not stipulate and must be determined by the district court as a matter of law.” Id. at 1089, 863 P.2d at 1042. We overrule Robertson to the extent that the opinion suggests that a defendant may not stipulate to or waive proof of prior DUI convictions. [Headnotes 5-7] Generally, a defendant is entitled to enter into agreements that waive or otherwise affect his or her fundamental rights. Campbell v. Wood, 18 F.3d 662, 673 (9th Cir. 1994). For example, a defendant may waive a preliminary hearing even though NRS 484.3792(2) indicates that, if a felony DUI offense is alleged, the facts of the prior convictions “must also be shown at the preliminary examination or presented to the grand jury.” Further, by pleading guilty a defendant may waive the trial itself, thereby relieving the State of its obligation to prove the substantive RIIHQVH __________ 1

In so ruling, we recognize that the better procedure would have been for the State to make a clear record of appellant's prior convictions by producing proof of the convictions at the sentencing hearing. See NRS 484.3792(2).

Ð116 Nev. 307, 311 (2000) Krauss v. StateÐ Ð

offense. It follows that a defendant should be able to stipulate to or waive proof of the prior convictions at sentencing. [Headnote 8] Having concluded that the claims appellant raised in his petition lack merit, 2 we affirm the district court order denying the petition. 3 Shearing and Becker, JJ., concur.

____________

Ð116 Nev. 311, 311 (2000) Breault v. StateÐ Ð Ð ROBERT RAYMOND BREAULT, Appellant, v. THE STATE OF NEVADA, Respondent. No. 31211 March 10, 2000

996 P.2d 888

Proper person appeal from a district court order denying appellant's motion to correct an illegal sentence. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge. Defendant pleaded guilty to mayhem and assault with a deadly weapon, and was sentenced to serve a maximum term of 70 months with a minimum parole eligibility of 42 months on the mayhem conviction and consecutive maximum term of 20 months with a minimum parole eligibility of 12 months on the assault conviction. The district court denied defendant's proper person motion to correct an illegal sentence, and he appealed. The supreme court, Becker, J., held that, although sentences did not comply with statute requiring that minimum term of imprisonment must not exceed forty percent of the maximum term imposed, sentences were part of a voluntary and knowing plea. Affirmed. Robert Raymond Breault, Jean, in Proper Person. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Clark County, for Respondent. __________ 2

In his petition, appellant also claimed that his counsel improperly failed to review the presentence investigation report and to bring alleged errors in the report to the district court's attention. The alleged errors in the report are comparatively minor. Having reviewed the sentencing transcript, we do not perceive that appellant suffered any prejudice even assuming his allegations are true. Thus, appellant's claim lacks merit. 3

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.

Ð116 Nev. 311, 312 (2000) Breault v. StateÐ Ð 1. Criminal Law. Although sentences for mayhem and assault with a deadly weapon agreed upon by the parties, and which the court ultimately imposed, did not comply with statute requiring that minimum term of imprisonment must not exceed forty percent of the maximum term imposed, sentences were part of a voluntary and knowing plea, in which defendant expressly waived any defects associated with the minimum and maximum terms of his sentences. NRS 193.130(1). 2. Criminal Law. When a defendant knowingly and voluntarily agrees to the sentence, and expressly waives the defect impacting only parole eligibility, the supreme court will not permit the defendant to manipulate the judicial system by subsequently insisting that the sentence conform to the requirements of statute providing that minimum term of imprisonment that may be imposed must not exceed forty percent of the maximum term imposed. NRS 193.130(1).

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Becker, J.: On January 28, 1997, the district court convicted appellant Robert Raymond Breault, pursuant to a guilty plea, of one count each of mayhem and assault with a deadly weapon. For the mayhem conviction, the district court sentenced appellant to serve a maximum term of 70 months with a minimum parole eligibility of 42 months. For the assault with a deadly weapon conviction, the district court sentenced appellant to serve a maximum term of 20 months with a minimum parole eligibility of 12 months. The district court ordered the sentences to be served consecutively. Appellant was given credit for 353 days of time served. On September 17, 1997, appellant filed a proper person motion to correct an illegal sentence in the district court. In his motion, appellant contended that his sentences were illegal because the minimum sentence exceeded forty percent of the maximum sentence for each offense in violation of NRS 193.130. Appellant requested the district court to modify his sentences to a maximum term of 70 months with a minimum parole eligibility of 28 months for mayhem, and a maximum term of 20 months with minimum parole eligibility of 8 months for assault with a deadly weapon. The State opposed the motion. The district court entered a written order summarily denying appellant's motion, and this appeal followed. [Headnote 1] We conclude that the district court properly denied appellant's motion. NRS 193.130(1) provides in relevant part:

Ð116 Nev. 311, 313 (2000) Breault v. StateÐ Ð [A] person convicted of a felony shall be sentenced to a minimum term and a maximum term of imprisonment which must be within the limits prescribed by the applicable statute, unless the statute in force at the time of commission of the felony prescribed a different penalty. The minimum term of imprisonment that may be imposed must not exceed 40 percent of the maximum term imposed. For the offense of mayhem, the statutory sentencing range is a minimum term of not less than 24 months and a maximum term of not more than 120 months. NRS 200.280. 1 Here, appellant's minimum term of 42 months exceeds forty percent of the maximum term of 70 months, and thus does not comply with NRS 193.130(1). For the offense of assault with a deadly weapon, the statutory sentencing range is a minimum term of not less than 12 months and a maximum term of not more than 72 months. NRS 200.471(2)(b). Appellant's minimum term of 12 months exceeds forty percent of the maximum term of 20 months, and thus does not comply with NRS 193.130(1). Appellant, however, agreed to the sentences imposed as part of the negotiated plea agreement. The written

guilty plea memorandum provided: The Defendant waives all defects associated with the minimum and maximum terms associated with Count I and Count II. The defendant also understands and agrees that it is the intent of the parties that he serve a mandatory minimum of 54 months in the Nevada State Prison before parole eligibility. Appellant has not alleged that his plea was involuntary or unknowing. Further, in the State's opposition filed in the district court, the State contended that “the maximums were reduced as an accommodation for the defendant who was concerned that he might have to pull the top end of a maximum which was greater than the stipulated maximum sentence.” While this statement is somewhat ambiguous, it appears that the parties' agreement was intended to benefit appellant. Moreover, the minimum and maximum terms of appellant's sentences were well within the statutory ranges. The fact that the minimum terms exceeded forty percent of the maximum terms imposed, merely affected appellant's parole eligibility and not the actual length of his sentences. See NRS 213.1099(2) (stating that a person convicted of a felony and sentenced to a term of imprisRQPHQW UHPDLQV VXEMHFW WR WKH

MXULVGLFWLRQRIWKHSDUROHERDUGIURPWKHWLPHKHLVUHOHDVHGRQSDUROHXQWLOWKHH[SLUDWLRQ RIWKHPD[LPXPWHUPRILPSULVRQPHQW  __________ 1

Although the applicable statutes set forth the sentencing ranges in terms of years, we refer to the sentencing ranges in terms of months for purposes of clarity. See NRS 200.280 and NRS 200.471.

Ð116 Nev. 311, 314 (2000) Breault v. StateÐ Ð onment remains subject to the jurisdiction of the parole board from the time he is released on parole until the expiration of the maximum term of imprisonment); NRS 213.120 (stating that a prisoner who is sentenced for a crime committed on or after July 1, 1995, may be paroled when he has served the minimum term of imprisonment; credits earned to reduce his sentence pursuant to NRS chapter 209 may only reduce the maximum term). [Headnote 2] We disapprove of sentences which do not comply with the forty-percent provision of NRS 193.130(1), and we will not hesitate to invalidate a sentence which violates this provision. However, when a defendant knowingly and voluntarily agrees to the sentence, and expressly waives the defect impacting only parole eligibility, we will not permit the defendant to manipulate the judicial system by subsequently insisting that the sentence conform to the forty-percent provision. Here, the sentences agreed upon by the parties, and which the court ultimately imposed, were part of a voluntary and knowing plea, and appellant expressly waived any defects associated with the minimum and maximum terms of his sentences. Under these circumstances, we will not interfere with the sentences imposed. See United States v. Barnes, 83 F.3d 934, 941 (7th Cir. 1996) (upholding a plea agreement that provided for a sentence which departed from the prescriptions of federal sentencing guidelines); United States ex rel. Ferris v. Finkbeiner, 551 F.2d 185 (7th Cir. 1977) (holding that when the defendant was misadvised when entering his guilty plea that he would not have to serve a mandatory parole term following his release from prison, fundamental fairness required limiting the term of his sentence to that which comported with the plea bargain). Our holding today is not inconsistent with Miranda v. State, 114 Nev. 385, 956 P.2d 1377 (1998). In Miranda, the district court modified Miranda's sentences which did not comply with NRS 193.130(1) by increasing the maximum terms, even though the court could have reduced the minimum terms to come within the statute. On appeal, this court concluded that the court may correct an illegal sentence by increasing its severity only when there is no other, less severe means of correcting the illegality. Id. at 387, 956 P.2d at 1378. In Miranda, however, there was no indication that Miranda agreed to the sentences originally imposed by the

district court, or that Miranda agreed to waive any defects associated with the minimum and maximum terms as part of the plea agreement. Thus, Miranda is distinguishable from the instant case. Accordingly, we conclude that the district court properly denied DSSHOODQW V PRWLRQ WR FRUUHFW DQ

LOOHJDOVHQWHQFHDQGZHDIILUPWKHRUGHURIWKHGLVWULFWFRXUW Ð116 Nev. 311, 315 (2000) Breault v. StateÐ Ð appellant's motion to correct an illegal sentence, and we affirm the order of the district court. 2 Maupin and Shearing, JJ., concur.

____________

Ð116 Nev. 315, 315 (2000) Gallimort v. StateÐ Ð Ð JOSE A. GALLIMORT, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32349 March 10, 2000

997 P.2d 796

Appeal from a judgment of conviction, pursuant to a bench trial, of one count each of first-degree kidnapping with the use of a deadly weapon and battery with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge. Defendant was convicted in the district court of one count each of first-degree kidnapping with the use of a deadly weapon and battery with the use of a deadly weapon, and he appealed. The supreme court, Shearing, J., held that: (1) there was no prejudice to defendant resulting from language barrier, (2) failure to execute written waiver of right to jury trial until conclusion of trial did not warrant grant of new trial, and (3) police officer's failure to collect as evidence knife which defendant allegedly used to stab victim did not require reversal of convictions. Affirmed. JoNell Thomas, Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and Kristen Nelsen, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. There was no prejudice to defendant resulting from language barrier in prosecution for kidnapping and battery. There was no evidence to show that translation difficulties precluded defendant from assisting counsel in his defense, and there were no allegations of inaccurate translation raised during trial. 2. Criminal Law. Failure to execute written waiver of right to jury trial, as required by VWDWXWHXQWLOFRQFOXVLRQRIWULDOGLGQRWZDUUDQW

JUDQWRIQHZWULDORQNLGQDSSLQJDQGEDWWHU\FKDUJHV __________ 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.

Ð116 Nev. 315, 316 (2000) Gallimort v. StateÐ Ð

3.

4.

5.

6.

statute, until conclusion of trial did not warrant grant of new trial on kidnapping and battery charges, where defendant was aware of his right to jury trial and made knowing and intelligent oral waiver on record prior to commencement of bench trial. NRS 175.011(1). Jury. When a defendant wishes to waive his right to jury trial, better practice is for judge to inform the defendant of: (1) the number of members of the community composing a jury, (2) the defendant's ability to take part in jury selections, (3) the requirement that jury verdicts must be unanimous, and (4) that the court alone decides guilt or innocence if the defendant waives a jury trial. Criminal Law. The supreme court applies a two-part test to determine whether a police officer's failure to collect evidence is reversible error: (1) the defendant must show that the evidence was material; and (2) if the evidence was material, then the court must consider whether the officer's actions were merely negligent, grossly negligent, or conducted in bad faith to prejudice the defense. Criminal Law. The mere possibility that evidence may have affected the outcome of the trial does not establish materiality for purposes of determining whether police officer's failure to collect evidence is reversible error. Criminal Law. Police officer's failure to collect as evidence knife which defendant allegedly used to stab victim did not require reversal of convictions for kidnapping and battery, where victim was unable to positively identify knife as one used by defendant, knife had been washed clean of fingerprints before officer was able to collect it, and other evidence, including testimony of victim and medical evidence of stab wounds, rendered issue of which knife defendant used immaterial.

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Shearing, J.: Appellant Jose Gallimort, convicted on kidnapping and battery charges, argues that he should be granted a new trial because he was not provided a qualified interpreter during each day of his trial, and because he did not waive his right to a jury trial. Gallimort also contends that his conviction should be reversed because the police failed to preserve material evidence. We disagree with Gallimort's arguments and affirm his conviction. BACKGROUND Gallimort and Cynthia Rozier had been living with each other on a sporadic basis for approximately two years. During this time, Rozier had made allegations of physical abuse and had at one point obtained a restraining order against Gallimort. Eventually Gallimort moved out of Rozier's apartment.

Ð116 Nev. 315, 317 (2000) Gallimort v. StateÐ Ð At trial, Rozier testified that during the process of moving out, Gallimort arrived at her apartment with a friend to remove Gallimort's possessions. Rozier stated that instead of taking his things and departing, Gallimort beat and kicked her, causing injuries to her eye, mouth, and rib cage. Pointing a pistol at Rozier, Gallimort then instructed her to dance with his friend. Rozier testified that Gallimort also threatened to kill her. Minutes later, Gallimort's friend left the apartment after engaging in a disagreement with Gallimort. Then, with a kitchen knife and the pistol, Gallimort forced Rozier into his car and instructed her to drive. After an hour of driving, Gallimort allowed Rozier to stop to use a restroom at a convenience store. However, Gallimort changed his mind and refused to allow Rozier to exit the vehicle. Inside the car, a struggle ensued during which Gallimort inflicted shallow knife wounds to Rozier's neck, hands, chest, and shoulder. Rozier testified that she was able to escape the car, but Gallimort pursued her with the knife, slashing her in the back. During the chase, they activated a car alarm on a parked car, which made local residents come out of their houses to discover what instigated the alarm. While residents watched, Gallimort fled the scene. Rozier was

speaking with a police officer who arrived on the scene, when she identified a car returning to the scene as Gallimort's. Eyewitnesses also recognized the vehicle. Rozier was then taken to the hospital for her cuts, bruises, and multiple stab wounds. When Rozier returned to her apartment after two days at the hospital and a women's shelter, she found her clothes torn and many of her possessions gone. 1 During Rozier's search of the premises, she found the gun and knife she believed Gallimort used. The police collected the gun, but not the knife. Rozier was not sure that the knife, which had been washed, was the one Gallimort used, so the police apparently decided it was not of sufficient evidentiary value to collect it. Because the police did not collect the knife, Rozier disposed of it. At pre-trial hearings, Gallimort was afforded a Spanish-speaking interpreter. The record also reflects the presence of an interpreter on the first day of trial. While the trial transcript does not mention an interpreter on the second day of trial, another district court document shows the presence of two interpreters that day, one in the morning and another in the afternoon. On the first day of trial, Gallimort orally waived his right to a jury trial. After both sides made their closing arguments, the FRXUW GLVFRYHUHG WKDW *DOOLPRUW KDG QRW VLJQHG D ZULWWHQ ZDLYHU RI WKH MXU\

WULDO __________ 1

When Gallimort was arrested, the police discovered Rozier's personal property in Gallimort's vehicle.

Ð116 Nev. 315, 318 (2000) Gallimort v. StateÐ Ð court discovered that Gallimort had not signed a written waiver of the jury trial: THE COURT: Another matter of housekeeping. It's been brought to my attention that the waiver of jury trial, the formal document waiving jury trial, has not been executed by the defendant. Mr. Gallimort, I would ask you to waive that, in keeping with your request for a bench trial. The record will reflect the waiver has been signed. The judge then ruled that Gallimort was guilty of first-degree kidnapping with the use of a deadly weapon and battery with the use of a deadly weapon. DISCUSSION [Headnote 1] Gallimort alleges that interpreters were not provided for him at all stages of the trial and that those interpreters who were provided at some stages of the trial were not qualified. We reject these contentions for three reasons. First, a district court document shows that an interpreter was present throughout Gallimort's trial. Second, similar to the circumstances in State v. Langarica, 107 Nev. 932, 935, 822 P.2d 1110, 1112 (1991), at Gallimort's trial there were neither allegations of inaccurate translation nor any evidence that Gallimort misunderstood any testimony. Third, Gallimort's due process rights were not violated since he was able—through an interpreter—to assist counsel in his defense. See, e.g., Ton v. State, 110 Nev. 970, 972, 878 P.2d 986, 987 (1994). Since there was no objection during trial and no allegation or evidence that Gallimort did not understand the interpreter, Gallimort's contention that the interpreters were not qualified is unsupported. [Headnote 2] Gallimort argues that he did not knowingly and intelligently waive his right to a jury trial. See, e.g., Adams v. U.S. ex rel. McCann, 317 U.S. 269, 277 (1942) (stating that accused must be competent to exercise an intelligent and informed waiver of the right to trial by jury). We review the waiver of a jury trial de novo. See United States v. Robertson, 45 F.3d 1423, 1430 (10th Cir. 1995). NRS 175.011(1) allows a defendant to waive his right to

trial by jury when the defendant makes a written waiver and the court and the state consent to the jury trial waiver. In this case, Gallimort signed the written waiver after the trial. The trial judge requested that Gallimort sign the written waiver just before the judge pronounced his verdict, and Gallimort complied with WKHMXGJH V

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Ð116 Nev. 315, 319 (2000) Gallimort v. StateÐ Ð the judge's request. While the written waiver should have been signed before trial, we conclude that a new trial is unwarranted because Gallimort made an oral knowing and intelligent waiver of his right to trial by jury on the record before the bench trial commenced. The United States Court of Appeals for the Ninth Circuit in Brown v. Burns, 996 F.2d 219 (9th Cir. 1993), faced a situation similar to the one we face today. In Burns, the defendant did not sign a written waiver as required by Nevada statute. See id. at 220-21. However, the trial judge and the defendant had engaged in a dialogue about the differences between a bench trial and a jury trial. After this conversation, the defendant waived his right to a jury trial. The Ninth Circuit held that the defendant's express waiver in open court satisfied the constitutional requirement of a knowing, intelligent, and voluntary waiver. See id. at 221. Gallimort and the trial judge in this case discussed Gallimort's wish to waive his right to a jury trial. 2 The record reflects that Gallimort was aware that he had two options: a trial by jury or a bench trial. He was told that in a jury trial the members of the jury would determine his guilt whereas only the judge would have this authority in a bench trial. It is also relevant that Gallimort had spoken to his attorney about the option of a jury trial or a bench trial. See Adams, 317 U.S. at 277. Gallimort's attorney advised a bench trial. Thus, we conclude that the district court did QRWHUULQILQGLQJWKDW*DOOLPRUWZDVDZDUHRIKLVULJKWWRWULDOE\MXU\

DQGWKDWKHZDLYHGWKDWULJKWNQRZLQJO\DQGLQWHOOLJHQWO\ __________ 2

The conversation between Gallimort and the trial judge was as follows: THE COURT: . . . Gallimort, I am informed that you may wish to have your matter tried to the Court as opposed to a jury? THE DEFENDANT: Yes. THE COURT: Is that what you want to do, sir? THE DEFENDANT: Yes. THE COURT: Now, you understand that the jurors are right outside the room here, the courtroom. They can be brought in and you can have your trial before a jury, or not; do you understand that fully? THE DEFENDANT: Yes, I understand it in the way it was explained to me. THE COURT: Do you have any questions about your right to a trial, either before the judge or the jury? THE DEFENDANT: Yes, I do. When I ask a question like I was asking my attorney, if there's no solution to the lies, can I then go to a jury? THE COURT: I'm not sure that I understand. THE DEFENDANT: I'm in this trial, it's my day for trial before a judge. Then I don't have the right to go before a jury? THE COURT: No, sir. You have only one trial at this level, and you have to either have a judge hear your case, or a jury. And it will be conducted today. What is your decision, sir? THE DEFENDANT: The judge. THE COURT: All right. Does counsel concur? MR. JORGENSON: Yes, Judge. It was my advice for various tactical reasons.

Ð116 Nev. 315, 320 (2000) Gallimort v. StateÐ Ð

not err in finding that Gallimort was aware of his right to trial by jury and that he waived that right knowingly and intelligently. [Headnote 3] We take this opportunity to establish prospective guidelines for the district court to follow when a defendant wishes to waive the right to jury trial. The United States Courts of Appeals for the Sixth and Tenth Circuit have announced a suggested jury trial waiver procedure which we endorse. These courts instruct district court judges to inform defendants of the following: (1) the number of members of the community composing a jury; (2) the defendant's ability to take part in jury selections; (3) the requirement that jury verdicts must be unanimous; and (4) that the court alone decides guilt or innocence if the defendant waives a jury trial. See Robertson, 45 F.3d at 1432; see also United States v. Martin, 704 F.2d 267, 274-75 (6th Cir. 1983) (referring to United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981)). By informing a defendant of these aspects of a jury trial versus those of a bench trial, the district court will be better able to determine whether a proposed waiver is actually knowing and voluntary. While we do not create a mandatory procedure for district courts, we urge district courts to instruct the defendant fully in order to avoid misunderstandings by the defendant. [Headnote 4] Gallimort also argues that his conviction should be reversed because the police did not collect the knife Gallimort allegedly used to stab Rozier, thereby causing the loss of important evidence. We apply a two-part test to determine whether a police officer's failure to collect evidence is reversible error. Gallimort must show that the knife evidence was material, and, if the knife is material, then we consider whether the police investigator's actions were merely negligent, grossly negligent, or conducted in bad faith to prejudice Gallimort's defense. See Daniels v. State, 114 Nev. 261, 267-68, 956 P.2d 111, 115 (1998). We hold that it is not evident that the knife was material, but even if the knife was material, the police investigator's failure to collect the knife was at most merely negligent. [Headnote 5] The knife is material only if there is a reasonable probability that had the evidence been available to the defense, the result of Gallimort's trial would have been different. See id. at 267, 956 P.2d at 115. The mere possibility that the knife may have affected the outcome of the trial does not establish materiality. See United States v. Agurs, 427 U.S. 97, 109-110 (1976). When Rozier presented the knife to the police investigator she was not certain that WKHNQLIHZDVWKHRQH*DOOLPRUWXVHGWRVWDEKHU

Ð116 Nev. 315, 321 (2000) Gallimort v. StateÐ Ð the knife was the one Gallimort used to stab her. Appellant can only speculate that the knife may have aided his case. [Headnote 6] There is no reasonable probability that the availability of the knife would have resulted in a different verdict, since the knife could not be positively identified. Examination of the knife would either have confirmed that it was the knife that was used to cut Rozier if blood had been found on it, or that it was not the knife. The presence or absence of the knife would have had no effect on whether Gallimort was guilty of the crime charged. The evidence against him was the testimony of the victim and eyewitnesses and objective medical evidence of the stab wounds. Which knife was used is immaterial. Even if the knife were material, then the police investigator's failure to collect it was at most merely negligent. There is no evidence that the police investigator acted in bad faith, purposefully concealing the existence of the knife to disadvantage the defense. In either case, the absence of the knife at trial does not mandate reversal of Gallimort's conviction. See Daniels, 114 Nev. at 267, 956 P.2d at 115. The judgment of conviction is affirmed.

Maupin and Becker, JJ., concur. ____________

Ð116 Nev. 321, 321 (2000) Petty v. StateÐ Ð Ð ANTHONY PETTY, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32500 March 10, 2000

997 P.2d 800

Appeal from a judgment of conviction, pursuant to a jury verdict, of first degree murder with the use of a deadly weapon. The district court sentenced appellant to two terms of life with the possibility of parole after twenty years. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge. Defendant was convicted in the district court of first degree murder with the use of a deadly weapon, and he appealed. The supreme court, Shearing, J., held that (1) refusal to admit evidence of victim's violent character and prior robbery conviction was error requiring reversal of conviction, and (2) evidence of victim's prior conviction for pointing a deadly weapon at a person was not admissible. Reversed and remanded.

Ð116 Nev. 321, 322 (2000) Petty v. StateÐ Ð Morgan D. Harris, Public Defender, and Robert L. Miller and Howard Brooks, Deputy Public Defenders, Clark County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and David T. Wall, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. The supreme court will overturn a district court's decision to admit or exclude evidence only when there has been an abuse of discretion. 2. Criminal Law. A defendant is permitted to present evidence of the character of a crime victim, regardless of the defendant's knowledge of the victim's character, when it tends to prove that the victim was the likely aggressor. NRS 48.045(1)(b). 3. Criminal Law. Where it is otherwise admissible, proof of character may be established by testimony as to reputation or in the form of an opinion. NRS 48.055(1). 4. Homicide. When it is necessary to show the state of mind of the defendant at the time of the commission of an offense for the purpose of establishing self-defense, specific acts which tend to show that the victim was a violent and dangerous person may be admitted, provided that the specific acts of violence of the victim were known to the accused or had been communicated to him. 5. Homicide. Refusal to admit opinion testimony of two probation officers and police officer as evidence of murder victim's violent character was error requiring reversal of defendant's conviction, where defendant was attempting to present self-defense theory. NRS 48.045, 48.055. 6. Homicide. Evidence of murder victim's prior conviction for robbery was admissible to show defendant's state of mind when he shot victim, where defendant was aware at time he shot victim that victim had committed robberies in past, and defendant was attempting to prove that he shot victim in self-defense because he feared that victim was attempting to rob and harm him. NRS 48.055(2). 7. Homicide. Evidence of victim's prior conviction for pointing a deadly weapon at a person was not admissible in murder prosecution, even though defendant was attempting to prove that he shot victim in self-defense because he feared that victim was attempting to rob and

harm him, where defendant had no knowledge of that prior conviction at time of shooting.

Before Maupin, Shearing and Becker, JJ.

Ð116 Nev. 321, 323 (2000) Petty v. StateÐ Ð OPINION By the Court, Shearing, J.: Appellant Anthony Petty argues on appeal that he should be granted a new trial because the district court abused its discretion by prohibiting Petty from presenting character evidence of the victim. We agree with Petty's contention and reverse and remand for a new trial. BACKGROUND Erica Cooper and Tumekga Smith drove to the Sierra Vista Apartment Complex during the evening of September 18, 1997. While lingering in the parking lot, Anthony Petty approached them and asked for a ride; Cooper and Smith denied his request. Petty then returned to Corlina Carter's apartment where he was staying with his girlfriend and Nedra Turman. Turman testified that Petty was acting paranoid when he returned to the apartment. Petty began packing his belongings and instructed Turman to tell his girlfriend that he was going to take a bus to California in an hour. Before Cooper and Smith left the apartment complex, they too went to Carter's apartment. As Cooper and Smith were climbing the stairs to Carter's apartment, they noticed Billy Ray Watts following them up the stairs. After Cooper and Smith reached the apartment, Turman answered the door and allowed them to enter. Watts also appeared at the door, but Turman blocked Watts's entry. Smith went down the apartment hall to the restroom while Cooper sat at the kitchen table. As Watts stood in the doorway, he said he wanted to talk to his “homeboy” Petty. He then pushed his way into the apartment. Watts and Petty then engaged in a conversation about Petty having been released from jail. At some point, Watts pulled a pen (which Petty thought was a weapon) from his pants pocket. Watts began to harass Petty and told Petty he wanted the pants that Petty was packing. Petty told Watts not to mess with him. Watts then picked up the pair of pants and told Petty that he was taking them. Petty told Watts to quit playing around and one witness testified that Watts responded “you show me the bank,” to which Petty again told Watts to quit playing around. Petty then took out a gun. Watts retreated towards the door as Petty cocked the gun and fired at Watts. Cooper, who had been watching the exchange between Petty and Watts, testified that she did not see Watts reveal a weapon or threaten Petty. After the first shot, Petty ZDONHGWRZDUGV

WKHGRRUDQGILUHGPXOWLSOHEXOOHWV Ð116 Nev. 321, 324 (2000) Petty v. StateÐ Ð walked towards the door and fired multiple bullets. Watts was left for dead in the entryway to Carter's apartment. Cooper, Smith, and Turman provided similar testimony recounting the events of the shooting. At trial, Petty testified in his own defense. He testified that he had been residing at the Sierra Vista Apartments for about ten days prior to the shooting. Petty testified that he had known Watts for seven or eight of those days. He then provided a list of reasons why he was afraid of Watts. According to Petty, he had seen Watts steal a gold chain off a man's neck and had seen Watts strike people without provocation. Petty had also seen Watts placed in a police car after Watts had hit a 7-Eleven clerk. Further, Petty testified that Watts had previously patted Petty's pockets in search of money and he continued to be worried that Watts might rob him. Finally, Petty testified that he had witnessed Watts shoot a gun randomly into the air. Petty had also heard many rumors about Watts including: while high on drugs, Watts started a fight with

policemen for no reason; Watts had attempted to convince people to participate in robberies; Watts carried a gun; and Watts had shot someone. Petty testified that before he met Cooper and Smith in the Sierra Vista Apartments parking lot, he had just returned to the apartment project via a taxicab. Petty had $400 in cash on his person because he intended to leave for California that evening. When he got out of the taxi, Watts was standing right in front of him. According to Petty, Watts was “looking at [him] crazy,” as he asked, “What's up?” Petty replied, “Nothing,” and proceeded to the apartment. He then returned to the parking lot to ask Cooper and Smith for a ride. Turned down, he returned to the apartment to pack his clothing. After Watts had pushed his way into the apartment, Petty testified that Watts began messing with Petty's belongings. Finally, Petty testified, Watts came up to Petty's right side and said, “Nigger, Nigger, you see this?” Petty said he saw a sharp, shiny object, and Watts then said, “Nigger, I stick it in your neck.” Petty testified that he didn't know what the object was but that he thought it could have been an ice pick. After Watts picked up Petty's pants and said that he was taking them, Petty testified that Watts was reaching in his pocket and that Petty thought Watts was reaching for a gun. Afraid that Watts might shoot him, Petty testified that he then took out his gun and shot Watts in self-defense. Petty stated that he did not intend to kill Watts, but that he was just shooting and that “he didn't know what was happening.” Assessing the crime scene, a senior crime analyst observed the victim's body on the landing just in front of the doorway to Carter's apartment. He also observed a pen and pen cap in the YLFWLP VULJKWKDQG

Ð116 Nev. 321, 325 (2000) Petty v. StateÐ Ð victim's right hand. Another analyst discovered four spent shell casings—one inside the apartment and three outside the apartment on the ground below the landing. The autopsy revealed Watts had been shot six times. One of these wounds showed that the victim's body had been against a hard surface because the bullet was not able to fully exit the body. A jury found Petty guilty of first degree murder with the use of a deadly weapon. The district court sentenced Petty to two consecutive terms of life with possibility of parole after twenty years. DISCUSSION [Headnote 1] Petty argues that the jury trial verdict must be reversed and that he must be granted a new trial because the district court erred by prohibiting the defense from presenting evidence of the victim's character for violence. This court will overturn a district court's decision to admit or exclude evidence only when there has been an abuse of discretion. See Greene v. State, 113 Nev. 157, 166, 931 P.2d 54, 60 (1997). Admissible character evidence is governed by statute. [Headnotes 2-4] NRS 48.045(1)(b) states: 1. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: ... (b) Evidence of the character or a trait of character of the victim of the crime offered by an accused . . . and similar evidence offered by the prosecution to rebut such evidence[.] Furthermore, NRS 48.055 provides: 1. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or in the form of an opinion. . . . 2. In cases in which character or a trait of character of a person is an essential element of a charge,

claim or defense, proof of specific instances of his conduct may be made on direct or cross-examination. This court has held that NRS 48.045(1)(b) permits the accused to present evidence of the character of a crime victim regardless of the accused's knowledge of the victim's character when it tends to prove that the victim was the likely aggressor. See Burgeon v. State, 102 Nev. 43, 46, 714 P.2d 576, 578 (1986). With regard to NRS 48.055(1), we stated in Burgeon that “proof of character PD\ EH HVWDEOLVKHG E\ WHVWLPRQ\ DV WR

UHSXWDWLRQRULQWKHIRUPRIDQRSLQLRQ´ Ð116 Nev. 321, 326 (2000) Petty v. StateÐ Ð may be established by testimony as to reputation or in the form of an opinion.” Id. Moreover, in Burgeon we instructed: When it is necessary to show the state of mind of the accused at the time of the commission of the offense for the purpose of establishing self-defense, specific acts which tend to show that the deceased was a violent and dangerous person may be admitted, provided that the specific acts of violence of the deceased were known to the accused or had been communicated to him. Id. at 45-46, 714 P.2d at 578. [Headnote 5] At trial, Petty offered evidence to prove Watts's violent character through the testimony of two probation officers and a police officer whom the victim had assaulted. The first probation officer was to provide testimony regarding a pre-sentence report on Watts evaluating Watts's criminal history after Watts had been convicted of robbery with the use of a deadly weapon in 1990. The second probation officer was to provide testimony on a second presentence report evaluating Watts after he was convicted of pointing a firearm at a human being in 1997. Petty argues that both probation officers intended to testify that Watts exhibited definite violent characteristics. Petty wished to present the probation officers' testimony to support his self-defense theory. This defense placed the character of the victim, Watts, at issue. As we recognized in Burgeon, while presenting a defense of self-defense, an accused is permitted to present evidence suggesting that the victim had exhibited violent behavior. One method of presenting this evidence is through opinion testimony. Here, both probation officers were to provide opinion testimony regarding their previous determinations that Watts showed a violent character. Petty also offered to present a police officer, previously assaulted by the victim, to provide opinion testimony that Watts had a violent character. While the officer's proffered testimony was based on only one incident, the testimony was to be couched as his opinion. Since the testimony of the probation officers and the police officer would have reflected their opinions, such testimony was admissible at trial under NRS 48.045 and NRS 48.055 where the accused is presenting a defense of self-defense. We hold that the district court abused its discretion by excluding this evidence. [Headnotes 6, 7] Additionally, the district court refused to allow Petty to present copies of Watts's 1990 and 1997 convictions. The district court properly excluded evidence of the 1997 conviction, but abused its GLVFUHWLRQ E\

H[FOXGLQJWKHFRQYLFWLRQHYLGHQFH Ð116 Nev. 321, 327 (2000) Petty v. StateÐ Ð discretion by excluding the 1990 conviction evidence. As we stated in Burgeon, the accused may present evidence of specific acts to show the accused's state of mind at the time of the commission of the crime only if the accused had knowledge of the specific act. 102 Nev. at 45-46, 714 P.2d at 578. The record reveals that Petty

was aware that Watts had committed robberies. Although Petty's testimony does not explicitly mention the 1990 robbery, we hold that the evidence is admissible for purposes of showing the reasonableness of the appellant's state of mind according to NRS 48.055(2) and our reasoning in Burgeon. However, nothing in the record indicates that Petty had any knowledge of Watts's conviction for pointing a deadly weapon at a person. Petty's testimony revealed that he had seen Watts fire a gun into the air, but Petty did not appear to know anything about the 1997 conviction. Thus, the district court should have admitted the 1990 conviction to show the accused's state of mind, but properly excluded the 1997 conviction as irrelevant on that issue. Petty raises other issues on appeal; however we do not address these issues in view of our decision that exclusion of the evidence of the victim's character warrants a new trial. The judgment of conviction of first degree murder with use of a deadly weapon is reversed and remanded to the district court. Maupin and Becker, JJ., concur. ____________

Ð116 Ð Nev. 327, 327 (2000) Hughes v. StateÐ Ð MICHAEL RAY HUGHES, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32567 MICHAEL RAY HUGHES, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32568 MICHAEL RAY HUGHES, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32569 March 10, 2000

996 P.2d 890

Appeals from judgments of conviction, pursuant to guilty pleas, of three counts of robbery with the use of a deadly weapon and one count of second degree kidnapping of a person 65 years of age or older. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.

Ð116 Nev. 327, 328 (2000) Hughes v. StateÐ Ð Defendant pleaded guilty in the district court to three counts of robbery with the use of a deadly weapon and one count of second degree kidnapping of a person 65 years of age or older, and was adjudicated and sentenced as habitual criminal. Defendant appealed. The supreme court held that habitual criminal adjudication did not violate defendant's due process rights. Affirmed. Michael R. Specchio, Public Defender, and John Reese Petty, Deputy Public Defender, Washoe County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Chief Deputy District Attorney, Washoe County, for Respondent. 1. Criminal Law.

The decision to adjudicate an individual as a habitual criminal is not an automatic one because the district court has broad discretion to dismiss a habitual criminal allegation when the prior convictions are stale or trivial or in other circumstances where a habitual criminal adjudication would not serve the purpose of the statute or the interests of justice. NRS 207.010(2). 2. Constitutional Law; Criminal Law. Although due process requires the district court to exercise its discretion and weigh the appropriate factors for and against the habitual criminal statute before adjudicating a person as a habitual criminal, the court is not required to make particularized findings that it is “just and proper” to adjudicate a defendant as a habitual criminal, so long as the record as a whole indicates that the sentencing court was not operating under a misconception of the law regarding the discretionary nature of a habitual criminal adjudication and that the court exercised its discretion. U.S. Const. amend. 14; NRS 207.010(2). 3. Constitutional Law; Criminal Law. Adjudication and sentence of defendant as habitual criminal did not violate defendant's due process rights, where circumstances of sentencing hearing and district court's comments indicated that court understood that it had discretion in deciding whether to adjudicate defendant as habitual criminal and that court exercised that discretion in doing so, and that mere fact that defendant had four prior convictions in addition to three instant convictions did not form sole basis for court's decision. U.S. Const. amend. 14; NRS 207.010(2).

Before Maupin, Shearing and Becker, JJ. OPINION Per Curiam: Appellant Michael Ray Hughes challenges his adjudication and sentence as a habitual criminal pursuant to NRS 207.010(1)(b).

Ð116 Nev. 327, 329 (2000) Hughes v. StateÐ Ð The primary issue before this court is whether the district court violated Hughes' due process rights under the Fourteenth Amendment of the United States Constitution by failing to make a specific finding that it was “just and proper” to adjudicate Hughes a habitual criminal. We conclude that the record indicates that the district court exercised its discretion and did not automatically adjudicate Hughes a habitual criminal based solely on the existence of four prior felony convictions. 1 FACTS The State charged Hughes in three separate cases with three counts of robbery with the use of a deadly weapon and one count of second degree kidnapping of a person 65 years of age or older. Each case arose from a different incident. In each case, the State also alleged that Hughes was a habitual criminal pursuant to NRS 207.010(1)(b) because he had at least two prior convictions for violent felonies. Hughes agreed to plead guilty in all three cases. The State retained its right to argue at sentencing and to seek habitual criminal enhancement in each case. The district court conducted a single sentencing hearing on May 18, 1998. Hughes' counsel argued extensively against habitual criminal adjudication and in favor of a sentence of a term of years. Counsel addressed Hughes' criminal history, noting that it started after Hughes was discharged from the military and arguing that Hughes only committed criminal offenses to support his drug and/or alcohol dependency. Counsel argued that Hughes had conducted himself in accord with prison rules during prior periods of incarceration and that Hughes desired to end his chemical dependency. Counsel concluded that given that Hughes was thirty-seven years of age and had not physically harmed his victims, sentencing him to definite terms of years would be a sufficient deterrent to both Hughes and others while giving Hughes a “glimmer of hope” of being released from prison. The State offered four certified judgments of conviction, which were entered into evidence. 2 The prosecutor argued that Hughes' criminal history demonstrated that Hughes would continue to commit crimes unless he was incarcerated. The prosecutor further DUJXHGWKDWDOWKRXJK+XJKHVKDGQRWGRQHSK\VLFDOKDUPWR

KLVYLFWLPV

__________ 1

Hughes also contends that the district court abused its discretion by adjudicating him as a habitual criminal because his prior convictions are trivial and stale and that the sentences imposed constitute cruel and unusual punishment. We have considered these arguments and conclude that they lack merit and do not warrant discussion in this opinion. 2

Neither the prior judgments of conviction nor the presentence investigation report have been provided to this court. From the record it appears that the prior convictions offered by the State included: a 1980 conviction for false imprisonment, a 1981 conviction for attempted robbery, a 1982 conviction for robbery, and a 1989 conviction for robbery.

Ð116 Nev. 327, 330 (2000) Hughes v. StateÐ Ð argued that although Hughes had not done physical harm to his victims, his conduct was escalating in seriousness as evidenced by his use of a firearm in two of the instant offenses and his conduct in leading the victim in the third offense to believe that he had a gun and would harm her. The prosecutor concluded that Hughes' prior criminal history and the circumstances surrounding the instant offenses warranted adjudication as a habitual criminal. In addition to the arguments of counsel for Hughes and the State, the court considered a statement by Hughes. At the conclusion of the sentencing hearing, the court stated: The Court has read and considered the presentence report in each of these cases, the correspondence which was submitted to the Court for review, including the victim impact statement and the correspondence delivered from Mr. Hughes's counsel and read by the defendant in court this morning. The Court finds that, based upon Exhibit 1, 2, 3, and 4 in evidence and the circumstances related to this hearing, the defendant is a habitual criminal. Pursuant to NRS 207.010(1)(b), 3 the court sentenced Hughes to serve three consecutive terms of life in prison without the possibility of parole for the robbery with use of a deadly weapon convictions. The court also sentenced Hughes to a concurrent total term of twelve (12) to thirty (30) years for second degree kidnapping of an elderly person. 4 Hughes filed timely notices of appeal from each of the judgments of conviction. 5 DISCUSSION Hughes contends that the district court failed to exercise its discretion in adjudicating him as a habitual criminal. Specifically, Hughes asserts that the district court based its decision solely upon the existence of the prior felony convictions without making specific findings that it was just and proper to adjudicate him as D

KDELWXDOFULPLQDO __________ 3

NRS 207.010(1)(b) provides that a person convicted of “[a]ny felony, who has previously been three times convicted . . . of any crime which under the laws of the situs of the crime or of this state would amount to a felony . . . is a habitual criminal” and shall be punished by imprisonment for (1) life without the possibility of parole; (2) life with the possibility of parole after serving a minimum of 10 years; or (3) a definite term of 25 years, with parole eligibility after serving a minimum of 10 years. 4

The court sentenced Hughes for the second degree kidnapping of an elderly person pursuant to NRS 200.330 and NRS 193.167, not as a habitual criminal pursuant to NRS 207.010(1)(b).

5

We previously approved a stipulation by the parties and consolidated the cases for all appellate purposes. See NRAP 3(b).

Ð116 Nev. 327, 331 (2000) Hughes v. StateÐ Ð a habitual criminal. Relying on Walker v. Deeds, 50 F.2d 670 (9th Cir. 1995), Hughes argues that the district court's failure to make an individualized determination that it was just and proper that Hughes be adjudged a habitual offender violated Hughes' due process rights. See U.S. Const. amend. XIV. [Headnote 1] The Ninth Circuit's decision in Walker is based upon this court's decision in Clark v. State, 109 Nev. 426, 851 P.2d 426 (1993). In Clark, this court addressed concerns that the district court had mistakenly believed that once the requisite felonies were proved, the court's authority was limited to deciding only whether the defendant should be sentenced to life imprisonment with or without the possibility of parole. 6 109 Nev. at 427-28, 851 P.2d at 427. Clark explained that the decision to adjudicate an individual as a habitual criminal is not an automatic one because the district court has broad discretion to dismiss a habitual criminal allegation. Id. at 428, 851 P.2d at 427 (citing NRS 207.010(4) (currently codified at NRS 207.010(2)). As this court had previously explained, the district court may dismiss a habitual criminal allegation when the prior convictions are stale or trivial or in other circumstances where a habitual criminal adjudication would not serve the purpose of the statute or the interests of justice. See French v. State, 98 Nev. 235, 237, 645 P.2d 440, 441 (1982). Clark further concluded that it was not clear from the record whether the trial court had actually exercised its discretion. Id. at 428-29, 851 P.2d at 427-28. The record indicated that, in imposing the habitual criminal enhancement, the trial court stated that it had “found ‘beyond a reasonable doubt that the prior convictions submitted by the District Attorney's Office in this particular matter are legal convictions and are appropriate . . . [for] enhancement pursuant to [NRS] 207.010.' ” Id. at 428, 851 P.2d at 427. Clark explained that this comment did not “clearly disclose that the court weighed the appropriate factors for and against the habitual criminal enhancement and then, in the exercise of discretion, decided to adjudicate Clark as a habitual criminal.” Id. The record also revealed the following comment by the trial court: “NRS 207.010, the operative part of the statute, ‘Every person convicted in this state of any crime, of any felony, who KDVSUHYLRXVO\EHHQWKUHHWLPHVFRQYLFWHG

__________ 6

Clark was convicted, pursuant to a jury verdict, of one count of failure to appear, which carried a sentence of not less than one nor more than six years imprisonment. At sentencing the State presented evidence of three prior felony convictions (burglary, forgery and possession of a stolen motor vehicle). The court sentenced Clark as a habitual criminal to life in prison with the possibility of parole. Clark, 109 Nev. at 426-27, 851 P.2d at 426.

Ð116 Nev. 327, 332 (2000) Hughes v. StateÐ Ð has previously been three times convicted . . .' The way I read it, it says, ‘. . . shall be punished by imprisonment in the state prison for life with or without the possibility of parole.' ” Clark, 109 Nev. at 428-29, 851 P.2d at 427-28. Based on these indications from the record this court concluded: It appears likely, or at least strongly possible, that the trial court thought that once three convictions

were established, Clark “shall be punished,” and that the only discretion allowable was between life with the possibility of parole or life without the possibility of parole. As noted above, however, it was incumbent upon the trial court to weigh properly whether the habitual criminality count should have been dismissed pursuant to the discretion conferred by NRS 207.010(4). Based upon what looks very much like a misunderstanding on the part of the trial judge, we have decided to send this case back for resentencing. Id. at 429, 851 P.2d at 428 (footnote omitted). Two years later, the Ninth Circuit interpreted Clark to require the sentencing judge “to review and make particularized findings that it is ‘just and proper' for a defendant to be adjudged a habitual offender.” Walker v. Deeds, 50 F.3d 670, 673 (9th Cir. 1995). The Walker court further concluded that Nevada law created “a constitutionally protected liberty interest” in such a sentencing procedure. Id. The court explained: The trial court in this case did not “clearly disclose” that it “weighed the appropriate factors for and against the criminal enhancement.” The court did not decide that it was “just and proper,” based on the nature and gravity of his prior convictions, to adjudge Walker a habitual offender under the relevant statute. Id. (quoting Clark, 109 Nev. at 428, 851 P.2d at 427). The court then concluded that because the trial court did not make “the requisite individualized determination that it was ‘just and proper' ” to adjudicate Walker as a habitual criminal “as mandated by Nevada law,” Walker's due process rights had been violated. Id. [Headnote 2] As yet, this court has not addressed Walker in a published opinion. We take this opportunity to do so. Our primary concern in Clark was that the sentencing court may have misunderstood the law and, as a result, did not exercise its discretion in adjudicating Clark as a habitual criminal. The Walker court's interpretation of &ODUNLV

FRUUHFWWRWKHH[WHQWWKDWLWVWDWHVWKDW1HYDGDODZUHTXLUHVDVHQWHQFLQJFRXUWWRH[HUFLVH LWV GLVFUHWLRQ DQG ZHLJK WKH DSSURSULDWH IDFWRUV IRU DQG DJDLQVW WKH KDELWXDO FULPLQDO VWDWXWHEHIRUHDGMXGLFDWLQJDSHUVRQDVDKDELWXDOFULPLQDO Ð116 Nev. 327, 333 (2000) Hughes v. StateÐ Ð Clark is correct to the extent that it states that Nevada law requires a sentencing court to exercise its discretion and weigh the appropriate factors for and against the habitual criminal statute before adjudicating a person as a habitual criminal. However, nothing in Clark stands for the proposition that in meeting this obligation the sentencing court must utter specific phrases or make “particularized findings” that it is “just and proper” to adjudicate a defendant as a habitual criminal. The sole issue pursuant to Clark is whether the sentencing court actually exercised its discretion. While it may be easier to answer this question if the sentencing court makes particularized findings and specifically addresses the nature and gravity of the prior convictions, this court has never required the district courts to utter “talismanic” phrases. See Bryant v. State, 102 Nev. 268, 721 P.2d 364 (1986). Instead, this court looks to the record as a whole to determine whether the sentencing court actually exercised its discretion. Thus, as long as the record as a whole indicates that the sentencing court was not operating under a misconception of the law regarding the discretionary nature of a habitual criminal adjudication and that the court exercised its discretion, the sentencing court has met its obligation under Nevada law. [Headnote 3] We turn now to the record in this case. After hearing extensive argument from counsel for Hughes and the State and comments from Hughes, the district court stated: The Court has read and considered the presentence report in each of these cases, the correspondence which was submitted to the Court for review, including the victim impact statement and the

correspondence delivered from Mr. Hughes's counsel and read by the defendant in court this morning. The Court finds that, based upon Exhibit 1, 2, 3, and 4 in evidence and the circumstances related to this hearing, the defendant is a habitual criminal. We conclude that the circumstances of the sentencing hearing and the district court's comments indicate that the court understood that it had discretion in deciding whether to adjudicate Hughes as a habitual criminal and that the court exercised that discretion in adjudicating Hughes a habitual criminal. The fact that the court did not specifically address the nature and gravity of the prior or instant convictions is not determinative as the court clearly disclosed that it had considered all of the arguments and evidence in deciding to adjudicate Hughes as a habitual criminal. Unlike Clark, it does not appear strongly possible, or even likely, that the trial court in this case thought that the requisite number of prior FRQYLFWLRQV DXWRPDWLFDOO\ HTXDWHG WR KDELWXDO

FULPLQDOVWDWXV

Ð116 Nev. 327, 334 (2000) Hughes v. StateÐ Ð convictions automatically equated to habitual criminal status. Accordingly, we conclude that the procedure utilized by the district court in adjudicating Hughes as a habitual criminal did not violate Hughes' due process rights. CONCLUSION We conclude that the totality of the circumstances demonstrates that the district court understood that it had discretion in adjudicating Hughes as a habitual criminal and that it actually exercised that discretion. We therefore affirm the judgments of conviction and sentences. ____________

Ð116 Nev. 334, 334 (2000) Jackson v. StateÐ Ð Ð MELVIN LEON JACKSON, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32933 March 13, 2000

997 P.2d 121

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of burglary and one count of robbery. Eighth Judicial District Court, Clark County; Mark W. Gibbons, Judge. Defendant was convicted in the district court of burglary and robbery. Defendant appealed. The supreme court, Maupin, J., held that State was not required to give justifiable reason for its refusal to stipulate to admissibility of results of defendant's polygraph test. Affirmed. Morgan D. Harris, Public Defender, and Craig F. Jorgenson and Stacey Roundtree, Deputy Public Defenders, Clark County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. A defendant's right to present relevant evidence is not unlimited, being subject to reasonable restrictions.

2. Criminal Law. Results of polygraph test may be considered reliable when taken under proper conditions and with proper safeguards in place, including the requirement of a written stipulation signed by the prosecuting attorney, the defendant and his counsel providing for defendant's submission to the test. Absent a written stipulation, polygraph evidence may properly be excluded.

Ð116 Nev. 334, 335 (2000) Jackson v. StateÐ Ð 3. Criminal Law. State was not required to give justifiable reason for its refusal to stipulate to admissibility of results of robbery defendant's polygraph test, and those results were properly excluded in the absence of such stipulation. 4. Criminal Law. Any party to any criminal or civil action may refuse to agree to the stipulation of a polygraph test for any reason, or no reason at all.

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Maupin, J.: A jury convicted Melvin Leon Jackson of burglary and robbery in connection with an alleged shoplifting incident at a K-Mart outlet in Las Vegas, Nevada. The factual issues at trial involved whether Jackson actually removed a piece of electronic equipment from the store, and whether he later acted in self-defense when accosted by security personnel. He contends on appeal that the district court erred in refusing to admit the results of a polygraph test taken with regard to these factual issues. At trial, Jackson's attorney requested that the State enter into a stipulation allowing admission into evidence of the results of a polygraph test to be taken by Jackson. The State declined and Jackson proceeded to take the polygraph test. Thereafter, Jackson filed a motion with the district court to allow admission of the test results for consideration by the jury. This motion was denied and, as noted, Jackson was convicted of burglary and robbery. He appeals the judgment entered on these convictions. [Headnote 1] A defendant's right to present relevant evidence is not unlimited, being subject to reasonable restrictions. See United States v. Scheffer, 523 U.S. 303, 308 (1998). In Scheffer, the United States Supreme Court was faced with the question of whether a per se rule against admission of polygraph evidence violated an accused's Fifth or Sixth Amendment rights to present a defense. In determining that such a rule was not a violation of constitutional rights, the Court reasoned “[t]here is simply no consensus that polygraph evidence is reliable.” Id. at 309. [Headnote 2] In Nevada, polygraph results may be considered reliable when taken under proper conditions and with proper safeguards in place. See Corbett v. State, 94 Nev. 643, 644-45, 584 P.2d 704, 705 (1978). However, the safeguards include the requirement of a ZULWWHQ VWLSXODWLRQ VLJQHG E\ WKH

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Ð116 Nev. 334, 336 (2000) Jackson v. StateÐ Ð written stipulation signed by the prosecuting attorney, the defendant, and his counsel providing for defendant's submission to the test. See Corbett, 94 Nev. at 644-45, 584 P.2d at 705. Absent a written stipulation, polygraph evidence may properly be excluded. See Domingues v. State, 112 Nev. 683, 695, 917 P.2d 1364, 1373 (1996).

[Headnote 3] Jackson contends that the State's refusal to stipulate to the admissibility of a polygraph test prior to administration of the test denied him the fundamental right to present evidence in support of his defense. We disagree and conclude that the district court did not err in its refusal to admit Jackson's polygraph results into evidence. Here, the district court, consistent with this court's decision in Corbett, properly excluded the test results for lack of a written stipulation by all of the parties below. [Headnote 4] Jackson claims that the prosecution must have a justifiable reason for refusing to stipulate to the admissibility of a polygraph test. There is no support for this proposition. We conclude that any party to any criminal or civil action may refuse to agree to the stipulation of a polygraph test for any reason, or no reason at all. Until and unless a scientific basis for reliability of polygraph testing is established, the safeguards articulated in Corbett provide a reasonable threshold for admissibility. Thus, the State was not required to give a reason for its refusal to agree with Jackson's proposed stipulation. 1 In light of the above, we hereby affirm the judgment of the district court below. Shearing and Becker, JJ., concur. __________ 1

Jackson places primary reliance on McMorris v. Israel, 643 F.2d 458 (7th Cir. 1981), in support of his argument that there must be “justifiable reasons” for a prosecutor's refusal to stipulate to the admission of polygraph results. We reject this approach. First, the McMorris court was construing a Wisconsin case on the subject, which was later overturned. See State v. Dean, 307 N.W.2d 628, 653 (1981) (holding that it is error to admit polygraph evidence in a criminal proceeding unless a stipulation was executed prior to September 1, 1981). Second, we reject the notion that polygraph testing has sufficient scientific reliability that would support admission of such evidence over objection by one of the parties to a piece of litigation. ____________

Ð116 Nev. 337, 337 (2000) State v. FreeseÐ Ð THE STATE OF NEVADA, Appellant, v. BRYAN SCOTT FREESE, Respondent. No. 33274 March 13, 2000

997 P.2d 122

Appeal from an order of the district court granting a postconviction petition for writ of habeas corpus. Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge. Defendant brought post-conviction petition for writ of habeas corpus, alleging the inadequacy of the oral canvass before he pleaded guilty to sexual assault upon minor under age sixteen. The district court granted the petition. State appealed. The supreme court, Becker, J., held that: (1) a trial court's oral canvass of the defendant before finding a guilty plea is voluntary need not be ritualistic or contain specific inquiries, overruling Koerschner v. State, 111 Nev. 384, 892 P.2d 942 (1995), and Kidder v. State, 113 Nev. 341, 934 P.2d 254 (1997); and (2) under the totality of the circumstances, defendant's plea was made freely, voluntarily, and knowingly. Reversed.

En banc reconsideration granted; reversed and remanded. 116 Nev. 1097, 13 P.3d 442 (2000). Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Appellant. Carmine J. Colucci, Las Vegas, for Respondent. 1. Criminal Law. Plea agreement, combined with oral canvass conducted by district court, established by totality of the circumstances that defendant's guilty plea to sexual assault upon minor under age sixteen was result of voluntary and informed choice, though trial court failed to review elements of the crime, where defendant admitted to facts in plea memorandum and the memorandum and attached exhibit adequately advised defendant of elements of the crime. 2. Criminal Law. The trial court's oral canvass of the defendant before finding a guilty plea is voluntary need not be ritualistic or contain specific inquiries; overruling Koerschner v. State, 111 Nev. 384, 892 P.2d 942 (1995), and Kidder v. State, 113 Nev. 341, 344, 934 P.2d 254 (1997). 3. Criminal Law. Appellate court will not invalidate a guilty plea, as long as the totality of the circumstances, as shown by the record, demonstrates that the plea was knowingly and voluntarily made and that the defendant understood the nature of the offense and the consequences of the plea.

Ð116 Nev. 337, 338 (2000) State v. FreeseÐ Ð 4. Criminal Law. A defendant's comprehension of the consequences of a plea, the voluntariness of a plea, and the general validity of a plea are to be determined by reviewing the entire record and looking to the totality of the facts and circumstances surrounding the plea. 5. Criminal Law. A court must be able to conclude from the oral canvass, any written plea memorandum, and the circumstances surrounding the execution of the memorandum, such as whether the defendant read it and whether the defendant had any questions about it, that the defendant's plea was freely, voluntarily, and knowingly made. 6. Criminal Law. Defendant was aware of the rights he was waiving by pleading guilty to sexual assault upon minor under age sixteen, though during oral canvass the trial court did not ask defendant specific questions regarding his understanding of the rights he was waiving, where plea agreement described the rights to be waived and defendant told the trial court he had read and understood the plea agreement.

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Becker, J.: In 1996, respondent Bryan Scott Freese (“Freese”) was charged with nine criminal counts arising from sexual conduct with a minor. Pursuant to plea negotiations, Freese entered into a written plea agreement wherein he agreed to plead guilty to one count of sexual assault upon a minor under sixteen years of age. Freese entered his guilty plea on May 20, 1997. Freese filed a post-conviction petition for a writ of habeas corpus in 1998 alleging ineffective assistance of counsel and challenging the sufficiency of the plea canvass. The district court 1 granted the petition, finding that the canvass conducted by the district court was inadequate. 2 We disagree, and for the reasons set forth below, we reverse the district court's order granting the post-conviction writ of habeas corpus. 3 FACTS In July of 1996, Ethan Williams (“Williams”) was a neighbor of Freese. Williams' two-story home

enabled him to view areas of WKH)UHHVHUHVLGHQFH __________ 1

The plea was entered before the Honorable Stephen Huffaker. Due to a general reassignment of criminal cases, the Honorable Michael L. Douglas heard the petition. 2

The issues relating to ineffective assistance of counsel were never addressed or decided by the district court. 3

Appellant's pending motion to expedite appeal is denied as moot.

Ð116 Nev. 337, 339 (2000) State v. FreeseÐ Ð the Freese residence. While in the bathroom of his residence, Williams observed Freese engaging in sexual activities, including what appeared to be sexual intercourse with a minor female child who was later determined to be five years old. Williams then contacted the police and reported what he had observed. After responding to Williams' report and talking to the child, the police took her to Sunrise Hospital where a physical examination was conducted by a pediatrician. The examination revealed evidence of semen around the child's genital area. Freese was informed of his Miranda rights, waived them, and gave a voluntary statement to the police. Freese admitted to masturbating in the child's presence and ejaculating on her. On October 17, 1996, the Clark County Grand Jury returned a True Bill against Freese containing four counts of lewdness with a child under the age of fourteen years and five counts of sexual assault upon a minor under sixteen years of age. On May 20, 1997, Freese entered into a written plea agreement wherein he agreed to plead guilty to one count of sexual assault with a minor under sixteen years of age. In return for Freese's plea of guilty, the district attorney's office agreed not to proceed on the remaining counts. Freese then entered his guilty plea pursuant to the negotiations. Prior to accepting the guilty plea, the district court, in addition to reviewing the guilty plea memorandum, conducted the following canvass of Freese: THE COURT: Is your plea of guilty freely and voluntarily made? FREESE: Yes, it is. THE COURT: Is Mr. Wolfson your attorney? FREESE: Yes, he is. THE COURT: Have you discussed this matter with him? FREESE: Yes, I have. THE COURT: Has he explained the nature of the offense here charged against you? FREESE: Yes. THE COURT: Did he tell you what the elements of that offense are which the state would have to prove at the time of trial? FREESE: Yes, he has. THE COURT: Do you feel you understand those matters? FREESE: Yes. THE COURT: Did he tell you what sentence the court could impose by virtue of your guilty plea? FREESE: Yes, he has.

Ð116 Nev. 337, 340 (2000) State v. FreeseÐ Ð THE COURT: What is your understanding of what the maximum sentence is? FREESE: Life with parole up to 20 or a sentence of five to 20 years.

THE COURT: Exactly. Do you understand that the matter of sentencing is strictly up to the court and no one else can promise you anything? FREESE: Yes, I do. THE COURT: Do you understand that this is a nonprobationable offense, that you must serve some jail time? FREESE: Yes, I do. THE COURT: Have you read the guilty plea agreement on file? FREESE: Yes, I have. THE COURT: Do you understand everything that's in it? FREESE: Yes, I have. THE COURT: Is it all true to the best of your knowledge? FREESE: Yes. THE COURT: Did you sign the agreement, Mr. Freese? FREESE: Yes, I have. THE COURT: When you read it and signed it, was Mr. Wolfson, your attorney, available to you to answer any questions that you might have? FREESE: Yes. THE COURT: When you read and signed the agreement, Mr. Freese, were you under the influence of alcohol, drugs, medicine, or illness, anything like that? FREESE: No, Sir. THE COURT: In this guilty plea agreement you make a plea negotiation with the state and as part of that plea negotiation you plead guilty to this offense of sexual assault with a minor under 16 years of age. Do you think it's in your best interest to do that? FREESE: Yes, I do. THE COURT: Does this plea agreement state the entire negotiation you have made with the state? MR. WOLFSON: May I interject? I think inferentially it does, but to be totally specific, there are more counts in the original indictment. This amended indictment supercedes the original indictment, so by pleading guilty to the one count inferentially, the state will not be proceeding on the other counts. It doesn't say that here, but by inference that's what we understand the plea bargain to be. THE COURT: Is that your understanding, Mr. Freese?

Ð116 Nev. 337, 341 (2000) State v. FreeseÐ Ð FREESE: Yes, Sir. THE COURT: The court accepts defendant's plea of guilty under the plea agreement. Based upon the written plea memorandum and Freese's responses to the oral canvass, the district court determined that Freese understood the nature of the offense and the consequences of his plea and that his plea was freely, voluntarily and knowingly made. The district court then accepted the guilty plea. On September 3, 1998, Freese filed a post-conviction petition for a writ of habeas corpus alleging ineffective assistance of counsel and challenging the sufficiency of the plea canvass. On October 14, 1998, the district court granted the petition solely on the ground that the plea canvass conducted by the district court judge was inadequate. Specifically, the district court found that the judge failed to ask Freese if Freese understood what rights he was waiving as a result of a guilty plea and to review the elements of the crime with Freese. The State of Nevada now appeals. DISCUSSION [Headnote 1] The State contends that the district court erred by concluding that the plea canvass conducted by the district court was insufficient to ensure that the plea was voluntary and that Freese understood the nature of the offense

and the consequences of his plea. The State argues that the plea agreement, combined with the canvass conducted by the district court, establishes by a totality of the circumstances that Freese's guilty plea was the result of a voluntary and informed choice. We agree. The district court based its decision in this case on Koerschner v. State, 111 Nev. 384, 892 P.2d 942 (1995). In Koerschner, this court held that “NRS 174.035(1) requires the district court to ‘personally' address criminal defendants who plead guilty” and that the “existence of a written plea agreement [does] not remedy the district court's failure to personally canvass.” Id. at 386-87, 892 P.2d at 944. The version of NRS 174.035 at issue in Koerschner read in relevant part: “The court . . . shall not accept [a plea of guilty] . . . without 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.” However, NRS 174.035 was amended prior to the onset of the current proceedings and no longer requires the courts to personally address a defendant regarding a plea agreement unless the agreement is made orally. See NRS 174.035(2). Accordingly, Koerschner is not applicable to the current version of NRS 174.035.

Ð116 Nev. 337, 342 (2000) State v. FreeseÐ Ð [Headnotes 2, 3] In addition, to the extent that Koerschner may be read to require a ritualistic oral canvass of a defendant to determine if a defendant understands the nature of the offense and the consequences of a plea of guilty before finding a plea is voluntary, it is expressly overruled. This court will not invalidate a plea as long as the totality of the circumstances, as shown by the record, demonstrates that the plea was knowingly and voluntarily made and that the defendant understood the nature of the offense and the consequences of the plea. See Kidder v. State, 113 Nev. 341, 344, 934 P.2d 254, 256 (1997). 4 [Headnotes 4, 5] A defendant's comprehension of the consequences of a plea, the voluntariness of a plea and the general validity of a plea are to be determined by reviewing the entire record and looking to the totality of the facts and circumstances surrounding the plea. A court must be able to conclude from the oral canvass, any written plea memorandum and the circumstances surrounding the execution of the memorandum (i.e., did the defendant read it, have any questions about it, etc.) that the defendant's plea was freely, voluntarily and knowingly made. No specific formula for making this determination is required. The record in this case demonstrates that Freese's guilty plea was freely, voluntarily and knowingly made, therefore the district court erred in granting the petition. Waiver of rights [Headnote 6] Freese signed a plea agreement indicating that he waived the right to: (1) the privilege against self-incrimination; (2) a speedy and public trial by an impartial jury; (3) confront and cross-examine witnesses; (4) subpoena witnesses to testify on his behalf; (5) testify in his own defense; and (6) appeal the conviction. At the time of the entry of the plea, Freese was questioned about whether he read and understood the agreement and he answered affirmatively to both questions. Freese indicated he did not have any questions about the agreement. Moreover Freese's correspondence to the district court supports the finding that Freese is an intelligent, competent individual who understood the written memorandum. Freese does not assert that he was incapable of reading or understanding the agreement, only that the GLVWULFWFRXUWQHYHUDVNHGKLP

VSHFLILFTXHVWLRQV __________ 4

To the extent that Kidder may be read to require that specific inquires must be made by the district court during a plea canvass, it is also overruled.

Ð116 Nev. 337, 343 (2000) State v. FreeseÐ Ð district court never asked him specific questions. 5 We conclude, under the totality of the facts and circumstances of this case, including the plea agreement's description of the rights to be waived by Freese, Freese's statements that he read, understood and signed the agreement and his other responses to district court, that Freese was aware of the rights he was waiving. The elements of the crime During its plea canvass, the district court questioned Freese regarding whether his attorney explained the elements of the offense to him and whether he understood those elements. Freese answered yes to both questions. In addition, the plea agreement stated “I understand that by pleading guilty I admit the facts which support all the elements of the offense to which I now plead as set forth in Exhibit ‘1.' ” Exhibit “1” is the charging document which delineated the elements of the crime of sexual assault upon a minor under sixteen years of age. We conclude that the district court's plea canvass was not inadequate for failure to review the elements of the crime because Freese admitted to facts in the plea memorandum, and the memorandum and attached exhibit adequately advised him of the elements of the charges. See Hurd v. State, 114 Nev. 182, 953 P.2d 270 (1998). CONCLUSION After reviewing the record and considering the totality of the facts and circumstances surrounding the plea at issue, we conclude that the canvass conducted by the district court, together with the signed plea agreement, reveal that Freese understood the nature of the offense and the consequences of his plea. Freese freely, voluntarily and knowingly entered his plea of guilty. We therefore reverse the district court's order granting Freese's petition for writ of habeas corpus. Maupin and Shearing, JJ., concur. __________ 5

In fact, at the time of the oral arguments before the district court, the State indicated that Freese was an employee of Clark County and an honorably discharged member of the armed forces at the time he entered his plea. Freese did not contest the accuracy of this information. ____________

Ð116 Nev. 344, 344 (2000) Romero v. StateÐ Ð JOSEPH DANIEL ROMERO, Appellant, v. THE STATE OF NEVADA, Respondent. No. 33365 March 13, 2000

996 P.2d 894

Appeal from a judgment of conviction entered pursuant to a jury verdict of one count each of burglary, aggravated stalking, and felony malicious destruction of private property. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.

Following jury trial before the district court, defendant was convicted of burglary, aggravated stalking, and felony malicious destruction of private property. Defendant appealed. The supreme court, Becker, J., on issue of first impression, held that: (1) fair market value of similar item, not replacement cost, determines the value of the property affected for purposes of determining level of culpability for malicious destruction of private property when property is totally destroyed; (2) cost of repair or restoration determines loss resulting from the offense for purposes of same statute when property is only partially destroyed; and (3) evidence of fair market value of destroyed items and cost of security guard did not show $5,000 damage level necessary to sustain conviction of felony malicious destruction of property. Affirmed in part, reversed in part and remanded. Morgan D. Harris, Public Defender, and Jennifer L. Haight, Deputy Public Defender, Clark County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent. 1. Statutes. Penal statutes should be narrowly construed where they are ambiguous. 2. Malicious Mischief. In statute defining offense of felony malicious destruction of private property, phrase “value of the property affected or the loss resulting from the offense,” which must exceed $5,000, is subject to more than one reasonable interpretation and is therefore ambiguous and must be narrowly construed. NRS 193.155, 206.310. 3. Malicious Mischief. The overall intent of statutes defining various levels of culpability of malicious destruction of private property based on value of the property affected or loss resulting from the damage is to make criminal penalties proportionate to the value of the property affected. NRS 193.155, 206.310. 4. Malicious Mischief. Under malicious destruction of private property statute requiring that “value of the property affected” or loss resulting from the damage to SURSHUW\HTXDORUH[FHHGVXPRIWRFRQVWLWXWHIHORQ\

Ð116 Nev. 344, 345 (2000) Romero v. StateÐ Ð property equal or exceed sum of $5,000 to constitute felony, fair market value of property is appropriate standard when property is completely destroyed. Fair market value of property controls unless the fair market value cannot be reasonably determined at which point alternate evidence of value may be offered such as new replacement. NRS 193.155, 206.310. 5. Malicious Mischief. Statutory threshold for determining level of culpability under malicious destruction of private property statute when property is only partially destroyed is “loss resulting from the offense,” which is cost related to repair or restore the property and must be directly tied to damage to property. Ancillary consequences that may accompany crime in general, such as need to provide increased security, cannot be included to meet statutory threshold. NRS 193.155, 206.310. 6. Malicious Mischief. Evidence of replacement cost, as opposed to fair market value, of items destroyed when defendant threw human excrement at employee inside retail store was insufficient to show that value of the property affected exceeded $5,000, as required for felony conviction, without first establishing need to replace property with new, rather than used items; however, evidence was sufficient to show that damage exceeded $250, so as to support gross misdemeanor conviction. NRS 193.155, 206.310. 7. Malicious Mischief. Cost of hiring security guard was not a “loss resulting from the offense” of malicious destruction of private property, and thus could not be considered in determining whether the value of the property affected and the loss resulting from the offense when defendant threw human excrement at employee inside retail store exceeded $5,000 threshold for felony conviction. NRS 193.155, 206.310.

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Becker, J.: Appellant Joseph Daniel Romero damaged property when he threw human excrement at an individual inside of a retail store in Las Vegas. Romero was convicted of burglary, aggravated stalking, and

malicious destruction of private property. Romero contends that the State failed to establish that the value of the damaged property or the loss resulting from the offense exceeded the $5,000 felony threshold. 1

As a result, he argues that the State failed to prove the elements of felony malicious destruction of private property beyond a reasonable doubt. We agree, and for the reasons set forth below, we reverse Romero's conviction for felony malicious destruction of private property and remand the matter WRWKH

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Romero raises several other issues, including the constitutionality of NRS 200.275. Based upon the record and the briefs filed herein, we conclude that Romero's remaining contentions on appeal are without merit. Accordingly, we affirm Romero's burglary and aggravated stalking convictions.

Ð116 Nev. 344, 346 (2000) Romero v. StateÐ Ð to the district court with instructions to enter a judgment of conviction of gross misdemeanor malicious destruction of private property. FACTS On January 8, 1998, Romero walked into a retail store in Las Vegas and threw human feces and urine from a container he was carrying at a store employee. The excrement not only soaked the employee's clothing, but also scattered on merchandise and furnishings, causing significant property damage. Romero was a former employee of the store and prior to that evening, Romero made repeated telephone and facsimile threats, including death threats, to employees at the store over an extended period of time. The threats ceased when Romero was arrested. At trial, the State admitted into evidence a videotape showing the damage to the merchandise, furnishings and clothing. A former store manager, Dawit Ambaye (“Ambaye”), testified that, based on figures he received from the store's corporate office, individual contractors and vendors provided by the corporate office and his own experience, he compiled an expense list estimating the costs incurred as a result of the property damage. In particular, this list outlined replacement figures for a computer ($950), a wall unit ($1,500), and a light fixture ($160) as well as the cost of carpet cleaning and repair ($1,050). The list also included the replacement cost of damaged store merchandise ($250) and the employee's clothing ($150). Ambaye further testified that, in addition to the replacement figure for the computer, the expense list included the salvage value of the computer ($950). Ambaye testified that the damages incurred by the store as a result of Romero's conduct totaled $5,010. While the term “fair market value” was not used specifically in evaluating the damages suffered by the store, the testimony did contain information from which a jury could determine the fair market value of some of the destroyed property. Additionally, evidence was admitted of the expenses paid by the store to hire a security guard to protect frightened employees for several weeks after the incident. DISCUSSION A felony conviction for malicious destruction of private property under NRS 206.310 and 193.155 must be supported by proof that the value of the property affected or the loss resulting from the damage to property equals or exceeds the sum of $5,000. 2 See 5RVVDQDY6WDWH1HY3G

  __________

2

NRS 206.310 provides, in pertinent part, that: Every person who shall willfully or maliciously destroy or injure any real or personal property . . . shall be guilty of a public offense pro-

Ð116 Nev. 344, 347 (2000) Romero v. StateÐ Ð Rossana v. State, 113 Nev. 375, 384, 934 P.2d 1045, 1050-51 (1997). We have never decided, however, the meaning of the phrases “value of the property affected” or “loss resulting from the offense.” For other property crimes, such as larceny, we have concluded that the measure of the damages sustained as a result of the theft should generally be the fair market value of the stolen property. See, e.g., Bryant v. State, 114 Nev. 626, 629, 959 P.2d 964, 966 (1998). The cost to replace a stolen item may be relevant to establishing the fair market value of that property when the replacement is a used item of similar age and specifications as the stolen item. However, when the replacement cost is based upon the current market price for an unused new item, such evidence alone is generally not sufficient to establish the monetary thresholds which distinguish between misdemeanor, gross misdemeanor and felony property crimes. 3 Such a rule is mandated by the language of the statute, which separates the various degrees of theft based upon the value of the property that was stolen, not the cost to replace the stolen property with a brand new item. Romero contends we should adopt the Bryant standard in cases involving the malicious destruction of private property. Using this standard, much of the testimony of Ambaye would be insufficient to establish that the value of the property destroyed met or exceeded the $5,000 requirement of the statutes. Specifically, Romero argues that the testimony regarding the cost to replace old equipment with new equipment and the hiring of the security guard would be improper and, without such testimony, the amount of the damages is under $5,000. The State argues that Bryant is not controlling and urges us to adopt a different standard for malicious destruction of private property cases. The State contends that the words “value of the property affected or the loss resulting from the offense” have a broader meaning than the language contained in the larceny VWDWXWHVDW

LVVXHLQ%U\DQW __________ portionate to the value of the property affected or the loss resulting from such offense. NRS 193.155 provides, in pertinent part, that: Every person who is guilty of a public offense proportionate to the value of the property affected or the loss resulting from the offense shall be punished as follows: 1. Where the value of the loss is $5,000 or more . . . for a category C felony as provided in NRS 193.130. 3

There are instances where the value of the stolen property might only be established by original or replacement costs. For example, the value of a framed piece of artwork by an unknown artist might be best determined by the initial price of the piece or the replacement cost. Bryant merely requires the prosecution to lay a foundation for the admission of valuations that are not based on a traditional fair market value analysis.

Ð116 Nev. 344, 348 (2000) Romero v. StateÐ Ð statutes at issue in Bryant. Thus if a business is temporarily closed or has to hire extra security as a result of the malicious act, then such damages are included under “loss resulting from the offense.” [Headnotes 1-3] Penal statutes should be narrowly construed where they are ambiguous. See Buschauer v. State, 106 Nev.

890, 896, 804 P.2d 1046, 1049 (1990); Anderson v. State, 95 Nev. 625, 629, 600 P.2d 241, 243 (1979). The phrase “value of the property affected or the loss resulting from the offense” is subject to more than one reasonable interpretation and is therefore ambiguous. Thus NRS 206.310 and 193.155 must be narrowly construed. The overall intent of these statutes is to make criminal penalties proportionate to the value of the property affected. They should be interpreted to give meaning to that intent while adopting the narrower of two reasonable definitions. [Headnote 4] Malicious destruction of private property, unlike theft, can result in two types of direct injury to the property, total or partial destruction. The language in the statute refers to both types of destruction. The fair market value of the property is the appropriate standard for determining the level of culpability when the property is completely destroyed. When an item is totally destroyed it is as though it was stolen, and the Bryant rule should apply. The degree of criminal liability should be determined by the fair market value of the property unless the fair market value cannot be reasonably determined at which point alternate evidence of value may be offered such as new replacement. See Cleveland v. State, 85 Nev. 635, 637, 461 P.2d 408, 409 (1969). [Headnote 5] However, when property is only partially destroyed, it falls within the “loss resulting from the offense” category. Here the appropriate measure of damages is the cost related to repair or restore the property. 4 The “loss” must be directly tied to the damage to the property, i.e., “the offense.” Ancillary consequences that may accompany a crime in general, such as the need to provide increased security, cannot be included to meet the statutory thresholds. __________ 4

In some cases, the loss may extend beyond the repair costs. For example, it may be impossible to repair the property so that it matches the undamaged portions of the property, like the paint job on an automobile. In such instances, restoration of the property to its previous condition may require painting the entire automobile, even the undamaged portions. Where the State is claiming such damages, it must lay the foundation to show why such additional costs are necessitated by the damage created by the actions of the defendant.

Ð116 Nev. 344, 349 (2000) Romero v. StateÐ Ð [Headnotes 6, 7] Analyzing the evidence in this case, we conclude that the district court erred in allowing the State to admit evidence regarding the cost to hire a security guard. We further conclude that the district court erred in allowing evidence of the replacement value, as opposed to the fair market value, of some of the destroyed property, such as the wall unit, without first establishing the need for a new unit rather than a used unit. Finally, the damaged computer was counted twice, the salvage value of $950 (arguably the fair market value) and the cost to replace the computer at another $950. Without the questionable items, the value of the property destroyed or the loss resulting from the offense falls below the $5,000 required for a felony conviction. However, there is overwhelming evidence that the value of the property destroyed or repaired exceeds $250, the threshold for a gross misdemeanor conviction. Accordingly, we reverse the judgment of conviction of felony malicious destruction of private property, and remand this case to the district court for entry of a judgment of conviction of gross misdemeanor malicious destruction of private property and for further proceedings consistent with this opinion. Maupin and Shearing, JJ., concur. ____________

Ð116 Nev. 349, 349 (2000) King v. StateÐ Ð Ð DARREN MAURICE KING, Appellant, v. THE STATE OF NEVADA, Respondent. No. 33579 March 13, 2000

998 P.2d 1172

Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of trafficking in a controlled substance, three counts of attempted murder with the use of a deadly weapon, and one count of discharging a firearm at or into a structure. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge. Defendant was convicted in the district court of two counts of trafficking in a controlled substance, three counts of attempted murder with the use of a deadly weapon, and one count of discharging a firearm at or into a structure, and he appealed. The supreme court, Maupin, J., held that: (1) State's use of peremptory challenge to exclude sole African-American venireperson from jury pool on ground of her youth and inexperience was not mere pretext for race discrimination, (2) failure to conduct a Petrocelli hearing on record prior to admitting police informant's WHVWLPRQ\ WKDW KH KDG SUHYLRXVO\ DFTXLUHG LOOHJDO GUXJV IURP GHIHQGDQW

DSSUR[LPDWHO\WRWLPHVGLGQRWUHTXLUHUHYHUVDORIFRQYLFWLRQV Ð116 Nev. 349, 350 (2000) King v. StateÐ Ð testimony that he had previously acquired illegal drugs from defendant approximately 25 to 30 times did not require reversal of convictions, (3) cautionary jury instruction regarding the credibility of an addict-informant was not required, (4) misconduct by prosecutor in form of statements during closing argument in which prosecutor vouched for credibility of law enforcement witnesses constituted harmless error, (5) night-time execution of warrant to search defendant's residence was not unreasonable, and (6) use of shot gun during execution of search warrant to penetrate iron gate or security door that was protecting front entrance of defendant's residence was not unreasonable. Affirmed. [Rehearing denied June 9, 2000] Karen A. Connolly, Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent. 1. Constitutional Law. The Equal Protection Clause forbids utilizing a peremptory challenge to exclude a juror on the basis of race. U.S. Const. amend. 14. 2. Jury. A defendant claiming that a Batson violation has occurred must first demonstrate a prima facie case of racial discrimination in connection with the State's use of peremptory challenges to exclude African-American venirepersons from the jury pool. 3. Jury. Once a defendant claiming a Batson violation has made out a prima facie case of racial discrimination in connection with the State's use of peremptory challenges to exclude African-American venirepersons from the jury pool, the burden shifts to the State to express a race-neutral explanation for the challenge. 4. Jury. Once the State, in response to a Batson claim and prima facie evidence of race discrimination, has offered a race-neutral explanation for its use of peremptory challenges to exclude African-American venirepersons from the jury pool, the district court must determine whether the explanation was a mere pretext and whether the defendant has successfully proved racial discrimination. 5. Jury. State's use of peremptory challenge to exclude sole African-American venireperson from jury pool on ground of her youth and

inexperience was not mere pretext for race discrimination, and thus defendant's Batson claim would fail, where no other venireperson was impaneled who displayed characteristics for which stricken venireperson was dismissed. 6. Criminal Law. Failure to conduct a Petrocelli hearing on record prior to admitting SROLFH LQIRUPDQW V WHVWLPRQ\ WKDW KH KDG

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Ð116 Nev. 349, 351 (2000) King v. StateÐ Ð police informant's testimony that he had previously acquired illegal drugs from defendant approximately 25 to 30 times did not require reversal of narcotics and attempted murder convictions, where informant's testimony was relevant to the identification of defendant and lack of mistake, and defendant's convictions were supported by overwhelming evidence. NRS 48.045(2). 7. Criminal Law. Failure to conduct a Petrocelli hearing on the record prior to admitting prior bad acts evidence is grounds for reversal on appeal unless either the record is sufficient for the supreme court to determine that the evidence is admissible under the Tinch test for admissibility of such evidence, or where the result would have been the same had the district court not admitted the evidence. NRS 48.045. 8. Criminal Law. The Tinch factors for determining the admissibility of prior bad acts evidence include: (1) whether the evidence is relevant to the crime charged, (2) whether the other act is proven by clear and convincing evidence, and (3) whether the probative value of the other act is substantially outweighed by the danger of unfair prejudice. NRS 48.045. 9. Criminal Law. Cautionary jury instruction regarding the credibility of an addict-informant was not required in prosecution for narcotics violations and attempted murder where informant who made controlled purchase of drugs from defendant on behalf of police not known to be or deemed unreliable, events surrounding defendant's arrest demonstrated reliability of information generated from informant, and jury was instructed on relevance of felony convictions sustained by witnesses and inducements offered in connection with certain testimony to events surrounding resolution of credibility issues. 10. Criminal Law. Prosecutor's statements during closing argument, in which prosecutor vouched for credibility of law enforcement witnesses by asking jury whether entire police force was involved in conspiracy against defendant, constituted misconduct in prosecution for narcotics violations and attempted murder. 11. Criminal Law. Misconduct by prosecutor in prosecution for narcotics violations and attempted murder, in form of statements during closing argument in which prosecutor vouched for credibility of law enforcement witnesses, constituted harmless error, where evidence of defendant's guilt was overwhelming. 12. Criminal Law. 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. 13. Criminal Law. If the issue of guilt or innocence is close, and if the State's case is not strong, prosecutorial misconduct will probably be considered prejudicial; however, where evidence of guilt is overwhelming, even aggravated prosecutorial misconduct may constitute harmless error. 14. Drugs and Narcotics. Night-time execution of warrant to search defendant's residence was not unreasonable, where district court issuing warrant directed that it FRXOGEHH[HFXWHGDWDQ\WLPHRIGD\RUQLJKW

Ð116 Nev. 349, 352 (2000) King v. StateÐ Ð could be executed at any time of day or night, and affidavit in support of warrant and testimony below indicated that five people, within ten minutes, entered and left defendant's residence for purpose of purchasing drugs. 15. Searches and Seizures. Absent an abuse of discretion, a magistrate's finding of a reasonable necessity for night-time service of a search warrant should not be disturbed. 16. Searches and Seizures. Use of shot gun during execution of search warrant to penetrate iron gate or security door that was protecting front entrance of defendant's residence was not unreasonable, where residence was secured with bars on windows and iron gate or security door which made residence extremely difficult to penetrate. 17. Searches and Seizures. Execution of warrant to search defendant's residence did not violate “knock and announce” statute, where police officers executing warrant shouted something to effect of “police officer” and “search warrant,” prior to penetrating premises, and officers heard shots fired inside residence immediately after announcing themselves. NRS 179.055.

18. Criminal Law. Even assuming that State's failure to disclose to grand jury allegedly exculpatory testimony of witnesses that police failed to knock and announce their presence prior to entering defendant's residence to execute search warrant was error, such error was harmless where evidence supporting defendant's convictions for attempted murder was overwhelming. NRS 172.145(2). 19. Grand Jury. A prosecutor is required to disclose to the grand jury all exculpatory evidence. 20. Grand Jury. “Exculpatory evidence” is defined as evidence that will explain away the charge, and prosecutor is required to disclose all such evidence to grand jury.

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Maupin, J.: FACTS This matter arises from a successful undercover drug enforcement operation and interdiction. Utilizing an informant, police effected a “controlled buy” or purchase of illegal drugs at an apartment in which appellant, Darren Maurice King, was residing. Based on the successful completion of the drug purchase, police obtained a search warrant for the same residence. While executing the search warrant later that evening a gun battle HQVXHG

Ð116 Nev. 349, 353 (2000) King v. StateÐ Ð ensued. Once the gunfire subsided, police entered the residence and arrested King. King was tried in district court before a jury and convicted of two counts of trafficking in a controlled substance, three counts of attempted murder with the use of a deadly weapon, and one count of discharging a firearm at or into a structure. King appeals from the judgments entered upon these convictions. King raises several issues on appeal, none of which warrant reversal: (1) whether the State's peremptory challenge of the sole African-American venireperson violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; (2) whether the district court improperly admitted prior bad act evidence; (3) whether the district court erroneously failed to give a cautionary jury instruction regarding the credibility of an addict-informant; (4) whether the prosecutor improperly vouched for the credibility of a witness; (5) whether a search warrant was executed in such a dangerous manner as to render the search unreasonable under the Fourth Amendment to the United States Constitution; and (6) whether the district court erroneously denied King's motion to dismiss, which was premised on the State's failure to present allegedly exculpatory evidence to the grand jury. 1 DISCUSSION 1. King asserts that the district court erred by permitting the State to use its fifth peremptory challenge to strike the only African-American venireperson in the jury pool. [Headnotes 1-4] In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that the Equal Protection Clause of the United States Constitution forbids utilizing a peremptory challenge to exclude a juror on the basis of race. In Purkett v. Elem, 514 U.S. 765, 767 (1995), the Court outlined the steps required for a Batson challenge. First, the opponent of a peremptory challenge must demonstrate a prima facie case of racial discrimination. Second, the burden shifts to the proponent of the challenge to express a race-neutral explanation for the challenge. Third, the district court must determine whether the explanation was a mere pretext and whether the opponent successfully proved racial discrimination. If these issues are resolved in favor of the

proponent, the constitutional attack on the peremptory challenge is rejected. See Hernandez v. New York, 500 U.S. 352, 359 (1991). __________ 1

King raised several other issues on appeal given consideration by this court, all of which were found to be without merit.

Ð116 Nev. 349, 354 (2000) King v. StateÐ Ð [Headnote 5] Here, the State opposed the Batson objection to the peremptory challenge by representing that the prospective juror in question was stricken because of her youth and inexperience. The reasons given by the State were race neutral and properly considered by the district court. Accordingly, we must consider whether the race-neutral explanation was merely a pretext for racial discrimination. A review of the jury selection transcript demonstrates that no other venireperson was impaneled who displayed the characteristics for which the stricken venireperson was dismissed. See Turner v. Marshall, 121 F.3d 1248 (9th Cir. 1997). We therefore conclude that King has failed to demonstrate on appeal that a Fourteenth Amendment Equal Protection violation occurred based on the peremptory challenge of the sole African-American venireperson. [Headnote 6] 2. King next contends that the admission of prior bad act testimony constitutes reversible error. We disagree. During King's trial, the informant who participated in the controlled contraband purchase testified that he had previously acquired illegal drugs from King approximately twenty-five to thirty times. This information was set forth in the application and affidavit utilized to obtain the search warrant. The State also referred to this evidence in its closing argument. King submits that this testimony was improperly admitted contrary to NRS 48.045, which provides that evidence of a person's character may not be admitted for the purpose of proving that the person acted in conformity therewith on a particular occasion. King also argues that the failure to conduct a hearing prior to the admission of the testimony pursuant to Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), constitutes reversible error. [Headnotes 7, 8] Failure to conduct a Petrocelli hearing on the record is grounds for reversal on appeal unless either the record is sufficient for this court to determine that the evidence is admissible under the test for admissibility of bad act evidence as set forth in Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997), 2 or where the result would have been the same had the district court not admitted the evidence. Qualls v. State, 114 Nev. 900, 902, 961 P.2d 765, 766-67 (1998). __________ 2

The Tinch factors include a determination of (1) whether the evidence is relevant to the crime charged; (2) whether the other act is proven by clear and convincing evidence; and (3) whether the probative value of the other act is substantially outweighed by the danger of unfair prejudice. See Tinch, 113 Nev. at 1176, 946 P.2d at 1064-65.

Ð116 Nev. 349, 355 (2000) King v. StateÐ Ð

We conclude that the district court's failure to conduct a Petrocelli hearing prior to admission of the prior drug transactions involving King does not give rise to reversible error. The evidence in question was relevant to the identification of King and lack of mistake pursuant to NRS 48.045(2). 3 Further, the record is sufficient for this court to determine that the remaining Tinch factors for admissibility have been met. Finally, in the alternative, we conclude that the result would have been the same had the district court not admitted the testimony because King's guilt is supported by overwhelming evidence. 4 [Headnote 9] 3. King also contends that the district court erred in failing to give a cautionary jury instruction regarding the credibility of an addict-informant. In support of this contention, King relies on Champion v. State, 87 Nev. 542, 490 P.2d 1056 (1971). In Champion, the State conceded that a proper cautionary instruction concerning an addict-informer's testimony was central to the case. Champion, 87 Nev. at 544, 490 P.2d at 1057. The finding was based on the State's admissions that the utilized addict-informer was “about as unreliable an addict-informer as you can have,” and that the addict-informer's unreliability was commonly known. Id. In Champion, the State further conceded that, aside from the addict-informer's testimony, there was “nothing to show that the [drugs] were turned over to [the addict-informer] and received from [the defendant].” Id. at 543-44, 490 P.2d at 1056. Champion is distinguishable because the informant in this matter was not known to be or deemed unreliable. First, a Las Vegas Metropolitan Police Department detective testified that he did not know the informant until just prior to the events at issue. Second, the informant was proved reliable during the prior controlled acquisitions of contraband. Third, the events surrounding the arrest clearly demonstrated the reliability of information generated from the informant. Thus, there was substantial evidence against King to corroborate the informant's testimony. Additionally, the MXU\ZDVLQVWUXFWHGRQWKHUHOHYDQFHRIIHORQ\FRQYLFWLRQV

VXVWDLQHGE\ZLWQHVVHVDQGLQGXFHPHQWVRIIHUHGLQFRQQHFWLRQZLWKFHUWDLQWHVWLPRQ\WR WKHUHVROXWLRQRIFUHGLELOLW\LVVXHV __________ 3

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.

4

King was found within the immediate proximity of various narcotics paraphernalia, substantial amounts of cocaine, and within reach of a weapon that could not be excluded as having fired projectiles recovered from the crime scene. There was also testimony that King was responsible for shooting at the officers. Finally, the informant identified King as his supplier.

Ð116 Nev. 349, 356 (2000) King v. StateÐ Ð jury was instructed on the relevance of felony convictions sustained by witnesses and inducements offered in connection with certain testimony to the resolution of credibility issues. See Doleman v. State, 107 Nev. 409, 415, 812 P.2d 1287, 1290 (1991). [Headnotes 10, 11] 4. King asserts that the State improperly vouched for the credibility of certain witnesses as follows: Ladies and gentlemen, I suspect if you want to consider the defense's argument, then this whole case

is a lie and Mr. Lalli and I stand right here now and we present to you a lie. We are involved in it as well. We came in here, we presented all the evidence that was presented to us all the way down from Sheriff Keller himself. The whole police force is involved in a lie in a big conspiracy to go after this man right here? The whole police force wants to bring something to light that they are so dirty they want this man right here that they are willing to create such an elaborate, as she says, story? Big story that we write an ending to? If you want to believe that, then believe it. And find him not guilty because the whole police force is dirty and they are terrible and every time you want to get a dangerous drug dealer off the street the police force is involved in it. . . . But ladies and gentlemen, I don't mean to. I hope I didn't offend the jury. I get a little upset about the fact that our police officers are being put up here and then told—jurors are told that they are liars. That's basically what happened here. [Headnotes 12, 13] “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.” See United States v. Young, 470 U.S. 1, 11 (1985). If the issue of guilt or innocence is close, and if the State's case is not strong, prosecutorial misconduct will probably be considered prejudicial. See Garner v. State, 78 Nev. 366, 374, 374 P.2d 525, 530 (1962). However, where evidence of guilt is overwhelming, even aggravated prosecutorial misconduct may constitute harmless error. See Jones v. State, 113 Nev. 454, 467, 937 P.2d 55, 64 (1997). We conclude that the comments made by the State were, at least LQSDUWLPSURSHU

Ð116 Nev. 349, 357 (2000) King v. StateÐ Ð in part, improper. However, any error was harmless in light of the overwhelming evidence of King's guilt. 5 [Headnote 14] 5. King asserts that night-time execution of the search warrant and the use of a shotgun 6 to blow open a locked iron gate securing King's residence offended constitutional standards of reasonableness, thus vitiating the legality of the accompanying search. King also alleges that officers failed to knock and announce their presence prior to executing the search warrant in violation of NRS 179.055 (providing that an officer may break into a house to execute a warrant if refused admittance after notice of his authority and purpose). [Headnote 15] We conclude that the search warrant was not executed in an unreasonable manner. In Sanchez v. State, 103 Nev. 166, 169, 734 P.2d 726, 728 (1987), this court held that “[a]bsent an abuse of discretion, a magistrate's finding of a reasonable necessity for night-time service should not be disturbed.” This is based on the premise that controlled substances may dissipate through nighttime sales and an informant's purchase money could be spent prior to the execution of a warrant. Id. The search warrant in this case provides, “You are hereby commanded to search forthwith said premises for said property, serving this warrant at any hour of the day or night . . . .” (Emphasis added.) The affidavit in support of the search warrant and testimony below indicated that five people, within ten minutes, entered and left King's apartment for the purpose of purchasing drugs. Thus, we conclude that the district court did not abuse its discretion by directing the warrant to be executed at any time of the day or night. Accordingly, the timing of the execution of the search warrant in this case was not unreasonable. [Headnote 16] Officers also testified that the residence was secured with bars on the windows and an iron gate or security

door, which made the residence difficult to penetrate. Due to the structural fortification of the residence, as well as information that persons within it were armed and dangerous, the use of a shotgun to penetrate the iron gate or security door that was protecting the front entrance of the residence was not unreasonable. 7 __________ 5

See note 4.

6

The shotgun in question is also known as a “shot lock” or a “street sweeper.” This device is actually a modified shotgun designed to penetrate locks and force them open. 7

To support the proposition that the use of the “street sweeper” is unreasonable, King cites Langford v. Superior Court, 729 P.2d 822 (Cal. 1987).

Ð116 Nev. 349, 358 (2000) King v. StateÐ Ð [Headnote 17] We further conclude that the Nevada “knock and announce” statute, NRS 179.055, 8 was not violated. Several of the officers at the scene testified that they announced their presence by yelling something to the effect of “Police officer. Search warrant,” prior to penetrating the premises. Immediately thereafter, shots were fired from the interior of the residence. We therefore hold that, under the circumstances of this case, the officers substantially complied with NRS 179.055 and properly entered the apartment under exigent circumstances to execute the warrant. See United States v. Fox, 790 F. Supp. 1487 (D. Nev. 1992) (holding that non-compliance with NRS 179.055 was justified where compliance with statute would have placed officers in great physical peril). [Headnote 18] 6. King contends that the State failed to present exculpatory evidence to the grand jury contrary to NRS 172.145. 9 More specifically, King contends that the State failed to present statements of four persons who were inside the residence at the time the search warrant was executed. These statements purportedly indicated that the police failed to knock and announce their presence prior to entry. King asserts that he would not be guilty of attempted murder if it was established that he had been in reasonable fear for his life due to the police officers' failure to knock and announce their presence. __________ However, in Langford, officers penetrated a suspected crack house utilizing a motorized battering ram that was determined to be unreasonably dangerous based on its potential ability to collapse building walls and ceilings, rupture utility lines, cause fire through the damage of electrical wires or gas lines, and threaten the safety of not only occupants of a dwelling, but an entire neighborhood. No such dangers have been alleged through the use of the “street sweeper” in this case, which was evidently used to penetrate the lock with minimal risk to dwelling occupants. 8

NRS 179.055 provides, in part: 1. The officer may break open any outer or inner door or window of a house, or any part of the house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance. .... 3. All reasonable and necessary force may be used to effect an entry into any building or property or part thereof to execute a search warrant. In the execution of the warrant, the person executing it may

reasonably detain and search any person in the place at the time in order to protect himself from attack or to prevent destruction, disposal or concealment of any instruments, articles or things particularly described in the warrant. 9

NRS 172.145(2) provides that “[i]f the district attorney is aware of any evidence which will explain away the charge, he shall submit it to the grand jury.”

Ð116 Nev. 349, 359 (2000) King v. StateÐ Ð [Headnotes 19, 20] Nevada law requires a prosecutor to disclose to the grand jury all exculpatory evidence. See Lay v. State, 110 Nev. 1189, 1197, 886 P.2d 448, 453 (1994). Exculpatory evidence is defined as evidence that will explain away the charge. Id. Assuming that the provisions of NRS 172.145(2) were violated by the State's failure to present the testimony of the four individuals to the grand jury, in light of the overwhelming evidence against King, we conclude that violation does not compel reversal. 10 See NRS 178.598; Chapman v. California, 386 U.S. 18, 24 (1967). Having reviewed all other issues raised in this appeal and finding them to be without merit, we hereby affirm the judgment below. Shearing and Becker, JJ., concur.

____________

Ð116 Nev. 359, 359 (2000) Gaines v. StateÐ Ð Ð MELVIN TAYLOR GAINES, Appellant, v. THE STATE OF NEVADA, Respondent. No. 33681 March 13, 2000

998 P.2d 166

Appeal from a judgment of conviction, pursuant to a guilty plea of two counts of burglary and one count of forgery. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge. Defendant pleaded guilty in the district court to two counts of burglary and one count of forgery, and he appealed. The supreme court held that: (1) defendant was not entitled to credit against sentences he received for two subsequent felonies, committed while he was on probation for first felony offense, for time served while he was being held for probation violation; and (2) statute requiring genetic marker testing for certain enumerated offenders is not unconstitutional. Affirmed. Morgan D. Harris, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland and Brian S. 5XWOHGJH &KLHI 'HSXW\ 'LVWULFW $WWRUQH\V &ODUN &RXQW\ IRU

5HVSRQGHQW

__________ 10

King was clearly allowed to present that evidence for consideration by the jury at trial.

Ð116 Nev. 359, 360 (2000) Gaines v. StateÐ Ð Rutledge, Chief Deputy District Attorneys, Clark County, for Respondent. JoNell Thomas, Las Vegas, for Amicus Curiae The American Civil Liberties Union of Nevada and the Nevada Attorneys for Criminal Justice. 1. Criminal Law. The supreme court will not disturb a district court's determination of sentencing absent an abuse of discretion. 2. Criminal Law. With respect to plea agreements, the State must be held to the most meticulous standards of both promise and performance, and violation of the terms or the “spirit” of a plea agreement mandates reversal. 3. Criminal Law. Defendant was not entitled to credit against sentences he received for two subsequent felonies, committed while he was on probation for first felony offense, for time served while he was being held for probation violation with respect to first felony offense. NRS 176.055. 4. Statutes. It is a well-recognized tenet of statutory construction that multiple legislative provisions be construed as a whole, and where possible, a statute should be read to give plain meaning to all of its parts. 5. Statutes. Specific statutes take precedence over general statutes. 6. Searches and Seizures. The involuntary collection of a blood sample from an offender constitutes a warrantless search and seizure for purposes of the Fourth Amendment that is not based on individualized suspicion of wrongdoing. U.S. Const. amend. 4. 7. Searches and Seizures. The “special needs” exception to the Fourth Amendment warrant requirement mandates a showing that: (1) the search was reasonable, and (2) that a warrant would be impracticable and would frustrate the government's interest in a special need beyond normal law enforcement. U.S. Const. amend. 4. 8. Searches and Seizures. Statute requiring genetic marker testing for certain enumerated offenders does not violate Fourth Amendment prohibition against unreasonable searches and seizures. Government's legitimate interest in creating genetic marker database to solve future crimes outweighs convicted criminal's reasonable expectation of privacy, particularly in light of minimally intrusive nature of blood draw for genetic test. U.S. Const. amend. 4; NRS 176.0913. 9. Searches and Seizures. A convicted person loses some rights to personal privacy that would otherwise be protected under the Fourth Amendment, such as his interest in his genetic identity as determined by DNA testing, even when the State's interest does not concern administration of penal or detention facilities. U.S. Const. amend. 4. 10. Constitutional Law. The equal protection clause of the Fourteenth Amendment mandates that all persons similarly situated receive like treatment under the law. U.S. Const. amend. 14.

Ð116 Nev. 359, 361 (2000) Gaines v. StateÐ Ð 11. Constitutional Law. An equal protection analysis first requires that the appropriate standard of judicial scrutiny be identified, and then that the statutory classification be considered under that appropriate level of scrutiny. U.S. Const. amend. 14. 12. Constitutional Law. The strict scrutiny standard is applied to equal protection claims involving fundamental rights, such as privacy, marriage, or cases involving a suspect class. U.S. Const. amend. 14. 13. Constitutional Law. Under the strict scrutiny standard, statutory classifications should be sustained in the face of an equal protection claim only if the legislation is narrowly tailored and necessary to advance a compelling state interest. U.S. Const. amend. 14.

14. Constitutional Law. A lesser standard for reviewing equal protection challenges to statutory classifications applies where the classification does not affect fundamental liberties. U.S. Const. amend. 14. 15. Constitutional Law. Under the rational basis standard of review for equal protection claims, the legislation at issue will be upheld provided the challenged classification is rationally related to a legitimate governmental interest. U.S. Const. amend. 14. 16. Constitutional Law. The “rational basis” level of scrutiny is applicable to equal protection claims arising out of statutorily mandated genetic marker testing for persons convicted of enumerated offenses, as a convicted person has no fundamental right to be free from DNA genetic marker testing. U.S. Const. amend. 14; NRS 176.0913. 17. Constitutional Law; Searches and Seizures. Statute requiring the genetic marker testing of individuals convicted of specific enumerated offenses was rationally related to legitimate governmental interest in apprehension of repeat and violent offenders, and thus did not violate Fourteenth Amendment's Equal Protection Clause. U.S. Const. amend. 14; NRS 176.0913. 18. Constitutional Law; Searches and Seizures. Statute requiring the genetic marker testing of individuals convicted of specific enumerated offenses was rationally related to legitimate governmental interest in apprehension of repeat and violent offenders, and thus did not violate defendant's substantive due process rights. U.S. Const. amends. 5, 14; NRS 176.0913. 19. Criminal Law. The Eighth Amendment prohibits barbarous physical punishment and the unnecessary and wanton infliction of pain without justification. U.S. Const. amend. 8. 20. Criminal Law; Searches and Seizures. Statute requiring genetic marker testing for certain enumerated offenders does not violate Eighth Amendment prohibition against cruel and unusual punishment. Blood draw to secure material for test is neither barbarous nor involves wanton physical punishment. U.S. Const. amend. 8. 21. Constitutional Law; Searches and Seizures. Statute requiring genetic marker testing for certain enumerated offenders, by its plain language, limits purpose of testing to identificaWLRQ

Ð116 Nev. 359, 362 (2000) Gaines v. StateÐ Ð tion, and thus statute is not unconstitutionally overbroad, even though statute does not explicitly limit amount of blood that may be drawn or time period for keeping test results, and does not require that State dispose of remaining portions of blood not used in DNA testing. NRS 176.0913.

Before Maupin, Shearing and Becker, JJ. OPINION Per Curiam: SUMMARY This case presents a significant issue of first impression—whether NRS 176.0913, a statute that authorizes DNA testing for certain enumerated criminal offenses, is constitutional. Additionally, this matter addresses whether the district court erred in refusing to credit appellant, Melvin Taylor Gaines (“Gaines”), for time served in custody on the various sentences imposed in the district court. For the reasons discussed herein, we conclude that NRS 176.0913 is constitutional and that the district court did not err with regard to Gaines' sentences. STATEMENT OF FACTS Gaines faced felony criminal charges arising from three separate incidents. On April 7, 1998, Gaines pleaded guilty to the unlawful use of coins in a gaming machine, a felony, and was sentenced to twelve to forty-eight months (“case A”). The district court suspended this sentence and placed Gaines on probation for a term not to exceed four years. Several months later, while still on probation in connection with case A, Gaines was arrested for burglary and forgery arising from a failed attempt to cash three fake $100.00 Visa traveler's checks at a Las Vegas

casino (“case B”). Gaines' probation in connection with case A was eventually revoked because of this arrest. While awaiting his probation revocation hearing on case A, Gaines was rebooked on a separate burglary charge stemming from a June 22, 1998, check forgery at a Las Vegas bank (“case C”). Gaines ultimately entered negotiated guilty pleas to one count of burglary and one count of forgery in case B, and one count of burglary in case C. Defense counsel discussed the terms of the agreement leading to these pleas of guilty during Gaines' unconditional waiver of preliminary hearing:

Ð116 Nev. 359, 363 (2000) Gaines v. StateÐ Ð Another issue is the credit for time served. It's discretionary as to whether or not he will get credit in these new cases or all go to this probation case. State has agreed to not oppose credit in all the cases for the time period that he has been booked on each case, which means that . . . . Which means that he will be getting this time now in his probation revocation hearing and in every other case. (Emphasis added.) Gaines' plea agreement, however, stated in relevant part, that [t]he State has agreed to retain the right to argue at rendition of sentence, but will not oppose concurrent time between the burglary counts. The State will not oppose all discretionary time being given to defendant on all counts. Although the terms discussed at the waiver of preliminary hearing were in conflict with the actual written plea agreement, no attempt was made at the arraignment to remand the matter for preliminary hearing. Thus, Gaines proceeded with the plea negotiations as per the written agreement. Gaines was sentenced on December 22, 1998. With respect to case B, the district court imposed a sentence of seventy-two months with parole eligibility in fourteen months in connection with the burglary conviction, and thirty-four months with parole eligibility in twelve months in connection with the forgery conviction. With respect to case C, Gaines was sentenced to seventy months with parole eligibility in sixteen months. As of the date of sentencing, Gaines had been in custody since August 19, 1998—a total of 217 days. The sentences in cases B and C were imposed concurrently with the sentence imposed in case A, pursuant to which Gaines had been required to serve his original sentence of forty-eight months with parole eligibility in twelve months. The district court awarded 217 days credit for time served in case A, but gave no credit in connection with cases B and C. After the State objected to Gaines' request for credit on all three cases, the following colloquy occurred: [Gaines' Counsel]: The State is having no objection— The Court: I don't think those were the negotiations because I can't do that [credit each case for time served]. [The State]: You can't multiply the credit and apply it to each case. We have no opposition to the discretionary time. Additionally, the district court required Gaines to undergo DNA genetic marker testing. Believing that the district court erred in sentencing and that the genetic marker testing was unconstitutional, Gaines filed this timely appeal.

Ð116 Nev. 359, 364 (2000) Gaines v. StateÐ Ð DISCUSSION

I. Credit for time served [Headnotes 1-3] This court will not disturb a district court's determination of sentencing absent an abuse of discretion. See Martinez v. State, 114 Nev. 735, 737-38, 961 P.2d 143, 145 (1998). In the instant matter, Gaines contends that the district court abused its discretion in not applying credit in cases B and C for the time that Gaines served in custody while being held for his probation violation in case A. 1 We disagree because the district court was prohibited under NRS 176.055 and the terms of the plea agreement from applying credit in cases B and C. NRS 176.055 provides, in relevant part: 2. A defendant who is convicted of a subsequent offense which was committed while he was: .... (b) Imprisoned in a county jail or state prison or on probation or parole from a Nevada conviction is not eligible for any credit on the sentence for the subsequent offense for the time he has spent in confinement which is within the period of the prior sentence, regardless of whether any probation or parole has been formally revoked. (Emphasis added.) The plain and unequivocal language of NRS 176.055(2)(b) prohibits a district court from crediting a parolee or probationer for time served on a subsequent offense if such offense was committed while on probation or parole. __________ 1

In a related argument, Gaines contends that the State breached the plea negotiations when it opposed discretionary time in all of his cases. We disagree that the State breached its plea agreement with Gaines. With respect to plea agreements, this court has concluded that the State must be held to “ ‘the most meticulous standards of both promise and performance' ” and that violation of the terms or the “spirit” of a plea agreement mandates reversal. Citti v. State, 107 Nev. 89, 91, 807 P.2d 724, 726 (1991) (quoting Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216 (1986)). Although Gaines argues that the State implicitly agreed not to oppose credit for time Gaines served in cases A-C at his waiver of preliminary hearing, Gaines' written guilty plea agreement provided only that “the State will not oppose all discretionary time being given to defendant on all counts.” We conclude that the State met this obligation under the plea agreement because it did not oppose any discretionary time. Although the State objected to credit for time served on cases B and C, this did not violate Gaines' plea agreement because such credit was not discretionary. Rather, the credit was prohibited by statute. See NRS 176.055. Further, Gaines' remedy would have been to abandon the negotiations at his arraignment in district court in light of the conflict in understandings and seek a remand to the justice court for renewed preliminary hearing proceedings.

Ð116 Nev. 359, 365 (2000) Gaines v. StateÐ Ð Although Gaines does not dispute the plain meaning of NRS 176.055(2)(b), he argues that the district court erred in applying this statutory mandate because NRS 176.055 is ambiguous since it conflicts with NRS 176.035. We conclude that this argument lacks merit, as we see no conflict between these statutes. NRS 176.035(2) provides, in relevant part: If the person is a probationer at the time the subsequent felony is committed, the court may provide that the latter term of imprisonment run concurrently with any prior terms or portions thereof. This statute simply authorizes the district court to impose concurrent sentences in instances where a probationer commits a subsequent felony. We cannot agree with Gaines' analysis that NRS 176.035 and 176.055 are in conflict.

[Headnotes 4, 5] It is a well-recognized tenet of statutory construction that multiple legislative provisions be construed as a whole, and where possible, a statute should be read to give plain meaning to all of its parts. See Building & Constr. Trades v. Public Works, 108 Nev. 605, 610, 836 P.2d 633, 636 (1992). It is also well recognized that specific statutes take precedence over general statutes. See SIIS v. Surman, 103 Nev. 366, 368, 741 P.2d 1357, 1359 (1987). In reading NRS chapter 176 as a whole, we have no trouble reconciling the two statutes at issue. NRS 176.035 merely authorizes the district court to run sentences concurrently; it does not require that these concurrent sentences be identical with respect to time served. Assuming arguendo that there is a conflict, we conclude that NRS 176.055 is controlling in this matter because it is more specific than NRS 176.035, as it deals with the factual circumstances concerning credit for time served. Gaines further argues that he is entitled to credit for time served on cases B and C under our holding in Kuykendall v. State, 112 Nev. 1285, 926 P.2d 781 (1996). We do not construe our holding in Kuykendall as a license to ignore the clear and unambiguous statutory mandate set forth in NRS 176.055. In Kuykendall, we held that NRS 176.055 should be read broadly to provide credit for confinement in instances where a defendant is financially unable to post bail. Id. at 1286, 926 P.2d at 782. Further, in Kuykendall, we noted that the purpose of NRS 176.055 was to ensure that a defendant was credited with all time served, in part, to prevent an equal protection violation—invidious discrimination based on a defendant's financial status. Id. at 1286-87, 926 P.2d at 782-83. However, in so doing, we neither commented on NRS 176.035 nor intended to alter the unequivoFDOSURKLELWLRQRILQFDUFHUDWLRQFUHGLWVHWIRUWKLQ156

 E  Ð116 Nev. 359, 366 (2000) Gaines v. StateÐ Ð cal prohibition of incarceration credit set forth in NRS 176.055(2)(b). Accordingly, we conclude that the district court did not err in the imposition of these sentences. II. NRS 176.0913 Preliminarily, Gaines argues that NRS 176.0913, a statute requiring genetic marker testing for certain enumerated offenders, does not apply to him because the legislature only intended it to apply to sexual offenders. 2 We conclude that this contention lacks merit for a number of reasons. First, the plain language of NRS 176.0913 unambiguously requires genetic marker testing for several types of non-sexual offenders. Subsection 4 of this statute lists numerous non-sexual offenses for which genetic marker testing is required including: murder, mayhem, administration of poison, battery, elder abuse or neglect, home invasion, burglary, the offense at issue in this case, and others. Second, assuming there is any ambiguity in this language, the legislative history indicates that S.B. 325, codified as NRS 176.0913, is a manifestation of the 1997 legislature's intent to, at least in part, expand the enumerated crimes for which DNA sampling and testing are to be required. Written materials submitted to the Senate Finance Committee in connection with S.B. 325 state unequivocally that [s]ubsection 4 expands the list of crimes for which genetic testing is required to include certain violent crimes such as PXUGHU PDQVODXJKWHU PD\KHP EDWWHU\ ZLWK WKH LQWHQW WR FRPPLW D

FULPHHOGHUDEXVHVWDONLQJEXUJODU\DQGLQYDVLRQRIWKHKRPH __________ 2

Gaines also argues NRS 176.0913 is ambiguous because subsections 4(b) and 4(j) conflict since 4(b) references a statute that defines the term “sexual offense,” in part to include a hearing requirement, whereas subsection 4(j) includes no such hearing requirement. See NRS 179D.410(17) (defining a sexual offense as “An offense that is determined to be sexually motivated pursuant to NRS 175.547 or NRS 207.193 [statutes

mandating hearings]”). We see no inherent ambiguity between these subsections. The hearing referenced indirectly in subsection 4(b) is only held to ascertain whether an offense is sexually motivated—not to determine whether DNA genetic marker testing is required. See NRS 175.547 and NRS 207.193. Accordingly, because there is no hearing requirement prior to genetic marker testing for both subsection 4(b) and 4(j), there is no conflict. Further, Gaines contends that the statute is ambiguous because NRS 179A.075, which defines the duties of the central depository, only authorizes the depository to collect genetic marker information from those convicted of sexual offenses. We conclude that this argument lacks merit. Although NRS 179A.075(3) was not broadened to authorize both the criminal justice agencies and the central depository to collect and submit genetic marker information from those convicted of non-sexual offenses, such authority was provided for in subsection 1 of NRS 176.0913. See NRS 176.0913(1)(a) (requiring that “information identifying the defendant be submitted to the central repository for Nevada records of criminal history”).

Ð116 Nev. 359, 367 (2000) Gaines v. StateÐ Ð murder, manslaughter, mayhem, battery with the intent to commit a crime, elder abuse, stalking, burglary, and invasion of the home. Hearing on S.B. 325 Before the Senate Finance Comm., 69th Leg., Ex. D, p. 18-19 (Nev., June 13, 1997). Third, the preamble of S.B. 325 states that it was intended, in part, “to expand the provisions relating to genetic marker testing of certain offenders.” 1997 Nev. Stat., ch. 451, preamble, at 1644. Gaines launches numerous constitutional attacks on NRS 176.0913, including claims that the statute is overbroad and that it violates his right to be free from unreasonable search and seizure, right to equal protection, right to due process, and right to be free from cruel and unusual punishment. Although we will address each constitutional argument in turn, we note preliminarily that all fifty states have enacted genetic marker testing statutes, and that appellate courts considering the constitutionality of these statutes have uniformly upheld them. See Landry v. Attorney General, 709 N.E.2d 1085, 1090 (Mass. 1999); see, e.g., Roe v. Marcotte, 193 F.3d 72, 79 (2d Cir. 1999); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996); Rise v. Oregon, 59 F.3d 1556, 1562 (9th Cir. 1995); Jones v. Murray, 962 F.2d 302, 308 (4th Cir. 1992); Vanderlinden v. Kansas, 874 F. Supp. 1210, 1215 (D. Kan. 1995); Kruger v. Erickson, 875 F. Supp. 583, 588-89 (D. Minn. 1995); Ryncarz v. Eikenberry, 824 F. Supp. 1493 (E.D. Wash. 1993); In the Matter of Maricopa County Juvenile Auth., 930 P.2d 496, 501 (Ariz. Ct. App. 1997); People v. Wealer, 636 N.E.2d 1129, 1137 (Ill. App. Ct. 1994); Cooper v. Gammon, 943 S.W.2d 699, 705 (Mo. Ct. App. 1997); In the Matter of Marcus Orozco, 878 P.2d 432, 435-36 (Or. Ct. App. 1994); State v. Olivas, 856 P.2d 1076, 1086 (Wash. 1993). Some genetic marker testing statutes are narrower than the Nevada provisions. Others are broader. For example, the Colorado provision applies only to sex offenders and the Virginia statute applies to all convicted felons. See Boling, 101 F.3d at 1340, and Jones, 962 F.2d at 308, respectively. Nationwide, appellate review of genetic marker provisions has focused primarily on whether such testing was unconstitutional as an unreasonable search and seizure in violation of the Fourth Amendment of the United States Constitution. A. Fourth Amendment [Headnote 6] It is undisputed that the involuntary collection of a blood sample from an offender constitutes a warrantless “search and seizure” for purposes of the Fourth Amendment that is not based RQLQGLYLGXDOL]HGVXVSLFLRQ

RIZURQJGRLQJ Ð116 Nev. 359, 368 (2000) Gaines v. StateÐ Ð on individualized suspicion of wrongdoing. See Landry, 709 N.E.2d at 1090; see also Bolin v. State, 114 Nev.

503, 523, 960 P.2d 784, 798 (1998) (intruding “into the human body for the purpose of taking a blood sample constituted searches within the ambit of the Fourth Amendment and were thus subject to stringent probable cause requirements”). Given this fact, the issue then becomes whether this warrantless search is unreasonable, thereby violative of the Fourth Amendment. See Landry, 709 N.E.2d at 1093. [Headnote 7] Courts that have considered this issue have taken two differing approaches in their Fourth Amendment analysis. First, some courts have applied a balancing approach weighing both the convict's expectation of privacy and the minimally intrusive nature of a blood draw against the government's interest in creating a genetic marker database to solve future crimes. See Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992); Rise v. Oregon, 59 F.3d 1556, 1560 (9th Cir. 1995). Second, other courts have determined that genetic marker testing falls within the “special needs” doctrine that allows searches and seizures without a warrant and without individualized suspicion. 3 See State v. Olivas, 856 P.2d 1076, 1086 (Wash. 1999); Roe v. Marcotte, 193 F.3d 72, 79 (2d Cir. 1999). [Headnote 8] Because we deem the reasoning in the balancing approach more persuasive, we hold that NRS 176.0913 does not violate the Fourth Amendment because the State's interest in solving crimes outweighs both the convict's diminished expectation of privacy and the minimally intrusive nature of the blood draw. [Headnote 9] With respect to the balancing approach, the first consideration to be balanced against the State's interest in the search and seizure DWLVVXHLVWKHLQGLYLGXDO VH[SHFWDWLRQRISULYDF\ __________ 3

The “special needs” exception to the Fourth Amendment warrant requirement mandates a showing that: (1) the search was reasonable; and (2) that a warrant would be impracticable and would frustrate the government's interest in a special need beyond normal law enforcement. See Olivas, 856 P.2d at 1084. With regard to prong one, courts have concluded that a blood draw was reasonable in certain contexts based on prior Supreme Court precedent discussing the minimal intrusiveness of the blood draw. See id. (citing Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 620-24 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-72 (1989)); cf. Roe, 193 F.3d at 76-77. With regard to prong two, these courts have concluded that genetic marker testing was a special need beyond law enforcement because the creation of a genetic marker data bank would provide a strong deterrent against recidivist acts, and therefore its purpose was not for “normal” law enforcement. See Olivas, 856 P.2d at 1085; Roe, 193 F.3d at 79.

Ð116 Nev. 359, 369 (2000) Gaines v. StateÐ Ð at issue is the individual's expectation of privacy. Many jurisdictions have recognized that a convicted person loses some rights to personal privacy that would otherwise be protected under the Fourth Amendment: Once a person is convicted of one of the felonies [enumerated in a genetic marker testing statute] his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from the blood sampling. Rise v. Oregon, 59 F.3d 1556, 1560 (9th Cir. 1995); see Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992). Finally, the Supreme Court of the United States has held that a convicted person has a diminished expectation of privacy in the penal context. For example, in Hudson v. Palmer, 486 U.S. 517, 530 (1984), the

Court held that persons lawfully convicted lose their right to privacy in routine searches of their jail cells. See Hudson, 468 U.S. at 530 (discussing convicted felons' diminished expectation of privacy). Further, the Supreme Court has held that even probationers lose their right to privacy in the search of their homes pursuant to an established law enforcement program. See Griffin v. Wisconsin, 483 U.S. 868, 880 (1987). Gaines argues, however, that limitations on convicted persons' privacy rights are only permissible when maintaining order and security in a penal institution, and such privacy rights may not be diminished for the purpose set forth in the genetic marker testing statute—assisting the State in solving future crimes. A similar argument was rejected by the Ninth Circuit in Rise, where the court held that even when there is no legitimate penal interest: [T]he State may interfere with an individual's Fourth Amendment interest with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. Rise, 59 F.3d at 1559 (citing Michigan State Police Dep't v. Sitz, 496 U.S. 444, 450 (1990)). In sum, the overwhelming weight of authority supports the position that a convict has a diminished expectation of privacy in his identity, despite the fact that the State's interest does not concern administration of penal or detention facilities. Another factor balanced against the government's interest is the intrusive nature of the search. Courts considering Fourth Amendment challenges have determined that blood draws from convicted persons to gather genetic information for identification involve only a minimal intrusion. See, e.g., Rise, 59 F.3d at 60; Jones, 962 F.2d at 307. Most of these courts have relied on 8QLWHG6WDWHV6XSUHPH&RXUWSUHFHGHQW

Ð116 Nev. 359, 370 (2000) Gaines v. StateÐ Ð United States Supreme Court precedent, repeatedly concluding that a blood draw is not an “unduly extensive imposition,” see Winston v. Lee, 470 U.S. 753, 762 (1985), and that it “would not be considered offensive by even the most delicate,” see Breithaupt v. Abram, 352 U.S. 432, 436 (1957). See also Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 625 (1989) (blood tests do not “infringe significant privacy interests”); Schmerber v. California, 384 U.S. 757, 771 (1966) (noting that drawing blood is “commonplace”). Gaines further argues that there are greater protected privacy interests in an individual's bodily fluids, and therefore a warrant and probable cause are always required before a blood draw absent exigent circumstances. Other courts have rejected similar arguments. In Rise, the court noted that the purpose of the warrant and probable cause requirement—to protect citizens from arbitrary acts of government by having a neutral magistrate evaluate whether the government's intrusion was warranted—was satisfied under Oregon's genetic marker statute because the statutory criteria were standardized, requiring conviction of a predicate offense before testing. Rise, 59 F.3d at 1561-62. Thus, there were “virtually no facts for a neutral magistrate to evaluate.” Id. Similarly, the Nevada statutory criteria are standardized; certainly the statute objectively enumerates certain felonies for which DNA testing is prescribed. Thus, there would be no criteria for a magistrate to evaluate. We concur with the overwhelming weight of authority that the blood draw is a minimally intrusive search for which probable cause and a warrant are not always necessary. Courts have uniformly held that the government interest outweighs a convict's diminished right for privacy in his genetic markers because such information provides law enforcement with a dramatic new tool that can be used to accurately identify a criminal suspect attempting to conceal his identity. See Jones v. Murray, 962 F.2d 302, 308 (4th Cir. 1992) (noting that a DNA test can exculpate an accused as much as it can implicate him); Landry v. Attorney General, 709 N.E.2d 1085, 1090 (Mass. 1999). Moreover, because of the high rate of recidivism among sexual and violent offenders, and because investigations of violent and sexual crimes are more likely to yield evidence from which DNA can be derived, compilation of DNA samples from violent and sexual offenders furthers the legislative purpose of solving future crimes. See Jones, 962 F.2d at 308; Cooper v. Gammon, 943 S.W.2d 699, 704 (Mo. Ct. App. 1997). Gaines, however, argues that the State's interest in testing his DNA is weak because he was not a violent felon. We conclude that this argument lacks merit. First, Gaines pleaded guilty to two counts of burglary, a

felony enumerated in the statute for which JHQHWLFPDUNHUWHVWLQJLVUHTXLUHG

Ð116 Nev. 359, 371 (2000) Gaines v. StateÐ Ð genetic marker testing is required. Second, we note that burglary has been an included offense in some states' genetic marker testing statutes because of its high recidivism rate. See Jones, 962 F.2d at 314. B. Equal protection [Headnotes 10-15] The Equal Protection Clause of the Fourteenth Amendment mandates that all persons similarly situated receive like treatment under the law. See Olivas, 856 P.2d at 1087. An equal protection analysis first requires that the appropriate standard of judicial scrutiny be identified, and then that the statutory classification be considered under that appropriate level of scrutiny. See id. Strict scrutiny is applied in cases involving fundamental rights, such as privacy, marriage, or cases involving a suspect class. See id. Under the strict scrutiny approach, legislation should be sustained only if it is narrowly tailored and necessary to advance a compelling state interest. See id. In contrast, a lesser standard for reviewing equal protection challenges applies where the classification does not affect fundamental liberties. Under this level of scrutiny, legislation at issue will be upheld provided the challenged classification is rationally related to a legitimate governmental interest. See Sereika v. State, 114 Nev. 142, 143-45, 955 P.2d 175, 179 (1998). [Headnote 16] Gaines contends that this court should apply strict scrutiny because the statute implicates Gaines' fundamental right to privacy. We disagree with this contention. 4 We hold that the “rational basis” level of scrutiny is applicable because a convicted person has no fundamental right to be free from DNA genetic marker testing. See Olivas, 856 P.2d at 1087 (citing Schmerber v. &DOLIRUQLD86  __________ 4

In so doing, we recognize that at least one court has applied strict scrutiny in evaluating a genetic marker testing statute under the Equal Protection Clause. See Vanderlinden v. Kansas, 874 F. Supp. 1210, 1217 (D. Kan. 1995) (holding that because privacy rights were implicated by genetic marker testing, the application of strict scrutiny was warranted). However, even in Vanderlinden, where the strict scrutiny standard was applied, the court concluded that the genetic marker testing statute did not violate the Equal Protection Clause because it advanced a compelling state interest: Rather than imposing an improper burden on a suspect class, the Kansas statute finds its focus on that group of felons who are most likely as repeat offenders to commit the type of crime in which DNA may be left. The state interest in advancing law enforcement is significant, and while the DNA databank surely will not positively identify the perpetrator of every crime, its value should not be dismissed lightly. The court finds the statute is narrowly drawn, advances a compelling state interest, and does not violate equal protection principles. Id.

Ð116 Nev. 359, 372 (2000) Gaines v. StateÐ Ð California, 384 U.S. 757 (1966), and Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989)); see also Roe v. Marcotte, 193 F.3d 72, 83 (2d Cir. 1999); Boling v. Romer, 101 F.3d 1336, 1341 (10th Cir. 1996).

[Headnote 17] In applying a rational basis standard, we conclude that NRS 176.0913 does not offend notions of equal protection because of the existence of a rational basis for requiring genetic marker testing, namely the apprehension of repeat and violent offenders. C. Due process [Headnote 18] Gaines also argues that the genetic marker statute violates substantive due process because the right to bodily privacy is a fundamental right and may be restricted only if the state is able to show both a compelling state interest and that the state has adopted the least restrictive means of effecting its purpose. We conclude that this contention lacks merit because, as stated previously, a defendant has no fundamental right to be free from a blood test and because there is a rational basis in support of NRS 176.0913. 5 See supra Section II(B). Quite notably, the few appellate courts that have considered whether genetic marker testing violates an offender's right to due process under the Fifth and Fourteenth Amendments have flatly rejected this argument. See Rise v. Oregon, 59 F.3d 1556, 1562-63 (9th Cir. 1995); Vanderlinden, 874 F. Supp. 1210, 1215-16 (D. Kan. 1995); Kruger v. Erickson, 875 F. Supp. 583, 587 (D. Minn. 1995); Cooper v. Gammon, 943 S.W.2d 699, 705-06 (Mo. Ct. App. 1997). In concluding that genetic marker testing does not offend due process, these courts have relied exclusively on the Supreme Court's holdings in Breithaupt v. Abram, 352 U.S. 432 (1957), and Schmerber v. California, 384 U.S. 757 (1966). See Kruger, 875 F. Supp. at 587 (citing Breithaupt, 352 U.S. at 433-37); Rise, 59 F.3d at 1562-63 (citing Breithaupt, 352 U.S. at 435, and Schmerber, 384 U.S. at 759-60); Cooper, 943 S.W.2d at 705-06 (citing Schmerber, 384 U.S. at 759-60, and Breithaupt, 352 U.S. at 435). In Schmerber and Breithaupt, the Supreme Court conFOXGHG WKDW WKH SURSHU WDNLQJ RI D EORRG VDPSOH IRU SXUSRVHV RI D

FULPLQDO LQYHVWLJDWLRQ GRHV QRW RIIHQG GXH SURFHVV EHFDXVH LW GLG QRW VKRFN WKH FRQVFLHQFHRURIIHQGRQH VVHQVHRIMXVWLFH __________ 5

We note that the Vanderlinden court concluded that genetic marker testing implicated a fundamental privacy right, and thus a statute authorizing such testing must be narrowly drawn and supported by a compelling state interest. See Vanderlinden, 874 F. Supp. at 1215-16. Despite the fact that the genetic marker testing statute was subject to this heightened standard of review, the Vanderlinden court concluded that it did not offend due process because it was narrowly drawn and because the State had a compelling law enforcement interest in solving crimes. Id. at 1215.

Ð116 Nev. 359, 373 (2000) Gaines v. StateÐ Ð cluded that the proper taking of a blood sample for purposes of a criminal investigation does not offend due process because it did not shock the conscience or offend one's sense of justice. See id. Accordingly, under this approach, the Due Process Clause is not implicated because the blood test is routine, and therefore does not concern a fundamental right. We concur with the Supreme Court's analysis. NRS 176.0913 does not offend due process. D. Eighth Amendment Gaines also argues that genetic marker testing violates the Eighth Amendment, which prohibits cruel and unusual punishment, because it essentially constitutes scientific experimentation and may result in the use of excessive force. We conclude that this argument lacks merit. [Headnotes 19, 20]

The Eighth Amendment prohibits barbarous physical punishment and the “unnecessary and wanton infliction of pain” without justification. See Whitley v. Albers, 475 U.S. 312, 319 (1986). As previously discussed, the Supreme Court has determined that blood tests are not an “unduly extensive imposition” and “would not be considered offensive by even the most delicate.” Winston v. Lee, 470 U.S. 753, 762 (1985); see also Breithaupt, 352 U.S. at 436. In light of the holdings in Winston and Breithaupt, we cannot conclude that a blood test properly performed by a medical provider is barbarous or involves wanton physical punishment. Other courts that have considered whether genetic marker testing violated the Eighth Amendment have concluded likewise. See Kruger v. Erickson, 875 F. Supp. 583, 587 (D. Minn. 1995); Ryncarz v. Elkenberry, 824 F. Supp. 1493, 1500-01 (E.D. Wash. 1993). Accordingly, we conclude that the blood draw authorized by NRS 176.0913 does not violate the Eighth Amendment. E. Overbreadth [Headnote 21] Gaines argues that NRS 176.0913 is overbroad because there are no restrictions on the amount of blood drawn, the testing of the blood, the time period for keeping the test results, and no requirement that the State dispose of the remaining portions of blood not used in the DNA testing. Essentially, Gaines is concerned that the State will use the DNA test results for a discriminatory or invasive purpose, such as determining a convict's predisposition to physical or mental disease. The plain language of NRS 176.0913 limits the purpose of testing to identification. See subsection 1(b) (mandating that the samSOHVEHXVHGIRU³GHWHUPLQ>LQJ@WKHJHQHWLFPDUNHUVRIWKHEORRG´ 

Ð116 Nev. 359, 374 (2000) Gaines v. StateÐ Ð ples be used for “determin[ing] the genetic markers of the blood”). Further, Gaines' contentions concerning abuse of the genetic marker data are merely speculation and conjecture, as he has provided this court with no evidence regarding such abuse. Finally, we note that the Supreme Court of the United States has rejected an analogous argument: While this procedure [collection of blood and urine for mandatory drug testing] permits the Government to learn certain private medical facts that an employee might prefer not to disclose, there is no indication that the Government does not treat this information as confidential, or that it uses the information for any other purpose. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 626 n.6 (1989). Accordingly, we conclude that NRS 176.0913 is not overbroad. CONCLUSION We conclude that the district court did not err in refusing to credit Gaines for time served in his three separate cases. We further conclude that NRS 176.0913 is constitutional. ____________

Ð116 Nev. 374, 374 (2000) State v. Dist. Ct.Ð Ð Ð THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE JOSEPH S. PAVLIKOWSKI, District Judge, Respondents, and DARRIS TREMEL TAYLOR, Real Party in

Interest. No. 34349 March 13, 2000

997 P.2d 126

This original petition for a writ of mandamus challenges an order of the district court granting a motion to strike a second amended information. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge. State filed petition for writ of mandamus challenging order of the district court, which granted murder defendant's motion to strike second amended information, which was filed on morning of trial and alleged two additional theories of murder. The supreme court, Shearing, J., held that: (1) defendant's substantial rights were prejudiced by the addition of aiding and abetting theory, but (2) defendant's substantial rights were not prejudiced by the addition of felony murder theory. Petition granted in part.

Ð116 Nev. 374, 375 (2000) State v. Dist. Ct.Ð Ð Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Petitioner. Philip J. Kohn, Special Public Defender, and Dayvid J. Figler, Deputy Special Public Defender, Clark County, for Real Party in Interest. 1. Indictment and Information. The State is required to give adequate notice to the accused of the various theories of prosecution. 2. Indictment and Information. Amendment of the information prior to trial is an appropriate method for giving the accused the notice to which he or she is entitled. NRS 173.095(1). 3. Criminal Law. Murder defendant's substantial rights were prejudiced when, on morning of trial, State filed second amended information which added theory of aiding and abetting murder, and thus trial court properly granted defendant's motion to strike this theory, where there was no indication in court documents that defendant received adequate notice of aiding and abetting theory prior to morning of trial, and second amended information set forth no additional information as to specific acts constituting the means of aiding and abetting. NRS 173.095(1). 4. Criminal Law. Murder defendant's substantial rights were not prejudiced when, on morning of trial, State filed second amended information which added theory of felony murder, and thus trial court abused its discretion in striking this theory, where criminal complaint had placed defendant on notice that State was seeking to prosecute him for both murder with use of deadly weapon and robbery with use of deadly weapon, and complaint, information and amended information alleged that defendant committed murder and robbery of victim. NRS 173.095(1). 5. Mandamus. Writ of mandamus was available to State with respect to trial court's abuse of discretion in striking theory of felony murder from second amended information, as State had no plain, speedy and adequate remedy in ordinary course of law. Order granting motion to strike amended information was not among the determinations that were appealable by State. NRS 34.170, 173.095(1), 177.015. 6. 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, or to control an arbitrary or capricious exercise of discretion. NRS 34.160. 7. Mandamus. A writ of mandamus will not issue if petitioner has a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170. 8. Mandamus. Mandamus is an extraordinary remedy, and it is within the discretion of the supreme court to determine if a petition will be considered.

Before Maupin, Shearing and Becker, JJ.

Ð116 Nev. 374, 376 (2000) State v. Dist. Ct.Ð Ð OPINION By the Court, Shearing, J.: This petition seeks a writ of mandamus directing the district court to vacate its order granting Darris Tremel Taylor's motion to strike a second amended information. Taylor was originally charged by a criminal information with willful, deliberate and premeditated murder with the use of a deadly weapon. The State filed a second amended information on the morning trial was to begin which alleged two additional theories of murder: (1) aided and abetted murder, and (2) felony murder. For the reasons discussed below, we conclude that the district court did not abuse its discretion in striking the theory of aided and abetted murder. However, we further conclude that the district court manifestly abused its discretion in striking the theory of felony murder because Taylor had notice of this theory. FACTS On March 2, 1996, the body of Melvin Charles Rayford was found in Room 35 at the City Center Motel in Las Vegas; the victim had died as a result of three gunshot wounds to the head. A criminal complaint was subsequently filed in the justice court charging Taylor with robbery with the use of a deadly weapon, murder with the use of a deadly weapon, and possession of a firearm by an ex-felon. COUNT II, murder with the use of a deadly weapon, stated the defendant “did then and there, without authority of law, and with premeditation and deliberation, and with malice aforethought, wilfully and feloniously kill MELVIN CHARLES RAYFORD, a human being, by shooting at and into the body of the said MELVIN CHARLES RAYFORD, with a deadly weapon, to-wit: a firearm.” A preliminary hearing was conducted on December 5, 1996. At the conclusion of the preliminary hearing, the justice court determined that there was probable cause to believe Taylor had committed the crimes in question and bound Taylor over for trial in the district court. On December 6, 1996, a criminal information was filed in the district court. The murder count contained in the information was identical to that contained in the criminal complaint. On December 29, 1997, the State filed an amended information, which severed the ex-felon in possession of a firearm count and added one additional witness. On March 22, 1999, the morning the trial was to begin, the State filed a second amended information in the district court. The murder count was amended to add alternative theories of liability:

Ð116 Nev. 374, 377 (2000) State v. Dist. Ct.Ð Ð Defendant being liable under one or more of the following theories, to-wit: 1. by directly committing said act with premeditation, deliberation, and with malice aforethought; and/or 2. Defendant aiding and/or abetting another unknown individual during the commission of this murder; and/or 3. by Defendant committing this murder during the commission of a felony, to-wit: robbery. Taylor objected to the filing of the second amended information, and filed a motion to dismiss, or in the alternative, motion to strike the second amended information. Taylor argued: (1) the second amended information should be dismissed because the State failed to set forth a clear, definite and concise statement of the offense as required by NRS 173.075(1), 1 (2) the case should be dismissed because of prosecutorial misconduct, preaccusatorial delay and denial of speedy trial rights, and/or (3) the second amended information should be stricken because different offenses were charged, the substantial rights of the defendant were prejudiced, and portions of the second amended information were inconsistent with one another. The State

opposed the motion, and Taylor filed a reply. On May 27, 1999, the district court orally denied the motion to dismiss but granted the motion to strike. The State then filed a motion to clarify the order granting Taylor's motion to strike, seeking clarification as to whether the entire second amended information was stricken or whether only that portion alleging aiding and abetting was stricken. On June 10, 1999, the district court conducted a hearing regarding the previous order and ultimately entered a written order striking both theories, aiding and abetting and felony murder, from the second amended information. The State has filed this original petition for writ of mandamus challenging the district court's order granting the motion to strike. This court ordered Taylor to file an answer against issuance of the requested writ and granted the State's motion for a stay of the proceedings below. DISCUSSION [Headnotes 1, 2] The State is required to give adequate notice to the accused of the various theories of prosecution. See Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995); Koza v. State, 104 Nev. 262, 756 P.2d 1184 (1988); Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983). __________ 1

NRS 173.075(1) provides, “[t]he indictment or the information must be a plain, concise and definite written statement of the essential facts constituting the offense charged.”

Ð116 Nev. 374, 378 (2000) State v. Dist. Ct.Ð Ð NRS 173.095(1) provides, “[t]he court may permit an indictment or information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” Amendment of the information prior to trial is an appropriate method for giving the accused the notice to which he or she is entitled. The State contends that the district court's granting of Taylor's motion to strike the second amended information was an arbitrary and capricious exercise of discretion. The State argues that it had an absolute right to amend the information pursuant to NRS 173.095(1) to provide notice of alternative theories of murder because the amendments did not contain any additional charges and did not prejudice the substantial rights of Taylor. First, we agree with the State's argument that the amendment of the information to set forth theories of aiding and abetting murder and felony murder merely added alternative theories of the mental state required for first degree murder and did not amount to the charging of additional or different offenses. See Holmes v. State, 114 Nev. 1357, 1364, 972 P.2d 337, 342 (1998); see generally Evans v. State, 113 Nev. 885, 893-96, 944 P.2d 253, 258-60 (1997). [Headnote 3] We further conclude, however, that the district court did not abuse its discretion in determining that Taylor's substantial rights were prejudiced by the amendment alleging aiding and abetting. Taylor's substantial rights were effectively prejudiced by the State's delay in amending the information to include this theory. Unlike the felony murder theory discussed below, there is no indication from the documents before this court that prior to the morning of trial Taylor received adequate actual notice of the State's theory that he aided and abetted the murder of Rayford. 2 Moreover, in Barren, this court held: [W]here the prosecution seeks to establish a defendant's guilt on a theory of aiding and abetting, the indictment should specifically allege the defendant aided and abetted, and VKRXOG SURYLGH

DGGLWLRQDO LQIRUPDWLRQ DV WR WKH VSHFLILF DFWV FRQVWLWXWLQJ WKH PHDQV RI WKH DLGLQJ DQGDEHWWLQJVRDVWRDIIRUGWKHGHIHQGDQWDGHTXDWHQRWLFHWRSUHSDUHKLVGHIHQVH __________ 2

It appears that the State may have conceded below that the aiding and abetting theory was properly stricken. Specifically, at the hearing on the State's motion to clarify, the State argued: What we want to make sure of here today is that in fact the State is being allowed to proceed on at least the felony murder. You will note in their response basically it did address the aiding and abetting, and the State will concede that actual theory but we are asking to make sure that it is clarified that we were actually allowed to proceed on the felony murder theory of the murder with the use. (Emphasis added.)

Ð116 Nev. 374, 379 (2000) State v. Dist. Ct.Ð Ð should provide additional information as to the specific acts constituting the means of the aiding and abetting so as to afford the defendant adequate notice to prepare his defense. 99 Nev. at 668, 669 P.2d at 729. The second amended information set forth no additional information as to the specific acts constituting the means of aiding and abetting. Therefore, our intervention with respect to this portion of the district court's order is not warranted. [Headnote 4] The district court did manifestly abuse its discretion, however, in determining that Taylor's substantial rights would be violated if the State amended the information to include a theory of felony murder. See Koza, 104 Nev. at 264, 756 P.2d at 1185-86. Taylor had notice of this theory in the criminal complaint filed in 1996. The complaint placed Taylor on notice that the State was seeking to prosecute him for both murder with the use of a deadly weapon and robbery with the use of a deadly weapon. The criminal complaint, the information, and the amended information alleged that Taylor committed the murder and robbery of the victim, Rayford, on or between March 1, 1996, and March 2, 1996. Thus, Taylor's substantial rights were not prejudiced when the State amended the information to include a theory of felony murder, and we conclude that the district court sufficiently abused its discretion in striking this theory so as to warrant our intervention by extraordinary writ. 3 CONCLUSION [Headnotes 5-8] 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, 637 P.2d 534 (1981). A writ of mandamus will not issue, however, if petitioner has a plain, speedy and adequate remedy in the ordinary course of law. See NRS 34.170. Further, mandamus is an extraordinary remedy, and it is within the discretion of this court to determine if a petition will be considered. See Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). A district court order granting a motion to strike an amended information is not among the determinations that are appealable by the 6WDWH __________ 3

In his answer, Taylor argues that the second amended information did not contain a sufficiently definite and

concise statement of the felony murder theory. We reject this contention.

Ð116 Nev. 374, 380 (2000) State v. Dist. Ct.Ð Ð State. See NRS 177.015. Thus, the State has no plain, speedy, and adequate remedy in the ordinary course of law. Accordingly, we grant, in part, the State's petition for a writ of mandamus. The clerk of this court shall issue a writ of mandamus directing the district court to vacate its order granting Taylor's motion to strike the second amended information as it pertained to the theory of felony murder and permit the State to amend the information to include a theory of felony murder. Further, we vacate the stay previously imposed by our order of June 23, 1999. Maupin and Becker, JJ., concur. ____________

Ð116 Nev. 380, 380 (2000) Campbell v. MaestroÐ Ð Ð ROBERT CAMPBELL, Appellant, v. JOANNA MAESTRO and LINDA COSTANTINO, Respondents. No. 31051 March 24, 2000

996 P.2d 412

Appeal from an order of the district court striking a request for trial de novo in a civil action following proceedings conducted pursuant to the Nevada Arbitration Rules. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge. Motorist who was sued for negligence in connection with collision requested trial de novo following arbitration proceedings. The district court denied request, and motorist appealed. The supreme court, Maupin, J., held that: (1) litigation activities of insurer could be considered by district court in determining whether insured had participated in good faith in arbitration process; (2) trial court could properly consider insured's request for trial de novo on all issues including liability, after liability had previously been conceded, as evidence of bad faith; (3) striking of request for trial de novo was too severe a sanction; and (4) insurer's failure to settle or to pay certain claims during arbitration was not pertinent to question of good faith participation. Reversed and remanded. John V. Riggs, Las Vegas, for Appellant. Mainor & Harris and Clark Seegmiller, Las Vegas, for Respondents. 1. Arbitration. Litigation activities by automobile insurer, which pursuant to terms of policy controlled the defense of personal injury action against insured, could be considered by district court, when ruling on insured's request for a trial de novo, in determining whether insured had participated in good faith in arbitration process. NAR 22.

Ð116 Nev. 380, 381 (2000) Campbell v. MaestroÐ Ð 2. Arbitration. Trial court could find that defendant motorist's request for trial de novo on all issues, including liability, following arbitration

3.

4.

5.

6.

proceedings in negligence action was evidence of bad faith, where at the time of filing request, defendant motorist had conceded liability and paid plaintiff motorist's property damage requests. NAR 22. Arbitration. Bad faith of defendant motorist in automobile negligence action that was initially submitted to arbitration, in seeking trial de novo on all issues including liability after motorist had previously conceded liability, did not warrant severe sanction of striking request. Bad faith on liability issue did not necessarily mean that defendant's position regarding value of injuries claimed by plaintiffs was also unfounded. NAR 22. Arbitration. Refusals by automobile insurer, which assumed defense of personal injury action, to honor certain claims or to enter into meaningful settlement negotiations during arbitration proceedings were not pertinent to question of whether insured, who subsequently sought trial de novo, had participated in good faith in arbitration. NAR 22. Arbitration. Failure by any party to settle during arbitration proceedings is not relevant to good faith participation, for purposes of determining that party's entitlement to a trial de novo. NAR 22. Arbitration. Improper imposition of defenses to liability and/or damages, or use of the arbitration process as a device to obstruct and delay payment, are relevant to whether a party has failed to participate in good faith in arbitration proceedings and thus waived right to a trial de novo. NAR 22.

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Maupin, J.: This case arises from an October 23, 1995, automobile accident in a Las Vegas shopping center parking lot. Appellant Robert Campbell claims that his automobile engine stalled while pulling out of the lot onto a public thoroughfare. After restarting the car, he proceeded in reverse back into the lot to avoid oncoming traffic. In the process of completing this maneuver, Campbell's vehicle struck another automobile occupied by respondents Joanna Maestro and Linda Costantino. It was ultimately determined that Maestro and Costantino were injured in the accident. Consequently, on June 17, 1996, they both commenced the action below against Campbell for their personal injuries. Pursuant to an automobile liability policy issued to Campbell, Nevada General Insurance (“NGI”) retained counsel to represent him in the litigation. It is undisputed that NGI controlled the defense from that point forward as was its right under WKHSROLF\ Ð116 Nev. 380, 382 (2000) Campbell v. MaestroÐ Ð the policy. The answer to the complaint denied liability and alleged contributory negligence on Maestro's part. This was done, according to the record, without consulting Campbell. The case was assigned to the Nevada Court Annexed Arbitration Program under Nevada Arbitration Rule (NAR) 3. Although the liability of Campbell seemed quite clear, that issue remained contested until shortly before the arbitration hearing held on May 9, 1997, after the depositions of all parties were concluded. 1 NGI did not settle Maestro's $2,041.69 property damage claims until immediately prior to the arbitration hearing. According to the record, contacts for purposes of settlement prior to the hearing, initiated by plaintiffs' counsel with NGI counsel, were either rebuffed or failed to elicit a response. 2 The arbitrator's May 13, 1997, decision recites his concern that Campbell's defense attorney was not representing Campbell, but rather NGI, Campbell's insurer. 3 The arbitrator awarded medical expenses and other damages to both Maestro and Costantino. Further, the arbitrator found that “Nevada General Insurance failed to arbitrate this matter in good faith” and, as a result, awarded attorney's fees to Maestro and Costantino. Campbell filed a request for trial de novo and a demand for jury trial. See NAR 18 and 20. Maestro and Costantino moved to strike the request. The district court determined that Campbell, through his insurer, failed to arbitrate in good faith and granted the motion to strike. See NAR 22. In support of this ruling, the district court made the following findings: Defendant failed to participate in good faith in the Arbitration proceeding. Specifically,

1. Defendant Robert Campbell admitted in his deposition that the accident was his fault. 2. Defendant's insurance company denied liability for a year and a half after the accident. 3. Defendant's insurance company did not pay for Plaintiff's property damage until a year and a half after WKHDFFLGHQWDOOHJHGO\EHFDXVHWKHUHZDVDGLVSXWHDERXWOLDELOLW\ __________ 1

Campbell ultimately admitted liability at his April 1, 1997, deposition.

2

Notwithstanding the concession of liability, Campbell's counsel continued to maintain during oral argument on this appeal that an “emergency” defense could have been successfully lodged, and that an issue of fact remained on the question of whether Maestro was guilty of contributory/comparative negligence. 3

Such a concern, though understandable, fails to account for the fact that NGI had the right to control the defense and had no direct duties to these plaintiffs under Nevada law, other than those incident to its participation in the litigation. See Gunny v. Allstate Ins. Co., 108 Nev. 344, 830 P.2d 1335 (1992); Crystal Bay General Imp. Dist. v. Aetna Cas. & Sur., 713 F. Supp. 1371, 1377 (D. Nev. 1989); Tweet v. Webster, 610 F. Supp. 104 (D. Nev. 1985).

Ð116 Nev. 380, 383 (2000) Campbell v. MaestroÐ Ð the accident, allegedly because there was a dispute about liability. 4. Defendant's attorney filed an Answer denying that the Defendant was negligent, and asserting as an affirmative defense an allegation that the accident was caused by negligence by the Plaintiff. 5. The Arbitrator specifically found that the Defendant's insurance company failed to Arbitrate this case in good faith. 6. The Defendant's insurance company did not make any settlement offer for Plaintiff Maestro's personal injury claims until approximately a year and a half after the accident. Campbell timely appealed. Campbell contends the district court abused its discretion in finding that Campbell and NGI did not participate in “good faith” during the arbitration proceedings. Specifically, Campbell argues that (1) an arguably viable defense was litigated until abandoned in good faith and (2) the findings of fact are insufficient to justify the drastic remedy imposed by the district court. “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); see also NRCP 52(a). We conclude the above findings of fact, although substantially supported by the record, do not, as a matter of law, support the sanction imposed. See Nevada Ins. Guaranty v. Sierra Auto Ctr., 108 Nev. 1123, 1126, 844 P.2d 126, 128 (1992). Thus, we conclude that the matter should be remanded to the district court for further proceedings. Findings related to the participation of NGI in the lawsuit [Headnote 1] NGI first contends that its litigation activities on behalf of Campbell were irrelevant to any findings regarding whether a party to the arbitration proceedings, Campbell, acted in bad faith. In this, NGI clearly misperceives its role and legal relationship to these types of matters. NGI had the right and obligation to defend Campbell under its automobile liability policy. This right and obligation gave NGI the right to control the litigation, subject to the implied covenant of good faith and fair dealing owed to its insured, including the right to choose counsel to represent Campbell. Further, NGI counsel owed an ethical obligation under rules of professional responsibility to disclose information to both NGI and Campbell. This “dual agency” relationship was created by consent through the contract of liability insurance. See John Alan Appleman, Insurance Law

and Practice 7c, at 4681 (1979) (discussing the interrelationships created by the retention of GHIHQVH

FRXQVHOE\OLDELOLW\LQVXUHUV 

Ð116 Nev. 380, 384 (2000) Campbell v. MaestroÐ Ð defense counsel by liability insurers). It is incongruous for NGI to deny this relationship and to assert that the district court cannot take its litigation activities into account in resolving questions of good faith participation in the arbitration proceedings. Thus, the district court appropriately considered NGI's litigation conduct for purposes of determining good faith participation in the arbitration process. Improper assertion of defenses [Headnote 2] Under the facts of this case, the district court did not abuse its discretion in finding, as a factual matter, that Campbell's request for a trial de novo on all issues, including liability, was evidence of bad faith. At the time of the filing of the request, Campbell had conceded liability and paid Maestro's property damage claims. Yet in pleadings and argument on the motion to strike, Campbell asserted he had a right to trial on the issue of liability, claiming there was a valid issue on the defense of necessity. The assertion of a marginal defense after abandoning that defense in the arbitration proceeding is certainly a factor the district court could consider in determining bad faith. [Headnote 3] However, a conclusion that Campbell was contesting liability in bad faith does not necessarily support a finding that Campbell's position regarding the value of any injuries suffered by Maestro and Costantino is also invalid. The record before the district court contains little or no factual allegations that would support a conclusion that Campbell's position regarding a trial on damages was unfounded and made for the purposes of delay or harassment. For this reason, we conclude that the severe sanction of striking a request for a trial de novo was not warranted in this case. See Young v. Johnny Ribeiro Bldg., Inc., 106 Nev. 88, 92-93, 787 P.2d 777, 780 (1990) (where dismissal with prejudice was granted for discovery abuse this court noted that such a severe sanction should be imposed only after a consideration of all the factors involved). The extent to which a less severe course of action is warranted must be left to the district court on remand. Failures to pay property damages and to make settlement offers [Headnote 4] The district court correctly noted the apparent intransigence of NGI and its counsel with regard to the prosecution of Campbell's defense. However, there is no duty under the arbitration rules governing good or bad faith participation in arbitration proceedings to enter into settlement negotiations or to agree to make payment

RIDQ\FODLPDWDQ\WLPHUHJDUGOHVVRIWKHPHULWVWKHUHRI Ð116 Nev. 380, 385 (2000) Campbell v. MaestroÐ Ð of any claim at any time regardless of the merits thereof. Refusals regarding settlement or payment, whether ill-advised or not, must be resolved under NRCP 68, NRS 17.115, NRS 18.010, NRCP 11, NAR 22(B) and the various rules regarding the payment of interest on judgments. Thus, refusals by NGI to honor certain claims or to enter into meaningful settlement negotiations, although possibly implicating its obligations to Campbell to act in good faith to avoid a judgment in excess of his policy limits, were not pertinent to the question of good faith participation in the arbitration program.

Other issues raised by the conduct of NGI NGI concedes that its trial preparation with regard to the liability and damage issues was not particularly extensive. However, NGI's conduct bears little distinction from that noted in Chamberland v. Labarbera, 110 Nev. 701, 877 P.2d 523 (1994). In Chamberland, this court held that the refusal to grant a trial de novo was too severe a sanction despite the fact that appellant failed to conduct any discovery for the arbitration hearing and, additionally, failed to personally attend the arbitration hearing. Id. at 705, 877 P.2d at 525. CONCLUSION The district court made particularized findings per Chamberland that NGI failed to arbitrate in good faith per NAR 22(A). It found that NGI improperly denied liability for a year and one-half after the accident, that a clearly valid claim for property loss went unpaid until the day of the arbitration hearing, that NGI failed to make settlement overtures, and that it improperly interposed an affirmative defense to liability. However, aside from the issues we have determined may not be considered in striking a request for trial de novo, and aside from the factors we have deemed insufficient to justify the order, the findings do not support the sanction ultimately imposed. [Headnotes 5, 6] Failure to settle by any party is not relevant to good faith participation. Improper imposition of defenses to liability and/or damages, or use of the arbitration process as a device to obstruct and delay payment, are relevant. 4

See NAR 22(B). Failure to meaningfully participate in the arbitration process on significant contested issues, dilatory tactics, changes in litigation tactics or strategy after seeking trial de novo in district court are also releYDQW __________ 4

As noted, the intransigence of the defense on the issue of liability, while relevant, does not merit the full sanction imposed. Again, other sanctions may be appropriate on remand.

Ð116 Nev. 380, 386 (2000) Campbell v. MaestroÐ Ð vant. For example, failure to depose, interview or investigate witnesses or to develop other evidence during arbitration proceedings may be relevant where no restrictions on such preparation have been imposed by the arbitrator. A complete change of approach in subsequent district court proceedings under such circumstances could be evidence of abuse of the arbitration process. Had findings along these lines been offered for review, we would not have hesitated to affirm the order striking the request for trial de novo. While we question the wisdom of the handling of the matter by NGI, and while some of the tactics it used are evidence of bad faith, the record below does not justify the complete elimination of the right to proceed to trial. 5 Accordingly, we hereby reverse the district court's order striking the request for trial de novo and remand this matter to the district court for further proceedings consistent with this opinion. Shearing and Becker, JJ., concur.

____________

Ð116 Nev. 386, 386 (2000) Gittings v. HartzÐ Ð Ð ANGELA GITTINGS, Appellant, v. AMY LEIGH HARTZ, Respondent.

No. 31010 March 24, 2000

996 P.2d 898

Appeal from an order of the district court striking a request for trial de novo following proceedings conducted pursuant to the Nevada Arbitration Rules. Eighth Judicial District Court, Clark County; Mark W. Gibbons, Judge. Automobile accident victim filed a complaint for personal injuries against the driver of the second vehicle involved in the accident. Following an arbitrator's award in favor of the victim, the driver filed a request for a trial de novo. The district court granted the victim's motion to strike the request, and the driver appealed. The supreme court, Becker, J., held that evidence did not prove driver's bad faith in arbitration, so as to waive right to trial de novo. Reversed and remanded. __________ 5

Our ruling today is in large part a recognition of the importance we attach to the right to a trial by jury in all civil matters. See Chamberland, 110 Nev. at 704, 877 P.2d at 524. Campbell also raises various constitutional issues, which, in light of our disposition, are moot. See Director, Dep't Prisons v. Arndt, 98 Nev. 84, 86, 640 P.2d 1318, 1320 (1982).

Ð116 Nev. 386, 387 (2000) Gittings v. HartzÐ Ð Rawlings, Olson, Cannon, Gormley & Desruisseaux and Bryan W. Lewis and Michael A. Federico, Las Vegas, for Appellant. Kelly & Sullivan, Ltd., and Gloria M. Navarro, Las Vegas, for Respondent. 1. Arbitration. Bare assertions, such as a claim that an arbitration award was clearly reasonable and that therefore a defendant driver's decision to contest it had to be based on a desire to harass automobile accident victim or delay payment of a valid claim, are not an appropriate foundation for a motion to strike a trial de novo, though, if properly documented, the nature of an arbitration award could be relevant to inquiries under the Nevada Arbitration Rule providing for waiver of right to trial de novo. NAR 22(A), (B). 2. Jury. Constitutional right to a jury trial in civil proceedings can be waived by various means prescribed by law. Const. art. 1, § 3. 3. Jury. Constitutional right to a jury trial is not waived on ground of bad faith during arbitration proceedings simply because individuals can disagree over the most effective way to represent a client at an arbitration proceeding. Const. art. 1, § 3; NAR 22(A). 4. Arbitration. When a district court strikes a request for a trial de novo following an arbitration award, the decision is treated for purposes of jurisdiction as a final order, subject to appellate review, and the standard of review on appeal is abuse of discretion. 5. Arbitration. Mere failure of a party to attend or call witnesses in an arbitration hearing does not amount to bad faith or a lack of meaningful participation waiving right to trial de novo. Const. art. 1, § 3; NAR 22(A). 6. Arbitration. Driver's decision not to seriously contest liability at an arbitration hearing or seek an independent medical examination of automobile accident victim provided insufficient grounds for completely striking a demand for a trial de novo. Const. art. 1, § 3; NAR 22(A). 7. Arbitration. It is the substance of an arbitration hearing, not its length, that is important in determining the good faith of the participants, for purposes of determining whether right to trial de novo has been waived. Const. art. 1, § 3; NAR 22(A). 8. Arbitration. District court had no factual record to support a conclusion that defendant driver took a lackadaisical approach to the arbitration process in proceeding arising from automobile accident, so as to waive right to trial de novo. Court determined that the hearing was conducted in bad faith solely on the basis of statements contained in the pleadings of the parties. Const. art. 1, § 3; NAR 22(A).

9. Arbitration. Statistics indicating that a comparatively high percentage of trial de novo requests were filed by defendant driver's insurer following arbitraWLRQ SURFHHGLQJV ZHUH QRW VXIILFLHQW WR HVWDEOLVK GULYHU V ZDLYHU RI ULJKW WR WULDO GH QRYR

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Ð116 Nev. 386, 388 (2000) Gittings v. HartzÐ Ð tion proceedings were not sufficient to establish driver's waiver of right to trial de novo following arbitration award in favor of automobile accident victim, absent an evidentiary hearing or a more comprehensive qualitative and quantitative statistical analysis. No correlation was shown between requests for trial de novo and verdicts for or against the party who filed the request. Const. art. 1, § 3; NAR 22(A). 10. Arbitration. Competent statistical information demonstrating that an insurance company has routinely filed trial de novo requests following arbitrations without regard to the facts and circumstances of each individual case may be used to support a claim of bad faith waiving right to trial de novo. Const. art. 1, § 3; NAR 22(A).

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Becker, J.: Respondent Amy Leigh Hartz (“Hartz”) filed a complaint for personal injuries arising from an automobile accident against appellant Angela Gittings (“Gittings”). The matter was referred for mandatory court-annexed arbitration pursuant to the Nevada Arbitration Rules. After the arbitrator entered an award in favor of Hartz, Gittings filed a request for a trial de novo. Hartz moved to strike the request, alleging that Gittings failed to arbitrate in good faith. See NAR 22(A). The district court granted the motion, citing several reasons in support of the finding that Gittings' conduct in the arbitration process amounted to bad faith. The district court's decision in deciding to strike Gittings' request for trial de novo was based in significant part on statistics kept by the district court arbitration commissioner. Gittings contends that such statistics cannot be the basis of striking a request for trial de novo. While we conclude that such statistics may be used in determining whether or not a party meaningfully participated in the arbitration process, the district court may not rely upon such statistics without first conducting an evidentiary hearing on the meaning, relevancy and validity of the statistics. We therefore reverse the order of the district court and remand for further proceedings. FACTS Gittings allegedly ran a red light and struck the passenger side of Hartz' vehicle. The impact was significant enough to shatter windows and bend the frame of the Hartz vehicle. Both vehicles were deemed total losses. Following the accident, Hartz underwent chiropractic treatment and therapy for approximately four months, incurring $2,414.47 LQPHGLFDOH[SHQVHV

Ð116 Nev. 386, 389 (2000) Gittings v. HartzÐ Ð in medical expenses. Hartz also missed three weeks of work at $6.50 per hour. Approximately one month after the accident, Hartz filed a complaint for damages, alleging negligence and negligence per se. Gittings, through counsel provided by her insurer, Allstate Insurance Company (“Allstate”), filed an answer and, pursuant to the Nevada Arbitration Rules, the case was referred to the mandatory court-annexed arbitration program. See NAR 1-24. Following the early arbitration conference where the parties discussed proposed discovery and exchanged documents, including witness lists, the arbitrator issued a limited discovery order. The order allowed the parties to serve interrogatories and requests for production of documents and/or admissions. The order also permitted each side to depose the opposing party. In addition, Hartz was ordered to sign medical and employment release authorizations for use by Gittings in obtaining records. Gittings

served interrogatories and a request for production of documents on Hartz. Gittings also deposed Hartz. Hartz conducted no discovery. [Headnote 1] The arbitration hearing was held on March 18, 1997. Following the hearing, the arbitrator issued a written award in favor of Hartz. The arbitrator awarded Hartz $9,000.00 plus pre-judgment interest and taxable costs. Thereafter, the arbitrator granted Hartz' motion for attorney's fees, costs and pre-judgment interest. 1 Gittings filed a timely request for a trial de novo. Hartz then moved to strike the request for a trial de novo, asserting that Gittings had “failed to arbitrate in good faith” and that her insurer, Allstate, was using the arbitration process to delay payment of damages. In support of the motion to strike, Hartz asserted that Gittings did not attend the arbitration hearing and that her counsel called no witnesses and produced no medical evidence in opposition to the testimony presented by Hartz to substantiate her claim. In addition, Hartz argued that Gittings conducted only cursory cross-examination and argument during the arbitration hearing. Gittings opposed the motion, arguing that her conduct during the arbitration process did not amount to bad faith. Specifically *LWWLQJVQRWHGWKDWVKHFRQGXFWHGGHSRVLWLRQVDQGGLVFRYHU\DVDXWKRUL]HG

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The general information regarding the facts of the accident and the amount of the award are only relevant because Hartz implies that the award was clearly reasonable and therefore Gittings' decision to contest it must be based on a desire to harass Hartz or delay payment of a valid claim. The district court did not make such a finding. We take this opportunity to note that bare assertions of this nature are not appropriate foundations for a motion to strike a trial de novo. However, if properly documented, the nature of an arbitration award may be relevant to inquiries under NAR 22(A) or (B).

Ð116 Nev. 386, 390 (2000) Gittings v. HartzÐ Ð Gittings noted that she conducted depositions and discovery as authorized by the arbitrator and prepared an arbitration brief. 2 During oral argument on the motion, Hartz stressed two additional grounds for striking Gittings' request for a trial de novo: (1) the statistics compiled by the office of the district court discovery commissioner outlining the percentage of cases in which Allstate had requested a trial de novo, and (2) the fact that Allstate, not Gittings, made the determination to request a trial rather than pay the arbitration award. The district court granted Hartz' motion and entered an order striking the request for a trial de novo. Gittings filed a motion for reconsideration. Attached to the motion for reconsideration was an affidavit signed by Gittings indicating she had personally requested a trial de novo. Thereafter, the parties stipulated to set aside the initial order striking Gittings' request for a trial de novo and agreed that the district court would enter a written decision and order on both the motion to strike and the motion for reconsideration. 3 The district court granted the motion to strike and denied the motion for reconsideration. This appeal followed. DISCUSSION [Headnote 2] The Nevada Constitution provides a litigant with the right to a jury trial in civil proceedings. Nev. Const. art. 1, § 3. However, this right can be waived by various means prescribed by law. One of those means is Nevada Arbitration Rule 22 (NAR 22). NAR 22 states that the district court may sanction an arbitration participant by striking a request for a trial de novo if the participant has not acted in good faith. Specifically, “the failure of a party or an attorney to either prosecute or defend a case in good faith during the arbitration

proceedings shall constitute a waiver of the right to a trial de novo.” NAR 22(A); see also Chamberland, 110 Nev. at 704, 877 P.2d at 523-24. [Headnote 3] For purposes of requesting a trial de novo, this court has equated “good faith” with “meaningful participation” in the arbitration proceedings. Casino Properties, Inc. v. Andrews, 112 Nev. 132, 135, 911 P.2d 1181, 1182-83 (1996) (appellant failed WRGHIHQGDUELWUDWLRQLQJRRGIDLWKE\UHIXVLQJWRSURGXFH

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The hearing was not reported. Nor did the parties file a statement of evidence or proceedings similar to the types of statements required under NRAP 9(d). Information regarding the conduct of the hearing was based upon assertions contained in the pleadings. 3

The initial order of the district court did not contain the required written findings of fact and conclusions of law. See Chamberland v. Labarbera, 110 Nev. 701, 705, 877 P.2d 523, 535 (1994).

Ð116 Nev. 386, 391 (2000) Gittings v. HartzÐ Ð to defend arbitration in good faith by refusing to produce documents during discovery, failing to timely deliver a pre-arbitration statement and failing to produce a key witness at the arbitration) (citing Gilling v. Eastern Airlines, Inc., 680 F. Supp. 169 (D. N.J. 1988)). However, the important constitutional right to a jury trial is not waived simply because individuals can disagree over the most effective way to represent a client at an arbitration proceeding. See Chamberland, 110 Nev. at 705, 877 P.2d at 525 (despite failing to conduct discovery or attend arbitration hearing, appellant meaningfully participated in arbitration where liability was not at issue by engaging in cross-examination and disputing alleged injuries). [Headnote 4] When a district court strikes a request for a trial de novo, the decision is treated for purposes of jurisdiction as a final order, subject to appellate review. The standard of review on appeal is abuse of discretion. See Casino Properties, Inc., 112 Nev. at 135-36, 911 P.2d at 1183; Chamberland, 110 Nev. at 705, 877 P.2d at 525. Here, the district court made the following findings: [T]he defendant did not attend the arbitration hearing. In addition, counsel for the defendant did not call any witnesses to testify. It also appears to be undisputed that the entire arbitration lasted for less than one hour and the majority of the time was utilized for the direct examination of the plaintiff by her own attorney. Although counsel for the defendant indicates that he vigorously contested the claim of the plaintiff at the arbitration, there appears to have been no argument made regarding the issue of liability. The only issue raised by the defendant through argument was whether the medical treatments received by the plaintiff were excessive. Regardless, the defendant did not introduce any countervailing medical evidence nor did the defendant request the plaintiff to submit to an independent medical examination prior to the arbitration. With reference to the allegation of the plaintiff that the defendant's insurance carrier, Allstate Insurance Company, is utilizing the mandatory arbitration program as a method of delay, the court must examine the statistics compiled by the Discovery Commissioner of Clark County regarding requests for trial de novo. The Discovery Commissioner of Clark County concluded that in a recent study that Allstate Insurance Company requests trials de novo in at least 52% of the cases it is involved with. This statistic raises a question in this court's mind as to whether this percentage conVWLWXWHVEDGIDLWKSHUVHLQ

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Ð116 Nev. 386, 392 (2000) Gittings v. HartzÐ Ð stitutes bad faith per se in violation of Rule 2(A) of the Nevada Arbitration Rules. Thus the district court essentially cited six reasons in support of the determination that Gittings' actions during the arbitration process did not constitute meaningful participation: (1) Gittings' failure to attend the arbitration hearing, (2) failure to call any witnesses to testify at the hearing, (3) the length of the hearing and the amount of time Gittings used to present her issues at the hearing, (4) failure to contest liability, (5) failure to request an independent medical examination or present any countervailing medical evidence, and (6) the high percentage of trial de novo requests filed by Gittings' insurer, Allstate, in cases involving Allstate clients. 4 Gittings asserts that the district court erred in striking her request for a trial de novo because she did participate in good faith in all forms of discovery permitted by the arbitrator as well as the arbitration hearing itself. Specifically, Gittings argues that she served interrogatories, requested production of documents, and deposed Hartz, but did not request an independent medical examination of Hartz because the arbitrator discovery order did not provide for it. Gittings further argues that she did not need to personally attend the arbitration hearing because liability was not at issue. We agree. [Headnotes 5, 6] Mere failure of a party to attend or call witnesses in an arbitration hearing does not amount to bad faith or a lack of meaningful participation. See Chamberland, 110 Nev. at 705, 877 P.2d at 525. Gittings' decision not to seriously contest liability at the arbitration hearing or seek an independent medical examination provides insufficient grounds for completely striking a demand for a trial de novo under Chamberland. 5 There may be many valid reasons why a party would not wish to expend money at the arbitration stage of a case on medical experts. Effective cross-examination may be sufficient to point out discrepancies in a person's claim of injury without such testimony, or without presentation of “countervailing medical evidence.” Without detailed information on what actually transpired at the hearing, we are left with bare allegations that Gittings did not defend herself in good faith. __________ 4

Hartz argues that the portion of the district court's order referring to the statistics is mere dictum. However, the language of the order gives the impression that this issue was a major factor in the district court's decision. 5

Gittings' conduct, however, may be sufficient to support an alternative sanction, such as limiting the issues to be tried to damages. See NAR 22(B).

Ð116 Nev. 386, 393 (2000) Gittings v. HartzÐ Ð Thus four of the six reasons given for the district court's decision cannot be the basis for striking a request for trial de novo. We are left with the length of the arbitration hearing and the discovery commissioner statistics as the only factors to be considered in evaluating whether Gittings failed to defend the case in good faith under NAR 22. [Headnote 7] The Court Annexed Arbitration Program is intended to be a simplified, informal procedure to resolve certain types of civil cases. See NAR 2(A) and (D). It is designed to give the arbitrator a good understanding of the essential factual disputes and the legal positions of the parties. The decisions issued by the arbitrators, as neutral fact finders, are intended to promote settlement of cases at an early stage of the proceedings. Thus it is the

substance of the hearing, not its length, that is important in determining the good faith of the participants. A hearing is meaningless when a party simply “goes through the motions” and does not seriously attempt to convey valid objections to the opposing party's evidentiary or legal contentions. Gittings does not dispute the district court's finding that “the entire arbitration proceeding lasted for less than one hour” or that the majority of the hearing involved the direct examination of Hartz by her own counsel. Instead, Gittings contends that a more extensive cross-examination was not necessary to contest the nature and extent of Hartz' damages and therefore the brevity of the hearing does not support a finding of bad faith. [Headnote 8] Since the arbitration hearing was not recorded or reported and the district court was not supplied with a statement of the evidence or proceedings similar to statements described in NRAP 9(d), the district court determined that the hearing was conducted in bad faith solely on the basis of statements contained in the pleadings of the parties. Under such circumstances, the district court had no factual record to support a conclusion that Gittings took a lackadaisical approach to the process. 6 [Headnote 9] Turning to the last issue, the use of statistics, Gittings asserts that the percentage of times that her insurer, Allstate, requests a trial de novo should not be considered in a determination of whether she participated in good faith in the arbitration process. __________ 6

If an arbitrator makes detailed factual findings illustrating a lackadaisical attitude, such findings might be sufficient to support a finding of bad faith even without a transcript of the arbitration hearing or an NRAP 9(d) type of statement.

Ð116 Nev. 386, 394 (2000) Gittings v. HartzÐ Ð Gittings argues that the insurer is not a party to this action and its percentage of requests for trial de novo does not evidence delay by the insured. In the alternative, Gittings argues that, if an insurer's percentage of requests for trial de novo can amount to a prima facie showing of bad faith, additional discovery concerning the validity of the statistics is necessary. [Headnote 10] We have recently rejected the notion that the actions of an insurance company cannot be attributed to its insured when reviewing an arbitration proceeding. See Campbell v. Maestro, 116 Nev. 380, 996 P.2d 412 (2000). Thus, competent statistical information that demonstrates that an insurance company has routinely filed trial de novo requests without regard to the facts and circumstances of each individual case may be used to support a claim of bad faith. However, the statistics in this case are incomplete. While a comparatively high percentage of de novo requests are filed by Allstate, there is no analysis accompanying the statistics to support a conclusion that the statistics prove that Allstate automatically requests a trial de novo regardless of the arbitration process. For example, no correlation has been shown between requests for trial de novo and verdicts for or against the party who filed the request. Without an evidentiary hearing or a more comprehensive qualitative and quantitative statistical analysis, the statistics cited by Hartz to the district court were not sufficient to justify termination of proceedings in Hartz' favor. 7 CONCLUSION In light of the above, we hereby reverse the district court's order striking the request for trial de novo and

remand this matter to the district court for further proceedings consistent with this opinion. Maupin and Shearing, JJ., concur. __________ 7

We recognize that the bare statistics create the impression that certain insurance carriers are abusing the arbitration process, and we would have no problem with supporting the denial of a jury trial if a hearing produced competent evidence to substantiate such a conclusion. We are not, however, suggesting that an extensive evidentiary hearing would be necessary in each case. It is conceivable that a detailed statistical analysis, properly authenticated, could be used in more than one proceeding or that testimony taken in one hearing might be admissible in other hearings involving the same carrier under the doctrine of collateral estoppel. ____________

Ð116 Nev. 395, 395 (2000) Olivero v. LoweÐ Ð ROBERT LOUIS OLIVERO, Appellant, v. MONTGOMERY LOWE, Respondent. No. 32485 MONTGOMERY LOWE, Appellant, v. ROBERT LOUIS OLIVERO, Respondent. No. 32753 March 24, 2000

995 P.2d 1023

Companion appeals in connection with a judgment awarding compensatory and punitive damages entered following a bench trial on claims of assault, battery, and intentional infliction of emotional distress. Eighth Judicial District Court, Clark County; Jack Lehman, Judge. Construction laborer brought action against homeowner, alleging separate causes of action for assault, battery, and intentional infliction of emotional distress arising out of confrontation at construction site. The district court awarded laborer compensatory damages totaling $10,000.00, imposed punitive damages in the amount of $45,000.00, and denied laborer's request for attorney's fees. Homeowner appealed damage award, and laborer appealed denial of attorney's fees. The supreme court, Maupin, J., held that: (1) laborer physically attacked and threatened with handgun by homeowner during dispute at construction site was entitled to award of compensatory damages for emotional distress arising from both assault and battery, (2) trial court's review of companion criminal proceedings against homeowner did not result in prejudice to homeowner, (3) use of loan application prepared by homeowner two years prior to trial as evidence of homeowner's net worth for purposes of calculating punitive damage award was warranted, (4) award of punitive damages in amount of $45,000.00 against homeowner with net worth of $880,000 was not excessive, and (5) laborer was entitled to award of attorney's fees. Affirmed in part, reversed in part and remanded. Peccole & Peccole, Las Vegas, for Appellant/Respondent Olivero. Law Offices of Robert A. Nersesian, Las Vegas, for Respondent/Appellant Lowe. 1. Damages.

To establish a cause of action for intentional infliction of emotional distress, the plaintiff must establish the following: (1) extreme and outrageous conduct by the defendant with either the intention of, or reckless disregard for, causing emotional distress; (2) the plaintiff's having VXIIHUHGVHYHUHRUH[WUHPHHPRWLRQDOGLVWUHVV

Ð116 Nev. 395, 396 (2000) Olivero v. LoweÐ Ð suffered severe or extreme emotional distress; and (3) actual or proximate causation. 2. Damages. In cases where emotional distress damages are not secondary to physical injuries, but rather precipitate physical symptoms, either a physical impact must have occurred or, in the absence of physical impact, proof of serious emotional distress causing physical injury or illness must be presented. 3. Damages. Construction laborer physically attacked and threatened with handgun by homeowner during dispute at construction site was entitled to award of compensatory damages for emotional distress arising from both assault and battery, even though laborer required no medical or psychological treatment, where homeowner struck laborer in face and forced him to work at gunpoint, and laborer had continued to experience the terror of the incident through extreme nervousness, and had been forced to discontinue his independent contractor business out of fear of working in unsecure environment. 4. Damages. The standard of proof for emotional distress damages arising from assault and battery is not as stringent as the standard of proof requirement for bare claims of intentional or negligent infliction of emotional distress. 5. Appeal and Error; Damages. It is the function of the trier of fact to award compensatory damages, and it is not the role of the appellate court to substitute its judgment for that of the trier of fact. 6. Appeal and Error. In bench trial of construction laborer's tort action against homeowner, trial court's review of companion criminal proceedings against homeowner on charges of assault and battery did not result in prejudice to homeowner, where homeowner himself first made reference to criminal proceeding in his testimony, and court determined, after review of record, that all evidence in regard to criminal proceeding would be stricken. 7. Trial. The decision whether to allow or refuse closing argument during a bench trial is entirely within the discretion of the district court. 8. Trial. Service of copy of blind trial brief upon opposing counsel as trial judge was leaving bench following rendition of his decision was late. Local rule requires that copy of such brief be filed with opposing counsel “at or before the close of trial.” 9. Appeal and Error. Late service of copy of blind trial brief upon opposing counsel did not compel reversal of verdict rendered in bench trial. Error would not have affected the outcome of trial. 10. Appeal and Error. It is within the province of the fact finder to weigh the evidence, determine the credibility, and act upon such conclusions. 11. Damages. Use of loan application prepared by homeowner two years prior to trial as evidence of homeowner's net worth for purposes of calculating punitive damage award for homeowner's assault and battery upon conVWUXFWLRQODERUHU

Ð116 Nev. 395, 397 (2000) Olivero v. LoweÐ Ð struction laborer, rather than financial statement prepared by homeowner at time of trial, was warranted, where trial court explicitly found homeowner's financial statement and testimony to be untruthful and in conflict with loan application. 12. Damages. Award of punitive damages in amount of $45,000.00 against homeowner with net worth of $880,000.00, in connection with homeowner's assault and battery upon construction laborer, was not excessive, even though homeowner's assets were held as community property with his wife. 13. Arbitration. Construction laborer who was awarded $3,500.00 in damages by arbitrator on his assault and battery claims against homeowner, and who later received $10,000.00 in compensatory damages and $45,000.00 in punitive damages following bench trial of his claims, was entitled to mandatory attorney's fees up to $3,000.00. 14. Pretrial Procedure. Construction laborer was not entitled to award of attorney's fees as sanctions against homeowner for failure to admit disputed substantive facts in connection with laborer's assault and battery claims against homeowner, where requests to admit would have required homeowner to admit to crucial facts central to the lawsuit.

Before Maupin, Shearing and Becker, JJ.

OPINION By the Court, Maupin, J.: Montgomery Lowe filed suit in district court against Robert Louis Olivero, alleging separate causes of action for assault, battery, and intentional infliction of emotional distress. Following a bench trial, the district court awarded Lowe compensatory damages totaling $10,000.00, and imposed punitive damages in the amount of $45,000.00. On appeal, in Docket No. 32485, Olivero seeks reversal on several grounds: (1) failure of predicate proof to substantiate any award of compensatory damages; (2) improper review by the district court of companion criminal proceedings; (3) refusal by the district court to allow closing argument; (4) Lowe's failure to serve a trial memorandum submitted to the trial judge per EDCR 7.27; and (5) improper imposition of punitive damages. In Docket No. 32753, Lowe appeals from the district court's order denying attorney's fees under Nevada Arbitration Rule (NAR) 20 and NRCP 37(c). FACTS On July 10, 1994, Olivero appeared at a construction site where he was building a home. Olivero confronted Lowe, a laborer on the project, about the fact that construction was behind VFKHGXOH

Ð116 Nev. 395, 398 (2000) Olivero v. LoweÐ Ð schedule. Without apparent provocation, Olivero brandished a handgun and punched Lowe in the face. According to Lowe, Olivero then pointed the weapon at Lowe's head, threatened to take Lowe's life, and forced Lowe to dismantle a portion of the completed work. Lowe claimed at trial that he experienced pain and suffering, contusions and emotional distress as a result of the physical battery upon him. Additionally, Lowe claimed severe emotional distress as a result of the assault with the handgun, and being forced to perform labor under threat to his life. Lowe sought no medical or psychological treatment for the physical and emotional damages claimed in connection with the subject incident. Both parties participated in court annexed arbitration proceedings. After the arbitrator awarded Lowe $3,500.00, Olivero requested a trial de novo in district court. See NAR 18 and 20. Following a bench trial, the district court entered findings of fact and conclusions of law, inter alia, that Olivero had committed the torts of battery, assault, and intentional infliction of emotional distress. The district court awarded $5,000.00 on the battery claim, and $5,000.00 in connection with the assault. No additional damages were awarded on the separate claim of intentional infliction of emotional distress on the theory that the damages stemming from that claim were included within the assault and battery awards. The district court also imposed punitive and exemplary damages in the amount of $45,000.00, finding that Olivero had acted with malice and oppression. DISCUSSION Docket No. 32485 Compensatory damages [Headnotes 1, 2] Olivero contends that Lowe failed to present sufficient evidence upon which to base an award of compensatory damages. He places primary reliance on our decision in Barmettler v. Reno Air, Inc., 114 Nev. 441, 956 P.2d 1382 (1998), in which we expanded on our prior decisions discussing independent claims of emotional distress. In Barmettler, we observed: To establish a cause of action for intentional infliction of emotional distress, Barmettler must establish the following:

(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.

Ð116 Nev. 395, 399 (2000) Olivero v. LoweÐ Ð Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90, 91-92 (1981) (citations omitted). .... Negligent infliction of emotional distress We first examined negligent infliction of emotional distress for negligent acts committed directly against a plaintiff in Chowdhry v. NLVH, Inc., 109 Nev. 478, 851 P.2d 459 (1993). In Chowdhry, we observed: We have not previously had occasion to decide whether a plaintiff may recover for negligent infliction of emotional distress for negligent acts committed directly against the plaintiff. In State v. Eaton, we first recognized a cause of action for negligent infliction of emotional distress where a bystander suffers “serious emotional distress which results in physical symptoms caused by apprehending the death or serious injury of a loved one due to the negligence of the defendant.” The “physical impact” requirement has also been applied where, as here, the negligent act is alleged to have been committed directly against the plaintiff. .... In the present case, Chowdhry's emotional distress claims are premised upon respondents' accusations of patient abandonment. Chowdhry testified that as a result, “he was very upset” and could not sleep. Insomnia and general physical or emotional discomfort are insufficient to satisfy the physical impact requirement. Id. at 482-83, 851 P.2d at 462 (citations omitted). We ultimately embraced this doctrine in Shoen v. Amerco, Inc., 111 Nev. 735, 748, 896 P.2d 469, 477 (1995). Barmettler argues that the physical impact requirement is not mandatory in emotional distress claims. While we agree that “emotional overlay” claims, as has been the rule for many years, may be brought in the context of physical injury claims arising from a physical impact, we take this opportunity to clarify Chowdhry's implication that a “physical impact” may be required in cases brought under Shoen. We therefore hold that, in cases where emotional distress damages are not secondary to physical injuries, but rather, precipitate physical symptoms, either a physical impact must have occurred or, in the absence of physical impact, proof of “serious emotional distress” causing physical injury or illness must be presented. Id. at 447-48, 956 P.2d at 1386-87.

Ð116 Nev. 395, 400 (2000) Olivero v. LoweÐ Ð [Headnote 3] Lowe argues that there was a sufficient showing of damages under Barmettler, particularly given the physical impact proved with regard to the battery claim. Lowe further argues that Barmettler should not be read so as to outright deny emotional distress claims stemming from a bare assault. We take this opportunity to clarify and limit the scope of our ruling in Barmettler. Although Lowe required no medical or psychological treatment, we conclude that the district court properly awarded Lowe compensatory damages arising from both the assault and the battery.

[Headnote 4] First, there was a physical impact that provided the objective predicate for personal injury and emotional distress recovery in connection with the battery claim. Second, the nature of a claim of assault is such that the safeguards against illusory recoveries mentioned in Barmettler and Chowdhry are not necessary. Third, claims for assault and battery provide the outer limits of extreme outrage. Thus, an assault, a tort that does not require a physical impact, is in and of itself a predicate for an award of nominal or compensatory damages without proof of “serious emotional distress.” Thus, the standard of proof for emotional distress damages arising from assault and battery is not as stringent as the standard of proof requirement for bare claims of intentional or negligent infliction of emotional distress. See Harrison v. Mitchell, 391 So. 2d 1038, 1040 (1980) (holding that a jury may award nominal or compensatory damages for an assault where the only injury was insult, indignity, hurt feelings, mental suffering and fright caused by the assault) (citing Republic Iron & Steel Co. v. Self, 68 So. 328 (1915)); see also Restatement (Second) of Torts § 46 cmt. k (1986); 1 W. Page Keeton et al., Prosser and Keeton on the Law of Torts (5th ed. 1984 & Supp. 1988); compare W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 43 (5th ed. 1984 & Supp. 1988), Assault (“since assault . . . is essentially a mental rather than a physical invasion, it follows that the damages recoverable for it are those for mental disturbance, . . . as well as any physical illness”) with Keeton et al., § 12, at 64, Infliction of Mental Distress (“[a] few cases have said

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Restatement (Second) of Torts § 46 cmt. k states: The rule stated is not, however, limited to cases where there has been bodily harm; and if the conduct is sufficiently extreme and outrageous, there may be liability for the emotional distress alone, without such harm. In such cases the courts may perhaps tend to look for more in the way of outrage as a guarantee that the claim is genuine; but if the enormity of the outrage carries conviction that there has been severe emotional distress, bodily harm is not required.

Ð116 Nev. 395, 401 (2000) Olivero v. LoweÐ Ð flatly that physical illness or some other nonmental damage is essential to the existence of the tort [IIED]”). Lowe testified that he still experiences the terror of the incident through extreme nervousness, and that he has been forced to discontinue his independent contractor business out of fear of working in an unsecure environment. [Headnote 5] It is the function of the trier of fact to award compensatory damages, and it is not the role of the appellate court to substitute its judgment for that of the trier of fact. See Villella v. Waikem Motors, Inc., 543 N.E.2d 464, 469 (Ohio 1989). There is no evidence to indicate that the damage awards to Lowe were excessive. Certainly the circumstances at issue were extreme enough to stimulate the extent of emotional distress described. Therefore, we conclude that the compensatory awards totaling $10,000.00 were not excessive. 2 Companion criminal proceedings [Headnote 6] Olivero was charged in separate criminal proceedings with misdemeanor assault and battery. He contends that a review of the companion criminal proceedings against him by the district court deprived him of a fair trial. However, it was Olivero's attorney who first made reference to the criminal proceedings: Q. [Peccole] Sir, you [Olivero] testified that—were you charged with anything as a result of this

incident? A. [Olivero] Yes. I was charged with, I think assault and battery and aiming a weapon. Q. And what were the results of those charges? A. They were dismissed and I was—I had to pay a thousand dollar donation. It was only after Olivero's response, which Lowe argues was not accurate, that the district court elected to review the entire criminal record. After viewing the record, the district court determined that all evidence in regard to Olivero's criminal case would be stricken. We conclude that Olivero was not harmed by the review of the companion criminal proceedings. In a jury trial, the judge's withdrawal of evidence coupled with a cautionary instruction would KDYHFXUHGDQ\HUURU __________ 2

We also conclude that the separate claim for intentional infliction of emotional distress was rendered moot, given that the emotional damages were subsumed within the damages awarded in connection with the claims of assault and battery. Thus, we need not address the Barmettler requirements as they relate to the separate cause of action for emotional distress.

Ð116 Nev. 395, 402 (2000) Olivero v. LoweÐ Ð have cured any error. See State v. Heisdorffer, 164 N.W.2d 173, 176 (Iowa 1969). In the absence of a jury, the district judge was certainly able to resolve the matter without considering the excluded criminal record. Refusal to allow closing argument [Headnote 7] Olivero contends that the district court erred in refusing his request to present closing arguments. The decision whether to allow or refuse closing argument during a bench trial is entirely within the discretion of the district court. See Gunn v. Superior Court, 173 P.2d 328 (Cal. 1946). Thus, we conclude that the district court did not err in refusing Olivero's request in this regard. “Blind” trial memoranda [Headnote 8] Early in the proceedings, counsel for Lowe lodged a “blind” trial brief with the district court under EDCR 7.27. 3 Because Lowe provided a copy of the trial memorandum to Olivero's counsel as the judge was leaving the bench following the rendition of his decision, Olivero claims that Lowe violated EDCR 7.27. [Headnote 9] We conclude that service of the trial memorandum was late. However, this error in the proceedings does not compel reversal because the error would not have affected the outcome of the trial. See El Cortez Hotel, Inc. v. Coburn, 87 Nev. 209, 484 P.2d 1089 (1971); NRCP 61. Punitive damages Olivero also contends that the district court erred in its award of punitive damages. More particularly, Olivero claims that the district court failed to take into account Olivero's financial position at the time of trial in 1998, used the value of community property as proof of Olivero's net worth, and awarded the punitive damages under the influence of passion and prejudice. We conclude that the district court did not fail to take into consideration Olivero's current financial position as of the date of WULDO

__________ 3

Eighth Judicial District Court Rule 7.27 states: Unless otherwise ordered by the court, an attorney may elect to submit to the court in any civil case, a trial memoranda of points and authorities prior to the commencement of trial by delivering one unfiled copy to the court, without serving opposing counsel or filing the same, provided that the original trial memoranda of points and authorities must be filed and a copy must be served upon opposing counsel at or before the close of trial.

Ð116 Nev. 395, 403 (2000) Olivero v. LoweÐ Ð trial. The district court chose to rely upon a 1996 loan application prepared by Olivero, rather than a financial statement provided by Olivero dated March 28, 1998. The district judge found Olivero's 1998 financial statement to be untruthful and observed that Olivero was “one of the least credible witnesses” he had ever heard testify in his court. [Headnotes 10, 11] The record supports the district court's conclusions in this regard. Olivero testified at trial to a net worth of between $150,000.00 and $200,000.00. This was in direct conflict with the 1998 financial statement he submitted, and in direct conflict with his testimony that the only financial setback encountered between 1996 and 1998 totaled some $400,000.00. This and other discrepancies rendered relevant the earlier statement of net worth. It is within the province of the fact finder to weigh the evidence, determine the credibility, and act upon such conclusions. See Paul Andre B. v. State, 108 Nev. 368, 371, 830 P.2d 1344, 1346 (1992). Here, the prior loan application contained competent evidence demonstrating Olivero's net worth. Further, as noted below, the district court imposed these damages with an understanding that the 1996 net worth of 1.3 million dollars could be reduced by an amount in excess of the $400,000.00 financial reversal. Thus, the district court acted well within its discretion in rejecting Olivero's evidence on this point. See Ramada Inns v. Sharp, 101 Nev. 824, 826, 711 P.2d 1, 2 (1985) (holding that the allowance or denial of punitive damages rests entirely in the discretion of the trier of fact). [Headnote 12] We also conclude that the district court recognized that Olivero's net worth included community property. In reaching its decision the district court found that the “appropriate amount of punitive damages under this case, even if it [sic] is community property, is $45,000.” Additionally, the judgment below specifically provides that Olivero “has a net worth, held in community property with his wife, of at least $880,000.” We conclude that, assuming Olivero's portion of the community estate was half the $880,000.00 amount, the punitive award was not excessive. Therefore, it is clear that the district court took into account the appropriate portion of Olivero's net worth after deducting the $400,000.00 financial reversal, and excluding his wife's interest in their community estate, in its award of punitive damages. We conclude that Olivero failed to demonstrate that the punitive damages were awarded under the influence of passion or prejudice. Further, the only evidence Olivero offers for support is that the district court asked him additional questions and threatened KLP ZLWK FRQWHPSW LI KH FRQWLQXHG WR IDLO WREULQJUHTXLUHG

GRFXPHQWV Ð116 Nev. 395, 404 (2000) Olivero v. LoweÐ Ð him with contempt if he continued to fail to bring required documents. This evidence is insufficient to demonstrate that the district court was somehow prejudiced against Olivero. Finally, the totality of the evidence

against Olivero, which the district court had the discretion to accept, demonstrated an outrageous and ill-advised exercise of physical domination over a person who was only trying to explain delays in the construction of Olivero's construction project. Docket No. 32753 [Headnote 13] In his separate appeal, Lowe contends that he was entitled to attorney's fees under NAR 20(A), which states: Except as otherwise provided in this subsection, if the amount of the award in the trial de novo does not . . . reduce the liability imposed on [the party requesting trial de novo] by the arbitration award, the party requesting the trial de novo must pay to the adverse parties all . . . actual attorney's fees associated with the prosecution . . . 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.) The arbitrator awarded Lowe $3,500.00 in damages. Thereafter, the district court entered judgment in favor of Lowe totaling $10,000.00 in compensatory damages and $45,000.00 in punitive damages. We therefore conclude that Lowe was entitled to mandatory attorney's fees up to $3,000.00 under NAR 20 because Olivero clearly failed to improve upon the arbitration award. This award is independent of NRS 18.010(2)(a), which precludes fees under that provision where the recovery, exclusive of costs, exceeds $20,000.00. See Barmettler, 114 Nev. at 452, 956 P.2d at 1389. [Headnote 14] Lowe also contends that the district court abused its discretion in denying Lowe's request for attorney's fees as sanctions under NRCP 37(c) for failure to admit disputed substantive facts in connection with the parties' confrontation on July 10, 1994. NRCP 37(c) provides: If a party fails to admit . . . the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves . . . the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall PDNHWKHRUGHUXQOHVVLWILQGVWKDWWKHUHZDVJRRG

UHDVRQIRUWKHIDLOXUHWRDGPLW Ð116 Nev. 395, 405 (2000) Olivero v. LoweÐ Ð make the order unless it finds that there was good reason for the failure to admit. We conclude there was no error in the district court's refusal to sanction Olivero under NRCP 37(c). Lowe's requests to admit required Olivero to admit to crucial facts central to the lawsuit. See Morgan v. Demille, 106 Nev. 671, 675, 799 P.2d 561, 564 (1990) (holding that NRCP 36 is designed to elicit admissions of fact as to which there is no real dispute and which the adverse party can admit cleanly, without qualification). We have reviewed all other contentions brought forth in these appeals and determine them to be without merit. Based on the foregoing discussion, we reverse the district court's order denying appellant attorney's fees and remand this order to the district court for entry of an award of attorney's fees under NAR 20. In all other respects, the judgment below is affirmed. Shearing and Becker, JJ., concur. ____________

Ð116 Nev. 405, 405 (2000) Kindred v. Dist. Ct.Ð Ð Ð ROBIN KINDRED, an Individual, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF WASHOE, and THE HONORABLE PETER I. BREEN, District Judge, Respondents, and A. G. EDWARDS, a Missouri Corporation Doing Business in the State of Nevada; and RUSS BISHOP, an Individual, Real Parties in Interest. No. 34084 April 5, 2000

996 P.2d 903

Original petition for a writ of mandamus or, in the alternative, a writ of prohibition challenging the district court's order compelling arbitration. Second Judicial District Court, Washoe County; Peter I. Breen, Judge. Investment broker sued her employer, alleging numerous claims, including sexual harassment and/or discrimination under Title VII and its state equivalent, and a breach of the Family and Medical Leave Act (FMLA). The district court ruled that all of broker's claims were subject to arbitration. Broker petitioned for a writ of mandamus or, in the alternative, a writ of prohibition. The supreme court held that: (1) mandamus was a proper method to challenge an order compelling arbitration, and (2) claims under 7LWOH9,,DQGXQGHUWKH

)DPLO\DQG0HGLFDO/HDYH$FW)0/$ ZHUHDUELWUDEOH Ð116 Nev. 405, 406 (2000) Kindred v. Dist. Ct.Ð Ð Title VII and under the Family and Medical Leave Act (FMLA) were arbitrable. Petition denied. Jack E. Kennedy & Associates, Reno, for Petitioner. Schreck Morris and Ann Morgan and John P. Desmond, Reno, for Real Parties in Interest. 1. Mandamus. Writ of mandamus was a proper method to challenge an order compelling arbitration. NRS 34.170, 38.205. 2. Prohibition. District court acted within its jurisdiction when it heard employer's motion to compel arbitration of employee's claims under Title VII and its state equivalent, and under the Family and Medical Leave Act (FMLA), and thus, a writ of prohibition was inapplicable. Family and Medical Leave Act of 1993, § 107(a)(2), 29 U.S.C. § 2617(a)(2); Civil Rights Act of 1964, § 703(a)(1), as amended, 42 U.S.C. § 2000e-2(a)(1); NRS 34.320, 613.330(1). 3. Arbitration. State anti-discrimination statutes are a part of Title VII's enforcement scheme, and thus, claims under the state statute are arbitrable to the same extent as Title VII claims. Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C. § 2000e et seq.; NRS 613.330(1). 4. Exchanges. Investment broker's claims against her employer under Title VII and its state equivalent, and under the Family and Medical Leave Act (FMLA), were arbitrable. Family and Medical Leave Act of 1993, § 107(a)(2), 29 U.S.C. § 2617(a)(2); Civil Rights Act of 1964, § 703(a)(1), as amended, 42 U.S.C. § 2000e-2(a)(1); NRS 613.330(1). 5. Mandamus. 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, or to control an arbitrary or capricious exercise of discretion. NRS 34.160. 6. Mandamus. Mandamus is an extraordinary remedy, and it is within the discretion of supreme court to determine if a petition will be considered. NRS 34.170. 7. Arbitration. In reviewing arbitration agreements, the issue of whether a dispute is arbitrable is essentially a question of construction of a contract, and as such, the reviewing court is obligated to make its own independent determination on this issue, and should not defer to the district court's determination. 8. Arbitration. In determining whether to compel arbitration of federal statutory claims, court examines: (1) whether the parties have

made an agreement to arbitrate, (2) the scope of the agreement, and (3) whether the federal statutory claims are arbitrable.

Ð116 Nev. 405, 407 (2000) Kindred v. Dist. Ct.Ð Ð 9. Exchanges. Arbitration clause in the form signed by employee was valid, despite her claim that it was an invalid adhesion contract, that the failure to sign the form would have barred her employment, and that she did not understand the implications of the arbitration clause. 10. Contracts. “Adhesion contract” is a standardized contract form offered to consumers of goods and services essentially on a “take it or leave it” basis, without affording the consumer a realistic opportunity to bargain. 11. Arbitration. In judging the scope of the arbitration agreements, supreme court resolves all doubts concerning the arbitrability of the subject matter of a dispute in favor of arbitration. 12. Arbitration. Supreme court is hesitant to deprive the parties of the benefits of arbitration they have bargained for, and arbitration clauses are to be construed liberally in favor of arbitration. 13. Courts. Where the federal circuits are in conflict, the authority of the Ninth Circuit is entitled to no greater weight than decisions of other circuits. 14. Arbitration. By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: Before beginning her employment with A.G. Edwards & Sons (“Edwards”), petitioner Robin Kindred (“Kindred”) completed and signed two separate agreements. Both agreements contained an arbitration clause that required Kindred to arbitrate any disputes related to her employment. Kindred later filed a complaint in the district court. Edwards sought to compel arbitration, and the district court ruled that all of Kindred's claims were subject to arbitration. For the reasons discussed herein, we conclude that Kindred appropriately seeks relief from this court by a writ of mandamus. Based on the two separate arbitration agreements, we further conclude that Kindred's Title VII claim and her Family and Medical Leave Act claim are subject to arbitration. We therefore deny extraordinary relief. FACTS In October 1995, Edwards hired Kindred as an investment broker. Kindred's job responsibilities required that she register with the National Association of Securities Dealers, Inc. ³1$6'´ 

Ð116 Nev. 405, 408 (2000) Kindred v. Dist. Ct.Ð Ð (“NASD”). Consequently, Kindred completed and signed a Uniform Application for Securities Industry Registration or Transfer Form (“U-4 Form”). The U-4 Form contains an arbitration provision. Specifically, the form states in paragraph five: I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations indicated in item 10 as may be amended from time to time and that any arbitration award rendered against me may be entered as a judgment in any court of competent jurisdiction.

Item 10 identifies the NASD as one of the licensing organizations. Pursuant to paragraph five of the U-4 Form, Section 10101 of the NASD Code of Arbitration Procedure states, in relevant part: This Code of Arbitration Procedure is prescribed and adopted . . . for the arbitration of any dispute, claim, or controversy arising out of or in connection with the business of any member of the Association, or arising out of the employment or termination of employment of associated person(s) with any member. Edwards is a member of the NASD. Under Section 10201, any dispute involving a member or a person associated with a member against another member or a person associated with a member “shall be arbitrated under this Code.” In addition, Kindred completed and signed Edwards' “Investment Broker Agreement.” 1 agreement also contains an arbitration clause. Paragraph twenty-six of that agreement states:

This second

You agree that any controversy or dispute arising between you and Edwards in any respect to this agreement or your employment by Edwards shall be submitted for arbitration before the New York Stock Exchange, Inc., or the National Association of Securities Dealers, Inc. On November 6, 1998, Kindred filed a complaint in the district court alleging numerous claims, including sexual harassment and/or discrimination under Title VII 2 and its Nevada equivalent, and a breach of the Family and Medical Leave Act (“FMLA”). Edwards subsequently informed Kindred that her claims were subMHFWWR

DUELWUDWLRQDQGWKDW(GZDUGVHOHFWHGWRSXUVXHDUELWUDWLRQEHIRUHWKH1$6' __________ 1

Kindred failed to disclose the existence of this second agreement and did not discuss its relevance to the issues involved in her petition. 2

Portions of the Civil Rights Act of 1964 are commonly referred to as Title VII. See 42 U.S.C. §§ 2000e to 2000e-17 (1994).

Ð116 Nev. 405, 409 (2000) Kindred v. Dist. Ct.Ð Ð ject to arbitration and that Edwards elected to pursue arbitration before the NASD. Nevertheless, Kindred refused to submit to arbitration. Accordingly, Edwards filed a motion to compel arbitration in the district court. On March 4, 1999, the district court ruled that all of Kindred's claims were subject to arbitration before the NASD under both Nevada and relevant United States Supreme Court case law. Kindred has now filed a petition for a writ of mandamus or prohibition, challenging the district court order compelling arbitration. DISCUSSION [Headnote 1] As a threshold issue, we must first consider whether a writ of mandamus or prohibition is the proper method to challenge an order compelling arbitration. [Headnotes 2, 3] The Uniform Arbitration Act (“UAA”) governs arbitration agreements in Nevada. See NRS 38.015-38.205. In particular, NRS 38.205 specifies the types of orders relating to arbitration from which an appeal may be taken. “An order compelling arbitration is not listed [in NRS 38.205] as being subject to appeal, and is therefore

not appealable.” Clark County v. Empire Electric, Inc., 96 Nev. 18, 19, 604 P.2d 352, 353 (1980); see also NRS 38.205. We may issue a writ of mandamus “where there is not a plain, speedy and adequate remedy in the ordinary course of law.” NRS 34.170. Under these circumstances, we conclude that Kindred has no remedy available other than that provided by a writ. See NRS 38.205; Empire Electric, 96 Nev. at 19, 604 P.2d at 353. Moreover, other states recognize that a writ of mandamus is the proper method to challenge an order compelling arbitration. See Ex Parte Alexander, 558 So. 2d 364 (Ala. 1990); Banner Entertainment, Inc. v. Superior Court, 72 Cal. Rptr. 2d 598 (Ct. App. 1998); Bertero v. Superior Court, 30 Cal. Rptr. 719 (Ct. App. 1963). Accordingly, we conclude that Kindred appropriately seeks extraordinary relief by way of a writ of mandamus in this case. 3 __________ 3

Alternatively, Kindred seeks a writ of prohibition. A writ of prohibition may be issued when the district court acts in excess of its jurisdiction. See NRS 34.320. Kindred never discusses the applicability of a writ of prohibition in this case, but apparently argues that the district court exceeded its jurisdiction by ruling on the arbitrability of her Title VII and FMLA claims. However, NRS 613.330(1) is Nevada's equivalent to Title VII and is almost identical to section 2000e-2(a)(1) of Title VII. See 42 U.S.C. § 2000e-2(a)(1) (1994). Furthermore, because state anti-discrimination statutes are a part of Title VII's enforcement scheme, claims under NRS 613.330(1) are arbitrable to the same extent as Title VII claims. See Kremer v. Chemical Construction

Ð116 Nev. 405, 410 (2000) Kindred v. Dist. Ct.Ð Ð [Headnote 4] Kindred argues that her Title VII and FMLA claims are not arbitrable. Although Kindred concedes that her other claims are subject to binding arbitration, she nonetheless seeks to sever her Title VII and FMLA claims from arbitration. We conclude that Kindred's argument is without merit. [Headnotes 5, 6] 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, or to control an arbitrary or capricious exercise of discretion. See NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). Mandamus is an extraordinary remedy, and it is within the discretion of this court to determine if a petition will be considered. See State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983); see also Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982). [Headnote 7] Moreover, in reviewing arbitration agreements, the issue of “[w]hether a dispute is arbitrable is essentially a question of construction of a contract.” Clark Co. Public Employees v. Pearson, 106 Nev. 587, 590, 798 P.2d 136, 137 (1990). As such, “the reviewing court is obligated to make its own independent determination on this issue, and should not defer to the district court's determination.” Id. [Headnote 8] In determining whether to compel arbitration of federal statutory claims, we examine: (1) whether the parties have made an agreement to arbitrate; (2) the scope of the agreement; and (3) whether the federal statutory claims are arbitrable. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626-27 (1984); see also Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 844 (2d Cir. 1987). [Headnote 9] First, it is undisputed that Kindred completed and signed two separate arbitration agreements. Nonetheless,

Kindred asserts that WKHDUELWUDWLRQFODXVHLQWKH8)RUPLVLQYDOLGDVDQDGKHVLRQFRQWUDFW __________ Corp., 456 U.S. 461, 477 (1982). Conversely, Nevada does not have an equivalent to the FMLA. Yet, the FMLA provides that “[a]n action to recover the damages or equitable relief prescribed in paragraph (1) may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction.” See 29 U.S.C. § 2617(a)(2) (1999). Accordingly, we conclude that the district court acted within its jurisdiction when it heard Edwards' motion to compel arbitration. Therefore, a writ of prohibition is inapplicable in this case.

Ð116 Nev. 405, 411 (2000) Kindred v. Dist. Ct.Ð Ð the arbitration clause in the U-4 Form is invalid as an adhesion contract. Without citing to any evidence, Kindred asserts that the failure to sign the agreement would have barred her employment with Edwards and that she did not understand the implications of the arbitration clause. [Headnote 10] An adhesion contract is “a standardized contract form offered to consumers of goods and services essentially on a ‘take it or leave it' basis, without affording the consumer a realistic opportunity to bargain.” Obstetrics and Gynecologists v. Pepper, 101 Nev. 105, 107, 693 P.2d 1259, 1260 (1985). We have never applied the adhesion contract doctrine to employment cases. Moreover, we have held that “[p]arties to a written arbitration agreement are bound by its conditions regardless of their subjective beliefs at the time the agreement was executed.” Campanelli v. Conservas Altamira, S.A., 86 Nev. 838, 841, 477 P.2d 870, 872 (1970). For these reasons, we conclude that Kindred's argument is meritless and that she entered into two valid arbitration agreements. [Headnotes 11, 12] Second, in judging the scope of the arbitration agreements, we “resolve all doubts concerning the arbitrability of the subject matter of a dispute in favor of arbitration.” Int'l Assoc. Firefighters v. City of Las Vegas, 104 Nev. 615, 618, 764 P.2d 478, 480 (1988). In fact, we have observed that the purpose of the UAA “is to prevent courts from intervening when a provision for arbitration has been contractually provided by the parties.” Phillips v. Parker, 106 Nev. 415, 417, 794 P.2d 716, 718 (1990). Therefore, we are hesitant “to deprive the parties of the benefits of arbitration they have bargained for, and arbitration clauses are to be construed liberally in favor of arbitration.” Id. In the present matter, the plain language of both arbitration provisions is very broad. The U-4 Form states that “any dispute, claim or controversy that may arise between me and my firm” must be arbitrated. The second arbitration agreement provides that “any controversy or dispute arising between you and Edwards in any respect to this agreement or your employment by Edwards shall be submitted for arbitration.” Because of the broad language of both arbitration clauses and the fact that Nevada overwhelmingly favors arbitration, we conclude that the scope of the arbitration agreements appears to include all employment related claims. However, the crux of Kindred's argument focuses on the third element of whether her Title VII and FMLA claims are subject to DUELWUDWLRQ

Ð116 Nev. 405, 412 (2000) Kindred v. Dist. Ct.Ð Ð arbitration. The resolution of this issue requires a separate and closer examination of applicable federal case law. In several cases, the United States Supreme Court has addressed the conflict between arbitration agreements and federal statutory rights. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 59-60 (1974), the Court held that an arbitration agreement under a collective bargaining agreement does not preclude separate litigation of a Title

VII claim. However, in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991), the Court distinguished Gardner-Denver by holding that claims under the Age Discrimination in Employment Act of 1967 (“ADEA”) can be subject to individual agreements to arbitrate. 4 Importantly, the ADEA and Title VII are both federal anti-discrimination statutes. In fact, Gilmer involved the same type of U-4 Form at issue in the instant case. In addition, the Court ruled that “ ‘[h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.' ” See Gilmer, 500 U.S. at 26 (quoting Mitsubishi Motors Corp., 473 U.S. at 628). In making this determination, the Court looked to the language of the statute, its legislative history, and whether a conflict between the statute's goals and arbitration existed. See id. After a careful review of Title VII, we conclude that the language of Title VII does not expressly preclude arbitration. See Austin v. Owen-Brockway Glass Container, Inc., 78 F.3d 875, 881 (4th Cir. 1996) (holding that the plain language of Title VII means “Congress is in favor of arbitration”). In fact, the plain language of Title VII evinces approval of arbitration as a means to resolve Title VII claims. The Civil Rights Act of 1991 5 provides: Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including . . . arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law amended by this title. __________ 4

Recently, in Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), the Court held that a general arbitration clause in a collective bargaining agreement did not require arbitration of an alleged violation of the Americans with Disabilities Act. However, the Court distinguished Gilmer by noting that “Gilmer involved an individual's waiver of his own rights, rather than a union's waiver of the rights of represented employees.” See Wright, 525 U.S. at 80-81. Additionally, the Court stated, “We take no position, however, on the effect of this provision in cases where a [collective bargaining agreement] clearly encompasses employment discrimination claims, or in areas outside collective bargaining.” Id. at 82 n.2 (emphasis added). Accordingly, we conclude that Wright is inapposite to this case. 5

The Civil Rights Act of 1991 amended Title VII, in part. See Pub. L. No. 102-166, 105 Stat. 1071 (1991).

Ð116 Nev. 405, 413 (2000) Kindred v. Dist. Ct.Ð Ð Civil Rights Act of 1991, Pub. L. No. 102-166, § 118, 105 Stat. 1071, 1081 (1991). In addition, we note that the legislative history of Title VII is ambiguous regarding Congress' position on arbitration because it contains statements supporting the arbitration of Title VII claims and statements criticizing it. See, e.g., 137 Cong. Rec. S15,472-501, S15,478 (daily ed. Oct. 30, 1991) (statement of Sen. Dole); H.R. Rep. No. 101-485(III), at 76-77 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 499-500. Due to the ambiguous nature of Congress' position, we conclude that the legislative history of Title VII is “insufficient to overcome the presumption in favor of arbitration which Gilmer establishes.” Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, 170 F.3d 1, 10 (1st Cir. 1999). Moreover, we further conclude that Title VII's goals are not undermined by arbitration because an individual may still vindicate his or her rights under Title VII in arbitration proceedings. See id. at 11. Furthermore, eleven of the twelve federal circuit courts of appeals have addressed the issue of whether Title VII claims are arbitrable. Ten of those eleven federal circuit courts of appeals hold that Title VII claims are subject to arbitration. 6 Only the Ninth Circuit has arrived at the opposite conclusion. See Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998), cert. denied, 119 S. Ct. 445 (1998). [Headnote 13] In Duffield, the Ninth Circuit held that an arbitration provision in a U-4 Form was unenforceable. The Ninth

Circuit ruled that the text of Title VII and its legislative history showed “that Congress intended to preclude compulsory arbitration of Title VII claims.” Duffield, 144 F.3d at 1199. However, we conclude that Duffield is distinguishable from the instant matter. Here, Kindred signed a second arbitration agreement in addition to the arbitration provision in the U-4 Form. The language in the second arbitration agreement is even broader than the language in the U-4 Form. Moreover, the Ninth Circuit's interpretation of Title VII FRQIOLFWV ZLWK WKH

LQWHUSUHWDWLRQRIWHQRWKHUIHGHUDOFLUFXLWFRXUWVRIDSSHDOV __________ 6

See Rosenberg, 170 F.3d at 1; Koveleskie v. SBC Capital Markets, Inc., 167 F.3d 361 (7th Cir. 1999), cert. denied, 120 S. Ct. 44 (1999); Seus v. John Nuveen & Co., Inc., 146 F.3d 175 (3d Cir. 1998), cert. denied, 119 S. Ct. 1028 (1999); Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054 (11th Cir. 1998); Patterson v. Tenet Healthcare, Inc., 113 F.3d 832 (8th Cir. 1997); Cole v. Burns Intern. Security Services, 105 F.3d 1465 (D.C. Cir. 1997); Austin, 78 F.3d at 875; Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482 (10th Cir. 1994); Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305 (6th Cir. 1991); Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229 (5th Cir. 1991). Though the Second Circuit has yet to address the issue, all the federal district courts in the Second Circuit are unanimous in holding that Title VII claims are arbitrable. See, e.g., Pitter v. Prudential Life Ins. Co. of America, 906 F. Supp. 130, 139 (E.D.N.Y. 1995).

Ð116 Nev. 405, 414 (2000) Kindred v. Dist. Ct.Ð Ð conflicts with the interpretation of ten other federal circuit courts of appeals. “Where the federal circuits are in conflict, the authority of the Ninth Circuit . . . is entitled to no greater weight than decisions of other circuits.” Elliot v. Albright, 257 Cal. Rptr. 762, 765 (Ct. App. 1989). For the foregoing reasons, we conclude, as did nearly all the federal circuit courts of appeals, that Congress has not expressly precluded Title VII claims from being subject to arbitration. Accordingly, we conclude that Kindred's Title VII claim is arbitrable. Similarly, several courts have held that FMLA claims are subject to arbitration. See, e.g., O'Neil v. Hilton Head Hosp., 115 F.3d 272, 274 (4th Cir. 1997); Smith v. CPC Foodservice, 955 F. Supp. 84, 86 (N.D. Ill. 1997); Reese v. Commercial Credit Corp., 955 F. Supp. 567, 570 (D. S.C. 1997). Moreover, Satarino v. A.G. Edwards & Sons, Inc., 941 F. Supp. 609 (N.D. Tex. 1996), is remarkably similar to the instant case. In Satarino, the plaintiff signed both the U-4 Form and the “Investment Broker Agreement.” The Satarino court concluded that the arbitration provisions in both agreements were sufficiently broad to include an FMLA claim. See id. at 613. In addition, the court utilized the Gilmer analysis of examining the text of the FMLA and its legislative history, while also examining whether the FMLA's goals are compatible with arbitration. Ultimately, the court held that the FMLA “contains nothing to suggest that agreements to arbitrate are unenforceable . . . [a]nd Satarino has not pointed the court to legislative history to support such a conclusion, or to an inherent conflict between the FMLA and arbitration.” Id. We conclude that the Satarino court's analysis is persuasive, especially in light of the fact that Congress could have precluded FMLA claims from being subject to arbitration. Because Congress enacted the FMLA well after Gilmer in 1993, Congress had the opportunity to preclude the arbitrability of FMLA claims, but did not do so. See 29 U.S.C. § 2601 (1999); Smith, 955 F. Supp. at 86. For these reasons, we conclude, as did the Satarino court, that Congress has not precluded FMLA claims from being subject to arbitration. Accordingly, we conclude that Kindred's FMLA claim is also arbitrable. [Headnote 14] Finally, it is important to note that “[b]y agreeing to arbitrate a statutory claim [such as a Title VII or FMLA claim], a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1984). Thus, Kindred still retains the opportunity to present her Title VII and FMLA claims to an arbitrator, just not to a jury.

Ð116 Nev. 405, 415 (2000) Kindred v. Dist. Ct.Ð Ð Accordingly, we conclude that extraordinary relief is not warranted in this case because the district court did not abuse its discretion in concluding that both Kindred's Title VII and FMLA claims are arbitrable. We therefore deny Kindred's petition for a writ of mandamus or prohibition. 7

____________

Ð116 Nev. 415, 415 (2000) LaForge v. State, University SystemÐ Ð Ð LAURENCE E. LaFORGE, Appellant, v. THE STATE OF NEVADA, as the UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA; UNIVERSITY OF NEVADA, RENO; and BOARD OF REGENTS OF THE UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA, Respondents. No. 32814 LAURENCE E. LaFORGE, Appellant, v. THE STATE OF NEVADA, as the UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA; UNIVERSITY OF NEVADA, RENO; and BOARD OF REGENTS OF THE UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA, Respondents. No. 33397 April 5, 2000

997 P.2d 130

Consolidated appeals from a district court order granting a motion for summary judgment based on issue preclusion and a district court order awarding attorney's fees. Second Judicial District Court, Washoe County; Janet J. Berry, Judge. Non-tenured university professor brought action against university over the termination of his employment, asserting claims for breach of contract, breach of covenant of good faith and fair dealing, and negligent supervision. After professor's federal action against university was dismissed, university moved for summary judgment on basis of issue preclusion. The district court granted summary judgment in favor of university and awarded university attorney's fees and costs. Professor appealed. The supreme court held that: (1) doctrine of issue preclusion barred professor's state action, (2) university did not breach professor's employment contract, and (3) district court was within its discretion in awarding university attorney's fees pursuant to offer of judgment rule. Affirmed. __________ 7

We hereby vacate our order of February 16, 2000, staying the arbitration proceedings in this matter.

Ð116 Nev. 415, 416 (2000) LaForge v. State, University SystemÐ Ð Paul G. Yohey, Reno, for Appellant.

Mary Phelps Dugan, Reno, for Respondents. 1. Appeal and Error. An order granting summary judgment is reviewed de novo. 2. Judgment. Issue preclusion, or collateral estoppel, is a proper basis for granting summary judgment. 3. Judgment. The general rule of issue preclusion is that if an issue of fact or law was actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the parties. 4. Judgment. The doctrine of issue preclusion provides that any issue that was actually and necessarily litigated in first case will be estopped from being relitigated in subsequent case. 5. Judgment. Unlike claim preclusion, issue preclusion does not apply to matters which could have been litigated but were not. 6. Judgment. Doctrine of issue preclusion barred professor's state action against university for breach of employment contract for university's alleged failure to follow required personnel procedures in terminating professor, where common issue of whether university did what it was obligated to do in terminating professor was litigated and determined by valid and final judgment in professor's federal action against university, identical facts supported both federal and state actions, and professor conceded that he used same arguments on appeal in state case as he used in response to motion to dismiss federal case. 7. Judgment. Issue preclusion may apply even though the causes of action are substantially different, if the same fact issue is presented. 8. Judgment. Federal judgment in favor of university in professor's action for alleged violations of his constitutional rights relating to university's termination of his employment would be accepted by state supreme court as valid in professor's state action against university for breach of his employment contract, pursuant to presumption that a judgment is valid if it is regular on its face, absent any indication of federal appeal and subsequent reversal of federal court's findings. 9. Colleges and Universities. University, in terminating non-tenured professor, did not breach professor's employment contract and could not have breached implied covenant of good faith and fair dealing. Professor's contract incorporated university and community college system Code but did not incorporate university and departmental Bylaws, Code entitled non-tenured faculty members to at least 365 days' notice of termination, and professor received 369 days' notice of his termination. 10. Colleges and Universities. University or departmental Bylaws were not incorporated into uniYHUVLW\ V HPSOR\PHQW FRQWUDFW ZLWK QRQWHQXUHG

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Ð116 Nev. 415, 417 (2000) LaForge v. State, University SystemÐ Ð versity's employment contract with non-tenured professor, either expressly or pursuant to university Code sections requiring institutions to adopt Bylaws setting forth institution's organizational structure and personnel policies and allowing departments to adopt Bylaws concerning tenure appointment. 11. Costs. District court was within its discretion in awarding attorney's fees to university under offer of judgment rule in professor's action against university for breach of employment contract, though university did not disclose that it would raise issue preclusion defense prior to or at time it made its offer of judgment to professor. University's failure to bring issue preclusion defense earlier did not constitute withholding of information that rendered professor's rejection of offer of judgment reasonable. NRCP 68. 12. Costs. The following factors should be considered by trial court in exercising its discretion to award attorney's fees pursuant to rule governing offers of judgment: (1) whether the plaintiff's claim was brought in good faith, (2) whether the defendant's offer of judgment was reasonable and in good faith in both its timing and amount, (3) whether the plaintiff's decision to reject the offer and proceed to trial was grossly unreasonable or in bad faith, and (4) whether the fees sought by the offeror are reasonable and justified in amount. Where district court properly considers these factors, the award of attorney's fees is discretionary and will not be disturbed absent a clear abuse of discretion. NRCP 68.

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: Appellant was a non-tenured professor at the University of Nevada, Reno, when he received 369 days' notice that his yearly contract would not be renewed. Appellant brought suit over the termination of his

employment in federal and state courts. After the federal action was dismissed, respondents moved for summary judgment in state court on the basis of issue preclusion. The state district court granted the motion, concluding that issue preclusion prevented appellant from pursuing his claims in state court. The state court also granted respondents' motion for attorney's fees and costs incurred from the date appellant rejected respondents' offer of judgment. Appellant appeals the summary judgment and the award of attorney's fees. We conclude that the district court properly relied on issue preclusion in granting summary judgment and did not abuse its discretion in awarding attorney's fees.

Ð116 Nev. 415, 418 (2000) LaForge v. State, University SystemÐ Ð FACTS Appellant's employment with the University of Nevada, Reno, began on or about July 15, 1993, when he began working as a part-time professor. On July 1, 1994, appellant became employed at the university in a full-time, non-tenured position. On June 27, 1995, appellant was presented by a supervisor with a notice of non-reappointment to employment and a terminal contract. On June 30, 1996, 369 days later, appellant's employment at the university ended. Appellant's contract incorporated as part of its terms the University and Community College System of Nevada Code (hereafter “Code”). 1 Code section 5.9.1 provides that “[notice] of non[-]reappointment to employment of nontenured faculty at the University of Nevada, Reno . . . shall be given . . . [a]t least 365 calendar days in advance of the termination of each succeeding employment contract of an academic or fiscal year's duration after the second year of service.” Code section 5.7.2 states that “[a]ny decision which involves the non[-]reappointment to employment of faculty as provided in Subsections 5.4.2, 5.8.2, 5.9.1 and 5.9.2 of the [Code] . . . is not subject to review by grievance procedures.” After termination of his employment with the university, appellant filed lawsuits against respondents in federal and state courts. The federal action included three causes of action: deprivation of constitutionally protected liberty or property interests without due process of law; conspiracy to deprive constitutionally protected liberty or property interests without due process of law; and a pendent state law claim alleging that respondents ignored his evaluations, failed to give him a grievance procedure and denied him the benefits of his employment. The state action included three causes of action: breach of contract, breach of covenant of good faith and fair dealing, and negligent supervision. The federal court dismissed the federal action, concluding that UHVSRQGHQWVZHUHQRWREOLJDWHGWR

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The relevant portions of appellant's contract are as follows: The University and Community College System of Nevada Code requires that all terms and conditions of employment be specified in this document. Any other terms, understandings, promises, prior negotiations or representations, or conditions not specified in the REMARKS section above, or attached to and made a part of this contract, shall not be considered a part of the contract of employment. The University and Community College System of Nevada Code, the official document governing personnel matters and procedures concerning the professional staff, is a regularly published document and is available at each institution. The Code is incorporated herein and by this reference made a part of this contract. This contract is not binding or of any legal effect until duly executed by both the appointee and the appointing officer.

Ð116 Nev. 415, 419 (2000) LaForge v. State, University SystemÐ Ð respondents were not obligated to provide anything other than the written notice they provided to appellant, that respondents were under no obligation to renew appellant's contract, and that respondents were under no duty to heed appellant's evaluations or give him a grievance procedure. Approximately one year after dismissal of the federal action, respondents filed a motion for summary judgment in the state action. The state court granted the motion, concluding that issue preclusion prevented appellant from pursuing his claims in state court. The district court also granted respondents' motion for attorney's fees and costs incurred since the time appellant rejected respondents' offer of judgment. Appellant appeals the summary judgment and the award of attorney's fees. DISCUSSION I. Summary judgment [Headnote 1] “[A]n order granting summary judgment is reviewed de novo.” Executive Mgmt. v. Ticor Title Ins. Co., 114 Nev. 823, 834, 963 P.2d 465, 473 (1998) (citing Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989)). [Headnotes 2-5] Issue preclusion, or collateral estoppel, 2 is a proper basis for granting summary judgment. See Paradise Palms v. Paradise Homes, 89 Nev. 27, 505 P.2d 596 (1973). In Executive Management, we clarified the three-part test for issue preclusion as follows: “(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 in privity with a party to the prior litigation.” . . . [W]e hereafter construe this language as stating the applicable test for issue preclusion, rather than for res judicata which encompasses the rule of claim preclusion. Executive Management, 114 Nev. at 835-36, 963 P.2d at 473-74 __________ 2

To minimize confusion, this opinion exclusively uses the term “issue preclusion” in its analysis, although “issue preclusion” and “collateral estoppel” are interchangeable terms. See University of Nevada v. Tarkanian, 110 Nev. 581, 598-99, 879 P.2d 1180, 1192 (1994) (“Issue preclusion, or collateral estoppel, may be implicated when one or more of the parties to an earlier suit are involved in subsequent litigation on a different claim. Issues that were determined in the prior litigation arise in the later suit. If the common issue was actually decided and necessary to the judgment in the earlier suit, its relitigation will be precluded.”).

Ð116 Nev. 415, 420 (2000) LaForge v. State, University SystemÐ Ð (quoting University of Nevada v. Tarkanian, 110 Nev. 581, 598, 879 P.2d 1180, 1191 (1994)) (citing Bernhard v. Bank of America National Trust and Savings Ass'n, 122 P.2d 892 (Cal. 1942)). “ ‘ “The general rule of issue preclusion is that if an issue of fact or law was actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the parties.” ' ” Executive Management, 114 Nev. at 835, 963 P.2d at 473 (quoting Tarkanian, 110 Nev. at 599, 879 P.2d at 1191) (quoting Charles A. Wright, Law of Federal Courts § 100A, at 682 (4th ed. 1983)). “ ‘The doctrine provides that any issue that was actually and necessarily litigated in [case I] will be estopped from being relitigated in [case II].' ” Executive Management, 114 Nev. at 835, 963 P.2d at 473 (quoting Tarkanian, 110 Nev. at 599, 879 P.2d at 1191).

“Unlike claim preclusion, issue preclusion ‘does not apply to matters which could have been litigated but were not.' ” Executive Management, 114 Nev. at 835, 963 P.2d at 473 (quoting Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396, 399 (1974)) (footnote omitted). [Headnote 6] Appellant contends that issue preclusion does not apply to his state action because the issues in the federal case were not identical to the issues in his state action. Specifically, appellant contends that an issue from his state action, breach of employment contract by failure to follow personnel procedures contained in the Code and university and departmental bylaws (hereafter “Bylaws”), is not identical to the issue in the federal action of whether the Code and Bylaws created a protected property interest. Appellant concedes that the two issues may have overlapping analysis, but asserts that the issues are nevertheless not identical and therefore issue preclusion cannot apply. [Headnotes 7, 8] We conclude that appellant's contention lacks merit. Issue preclusion may apply “even though the causes of action are substantially different, if the same fact issue is presented.” Clark v. Clark, 80 Nev. 52, 56, 389 P.2d 69, 71 (1964). The district court correctly applied the doctrine of issue preclusion based on appellant's own concession that identical facts supported both the federal and state actions. Appellant again concedes on appeal that identical facts supported the federal and state actions. We note, as do respondents, that appellant uses the same arguments in this appeal as he used in response to the motion to dismiss the federal case. 3 Based on our review of the record, we conclude that, in HVVHQFHWKHFRPPRQLVVXHLQERWKWKHIHGHUDODQGVWDWH

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Appellant argued in his federal response and contends now on appeal the following: his argument that Code and Bylaw procedures were not followed when appellant was terminated; his argument that he was entitled to contract renewal if specific Code and Bylaw conditions were met; his argument

Ð116 Nev. 415, 421 (2000) LaForge v. State, University SystemÐ Ð essence, the common issue in both the federal and state actions is whether respondents, in terminating appellant's employment, were obligated to do anything else in addition to what they did. Because this common issue “ ‘ “was actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the parties.” ' ” Executive Management, 114 Nev. at 835, 963 P.2d at 473 (citations omitted). The federal court's minute order makes it clear that the federal court made a determination on that common issue. 4 The minute order stated as follows: We have found nothing in the case law, the Nevada Revised Statutes, the University Code, or the University By-Laws [sic] providing an untenured faculty member anything other than written notice before termination. . . . [Respondents] were under no obligation whatsoever to renew [appellant's] contract, made no promises to renew it, and could decide not to renew it even for petty and malicious reasons. .... . . . But [Respondents] were under no duty to heed his evaluations (for purposes of determining whether to renew his contract) or to give him a grievance procedure. Because the common issue of whether respondents did what they were obligated to do had already been litigated and determined in a final judgment of the federal court, we conclude that the district court did not err in granting

summary judgment on the grounds of issue preclusion. [Headnotes 9, 10] We note also that we agree with respondents' alternative contention that summary judgment could have been appropriately JUDQWHGRQWKHJURXQGVWKDWQRJHQXLQHLVVXHRIPDWHULDOIDFWUHPDLQHGDVWR

ERWK WKH EUHDFK RI FRQWUDFW FODLP DQG WKH EUHDFK RI WKH FRYHQDQWRIJRRGIDLWKDQGIDLU GHDOLQJFODLP __________ construing the contract (repeated almost word for word on appeal); his argument relying on section one of the Bylaws and Code section 1.3.4 (reproduced verbatim on appeal); his argument regarding the application of Code section 5.2.1 and Bylaws 41 and 43(a); his arguments regarding the issues of the timing of his evaluation, the alleged irregularity with the signatures on the notice of non-reappointment, and his description of the university's “regular administrative channels.” 4

Appellant contends that the federal court erred in making factual determinations in deciding a motion to dismiss and that it should have instead only made presumptions as to the truthfulness of the allegations. That may be an issue for federal appellate review of that case, but it is not an issue for this court to decide. Absent any indication in the record of a federal appeal and a subsequent reversal of the federal court's factual findings, we accept the federal judgment as valid, pursuant to the presumption that “a judgment is valid if it is regular on its face.” Charmicor, Inc. v. Bradshaw Finance Co., 92 Nev. 310, 313, 550 P.2d 413, 415 (1976) (citing Moore v. Cherry, 90 Nev. 390, 528 P.2d 1018 (1974)).

Ð116 Nev. 415, 422 (2000) LaForge v. State, University SystemÐ Ð granted on the grounds that no genuine issue of material fact remained as to both the breach of contract claim and the breach of the covenant of good faith and fair dealing claim. Respondents contend that there were no disputed facts material to either claim: appellant conceded that he was non-tenured, that the Code was made a part of his employment contract, and that he received notice of non-reappointment 369 days prior to his termination. We agree that the district court could have concluded as a matter of law, based on reading the plain language of the contract, which mentions the Code but makes no mention of the Bylaws, that the Code was incorporated into the terms of the contract but the Bylaws were not. 5 Because the application of the Bylaws was thus irrelevant, since they were not part of the contract, any disputed factual issues over Bylaw procedures were likewise irrelevant and would not preclude summary judgment. Summary judgment would thus have been proper because all factual issues concerning the Code alone, and not the Bylaws, were non-disputed: namely, Code section 5.9.1 provided that appellant, as a non-tenured faculty member, was entitled to receive at least 365 days' notice of termination; and Code section 5.7.2 provided that when appellant received this minimal notice under Code section 5.9.1, he was not entitled to the university's grievance procedures. Because there was no dispute that appellant received his notice 369 days prior to termination, the district court could have properly concluded that respondents fulfilled the contract. Hence, as a matter of law, respondents did not breach the contract and could not have breached the implied covenant of good faith and fair dealing. II. Attorney's fees [Headnote 11] Appellant contends that the district court abused its discretion in awarding attorney's fees to respondents, because respondents' RIIHU RI MXGJPHQW ZDV QRW UHDVRQDEOH LQ LWV WLPLQJ DQG DSSHOODQW V

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__________ 5

Appellant contends that the Bylaws were incorporated into his contract, citing Code section 1.3.4, which states, in part: “Systems Institutions shall adopt bylaws to set forth the institution's organizational structure and personnel policies.” This argument lacks merit because the employment contract provides only that the Code is incorporated into the contract, without making any mention of the Bylaws, and that “[a]ny other terms, understandings, promises, prior negotiations or representations, or conditions not specified in the REMARKS section above, or attached to and made a part of this contract, shall not be considered a part of the contract of employment.” Because the Bylaws are not expressly incorporated into the contract, we conclude that the oblique reference in Code section 1.3.4 does not incorporate the Bylaws into the contract. We note that Code section 3.4.2(c) states that departments may adopt bylaws implementing “additional standards for recommending academic faculty for [tenure] appointment.” However, because Code section 3.4.2 deals with appointment of tenure, not the decision to reappoint non-tenured faculty, it is inapplicable to this case.

Ð116 Nev. 415, 423 (2000) LaForge v. State, University SystemÐ Ð offer of judgment was not reasonable in its timing and appellant's rejection of the offer was not unreasonable or in bad faith. Appellant contends that respondents' failure to raise, or give notice of their intent to raise, the issue preclusion defense earlier unfairly deprived him of valuable information which could have impacted his decision of whether to accept respondents' offer. This failure to raise the issue preclusion defense earlier, appellant argues, is analogous to the withholding of information in Trustees, Carpenters v. Better Building Co., 101 Nev. 742, 746, 710 P.2d 1379, 1382 (1995). In Trustees, the district court refused to award attorney's fees under NRCP 68, concluding that the offeree's rejection of the offer of judgment was not unreasonable or in bad faith, because information essential to the offeree's decision to accept or reject an offer of judgment was available only to the offeror and was not disclosed to the offeree until nine months after the offer of judgment was made. Id. Similarly, appellant argues that his rejection of respondents' offer of judgment could not be unreasonable, because respondents at the time had not disclosed to him that they would raise the issue preclusion defense. Further, appellant argues that respondents' failure to give notice of the issue preclusion defense prior to making the offer makes their offer unreasonable in its timing, pointing out that respondents' extensive discovery costs and attorney's fees could have been avoided had respondents filed their motion for summary judgment soon after the federal case was dismissed, rather than a year later. [Headnote 12] In Beattie v. Thomas, 99 Nev. 579, 588, 668 P.2d 268, 274 (1983), we stated that the trial court should consider the following factors in exercising its discretion regarding an NRCP 68 award of attorney's fees: (1) whether the plaintiff's claim was brought in good faith; (2) whether the defendant's offer of judgment was reasonable and in good faith in both its timing and amount; (3) whether the plaintiff's decision to reject the offer and proceed to trial was grossly unreasonable or in bad faith; and (4) whether the fees sought by the offeror are reasonable and justified in amount. Where the district court properly considers these Beattie factors, the award of attorney's fees is discretionary and “will not be disturbed absent a clear abuse.” Bidart v. American Title, 103 Nev. 175, 179, 734 P.2d 732, 735 (1987) (citing Trustees, 101 Nev. at 746, 710 P.2d at 1382). Upon reviewing the record, we conclude that the district court did not abuse its discretion in applying the Beattie factors and DZDUGLQJDWWRUQH\ VIHHVWRUHVSRQGHQWV

Ð116 Nev. 415, 424 (2000) LaForge v. State, University SystemÐ Ð awarding attorney's fees to respondents. Respondents' failure to bring the issue preclusion defense earlier did not constitute a withholding of information that rendered appellant's rejection of the offer of judgment reasonable, because respondents did not actually withhold any information about the federal case from appellant. Appellant had just as much information about the federal dismissal as did respondents. Appellant's failure to anticipate respondents' defense does not amount to a withholding of information as occurred in Trustees. Therefore, we disagree that the district court abused its discretion in concluding that appellant unreasonably rejected the offer of judgment. Because the district court applied all of the Beattie factors without clear abuse of discretion, we uphold the award of attorney's fees. CONCLUSION The common issue in appellant's federal and state actions was simply whether respondents did what they were obligated to do, under the terms of appellant's employment contract. Because this common issue was litigated and determined in the federal action, the state district court properly granted summary judgment on the grounds of issue preclusion. The district court did not abuse its discretion in awarding attorney's fees to respondents, because the district court correctly applied the Beattie factors in making the award. Based on the foregoing, we affirm the district court's order granting summary judgment and the order awarding attorney's fees to respondents. ____________

Ð116 Nev. 424, 424 (2000) Lee v. GNLV Corp.Ð Ð Ð AHILIYA LEE, Widow of BOBBY LEE STURMS, aka BOBBY LEE, Deceased; AHILIYA LEE, as Guardian ad Litem for AARON CODY LEE, a Minor, Appellant, v. GNLV CORP., dba GOLDEN NUGGET HOTEL AND CASINO, Respondent. No. 33172 April 5, 2000

996 P.2d 416

Motion to dismiss an appeal from an order of the district court granting summary judgment in a wrongful death action. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge. Widow brought wrongful death action on behalf of herself and minor child against casino, seeking recovery for death of husband. The district court entered judgment in favor of casino, and widow appealed. Casino moved to dismiss appeal as premature. The supreme court held that summary judgment order was final and

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Ð116 Nev. 424, 425 (2000) Lee v. GNLV Corp.Ð Ð appealable judgment, even though trial court subsequently entered formal “judgment” awarding casino fees and costs. Motion denied. Law Offices of Gus W. Flangas, Las Vegas, for Appellant. Carolyn Ellsworth, Paula C. Gentile and Nikki D. Wilson-Thomas, Las Vegas, for Respondent.

1. Judgment. A “final judgment” is one that disposes of all the issues presented in the case and leaves nothing for the future consideration of the court except for post-judgment issues such as attorney's fees and costs; abrogating Alper v. Posin, 77 Nev. 328, 330, 363 P.2d 502, 503 (1961), Magee et al. v. Whitacre et al., 60 Nev. 202, 96 P.2d 201 (1939), Perkins v. Sierra Nevada S.M. Co., 10 Nev. 405 (1876). 2. Appeal and Error. A post-judgment order awarding attorney's fees and/or costs may be appealed as a special order made after final judgment. 3. Appeal and Error. Whether the district court's decision is entitled a “judgment” or an “order” is not dispositive in determining whether it may be appealed; what is dispositive is whether the decision is final. 4. Appeal and Error; Judgment. Summary judgment order entered in favor of casino in widow's wrongful death action was final and appealable, and thus widow's appeal from that judgment was not premature, even though trial court subsequently entered formal “judgment” awarding casino fees and costs.

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: Respondent GNLV Corporation has moved to dismiss the underlying appeal on the ground that the order appealed from was neither a final judgment nor an appealable order pursuant to NRAP 3A. We conclude that an order granting summary judgment, which disposes of all claims and parties before the district court, is final and appealable, and we therefore deny respondent's motion. Appellant Ahiliya Lee, individually and as guardian ad litem for Aaron Cody Lee, a minor, filed an action for wrongful death against GNLV on August 1, 1995. On July 27, 1998, GNLV moved for summary judgment. On September 10, 1998, the district court entered a written order granting the motion for summary judgment, thereby disposing of all claims and all parties in the action. Appellant filed her notice of appeal from this order on 2FWREHU Ð116 Nev. 424, 426 (2000) Lee v. GNLV Corp.Ð Ð October 9, 1998. Thereafter, on October 16, 1998, the district court entered a formal “judgment,” which directed entry of judgment in favor of GNLV in the sum of $876.60, the amount of GNLV's costs. The notice of entry of the judgment was served on October 19, 1998, and appellant did not file a second notice of appeal. GNLV has moved to dismiss this appeal, contending that an order granting summary judgment is not an appealable order because it is neither a “judgment” nor an order from which an appeal will lie pursuant to NRAP 3A(b). See NRAP 3A(b)(2) (specifically listing certain types of orders as appealable). According to GNLV, the district court's “judgment” filed on October 16, 1998, constituted the final judgment in this matter. Hence, GNLV maintains that appellant's notice of appeal was prematurely filed on October 9, 1998, and failed to vest jurisdiction in this court. See Rust v. Clark Cty. School District, 103 Nev. 686, 747 P.2d 1380 (1987) (noting that a premature notice of appeal is ineffective to vest jurisdiction in this court). We disagree. [Headnotes 1, 2] As an initial matter, we observe that a final judgment has been described as one “that disposes of the issues presented in the case, determines the costs, and leaves nothing for the future consideration of the court.” See, e.g., Alper v. Posin, 77 Nev. 328, 330, 363 P.2d 502, 503 (1961); Magee et al. v. Whitacre et al., 60 Nev. 202, 96 P.2d 201 (1939); Perkins v. Sierra Nevada S.M. Co., 10 Nev. 405 (1876). This definition suggests that an order of the district court is not a final judgment unless the court has also determined costs. 1 Such an interpretation, however, is inconsistent with NRCP 58(c), which specifies that the entry of a “judgment shall not be delayed for the taxing of costs.” To avoid any confusion regarding this matter, we clarify that a final judgment is one that disposes of all the issues presented in the case, and leaves nothing for the future consideration of the court, except for post-judgment issues such as attorney's fees and costs. A post-judgment order awarding attorney's fees and/or costs may be appealed as a special order made after final judgment,

pursuant to NRAP 3A(b)(2). See Smith v. Crown Financial Services, 111 Nev. 277, 280 n.2, 890 P.2d 769, 771 n.2 (1995). We now turn to the merits of the motion. Pursuant to NRAP 3A(b)(1), an appeal may be taken from a “final judgment in an action or proceeding.” “Judgment,” as the term is used in the Nevada Rules of Civil Procedure, includes “any order from which DQDSSHDOOLHV´ __________ 1

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Ð116 Nev. 424, 427 (2000) Lee v. GNLV Corp.Ð Ð an appeal lies.” NRCP 54(a) (emphasis added). Accordingly, this court has customarily adopted the view that the finality of a district court's order depends not so much on its label as an “order” or a “judgment,” but on what the “order” or “judgment” substantively accomplishes. This point is illustrated in Taylor v. Barringer, 75 Nev. 409, 344 P.2d 676 (1959). In Taylor, respondents argued that an order dismissing an action was not an appealable order as defined in former NRCP 72(b). 2 This court disagreed, stating as follows: True it is that Rule 72(b)(1) permits an appeal from a final judgment and says nothing about an order of dismissal; nevertheless, the formal order dismissing the action as to defendants . . . was signed by the judge and filed in the action and is in effect a final judgment although entitled “an order.” Taylor, 75 Nev. at 410, 344 P.2d at 676. We additionally recognized that “ ‘had the court here, after entering an order, gone on to enter a judgment, the latter would have been superfluous.' ” Id. at 410, 344 P.2d at 676-77 (quoting Markert v. Swift & Co., 173 F.2d 517, 519 (2d Cir. 1949)). More recently, in Valley Bank of Nevada v. Ginsburg, 110 Nev. 440, 445, 874 P.2d 729, 733 (1994), we reiterated that “[t]his court determines the finality of an order or judgment by looking to what the order or judgment actually does, not what it is called.” We thus found labels to be inconclusive when determining finality; instead, we recognized that this court has consistently determined the finality of an order or judgment by what it substantively accomplished. Id. at 444-45, 874 P.2d at 733 (citing State, Taxicab Authority v. Greenspun, 109 Nev. 1022, 1025, 862 P.2d 423, 425 (1993); Hallicrafters Co. v. Moore, 102 Nev. 526, 528-29, 728 P.2d 441, 443 (1986)); see also Bally's Grand Hotel v. Reeves, 112 Nev. 1487, 1488, 929 P.2d 936, 937 (1996) (“ ‘This court has consistently looked past labels in interpreting NRAP 3A(b)(1), and has instead taken a functional view of finality, which seeks to further the rule's main objective: promoting judicial economy by avoiding the specter of piecemeal appellate review.' ”) (quoting Ginsburg, 110 Nev. at 444, 874 P.2d at 733). [Headnotes 3, 4] Thus, whether the district court's decision is entitled a “judgment” or an “order” is not dispositive in determining whether it may be appealed; what is dispositive is whether the decision is final. Here, the order granting summary judgment, which adjudicated the rights and liabilities of all parties and disposed of all LVVXHV

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Excluding minor differences not relevant to this motion, former NRCP 72(b) is identical to current NRAP

3A.

Ð116 Nev. 424, 428 (2000) Lee v. GNLV Corp.Ð Ð

issues presented in the case, was final. In keeping with this reasoning, we have consistently considered appeals from summary judgment orders disposing of the entire action. 3 See, e.g., Farmers Insurance Group v. Stonik, 110 Nev. 64, 867 P.2d 389 (1994); Breithaupt v. USAA Property and Casualty, 110 Nev. 31, 867 P.2d 402 (1994); Bish v. Guaranty Nat'l Ins., 109 Nev. 133, 848 P.2d 1057 (1993). Accordingly, we conclude that the order granting summary judgment was a final, appealable judgment, and appellant's notice of appeal was timely. 4 We therefore deny the motion to dismiss this appeal.

____________

Ð116 Nev. 428, 428 (2000) University of Nevada, Reno v. StaceyÐ Ð Ð UNIVERSITY OF NEVADA, RENO, a State Agency; STATE OF NEVADA; BERNARD JONES and GEORGE TAYLOR, Appellants, v. PETER B. STACEY, Respondent. No. 31006 April 6, 2000

997 P.2d 812

Appeal from a judgment pursuant to a jury verdict in a breach of contract action. Second Judicial District Court, Washoe County; Mills Lane, Judge. Professor sued state university for breach of contract based on university's failure to grant him tenure. Following jury trial, the district court entered judgment for professor. University appealed. The supreme court held that: (1) denial of tenure was discretionary decision under contract that extended professor's probationary period, and therefore that decision did not breach contract; and (2) university was immune from suit because its actions were discretionary. Reversed. Hicks & Walt and Carol A. Cooke, Reno; Thomas J. Ray, General Counsel, and Brooke A. Nielsen, Assistant General Counsel, University and Community College System of Nevada, Reno, for Appellants. Richard C. Blower, Sparks, for Respondent. __________ 3

To the extent that Fitzharris v. Phillips, 74 Nev. 371, 333 P.2d 721 (1958), suggests that a summary judgment order is not a final judgment, we hereby disapprove of that portion of Fitzharris. 4

We caution litigants, however, that orders granting partial summary judgment, see NRCP 56, which are generally not appealable absent a certification of finality pursuant to NRCP 54(b), are to be distinguished from summary judgment orders that dispose of all issues and parties.

Ð116 Nev. 428, 429 (2000) University of Nevada, Reno v. StaceyÐ Ð 1. Appeal and Error. Summary judgment orders are reviewed de novo. 2. Judgment. Summary judgment is appropriate when a contract is clear and unambiguous, meaning that the contract is not reasonably susceptible to more than one interpretation. 3. Colleges and Universities. State university's denial of tenure to professor was discretionary decision and thus did not breach contract that extended professor's probationary period, even though teacher had consistently received excellent evaluations. Provisions incorporated from university bylaws described tenure as a privilege and vested final authority on granting tenure in Board of Regents, other bylaws and

administrative manual augmented criteria for tenure beyond the minimum eligibility requirements, and department in which professor served augmented those requirements further with its own bylaws. 4. Colleges and Universities. Supreme court is committed to protecting a state university's inherent right to govern itself within constitutional limitations. 5. Colleges and Universities. State university was statutorily immune from suit for breach of contract in connection with its failure to award tenure to professor whose probationary period was extended under that contract. Decision on granting tenure was a discretionary, as opposed to ministerial, act. NRS 41.032(2).

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: This is a case about tenure. Peter Stacey, a University of Nevada, Reno (“UNR”) professor, was denied tenure numerous times. Consequently, Stacey sued UNR for breach of contract, alleging that UNR was contractually obligated to grant him tenure because he had received excellent evaluations over the years. In response to Stacey's claims, UNR filed several motions seeking dismissal, alleging among other things that tenure was discretionary under Stacey's contract and that UNR was statutorily immune from suit pursuant to NRS 41.032(2). The district court denied UNR's motions, ruling that the jury should determine if UNR had breached its employment contract. After a three-day trial, the jury found that UNR had breached its contract with Stacey and awarded him $400,000.00 in damages. Thereafter, UNR filed this timely appeal contending, in relevant part, that Stacey had no contractual right to tenure. In reviewing the plain language of Stacey's contract, we agree with UNR that Stacey had no contractual right to tenure as a matter of law. Accordingly, we reverse the judgment below.

Ð116 Nev. 428, 430 (2000) University of Nevada, Reno v. StaceyÐ Ð STATEMENT OF THE FACTS In March 1990, UNR hired Stacey for the position of Full Professor of Conservation Biology in its Environmental and Resource Sciences Department of the College of Agriculture. UNR gave Stacey a twelve-month contract with three years credit toward tenure track. 1 With respect to attaining tenure, Stacey testified that when he accepted the job at UNR he believed that he was contractually entitled to tenure provided that he earned an “excellent” rating in teaching and a “satisfactory” rating in service. These ratings are the threshold criteria for tenure consideration set forth in the bylaws of the University and Community College System of Nevada (the “code”). The record reveals that Stacey received adequate performance evaluation ratings to qualify for tenure consideration. Consequently, Stacey applied for tenure every year from 1993-95, but was rejected each time despite receiving excellent ratings. Because Stacey failed to make tenure by his “up and out year,” UNR issued Stacey a terminable contract, which provided that UNR would employ Stacey through June 30, 1995, but was otherwise not renewable. Stacey signed the terminable contract “under protest,” because his 1994 tenure application was being reconsidered. Eventually, however, in an attempt to settle numerous grievances that Stacey had filed, UNR withdrew Stacey's terminable contract in a written agreement signed by the parties on February 28, 1995 (the “1995 agreement”). The 1995 agreement provided that UNR would withdraw Stacey's terminable contract and extend Stacey's employment until June 30, 1997, in exchange for Stacey's release of all claims against UNR. The 1995 agreement expressly stated that Stacey would not be “tenured by default,” but rather could apply for tenure under UNR's normal procedures during his new probationary period. These “normal procedures” for applying for tenure were contained in four written administrative documents that were incorporated by reference into Stacey's 1995 agreement and included the code, UNR's

bylaws, UNR's administrative manual, and UNR's College of Agriculture bylaws. Based on the 1995 agreement, Stacey again applied for tenure in 1996. Despite the fact that Stacey had received an excellent SHUIRUPDQFHUDWLQJ6WDFH\ VDSSOLFDWLRQIRUWHQXUHZDVGHQLHG __________ 1

Generally speaking, tenure track at UNR is six years. If the professor is not tenured by the sixth year (the “up and out year”), then UNR ordinarily issues that professor a terminable contract for the seventh year, giving that professor twelve-months' notice that his contract will not be renewed. Stacey testified that he knew that his “up and out year” was 1994-95 and that if he failed to attain tenure before 1995, UNR would provide him with a terminable contract notifying him that he would be terminated in twelve months.

Ð116 Nev. 428, 431 (2000) University of Nevada, Reno v. StaceyÐ Ð performance rating, Stacey's 1996 application for tenure was denied. Stacey filed for reconsideration of his 1996 application, but it also was denied. 2 Consequently, on July 19, 1996, Stacey filed a breach of contract action, alleging in relevant part that UNR had breached the 1995 agreement by denying Stacey's 1996 application for tenure. In response to Stacey's claims, UNR filed a motion for summary judgment, alleging among other things that under the 1995 agreement the grant of tenure was a subjective professional judgment, and thus its denial of Stacey's tenure application was not a breach of contract. The district court, however, denied UNR's motion for summary judgment on Stacey's 1996 breach of contract claim, finding that Stacey had raised triable issues of material fact as to whether UNR breached its contract with him. After a three-day trial on Stacey's claim, the jury found that UNR had breached its contract with Stacey, awarded him $400,000.00 in damages, and the district court entered the judgment in accordance with the jury's verdict. Thereafter, UNR filed this timely appeal alleging, in relevant part, that the district court erred in denying its motion for summary judgment. DISCUSSION [Headnotes 1, 2] Summary judgment orders are reviewed de novo. See Day v. Zubel, 112 Nev. 972, 977, 922 P.2d 536, 539 (1996). Summary judgment is appropriate when a contract is clear and unambiguous, meaning that the contract is not reasonably susceptible to more than one interpretation. See Margrave v. Dermody Properties, 110 Nev. 824, 827, 878 P.2d 291, 293 (1994); Chwialkowski v. Sachs, 108 Nev. 404, 406, 834 P.2d 405, 406 (1992) (holding that summary judgment was proper because an unambiguous contract can be construed as a matter of law from the language of the document). [Headnote 3] In the instant matter, UNR contends that the district court erred in denying its motion for summary judgment of Stacey's breach of contract action because UNR's decision to grant Stacey tenure was discretionary under the 1995 agreement as a matter of law. 3 __________ 2

Eventually, because Stacey had not attained tenure within the time allotted under the 1995 agreement, Stacey lost his job on June 30, 1997. 3

UNR asserts numerous other contentions on appeal, including that the district court committed reversible error in instructing the jury, in admitting inadmissible evidence, and in making improper comments. Because we conclude that summary judgment was proper in this matter, we need not and do not reach these other issues.

Ð116 Nev. 428, 432 (2000) University of Nevada, Reno v. StaceyÐ Ð We agree with UNR's contention that summary judgment was mandated in this instance. The contract before us is unambiguous and susceptible to only one interpretation—UNR's decision to grant Stacey tenure was completely discretionary. The plain language of Stacey's contract is replete with written provisions concerning the discretionary nature of UNR's decision to grant tenure. These provisions are set forth in four separate written documents: (1) the code, (2) the UNR bylaws, (3) the UNR administrative manual, and (4) the UNR College of Agriculture bylaws. 4

First, the code, particularly chapter three, sets forth the procedures involved in the tenure application process. For example, section 3.4.2(a) sets forth the minimum standards for eligibility for tenure consideration, specifically an “excellent” rating in teaching and a “satisfactory rating” in service. Section three also describes tenure as a privilege: 3.1.2 Conditions on Tenure. The major objectives of tenure are to provide a faculty committed to excellence and to provide a substantial degree of security to those persons who have exhibited excellent abilities, sufficient to convince the University of Nevada community that their expected services and performances in the future justify the privileges afforded by tenure. (Emphasis added.) More importantly, section 3.4.1 of the code provides that the Board of Regents has final authority in granting tenure and requires a majority vote from a quorum of the Board of Regents. Second, the UNR bylaws augment the criteria for tenure. Specifically, sections 40, 41, 42, and 45 prescribe that tenure evaluations are made on the basis of professional responsibilities according to the missions and priorities of the applicant's department. Further, such decisions require peer review, including a recommendation from the Academic Faculty Promotion and Tenure Committee. Third, UNR's administrative manual augments the code with respect to tenure. Section 2,723 states explicitly that tenure is not automatic: It should be remembered that granting of tenure and of promotion to a higher rank is not to be expected or made autoPDWLFDOO\ __________ 4

These administrative bylaws and rules were incorporated by reference into Stacey's 1995 agreement that explicitly stated that Stacey would not be “tenured by default,” but could apply for tenure under UNR's “normal procedures.” The “normal procedures” for eligibility for tenure are set forth in section 3.4.2 of the code, which authorizes each university, its administrative units, and its departments to provide additional written criteria for attaining tenure.

Ð116 Nev. 428, 433 (2000) University of Nevada, Reno v. StaceyÐ Ð matically. Mediocrity and substandard performance must not be regarded in such a way as to permanently perpetuate a faculty member of less than superior caliber. Tenure is granted only in cases of definite merit and absence of any doubt that the individual be appointed for life. . . . (Emphasis added.) Moreover, the manual, section 2,721, sets forth numerous criteria in recommending tenure, including effective teaching skills, ability to communicate with students, evidence of continued professional growth, a record of creative research, indication of respect and esteem of colleagues, and respect for participation in community service. Fourth, the College of Agriculture augments the code in its bylaws. Part IV of the bylaws provides for the establishment of a peer review committee that is required to review all tenure applications and make an

independent recommendation. We cannot reconcile the aforementioned discretionary provisions of Stacey's contract with his theory that he was contractually entitled to tenure, because so doing would render numerous contractual provisions meaningless. See Musser v. Bank of America, 114 Nev. 945, 950, 964 P.2d 51, 54 (1998) (“[C]ontracts should be construed so as to avoid rendering portions of them superfluous.”); Coblentz v. Union Welfare Fund, 112 Nev. 1161, 1169, 925 P.2d 496, 501 (1996). Indeed, the provisions of Stacey's contract negate any theory that tenure was automatic, and instead, provide that the grant of tenure is a privilege and a decision of such import that numerous criteria are set forth, committees are formed, and votes are taken. Because the contractual provisions concerning tenure clearly require the exercise of discretion and subjective decision making, we agree with UNR that it was entitled to summary judgment because its denial of Stacey's tenure application was not, as a matter of law, a breach of contract. We therefore conclude, based on the aforementioned contractual provisions, that tenure is a multidimensional, subjective, decision-making process where numerous traits and work habits of a professor are considered. Accordingly, the district court erred in denying summary judgment, as there was no triable issue of material fact because UNR's denial of tenure was discretionary under the contract—not a breach of contract. Although the plain meaning of the language of Stacey's contract controls our analysis, we are not unaware of the long-standing precedent recognizing that faculty appointment at the university level is an area poorly suited for judicial supervision, and thus one where judicial restraint must be exercised. See Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980); Faro v. New York Univ., 502 F.2d 1229 (2d Cir. 1974). Indeed, other jurisGLFWLRQV KDYH KHOG WKDW D XQLYHUVLW\ V GHFLVLRQ WR JUDQW WHQXUH LV D GLVFUHWLRQDU\

H[HUFLVHRIMXGJPHQWWKDWVKRXOGQRWEHDFWLRQDEOHXQOHVVDUELWUDU\RUXQFRQVWLWXWLRQDO Ð116 Nev. 428, 434 (2000) University of Nevada, Reno v. StaceyÐ Ð dictions have held that a university's decision to grant tenure is a discretionary exercise of judgment that should not be actionable unless arbitrary or unconstitutional. See Harrison v. Goldstein, 611 N.Y.S.2d 623 (N.Y. App. Div. 1994); Coe v. Board of Regents, 409 N.W.2d 166 (Wis. Ct. App. 1987); Goodisman v. Lytle, 724 F.2d 818 (9th Cir. 1984). [Headnote 4] This judicial reluctance to intrude upon university decisions is imbedded in the deeply rooted principles of academic freedom. See Kunda, 621 F.2d at 547. “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.” EEOC v. University of Notre Dame Du Lac, 715 F.2d 331, 335 (7th Cir. 1983). This special concern arises from academic freedom's tremendous value to all of society, as it fosters an environment of experimentation, invention, creation, and the robust exchange of ideas. See Sweezey v. New Hampshire, 354 U.S. 234, 263 (1956) (Frankfurter, J., concurring); University of Notre Dame, 715 F.2d at 335; Kunda, 621 F.2d at 547. Because of the importance of academic freedom to our society, we hereby reaffirm our commitment to protect a university's inherent right to govern itself within constitutional limitations. [Headnote 5] As an aside, we note that we also agree with UNR's contention that it was immune from suit because its actions were discretionary. NRS 41.032(2) provides that state agencies performing discretionary acts are immune from suit. We have previously defined a “discretionary act” as an act that requires a decision requiring personal deliberation and judgment. See Parker v. Mineral County, 102 Nev. 593, 595, 729 P.2d 491, 493 (1986). For example, this court has held that discretionary acts for which a government entity was immune from suit included a decision not to respond to a citizen's report of a person in distress and a decision to construct a parking lot, freeway, or crosswalk. See id.; see also Foley v. City of Reno, 100 Nev. 307, 309, 680 P.2d 975, 976 (1984); Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d 94 (1970); State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972). In contrast, where an act is operational or ministerial rather than discretionary, this court has held that NRS

41.032(2) provides no statutory immunity, and thus an entity has a duty to use due care. For example, once the discretionary decision to build a freeway is made, the state must use due care in the ministerial act of the freeway's construction. See Foley, 100 Nev. at 309, 680 P.2d at 976. We see nothing ministerial, however, in a university's subjective decision to grant one of its professors lifetime employPHQW

Ð116 Nev. 428, 435 (2000) University of Nevada, Reno v. StaceyÐ Ð ment. Therefore, in light of this court's holding in Foley, we conclude that UNR is statutorily immune from suit because its decision to grant tenure was a discretionary act, rather than an operational or ministerial function. CONCLUSION We hold that the district court erred in denying UNR's motion for summary judgment because tenure was discretionary under Stacey's contract. Accordingly, we reverse the judgment in favor of Stacey. ____________

Ð116 Nev. 435, 435 (2000) Fullerton v. StateÐ Ð Ð ROBERT FULLERTON, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32295 CORINNE F. BENNETT, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32320 April 6, 2000

997 P.2d 807

Consolidated appeals from judgments of conviction, pursuant to jury verdicts, of twenty-one counts for each appellant of sale of unregistered security. Second Judicial District Court, Washoe County; Deborah A. Agosti, Judge. Defendants charged with violations of Uniform Securities Act petitioned for writs of habeas corpus and moved to dismiss the counts against them. The district court granted the petitions and motion, and appeal was taken. The supreme court, 112 Nev. 1084, 924 P.2d 702 (1996), reversed and remanded. After a jury trial on remand, defendants were convicted, in the district court of twenty-one counts each of sale of unregistered securities. Defendants appealed. The supreme court held that: (1) sale of unregistered securities is a general intent crime, (2) sales for which improper commissions were not paid were exempt from registration, and (3) trial court's restitution order was proper. Affirmed in part, reversed in part and remanded. Rehearing granted; opinion clarified; remanded. 116 Nev. 906, 8 P.3d 848 (2000). Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender, Washoe County, for Appellant Fullerton. Karla K. Butko, Reno, for Appellant Bennett.

Ð116 Nev. 435, 436 (2000) Fullerton v. StateÐ Ð Frankie Sue Del Papa, Attorney General, and Grenville T. Pridham, Deputy Attorney General, Carson City, for Respondent. 1. Securities Regulation. Sale of unregistered securities, in violation of the Uniform Securities Act, is a general intent crime. NRS 90.460. 2. Securities Regulation. The improper commissions paid for four stock sales, which caused the loss of the Uniform Securities Act registration exemption for those sales, did not cause the loss of the registration exemption for all previous sales of the stock issue. NRS 90.530(11)(c). 3. Securities Regulation. Evidence that defendant had signed two checks delineated as finder's fees payable to the person who sold the stock, and that defendant had delivered a stock certificate to an investor, supported finding that defendant sold unregistered securities, in violation of Uniform Securities Act. NRS 90.460, 90.530(11)(c). 4. Securities Regulation. Defendants who sold unregistered securities violated a statute, rather than a regulation, and thus, they could not invoke provision of Uniform Securities Act prohibiting imprisonment if the defendant proves lack of knowledge of the regulation or order that was violated. NRS 90.460, 90.650(1)(a), (2), 193.130. 5. Securities Regulation. Trial court's restitution order, which allegedly awarded double recovery to victims of sale of unregistered securities, was proper, in light of Uniform Securities Act's mandatory language stating that “[i]n addition to any other penalty, the court shall order the person to pay restitution.” NRS 90.650(1). 6. Criminal Law. Defendants did not preserve for appellate review their claim that state improperly changed its theory of prosecution without notice, where defendants did not object in the trial court to state's deletion of considerable portion of indictment on day of trial.

Before Rose, C. J., Young and Leavitt, JJ. OPINION Per Curiam: Appellants were charged with violations of Nevada's Uniform Securities Act. Appellants were convicted, pursuant to a jury trial, and now appeal. Among other issues raised in this appeal, appellants contend that a jury instruction erroneously defined a violation of the Nevada Uniform Securities Act as a general intent crime, that the state presented insufficient evidence to sustain their convictions, and that the district court erred in the amount of probation it imposed. We conclude that the district court did not err in giving a jury instruction which defined a violation of NRS 90.460 as a general intent crime. We conclude that insuffiFLHQW

HYLGHQFHVXSSRUWVDSSHOODQWV FRQYLFWLRQVRQVHYHQWHHQFRXQWV Ð116 Nev. 435, 437 (2000) Fullerton v. StateÐ Ð cient evidence supports appellants' convictions on seventeen counts, but sufficient evidence does support the convictions on four counts. We also conclude that the district court erred in the amount of probation it imposed. FACTS In 1979, appellant Fullerton invented the “zip nut,” a device designed for quick and easy attachment to a bolt. In connection with this invention, Fullerton formed a corporation, First Phoenix, Inc. (“First Phoenix”), for which he allegedly solicited investments in Nevada. The state filed an indictment charging Fullerton and Bennett with numerous violations of Nevada's Uniform Securities Act. 1 Bennett filed a pre-trial motion to sever her case from Fullerton's, which the district court denied. The day of trial, the state deleted from the grand jury indictment all counts against appellants except twenty-one counts each of sale of unregistered securities in violation of NRS 90.460. 2 At trial, the state presented evidence of four checks signed by Fullerton to Joel McVickers. The checks were purportedly commission checks for McVicker's sale of First Phoenix stock, pursuant to a verbal agreement between the two wherein McVickers was to receive a five percent commission for selling First Phoenix stock.

McVickers testified that he was not licensed to sell securities in the State of Nevada. The state also presented evidence of two checks signed by Bennett to McVickers, both delineated as finder's fees, although the checks contained no names which could relate the checks to a specific investor. The state argued that the payment of the commissions vitiated First Phoenix's exemption from the registration requirements of NRS 90.460. The state presented evidence of other investors who bought First Phoenix stock, but no other evidence of commissions or finder's fees to McVickers was presented. Fullerton testified that he did not intend to violate NRS 90.460 when he paid the commissions to McVickers, and that he did not know that payment of a commission to McVickers would cause him to lose his exemption to the registration requirements of NRS 90.460. Evidence was presented that Bennett was listed as the SUHVLGHQW

RI)LUVW3KRHQL[DQG)XOOHUWRQZDVOLVWHGDVVHFUHWDU\WUHDVXUHU __________ 1

This case has already generated an opinion from this court, Sheriff v. Fullerton, 112 Nev. 1084, 924 P.2d 702 (1996). The civil case filed by the state against appellants over the alleged securities violations also generated an opinion from this court, Fullerton v. District Court, 111 Nev. 391, 892 P.2d 935 (1995). 2

NRS 90.460 makes it “unlawful for a person to offer to sell or sell any security in this state unless the security is registered or the security or transaction is exempt under this chapter.”

Ð116 Nev. 435, 438 (2000) Fullerton v. StateÐ Ð president of First Phoenix and Fullerton was listed as secretary/treasurer, but Fullerton testified that he controlled the corporation and that Bennett performed mostly clerical duties, such as filling out stock certificates and signing them as president of the corporation. Despite the evidence of Bennett's minimal involvement in First Phoenix and with most of the investors, the state presented the two finder's fee checks signed by Bennett to McVickers and evidence that Bennett delivered at least one stock certificate to an investor. Before closing arguments, Bennett made another motion to sever, which was denied. During settling of the jury instructions, appellants objected to instruction eleven, 3

arguing that the instruction's definition of

4

“willfully” improperly made violations of NRS 90.460 a general intent crime. The district court overruled the objection and the instruction was given. During deliberation, the jury sent out two questions concerning when, if at all, the loss of the exemption to the registration requirements of NRS 90.460 occurred and if the transactions prior to the loss of the exemption were not violations of NRS 90.460. Bennett requested that the district court answer the question by responding that the prior sales were exempt. The state requested that the district court respond that the prior sales were not exempt. The district court sent back a reply stating that the questions were factual issues for the jury to decide. Bennett objected to this answer, but Fullerton did not. The jury found both appellants guilty on all counts. After the verdict, Bennett made motions to set aside the judgment, for judgment of acquittal, and for a new trial, all of which the district court denied. The district court imposed on each appellant two years in prison for counts I through VII, to run consecutively, and two years in prison for the remaining counts, to run concurrently. The district court suspended all prison time and placed appellants on probation for a total of thirty-five years each, with probation to end sooner if the restitution was paid. Appellants were ordered WRSD\UHVWLWXWLRQMRLQWO\DQGVHYHUDOO\LQWKHDPRXQWRI

WRYDULRXVLQYHVWRUVLQYDU\LQJDPRXQWV __________ 3

4

Instruction eleven stated as follows: 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.

The term “willfully” does not appear in NRS 90.460, but in NRS 90.650, which sets forth the criminal penalties for any violation of NRS chapter 90. NRS 90.650(1)(a) states that “[a] person who willfully violates . .

. [a] provision of this chapter . . . is guilty of a category C felony and shall be punished as provided in NRS 193.130, or by a fine of not more than $100,000, or by both fine and the punishment provided in NRS 193.130, for each violation.”

Ð116 Nev. 435, 439 (2000) Fullerton v. StateÐ Ð to pay restitution jointly and severally in the amount of $130,500 to various investors in varying amounts. DISCUSSION [Headnote 1] Appellants contend that jury instruction eleven erroneously defined “willfully,” thereby improperly making the violation of NRS 90.460 a general, rather than a specific, intent crime. Despite the extensive arguments advanced by appellants in the briefs and at oral argument, we conclude that the instruction was proper. We have previously approved the instruction's definition of “willfully” in the context of general intent crimes, namely child abuse and neglect. See Rice v. State, 113 Nev. 1300, 949 P.2d 262 (1997); Childers v. State, 100 Nev. 280, 680 P.2d 598 (1984). Further, our conclusion is in conformity with the majority of federal and state courts that have considered the issue in reviewing the Uniform Securities Act. See Mueller v. Sullivan, 141 F.3d 1232, 1233-34 (7th Cir. 1998); People v. Clem, 114 Cal. Rptr. 359, 361 (Ct. App. 1974); State v. Dumke, 901 S.W.2d 100, 103 (Mo. Ct. App. 1995); State v. Irons, 574 N.W.2d 144, 149 (Neb. 1998); State v. Mueller, 549 N.W.2d 455, 464 (Wis. Ct. App. 1996). Because we conclude that NRS 90.460 is a general intent crime, the instruction was not error. Appellants contend that insufficient evidence was presented at trial to support their convictions for sale of unregistered securities. Our standard of review 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.” Hutchins v. State, 110 Nev. 103, 107-08, 867 P.2d 1136, 1139 (1994) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). NRS 90.460 states that “[i]t is unlawful for a person to offer to sell or sell any security in this state unless the security is registered or the security or transaction is exempt under this chapter.” NRS 90.530(11)(c) provides that “a transaction pursuant to an offer to sell securities of an issuer” is exempt from the requirements of NRS 90.460 if “[n]o commission or other similar compensation is paid or given, directly or indirectly, to a person, other than a broker-dealer licensed or not required to be licensed under this chapter, for soliciting a prospective purchaser in this state.” [Headnote 2] Fullerton contends that the only evidence presented of commissions paid by him for the sale of unregistered security dealt with counts III, VI, VIII and IX. He contends that because the state presented no evidence of commissions paid in connection ZLWK WKH WUDQVDFWLRQV DOOHJHG LQ WKH UHPDLQLQJ VHYHQWHHQ

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Ð116 Nev. 435, 440 (2000) Fullerton v. StateÐ Ð with the transactions alleged in the remaining seventeen counts, those counts were not proven beyond a reasonable doubt. We agree. Because payment of a commission is a material element of the exemption to NRS 90.460 contained in NRS 90.530(11)(c), we conclude that the evidence was insufficient to convict Fullerton on all counts except III, VI, VIII and IX, even when viewed “in the light most favorable to the prosecution.” Hutchins, 110 Nev. at 107, 867 P.2d at 1139. In so holding, we expressly reject the state's contention that the improper commissions on four stock sales vitiates the exemption covering all previous sales in the stock issue.

[Headnote 3] Bennett contends that insufficient evidence supports her conviction on all twenty-one counts. While we agree that the evidence in the record shows passive involvement with sale of the securities, for the most part, we conclude that there is sufficient evidence, such as the evidence of the two finder's fees checks and the evidence of her delivery of a stock certificate to an investor, for a rational trier of fact to conclude enough involvement by Bennett to implicate her with Fullerton. We therefore affirm Bennett's convictions on counts III, VI, VIII and IX. We conclude that the evidence on the remaining counts is insufficient to support a conviction. Hutchins, 110 Nev. at 107-08, 867 P.2d at 1139. Bennett contends that the district court erred in denying her motions to sever. We conclude that this contention lacks merit because Bennett has failed to “carry the heavy burden of showing that the district court abused its discretion” in denying the motions. Amen v. State, 106 Nev. 749, 756, 801 P.2d 1354, 1359 (1990) (stating that the “decision to sever is left to the discretion of the trial court”). Appellants and the state agree that the district court erred in sentencing appellants to more than five years of probation. See NRS 176A.500 (formerly NRS 176.215). We remand the probation sentence to the district court for correction in conformity with NRS 176A.500(1)(b), which provides a five-year maximum. See NRS 176.555 (providing that “[t]he court may correct an illegal sentence at any time”); Wicker v. State, 111 Nev. 43, 888 P.2d 918 (1995). [Headnote 4] Appellants also contend that the district court erred in sentencing them to the suspended prison time, because prison was not an option under NRS 90.650(2), which states that “[a] person convicted of violating a regulation or order under this chapter may be fined, but must not be imprisoned, if the person proves lack of NQRZOHGJH

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Ð116 Nev. 435, 441 (2000) Fullerton v. StateÐ Ð knowledge of the regulation or order.” We find this argument unpersuasive because appellants were convicted of violating a provision of a statute, not a regulation or order. NRS 90.650(1)(a) states that “[a] person who willfully violates . . . [a] provision of this chapter . . . is guilty of a category C felony and shall be punished as provided in NRS 193.130, or by a fine of not more than $100,000, or by both fine and the punishment provided in NRS 193.130, for each violation.” NRS 193.130(2)(c) provides that a person convicted of a category C felony shall be sentenced “to imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 5 years.” Both appellants contend that the district court erred in answering the jury's questions, although only Bennett made an objection. In light of our decision today, we need not address this issue because the district court's response could have only affected the jury's deliberation regarding the counts which we reverse. [Headnote 5] Appellants contend that the district court's order of restitution is error because it improperly awarded double recovery to the alleged victims. We conclude that the district court did not err, because the mandatory language of NRS 90.650(1) states that, “[i]n addition to any other penalty, the court shall order the person to pay restitution.” Nevertheless, in light of our partial reversal of appellants' convictions, restitution should only be imposed on the four counts which we affirm. We therefore remand the issue to the district court for a recalculation of the restitution amount. [Headnote 6] Finally, we conclude that the rest of appellants' contentions lack merit. Appellants did not object to the state's deletion of a considerable portion of the indictment on the day of trial and therefore the issue of whether the state improperly changed its theory of prosecution without notice has not been preserved for appellate consideration. See Minton v. Board of Medical Examiners, 110 Nev. 1060, 1086, 881 P.2d 1339, 1357 (1994). We find

nothing in the record to support appellants' contention that cumulative error warrants reversal of the remaining four counts. We likewise conclude that appellants' remaining contentions lack merit. Accordingly, the judgment on the jury verdict is affirmed in part and reversed in part. We remand this case to the district court for proceedings consistent with this opinion. 5 __________ 5

The Honorable Deborah A. Agosti, Justice, voluntarily recused herself from the decision of this matter. ____________

Ð116 Nev. 442, 442 (2000) Walker v. StateÐ Ð CHERYL ANN WALKER, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32699 April 6, 2000

997 P.2d 803

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree murder. Second Judicial District Court, Washoe County; Connie J. Steinheimer, Judge. Defendant was convicted in the district court of one count of first-degree murder, and she appealed. The supreme court held that testimony of victim's adult son that defendant had threatened victim with firearm on two prior occasions, six and ten years prior to shooting, was both irrelevant and more prejudicial than probative. Reversed and remanded. [Rehearing denied September 11, 2000] Michael R. Specchio, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe County, for Respondent. 1. Criminal Law. A trial court deciding whether to admit evidence of the defendant's prior bad acts under the statutory exception for evidence relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident must conduct a Petrocelli hearing on the matter outside the presence of the jury and on the record to determine whether: (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. NRS 48.045(2). 2. Criminal Law. The trial court's determination of whether to admit or exclude prior bad acts evidence will not be disturbed on appeal absent manifest error. 3. Homicide. Testimony of victim's adult son that defendant had threatened victim with firearm on two prior occasions, six and ten years prior to shooting, was not relevant in murder prosecution, where prior incidents did not involve defendant firing weapon at victim. NRS 48.045(2). 4. Homicide. Testimony of victim's adult son that defendant had threatened victim with firearm on two prior occasions, six and ten years prior to shooting, was more prejudicial than probative, and thus was not admissible in murder prosecution. NRS 48.045(2).

Before Young, Agosti and Leavitt, JJ.

Ð116 Nev. 442, 443 (2000) Walker v. StateÐ Ð OPINION Per Curiam: During the course of an argument in their Reno mobile home, Cheryl Ann Walker (“Cheryl”) shot and killed her husband Anthony Walker (“Anthony”). At Cheryl's trial for first-degree murder, Anthony's son was allowed to testify during the State's rebuttal that Cheryl had twice before threatened Anthony with a firearm. However, these events occurred six and ten years prior to Anthony's death and did not involve Cheryl's firing or attempting to fire the weapon at Anthony. At issue here is whether the evidence of these prior bad acts was properly admitted. We conclude that the district court erred in admitting the prior bad act evidence and remand for a new trial. FACTS In the early morning hours of September 19, 1997, Cheryl and her husband Anthony were heard arguing outside of their mobile home in Reno. Eventually, they proceeded inside, and their argument continued. At around 1:30 a.m., a gunshot was heard, and the argument ended. Cheryl fled the scene and eventually went to a local bar. There, she did not appear drunk or upset, but did tell the bartender that she had been arguing that night with her husband about money. Cheryl told the bartender that she had waited until Anthony fell asleep, taken some money, and left. The next morning, the bartender received a phone call from Cheryl, who was now quite upset and told him that she had just found her husband lying dead on the floor of their trailer. Cheryl then called the police. An autopsy revealed that Anthony died of a shotgun wound to the head. At first, Cheryl maintained that she had not killed Anthony, but had left the trailer at around 9:30 p.m. to spend the night with a friend after arguing with Anthony. However, in a videotaped interview given with Cheryl's consent later that day, Cheryl retracted her earlier testimony and confessed to her personal involvement with the murder. In the interview, Cheryl made the following statements regarding the shooting. After returning to the trailer later that evening, Cheryl and Anthony continued their earlier argument. Inside the trailer, Anthony began striking Cheryl, but she was able to get away. As the argument continued, Anthony, who was now sitting down, began to reach for a flare gun, which was capable of firing shotgun shells and was lying on a nearby table. Cheryl, howHYHUJUDEEHGWKHIODUJXQ

Ð116 Nev. 442, 444 (2000) Walker v. StateÐ Ð ever, grabbed the flare gun, yelled for Anthony to get out, and stated that she had been kicked out for the last time. Anthony responded that she had better kill him or he would kill her. Cheryl then threatened, “Look, I'm gonna count to ten, and you better fucking leave or I'll shoot you.” After Anthony moved forward toward her, Cheryl fired the gun, killing Anthony. After realizing what she had done, Cheryl fled in her truck and at some point threw the flare gun out of the vehicle. When asked by the police if she had acted in self-defense, Cheryl stated that she did not know and just thought that Anthony was going to reach for the gun and kill her. Cheryl also stated that she did not realize she had pulled the trigger. At Cheryl's trial for first-degree murder in June 1998, and at the end of the State's case-in-chief, the court conducted a brief Petrocelli hearing outside of the jury's presence to determine whether the State could introduce certain evidence of Cheryl's prior bad acts. One of the State's proffered witnesses was Anthony Christopher Walker, Jr. (“Anthony Jr.”), Anthony's nineteen-year-old son, who testified that he had seen Cheryl threaten to kill Anthony on two separate occasions.

The first incident was approximately ten years before Anthony's death and occurred at a picnic that Anthony Jr. was attending with Cheryl and Anthony. 1 Cheryl had slapped Anthony Jr. for not eating all of his food, which in turn angered Anthony. In response, Cheryl retrieved a pistol from their truck, pointed it directly at Anthony from about two feet away, and said, to the best of Anthony Jr.'s recollection, that she would kill Anthony. The second incident occurred six years earlier and involved a disagreement between Cheryl and Anthony about Anthony's disciplining of Cheryl's youngest son. 2 Cheryl became angry and pointed a rifle at Anthony, who was sitting on a couch, and said not to come closer or she would shoot and that she wanted money to give to her kids. After noting that the State had met its initial burden of showing the witness's reliability by clear and convincing evidence, the district court ruled that the evidence was admissible “once the issue of self-defense and lack of intent and the common course of conduct between these two people become at issue.” Further, the

GLVWULFWFRXUWVWDWHGWKDWWKHSULRUDFWVZHUHQRWVRWHQXRXVLQDJHWRSUHFOXGHDGPLVVLRQ __________ 1

Anthony Jr. testified that this first incident occurred eleven years before trial. Taking into account the nine months between Anthony's murder and trial, the relevant age of the incident is roughly ten years. 2

Similar to the first incident, Anthony Jr. testified that the second incident occurred seven years before trial. Taking into account the nine months between Anthony's murder and trial, the relevant age of the incident is roughly six years.

Ð116 Nev. 442, 445 (2000) Walker v. StateÐ Ð district court stated that the prior acts were not so tenuous in age to preclude admission. Cheryl then presented her defense. Cheryl offered testimony from witnesses who had previously seen Anthony hit Cheryl or who had noticed injuries to Cheryl that suggested abuse. Additionally, Cheryl offered expert testimony that she was suffering from battered woman syndrome at the time she shot Anthony, a condition that occurs after a spouse is subjected to continuous psychological or physical abuse and that may lead an abused spouse to perceive imminent danger or death even if no actual threat exists. After the expert testified, Cheryl elected not to testify and the defense rested. For its rebuttal case, in addition to Anthony Jr.'s aforementioned testimony, the State presented testimony from a neighbor that Cheryl had struck Anthony on several occasions. The State also called its own psychiatrist to testify that he disagreed with Cheryl's expert's conclusion regarding battered woman syndrome, noting that the condition was not recognized in the psychiatric community as a treatable disease. On the charge of first-degree murder, the jury found Cheryl guilty. She was then sentenced to a term of fifty years in the Nevada State Prison with a consecutive fifty-year sentence for the use of a deadly weapon. Cheryl now appeals on the grounds that Anthony Jr.'s testimony was improperly admitted. DISCUSSION Cheryl contends that the district court erred in admitting Anthony Jr.'s rebuttal testimony that Cheryl had twice threatened Anthony in the past with a firearm. 3 Specifically, Cheryl argues that the testimony was not relevant to Cheryl's intent at the time of the murder and constituted inadmissible evidence of Cheryl's prior bad acts that was more prejudicial than probative. We agree. We have often stated that the use of uncharged bad acts to convict a defendant is heavily disfavored in our criminal justice system, because such bad acts are often irrelevant or prejudicial and force the accused to defend against vague and unsubstantiated charges. See Berner v. State, 104 Nev. 695, 696-97, 765 P.2d 1144, 1145-46 (1988). The principal concern with admitting such acts is that the jury will be unduly influenced by the evidence, and thus convict the accused because the jury believes the accused is a bad person. See id. __________

3

Cheryl asserts numerous other contentions on appeal, including that the district court's instructions on the elements of first-degree murder and on the reasonable doubt standard were improper. Because we conclude that the admission of Anthony Jr.'s testimony regarding Cheryl's prior bad acts is reversible error, we need not and do not reach these other issues.

Ð116 Nev. 442, 446 (2000) Walker v. StateÐ Ð However, in certain instances, admission of prior bad acts is appropriate. At issue here is whether NRS 48.045(2), which outlines several exceptions to the general rule of exclusion, was properly applied to admit the evidence of Cheryl's prior bad acts. 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. (Emphasis added.) [Headnotes 1, 2] A trial court deciding whether to admit such acts must conduct a hearing on the matter outside the presence of the jury and on the record. See Petrocelli v. State, 101 Nev. 46, 51-52, 692 P.2d 503, 507-08 (1985) (outlining procedure for admitting prior bad acts); Armstrong v. State, 110 Nev. 1322, 1323-24, 885 P.2d 600, 601 (1994) (requiring that district court finding be made on the record). At the hearing, the court must determine whether “(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.” Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997). The trial court's determination of whether to admit or exclude such evidence will not be disturbed on appeal absent manifest error. See Petrocelli, 101 Nev. at 52, 692 P.2d at 508. [Headnote 3] In this case, Anthony Jr. testified to two prior events involving Cheryl's pointing of a firearm at Anthony. The first incident was approximately ten years before Anthony's death and occurred at a picnic Cheryl and Anthony were attending. After getting into an argument, Cheryl pointed a pistol at Anthony and threatened to kill him. The second incident occurred approximately six years before Anthony's death and involved another argument between Cheryl and Anthony. As a result, Cheryl became angry and pointed a rifle at Anthony, telling him not to come closer and that she wanted money for her kids. Although the State argues that these acts were relevant to showing Cheryl's “true intent” at the time she shot Anthony, we conclude that they were improperly admitted under NRS 48.045(2).

Ð116 Nev. 442, 447 (2000) Walker v. StateÐ Ð First, in evaluating the relevance of prior bad acts to the crime charged, we have consistently noted that events remote in time from the charged incident have less relevance in proving later intent. See, e.g., Beck v. State, 105 Nev. 910, 912, 784 P.2d 983, 984 (1989); Berner v. State, 104 Nev. 695, 697-98, 765 P.2d 1144, 1146 (1988). We conclude that the events here, which are six and ten years old, are clearly remote in time, and thus are less relevant to Cheryl's intent at the time she shot Anthony. Further, although the prior bad acts involve similar conduct toward the eventual victim in this case, we conclude that there is a crucial distinction between Cheryl's prior conduct and the charged conduct. Namely,

Cheryl's prior acts do not involve the firing or attempted firing of the weapon at Anthony. Importantly, Cheryl was tried for first-degree murder, a specific intent crime requiring, in addition to premeditation and deliberation, willful action that we have said requires an intent to kill. See Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000). Therefore, because the prior bad acts offered here do not clearly establish an intent to kill, but more accurately show an intent to threaten, the logical relevance of the acts to show Cheryl's later intent is further diminished. Accordingly, we conclude that the two prior bad acts offered by Anthony Jr. have only minimal relevance to Cheryl's intent at the time she shot Anthony. [Headnote 4] Next, in evaluating whether the probative value of the evidence is substantially outweighed by the danger of prejudice, we reiterate that evidence of prior bad acts may unduly influence the jury and result in a conviction based on the accused's propensity to commit a crime rather than on the State's ability to prove all the elements of the crime. See Berner, 104 Nev. at 696-97, 765 P.2d at 1145-46. The acts here, Cheryl's twice pointing a gun at Anthony during an argument, clearly cast Cheryl in a negative light, prejudicially suggesting that she has a dangerous and criminal character. We therefore conclude that the danger of prejudice substantially outweighs the probative value of the prior acts. Accordingly, we conclude that the district court erred by admitting the evidence of Cheryl's prior bad acts. CONCLUSION Based on our conclusions that the prior acts were only minimally relevant to Cheryl's later intent and that the danger of prejudice substantially outweighs the probative value of the prior acts, we hold that the district court's admission of Anthony Jr.'s testiPRQ\ZDVPDQLIHVWHUURU

Ð116 Nev. 442, 448 (2000) Walker v. StateÐ Ð mony was manifest error. Further, because the shooting occurred during a heated argument in the course of an abusive and tumultuous relationship and because a conviction of first-degree murder requires proof beyond a reasonable doubt of willfulness, premeditation and deliberation, we cannot say that the error here was harmless beyond a reasonable doubt. We therefore reverse the judgment of conviction and remand for a new trial in accordance with the views expressed herein. 4

____________

Ð116 Nev. 448, 448 (2000) Ochoa-Lopez v. WardenÐ Ð Ð JOSE ALVARO OCHOA–LOPEZ, Appellant, v. WARDEN, LOVELOCK CORRECTIONAL CENTER, JOHN IGNACIO, Respondent. No. 32718 April 6, 2000

997 P.2d 136

Appeal from an order of the district court denying appellant's post-conviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge. Defendant convicted on plea of guilty to trafficking of a controlled substance petitioned for a writ of habeas corpus. The district court denied the petition, and defendant appealed. The supreme court held that violation of

the statute requiring a written plea agreement was harmless error. Affirmed. Karla K. Butko, Reno, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent. 1. Criminal Law. Failure to complete a written plea agreement, as required by statute, is not per se reversible error; rather, court will determine if a defendant's guilty plea is valid even without the plea memorandum by looking at the totality of the circumstances. NRS 174.035(6). 2. Criminal Law. Violation of the statute requiring a written plea agreement was harmless error. Trial court thoroughly canvassed defendant and correctly concluded that his guilty plea was voluntarily and knowingly entered. NRS 174.035(6).

Before Young, Agosti and Leavitt, JJ. __________ 4

On remand, we note that the jury instructions outlined in our recent decisions in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000) and Boykins v. State, 116 Nev. 171, 995 P.2d 474 (2000) should be applied.

Ð116 Nev. 448, 449 (2000) Ochoa-Lopez v. WardenÐ Ð OPINION Per Curiam: This is an appeal from the district court's denial of a post-conviction petition for a writ of habeas corpus. Appellant Jose Ochoa-Lopez was charged with the most serious level of trafficking of a controlled substance. Appellant entered into plea negotiations with the State following a denial of his motion to suppress the seized controlled substances. Appellant did not appeal his conviction directly, but filed this petition for a writ of habeas corpus. Appellant argues that his guilty plea was not voluntarily or knowingly entered because the district court accepted his plea even though there was not a written plea agreement, as required by NRS 174.035(6). We conclude, in looking at the totality of the circumstances, that the violation of NRS 174.035(6) is harmless and not per se reversible error. FACTS In December 1994, after leaving Boomtown Casino at approximately 10:00 p.m., appellant was driving on Interstate 80 when Trooper Mel Pecson of the Nevada Highway Patrol stopped him. Appellant had just picked up the vehicle from acquaintances and did not own the vehicle or have it registered in his name. Trooper Pecson observed the vehicle straddle both lanes of travel, as appellant attempted to change lanes. Although appellant was not speeding, Trooper Pecson stopped him to determine if he was possibly intoxicated. Appellant was not under the influence of alcohol. A check on the license plate indicated that it may have been a fictitious registration, an unregistered vehicle, or possibly a stolen vehicle. Appellant was unable to produce a driver's license or registration for the vehicle and identified himself to Trooper Pecson as Jose Mariscal. Trooper Pecson was unable to find any records matching this name, and appellant did not give the officer any other identifying information. Trooper Pecson then arrested appellant until a positive identity could be ascertained. Trooper Pecson then requested a tow truck and proceeded to complete a vehicle report before the tow truck arrived. The vehicle report included a section entitled “vehicle inventory,” which required Trooper Pecson to raise the hood of the car and locate the battery, motor, and transmission. After lifting the hood,

Trooper Pecson located a rag inside the engine compartment, which appeared to have been purposely placed on the right front TXDUWHUSDQHOFORVHWRWKHKHDGOLJKWDUHD

Ð116 Nev. 448, 450 (2000) Ochoa-Lopez v. WardenÐ Ð quarter panel close to the headlight area. Trooper Pecson pulled out the rag, which contained something hard and lumpy inside and was wrapped in at least two plastic shopping bags. Trooper Pecson's training in identification and packaging of narcotics led him to suspect that the rag was a method of concealing controlled substances. Further inspection revealed that the substance was wrapped in duct tape. Trooper Pecson believed this to be a controlled substance, so he took the substance and drove the vehicle to the highway patrol office to perform a presumptive test. The substance was later identified as at least 28 grams of methamphetamine. Appellant pleaded not guilty to the charge of trafficking in controlled substances and moved to suppress the narcotics obtained by Trooper Pecson during the vehicle inventory. After conducting a hearing on the motion to suppress the narcotics, the district court denied appellant's motion to suppress. Prior to trial, appellant entered a plea of guilty to a lesser charge, with both parties remaining free to argue what type of sentence appellant was to receive. The district court canvassed appellant regarding the rights he was waiving by pleading guilty to the lesser charge. At the sentencing hearing, appellant moved to withdraw his previously entered guilty plea, advising the court that he did not trust his counsel. The district court denied this motion and sentenced appellant to fifteen years in the Nevada State Prison and a fine of $100,000.00. Appellant did not appeal, but instead filed a petition for a writ of habeas corpus. The district court ruled that appellant's claim that the guilty plea was not voluntarily or knowingly entered, was belied by the record and summarily denied this claim for relief. After an evidentiary hearing on the petition for post-conviction relief, the district court denied the petition and entered factual findings. This appeal followed. DISCUSSION [Headnote 1] Appellant argues that his guilty plea was not voluntarily or knowingly entered because the district court accepted his plea even though there was not a written plea agreement, as required by NRS 174.035(6). 1 Appellant essentially argues that any violaWLRQRI156 LVSHUVHUHYHUVLEOHHUURU __________ 1

NRS 174.035(6) provides: A defendant may not enter a plea of guilty or guilty but mentally ill pursuant to a plea bargain for an offense punishable as a felony for which: (a) Probation is not allowed; or (b) The maximum prison sentence is more than 10 years, unless the plea bargain is set forth in writing and signed by the defendant, the defendant's attorney, if he is represented by counsel, and the prosecuting attorney.

Ð116 Nev. 448, 451 (2000) Ochoa-Lopez v. WardenÐ Ð tion of NRS 174.035(6) is per se reversible error. We hold that the failure to complete a written plea agreement, as required by NRS 174.035(6), is not per se reversible error. [Headnote 2] Although NRS 174.035(6) does require a written plea memorandum, this court will determine if a defendant's guilty plea is valid even without the plea memorandum by looking at the totality of the circumstances, including the failure to satisfy NRS 174.035(6). See Bryant v. State, 102 Nev. 268, 271, 721 P.2d

364, 367 (1986) (holding that reviewing court should look to the totality of the circumstances to determine if a guilty plea is valid). During the entry of the plea by appellant, the district court extensively canvassed appellant regarding his right to a trial by jury that he was waiving and ensured that appellant knew that matters of sentencing were left completely to the court. The district court also ensured that appellant completely understood the elements of the charge to which he was pleading, the penalties that could be imposed for the charge, and that appellant was satisfied with the legal services rendered by his attorney. We conclude that the district court thoroughly canvassed appellant and correctly concluded that his guilty plea was voluntarily and knowingly entered within the contemplation of Bryant. While it is certainly preferable that a guilty plea memorandum be executed as required by NRS 174.035(6), we decline to hold that the failure to do so is per se reversible error. Thus, in looking at the totality of the circumstances, we conclude that the violation of NRS 174.035(6) was harmless error. 2 __________ 2

Appellant contends that a number of other errors occurred: that appellant did not receive effective assistance of counsel because appellant was not informed of his right to appeal, and he did not consent to forego an appeal; that appellant's guilty plea was not knowing or voluntary because appellant was not informed that any sentence in the present case would have to be served consecutively to his sentence in a parole revocation case; and that appellant is entitled to a new sentencing hearing because he provided substantial assistance to law enforcement officials. After a thorough review of the entire record and consideration of the relevant law, we conclude that none of these contentions has merit. ____________

Ð116 Nev. 452, 452 (2000) Lee v. StateÐ Ð GARRY ROBERT LEE, Appellant, v. THE STATE OF NEVADA, Respondent. No. 33081 April 6, 2000

997 P.2d 138

Appeal from a judgment of conviction, pursuant to a plea of no contest, of one count of involuntary manslaughter. Appellant preserved his right to appeal the denial of his motion to dismiss the original charges, which consisted of one count of reckless driving causing death and two counts of reckless driving causing substantial bodily harm. Sixth Judicial District Court, Pershing County; Richard Wagner, Judge. Defendant pleaded no contest in the district court to one count of involuntary manslaughter under felony reckless driving statute, and he appealed. The supreme court held that access road constructed on federal property pursuant to right-of-way granted by Bureau of Land Management (BLM) was not public highway, and thus defendant who killed oncoming motorist while driving on wrong side of access road could not be convicted of felony reckless driving causing death. Remanded with instructions. Lamond R. Mills & Associates, LLC, Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Belinda Quilici, District Attorney, and John J. Kadlic, Deputy District Attorney, Pershing County, for Respondent. 1. Criminal Law. The construction of a statute is a question of law, which the supreme court reviews de novo. 2. Automobiles.

Access road constructed by mining corporation on federal property pursuant to right-of-way granted by Bureau of Land Management (BLM) was not “public highway,” and thus defendant who killed oncoming motorist while driving on wrong side of access road could not be convicted of felony reckless driving causing death. NRS 484.377(2). 3. Automobiles. A road does not become “dedicated to a public authority” for purposes of definition of “highway” in traffic statutes simply because the public has access to it. NRS 484.065. 4. Statutes. The supreme court is not empowered to go beyond the face of a statute to lend it a construction contrary to its clear meaning. 5. Automobiles. A road constructed on federal property pursuant to a right-of-way granted by the Bureau of Land Management (BLM) does not constitute D ³KLJKZD\´ IRU SXUSRVHV RI WKH WUDIILF VWDWXWHV XQOHVV WKH URDG KDV EHHQ GHGLFDWHG WR D SXEOLF

DXWKRULW\

Ð116 Nev. 452, 453 (2000) Lee v. StateÐ Ð a “highway” for purposes of the traffic statutes unless the road has been dedicated to a public authority. NRS 484.065.

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: The issue in this case is whether an access road constructed by a mining corporation on federal property pursuant to a right-of-way granted by the Bureau of Land Management (“BLM”) constitutes a “highway” for purposes of NRS chapter 484. We conclude that it does not. FACTS On June 19, 1996, appellant Garry Robert Lee exited the Coeur-Rochester Mine and drove his Peterbilt tractor and tanker trailer on an access road that runs between the mine and Limerick Canyon Road located in Pershing County. Lee had been driving on the wrong side of the road when he collided with another vehicle coming in the opposite direction, killing the driver and injuring the driver's wife and daughter. The mining access road where the incident occurred is located on federal property and was built and maintained by Coeur-Rochester, Inc., pursuant to a non-exclusive right-of-way interest granted by the BLM. The State charged Lee with one count of reckless driving causing death and two counts of reckless driving causing substantial bodily harm, all in violation of NRS 484.377(2). Lee filed a motion to dismiss the charges contending that the reckless driving statute does not apply to the mining access road where the incident occurred because it does not constitute a “highway” for purposes of NRS chapter 484. The district court denied Lee's motion to dismiss. Lee pleaded no contest 1 to one count of involuntary manslaughter, but, in an agreement with the State, preserved the right to appeal the district court's denial of his motion to dismiss the original charges. DISCUSSION [Headnote 1] The construction of a statute is a question of law, which this court reviews de novo. Anthony Lee R., a Minor v. State, 113 1HY3G  __________ 1

The district court accepted Lee's no contest plea and made a finding of guilt based upon the plea.

Ð116 Nev. 452, 454 (2000) Lee v. StateÐ Ð Nev. 1406, 1414, 952 P.2d 1, 6 (1997). The felony reckless driving statute itself does not specifically limit its application to certain kinds of roadways. See NRS 484.377(2). However, the provisions of NRS chapter 484 “are applicable and uniform throughout this state on all highways to which the public has a right of access or to which persons have access as invitees or licensees.” NRS 484.777(1) (emphasis added); see Elliott v. Mallory Electric Corp., 93 Nev. 580, 583, 571 P.2d 397, 399 (1977) (recognizing that the applicability of the provisions of NRS chapter 484 are generally limited to “highways” as defined by NRS 484.065). [Headnote 2] For the purposes of NRS chapter 484, a “highway” is defined as “the entire width between the boundary lines of every way dedicated to a public authority when any part of the way is open to the use of the public for purposes of vehicular traffic, whether or not the public authority is maintaining the way.” NRS 484.065. The parties do not dispute that the road constructed by Coeur-Rochester, Inc., pursuant to the non-exclusive right-of-way interest, is open to the public for purposes of vehicular traffic. The determining issue in this case is whether the road in question is “dedicated to a public authority.” [Headnotes 3, 4] A “public authority” is defined as “the department of transportation or the local authority having jurisdiction to enact laws or ordinances or adopt regulations relating to traffic over a highway.” NRS 484.126. Since the mining access road where the incident occurred in this case was never dedicated to a public authority, we conclude that it does not meet the statutory definition of a “highway” under NRS 484.065. We determine that a road does not become dedicated to a public authority for purposes of NRS chapter 484 simply because the public has access to it. This court has recognized that it is “not empowered to go beyond the face of a statute to lend it a construction contrary to its clear meaning.” Union Plaza Hotel v. Jackson, 101 Nev. 733, 736, 709 P.2d 1020, 1022 (1985); see also Thompson v. District Court, 100 Nev. 352, 354, 683 P.2d 17, 19 (1984) (“If a statute is clear on its face a court cannot go beyond the language of the statute in determining the legislature's intent.”). The broadening of the scope of the statutory definition of “highway” contained in NRS 484.065 is a function of the legislature, not this court. See Washoe Medical Ctr. v. Reliance Ins. Co., 112 Nev. 494, 498, 915 P.2d 288, 290 (1996) (concluding that “broadening the scope of Nevada's hospital lien statute is a function of the legislature, not this court.”). If the legislature had LQWHQGHGWKDWWKHIHORQ\UHFNOHVVGULYLQJVWDWXWH

DSSO\WRURDGVQRWGHGLFDWHGWRWKHSXEOLF

Ð116 Nev. 452, 455 (2000) Lee v. StateÐ Ð intended that the felony reckless driving statute apply to roads not dedicated to the public, but to which the public has access, we conclude that it could and would have done so. In 1983, for example, the legislature expanded the applicability of Nevada's driving under the influence statute beyond the statutory definition of “highway” contained in NRS 484.065. 1983 Nev. Stat., ch. 426, § 8, at 1068. NRS 484.379(2) specifically prohibits driving under the influence “on a highway or on premises to which the public has access.” [Headnote 5] In sum, we conclude that a road constructed on federal property pursuant to a right-of-way granted by the BLM does not constitute a “highway” for purposes of NRS chapter 484 unless the road has been dedicated to a public authority. Since the access road where the incident occurred in this case was never dedicated to a public authority, the district court should have granted Lee's motion to dismiss the charges of felony reckless driving. Therefore, we remand this case to the district court with instructions that Lee must be given the opportunity to withdraw his plea pursuant to NRS 174.035(3). 2

____________

Ð116 Nev. 455, 455 (2000) Frantz v. JohnsonÐ Ð Ð MICHELLE FRANTZ, ANTONIO ACCORNERO, Individually, PLASTIC GRAPHICS, INC., a California Corporation, WESTERN BADGE & TROPHY CO., a California Corporation, WESLEY RU, Individually and as an Officer of Western Badge & Trophy, and ACTION GRAPHICS, a Nevada Partnership, Consisting of MICHELLE FRANTZ, ANTONIO ACCORNERO, and WESLEY RU, Appellants, v. CHARLES R. JOHNSON, dba PLASTIC PRINT-A-CARD CO., dba JOHNSON BUSINESS MACHINES, Respondent. No. 29588 May 4, 2000

999 P.2d 351

Appeal from a judgment pursuant to a bench trial. Eighth Judicial District Court, Clark County; James A. Brennan, Senior Judge. __________ 2

NRS 174.035(3) states: With the consent of the court and the district attorney, a defendant may enter a conditional plea of guilty, guilty but mentally ill or nolo contendere, reserving in writing the right, on appeal from the judgment, to a review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal must be allowed to withdraw the plea. ........................................

Ð116 Nev. 455, 456 (2000) Frantz v. JohnsonÐ Ð Distributor of plastic gaming cards brought action under the Uniform Trade Secrets Act (UTSA), against manufacturer and distributor's former sales manager, alleging misappropriation of trade secrets after the manufacturer hired the sales manager, and defendants counterclaimed for lost wages and a California judgment. After a bench trial, the district court awarded compensatory and punitive damages to distributor, offset by the lost wages and money judgment owed to defendants. Defendants appealed. The supreme court held that: (1) the Act displaced the distributor's common law tort claims; (2) distributor's customer and pricing information constituted “trade secrets”; (3) evidence established the causation element of misappropriation of trade secrets; and (4) trial court abused its discretion when calculating compensatory damages, after having limited defendants' liability to the distributor's losses occurring within eighteen months after sales manager left her employment with distributor. Affirmed in part, reversed in part, and remanded. Thorndal Armstrong Delk Balkenbush & Eisinger and Brian K. Terry, Las Vegas, for Appellants. Bill C. Hammer, Ltd., Las Vegas, for Respondent. 1. Appeal and Error. Supreme court could consider, sua sponte, whether the Uniform Trade Secrets Act (UTSA) precluded some of the causes of action upon which the trial court based its award in action for misappropriation of trade secrets. NRS 600A.090. 2. Torts. The Uniform Trade Secrets Act (UTSA) does not provide a blanket preemption to all claims that arise from a factual circumstance possibly involving a trade secret. There may be future instances where a plaintiff will be able to assert tort claims, including intentional interference with prospective advantage and intentional interference with existing contract, that do not depend on the information at issue being deemed a trade secret, and thus are not precluded by the UTSA. NRS 600A.090. 3. Conspiracy; Implied and Constructive Contracts; Torts.

Uniform Trade Secrets Act (UTSA) precluded distributor of plastic gaming cards from bringing common law causes of action for misappropriation of confidential information, breach of fiduciary duty, intentional interference with contractual relations, intentional interference with prospective advantage, the tort of breach of the covenant of good faith and fair dealing, civil conspiracy, and unjust enrichment against its former sales manager and its former manufacturer, where the causes of action arose from a single factual episode, namely misappropriation of bidding and pricing information. NRS 600A.090. 4. Master and Servant; Torts. Uniform Trade Secrets Act (UTSA) did not displace the claim, by distributor of plastic gaming cards, against its former sales manager and its former manufacturer for breach of the implied covenant of good faith and fair dealing, where the claim was grounded in contract, even thoughWKHFRQWUDFWXDOUHPHG\ZDVEDVHGRQPLVDSSURSULDWLRQRIWUDGHVHFUHWV

........................................ Ð116 Nev. 455, 457 (2000) Frantz v. JohnsonÐ Ð the contractual remedy was based on misappropriation of trade secrets. NRS 600A.090(2)(a). 5. Contracts. An implied covenant of good faith and fair dealing exists in every contract and essentially forbids arbitrary, unfair acts by one party that disadvantage the other. 6. Appeal and Error. Error in grounding the liability of former employee of, and former manufacturer for, distributor of plastic gaming cards in common law causes of action that were displaced by the Uniform Trade Secrets Act (UTSA) was harmless. The Act merely codified the common law elements of misappropriation of confidential information of which distributor pleaded and proffered sufficient circumstantial evidence at trial. NRS 600A.090. 7. Torts. The elements of a misappropriation of trade secrets claim include: (1) a valuable trade secret; (2) misappropriation of the trade secret through use, disclosure, or nondisclosure of use of the trade secret; and (3) the requirement that the misappropriation be wrongful because it was made in breach of an express or implied contract or by a party with a duty not to disclose. 8. Torts. The determination of whether corporate information, such as customer and pricing information, is a trade secret is a question for the finder of fact. 9. Master and Servant; Torts. Factors to be considered when determining whether corporate information, such as customer and pricing information, is a trade secret include: (1) extent to which the information is known outside of the business and the ease or difficulty with which the acquired information could be properly acquired by others, (2) whether the information was confidential or secret, (3) extent and manner in which employer guarded the secrecy of the information, and (4) former employee's knowledge of customer's buying habits and other customer data and whether this information is known by employer's competitors. 10. Torts. Not every customer and pricing list will be protected as a trade secret. 11. Torts. Customer and pricing information for distributor of plastic gaming cards were “trade secrets” under the Uniform Trade Secrets Act (UTSA), where the information was extremely confidential, its secrecy was guarded, and it was not readily available to others because the plastic gaming card industry was highly specialized. NRS 600A.030(5). 12. Torts. Direct evidence that customers ceased doing business with distributor of plastic gaming cards because of former employee's and former manufacturer's conduct was not necessary to establish the causation element of misappropriation of trade secrets under the Uniform Trade Secrets Act (UTSA), which could be established by indirect circumstantial evidence that employee and manufacturer harmed the distributor through unfair and illegal tactics. NRS 600A.010 et seq. 13. Appeal and Error. Causation element of misappropriation of trade secrets is a question for the finder of fact that will not be overturned unless clearly erroneous.

........................................ Ð116 Nev. 455, 458 (2000) Frantz v. JohnsonÐ Ð 14. Torts. Causation element of misappropriation of trade secrets may be inferred from the circumstantial evidence presented at trial. 15. Torts. Evidence that after sales manager left distributor of plastic gaming cards and joined distributor's former manufacturer, distributor's pricing lists were missing, it lost 40% of its card sales, and sales manager sent numerous faxes and letters to distributor's customers stating she could offer “more competitive pricing” and that she worked for a “direct manufacturer,” established that misappropriation of trade secrets caused distributor's loss of customers, as element of claim under Uniform Trade Secrets Act (UTSA). NRS 600A.010 et seq. 16. Torts.

17.

18.

19.

20.

21.

Evidence established that manufacturer, and one of its owners, misappropriated trade secrets of distributor of plastic gaming cards after hiring distributor's sales manager, thereby causing damage to distributor in violation of Uniform Trade Secrets Act (UTSA). One employee of manufacturer testified that owner said he intended to take all of distributor's customers, and another employee testified that owner had asked him to use his knowledge of the pricing structure and customer base of the employee's former employer to sell for the manufacturer. NRS 600A.010 et seq. Corporations. Officers' and managers' tortious acts committed within the scope of their employment are attributable to the corporation as a matter of law. Torts. Evidence established that one owner of manufacturer, and owner's badge business, misappropriated trade secrets of distributor of plastic gaming cards, thereby causing damage to distributor in violation of Uniform Trade Secrets Act (UTSA), after manufacturer hired distributor's sales manager. Customer's purchasing agent testified that sales manager told her sales manager was unable to take orders but that owner could do so, and owner signed expense reimbursement check for supplies for trade show at which sales manager solicited distributor's customers. NRS 600A.010 et seq. Damages. In cases where a district court properly limits liability to a specified period of time, it is an abuse of discretion to consider losses outside this time period in calculating damages. Damages. After limiting manufacturer's and sales manager's liability to distributor of plastic gaming cards, in action for misappropriation of trade secrets in violation of Uniform Trade Secrets Act (UTSA), to distributor's losses occurring within eighteen months after sales manager left her employment with distributor, trial court abused its discretion by applying a pro rata share equivalent to eighteen months of loss for each of distributor's casino accounts, regardless of whether the loss occurred within the specific eighteen-month period. NRS 600A.010 et seq. Damages. Evidence that plastic gaming card distributor's former sales manager took distributor's confidential customer and pricing information with her when she joined distributor's former manufacturer, that she sent faxes to all of distributor's customers announcing that distributor did not manufacture its own cards, and that manufacturer planned to take all of distributor's customers in violation of oral promise to distributor, estabOLVKHGPDOLFH

........................................ Ð116 Nev. 455, 459 (2000) Frantz v. JohnsonÐ Ð

22. 23. 24.

25.

26.

lished malice, as required for award of punitive damages in action for misappropriation of trade secrets under the Uniform Trade Secrets Act (UTSA). NRS 42.005, 600A.050(2). Appeal and Error. A district court's award of attorney fees will not be disturbed on appeal absent a manifest abuse of discretion. Costs. It is an abuse of discretion to award attorney fees without a statutory basis for doing so. Costs. Statute authorizing award of attorney fees to the prevailing party when another party has alleged a groundless claim that is not supported by any credible evidence at trial does not permit an award of attorney fees for acting maliciously or engaging in unacceptable discovery tactics. NRS 18.010(2)(b). Costs. A counterclaim cannot be “without reasonable ground” or “frivolous,” as basis for statutory attorney fee award to the opposing party, when the party asserting the counterclaim actually prevails on the counterclaim. NRS 18.010(2)(b). Appeal and Error. Trial court's error was harmless in relying on general attorney fee statute as basis for awarding attorney fees to plaintiff plastic gaming card distributor in action for misappropriation of trade secrets under the Uniform Trade Secrets Act (UTSA), though defendant manufacturer and sales manager had prevailed on their counterclaims for wages lost and payment of a California judgment, where the Act itself provided for the attorney fee award, based on defendants' willful and malicious misappropriation. NRS 18.010(2)(b), 600A.060(3).

Before Rose, C. J., Shearing and Becker, JJ. OPINION Per Curiam: SUMMARY This case addresses, among other issues, Nevada's Uniform Trade Secrets Act (the “UTSA”), codified at NRS 600A.010-.100. The underlying dispute arose in 1990, when Michelle Frantz (“Frantz”), a sales

manager for Johnson Business Machines (“JBM”), a Las Vegas distributor of plastic gaming cards, decided to seek employment with JBM's card manufacturer, Plastic Graphics, Inc. (“Plastic”). Plastic was owned by Wesley Ru (“Ru”) and Antonio Accornero (“Accornero”); Ru and Accornero also owned a badge and button business called Western Badge & Trophy (“Western”) (hereinafter collectively referred to as “appellants”). After Frantz's departure from JBM, its profits spiraled downward. Because JBM believed Frantz had stolen its “trade secrets” ........................................ Ð116 Nev. 455, 460 (2000) Frantz v. JohnsonÐ Ð to assist Plastic in misappropriating JBM's customers, JBM filed suit against appellants seeking compensatory damages, punitive damages, and attorney fees and costs based on numerous causes of action. After a bench trial, the district court awarded JBM compensatory damages, punitive damages, and attorney fees and costs. Appellants filed this timely appeal alleging several instances of error. We conclude that the district court erred in calculating compensatory damages and in failing to consider NRS 600A.050(2) before awarding punitive damages. We therefore vacate the district court's award of compensatory and punitive damages, and reverse and remand this matter for recalculation of damages. FACTS JBM is a family-owned business founded by Charles R. Johnson (“Charles”) in Las Vegas, Nevada. JBM sold printed plastic cards with personalized embossments that were purchased by casinos and used as VIP and slot machine player tracking cards. In 1987, Charles hired Frantz as a salesperson for JBM. Frantz was an at-will employee and was not required to sign a covenant-not-to-compete contract. Charles testified that he taught Frantz everything about the plastic card business. Eventually, Frantz was promoted to sales manager of JBM. In addition to Frantz, JBM had two other employees: Charles's wife, Barbara Johnson, and machine manager Steve Larsen (“Larsen”). Throughout the years, Charles testified that he and Frantz developed a trusting relationship, and Charles gave Frantz keys to the offices, security codes to the building, and access to customer and pricing lists. Charles further testified that the aforementioned customer information and pricing lists were secured in file cabinets and protected as a trade secret. Charles's testimony was corroborated by John Luogo (“Luogo”), vice president of sales for another plastic card company, who stated in his deposition that bid and pricing information and customer lists are proprietary, confidential information in the plastic card industry. According to Charles, another confidential aspect of JBM's business was the fact that JBM did not manufacture the plastic cards that it sold. In order to protect this confidential information, JBM required Plastic, its manufacturer, to ship the cards directly to JBM where the cards were relabeled and reboxed before being distributed to JBM's casino accounts. Additionally, Charles testified that before JBM entered into a contract with Plastic to manufacture JBM's cards, Accornero, an owner of Plastic, orally promised Charles that he would not solicit JBM's customersXQGHUDQ\FLUFXPVWDQFHV ........................................ Ð116 Nev. 455, 461 (2000) Frantz v. JohnsonÐ Ð under any circumstances. This was an alleged promise that Accornero would eventually break. In October 1990, Accornero hired Frantz as a salesperson and began competing against JBM in the plastic card industry. Frantz testified that after she began working for Plastic, she went to several hotels to talk to people with whom she had established a rapport. Frantz further testified that she sent out numerous letters and faxes announcing that she now worked for Plastic, the “direct representative of the manufacturer” and that she could offer “more competitive pricing and guaranteed delivery times.” Shortly after Frantz's departure, Larsen contacted all of JBM's customers to try to establish a business rapport and to inform them that Frantz had left JBM. Larsen testified that he had difficulties with the purchasing

representatives of some casinos and that they were “negative or hostile.” Larsen further testified that after Frantz left, JBM lost approximately 40% of its card sales and 30% of its machine sales to Plastic. Moreover, Larsen testified that although he did not see Frantz take any customer or pricing lists, several lists were missing after Frantz's departure. In October 1990, Frantz received the Riverboat, Showboat, and Harrah's accounts by underbidding JBM. Thereafter, Frantz was served with notice that JBM was seeking a temporary restraining order (“TRO”) to prevent her from directly soliciting JBM's customers. The TRO was granted and became effective November 7, 1990. Frantz testified that post-TRO she never contacted any of JBM's customers to solicit their business. However, Frantz further testified that she followed through on the Harrah's, Riverboat, and Showboat orders that were arranged prior to the TRO. Despite Frantz's testimony that she complied with the TRO, JBM alleged that Frantz conspired with Ru and Accornero to avoid the court order by “referring” sales to Ru. Martha Kehn (“Kehn”), a purchasing agent for Boyd Properties, testified that sometime after Frantz left JBM, Frantz contacted her and told her that although Frantz could not take orders, Ru “would take care of anything” she needed. Additionally, Kehn testified that Frantz told her that JBM had an outside supplier of plastic cards. JBM further alleges that Frantz's phone records indicate that she did not comply with the TRO. According to these records, Frantz made 195 calls to Western from her home and 48 calls to Promotional Graphics, another business entity owned by Ru and Accornero, between December 5, 1990, and October 17, 1991. At the end of 1990, Frantz became an independent contractor, rather than an employee of Plastic, and continued to sell for Western and Promotional Graphics. However, Frantz's sales for Western were disappointing. Consequently, in April 1991 Plastic allegedly terminated its relationship with Frantz. ........................................ Ð116 Nev. 455, 462 (2000) Frantz v. JohnsonÐ Ð Thereafter, Frantz tried to establish her own business called Action Graphics. Frantz was unsuccessful and eventually filed for unemployment. When Frantz's unemployment claim was denied, Plastic agreed to pay her severance until she could find alternate employment. Frantz testified that, during this period of time, she was not attempting to sell cards for Plastic. Plastic, however, paid Frantz $3,000.00 per month allegedly as severance pay until August 1991 and required her to submit Action Graphics' invoices in order to receive payment. In October 1991, Frantz obtained a retail sales position and ceased working in the plastic card industry. On May 1, 1991, JBM successfully pursued a preliminary injunction against Frantz. The district court granted the injunction finding that Frantz's conduct was unethical and violated her duties as an agent for JBM. In addition to seeking an injunction, JBM sued appellants for the following causes of action: (1) misappropriation of confidential information; (2) breach of fiduciary duty; (3) interference with prospective economic advantage; (4) fraud; (5) misrepresentation; (6) unjust enrichment; and (7) civil conspiracy. At trial, JBM presented expert testimony on damages from its expert witness, Donald McGhie (“McGhie”). McGhie is a certified public accountant and has worked as a chief operating officer at Bally's Las Vegas. McGhie's estimation of damages was based on the number of player tracking cards that he calculated were utilized by slot machines in various casinos. McGhie concluded that there was a 10:1 ratio, namely that ten player tracking cards were sold for each slot machine per month. McGhie used invoices from four different casinos to calculate this figure: (1) JBM's invoices from the Stardust from 1989-94; (2) Faraday's (one of JBM's competitors) invoices from the Mirage from 1992-94; (3) Plastic's invoices from the Showboat, Atlantic City from 1989-90; and (4) Plastic's invoices from the Riverboat, Reno from 1989-90. 1 McGhie testified that his goal in calculating the 10:1 ratio was to find a method by which he could project the lost profit of the thirteen casino accounts that JBM claimed that it lost to Plastic. After coming up with the 10:1 ratio, McGhie used JBM's 1990 records from the Stardust to calculate a gross profit percentage forERWK

PDJQHWLFDQG+ROOHULWKSODVWLFFDUGV __________ 1

Specifically, the card ratio was based on the following time periods and numbers: From 1992-94, Faraday sold 693,000 cards to the Mirage, averaging eight cards per slot machine. From 1989-94, JBM sold 1.5 million

cards to the Stardust, averaging ten cards per slot machine. From 1989-91, over a seventeen-month period, Plastic sold 96,000 cards to the Riverboat, averaging twelve cards per slot machine. From 1989-91, over a sixteen-month period, Plastic sold 334,000 cards to the Riverboat, averaging twelve cards per slot machine. ........................................ Ð116 Nev. 455, 463 (2000) Frantz v. JohnsonÐ Ð both magnetic and Hollerith plastic cards, 2 totaling 18.86% and 34.68%, respectively. McGhie then calculated the losses associated with thirteen casinos that occurred between 1990-95: (1) the Golden Nugget, loss sustained from 1990-95; (2) the Showboat, loss sustained from 1990-94; (3) the Eldorado, the Riverboat, and the Mirage, losses sustained from 1990-95; (4) the Goldstrike, loss sustained from 1990-93; (5) Circus Circus, Excalibur, Slots of Fun, Luxor, Colorado Belle, and the Edgewater, losses sustained in 1993; and (6) the Silver Legacy, Reno, loss sustained in 1995. Further, McGhie calculated JBM's losses associated with the reduced cost of Hollerith punching, loss of profit from the sale of machines, the cost of reengineering the plastic card artwork, and the opportunity cost of not getting a new warehouse built. In sum, McGhie testified that the loss of profit from plastic card sales was $411,042.00 and the loss of profits from accounts where there was a reduction in sales price amounted to $566,016.00. In making the aforementioned calculations, McGhie admitted that he assumed that JBM's losses resulted from appellants' conduct. McGhie testified that he did not contact any of the thirteen casinos to see why they had stopped doing business with JBM. JBM alleges, however, that causation can be inferred from appellants' aforementioned conduct and from Accornero's deposition, where he stated that he intended to compete against JBM and would do so by taking its customers. Additionally, JBM alleges that causation can be inferred from the fact that Accornero told a former Plastic employee, Terry Malan (“Malan”), that Accornero was going to put JBM out of business by taking all of its customers. After a ten-day bench trial, the district court entered a judgment in favor of JBM and issued sixty pages of findings of fact and conclusions of law. The district court awarded JBM $222,014.55 for lost profits, but explicitly limited the period of loss to eighteen months from Frantz's departure. The district court also awarded JBM $47,612.75 for price reduction on plastic cards, business machines, and Hollerith punching services. Further, the district court awarded JBM the following punitive damages against each defendant: (1) Frantz—$4,000.00; (2) Accornero—$50,000.00; (3) Plastic Graphics—$50,000.00; (4) Ru—$25,000.00; and (5) Western Badge—$25,000.00. Finally, JBM was awarded $160,000.00 in attorney fees pursuant to NRS 600A.060 or NRS 18.010(2)(b), $15,779.00 in expenses, and $15,481.31 in costs. This judgment was reduced to satisfy )UDQW] V FRXQWHUFODLP IRU ZDJHV RZHG WR KHU E\ -%0 DQG WR VDWLVI\ 3ODVWLF V

FRXQWHUFODLPVHHNLQJVDWLVIDFWLRQRID&DOLIRUQLDMXGJPHQWDJDLQVW-%0 __________ 2

A Hollerith card is a card containing customer information in a binary code that is punched with rectangular holes through a plastic card. A magnetic card is a card that contains customer information in a magnetic strip. ........................................ Ð116 Nev. 455, 464 (2000) Frantz v. JohnsonÐ Ð Frantz's counterclaim for wages owed to her by JBM and to satisfy Plastic's counterclaim seeking satisfaction of a California judgment against JBM. Appellants filed this timely appeal alleging numerous instances of error, including that the district court erred in relying on McGhie's testimony, in awarding attorney fees, and in granting punitive damages. Further, appellants contend that there was insufficient evidence of causation. We agree with appellants that the district court erred in calculating damages and in failing to consider NRS 600A.050(2) in awarding punitive damages. Accordingly, although we affirm the order of the district court in all other respects, we vacate the district court's award of compensatory and punitive damages, and remand this matter to the district court for recalculation of

such damages. DISCUSSION [Headnote 1] Preliminarily, before our discussion of appellants' contentions on appeal, we address the issue of the parties' and the district court's failure to apply the UTSA, specifically NRS 600A.090(2)(b)—a controlling statute that precludes some of the causes of action upon which the district court based its award. See Bradley v. Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986) (“The ability of this court to consider relevant issues sua sponte in order to prevent plain error is well established . . . . Such is the case where a statute which is clearly controlling was not applied by the trial court.”) (citation omitted). I.

The Nevada Uniform Trade Secrets Act

NRS 600A.090 of the Nevada Uniform Trade Secrets Act, titled “Effects of chapter on other law and remedies,” provides that: 1. Except as otherwise provided in subsection 2, this chapter displaces conflicting tort, restitutionary, and other law of this state providing civil remedies for misappropriation of a trade secret. 2. This chapter does not affect: (a) Contractual remedies, whether or not based upon misappropriation of a trade secret; (b) Other civil remedies that are not based upon misappropriation of a trade secret; or (c) Except as otherwise provided in NRS 600A.035, criminal sanctions, whether or not based upon misappropriation of a trade secret. (Emphasis added.) The plain language of NRS 600A.090 precludes a plaintiff from bringing a tort or restitutionary action³EDVHGXSRQ´PLVDSSURSULDWLRQRIDWUDGHVHFUHWEH\RQGWKDWSURYLGHGE\

WKH876$ ........................................ Ð116 Nev. 455, 465 (2000) Frantz v. JohnsonÐ Ð “based upon” misappropriation of a trade secret beyond that provided by the UTSA. In interpreting NRS 600A.090, a federal district court has held that a plaintiff's claims for unjust enrichment and unfair competition were precluded by the UTSA since these two claims were duplicative of plaintiff's claim for misappropriation of trade secrets. See Hutchison v. KFC Corp., 809 F. Supp. 68, 70 (D. Nev. 1992). [Headnotes 2-5] In light of the plain language of NRS 600A.090 and the holding in Hutchison, 3 we conclude that the district court erred in relying on numerous tort and restitutionary causes of action that were explicitly excluded by statute, as they all related to a misappropriation of a trade secret. Specifically, the district court erred in awarding damages based on the following causes of action: (1) misappropriation of confidential information, (2) breach of fiduciary duty, (3) intentional interference with contractual relations, (4) intentional interference with prospective advantage, (5) the tort of breach of the covenant of good faith and fair dealing, 4 (6) civil conspiracy, and (7) unjust enrichment. These causes of action would normally be precluded by NRS 600A.090 because they arose from a single factual episode, namely misappropriation of bidding and pricing information. [Headnote 6] Although we conclude that the district court erred in grounding liability in common law claims that were displaced by statute, weIXUWKHUFRQFOXGHWKDWWKLVHUURUZDVKDUPOHVV __________

3

We note that our approval of Hutchison is not without limitation. Indeed, we do not agree that the UTSA provides a blanket preemption to all claims that arise from a factual circumstance possibly involving a trade secret. There may be future instances where a plaintiff will be able to assert tort claims, including intentional interference with prospective advantage and intentional interference with existing contract, that do not depend on the information at issue being deemed a trade secret, and thus are not precluded by the UTSA. See Powell Products, Inc. v. Marks, 948 F. Supp. 1469, 1474 (D. Colo. 1996). The factual circumstances underlying the claims in this matter, however, are completely dependent on the facts concerning misappropriation of trade secrets, and are therefore barred by the UTSA. 4

We note that JBM's cause of action for breach of the implied covenant of good faith and fair dealing would not be barred provided it was grounded in contract. An implied covenant of good faith and fair dealing exists in every Nevada contract and essentially forbids arbitrary, unfair acts by one party that disadvantage the other. See Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1311, 971 P.2d 1251, 1256 (1998); Overhead Door Co. v. Overhead Door Corp., 103 Nev. 126, 128, 734 P.2d 1233, 1235 (1987). NRS 600A.090(2)(a) explicitly provides that contractual remedies, even those based upon misappropriation of trade secrets, are not displaced by the UTSA. Accordingly, we conclude that the district court did not err in awarding damages based on the contractual remedy of breach of the covenant of good faith and fair dealing. ........................................ Ð116 Nev. 455, 466 (2000) Frantz v. JohnsonÐ Ð further conclude that this error was harmless. See NRCP 61. We determine that this error was harmless in light of the fact that NRS 600A.090 merely codifies the common law elements of misappropriation of confidential information of which JBM pleaded and proffered sufficient circumstantial evidence at trial. [Headnotes 7-9] The elements of a misappropriation of trade secrets claim include: (1) a valuable trade secret; 5 (2) misappropriation 6 of the trade secret through use, disclosure, or nondisclosure of use of the trade secret; and (3) the requirement that the misappropriation be wrongful because it was made in breach of an express or implied contract or by a party with a duty not to disclose. See Peter R.J. Thompson, An Outline of 23 California Common Law Business Torts, 13 Pac. L.J. 1, 19-20 (1981); see also NRS 600A.030(2) (defining misappropriation). The determination of whether corporate information, such as customer and pricing information, is a trade secret is a question for the finder of fact. See Woodward ,QVXU,QFY:KLWH

1(G,QG  __________ 5

NRS 600A.030(5) defines a trade secret as: information, including, without limitation, a formula, pattern, compilation, program, device, method, technique, product, system, process, design, prototype, procedure, computer programming instruction or code that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by the public or any other persons who can obtain commercial or economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

6

Misappropriation is further defined by statute. NRS 600A.030(2) provides that: “Misappropriation” means: (a) Acquisition of the trade secret of another by a person by improper means; (b) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (c) Disclosure or use of a trade secret of another without express or implied consent by a person

who: (1) Used improper means to acquire knowledge of the trade secret; (2) At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was: (I) Derived from or through a person who had used improper means to acquire it; (II) Acquired, under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (3) Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. ........................................ Ð116 Nev. 455, 467 (2000) Frantz v. JohnsonÐ Ð Insur., Inc. v. White, 437 N.E.2d 59, 67 (Ind. 1982). Factors to be considered include: (1) the extent to which the information is known outside of the business and the ease or difficulty with which the acquired information could be properly acquired by others; (2) whether the information was confidential or secret; (3) the extent and manner in which the employer guarded the secrecy of the information; and (4) the former employee's knowledge of customer's buying habits and other customer data and whether this information is known by the employer's competitors . . . . Id. (citations omitted); see also K.H. Larsen, Annotation, Former Employee's Duty, in Absence of Express Contract, Not to Solicit Former Employer's Customers or Otherwise Use This Knowledge of Customer Lists Acquired in Earlier Employment, 28 A.L.R. 3d 7 (1969) (setting forth a comprehensive list of factors for consideration of whether customer information constitutes a trade secret). [Headnotes 10, 11] We emphasize that not every customer and pricing list will be protected as a trade secret. In Neal v. Griepentrog, 108 Nev. 660, 666, 837 P.2d 432, 435 (1992), this court held that discount lists given by hospitals to various medical providers were not trade secrets, and should therefore be disclosed to the public. The instant customer and pricing information, however, is unlike that in Neal because there was testimony below that it was extremely confidential, its secrecy was guarded, and it was not readily available to others because the plastic gaming card industry is highly specialized. Causation

II.

[Headnote 12] Appellants contend, however, that there was insufficient evidence to support a finding that appellants misappropriated trade secrets because there was no direct evidence that appellants caused JBM's damages since not one lost customer testified that it ceased doing business with JBM because of appellants' conduct. We disagree that such direct evidence is necessary and conclude that there was sufficient circumstantial evidence that appellants misappropriated trade secrets. 7 __________ 7

In so concluding, we recognize that there is legal support holding to the contrary that requires direct evidence of causation, such as testimony of clients lost, to establish causation in employee disloyalty cases. See McCallister Co. v. Kastella, 825 P.2d 980, 984 (Ariz. Ct. App. 1992); ........................................

Ð116 Nev. 455, 468 (2000) Frantz v. JohnsonÐ Ð [Headnotes 13, 14] Causation is a question for the finder of fact that will not be overturned unless clearly erroneous. See Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 591-92 (1990); see also Frances v. Plaza Pacific Equities, 109 Nev. 91, 94, 847 P.2d 722, 724 (1993). Causation may be inferred from the circumstantial evidence presented at trial. See Erik Electric Co. v. Elliot, 375 So. 2d 1136, 1138 (Fla. Dist. Ct. App. 1979); Prentice Medical Corp. v. Todd, 495 N.E.2d 1044, 1049-50 (Ill. App. Ct. 1986). In the instant matter, there was adequate circumstantial evidence to support the district court's finding that appellants diverted JBM's trade secrets, thereby causing JBM economic loss. [Headnote 15] First, there is sufficient circumstantial evidence that Frantz misappropriated JBM's trade secrets. The following evidence supports this conclusion: (1) Larsen's testimony that there were pricing lists missing after Frantz left, and that thereafter JBM lost 40% of its card sales; (2) Frantz's testimony that she sent out numerous faxes and letters to JBM's customers stating that she could offer “more competitive pricing” and that she worked for the “direct manufacturer”; (3) Frantz's phone records indicating that post-TRO Frantz made 195 calls to Western and 48 calls to Promotional Graphics, including several calls to Western's fax number; and (4) Kehn's testimony that Frantz contacted her post-TRO and told her that if Kehn needed anything she could contact “Wes.” [Headnotes 16, 17] Second, there is sufficient circumstantial evidence to support a finding that Accornero and Plastic 8 misappropriated JBM's trade secrets. This evidence includes: (1) Malan's testimony that Accornero told him that he intended to compete against JBM andSXWLWRXWRIEXVLQHVVE\WDNLQJDOORILWVFXVWRPHUV __________ Bancroft-Whitney Co. v. Glen, 411 P.2d 921 (Cal. 1966). However, we explicitly disapprove of such a requirement based on our belief that an existing business is entitled to compensation in instances where indirect circumstantial evidence shows that its competitors harmed it through unfair and illegal business tactics. 8

Appellants also contend that compensatory and punitive damages should not have been assessed against the corporations, Plastic and Western, absent evidence of corporate misconduct. We disagree. We have previously held that a corporation is liable for damages committed by an agent employed in a managerial capacity acting within the scope of employment as a matter of law. See Smith's Food & Drug Cntrs. v. Bellegarde, 114 Nev. 602, 610, 958 P.2d 1208, 1215 (1998). Because Accornero and Ru are officers and managers of Plastic and Western, respectively, Accornero's and Ru's tortious acts committed within the scope of their employment are attributable to these corporations as a matter of law. ........................................ Ð116 Nev. 455, 469 (2000) Frantz v. JohnsonÐ Ð put it out of business by taking all of its customers; and (2) the testimony of another former employee of Accornero, who stated that Accornero had hired him from a competitor and asked him to use his knowledge of his former employer's pricing structure and customer base to sell for Plastic. [Headnote 18] Third, there was sufficient circumstantial evidence that Ru and Western were involved in misappropriating JBM's trade secrets, including: (1) Kehn's testimony that Frantz told her that she was unable to take orders but that Kehn “could call Wes and he would take care of anything that—he would help me in anyway that he could”; (2) Ru's signing of a Western Graphics check payable to Frantz for reimbursement for supplies at a trade show, a

show at which Charles testified Frantz solicited JBM's customers; and (3) Frantz's numerous post-TRO phone calls and faxes to Western's office. Accordingly, we conclude that there was sufficient circumstantial evidence in the record to support the district court's finding that appellants misappropriated trade secrets, thereby causing JBM damage. We therefore affirm the district court's conclusion that appellants were liable for JBM's damages. III. Compensatory damages Appellants next argue that the district court misapplied McGhie's calculation of damages. We agree. The district court has “wide discretion in calculating an award of damages, and this award will not be disturbed on appeal absent an abuse of discretion.” Diamond Enters., Inc. v. Lau, 113 Nev. 1376, 1379, 951 P.2d 73, 74 (1997) (citation omitted). With respect to proof of damages, we have held that a party seeking damages has the burden of providing the court with an evidentiary basis upon which it may properly determine the amount of damages. See Mort Wallin v. Commercial Cabinet, 105 Nev. 855, 857, 784 P.2d 954, 955 (1989). Further, we have noted that damages need not be proven with mathematical exactitude, and that the mere fact that some uncertainty exists as to the actual amount of damages sustained will not preclude recovery. See Mort Wallin, 105 Nev. at 857, 784 P.2d at 955. Finally, this court has held that to meet this burden of proof, a party seeking damages may utilize an expert economist to assist in the calculation of the total damages sustained, provided this expert testimony is not speculative but is instead based on facts known to the expert at the time. See Freeman v. Davidson, 105 Nev. 13, 16, 768 P.2d 885, 887 (1989); see also Gramanz v. T-Shirts and Souvenirs, ,QF1HY

3G ........................................ Ð116 Nev. 455, 470 (2000) Frantz v. JohnsonÐ Ð Inc., 111 Nev. 478, 485, 894 P.2d 342, 347 (1995) (holding that it is an abuse of discretion for an expert to give an opinion on facts beyond his knowledge). In the instant matter, appellants proffered testimony from McGhie, an expert witness on damages, whose calculations were sufficiently grounded in facts known to him at the time. Specifically, McGhie calculated the amount of lost profits for a five-year period, from 1990-95, by applying the percentage of profit that JBM had made from past sales to a reasonable approximation of future sales. [Headnote 19] The district court relied on McGhie's testimony but explicitly limited liability for JBM's losses to an eighteen-month period beginning when Frantz left JBM in October 1990, and ending in April 1992. In cases where a district court properly limits liability to a specified period of time, it is an abuse of discretion to consider losses outside this time period in calculating damages. [Headnote 20] Here, in arriving at total damages, it appears that the district court calculated total damages by applying a pro rata share equivalent to eighteen months of loss for each casino account, regardless of whether the loss occurred within the requisite time period. Eight of the thirteen casino accounts utilized by McGhie in his calculations, however, sustained losses outside the time period of liability found by the district court. These accounts included: Showboat, 1993; Circus Circus, 1993; Excalibur, 1993; Slots of Fun, 1993; Luxor, 1993; Colorado Belle, 1993; Edgewater, 1993; and Silver Legacy, 1995 (collectively hereinafter “the post-1992 losses”). We conclude that the district court abused its discretion by including a pro rata share of the post-1992 losses in its calculation because such damages were sustained outside the time period for which appellants were found liable. We therefore vacate the district court's award of damages and remand this matter for an evidentiary hearing for recalculation of damages that actually occurred solely within the eighteen-month time period from October 1990 to April 1992.

IV. Punitive damages [Headnote 21] Appellants next contend that the district court erred in awarding punitive damages against Ru, Western, and Plastic because there was no evidence of oppression, fraud, or express or implied malice. Although we conclude that there was substantial evidence in the record to support the district court's finding that appellantsDFWHG

PDOLFLRXVO\ ........................................ Ð116 Nev. 455, 471 (2000) Frantz v. JohnsonÐ Ð acted maliciously, 9 we reverse the district court's grant of punitive damages so that it may consider NRS 600A.050(2). NRS 600A.050(2) provides that: If willful, wanton or reckless misappropriation or disregard of the rights of the owner of the trade secret exists, the court may award exemplary damages in an amount not exceeding twice the award made under subsection 1. Pursuant to the plain language of NRS 600A.050(2), a punitive damages award under the UTSA is limited to two times the compensatory damages award. Because we have vacated the district court's award of compensatory damages for recalculation, we necessarily vacate the punitive damages award so that the district court can ensure that the parameters of NRS 600A.050(2) are satisfied. V.

Attorney fees

Appellants next contend that the district court erred in awarding attorney fees without a statutory basis for doing so. We disagree. [Headnotes 22, 23] A district court's award of attorney fees will not be disturbed on appeal absent a manifest abuse of discretion. See Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138, 1139-40 (1994). It is an abuse of discretion to award attorney fees without a statutory basis for doing so. See Rowland v. Lepire, 99 Nev. 308, 315, 662 P.2d 1332, 1336 (1983). In the case at bar, the district court awarded JBM $160,000.00 in attorney fees pursuant to NRS 18.010(2)(b), or alternatively, under NRS 600A.060. We conclude that the district court abused its discretion in relying on NRS 18.010(2)(b) as a statutory basis for its award. We further conclude, however, that this error was harmless because the district court's grant of attorney fees was proper under NRS 600A.060. __________ 9

The following evidence supported the district court's finding of malice: (1) testimony that Frantz took JBM's confidential customer and pricing information; (2) testimony that Frantz sent faxes to all of JBM's customers announcing that JBM did not manufacture its own cards and that she could offer “competitive” pricing; (3) testimony that Frantz did not comply with the TRO; (4) testimony that Accornero planned on taking all of JBM's customers in violation of his oral promise not to compete with JBM; and (5) testimony that Frantz contacted Kehn in violation of the TRO and “referred” her to Ru. See NRS 42.005; see also Paullin v. Sutton, 102 Nev. 421, 423, 724 P.2d 749, 750 (1986) (in reviewing the factual evidence supporting a punitive damages award, this court will presume all evidence favorable to the prevailing party and draw all reasonable inferences in the prevailing party's favor). ........................................ Ð116 Nev. 455, 472 (2000) Frantz v. JohnsonÐ Ð

A. NRS 18.010(2)(b) [Headnote 24] The plain language of NRS 18.010(2)(b) and our case law interpreting it do not permit an award of attorney fees for acting maliciously or engaging in unacceptable discovery tactics. 10 See Chowdhry v. NLVH, Inc., 109 Nev. 478, 851 P.2d 459 (1993); Semenza v. Caughlin Crafted Homes, 111 Nev. 1089, 901 P.2d 684 (1995). Rather, NRS 18.010(2)(b) allows an award of attorney fees to the prevailing party when a party has alleged a groundless claim that is not supported by any credible evidence at trial. See Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 996, 860 P.2d 720, 724 (1993). [Headnote 25] Our review of the record reveals no evidentiary basis to support the district court's explicit finding that appellants asserted frivolous counterclaims. A counterclaim cannot be frivolous as a matter of law when the party asserting the counterclaim actually prevails on the counterclaim. Here, both Frantz and Plastic prevailed on their counterclaims, and the district court reduced JBM's judgment to satisfy Frantz's counterclaim for lost wages and Plastic's counterclaim for payment of a California judgment against JBM. Accordingly, because appellants did not assert a groundless counterclaim, the district court abused its discretion in awarding attorney fees pursuant to NRS 18.010(2)(b). [Headnote 26] This error was harmless, however, because there was a proper statutory basis for the district court's award of attorney fees—NRS 600A.060(3). NRS 600A.060(3) provides that where “[w]illful and malicious misappropriation exists, the court may award reasonable attorney's fees to the prevailing party.” Here, the district court found that malicious misappropriation existed. Therefore, attorney fees were proper pursuant to NRS 600A.060(3). CONCLUSION We conclude that the district court erred in calculating damages. We therefore vacate the district court's award of compenVDWRU\ DQG SXQLWLYH GDPDJHV DQG UHPDQG WKLV PDWWHU IRU DQ HYLGHQWLDU\

KHDULQJIRUWKHSXUSRVHRIUHFDOFXODWLQJGDPDJHV __________ 10

NRS 18.010(2) provides: 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: .... (b) Without regard to the recovery sought, when the court finds that the claim . . . was brought without reasonable ground or to harass the prevailing party. (Emphasis added.) ........................................ Ð116 Nev. 455, 473 (2000) Frantz v. JohnsonÐ Ð satory and punitive damages and remand this matter for an evidentiary hearing for the purpose of recalculating damages. All other portions of the judgment entered below are affirmed.

____________

Ð116 Nev. 473, 473 (2000) Cone v. Nevada Service Employees UnionÐ Ð Ð ANNICE CONE, SHARON MALLORY, and KARL SCHLEPP, Appellants, v. NEVADA SERVICE EMPLOYEES UNION/SEIU LOCAL 1107, THE UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA, and the STATE OF NEVADA, LOCAL GOVERNMENT EMPLOYEE-MANAGEMENT RELATIONS BOARD, Respondents. No. 29718 May 4, 2000

998 P.2d 1178

Appeal from a district court order denying, in part, a petition for judicial review of an Employment Management Relations Board Decision. Eighth Judicial District Court, Clark County; Nancy A. Becker, Judge. Nonunion members of a bargaining unit petitioned for judicial review of a decision of the Employment Management Relations Board upholding a union policy. The district court denied the petition in part and granted it in part, and the nonunion members appealed. The supreme court, resolving an issue it had not previously considered, held that the challenged policy, imposing fees on nonunion members for representation in grievance matters, was valid under state labor relations statutes. Affirmed. Frank J. Cremen, Las Vegas, for Appellants. Frankie Sue Del Papa, Attorney General, Jan Cohen, Senior Deputy Attorney General, and Matthew T. Dushoff, Deputy Attorney General, Carson City; Stewart L. Bell, District Attorney, and Mitchell M. Cohen, Deputy District Attorney, Clark County; Dennis A. Kist & Associates, Las Vegas; Van Bourg, Weinberg, Roger & Rosenfeld and James G. Varga, Los Angeles, California; and National Right to Work Legal Defense Foundation and Glenn M. Taubman, Springfield, Illinois, for Respondents. 1. Labor Relations. Statute defining a bargaining agent as an “exclusive representative” did not prohibit a union from charging nonunion members of the bargaining unit costs for the union's grievance representation services, despite claim that statutory designation as the “exclusive” representative required union to provide all services for free. Implicit in the plain lanJXDJHRIDQRWKHUVWDWXWH

........................................ Ð116 Nev. 473, 474 (2000) Cone v. Nevada Service Employees UnionÐ Ð

2.

3.

4.

5.

6.

guage of another statute, authorizing a nonunion member to act on his own behalf with respect to any condition of his employment, is the requisite that a nonunion member pay for pursuing his or her own grievance, even if such payment is made to the union. NRS 288.027, 288.140(2). Labor Relations. Limitations period for the filing of a claim by nonunion members of a bargaining unit ran from the date of enactment of a challenged policy charging nonunion members for the union's grievance representation services, rather than from the time the collective bargaining agreement (CBA) authorized the union to enact the policy. NRS 288.110(4). Labor Relations. Policy imposing fees on nonunion members of a bargaining unit for representation in grievance matters did not violate the right to work laws. Paying a service fee for grievance representation was not a condition of employment, but rather, an individual could opt to hire his or her own counsel, and thereby forego giving the union any money at all without fear of losing his or her job. NRS 613.250. Labor Relations. Right to work laws were enacted for the express purpose of guaranteeing every individual the right to work for a given employer regardless of whether the worker belongs to a union. NRS 613.250. Labor Relations. Union's imposing fees on nonunion members of the bargaining unit for representation in grievance matters was not discrimination against or coercion of the nonunion members, so as to breach union's statutory duty of fair representation. Policy merely recognized the mutuality of obligation that may arise under an exclusive bargaining arrangement. NRS 288.140(1), 288.270(2). Labor Relations. Exclusive bargaining relationship establishes a “mutuality of obligation”: a union has the obligation to represent all employees in

the bargaining unit without regard to union membership, and the employee has a corresponding obligation, if permissible under the collective bargaining agreement (CBA) and required by the union policy, to share in defraying the costs of collective bargaining services from which he or she directly benefits. 7. Labor Relations. Supreme court is not bound by a National Labor Relations Board (NLRB) decision when it determines that the statutes involved do not fall within the purview of the National Labor Relations Act. National Labor Relations Act, §§ 7, 8, as amended, 29 U.S.C. §§ 157, 158.

Before Rose, C. J., Maupin and Shearing, JJ. OPINION Per Curiam: SUMMARY This case presents an issue that we have not previously considered: whether it is an unfair labor practice for a union to charge QRQXQLRQ PHPEHUV ZLWKLQ LWV EDUJDLQLQJ XQLW IHHV IRU LQGLYLGXDO

UHSUHVHQWDWLRQLQJULHYDQFHVKHDULQJVDQGDUELWUDWLRQV ........................................ Ð116 Nev. 473, 475 (2000) Cone v. Nevada Service Employees UnionÐ Ð nonunion members within its bargaining unit fees for individual representation in grievances, hearings, and arbitrations. Both the Employer Management Relations Board and the district court, in part, answered this question in the negative. We agree, and therefore affirm the order of the district court. STATEMENT OF THE FACTS The relevant facts in this case are not in dispute, as the parties have stipulated to them. Appellants, Annice Cone, Sharon Mallory, and Karl Schlepp (collectively hereinafter “appellants”), are nonunion employees of the University Medical Center of Southern Nevada (“UMC”), a local government employer pursuant to NRS 288.060. Appellants, as employees of UMC, are governed by a collective bargaining agreement (the “CBA”) and are members of a bargaining unit that is represented by Nevada Service Employees Union/SEIU Local 1107 (the “union”). In October 1994, approximately 100 union members, including the appellants in this case, exercised their rights under article 8, section 4 of the CBA to revoke their union dues authorization forms, thereby becoming nonunion members of the bargaining unit. During this same time period, in October 1994, the union disseminated a new Executive Board Policy (the “policy”), which is at issue in this case. The policy served two purposes: (1) to establish a fee schedule for all nonmembers of the union for representation in grievance matters; and (2) to notify nonunion members that they could select outside counsel to represent them in bargaining unit matters. The policy's fee schedule provided that grievance consultation would cost a minimum of sixty dollars an hour, that the nonunion member was responsible for fifty percent of the billed fee for hearing officers and arbitrators, and one hundred percent of union attorney fees of up to two hundred dollars per hour. The policy was authorized by article 6, section 2 of the CBA, which provides that: The Union recognizes its responsibility as bargaining agent and agrees fairly to represent all employees in the bargaining unit. UMC recognizes the right of the Union to charge nonmembers of the Union a reasonable service fee for representation in appeals, grievances and hearings. It is undisputed that the policy was never actually enforced against any UMC nonunion employee, including appellants. However, because appellants believed that article 6, section 2 of the CBA and the policy violated the Local Government Employee-Management Relations Act (the “act”), appellants filed a complaint with the Local Government Employee-Management5HODWLRQV%RDUGWKH³ERDUG´ 

........................................ Ð116 Nev. 473, 476 (2000) Cone v. Nevada Service Employees UnionÐ Ð Relations Board (the “board”). In their complaint, filed on March 7, 1995, appellants alleged that the policy violated the act because it “interfered with, restrained, coerced and discriminated against the [appellants] (and all other employee[s] in the bargaining unit) in the exercise of their right, if they choose, to be nonmembers of the UNION, all in violation of NRS 288.140, 288.270(1)(a), 288.270(1)(c), 288.270(2)(a).” In response to appellants' initial complaint, UMC, the board, and the union filed answers. Thereafter, the parties filed legal briefs, stipulated to the facts, and agreed to let the board decide the issues in this case without a hearing. On January 10, 1996, the board issued a divided 2-1 decision. A majority of the board upheld the policy, concluding that it was not contrary to the provisions of NRS Chapter 288 or Nevada's Right to Work Law (NRS 613.230-.300) and that, in the alternative, appellants had waived by inaction their right to object to such provisions. Further, the board concluded that the policy was neither coercive nor discriminatory in nature and did not derogate the union's statutory duty as an exclusive bargaining agent to represent all UMC employees fairly and impartially. In contrast, the dissenter to the board's decision concluded that the policy was invalid as a prohibited practice under NRS 288.270(2)(a) because it served to coerce nonunion employees into joining the union. Further, the dissent concluded that the policy was a prohibited practice because the union, as the exclusive bargaining agent for UMC employees, had a duty to represent all union and nonunion employees on a nondiscriminatory basis. Because appellants felt that the board erred in reaching this conclusion, appellants filed a petition for judicial review (the “petition”). The district court denied in part and granted in part 1 the petition, ruling that it was not arbitrary or capricious for the board to conclude that the policy was not discriminatory against nonunion employees or otherwise unlawful as interpreted. Believing that the district court erred in making the aforementioned ruling, appellants filed this timely appeal. DISCUSSION This court has held that it will conduct an independent review of an administrative agency's construction of a statute where the facts are not in dispute. See American Int'l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983). __________ 1

Although the district court upheld the policy as interpreted, it remanded this matter to the board with instructions that the board require the union to rewrite the policy to clarify that the policy only applied to individual grievances, not generalized grievances that affect all employees. ........................................ Ð116 Nev. 473, 477 (2000) Cone v. Nevada Service Employees UnionÐ Ð Because the facts are not in dispute in this matter, and indeed have been stipulated to, this court's review is de novo. [Headnotes 1, 2] The board, and later the district court, concluded that NRS 288.027 did not prohibit the union from charging a nonmember costs for the union's grievance representation services. Appellants first contend that this conclusion is erroneous because the union, as the “bargaining agent” of UMC employees, is obligated by the plain language of NRS 288.027 to “exclusively” represent all UMC employees, including nonunion members, in all grievance matters without charging a fee. 2 We disagree.

A. NRS 288.027 NRS 288.027 defines a bargaining agent as an “exclusive” representative: an employee organization recognized by the local government employer as the exclusive representative of all local government employees in the bargaining unit for purposes of collective bargaining. Because of the inclusion of the word “exclusive,” appellants conclude that the union is not allowed to “pick and choose” which of the representational activities that it will provide free of charge because its statutory designation as the “exclusive representative” requires it to provide all services for free. We do not agree that the mere inclusion of the word “exclusive” in and of itself prohibits a union from charging nonunion members service fees for individual grievance representation. 3

See National 7UHDVXU\ (PSOR\HHV 8QLRQ Y )HGHUDO/DERU5HODWLRQV$XWK)G'&&LU __________ 2

Appellants also contend that the board erred in concluding that the statute of limitations barred appellants' claim because the CBA provision authorizing the union to enact the policy had been in effect for six years. We agree. Appellants did not waive their right to contest the validity of the policy because they filed their claim within six months of the policy's enactment. See NRS 288.110(4) (setting forth six-month statute of limitations); Fraternal Order of Police Haas Mem'l Lodge #7 v. Pennsylvania Labor Relations Bd., 696 A.2d 873, 876 (Pa. Commw. Ct. 1997) (holding that the limitations period for the filing of an unfair labor practices charge is triggered when the complainant has reason to believe that an unfair labor practice has actually occurred); Las Vegas Police Protective Ass'n Metro, Inc. v. City of Las Vegas, EMRB Item No. 264, Case No. A1-04445474, at 5 (July 15, 1991) (courts construe the waiver doctrine strictly). Because we agree with appellants that they did not waive their right to object to the policy, we reach the substantive merits of their appeal. 3

We recognize that there is authority supporting appellants' position. See International Assoc. of Machinists and Aerospace Workers, Local Union 697, 223 N.L.R.B. 832, 834 (1976) (describing the role of a union designated by statute as an “exclusive” bargaining agent). However, we disagree with the National Labor Relations Board's (“NLRB”) conclusion that an exclusive ........................................ Ð116 Nev. 473, 478 (2000) Cone v. Nevada Service Employees UnionÐ Ð Treasury Employees Union v. Federal Labor Relations Auth., 800 F.2d 1165, 1167 (D.C. Cir. 1986) (noting that there was “nothing particularly plain or compelling about the text [of a similar federal statute], standing alone”). Further, with regard to statutory language, there is another Nevada statute, NRS 288.140(2), that explicitly authorizes a nonunion member to act on his own behalf “with respect to any condition of his employment.” This statute provides an individual with a right to forego union representation. Implicit in the plain language of this provision is the requisite that a nonunion member pay for pursuing his or her own grievance, even if such payment is made to the union. Accordingly, we conclude that there is nothing in the plain language of NRS 288.027 that would prohibit the union from charging nonmembers fees for individual representation. B. Right to work laws [Headnotes 3, 4] Appellants next contend that the policy violates Nevada's right to work laws. Nevada's right to work laws, particularly NRS 613.250, were enacted for the express purpose of guaranteeing every individual the right to work for a given employer regardless of whether the worker belongs to a union. See Independent Guard Ass'n v. Wackenhut Servs., 90 Nev. 198, 202-03, 522 P.2d 1010, 1013 (1974). In Wackenhut, this court invalidated an agency shop agreement, an agreement to pay fees to a labor organization in lieu of membership dues, because it

violated NRS 613.250 since it was equivalent to conditioning employment on union membership. 90 Nev. at 203, 522 P.2d at 1014. The instant policy is unlike the agency shop agreement in Wackenhut, because paying a service fee for grievance representation is not a condition of employment. Indeed, an individual may opt to hire his or her own counsel, and thereby forego giving the union any money at all without fear of losing his or her job. Accordingly, we conclude that the policy does not violate Nevada's right to work laws. C. NRS 288.140(1) and NRS 288.270(2) [Headnote 5] Appellants' final argument is that the union discriminated against its nonunion members, and thereby breached its duty of fair representation set forth in NRS 288.140(1) and NRS __________ bargaining agent cannot charge nonmembers fees for individual grievance representation. ........................................ Ð116 Nev. 473, 479 (2000) Cone v. Nevada Service Employees UnionÐ Ð 288.270(2) by charging nonunion members a service fee for individual grievance representation. 4 We disagree. NRS 288.140(1) 5 sets forth the union's duty of fair representation and explicitly states that a local government employer shall not discriminate based on membership or nonmembership in an employee organization. Further, NRS 288.270(2) describes the prohibited practices of an employee organization, including that it may not: (a) Interfere with, restrain or coerce any employee in the exercise of any right guaranteed under this chapter. .... (c) Discriminate because of . . . political or personal reasons or affiliations. We see no discrimination or coercion, however, in requiring nonunion members to pay reasonable costs associated with individual grievance representation, and therefore conclude that the union did not violate the aforementioned statutes. There is persuasive authority and a compelling rationale in support of our conclusion. First, several other jurisdictions have held that requiring nonunion members to pay costs for union representation was not discriminatory, coercive or restraining. See Schaffer v. Board of Education, 869 S.W.2d 163, 166-68 (Mo. Ct. App. 1993); Opinion of the Justices, 401 A.2d 135, 147 (Me. 1979). [Headnote 6] Second, like the Supreme Judicial Court of Maine, we are convinced that the exclusive bargaining relationship establishes a “mutuality of obligation”: a union has the obligation to represent all employees in the bargaining unit without regard to union membership, and the employee has a corresponding obligation, if permissible under the CBA and required by the union policy, to share in defraying the costs of collective bargaining services from which he or she directly benefits. See Opinion of the Justices, 401 A.2dDW __________ 4

Appellants assert several other arguments, including but not limited to their contention that the decision to assess a fee for grievance representation should be made by the legislature and that the policy unfairly concentrates the cost of grievance adjustment on nonmembers. We have considered appellants' arguments and conclude that they lack merit.

5

NRS 288.140(1) provides that: It is the right of every local government employee, subject to the limitation provided in subsection 3, to join any employee organization of his choice or to refrain from joining any employee organization. A local government employer shall not discriminate in any way among its employees on account of membership or nonmembership in an employee organization. ........................................ Ð116 Nev. 473, 480 (2000) Cone v. Nevada Service Employees UnionÐ Ð at 147. Our recognition of this mutuality of obligation will, in part, serve to discourage “free riders”—employees who receive the benefits of union representation but are unwilling to contribute to its financial support. See Schaffer, 869 S.W.2d at 166 (citing NLRB v. General Motors Corp., 373 U.S. 734, 743 (1963)). [Headnote 7] Although appellants cite much precedent, 6 including NLRB opinions, in support of their position, we reject this authority. Preliminarily, we note that this court is not bound by an NLRB decision when it determines that the statutes involved do not fall within the purview of the National Labor Relations Act. See Associated Gen. Contractors v. Otter Tail Power Co., 457 F. Supp. 1207, 1216 (D. N.D. 1978) (activities not listed in sections seven and eight of the National Labor Relations Act are within the jurisdiction of the state courts). Further, we disagree with this authority because it leads to an inequitable result that we cannot condone, by essentially requiring union members to shoulder the burden of costs associated with nonunion members' individual grievance representation. Accordingly, we conclude that the union did not discriminate against nonmembers in enacting the policy, and that the policy merely recognized the mutuality of obligation that may arise under an exclusive bargaining arrangement. CONCLUSION Accordingly, we hold that the policy is not violative of NRS 288.027, Nevada's right to work laws, NRS 288.140(1), or NRS 288.270(2). We therefore affirm the order of the district court. __________ 6

Appellants' citation of authority includes: National Treasury Employees Union v. Federal Labor Relations Auth., 721 F.2d 1402 (D.C. Cir. 1983); Del Casal v. Eastern Airlines, Inc., 634 F.2d 295 (5th Cir. 1981); Furniture Workers Div., Local 282, 291 N.L.R.B. 182 (1988); Columbus Area Local, American Postal Workers Union, 277 N.L.R.B. 541 (1985); International Association of Machinists and Aerospace Workers, Local Union No. 697, 223 N.L.R.B. 832 (1976). ____________ ........................................ Ð116 Nev. 481, 481 (2000) Furbay v. StateÐ Ð HAROLD ROSS FURBAY, aka DAVID LEE HAMMOND, Appellant, v. THE STATE OF NEVADA, Respondent. No. 31857 May 4, 2000

998 P.2d 553

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first degree murder and one

count of robbery. The district court sentenced appellant to life without the possibility of parole for murder and to a consecutive term of fifteen years for robbery. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge. Defendant was convicted in the district court of first degree murder and robbery, and was sentenced to life without possibility of parole for murder and consecutive term of fifteen years for robbery. Defendant appealed. The supreme court held that: (1) delay of five and one-half years between defendant's arrest and trial did not implicate his constitutional right to speedy trial, (2) defendant waived appellate review of claim that he was denied his constitutional right to self-representation, (3) evidence was sufficient to support convictions, and (4) prosecutor's office was not required to provide defendant with inculpatory evidence prior to penalty hearing. Affirmed. Philip J. Kohn, Special Public Defender, and Lee Elizabeth McMahon and Mark B. Bailus, Deputy Special Public Defenders, Clark County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and Brian Rutledge, Deputy District Attorney, Clark County, for Respondent. 1. Attorney and Client; Criminal Law. Defendant can waive his statutory right to a trial within 60 days after arraignment, and such a waiver can be expressed by counsel. NRS 178.556(2). 2. Criminal Law. There is no fixed time that indicates when a defendant's fundamental constitutional right to a speedy trial has been violated; thus, the right is assessed in relation to the circumstances of each case. U.S. Const. amend. 6. 3. Criminal Law. Prosecution must discharge its constitutional duty to make a diligent, good-faith effort to bring a defendant to trial. U.S. Const. amend. 6. 4. Criminal Law. When determining whether a defendant's fundamental constitutional right to a speedy trial was violated, four factors should be considered:

........................................ Ð116 Nev. 481, 482 (2000) Furbay v. StateÐ Ð (1) length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. U.S. Const. amend. 6. 5. Criminal Law. Delay of five and one-half years between murder defendant's arrest and his trial did not implicate his constitutional right to speedy trial, absent any evidence that defendant was prejudiced by delay. Five of the nine continuances responsible for entire delay were requested by defense, two other dates were continued for plea negotiations which ultimately failed, one date was continued for good cause because state could not locate a witness, and only continuance not requested by defense or supported by good cause, that granted to permit prosecutor to attend a seminar, accounted for only two months' delay. U.S. Const. amend. 6. 6. Criminal Law. Defendant has a constitutional right to personally make his defense. 7. Criminal Law. To determine whether a defendant can represent himself, courts conduct a two-part inquiry: first, the defendant must be competent to waive his right to assistance of counsel; second, when an accused relinquishes his right to counsel, he must do so knowingly and intelligently. 8. Criminal Law. Murder defendant waived appellate review of claim that he was denied his constitutional right to self-representation by rejecting offered opportunity to revisit trial court's denial of his motion for self-representation, and by expressly waiving his right to self-representation at that time. 9. Criminal Law. Jury conviction will stand where the record reveals substantial evidence that reasonably supports a finding of guilt beyond a reasonable doubt. 10. Criminal Law. Upon appellate review of sufficiency of the evidence to support a conviction, all of the evidence is to be considered in the light most favorable to the prosecution. 11. Criminal Law. It is the jury's function, not that of the appellate court, to assess the weight of the evidence and determine the credibility of

witnesses. 12. Robbery. Evidence was sufficient to support defendant's conviction for robbery, despite fact that none of the property stolen was presented at trial. Taking of victim's property was accomplished by means of victim's murder, testimony at trial indicated that defendant was in possession of victim's pickup truck, television, and other items, including jewelry, after murder, and pawned or had others pawn various possessions of defendant, and defendant was still in possession of victim's truck at time of his arrest. NRS 200.380(1). 13. Homicide. Evidence was sufficient to support defendant's conviction for first degree murder, based on his commission of murder in perpetration of a robbery. Defendant worked for victim and was one of the last persons seen with victim, witness testified that he saw defendant with individual matching victim's description shortly before commission of the crime, and defendant was in possession of victim's property after murder. NRS 200.380(1)(b).

........................................ Ð116 Nev. 481, 483 (2000) Furbay v. StateÐ Ð 14. Criminal Law. Prosecutor is under no general duty to provide inculpatory, as opposed to exculpatory, evidence to the defense. 15. Criminal Law. Prosecutor's office was not required to provide murder defendant with inculpatory evidence in its possession prior to penalty hearing, where prosecutor's office did not have open file policy and had not promised defendant to provide him with inculpatory evidence.

Before Maupin, Shearing and Becker, JJ. OPINION Per Curiam: On appeal from a judgment of conviction of first degree murder and robbery, Harold Furbay argues that (1) his right to a speedy trial was violated, (2) his motion for self-representation was improperly denied, (3) there was insufficient evidence to convict him of murder and robbery, and (4) he was denied a fair penalty hearing. We reject Furbay's contentions and affirm his conviction and sentence. In late 1991, Furbay met Max Combs at a truck stop in El Paso, Texas. Combs allowed Furbay to join him as he journeyed to Elko, Nevada. Their trip was interrupted when a Lake Mead park ranger impounded Combs' vehicle. Combs did not have sufficient funds to redeem his vehicle, so Furbay searched for employment in Las Vegas. Furbay began assisting Walter Jerry Mitchell with his pony ride business. Two weeks later, Furbay brought a man matching Mitchell's description to Combs' hotel. They arrived in a vehicle matching the description of Mitchell's pickup truck. Two weeks after that, Furbay arrived at Combs' hotel with the truck but without Mitchell. Furbay indicated that Mitchell was out of town and had permitted him to use the vehicle. Mitchell's television and other personal items were in the back of the truck. Furbay and Combs decided to continue their journey to Elko in Mitchell's truck. In Elko, Furbay tried to pawn some items, but was turned away for inadequate identification. Combs sold a silver and turquoise ring at a jewelry and loan establishment. Combs later revealed to police that Furbay sold a television and VCR in Las Vegas before leaving for Elko. After arriving in Elko, Furbay and Combs parted ways. Mitchell's body was found in Las Vegas on January 11, 1992. Mitchell had been killed by blunt trauma to the head and strangulation. In the aftermath of Mitchell's death, Mitchell's wife, who did not live with him, discovered a bill for telephone calls to%DOWLPRUH0DU\ODQGSODFHGRQ-DQXDU\DQG ........................................ Ð116 Nev. 481, 484 (2000) Furbay v. StateÐ Ð Baltimore, Maryland, placed on January 9 and 10, 1992. Many of Mitchell's personal items, including silver and turquoise jewelry, a television, and a VCR, were also missing from his home. Back in Elko, Furbay met Ricky Loftis from Moab, Utah. Furbay introduced himself as Jerry Mitchell. Loftis

recently drove to Elko, but he was out of gas and money. Furbay asked Loftis to pawn some of Mitchell's items, but Loftis was turned away for lack of identification. Loftis later sold a silver and turquoise watch in a parking lot, and a hitchhiker agreed to pawn other items. After Loftis sold his truck, the two agreed to travel to Moab in Mitchell's truck. Before leaving, Furbay switched the license plates on Mitchell's truck with those on Loftis' truck. During the trip to Moab, Loftis became suspicious of Furbay and decided to notify the police. After both were arrested, the police found an identification card for Jerry Mitchell in Furbay's wallet. After further investigation, Furbay's fingerprints were found in Mitchell's home. The police also discovered that the phone calls to Maryland were to Furbay's sister and a friend. Following a jury trial beginning on October 20, 1997, Furbay was found guilty of first degree murder and robbery. Right to a speedy trial Furbay argues that his right to a speedy trial was violated because his jury trial did not occur until five and one-half years after his arrest in 1992. [Headnote 1] In Nevada, a defendant has a statutory right to a trial within 60 days after arraignment. See NRS 178.556(2). However, a defendant can waive this statutory right and such a waiver can be expressed by counsel. See Schultz v. State, 91 Nev. 290, 292, 535 P.2d 166, 167 (1975). In this case, Furbay's counsel waived application of the 60-day rule at Furbay's arraignment. [Headnotes 2-4] A defendant's fundamental constitutional right to a speedy trial was decided in Barker v. Wingo, 407 U.S. 514, 515 (1972). In Barker, the U.S. Supreme Court stated that there is no fixed time that indicates when the right to a speedy trial has been violated; thus, the right is assessed in relation to the circumstances of each case. See id. at 521. The prosecution, however, must discharge its “constitutional duty to make a diligent, good-faith effort to bring [the defendant to trial].” Moore v. Arizona, 414 U.S. 25, 26 (1973) (citations omitted). When determining whether the right to a speedy trial was violated, four factors should be considered: (1) length of delay; (2) the reason for the delay; (3) the defendant'sDVVHUWLRQRIKLVULJKW ........................................ Ð116 Nev. 481, 485 (2000) Furbay v. StateÐ Ð assertion of his right; and (4) prejudice to the defendant. See Barker, 407 U.S. at 530. [Headnote 5] During the intervening five and one-half years between Furbay's arrest and his jury trial, his trial was continued nine separate times. While Furbay invoked his speedy trial rights in open court, the second factor of the Barker analysis weighs overwhelmingly in favor of the prosecution. Defense counsel requested five of the trial continuances. Two other trial dates were continued because the parties entered into plea negotiations which failed. Another trial date was continued for good cause because the prosecution could not locate a witness. And another trial date was continued because the prosecutor wished to attend a seminar. Thus, all but one of the continuances were for good cause or were occasioned by defense motions or tactics. See, e.g., Barker, 407 U.S. at 530. We conclude that the two-month postponement for the prosecutor's seminar attendance was unacceptable delay; however, this is the only unacceptable delay in the five-and-one-half year period, and therefore, we hold there was no infringement of Furbay's constitutional speedy trial right. There was no evidence that the actions of the prosecution prejudiced Furbay. Right to self-representation

[Headnotes 6, 7] A defendant has a constitutional right to personally make his defense. See Faretta v. California, 422 U.S. 806, 819 (1975). To determine whether a defendant can represent himself, courts conduct a two-part inquiry. First, the defendant must be competent to waive his right to assistance of counsel. See Godinez v. Moran, 509 U.S. 389, 399 (1993). Second, when an accused relinquishes his right to counsel, he must do so “knowingly and intelligently.” Faretta, 422 U.S. at 835. An accused's “technical legal knowledge, as such, is not relevant to an assessment of his knowing exercise of the right to defend himself.” Id. at 836. [Headnote 8] By August 1994, Furbay had filed three motions to dismiss counsel as ineffective—all of which were denied. Furbay filed a motion to represent himself when the court refused to appoint other counsel. This motion was also denied. The record indicates that Furbay was aware of the dangers of proceeding without counsel at trial. However, it is unclear whether Furbay was aware that the prosecution was seeking the death penalty. Although the prosecution filed a notice to seek the death penalty, the record does not show that Furbay understood that the prosecution could seekWKHGHDWKSHQDOW\ ........................................ Ð116 Nev. 481, 486 (2000) Furbay v. StateÐ Ð the death penalty. The district court's decision to deny Furbay's motion for self-representation was significantly based on the district court's determination that Furbay was not aware that he might face the death penalty if convicted. We need not determine whether Furbay was unconstitutionally denied the right to represent himself. In March 1997, the district court gave Furbay an opportunity to revisit the previous decision regarding Furbay's motion for self-representation. Furbay rejected the opportunity and waived his right to self-representation. Sufficiency of the evidence [Headnotes 9-11] A jury conviction will stand where the record reveals substantial evidence that reasonably supports a finding of guilt beyond a reasonable doubt. See Doyle v. State, 112 Nev. 879, 891, 921 P.2d 901, 910 (1996). Upon appellate review, all of the evidence is to be considered in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 318 (1979). It is the jury's function, not that of the appellate court, to assess the weight of the evidence and determine the credibility of witnesses. See Doyle, 112 Nev. at 891-92, 921 P.2d at 910. [Headnote 12] Furbay alleges that because none of Mitchell's stolen property was presented at trial there was insufficient evidence to find him guilty. NRS 200.380(1) defines robbery as: [T]he 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. The act of violence in this case was the murder of Mitchell. It does not matter whether the intent to rob was conceived before or after the act of violence. See Leonard v. State, 114 Nev. 1196, 1210, 969 P.2d 288, 296 (1998). Furbay was in possession of Mitchell's pickup truck, television, and other items, including jewelry, when he picked up Combs in Las Vegas. Testimony at trial indicated that the television and the other items, which Furbay tried to pawn or had others pawn, were Mitchell's. When Furbay was arrested, he was still in possession of Mitchell's truck. When the evidence is viewed in the light most favorable to the prosecution, there is sufficient evidence to convict Furbay of robbery.

........................................ Ð116 Nev. 481, 487 (2000) Furbay v. StateÐ Ð [Headnote 13] There was also sufficient evidence to convict Furbay of murder in the first degree. 1 Trial testimony revealed that Furbay worked for Mitchell and was one of the last persons seen with the deceased. Combs indicated that he saw Furbay with an individual matching Mitchell's description shortly before the commission of the crime. The fact that Furbay was in possession of Mitchell's property is evidence that Furbay committed the murder in perpetration of a robbery which is sufficient evidence to constitute first degree murder under NRS 200.030(1)(b). Again, when the evidence is viewed in the light most favorable to the prosecution, there is sufficient evidence to find Furbay guilty of first degree murder. Penalty hearing At sentencing, the prosecution presented an Alabama police investigator who revealed information about murder charges against Furbay in Alabama. The investigator also testified about an altercation that Furbay had with a previous employer. Furbay now contends that he did not receive a fair trial because the prosecution did not produce all of the investigator's reports prior to the hearing. [Headnotes 14, 15] The prosecutor is under no general duty to provide inculpatory, as opposed to exculpatory, evidence to the defense. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (discussing exculpatory evidence); Rivera v. State, 808 S.W.2d 80, 95 (Tex. Crim. App. 1991) (discussing inculpatory evidence). Furbay incorrectly argues that McKee v. State, 112 Nev. 642, 647-48, 917 P.2d 940, 943-44 (1996) supports his contention. In McKee, this court held that the prosecution deliberately withheld inculpatory evidence in its possession and control despite professing to have an open file policy. This court concluded that the prosecution is held to a high ethical standard and must abide by the promises it makes. When the prosecution purports to give all inculpatory evidence in its control, it may not withhold evidence for later use. See id. at 648, 917 P.2d at 944. The case at bar does not involve a prosecutor'sSURPLVHWRSURYLGHDOOHYLGHQFHLQLWVSRVVHVVLRQWRWKHGHIHQVH __________ 1

NRS 200.030(1) defines murder in the first degree as: (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 . . . robbery, burglary, . . . or (c) Committed to avoid or prevent the lawful arrest of any person by a peace officer or to effect the escape of any person from legal custody. ........................................ Ð116 Nev. 481, 488 (2000) Furbay v. StateÐ Ð promise to provide all evidence in its possession to the defense. Furbay's rights were not violated, and he is not entitled to a new hearing. Therefore, we affirm Furbay's conviction and sentence.

____________

Ð116 Ð Nev. 488, 488 (2000) Jennings v. StateÐ Ð

CHARLES EDWARD JENNINGS, Appellant, v. THE STATE OF NEVADA, Respondent. No. 31863 May 4, 2000

998 P.2d 557

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. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge. Defendant was convicted in the district court of first-degree murder with use of a deadly weapon. Defendant appealed. The supreme court, Shearing, J., held that amendment of the information, based on defendant's testimony at trial, to add felony-murder charge based on theory that defendant had kidnapped the victim before killing him, violated defendant's fundamental right under Sixth Amendment and state constitution to be clearly informed of nature and cause of charges in order to permit adequate preparation of a defense. Reversed and remanded. [Rehearing denied July 25, 2000] Mace J. Yampolsky, Ltd., Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and William Koot, Deputy District Attorney, Clark County, for Respondent. 1. Indictment and Information. Amendment of the information to set forth added alternative theories of the mental state required for first-degree murder does not charge an “additional or different offense” within meaning of statute providing that the information may be amended at any time before verdict if no additional or different offense is charged and if defendant's substantial rights are not prejudiced. NRS 173.095(1). 2. Indictment and Information. The Sixth Amendment and the state constitution both guarantee a criminal defendant a fundamental right to be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense. Const. art. 1, § 8; U.S. Const. amend. 6.

........................................ Ð116 Nev. 488, 489 (2000) Jennings v. StateÐ Ð 3. Constitutional Law; Indictment and Information. The Sixth Amendment guarantee to a criminal defendant, of the fundamental right to be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense, is applicable to the states through the Due Process Clause of the Fourteenth Amendment. U.S. Const. amends. 6, 14. 4. Indictment and Information. Amendment of information in prosecution for first-degree murder with use of deadly weapon, based on defendant's testimony at trial, to add felony-murder charge based on theory that defendant had kidnapped the victim before killing him, violated defendant's fundamental right to be clearly informed of nature and cause of charges in order to permit adequate preparation of a defense. Defendant had no reason to expect that State would allege his act of beckoning victim while defendant held gun in his hand, which State knew of from pretrial statements, constituted a kidnapping, and defendant might have testified differently if he had known he would be charged under a theory that disregarded intent to murder. Const. art. 1, § 8; U.S. Const. amend. 6; NRS 173.095(1).

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Shearing, J.: Appellant Jennings was terminated from his job at the United States Postal Service in Las Vegas. On December 16, 1996, when Jennings received the final decision affirming his termination, he started a three-day crack cocaine binge with an acquaintance. He also removed his wife's gun from their home sometime during those three days, allegedly because he was planning to kill himself. Jennings later claimed that on the morning of December 19th, while still under the influence of cocaine, he drove to the post office parking lot, beckoned to the victim, a former co-worker, and then

killed him by firing two bullets into his head. Jennings said the victim was trying to take the gun out of his hand when it went off. Jennings drove away and turned himself in to the police a few minutes later. Jennings gave the police a voluntary, tape-recorded statement regarding the shooting and events leading up to it. Jennings was charged with first-degree murder with the use of a deadly weapon. The case proceeded to trial, and Jennings testified on his own behalf. Following his testimony, the State amended its information to add a felony-murder theory alleging Jennings kidnapped the victim before shooting him. The jury convicted Jennings of first-degree murder with the use of a deadly weapon, and the district court sentenced him to two consecutive life sentences without the possibility of parole. Jennings appeals from this judgment. ........................................ Ð116 Nev. 488, 490 (2000) Jennings v. StateÐ Ð Amendment of information Jennings argues that his Sixth Amendment right to a fair trial under the United States Constitution was violated by the State's amendment of the information after he already testified. In fact, the amendment of the information was allegedly based on Jennings' testimony. [Headnotes 1-3] Amendment of a criminal information at any time before verdict is authorized by NRS 173.095(1), providing in pertinent part: The court may permit an indictment or information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. The first requirement under the statute for amendment of the criminal information at any time before verdict is that no additional or different offense is charged. Amendment of the information to set forth added alternative theories of the mental state required for first-degree murder does not charge an additional or different offense. See State v. Dist. Ct., 116 Nev. 374, 378, 997 P.2d 126, 129 (2000). However, we conclude that substantial rights of Jennings were prejudiced by the amendment of the information after he testified. The Sixth Amendment and Article 1, Section 8 of the Nevada Constitution both guarantee a criminal defendant a fundamental right to be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense. 1 See Sheppard v. Rees, 909 F.2d 1234, 1236 (9th Cir. 1989) (citing Cole v. Arkansas, 333 U.S. 196 (1948)). Jennings did not have that opportunity. This court has held that adding the theory of felony-murder to murder, based on premeditation and deliberation, at the close of a case, violates the Sixth Amendment and NRS 173.075(1). See Alford v. State, 111 Nev. 1409, 1415, 906 P.2d 714, 717 (1995). In Alford, this court stated: To put a man on trial without giving him, in the information, a statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended and to let him know these facts, for the first time when his trial is in progress, is to deprive him of the protection the statute was designed to give him and deny him due process of law in violation of . . . the Constitution. __________ 1

The Sixth Amendment guarantee is applicable to the states through the Due Process Clause of the Fourteenth Amendment. See In re Oliver, 333 U.S. 257, 275-76 (1948). ........................................ Ð116 Nev. 488, 491 (2000) Jennings v. StateÐ Ð

See id. at 1415 (quoting Simpson v. District Court, 88 Nev. 654, 659, 503 P.2d 1225, 1229 (1972)) (cites and quotation marks omitted). The decision in Alford is based on the lack of sufficient notice so as to enable the defendant to defend the charge. See id. The State contends that the amendment adding the theory of felony-murder in this case is controlled by our decision in Noonan v. State, 115 Nev. 184, 980 P.2d 637 (1999), and not by Alford. In Noonan the State requested a jury instruction based upon felony-murder involving a violation of the felony child endangerment statute. We concluded that the failure of the State to include felony endangerment in the information was not a violation of Alford because the information charged murder as a result of child abuse and set forth the specific fact that Noonan placed the victim in a cold environment, resulting in death by hypothermia. Thus Noonan was aware that the State sought to prove that he had placed the child in a dangerous situation. Before trial, Noonan denied any culpability. However, on direct examination, Noonan admitted to negligently placing the child in a dangerous situation. There was no surprise to Noonan for the State to then seek a jury instruction on felony endangerment arising from the same set of facts as alleged in the information. [Headnote 4] In this case, Jennings had no notice, before he testified, of any allegations of facts that would support a charge of felony-murder. Therefore, he had no opportunity to defend the charge. The instant case is further distinguishable from Noonan, where the defendant's testimony yielded new information of which the State was not previously aware, and which supported an additional charge of felony-murder. Id. at 188-89, 980 P.2d at 639. In the instant case, by contrast, the State was aware from Jennings' pretrial statements, that Jennings called the victim over at gunpoint. 2 The State did not, however, allege this conduct as part of his criminal activity until Jennings' defense was substantially completed. Jennings had no reason to expect that the State would allege his act of beckoning to his victim with a gun in his hand constituted a kidnapping. See Alford, 111 Nev. at 1414, 906 P.2d at 717. Jennings' defense would likely have been quite different had heNQRZQKHZRXOGEHFKDUJHG

RQDWKHRU\WKDWGLVUHJDUGHGKLVLQWHQWWRPXUGHU __________ 2

Jennings' confession to Detective Thowsen was as follows: “I pulled up. And my gun was in my, there on the hat was on it and I, and I say, ‘Hey, I want to talk to you,' and I wanted to ask him where was Barco at, cause Barco always leaving. And then he said, ‘Whoa.' And then he I—when he got outta the car, he looked and then that's when I raise the gun up like that. I say, ‘I want to you.' And he said, ‘Whoa,' then he, he came around to my side and stuck his head and tried to grab the gun. I had the gun in this hand like this.” ........................................ Ð116 Nev. 488, 492 (2000) Jennings v. StateÐ Ð known he would be charged on a theory that disregarded his intent to murder, and his decision whether to testify might have been different. In view of our decision on this issue we do not need to examine appellant's remaining contentions. The conviction is reversed and remanded to the district court for further proceedings. Maupin and Becker, JJ., concur.

____________

Ð116 Nev. 492, 492 (2000) Matter of Estate of ThomasÐ Ð Ð

In the Matter of the ESTATE OF GEORGE EVAN THOMAS. JODI EGGLESTON, fka JODI DAVIS, JAY DAVIS, as Guardian ad Litem of RACHEL DAVIS, and TIFFANY DAVIS, Appellants, v. DEBBIE COSTELLO, Executrix, Respondent. No. 32041 May 4, 2000

998 P.2d 560

Appeal from an order approving first and final account, report of administration, and petition for distribution of the estate of George Evan Thomas, deceased. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge. Judgment creditors of testate decedent took appeal from order of the district court, approving final account, report of administration, payment of executrix's and attorney fees, and petition for distribution of estate. The supreme court held that: (1) amendment to priority statute giving expenses of administration first priority was not entitled to retroactive application, but was evidence of what legislature originally intended; and (2) administrative claims of executrix were entitled to priority over payment of debt incurred by deceased during his lifetime. Affirmed. McKnight & Hendrix and David Mincin, Las Vegas, for Appellants. Steven J. Szostek, Las Vegas, for Respondent. 1. Statutes. No provision of a statute should be rendered nugatory by construction, nor should any language be made mere surplusage, if such a result can be avoided.

........................................ Ð116 Nev. 492, 493 (2000) Matter of Estate of ThomasÐ Ð 2. Statutes. Courts should avoid construing statutes so that any provision or clause is rendered meaningless. 3. Statutes. Where a former statute is amended, or a doubtful interpretation of a former statute rendered certain by subsequent legislation, such amendment is persuasive evidence of what the legislature intended by the first statute. 4. Statutes. The general rule is that statutes are prospective only, unless it clearly, strongly, and imperatively appears from the act itself that the legislature intended the statute to be retrospective in its operation. 5. Executors and Administrators. Amendment to priority statute to list “expenses of administration,” including funeral expenses and expenses incurred by personal representative, as first item to be paid by decedent's estate was not entitled to retrospective application, absent any indication of legislative intent to that effect, but could be considered as persuasive evidence of what legislature intended by prior statute. NRS 150.220(1). 6. Executors and Administrators. Administrative claims have higher priority than debts and charges of estate listed in former priority statute. Contrary construction would have rendered nugatory plain language of other sections of Probate Code, using imperative language to describe entitlement of executors, attorneys, and administrators to fees. NRS 150.220; NRS 150.010, 150.060(1) (1998). 7. Executors and Administrators. Administrative claims of executrix were entitled to priority over payment of debt incurred by deceased during his lifetime, notwithstanding omission of administrative expenses from priority statute at time of decedent's death. NRS 150.220.

Before Maupin, Shearing and Becker, JJ. OPINION Per Curiam:

This is an appeal from an order approving a first and final account, report of administration, and petition for distribution of the estate of George Evan Thomas, deceased. Appellants held a recorded judgment lien against the decedent, which was obtained during his lifetime. The decedent died testate, and his house, against which appellants had obtained a judgment lien, was the only significant asset of the estate. The executrix was named in the decedent's will, and she hired legal counsel to represent the estate. The district court approved the executrix's final account and payment of fees to the executrix and the estate's attorney. The dispute in this appeal is whether administrative claims of the administrator/administratrix have a higher priority than a debt of the deceased, specifically, a judgment that was rendered against WKH

GHFHDVHGGXULQJKLVRUKHUOLIHWLPH ........................................ Ð116 Nev. 492, 494 (2000) Matter of Estate of ThomasÐ Ð the deceased during his or her lifetime. We have reviewed the briefs and the record, and we conclude that the district court did not err in concluding that an administrator's claims have higher priority than debts of the estate. See SIIS v. United Exposition Services Co., 109 Nev. 28, 846 P.2d 294 (1993) (noting that issues of statutory construction are reviewed de novo). Under the applicable Nevada law, a judgment rendered against a deceased during that person's lifetime could not be executed after that person's death; instead, a certified copy of the judgment had to be attached to the statement of claim filed with the clerk and be acted on as any other claim. See NRS 147.210(1) (1997) (amended 1999). At the time of the judgment below, the statute provided that debts and charges of the estate must be paid in the following order: (1) funeral expenses; (2) expenses of the last sickness; (3) family allowance; (4) “[d]ebts having preference by laws of the United States”; (5) money owed to the Nevada Department of Human Resources for medical assistance benefits; (6) wages due; (7) “[j]udgments rendered against the deceased in his lifetime” and mortgages; and (8) “[a]ll other demands against the estate.” NRS 150.220 (1997) (amended 1999). Appellants argue that since administrative claims (such as executrix fees and costs, and attorney fees) were not listed in NRS 150.220(1)-(7), as it read when judgment was entered, they must therefore fall under the catchall provision in subsection (8), behind judgments. 1 At the time the district court entered the order appealed from, attorneys and executors were entitled to compensation under the statutory scheme, but the statute did not specify whether such compensation was subject to the priority classification under NRS 150.220. See NRS 150.010 (1997) (amended 1999); NRS 150.060 (1997) (amended 1999). Former NRS 150.010 stated that “[t]he executor or administrator shall be allowed all necessary expenses in the care and management, as well as settlement, of the estate, and for his services such fees as provided by law.” NRS 150.010 (1997) (amended 1999). Former NRS 150.060(1) stated that “[a]ttorneys for executors, administrators and special administrators are entitled to reasonable compensation for their services, to be paid out of the decedent's estate.” NRS 150.060(1) (1997) (amended 1999). Respondent argues that public policy requires that the administrative claims have priority, because, if they did not, then administrators would decline administration where outstanding judgPHQWVWKUHDWHQHGWKHLU

IHHVDQGFRVWV __________ 1

Appellants also argue that the existence of the judgment lien alone entitles them to a higher priority, citing as support, First Nat. Bank of Coffeyville v. Mays, 708 P.2d 1129 (Okla. 1985). Mays, however, involved a mortgage, not a judgment lien, and we do not find it persuasive. ........................................ Ð116 Nev. 492, 495 (2000) Matter of Estate of ThomasÐ Ð ments threatened their fees and costs. Appellants respond that in such cases, the potential administrator should decline the appointment and/or abandon the estate to the creditors. Although appellants maintain that creditors may be appointed as administrators of an estate, it appears that this is so only if the decedent died intestate. See

NRS 139.040(1)(g) (1997) (amended 1999) (“Administration of the estate of a person dying intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled in the following order: . . . (g) Creditors who have become such during the lifetime of the deceased.”). [Headnotes 1-3] The general principles of statutory construction are straightforward. “It is well settled in Nevada that words in a statute should be given their plain meaning unless this violates the spirit of the act.” McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). In addition, no provision of a statute should be rendered nugatory by this court's construction, nor should any language be made mere surplusage, if such a result can be avoided. See Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970). In other words, courts should avoid construing statues so that any provision or clause is rendered meaningless. See Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983). We also note that the statute has recently been amended, and that “[w]here a former statute is amended, or a doubtful interpretation of a former statute rendered certain by subsequent legislation, it has been held that such amendment is persuasive evidence of what the Legislature intended by the first statute.” Sheriff v. Smith, 91 Nev. 729, 734, 542 P.2d 440, 443 (1975). Effective October 1, 1999, the Nevada legislature enacted a thorough revision of the statute at issue here, including amending NRS 150.220. As a result of the amendment, the statute now lists “Expenses of administration” as the first item to be paid. NRS 150.220(1) (as amended). “Expenses of administration” are defined as “funeral expenses and expenses actually and properly incurred by a personal representative [i.e., executor or administrator] in the administration of an estate, plus the fees of the personal representative, any attorney retained by him and any other consultant engaged by him.” NRS 132.135 (1999). [Headnotes 4, 5] We conclude that the change in the statute is not retrospective. The general rule is that statutes are prospective only, unless it clearly, strongly, and imperatively appears from the act itself that the legislature intended the statute to be retrospective in its operDWLRQ ........................................ Ð116 Nev. 492, 496 (2000) Matter of Estate of ThomasÐ Ð ation. See, e.g., State Ex Rel. Progress v. Court, 53 Nev. 386, 2 P.2d 129 (1931). No such retroactive intent appears in the amendments to the statute. The change would have had no effect on the outcome of this appeal, except that, under Smith, the amendment is persuasive evidence of what the legislature intended by the prior statute. [Headnotes 6, 7] In addition to the effect of the recent amendments, our reading of the probate code indicates that the district court reached the correct conclusion. Former NRS 150.010 provided, as stated above, that the “executor or administrator shall be allowed all necessary expenses . . . of the estate, and for his services such fees as provided by law.” NRS 150.010 (1997) (amended 1999) (emphasis added). Former NRS 150.060(1) stated that “[a]ttorneys for executors, administrators, and special administrators are entitled to reasonable compensation for their services, to be paid out of the decedent's estate.” NRS 150.060(1) (1997) (amended 1999) (emphasis added). In light of the imperative language of these statutory provisions, we conclude that administrative expenses and attorney fees therefore have a different and higher priority than the estate's various other debts and charges. This conclusion is supported by the plain language of these statutory provisions, and results in all provisions given meaning. Adopting appellants' view would result in the mandatory language of former NRS 150.010 and former NRS 150.060(1) being rendered nugatory in these circumstances. We conclude that former NRS 150.220 did not specifically address administrative expenses and attorney fees because they were treated separately in the statutory scheme, and were expressly required to be paid from the estate's assets. We therefore conclude that administrative claims have a higher priority than the debts and charges of the estate listed in

former NRS 150.220, and affirm the order of the district court.

____________

Ð116 Nev. 497, 497 (2000) Lipps v. Southern Nevada PavingÐ Ð AMZEL MICHAEL LIPPS, SR., Appellant, v. SOUTHERN NEVADA PAVING; JEANNINE ROGERS; CHRIS ROGERS; and RON WADE BELL, Respondents. No. 32404 May 4, 2000

998 P.2d 1183

Appeal from a district court order granting respondents' motion for summary judgment. Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge. Father of deceased employee of trucking company that was hired directly as unlicensed independent contractor by landowner to service heavy equipment owned and operated by licensed road paving subcontractor brought wrongful death action against paving subcontractor. The district court granted summary judgment for paving subcontractor. Employee's father appealed. The supreme court held that the employee and the paving subcontractor were statutory co-employees under the Nevada Industrial Insurance Act (NIIA), and thus, the paving subcontractor had immunity under the NIIA from the wrongful death action. Affirmed. Potter Law Offices, Las Vegas, for Appellant. Parnell & Associates and Kevin R. Diamond, Donna M. Osborn, and Jean M. Siska, Las Vegas, for Respondents. 1. Workers' Compensation. The state workers' compensation system provides the exclusive remedy of an employee against his employer for workplace injuries. NRS 616A.020(1), 616B.612(4). 2. Workers' Compensation. Claims for tort damages in connection with workplace injuries are only sustainable against persons or entities other than a statutory employer or persons in the same employ. NRS 616C.215(2)(a). 3. Workers' Compensation. Deceased employee of trucking company that was hired directly as an unlicensed independent contractor by landowner to service heavy equipment owned and operated by licensed road paving subcontractor, and the paving subcontractor, were “statutory co-employees” under the Nevada Industrial Insurance Act (NIIA), and thus, the NIIA precluded employee's father from bringing wrongful death action against paving subcontractor. NRS 616A.020(1), 616A.210(1), 616B.603(3), 616B.612(3), 616C.215(2)(a).

Before Maupin, Shearing and Becker, JJ. ........................................ Ð116 Nev. 497, 498 (2000) Lipps v. Southern Nevada PavingÐ Ð OPINION Per Curiam: Amzel Michael Lipps, Sr., appeals a district court order granting summary judgment based upon

respondents' claims of immunity under the Nevada Industrial Insurance Act (“NIIA”). As we conclude that the fatally injured worker was a statutory co-employee of respondent Southern Nevada Paving, we affirm the order of the district court. STATEMENT OF THE FACTS This case arises from a tragic accident in which Amzel Michael Lipps, Jr., was killed while servicing a construction truck owned by respondent, Southern Nevada Paving. At the time of the accident, Southern Nevada Paving, a contractor licensed per NRS chapter 624, was performing road construction pursuant to a subcontract with Gilbert Western Construction Company, a licensed general contractor. Gilbert Western Construction Company was retained by the Fort Mojave Indian Tribe to build roads leading to its new casino project near Laughlin, Nevada. Amzel Lipps, Jr., was an employee of C & J Trucking, an independent contractor hired directly by the Tribe to service heavy equipment owned and operated by Southern Nevada Paving. Southern Nevada Paving employees supervised Amzel Lipps, Jr., and his fellow C & J Trucking employees. 1 Amzel Lipps, Sr., filed suit for his son's wrongful death. Thereafter, Southern Nevada Paving moved for summary judgment, claiming immunity from suit under the Nevada Industrial Insurance Act. The district court granted this motion based upon our decision in Tucker v. Action Equipment and Scaffold Co., 113 Nev. 1349, 951 P.2d 1027 (1997). Amzel Lipps, Sr., appeals. DISCUSSION Standard of review Summary judgment is only appropriate when, after a review of the record viewed in a light most favorable to the nonmoving party, there remain no issues of material fact and the moving party is entitled to a judgment as a matter of law. See Butler v.%RJGDQRYLFK1HY3G

  __________ 1

Respondent Ron Wade Bell, a defendant below, was an employee of Southern Nevada Paving and was operating the construction truck at the time of the accident. Jeannine and Chris Rogers, owners of C & J Trucking, were also named as respondents, however, appellant makes no claim that they are subject to common law liability in connection with this action. ........................................ Ð116 Nev. 497, 499 (2000) Lipps v. Southern Nevada PavingÐ Ð Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). On appeal, this court is “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). Immunity under the Nevada Industrial Insurance Act [Headnotes 1, 2] The Nevada workers' compensation system provides the exclusive remedy of an employee against his employer for workplace injuries. See Frith v. Harrah South Shore Corp., 92 Nev. 447, 452, 552 P.2d 337, 340 (1976). 2 A corollary to the immunity rule is that claims for tort damages in connection with workplace injuries are only sustainable against persons or entities other than a statutory employer or persons in the same employ. See NRS 616.560(1) (recodified as NRS 616C.215(2)(a)). 3 NRS 616A.210(1) states in part that all “subcontractors, independent contractors and the employees of either shall be deemed to be employees of the principal contractor for the purposes of [the NIIA].” “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.” Tucker, 113 Nev. at 1354, 951 P.2d at 1030 (citing Aragonez v. Taylor Steel Co., 85 Nev. 718, 719-20, 462 P.2d 754, 755 (1969)). In Meers v. Haughton Elevator, 101 Nev. 283, 701 P.2d 1006 (1985), we adopted the so-called “normal work” test to determine whether the type of work a “subcontractor” does entitles it to NIIA immunity: __________ 2

See also 616.270(3) (recodified as NRS 616B.612(4)) (“the employer is relieved from other liability for recovery of damages or other compensation for such personal injuries”); and 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”). 3

NRS 616.560(1) (recodified as NRS 616C.215(2)(a)): 2. When an employee receives an injury for which compensation is payable pursuant to the provisions of chapters 616A to 616D, inclusive, or chapter 617 of NRS 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 in respect thereof: (a) The injured employee . . . may take proceedings against that person to recover damages . . . . (Emphasis added.) ........................................ Ð116 Nev. 497, 500 (2000) Lipps v. Southern Nevada PavingÐ Ð 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 Industries, Inc. v. McReynolds, 224 S.E.2d 323 (Va. 1976)). As we noted in Tucker, the 1991 Nevada State Legislature enacted NRS 616.262 (recodified as NRS 616B.603), which provides 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) a principal contractor who is licensed pursuant to chapter 624 of NRS. In Tucker, we reiterated our conclusion in Oliver v. Barrick Goldstrike Mines, 111 Nev. 1338, 1349, 905 P.2d 168, 174-75 (1995), that NRS 616B.603 is a codification of the test set forth in Meers. However, based upon this provision, we concluded in Tucker that workplace immunity issues must be resolved by first determining whether the workplace injury took place in a construction setting. If not, the statutory/Meers test applies. In the construction context, we held that: [R]emaining consistent with Oliver, further examination is required in construction cases. Initially, if the defendant in a construction case is not a principal contractor 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. No further factual analysis is necessary.

Tucker, 113 Nev. at 1357, 951 P.2d at 1032 (footnotes omitted). [Headnote 3] It is uncontroverted that Amzel Lipps, Jr., was the direct employee of C & J Trucking, not Southern Nevada Paving. It is DOVR XQFRQWURYHUWHG WKDW &  - 7UXFNLQJ ZDV QRW D FRQWUDFWRU OLFHQVHG XQGHU

156FKDSWHU ........................................ Ð116 Nev. 497, 501 (2000) Lipps v. Southern Nevada PavingÐ Ð also uncontroverted that C & J Trucking was not a contractor licensed under NRS chapter 624 and that C & J Trucking was retained separately by the Tribe, a non-NIIA participant. In Tucker, the defendant and the injured workers' direct employer were both licensed contractors. The question is whether Southern Nevada Paving's status as a principal contractor under NRS chapter 624, given the fact that this matter arises in the construction context and given the fact that Amzel Lipps, Jr., was working with Southern Nevada Paving on this construction project, compels the district court's decision under Tucker. We conclude that the immunity provisions of the NIIA obtain as a matter of law. First, the matter at hand is a construction case in which Southern Nevada Paving, a licensed contractor under NRS chapter 624, was working pursuant to a construction agreement with a licensed principal contractor at the time of the accident. See NRS 616B.603(3); Tucker, 113 Nev. at 1357, 951 P.2d at 1032. Second, C & J Trucking was an “independent contractor” working through its employees at the jobsite and is deemed a statutory co-employee of Southern Nevada Paving. See NRS 616A.210(1). Accordingly, Amzel Lipps, Jr., an employee of C & J Trucking was a statutory co-employee of Southern Nevada Paving for the purposes of the NIIA, and appellant's tort action against respondents is precluded under workers' compensation laws. See NRS 616B.612(3); NRS 616A.020(1); NRS 616C.215(2)(a). Thus, we hold that the district court properly granted summary judgment in this matter. We have considered appellant's remaining assignments of error and find them to be without merit. 4 Therefore, we affirm the district court's order. __________ 4

The Mojave Tribe is not an NIIA participant. We conclude that this has no bearing on the immunity issues litigated in this appeal. The issue is whether Amzel Lipps, Jr., was a statutory co-employee of Southern Nevada Paving pursuant to NRS chapter 616B.

____________

Ð116 Nev. 502, 502 (2000) Carson City District Attorney v. RyderÐ Ð CARSON CITY DISTRICT ATTORNEY, CHILD SUPPORT ENFORCEMENT, and MARY A. RYDER, Appellants, v. STEPHEN Q. RYDER, Respondent. No. 29955 May 8, 2000

998 P.2d 1186

Appeal from an order of the district court rejecting a child support master's findings and recommendations and declining to suspend respondent's driver's license. First Judicial District Court, Carson City; Michael R. Griffin, Judge.

Former wife and district attorney appealed from order of the district court rejecting child support master's findings and recommendations regarding former husband's payment of child support arrearages and refusing to suspend former husband's driver's license for failure to pay child support. The supreme court, deciding an issue of first impression, held that district court erred in concluding that only ongoing child support obligations needed to be considered in determining whether former husband was in arrears or had satisfied arrearages pursuant to statute. Reversed and remanded. Noel S. Waters, District Attorney, and Trina M. Dahlin and Mark Forsberg, Deputy District Attorneys, Carson City, for Appellants. Bowman & Robinson, Reno, for Respondent. 1. Appeal and Error. Statutory construction is a legal issue warranting independent appellate review. Consequently, no deference is given to the trial court's interpretation. 2. Statutes. Words in a statute will generally be given their plain meaning, and when a statute is clear on its face, courts may not go beyond the statute's language to consider legislative intent. 3. Parent and Child. The scope of “past due payments,” in statutory provision defining when parent is in arrears in the payment of child support, encompasses all past due child support payments, including court-ordered arrearage payments, not just past due payments for an ongoing support obligation. NRS 425.560(1)(a). 4. Parent and Child. Arrearage payments, as well as ongoing support payments, must be considered in determining whether a parent is in arrears under statutory provision defining when person is in arrears for payment of child support. NRS 425.560(1)(a). 5. Parent and Child. The scope of “past due payments,” under statute providing that parent may satisfy child support arrearage if he is unable to pay all past due payments and he pays amounts of overdue payments for preceding twelvePRQWKVZKLFKFRXUWKDVGHWHUPLQHGDUH

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........................................ Ð116 Nev. 502, 503 (2000) Carson City District Attorney v. RyderÐ Ð months which court has determined are in arrears, encompasses all child support arrearages, including court-ordered arrearage payments. Thus, district court must consider past due arrearages in determining whether parent has satisfied his arrearages pursuant to such statute. NRS 425.560(2)(b)(1). 6. Divorce. Former husband did not satisfy his child support arrearages with certain payment, and thus his driver's license could be suspended for failure to pay child support, as amount of payment did not include all of his ongoing support and court-ordered arrearages, and payment did not cover twelve months of ongoing support and court-ordered arrearages. NRS 425.510, 425.560(1)(a), (2)(a), (2)(b)(1).

Before Maupin, Shearing and Becker, JJ. OPINION Per Curiam: This is an appeal from the district court's order rejecting a child support master's findings and recommendations and refusing to suspend respondent's driver's license for failure to pay child support. The primary issue on appeal concerns the scope of certain provisions of the statutory scheme governing license suspension for parents in arrears on child support payments. We conclude that the district court erred in its interpretation of the statutory scheme, and we therefore reverse the district court's order and remand for further proceedings. STATEMENT OF FACTS Respondent Stephen Ryder and appellant Mary Ann Ryder were divorced in San Francisco, California, in

1986. The court ordered Stephen to pay Mary Ann $200.00 per month for the support of their daughter and to obtain medical insurance for her. Apparently by the middle of 1994, Stephen was in arrears with his support payments. On September 23, 1994, the San Francisco superior court ordered Stephen to pay the original child support obligation of $200.00 per month and, in addition, to pay $425.00 per month toward the amount in arrears. The arrearages addressed in the California order covered the time period from March 1, 1983, to July 13, 1994, and amounted to approximately $20,000.00. 1 By 1996, both parties had relocated to Nevada. In February 1996, Stephen received a letter from the Carson City district attorney's office notifying him that Mary Ann had filed a complaint that he was in arrears for child support payments. The letWHU DOVR LQIRUPHG 6WHSKHQ WKDW  SHU PRQWK

ZRXOGEHZLWKKHOGIURPKLVZDJHV __________ 1

Although Stephen and Mary were divorced in 1986, it appears that Stephen's obligation to pay child support began in 1983. ........................................ Ð116 Nev. 502, 504 (2000) Carson City District Attorney v. RyderÐ Ð ter also informed Stephen that $625.00 per month would be withheld from his wages. Subsequently, a master conducted a hearing to determine the propriety of suspending Stephen's driver's license for failing to pay his court-ordered child support. Stephen was present at the hearing and represented by counsel. The master found that Stephen was in arrears and recommended that Stephen pay $5,625.00 within 30 days and continue to pay $625.00 per month under the existing California order. Stephen objected to the master's findings and recommendations and requested a hearing in the district court. The district court held two hearings regarding Stephen's objections to the master's report. In the first hearing, the court found that Stephen had a continuing obligation to pay the amount stated in the California order. Several days prior to the second hearing, Stephen made a payment of $3,450.00. The district court found that this amount represented all of Stephen's arrearages to date in ongoing child support ($200.00 per month) as well as two payments of $425.00 toward the arrearages pursuant to the California order. Based on Stephen's payment, the district court made the following finding: Therefore, this Court finds from the evidence before it, that Defendant is current in the ongoing child support obligation, is not delinquent on that obligation for a period of two months and does not owe more than $1,000 thereon. Even if the ongoing child support should exceed twelve months, Defendant has satisfied . . . the arrearage by paying the preceding twelve month's payment. The district court also determined that despite Stephen's delinquency in satisfying his arrearages under the 1994 California order, suspension of his driver's license was unjustified and counterproductive to the continued payment of child support. Consequently, the district court disapproved the master's findings and recommendations. Mary Ann and the district attorney's office appealed. DISCUSSION [Headnotes 1, 2] The resolution of this appeal requires us to interpret NRS 425.560, a statutory provision that we have not previously considered. 2 Statutory construction is a legal issue warranting indeSHQGHQWDSSHOODWHUHYLHZ __________ 2

When enacted in 1995, the provisions governing license suspension for failure to pay child support were codified at NRS 425.3837. These provisions took effect on January 1, 1996. The statutory provisions are now found at NRS 425.510 and NRS 425.560. NRS 425.510 contains several amendments to the original language that are not relevant here; NRS 425.560 contains provisions regarding arrears and satisfaction of those arrears

that are identical to those first adopted in NRS 425.3837. To avoid confusion, the statutory provisions at issue here will be referred to by their current designation (NRS 425.560) throughout this opinion.

........................................ Ð116 Nev. 502, 505 (2000) Carson City District Attorney v. RyderÐ Ð pendent appellate review. See Tighe v. Las Vegas Metro. Police Dep't., 110 Nev. 632, 877 P.2d 1032 (1994); Maxwell v. SIIS, 109 Nev. 327, 849 P.2d 267 (1993). Consequently, no deference is given to the trial court's interpretation. See State, Dep't Taxation v. McKesson Corp., 111 Nev. 810, 896 P.2d 1145 (1995) (noting that questions of statutory interpretation are reviewed de novo). Words in a statute will generally be given their plain meaning, and when a statute is clear on its face, courts may not go beyond the statute's language to consider legislative intent. See Erwin v. State of Nevada, 111 Nev. 1535, 908 P.2d 1367 (1995); McKay v. Bd. of Supervisors, 102 Nev. 644, 730 P.2d 438 (1986). NRS 425.510 provides for a parent's driver's license suspension if that parent is in arrears with respect to child support. NRS 425.560 governs when a parent is in arrears and states in pertinent part: 1. A person is in arrears in the payment for the support of one or more children if: (a) He: (1) Owes a total of more than $1,000 for the support of one or more children for which payment is past due; and (2) Is delinquent for not less than 2 months in payments for the support of one or more children or any payments ordered by a court for arrearages in such payments; or .... 2. A person who is in arrears in the payment for the support of one or more children may satisfy the arrearage by: (a) Paying all of the past due payments; (b) If he is unable to pay all past due payments: (1) Paying the amounts of the overdue payments for the preceding 12 months which a court has determined are in arrears . . . . [Headnote 3] Paragraph 1(a), which defines arrears, and paragraph 2, which governs the satisfaction of arrears, each require an analysis of “past due payments.” We conclude that the scope of “past due payments” in paragraph 1(a) encompasses all past due child support payments (including court-ordered arrearage payments), not just past due payments for an ongoing support obligation. The plain language of the statute supports this interpretation. [Headnote 4] Paragraph 1(a) provides that a person is in arrears in child support payments if “[h]e [o]wes a total of more than $1,000 for the support of one or more children for which payment is past due . . . and . . . [i]s delinquent for not less than 2 months in payments for the support of one or more children or any paymentsRUGHUHGE\D

FRXUWIRUDUUHDUDJHVLQVXFKSD\PHQWV´ ........................................ Ð116 Nev. 502, 506 (2000) Carson City District Attorney v. RyderÐ Ð ordered by a court for arrearages in such payments.” (Emphasis added.) This language expressly includes any arrearage payments, as well as ongoing support payments; thus, arrearage payments must be considered in determining whether a parent is in arrears under NRS 425.560(1)(a). Accordingly, the district court erred in determining that only ongoing child support obligations need be considered in determining whether Stephen was

in arrears pursuant to paragraph 1(a). If a parent is in arrears for purposes of paragraph 1(a), NRS 425.560 requires the court to determine whether the arrearages have been satisfied under paragraph 2. Paragraph 2 provides two ways in which arrearages may be satisfied. 3 Pursuant to paragraph 2(a), arrearages may be satisfied by “[p]aying all of the past due payments.” Paragraph 2(b)(1) provides that arrearages for child support payments may be satisfied by “[p]aying the amounts of the overdue payments for the preceding 12 months which a court has determined are in arrears.” Although the scope of “past due payments” in paragraph 2(b)(1) may be susceptible to more than one interpretation, we conclude that “past due payments” encompass any arrearage payments that are due. Interpreting the term “past due payments” in paragraph 2(b)(1) in this manner is internally consistent with our conclusion that “past due payments” under paragraph 1(a) include any arrearage payments that are due. See Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 503 P.2d 457 (1972) (holding that a statute “should always be construed so as to avoid absurd results”). Thus, all arrearages must be considered in determining whether a parent is in arrears under paragraph 2(b)(1), but not in determining whether a parent has satisfied the arrearages under paragraph 1(a). Furthermore, the legislative history of the statutory scheme reveals its overarching purpose—to encourage parents who are in arrears in child support payments to satisfy those obligations. See Minutes of the Assembly Committee on Transportation, A.B. 425, 68th Sess. (Nev., April 27, 1995). This policy provides further support that the scope of “past due payments” contemplates all past due arrearage payments, including orders for arrearages from a court other than the court involved in the license suspension hearing. [Headnote 5] We therefore conclude that the scope of “past due payments” in paragraph 2(b)(1), as in paragraph 1(a), encompasses all child support arrearages, including court-ordered arrearage payments. __________ 3

Paragraph 2(b)(2) also provides for the satisfaction of arrears if the delinquent parent has entered into an approved repayment plan. That provision is not relevant here, however. ........................................ Ð116 Nev. 502, 507 (2000) Carson City District Attorney v. RyderÐ Ð Accordingly, the district court erred in concluding that past due arrearages need not be considered in determining whether Stephen had satisfied his arrearages pursuant to paragraph 2(b)(1). [Headnote 6] Pursuant to paragraph 2(a), Stephen did not satisfy his arrearages with his $3,450.00 payment, as that amount did not include all of his ongoing support and court-ordered arrearages. Additionally, Stephen's $3,450.00 payment failed to satisfy paragraph 2(b)(1) because that payment did not cover twelve months of ongoing support and court-ordered arrearages. To satisfy paragraph 2(b)(1), Stephen would be required to pay an amount equal to his child arrearage payments as ordered by the California court, in addition to his ongoing child support payment of $200.00 per month, for a period of twelve months. As the district court erred in its interpretation of NRS 425.560, we reverse the district court's order and remand this matter to the district court for further proceedings consistent with this opinion. 4

____________

Ð116 Nev. 507, 507 (2000) Scrimer v. Dist. Ct.Ð Ð Ð ALICE SCRIMER and GILBERT SCRIMER, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT

OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE JACK LEHMAN, District Judge, Respondents, and WILLIAM D. SCRIMER, Real Party in Interest. No. 33367 CYNTHIA G. EVISTON, BETTIE CARTER, GARY COLVIN, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE VALORIE J. VEGA, District Judge, Respondents, and LOUIS R. PUSHNICK, Real Party in Interest. No. 34863 May 8, 2000

998 P.2d 1190

Original petitions for extraordinary relief. Personal injury plaintiffs petitioned for writ of mandamus afterWKHGLVWULFWFRXUWTXDVKHGXQWLPHO\

VHUYLFHRIWKHFRPSODLQW __________ 4

The district court was apparently concerned about Stephen's ability to continue working. However, NRS 483.490(5) provides that after a license has been suspended or revoked for failure to pay child support arrearages, the department of motor vehicles may issue a restricted driver's license to an applicant permitting the applicant to drive to and from work, to receive regularly scheduled medical care for himself or a member of his immediate family, and to exercise a court-ordered right to visit a child. ........................................ Ð116 Nev. 507, 508 (2000) Scrimer v. Dist. Ct.Ð Ð the district court quashed untimely service of the complaint, and defendants in a separate personal injury action petitioned for writ of mandamus or prohibition after the district court denied their motion to dismiss the complaint based on untimely service. The supreme court held that: (1) settlement negotiations may constitute good cause for untimely service of the complaint, overruling Lacey v. Wen-Neva, Inc., 109 Nev. 341, 849 P.2d 260 (1993); (2) an attorney's inadvertence does not necessarily preclude the plaintiff from establishing good cause for failing to complete service within 120 days of the filing of the complaint, abrogating Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992); and (3) the personal injury plaintiffs had good cause for failing to timely complete service of the complaints. Petition granted in Docket No. 33367; petition denied in Docket No. 34863. Burris & Thomas and Laurence B. Springberg, Las Vegas, for Petitioners Alice Scrimer and Gilbert Scrimer. Turner & Curriden and Samuel A. Kitterman Jr., Las Vegas, for Petitioner Eviston. Barker Brown Busby Crisman & Thomas and Curtis J. Busby and Michael D. Demman, Las Vegas, for Petitioners Carter and Colvin, and Real Party in Interest William Scrimer. Williams & Wiese and Donald H. Williams, Las Vegas, for Real Party in Interest Pushnick. 1. Appeal and Error. Once the defense of untimely service of process is timely raised in defendant's first responsive pleading or pre-answer motion to dismiss, the defense is preserved for review, and the defendant may answer the complaint without fear of waiving the defense. NRCP 4(i), 12(b), (g), (h)(1). 2. Mandamus. A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control an arbitrary or capricious exercise of discretion. NRS 34.160.

3. Prohibition. Writs of mandamus and writs of prohibition are extraordinary remedies, and it is within the discretion of the supreme court to determine if a petition will be considered. NRS 34.160, 34.320. 4. Mandamus; Prohibition. The supreme court may exercise its discretion to grant a petition for writ of mandamus or writ of prohibition where an important issue of law requires clarification. NRS 34.160, 34.320.

........................................ Ð116 Nev. 507, 509 (2000) Scrimer v. Dist. Ct.Ð Ð 5. Pretrial Procedure. Dismissal for failure to timely complete service of the summons and complaint is mandatory unless there is a legitimate excuse for having failed to serve within 120 days of the date the complaint is filed. NRCP 4(i). 6. Process. The determination of good cause for failing to timely serve the summons and complaint after they are filed is within the district court's discretion. NRCP 4(i). 7. Process. Rule generally requiring service of the summons and complaint within 120 days of their filing was promulgated to encourage diligent prosecution of complaints once they are filed. NRCP 4(i). 8. Process. An attorney's inadvertence in failing to timely serve the summons and complaint does not necessarily preclude the plaintiff from establishing good cause for failing to complete service within 120 days of the filing of the complaint; abrogating Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992). NRCP 4(i). 9. Process. Appropriate considerations for determining whether plaintiff had good cause for failing to timely serve the summons and complaint include: (1) difficulties in locating the defendant, (2) defendant's efforts at evading service or concealment of improper service until after 120-day period has lapsed, (3) plaintiff's diligence in attempting to serve defendant, (4) difficulties encountered by counsel, (5) running of applicable statute of limitations, (6) parties' good faith attempts to settle litigation during 120-day period, (7) lapse of time between end of 120-day period and actual service of process on defendant, (8) prejudice to defendant caused by plaintiff's delay in serving process, (9) defendant's knowledge of existence of the lawsuit, and (10) any extensions of time for service granted by district court. NRCP 4(i). 10. Process. Rule generally requiring timely service of the summons and complaint was not adopted to become an automatic sanction when a plaintiff fails to serve the complaint within 120 days of filing. NRCP 4(i). 11. Pretrial Procedure. When making a determination of whether to dismiss the complaint under rule generally requiring timely service of the complaint, the district court should recognize that good public policy dictates that cases be adjudicated on their merits. NRCP 4(i). 12. Process. Negotiations with an eye to settlement, undertaken in good faith in a serious effort to settle the litigation during the 120-day period after the filing of the complaint, may constitute good cause for untimely service of the complaint; overruling Lacey v. Wen-Neva, Inc., 109 Nev. 341, 849 P.2d 260 (1993). NRCP 4(i). 13. Pretrial Procedure. Personal injury plaintiff had good cause for failing to timely serve the complaint, where plaintiff and defendant had engaged in settlement negotiations during the 120-day period following the filing of the complaint, the complaint was served within the extended deadline for service, dismissal would have been highly prejudicial because limitations period had expired, and defendant was not prejudiced. NRCP 4(i), 6(b).

........................................ Ð116 Nev. 507, 510 (2000) Scrimer v. Dist. Ct.Ð Ð 14. Pretrial Procedure. Plaintiff had good cause for failing to timely serve the complaint in the personal injury action, where the law firm representing plaintiff had undergone serious personnel complications when the firm broke up, the complaint was served sixteen days after expiration of the 120-day period following the filing of the complaint and was served within the extended deadline for service, and dismissal would have effectively been with prejudice. NRCP 4(i), 6(b).

Before Maupin, Shearing and Becker, JJ. OPINION

Per Curiam: These two writ petitions raise important issues under NRCP 4(i), which requires a plaintiff to serve a summons and complaint within 120 days of the date that the complaint is filed unless the plaintiff can show good cause why the complaint was not timely served. Docket No. 33367 is a petition for a writ of mandamus challenging a district court order granting the real party in interest's motion to quash service of process under NRCP 4(i) for failure to effect timely service. Docket No. 34863 is a petition for a writ of mandamus or prohibition challenging a district court order denying petitioners' motion to dismiss the complaint under NRCP 4(i). We take this opportunity to clarify the relevant standards under NRCP 4(i). We grant the petition for a writ of mandamus in Docket No. 33367, and we deny the petition for a writ of mandamus or prohibition in Docket No. 34863. Docket No. 33367 On February 7, 1996, plaintiff/petitioner Alice Scrimer was in a car driven by defendant/real party in interest William D. Scrimer, when she suffered injuries in an accident. On January 28, 1998, she and her husband filed a complaint. Service of process was not completed within the 120-day period provided for in NRCP 4(i), which expired on May 28, 1998. Petitioners apparently did not make any attempt to serve process during the 120-day period, while settlement negotiations were underway, but served the Department of Motor Vehicles (DMV) under the substitute service provisions of NRS 14.070 on June 10, 1998, thirteen days after the 120-day period expired. On June 16, 1998, petitioners moved for an extension of time for service under NRCP 6(b). The district court granted the motion and gave petitioners until June 29, 1998, to complete service of process. ........................................ Ð116 Nev. 507, 511 (2000) Scrimer v. Dist. Ct.Ð Ð Real party in interest then moved to quash service. Petitioners opposed the motion. The district court granted the motion, because petitioners “failed to demonstrate good cause for the untimely service” under Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992). Petitioners moved for reconsideration, which was denied. Petitioners filed this petition for a writ of mandamus challenging the district court's order granting the real party in interest's motion to quash service of process under NRCP 4(i). This court ordered an answer, which was untimely submitted. 1 Docket No. 34863 On February 5, 1999, real party in interest Louis Pushnick filed a complaint against petitioners and others, seeking damages as a result of two auto accidents. After 136 days had passed, Pushnick's counsel sought an extension of time to serve petitioners. Counsel claimed excusable neglect, in that service had not been effected because of a “continual change in office staff, [and] an inadvertent confusion as to the attorney of record.” It appears that the law firm representing Pushnick had broken up during the relevant time period. On July 13, 1999, the district court granted an extension until July 19, 1999. On July 22, 1999, an amended order was entered, granting an extension to serve until August 19, 1999. Service was effected on the DMV on July 20, 1999, forty-four days after the 120-day period had run. [Headnote 1] Subsequently, petitioners joined in a motion to dismiss the complaint under NRCP 4(i) for failure to serve process within 120 days of filing, and to vacate the orders granting extensions of time. Pushnick opposed the motion, which was denied. Petitioners filed this petition for a writ of mandamus or prohibition challenging the district court's order denying petitioners' motion to dismiss the action under NRCP 4(i). This court ordered an answer, which was timely filed in this court. 2 __________

1

Real party in interest filed a motion requesting permission to file an untimely answer, admitting that this court's order requesting an answer was overlooked when it was received by counsel. Petitioners moved to strike the answer as untimely. Having considered the motion and the opposition, we deny the motion to strike and grant the motion to file the answer. We direct the clerk of the court to file the answer and appendix received from real party in interest in Docket No. 33367, as well as petitioners' opposition to the motion to file an untimely answer. 2

Petitioners requested that this court stay the district court proceedings, arguing that if the petitioners answered the complaint or otherwise generally appeared in the proceedings below, they would waive the NRCP 4(i) issue that was the subject of their petition. On February 1, 2000, we entered a temporary stay. We note, however, that the stay in this instance was unnecessary to ........................................ Ð116 Nev. 507, 512 (2000) Scrimer v. Dist. Ct.Ð Ð DISCUSSION [Headnotes 2-4] A writ of mandamus is available to compel the performance of an act that 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, 637 P.2d 534 (1981). A writ of prohibition is available 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. See NRS 34.320. Neither writ will issue, however, if petitioner has a plain, speedy and adequate remedy in the ordinary course of law. See NRS 34.170; 34.330. Further, both writs are extraordinary remedies, and it is within the discretion of this court to determine if a petition will be considered. See State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983). In Smith v. District Court, 113 Nev. 1343, 1344, 950 P.2d 280, 281 (1997), this court explained that it will not exercise its discretion to consider a petition for a writ of mandamus unless considerations of sound judicial economy and administration militate in favor of granting a petition. In addition, this court may exercise its discretion to grant a petition where an important issue of law requires clarification. Id. at 1345, 950 P.2d at 281. [Headnotes 5, 6] NRCP 4(i) states that service of the complaint and summons must be made within 120 days, or the action will be dismissed without prejudice, unless a plaintiff can show good cause why service was not made during the 120-day period. 3 Dismissal isPDQGDWRU\XQOHVVWKHUHLVDOHJLWLPDWHH[FXVHIRUIDLOLQJWRVHUYH

ZLWKLQWKHGD\V __________ preserve the Rule 4(i) issue, because the petitioners would not have waived their argument under NRCP 4(i) merely by answering the complaint or appearing in the action. To avoid waiver of a defense of untimely service of process under NRCP 4(i), a defendant must raise the defense in its first responsive pleading or pre-answer motion to dismiss. See NRCP 12(b), 12(g), and 12(h)(1) (setting forth procedures for objecting to insufficiency of service of process); Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992) (concluding that respondent's objection to untimely service under NRCP 4(i) was itself untimely because respondent failed to object in its first responsive pleading or pre-pleading motion). Once timely raised, the defense of untimely service is preserved for review, and the defendant may answer the complaint without fear of waiving the NRCP 4(i) issue. We therefore vacate our order granting the temporary stay. 3

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant

without prejudice upon the court's own initiative with notice to such party or upon motion. NRCP 4(i). ........................................ Ð116 Nev. 507, 513 (2000) Scrimer v. Dist. Ct.Ð Ð mandatory unless there is a legitimate excuse for failing to serve within the 120 days. See Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992). The determination of good cause is within the district court's discretion. See Lacey v. Wen-Neva, Inc., 109 Nev. 341, 849 P.2d 260 (1993). [Headnote 7] Rule 4(i) was promulgated to encourage diligent prosecution of complaints once they are filed. See Moore v. Shreck, 102 Nev. 163, 717 P.2d 49 (1986) (reversing an order dismissing a complaint for lack of diligent prosecution because no standard then provided for such a dismissal, and at the same time, announcing the adoption of NRCP 4(i)). NRCP 4(i) is based on an analogous federal rule, which was adopted as a case-management tool. As two of the leading commentators on federal procedure have observed: The 120-day limit on service . . . reflects the modern trend of encouraging more efficient litigation by reducing the time between the institution of an action and service of process. It is hoped that the amended rule, by giving the court the authority to dismiss the plaintiff's action on its own initiative when the time requirement is not met, will help ease the increasing backlog of cases in the federal courts and the delay in their movement. In that sense, Rule 4(j) attempts to harmonize the open-door policy of the federal court system and the mandate in Rule 1 for the “just, speedy, and inexpensive determination of every action.” 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1137 at 385 (2d ed. 1987) (footnotes omitted). 4 There are four leading cases from this court construing NRCP 4(i). In Domino v. Gaughan, 103 Nev. 582, 747 P.2d 236 (1987), counsel's illness and inexperience were factors in reversing a dismissal under NRCP 4(i), particularly where there was apparently no prejudice to defendants. There, inexperienced Nevada counsel filed a complaint at the request of California counsel and thereafter returned the file to California counsel. California counsel retained the file until ten days before the 120-day time period expired. California counsel then asked Nevada counsel to serve the defendant. Nevada counsel, however, experienced difficulties serving the summons and complaint and in communicating with California counsel. He also fell ill. Although Nevada counsel attempted service within the 120-day time period, he was unable to complete service until nine days after the NRCP 4(i) deadline. __________ 4

The analogous Federal Rule of Civil Procedure is currently Rule 4(m), although it was Rule 4(j) when this passage was written. ........................................ Ð116 Nev. 507, 514 (2000) Scrimer v. Dist. Ct.Ð Ð The dismissal was effectively with prejudice since the statute of limitations had expired. This court held that “good cause” existed to excuse late service of the summons and complaint. Id. at 584, 747 P.2d at 237. 5 In Dallman v. Merrell, 106 Nev. 929, 803 P.2d 232 (1990), this court affirmed an order dismissing one of two defendants under NRCP 4(i) where service was effected 108 days late. Dallman sued a car dealership and its employee, Merrell. Dallman's original counsel promptly served the dealership, but did not serve Merrell because counsel had trouble locating him. Dallman later retained new counsel, who noted that Merrell had not been

served, and used a private investigator to obtain Merrell's address through driver's license records and other car salesmen. The district court dismissed the complaint as to Merrell without prejudice, holding that Dallman had not shown good cause for the failure to serve within 120 days of filing the complaint. It is unclear whether the dismissal was effectively with prejudice; nevertheless, the district court dismissed only one of the two defendants and therefore did not dismiss Dallman's entire action. Id. at 930-31, 803 P.2d at 232-33. This court held that Dallman's claim that he could not locate Merrell (despite having tried the telephone directory, a city directory, and a process server) did not establish good cause since Merrell's address was readily available from the DMV and the county assessor's office. The fact that service was tardy by 108 days was also a consideration. In addition, the district court had concluded that Merrell had suffered some prejudice from the delay. Id. at 930, 803 P.2d at 232-33. [Headnote 8] In Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992), the summons and complaint were filed just before the statute of limitations ran, and the defendants were served just after the 120-day period expired. Process was served eight days late because a secretary had erroneously calendared the date when service was due. After answering the complaint, some of the defendants filed a motion to dismiss for tardy service under NRCP 4(i), and for failure to hold an early case conference and submit an early case conference report under NRCP 16.1. The district court granted the motions and dismissed the complaint on both grounds. Although the dismissal was without prejudice, it was effectively with prejudice, since the statute of limitations had run. On the Rule 4(i) issue, this court held that good cause was not presentEHFDXVHDQDWWRUQH\ V³LQDGYHUWHQFH

GRHVQRWMXVWLI\XQWLPHO\VHUYLFH´ __________ 5

We note that the federal courts, under Federal Rule of Civil Procedure 4(m), the current analog to NRCP 4(i), may consider “if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service.” Fed. R. Civ. P. 4 advisory committee's notes. ........................................ Ð116 Nev. 507, 515 (2000) Scrimer v. Dist. Ct.Ð Ð because an attorney's “inadvertence does not justify untimely service.” Dougan, 108 Nev. at 520, 835 P.2d at 797. This court also concluded, however, that the defendants had waived the issue under NRCP 4(i) by failing to raise it in a timely fashion, and that the district court had erred in dismissing the complaint under NRCP 16.1. The district court's judgment of dismissal was therefore reversed. Id. The Dougan court's observation regarding counsel's “inadvertence,” is merely dictum, in light of its conclusions regarding the NRCP 4(i) issue on the basis of waiver, and is therefore not controlling in any analysis of good cause under NRCP 4(i). Finally, in Lacy v. Wen-Neva, Inc., 109 Nev. 341, 849 P.2d 260 (1993), plaintiff Lacey filed a complaint against defendant Wen-Neva on the final day of the limitations period, and then served a copy of the summons and complaint on the defendant's agent. Both parties acknowledged that service was improper. In fact, the defendant informed Lacey in writing that it would not respond to the complaint until it was properly served. Id. at 343-44, 849 P.2d at 261. After doing nothing with respect to service for more than one year, Lacey properly served the defendant with an amended complaint. The defendant moved to dismiss, and the district court granted the motion. On appeal, Lacey argued that good cause excused the untimely service, because the defendant had actual notice of the action and had entered into settlement negotiations with him. This court disagreed: Settlement negotiations are no substitute for proper service of a party, and the fact that the parties were negotiating a settlement did not relieve Lacey from properly serving the complaint within 120 days. Absent an agreement between the parties as part of the settlement negotiations that the service requirements of NRCP 4(i) would not be strictly enforced, settlement negotiations alone will not constitute good cause for a plaintiff's failure to serve process within 120 days of the filing of the complaint. ....

While there may be circumstances which demonstrate an understanding or agreement between parties sufficient to constitute “good cause” for the plaintiff's failure to timely serve the complaint, there has been no showing in this case of any agreement between the parties that the time restrictions of the Nevada Rules of Civil Procedure would not be strictly enforced. Id. at 345-46, 849 P.2d at 262 (citation omitted). In addition, Lacey held that filing an amended complaint against the same party does not restart the 120-day period for service: ........................................ Ð116 Nev. 507, 516 (2000) Scrimer v. Dist. Ct.Ð Ð [S]ince Lacey did not add a new party to the action, service had to be made within 120 days of filing the original complaint. Lacey did not effect service of either the original or amended complaint within 120 days of the filing of the original complaint, and therefore the district court did not err in dismissing Lacey's action pursuant to NRCP 4(i). Id. at 349, 849 P.2d at 265 (footnote omitted). [Headnotes 9-11] We conclude that a number of considerations may govern a district court's analysis of good cause under NRCP 4(i), and we emphasize that no single consideration is controlling. Appropriate considerations include: (1) difficulties in locating the defendant, (2) the defendant's efforts at evading service or concealment of improper service until after the 120-day period has lapsed, (3) the plaintiff's diligence in attempting to serve the defendant, (4) difficulties encountered by counsel, (5) the running of the applicable statute of limitations, (6) the parties' good faith attempts to settle the litigation during the 120-day period, (7) the lapse of time between the end of the 120-day period and the actual service of process on the defendant, (8) the prejudice to the defendant caused by the plaintiff's delay in serving process, (9) the defendant's knowledge of the existence of the lawsuit, and (10) any extensions of time for service granted by the district court. 6 Underlying these considerations is the policy behind Rule 4(i)—to encourage the diligent prosecution of complaints. Rule 4(i) was not adopted, however, to become an automatic sanction when a plaintiff fails to serve the complaint within 120 days of filing. When making a determination under NRCP 4(i), the district court should recognize that “good public policy dictates that cases beDGMXGLFDWHGRQWKHLUPHULWV __________ 6

In Lacey, defendant promptly warned plaintiff that service was defective, and waited for proper service of the original complaint. As noted above, instead of serving the original complaint, plaintiff waited a year, filed an amended complaint, and properly served the amended complaint. Id. at 348, 849 P.2d at 264. Lacey noted that if service is made upon a defendant within 120 days, but the service is defective, and the defectiveness of the service was not called to the plaintiff's attention until after the 120-day period runs, “the NRCP 4(i) ‘good cause' standard may, under the circumstances, be applied to prevent the inequity of allowing the defendant's concealment of the defectiveness of the service to result in dismissal of the action.” Id. at 348 n.4, 849 P.2d at 264 n.4. We further observe that if the 120-day period is running out, a plaintiff may seek to extend the time to serve under NRCP 6(b). As occurred in the proceedings below, even if the 120-day period has expired, a plaintiff may obtain an extension of the service period under NRCP 6(b) upon a showing of “excusable neglect.” See NRCP 6(b)(2). If a district court finds good cause for tardy service under NRCP 4(i), it should explicitly extend the time for service, and set a reasonable date by which service should be accomplished. ........................................ Ð116 Nev. 507, 517 (2000) Scrimer v. Dist. Ct.Ð Ð

adjudicated on their merits.” Kahn v. Orme, 108 Nev. 510, 516, 835 P.2d 790, 794 (1992) (citing Hotel Last Frontier v. Frontier Prop., 79 Nev. 150, 155-56, 380 P.2d 293, 295 (1963)). [Headnote 12] We specifically disavow and overrule Lacey to the extent that it stands for the proposition that “settlement negotiations alone will not constitute good cause for a plaintiff's failure to serve process within 120 days of the filing of the complaint.” Lacey, 109 Nev. at 345, 849 P.2d at 262. Negotiations with an eye to settlement, undertaken in good faith in a serious effort to settle the litigation during the 120-day period, may constitute good cause for untimely service under NRCP 4(i). Additionally, we renounce our dictum in Dougan, which suggests that an inflexible approach should be used in assessing motions to dismiss under Rule 4(i). [Headnote 13] In Docket No. 33367, we conclude that extraordinary relief is warranted. Under Smith v. District Court, 113 Nev. 1343, 1345, 950 P.2d 280, 281 (1997), as noted above, we may exercise our discretion to grant a petition where an important issue of law requires clarification. It appears that the district court sensed a trend in our NRCP 4(i) cases from which we now depart. In light of our clarification of appropriate NRCP 4(i) standards, as well as our disapproval of Lacey and Dougan, we conclude that the petition should be granted. We now expressly conclude that a balanced and multifaceted analysis is warranted in determining whether to dismiss a complaint under Rule 4(i). Here, petitioners served the DMV shortly after the 120-day period expired, after having engaged in settlement negotiations, and within the extended period for service. In addition, it is significant that the district court had granted the petitioners additional time for service, and that service was effected before the extended deadline expired. We also note that the dismissal was highly prejudicial to petitioners, as the statute of limitations had expired, while there appeared to be little or no prejudice from late service to the real party in interest. We therefore grant the petition in Docket No. 33367, and direct the clerk of this court to issue a writ of mandamus compelling the district court to vacate its order dismissing the complaint in District Court Case No. A383803. [Headnote 14] In Docket No. 34863, we conclude that the district court neither exceeded its jurisdiction nor manifestly abused its discretion in refusing to dismiss the complaint under NRCP 4(i). There, the law firm representing Pushnick underwent serious personnel complications, and Pushnick sought an extension of time to serve the complaint sixteen days after the 120-day period had expired. ........................................ Ð116 Nev. 507, 518 (2000) Scrimer v. Dist. Ct.Ð Ð Additionally, Pushnick's counsel had obtained additional time to serve petitioners, and served them within the time permitted, and it appears that any dismissal would have effectively been with prejudice. We perceive no error meriting extraordinary relief and accordingly deny the petition in Docket No. 34863.

____________

Ð116 Nev. 518, 518 (2000) Woerner v. Justice CourtÐ Ð Ð JANE BELLZORA WOERNER, Petitioner, v. THE JUSTICE COURT OF RENO TOWNSHIP, in and for THE COUNTY OF WASHOE, and THE HONORABLE HAROLD G. ALBRIGHT, Justice of the Peace, and RICHARD A. GAMMICK, Washoe County District Attorney, Respondents, and THE

STATE OF NEVADA, Real Party in Interest. No. 34277 June 5, 2000

1 P.3d 377

Original petition for writ of certiorari or mandamus challenging an order of the justice's court in a criminal action charging petitioner with murder. Justice's Court of Reno Township, Washoe County; Harold G. Albright, Justice of the Peace. Petitioner charged with first-degree murder and ordered to undergo competency evaluation sought writ of mandamus directing that charge be dismissed on ground of earlier finding that she was not competent to stand trial and that there was no substantial probability that she would attain competency in foreseeable future. The supreme court held that: (1) petitioner was not entitled to dismissal of refiled charge on ground that de facto presumption of incompetence created by earlier ruling had not been rebutted, (2) justice court exceeded its statutory authority by failing to conduct preliminary hearing on first-degree murder charge and instead ordering competency evaluation, and (3) district attorney did not act improperly in refiling first-degree murder charge against petitioner. Petition granted in part and denied in part. Michael R. Specchio, Public Defender, John Reese Petty, Chief Deputy Public Defender, and Kathleen M. O'Leary, Deputy Public Defender, Washoe County, for Petitioner. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondents. ........................................ Ð116 Nev. 518, 519 (2000) Woerner v. Justice CourtÐ Ð 1. Mandamus. The supreme court has original jurisdiction to issue writs of mandamus. Const. art. 6, § 4. 2. Mandamus. A writ of mandamus will issue to control a court's arbitrary or capricious exercise of discretion. 3. Mental Health. There is no statutory restriction on charging a mentally incompetent person with a crime. 4. Criminal Law. The proper procedure to reinitiate a criminal charge previously dismissed based upon a finding that the accused is not competent to stand trial is identical to the procedure to initiate any other criminal charge, and thus, irrespective of whether there is probable cause that the accused is competent, an arrest warrant or summons may issue upon probable cause that a crime has been committed and that the accused committed it, and nothing more. NRS 171.106, 178.425(5). 5. Criminal Law. Petitioner previously found not competent to stand trial on first-degree murder charge three years earlier was not entitled to dismissal of refiled charge on ground that de facto presumption of incompetence created by earlier ruling had not been rebutted. No such presumption exists. 6. Criminal Law. Justice court exceeded its statutory authority by failing to conduct preliminary hearing on first-degree murder charge and instead ordering competency evaluation for petitioner found not competent to stand trial on same charge three years earlier, and thus petitioner was entitled to writ of mandamus directing justice court to vacate order requiring evaluation and to conduct preliminary hearing to determine if there existed probable cause sufficient to bind over petitioner to district court. 7. Justices of the Peace. The justice courts are courts of limited jurisdiction and have only the authority granted by statute. 8. Criminal Law. The justice court's role at the preliminary hearing is to determine whether there is probable cause to find that an offense has been committed and that the defendant has committed it, and if the justice court finds probable cause, the court must order the defendant bound over for trial in the district court. 9. Indictment and Information; Injunction. District attorney did not act improperly in refiling first-degree murder charge against petitioner found not competent to stand trial on same charge three years earlier, based upon order of family court discharging petitioner from involuntary commitment to mental health facility, and thus petitioner was not entitled to order enjoining district attorney from further prosecution of her.

Before Young, Agosti and Leavitt, JJ. ........................................ Ð116 Nev. 518, 520 (2000) Woerner v. Justice CourtÐ Ð OPINION Per Curiam: Petitioner was charged with one count of first-degree murder. The district court found petitioner incompetent to stand trial. The district court further found that there was no substantial probability that petitioner would attain competency in the foreseeable future and dismissed the case. Over the next three years, the district court denied the district attorney's two civil petitions for petitioner's continued involuntary commitment because the district court found that involuntary commitment was not the least restrictive environment for petitioner. The district attorney refiled the first-degree murder charge against petitioner, and petitioner was arrested. Petitioner moved to dismiss, arguing that the district court's original competency ruling was still intact and binding on the justice's court. The justice's court did not dismiss the case but ordered that petitioner be taken to Lake's Crossing for a competency evaluation. Petitioner filed this original petition, requesting this court to direct the justice's court to dismiss the case. Petitioner further requests that we direct the district attorney to refrain from prosecuting petitioner until it is proven in district court by a preponderance of the evidence that petitioner is competent to stand trial. We do not grant the relief requested by petitioner, but conclude that a writ of mandamus should issue because the justice's court exceeded its jurisdiction in sending petitioner to Lake's Crossing for a competency evaluation, in considering the issue of petitioner's competence, and in failing to conduct a preliminary hearing. FACTS Petitioner Jane Bellzora Woerner was charged by way of information with one count of first-degree murder. The information alleged that petitioner willfully and deliberately killed Kevin Brickey with a motor vehicle on U.S. 395 in Washoe Valley, when she steered her vehicle out of the travel lanes and struck Brickey from the rear as he walked along the right shoulder of the road. The district court found that petitioner was incompetent to stand trial and a danger to herself or to society. The district court further found that there was no substantial probability that she would attain competency in the foreseeable future. Based on these findings, the district court ordered that petitioner be involuntarily committed to the Nevada Mental Health Institute and that the caseEHGLVPLVVHG ........................................ Ð116 Nev. 518, 521 (2000) Woerner v. Justice CourtÐ Ð be dismissed, pursuant to NRS 178.425, 1 because petitioner had no substantial probability of attaining competency in the foreseeable future. Thereafter, petitioner was involuntarily committed to the Nevada Mental Health Institute. Two years after the criminal case was dismissed, the district attorney initiated in the family division (hereafter “family court”) of the district court a civil proceeding against petitioner, seeking her continued involuntary commitment. The family court found that petitioner was mentally ill, that she was not a danger to others, and that, although petitioner was a danger to herself, her husband provided assistance and support such that involuntary hospitalization was not the least restrictive environment for her. Accordingly, the family court ordered petitioner discharged as an outpatient from the Nevada Mental Health Institute, unless she chose to stay as a voluntary patient. The family court's order did not address the issue of petitioner's competency to stand trial.

The parties did not seek appellate review of the order. Shortly thereafter, the district attorney reinitiated the criminal murder proceedings by filing with the justice's court a criminal complaint against petitioner. However, petitioner chose to voluntarily remain hospitalized at the Nevada Mental Health Institute, and the district attorney did not obtain an arrest warrant or take other action on the criminal complaint at that time. Just over a year later, the district attorney initiated in family court another civil proceeding seeking the involuntary commitment of petitioner. Without addressing petitioner's competency to stand trial, the family court denied the petition because it found that petitioner was not a danger to others and that, because of the support from her husband, she was not a danger to herself, so hospitalization was not the least restrictive environment for her. The district attorney again requested a stay pending possible appeal, but the family court denied this request, ordering that petitioner be released as an outpatient upon entry of the written order. The record does not indicate when, but shortly before petitioner would have been discharged from the Nevada Mental Health Institute, she was arrested and booked into the Washoe &RXQW\ -DLO RQ WKH FULPLQDO FRPSODLQW WKDW KDG EHHQ

UHILOHGD\HDUSUHYLRXVO\ __________ 1

The order did not cite a subsection of NRS 178.425, although it used the language of subsection 5. NRS 178.425(5) states, as follows: Whenever the defendant has been found incompetent, with no substantial probability of attaining competency in the foreseeable future, and released from custody or from obligations as an outpatient pursuant to paragraph (d) of subsection 3 of NRS 178.460, the proceedings against defendant which were suspended must be dismissed. No new charge arising out of the same circumstances may be brought after a period, equal to the maximum time allowed by law for commencing a criminal action for the crime with which the defendant was charged, has lapsed since the date of the alleged offense. ........................................ Ð116 Nev. 518, 522 (2000) Woerner v. Justice CourtÐ Ð County Jail on the criminal complaint that had been refiled a year previously. Without waiving her right to a preliminary hearing, petitioner filed a motion to dismiss with the justice's court. The justice's court concluded that the district court's original competency ruling was still intact and binding on the justice's court because the family court's subsequent discharge orders did not address the issue of competency. Although neither party requested a competency evaluation, the justice's court ordered the county sheriff to take petitioner to Lake's Crossing for an evaluation, postponing a decision on the motion to dismiss until after the evaluation. In addition, the justice's court declined to hold a preliminary hearing, concluding that proceeding with a preliminary hearing would be “a useless act” because petitioner's incompetence rendered her unable to understand the nature of the charges against her or assist her counsel in her defense. Petitioner then brought this original petition for a writ of certiorari or mandamus, requesting that this court: (1) direct the justice's court to dismiss petitioner's criminal case because the district court had already found petitioner to be incompetent to stand trial and no contrary finding had been made; and (2) direct the district attorney to refrain from seeking further criminal proceedings against petitioner and from seeking incarceration of petitioner until he first establishes in district court by a preponderance of the evidence that petitioner is competent. DISCUSSION Petitioner seeks a writ of mandamus on an issue of first impression before this court: whether there is a special prerequisite to initiating a criminal proceeding against a defendant who has previously had the same criminal charge dismissed under NRS 178.425(5), pursuant to a finding that the defendant was incompetent with no substantial probability of attaining competency in the foreseeable future. [Headnotes 1, 2]

A writ of mandamus: may be issued by the supreme court . . . to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person. NRS 34.160. This court has original jurisdiction to issue writs of mandamus under Nev. Const. art. 6, § 4. Ashokan v. State, Dep't RI,QV1HY3G ........................................ Ð116 Nev. 518, 523 (2000) Woerner v. Justice CourtÐ Ð of Ins., 109 Nev. 662, 667, 856 P.2d 244, 247 (1993) (citing State of Nevada v. McCullough, 3 Nev. 202 (1867)). “A writ of mandamus will issue to control a court's arbitrary or capricious exercise of discretion.” Marshall v. District Court, 108 Nev. 459, 466, 836 P.2d 47, 52 (1992) (citing Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981)). We conclude that the request for mandamus is properly before this court because the order of the justice's court sending petitioner to Lake's Crossing to be evaluated is not a final judgment from which an appeal may be taken and there is no other remedy at law available to petitioner. See Wardleigh v. District Court, 111 Nev. 345, 350, 891 P.2d 1180, 1183 (1995). A. Prerequisite showing of competency At the heart of this controversy is NRS 178.425(5), which provides for dismissal of a criminal case where, as here, the defendant is adjudged incompetent with no substantial probability of obtaining competency in the foreseeable future. The central dispute is over the procedure used to reinitiate a criminal charge thus dismissed. The statute does not provide a procedure whereby charges can be refiled if, as happened in this case, the district attorney suspects that the defendant has obtained competency and can stand trial if the charges are refiled. Specifically at issue is whether a prerequisite showing of competency is required before the dismissed charges can be refiled. [Headnote 3] We conclude that respondents are correct in asserting that incompetence only prevents a criminal defendant from being tried or punished and has no bearing on whether a defendant can be charged with a crime. NRS 178.400(1) only states that “[a] person may not be tried or adjudged to punishment for a public offense while he is incompetent.” There is no restriction on charging an incompetent person with a crime. NRS 178.425(5) specifically contemplates refiling of criminal charges after a prior dismissal under that statute. However, the only restriction it imposes on refiling is that of the statute of limitations, merely clarifying that the statute of limitations runs from the date of the alleged offense and is not affected or tolled by any of the competency proceedings otherwise outlined in NRS 178.425, nor is it affected by a dismissal under NRS 178.425(5). The statute imposes no other restrictions on refiling, as refiling is specifically mentioned but not restricted except by the statute of limitations provision. We decline to impose a competency prerequisite, as we do not “imply provisions not expressly included in [a] legislative scheme.” SIIS v. Wrenn, 104 Nev. 536, 539, 762 P.2d 884, 886 (1988). ........................................ Ð116 Nev. 518, 524 (2000) Woerner v. Justice CourtÐ Ð [Headnote 4] With no prerequisite showing of competency mandated by statute, we conclude that the proper procedure to reinitiate a criminal charge previously dismissed under NRS 178.425(5) is identical to the procedure to initiate

any other criminal charge, to wit: irrespective of whether there is probable cause that an accused is competent, an arrest warrant or summons may issue upon probable cause that a crime has been committed and that the named person committed it, and nothing more. NRS 171.106. 2 “If no procedure is specifically prescribed by this title [Title 14, “Procedure in Criminal Cases”], the court may proceed in any lawful manner not inconsistent with this title or with any other applicable statute.” NRS 178.610. Because the reinitiating of the criminal complaint against petitioner is not inconsistent with any other statute, and in fact is in complete accord with the probable cause requirements of NRS 171.106, we conclude that petitioner was properly charged, properly arrested and properly brought before the justice's court. In light of this conclusion, we now address additional issues raised by this petition. B. Motion to dismiss [Headnote 5] Petitioner contends that the justice's court exceeded its jurisdiction in not dismissing her case when the district attorney failed to rebut the de facto presumption of incompetence created by the district court's original ruling that petitioner was incompetent to stand trial. We disagree. Here, the justice's court was not empowered to even consider the issue of competence because NRS 178.405 gives the authority to decide that question to the trial court, which in this case is the district court, not the justice's court. See Baccari v. State, 97 Nev. 109, 624 P.2d 1008 (1981) (stating that competency is an issue for the trial court). Moreover, by dismissing the case because the previous finding of incompetence had not been rebutted, the justice's court would have imposed an errant prerequisite upon the refiling of a criminal case previously dismissed under NRS 178.425(5). Accordingly, we instruct the justice's court to deny the motion to dismiss because it has no jurisdiction to hear the motion. __________ 2

NRS 171.106 also states that the offense committed must be one that is “triable within the county.” This could be construed as requiring probable cause of the defendant's competency at the outset of the criminal proceeding, because, technically, only a competent defendant can go to trial, so the only “triable” offenses are those capable of being taken to trial. However, we construe the phrase as carrying only jurisdictional import, meaning that the offense must be one over which courts of that county have jurisdiction. In any event, petitioner and respondents do not cite this language as significant. ........................................ Ð116 Nev. 518, 525 (2000) Woerner v. Justice CourtÐ Ð C. Preliminary hearing and competency evaluation [Headnote 6] We next consider whether the justice's court exceeded its jurisdiction in ordering a competency evaluation and failing to conduct a preliminary hearing. Petitioner does not address these issues in their own right, because her argument focuses on why the case should never have come before the justice's court to begin with. However, the district attorney concedes that the justice's court erred in both respects and acted in excess of its jurisdiction. We conclude that the district attorney is correct and that a writ of mandamus should issue directing the justice's court to hold a preliminary hearing after vacating its order sending petitioner to Lake's Crossing for a competency evaluation. [Headnotes 7, 8] “The justice courts are courts of limited jurisdiction and have only the authority granted by statute.” State of Nevada v. Justice Court, 112 Nev. 803, 805, 919 P.2d 401, 402 (1996) (citing Parsons v. District Court, 110 Nev. 1239, 1243, 885 P.2d 1316, 1319 (1994)). NRS 4.370(3) states that “[j]ustices' courts have jurisdiction of all misdemeanors and no other criminal offenses except as otherwise provided by specific statute.” No statute provides that the justice's court may try a murder case. Thus, NRS 171.196 applies, which states in pertinent

part as follows: 1. If an offense is not triable in the justice's court, the defendant must not be called upon to plead. If the defendant waives preliminary examination, the magistrate shall immediately hold him to answer in the district court. 2. If the defendant does not waive examination, the magistrate shall hear the evidence within 15 days, unless for good cause shown he extends such time. Because murder is not triable in the justice's court, and because petitioner declined to waive her right to a preliminary hearing, the justice's court should have conducted a preliminary hearing. Petitioner's competency is not within the scope of the preliminary hearing. “The justice court's role at the preliminary hearing is to determine whether there is probable cause to find that an offense has been committed and that the defendant has committed it. If the justice court finds probable cause, the court must order the defendant bound over for trial in the district court.” State of Nevada v. Justice Court, 112 Nev. at 806, 919 P.2d at 402 (citing NRS 171.206). See also State v. Fuchs, 78 Nev. 63, 69, 368 P.2d 869, 871 (1962) (holding that at a preliminary hearing a justice's court does not consider defenses or pass on the sufficiency of the evidence to justify conviction, but only decides if there is enoughHYLGHQFHWRELQGRYHUGHIHQGDQWWRWKHGLVWULFWFRXUW

IRUWULDO  ........................................ Ð116 Nev. 518, 526 (2000) Woerner v. Justice CourtÐ Ð evidence to bind over defendant to the district court for trial). For these reasons, we conclude that the justice's court should vacate its order sending petitioner to Lake's Crossing for evaluation and forthwith conduct a preliminary hearing to determine if there exists probable cause sufficient to bind over petitioner to the district court. At that time, petitioner may choose to seek a competency determination by the district court and seek to have the charges dismissed again under NRS 178.425(5). D. Conduct of the district attorney [Headnote 9] Petitioner contends that the district attorney arbitrarily and capriciously reinitiated the criminal charges against petitioner and asks this court to enjoin the district attorney from further prosecuting petitioner. The district attorney responds by arguing that both his method and motive in reinitiating the case against petitioner were proper. He defends his motive by asserting that he acted in good faith in reinitiating the case because the family court's discharge orders raised legitimate questions in his mind as to petitioner's continuing incompetence. The district attorney defends his method by arguing that the complaint was properly filed because there was adequate probable cause that a crime had been committed by petitioner and that no showing of probable cause of petitioner's competency was required by statute. We conclude that there was nothing arbitrary or capricious in the district attorney's conduct here. We agree that petitioner's impending discharge to outpatient status could serve as a legitimate reason to question whether petitioner was still incompetent. While the family court discharge orders did not address the issue of competency, it was not unreasonable for the district attorney to question whether petitioner's competency was affected. Accordingly, we decline to enjoin the district attorney from further prosecuting petitioner. CONCLUSION Based on the foregoing, we conclude that the justice's court exceeded its jurisdiction in considering the issue of petitioner's competence to stand trial, in ordering petitioner to undergo a competency evaluation, and in failing to conduct a preliminary hearing. We instruct the clerk of the court to issue a writ of mandamus directing the justice's court to vacate its May 13, 1999, order sending petitioner to Lake's Crossing for a competency evaluation and to forthwith conduct a preliminary hearing, consistent with this opinion, to determine if there is adequate probable cause to bind over the petitioner to the district court. Regarding the

relief requested by petitioner, we decline to direct the justice'sFRXUWWRGLVPLVVWKHFDVHRQWKHEDVLV

RISHWLWLRQHU VLQFRPSHWHQFH ........................................ Ð116 Nev. 518, 527 (2000) Woerner v. Justice CourtÐ Ð court to dismiss the case on the basis of petitioner's incompetence, or to direct the district attorney to refrain from further prosecuting petitioner.

____________

Ð116 Nev. 527, 527 (2000) Baker v. Dist. Ct.Ð Ð Ð ROBERT P. BAKER, an Individual, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE GARY L. REDMON, District Judge, Respondents, and RIO PROPERTIES, INC., a Nevada Corporation, Real Party in Interest. No. 34997 June 5, 2000

999 P.2d 1020

Original petition for writ of prohibition challenging the district court's refusal to quash service of process for lack of jurisdiction. Nevada hotel casino brought declaratory judgment action against California guest, seeking determination that it was not violating Nevada or California law by its use of the term “suite” in its name or advertising. The district court denied guest's motion to quash service of process for lack of jurisdiction. Guest filed petition for writ of prohibition challenging district court's refusal to quash service. The supreme court held that: (1) district court lacked general jurisdiction over guest on the basis of his membership in the state bar, but (2) district court had specific jurisdiction over guest arising from his hotel stay. Petition denied. Nikolas L. Mastrangelo, Las Vegas, for Petitioner. Lionel Sawyer & Collins and Dennis L. Kennedy, Las Vegas, for Real Party in Interest. 1. Prohibition. Writ of prohibition is the appropriate remedy where a district court exceeded its jurisdiction in refusing to quash service based on lack of personal jurisdiction. 2. Appeal and Error. In reviewing the district court's determination that personal jurisdiction can be properly exercised, the supreme court conducts a de novo review in matters where the facts are not disputed. 3. Constitutional Law; Courts. For a forum state to obtain personal jurisdiction over a nonresident defendant, the due process clause requires that the defendant have minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. U.S. Const. amend. 14.

........................................ Ð116 Nev. 527, 528 (2000) Baker v. Dist. Ct.Ð Ð 4. Courts.

Forum state's exercise of jurisdiction over a nonresident defendant must be reasonable. 5. Courts. There are two types of personal jurisdiction: general and specific. 6. Courts. State court lacked general jurisdiction over nonresident hotel guest, for purposes of hotel's declaratory judgment action, on the basis of guest's status as a member of the state bar. 7. Courts. General jurisdiction is required in matters where a defendant is held to answer in a forum for causes of action unrelated to his forum activities. 8. Courts. General jurisdiction over a nonresident will lie where the nonresident's activities in the forum are “substantial” or “continuous and systematic.” 9. Courts. State bar membership does not necessarily implicate substantial, continuous, or systematic contact, for purposes of general jurisdiction. 10. Courts. Specific jurisdiction over a defendant will lie only where the cause of action arises from the defendant's purposeful contacts with the forum state. 11. Courts. State may exercise specific jurisdiction over a defendant in instances where: (1) the defendant purposefully establishes contact with the forum state and affirmatively directs his conduct toward the state, and (2) the cause of action arises from such purposeful contact with the forum. 12. Courts. Nevada courts had specific jurisdiction over California hotel guest, for purposes of declaratory judgment action in which Nevada hotel sought determination that it was not violating Nevada or California law by its use of the term “suite” in its name or advertising. Guest's alleged injury arose from his hotel stay in Nevada, where he discovered that not all of hotel rooms were “suites,” Nevada had an interest in resolving matters arising from injuries allegedly occurring while nonresidents are staying in its hotels, and hotel “suite,” the alleged false marketing information, and many of the witnesses, were located in Nevada. NRS 14.065. 13. Courts. When determining whether personal jurisdiction will lie, the supreme court must consider whether it is reasonable to require a defendant to defend a particular suit in the state.

Before Rose, C. J., Agosti and Leavitt, JJ.

OPINION Per Curiam: SUMMARY The underlying action arises out of Robert P. Baker's³%DNHU´ RQHQLJKWVWD\DWWKH5LR6XLWH

+RWHO&DVLQR³WKH5LR´  ........................................ Ð116 Nev. 527, 529 (2000) Baker v. Dist. Ct.Ð Ð (“Baker”) one-night stay at the Rio Suite Hotel Casino (“the Rio”). Because Baker believed that the Rio was engaging in false advertising by calling its hotel rooms “suites,” Baker began writing letters to the Rio, demanding that it delete the word “suite” from its advertising and threatening suit. Eventually, the Rio filed a declaratory action in Nevada district court naming Baker as the defendant and seeking a declaration that it was not violating Nevada or California law by its use of the term “suite.” Baker thereafter filed a motion to quash service based on lack of personal jurisdiction. The district court denied this motion. Consequently, Baker filed a petition for writ of prohibition with this court, alleging that the district court exceeded its jurisdiction in ruling that the Nevada courts had jurisdiction over him. We conclude that the district court properly exercised specific jurisdiction over Baker. We therefore deny the petition for writ of prohibition. STATEMENT OF THE FACTS

Baker has been a resident of Los Angeles, California, since December 1977. Baker has been practicing law in California since 1977 and is the managing partner and sole owner of the law firm of Baker and Jacob. In October 1996, Baker became a member of the State Bar of Nevada. Baker, however, has never represented any party besides himself in any suit in any state or federal court in Nevada. For several years prior to 1997, while in California, Baker saw and heard various advertisements for the Rio, which stated that it was an “all suite hotel.” Baker understood the word “suite” to mean a set of rooms connected by some architectural feature to be used by one person. In early March 1997, Baker's secretary booked him a suite with a king size bed at the Rio. Baker needed to go to Las Vegas for the purpose of visiting certain soul food restaurants and jazz clubs to “sample” the competition, as Baker had invested in a venture that was considering opening such an establishment in Las Vegas. Additionally, Baker was planning a family trip to Las Vegas and wanted to explore whether the Rio was an appropriate place for his family to stay. Baker checked into the Rio on the evening of March 12, 1997. The next morning, Baker complained to a Rio employee about the fact that his room was not a suite, as it allegedly did not have a separate seating area partitioned by some sort of architectural feature. When the Rio employee insisted that the room was a suite, Baker left without checking out or signing his credit card receipt. Later, the Rio debited Baker's credit card, but Baker made no attempt to dispute the charge. Upon Baker's return to Los Angeles, he began writing lettersWRWKH5LR ........................................ Ð116 Nev. 527, 530 (2000) Baker v. Dist. Ct.Ð Ð to the Rio. On March 20, 1997, Baker wrote a letter to the Rio, notifying it that Baker would take “appropriate legal action” if the Rio did not “admit and correct” its wrongdoing—namely, advertising itself as an “all suite” hotel when it was not. Apparently, because the Rio did not respond to Baker's first letter, he sent a second letter on April 9, 1997. In this letter, Baker threatened suit under California law for false advertising, demanded that such advertising cease, and that the Rio rectify its misconduct by compensating all prior California Rio guests with a $50.00 refund or a free night's stay. A Rio vice president sent Baker a letter acknowledging receipt of Baker's letters on April 25, 1997. Thereafter, Baker sent the Rio another letter, informing it that he intended to file suit under the California Consumers Legal Remedies Act in late May and requesting a response by May 12, 1997. On May 13, 1997, the Rio responded by letter, restating its position that all its rooms were suites according to two hospitality industry texts and hospitality industry standards. Baker answered by letter on June 5, 1997, reaffirming his position that the Rio was engaging in false advertising and that his room could not “fairly be called a suite.” On June 6, 1997, the Rio sent yet another letter that pointed out that Baker and the Rio fundamentally disagreed over the Rio's use of the word “suite.” This letter also solicited specific information concerning settlement. Baker, in his written response three days later, made the following demands: (1) deletion of the word “suite” from Rio's name and advertising; (2) compensation for prior California Rio guests in the form of $50.00 or a free night's stay; and (3) $5,000.00 in attorney fees. Baker emphasized that the aforementioned settlement would only resolve the matter in California. In June 1997, the same month that Baker wrote his letter concerning settlement, the Rio filed an action for declaratory relief in the United States District Court for the District of Nevada. In order to obtain jurisdiction in federal court, the Rio alleged that Baker had raised a claim concerning the validity of the Rio's trademark, which was a federal question within the purview of the Lanham Act. Baker moved to dismiss the federal action on the ground that he had never raised a claim under the Lanham Act. This motion was denied. Baker thereafter filed a counterclaim in the federal action, alleging that the Rio was engaged in false advertising in violation of the California Consumers Legal Remedies Act. Pre-trial discovery ensued, and according to Baker, numerous delays occurred in federal court for the next two years. Then, on July 7, 1999, the Rio moved to voluntarily dismiss its complaint. According to Baker, this motion for dismissal was merely anotherGHOD\WDFWLFDQG³SULRUHYHQWRUHTXHVWLQJWKHGLVPLVVDO

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Ð116 Nev. 527, 531 (2000) Baker v. Dist. Ct.Ð Ð delay tactic and “prior even to requesting the dismissal of its own complaint, [the] Rio had already filed this action to begin the precise lawsuit over again from the beginning.” According to the Rio, however, it moved to dismiss because “there was a serious question regarding the federal court's subject matter jurisdiction over [the] Rio's claims and Baker's counterclaims.” The Rio alleges Baker opposed the motion to dismiss, but it was granted without prejudice. Thereafter, on July 8, 1999, the Rio filed a complaint for declaratory relief in state district court, seeking a declaration that it was not violating Nevada or California law by its use of the term “suite” in its name or advertising. Baker was personally served on August 9, 1999, but thereafter filed a motion to quash service, alleging that Nevada lacked personal jurisdiction over him. After conducting a hearing on Baker's motion to quash, the district court denied Baker's motion and ruled jurisdiction over Baker was proper because Nevada had a substantial interest in having Nevada hotel matters resolved in Nevada and that Baker had sufficient Nevada contacts. Believing that the district court erred in making this ruling, Baker filed a petition for writ of prohibition with this court, challenging the district court's refusal to quash service of process and requesting a temporary stay of proceedings in the district court. We granted Baker's request for a temporary stay on October 21, 1999. We now address the merits of Baker's writ petition—namely, whether the district court properly denied Baker's motion to quash based on its conclusion that Nevada had personal jurisdiction in the underlying dispute. DISCUSSION [Headnotes 1, 2] A writ of prohibition is the appropriate remedy where a district court exceeded its jurisdiction in refusing to quash service based on lack of personal jurisdiction. See Trump v. District Court, 109 Nev. 687, 692, 857 P.2d 740, 744 (1993). In reviewing the district court's determination that personal jurisdiction can be properly exercised, we conduct a de novo review in matters where the facts are not disputed. See Panavision Int'l v. Toeppen, 141 F.3d 1316, 1319-20 (9th Cir. 1998). [Headnotes 3-5] Nevada's long-arm statute, NRS 14.065, reaches the limits of due process set by the United States Constitution. See Judas Priest v. District Court, 104 Nev. 424, 426, 760 P.2d 137, 138 (1988). In order for a forum state to obtain personal jurisdiction over a nonresident defendant, the Due Process Clause of the Fourteenth $PHQGPHQW UHTXLUHV WKDW WKH GHIHQGDQW KDYH ³PLQLPXP FRQWDFWV´ ZLWK WKH

IRUXPVWDWH³VXFKWKDWWKHPDLQWHQDQFHRIWKHVXLWGRHVQRWRIIHQGµWUDGLWLRQDOQRWLRQVRI IDLUSOD\DQGVXEVWDQWLDOMXVWLFH ´ ........................................ Ð116 Nev. 527, 532 (2000) Baker v. Dist. Ct.Ð Ð Amendment requires that the defendant have “minimum contacts” with the forum state “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.' ” Mizner v. Mizner, 84 Nev. 268, 270, 439 P.2d 679, 680 (1968) (citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Additionally, a forum state's exercise of jurisdiction over a defendant must be reasonable. See Trump, 109 Nev. at 699, 857 P.2d at 748. There are two types of personal jurisdiction: general and specific. See id. We will address each in turn. A. General jurisdiction [Headnote 6] Baker first contends that Nevada courts lack general jurisdiction over him because his status as a

nonresident, nonpracticing member of the Nevada bar is insufficient to support a conclusion that Baker had systematic and continuing contacts with Nevada. We agree that the Nevada courts lack general jurisdiction over Baker. [Headnotes 7, 8] General jurisdiction is required in matters where a defendant is held to answer in a forum for causes of action unrelated to his forum activities. See Trump, 109 Nev. at 699, 857 P.2d at 748. General jurisdiction over a nonresident will lie where the nonresident's activities in the forum are “substantial” or “continuous and systematic.” Id. (citations omitted). At least two jurisdictions have held that membership in the state bar, in and of itself, does not subject an individual to general jurisdiction in the state of membership because such contact is not substantial, continuous, or systematic. See Worthington v. Small, 46 F. Supp. 2d 1126, 1134 (D. Kan. 1999); Crea v. Busby, 55 Cal. Rptr. 2d 513, 516 (Ct. App. 1996). [Headnote 9] We agree with the Worthington and Crea courts that state bar membership does not necessarily implicate substantial, continuous, or systematic contact. Although the Rio properly notes that nonresident bar members are regulated by our supreme court rules (“SCR”), we conclude that a nonresident bar member could comply with these rules without having continuous and systematic contact with the State of Nevada. 1 In fact, a nonresident, non SUDFWLFLQJ EDU PHPEHU V FRPSOLDQFH ZLWK WKH 6&5 FRXOG FRQVLVW VROHO\ RI VHQGLQJ D

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The Rio brings four specific supreme court rules (“SCR”) to this court's attention: (1) SCR 98, which requires all Nevada bar members to pay yearly fees; (2) SCR 79, which requires all Nevada bar members to keep the bar informed of their current address; (3) SCR 99, which subjects all bar members to the exclusive disciplinary jurisdiction of this court; and (4) SCR 203.5, which provides that this court has jurisdiction to impose discipline of ........................................ Ð116 Nev. 527, 533 (2000) Baker v. Dist. Ct.Ð Ð practicing bar member's compliance with the SCR could consist solely of sending a yearly check and an address update form upon relocation. Accordingly, we conclude that the district courts of Nevada lack general jurisdiction over Baker on the basis of his bar membership. B. Specific jurisdiction [Headnotes 10, 11] Specific jurisdiction over a defendant will lie only where the cause of action arises from the defendant's purposeful contacts with the forum state. See Trump, 109 Nev. at 699, 857 P.2d at 748. A state may exercise specific jurisdiction over a defendant in instances where: (1) the defendant purposefully establishes contact with the forum state and affirmatively directs his conduct toward the state; and (2) the cause of action arises from such purposeful contact with the forum. See id. at 699-700, 857 P.2d at 748. [Headnote 12] With respect to the first requisite, also known as the purposeful availment requirement, Baker argues that he did not avail himself of the forum of Nevada because the instant dispute did not arise from his hotel stay in Nevada, but rather it arose from the Rio's false advertising in California. We conclude that this contention lacks merit because the true “injury” to Baker—specifically, having to stay in an allegedly standard-size hotel room that was advertised as a suite—arose from Baker's stay in Nevada on March 12, 1997. Indeed, had Baker not

stayed at the Rio, he would never have thought that the Rio's California advertisements were false. Accordingly, Baker purposely availed himself of the forum of Nevada by staying the night at the Rio. With respect to the second requisite, assuming that Baker purposely directed himself to the forum of Nevada, Baker argues that his cause of action did not arise out of his contact with Nevada. Specifically, Baker argues that merely sleeping in the Rio for one night does not establish a substantial connection with the state. We conclude that this argument lacks merit because Baker's injuries arose directly from his hotel stay. See Firouzabadi v. District Court, 110 Nev. 1348, 1355, 885 P.2d 616, 621 (1994) (for purposes of specific jurisdiction, claims must have a specific and direct relationship or be intimately related to the forum). Although Baker insists that his injury directly arose in CaliforniaZKHUHKHKHDUGWKH5LR VIDOVHDQGPLVOHDGLQJDGV

__________ its members, even for acts committed in another state. We have considered these rules and do not agree that they give rise to continuous and systematic contact with the State of Nevada. ....................................... Ð116 Nev. 527, 534 (2000) Baker v. Dist. Ct.Ð Ð where he heard the Rio's false and misleading ads, Baker's alleged injury occurred in Nevada where he discovered that not all of the Rio's hotel rooms consisted of two rooms, and thus allegedly are not “suites.” Baker further argues that even if the two requisites for specific jurisdiction are satisfied, it would be unreasonable to subject him to jurisdiction in Nevada because Nevada has no forum interest in this matter. We disagree. [Headnote 13] When determining whether personal jurisdiction will lie, this court must consider whether it is reasonable to require a defendant to defend a particular suit here. See Trump, 109 Nev. at 701, 857 P.2d at 749. Factors relevant to this inquiry, among others, include the forum state's interest in adjudicating the dispute and the interstate judicial system's interest in the most efficient resolution of controversies. See id. We conclude that it is reasonable to require Baker to litigate this matter in Nevada. First, Nevada has an interest in resolving matters arising from injuries that occur while nonresidents are staying in its hotels. Second, hearing this matter in Nevada would promote our long-standing policy of judicial efficiency because the hotel “suite,” the alleged false marketing information, and many of the witnesses, with the exception of Baker, are located in this state. Accordingly, because Baker purposely directed himself to the forum of Nevada and because the exercise of jurisdiction over Baker is reasonable, we conclude that the Nevada courts have specific jurisdiction over Baker. CONCLUSION We conclude that Nevada does not have general jurisdiction over Baker based solely on his bar membership. However, we further conclude that the district court did not exceed its jurisdiction in denying Baker's motion to quash service for lack of personal jurisdiction because the Nevada courts have specific jurisdiction over Baker arising from his hotel stay. Accordingly, we deny Baker's petition for writ of prohibition.

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Ð116 Nev. 535, 535 (2000) Nunez v. City of North Las VegasÐ Ð GEORGIA NUNEZ, Appellant, v. CITY OF NORTH LAS VEGAS, a Municipal Corporation, Respondent. No. 28703 June 9, 2000

1 P.3d 959

Appeal from a district court order granting respondent's motion to dismiss appellant's complaint pursuant to NRCP 12(b)(5). Eighth Judicial District Court, Clark County; James A. Brennan, Senior Judge. Former municipal court administrator sued city for municipal court judge's alleged retaliatory discharge of the administrator, wrongful termination, breach of covenant of good faith and fair dealing, and negligent and intentional infliction of emotional distress. The district court granted city's motion to dismiss. Former administrator appealed. The supreme court, Maupin, J., held that the municipal court was a branch of municipal government rather than a state governmental entity, and the city therefore was subject to suit, overruling Pittman v. Lower Court Counseling, 110 Nev. 359, 871 P.2d 953 (1994). Reversed and remanded with instructions. Lee Elizabeth McMahon, Las Vegas, for Appellant. Richard C. Maurer, City Attorney, North Las Vegas, for Respondent. 1. Federal Courts. The Eleventh Amendment protects state governments from being sued in federal court in a § 1983 civil rights action. U.S. Const. amend. 11; 42 U.S.C. § 1983. 2. Federal Courts. Local governments may be sued in federal court in a § 1983 civil rights action. 42 U.S.C. § 1983. 3. Constitutional Law; Courts. Municipal courts enjoy the inherent powers of all constitutionally created courts, and are entitled to manage internal affairs without interference from separate governmental branches. NRS 5.010, 266.555. 4. Courts. Although municipal courts are created by the legislature pursuant to authority vested in that body by the state constitution, those courts are separate branches of their respective city governments and are therefore primarily city, not state, entities. NRS 5.010, 266.555. 5. Courts. Municipal court was a branch of municipal government rather than a state governmental entity, and thus, city could be sued by former municipal court administrator for municipal court judge's alleged retaliatory discharge of the administrator, wrongful termination, breach of covenant of good faith and fair dealing, and negligent and intentional infliction of emotional distress. NRS 5.010, 266.555.

........................................ Ð116 Nev. 535, 536 (2000) Nunez v. City of North Las VegasÐ Ð 6. Civil Rights. The municipal court is not an extension of the state for purposes of a § 1983 civil rights suit; overruling Pittman v. Lower Court Counseling, 110 Nev. 359, 871 P.2d 953 (1994). 42 U.S.C. § 1983; NRS 5.010, 266.555. 7. Courts. A municipal judge has the inherent power to dismiss a municipal court administrator in the exercise of his or her judicial functions as an agent or officer of the municipality, not of the state. NRS 5.010, 266.555. 8. Civil Rights. Municipalities and other local governmental bodies are “persons,” as element for a § 1983 civil rights action. 42 U.S.C. § 1983.

Before the Court En Banc. OPINION By the Court, Maupin, J.:

Georgia Nunez appeals the dismissal of her complaint against respondent, City of North Las Vegas (the “City”), for wrongful termination of her employment as administrator of the North Las Vegas Municipal Court. It appears that the district court, in reliance on our decision in Pittman v. Lower Court Counseling, 110 Nev. 359, 871 P.2d 953 (1994), determined that the City was immune from her suit. We conclude that Pittman was wrongly decided and that the City is not immune from the action filed by Ms. Nunez in the Nevada state court system. PROCEDURAL HISTORY AND FACTUAL BACKGROUND This case has been marked from its beginning by a tortured procedural history. In October 1993, North Las Vegas Municipal Judge Gary Davis terminated Nunez from her employment as administrator of the City of North Las Vegas Municipal Court. Nunez first commenced proceedings in the United States District Court for the District of Nevada, claiming retaliatory discharge in violation of the First Amendment to the Federal Constitution and 42 U.S.C. § 1983, and gender and racial discrimination in violation of Title VII, 42 U.S.C. § 2000 et seq. Pendant state law claims lodged in the federal case included causes of action for wrongful discharge in violation of state public policy, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, and negligent infliction of emotional distress. It is uncontested that the primary tortfeasor alleged to have committed these wrongs was Judge Davis. The City was

QDPHGDVDGHIHQGDQWLQWKHIHGHUDODFWLRQDORQJZLWK-XGJH'DYLV ........................................ Ð116 Nev. 535, 537 (2000) Nunez v. City of North Las VegasÐ Ð named as a defendant in the federal action along with Judge Davis. 1 The factual basis for the federal and pendant state claims arose from allegations by Nunez that, over a considerable period of time, Judge Davis subjected her and other minority and female employees to harassment and illegal demands. Nunez alleges that she was ultimately terminated in retaliation for her refusal to block certain female employees from attending a seminar (those who failed to assist Judge Davis in his campaign for re-election), failure to obtain a raise for the judge from the city council, failure to replace stained ceiling tiles in his judicial chambers and refusal to require clerks in the Marshall's office to work overtime. The United States District Court dismissed several of the federal claims against Judge Davis 2 and all of the claims against the City. The 42 U.S.C. § 1983 claims were dismissed in reliance on our decision in Pittman v. Lower Court Counseling, 110 Nev. 359, 871 P.2d 953 (1994). In its order, the United States District Court stated: In Pittman v. Lower Court Counseling, [citation omitted], the Nevada Supreme Court noted two previous holdings it had made regarding § 1983 actions against municipal court employees. First, the court noted that it had previously held “that neither the State of Nevada nor its officials acting in their official capacities are persons under 42 U.S.C. § 1983 and therefore neither may be sued in state court under this statute.”[Citation omitted.] Second, the court observed, “[W]e have held that the municipal court system in this state is part of the state judicial system, not the city.” [Citation omitted.] [Headnotes 1, 2] Thus, because the municipal court was part of the state judicial system under Nevada law, the federal court concluded that the City, under Pittman, could not be subject to liability for the defalcations of a state judicial officer. It further dismissed the 42 U.S.C. § 1983 action against Judge Davis because state officials “cannot be sued in their official capacity because a state is not a ‘person' under section 1983 and an official capacity suit against a state official is no different from a suit against the state itself.” 3 See Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). __________ 1

After filing a complaint with the Nevada Equal Rights Commission, Nunez received an EEOC “right to sue”

letter. 2

The federal claims against Judge Davis in his personal capacity were not dismissed.

3

State governments may not be sued in federal court under 42 U.S.C. § 1983, pursuant to the Eleventh Amendment to the Federal Constitution. This is in opposition to local governments, which are subject to such suits. ........................................ Ð116 Nev. 535, 538 (2000) Nunez v. City of North Las VegasÐ Ð The federal district court also dismissed the civil rights claims primarily because Nunez was a member of Judge Davis' personal staff and thus fell within the “personal staff exception” to Title VII claims against elected public officials. See Teneyuca v. Bexar County, 767 F.2d 148, 150 (5th Cir. 1985); Ramirez v. San Mateo County District Attorney's Office, 639 F.2d 509 (9th Cir. 1981). Finally, the court dismissed the pendant state claims against the City. Nunez then commenced the action below in state district court in which she lodged claims mirroring the previous claims for relief dismissed in federal court. However, because of the federal court ruling on the 42 U.S.C. § 1983 and Title VII claims, the claims for retaliatory discharge and wrongful termination were based upon state public policy considerations and her assertion that an implied contract of continued employment with the City had been formed and was breached. Thus, the state action sought relief for retaliatory discharge, wrongful termination, breach of the covenant of good faith and fair dealing, negligent infliction of emotional distress and intentional infliction of emotional distress. The City moved to dismiss the complaint on the basis that it was improper to name it as a defendant and that Nunez had no viable cause of action for either intentional or negligent infliction of emotional distress. The trial court granted the City's motion. Although the record contains no basis for the decision, we assume that the dismissal primarily rests upon the notion that, under Pittman, municipal courts are state, not municipal entities. Certainly, if Pittman was correctly decided, the alleged termination by Judge Davis could not, as a matter of law, form the basis of vicarious liability against the City. On appeal, Nunez argues that the order dismissing her complaint for wrongful termination should have been accompanied by findings of fact and conclusions of law, and that the trial court otherwise abused its discretion in dismissing the complaint. We now conclude that this court wrongly held in Pittman that municipal courts are agents of the State of Nevada for the purposes of immunity from actions brought under 42 U.S.C. § 1983. Thus, our decision in Pittman clearly misled the federal district court into dismissing Nunez's 42 U.S.C. § 1983 action. Further, because Pittman implies that municipalities are not responsible for the acts of their municipal courts because those courts are state entities, we also conclude that the state district court below was misled into determining that the City was improperly joined in the instant lawsuit. Having decided that Pittman must be revisited, we reverse the order below and remand this matter to the district court for reinstatement of Nunez's complaint. ........................................ Ð116 Nev. 535, 539 (2000) Nunez v. City of North Las VegasÐ Ð DISCUSSION The United States Supreme Court has held that a municipality may be sued under 42 U.S.C. § 1983, 4 if it can be established that a municipal policy or custom has caused a constitutional injury. See Monell v. New York City Department of Social Services, 436 U.S. 658, 690 (1978). In Pittman, the plaintiff named the City of Las Vegas as a defendant in a legal suit. The plaintiff in Pittman attempted to argue that Lower Court Counseling (“LCC”), which was a division of the Las Vegas Municipal Court, was part of, and controlled by, the City of Las Vegas and not the State of Nevada. The plaintiff in Pittman

named the City of Las Vegas as a defendant, instead of the State of Nevada, in order to pursue a lawsuit under 42 U.S.C. § 1983. In response, this court held: Because LCC is a division of the City of Las Vegas Municipal Court which itself is part of the state judicial system and therefore a part of the state, LCC is not a person for purposes of 42 U.S.C. § 1983. Accordingly, the district court did not err in holding that a 42 U.S.C. § 1983 action could not be maintained against LCC as a division of the City of Las Vegas Municipal Court. Pittman, 110 Nev. at 364, 871 P.2d at 956. This court supported the above determination by stating, “Pittman fails to recognize that we have held that the municipal court system in this state is part of the state judicial system, not the city.” Id. at 363-64, 871 P.2d at 956 (citing City of No. Las Vegas v. Daines, 92 Nev. 292, 550 P.2d 399 (1976)). Presumably, this court was referring to language in Daines stating that “once municipal courts are established, they exist as a coequal branch of local government within the judicial department of this state, and a part of the constitutional judicial system of this state.” Daines, 92 Nev. at 295, 550 P.2d at 400 (citations omitted). [Headnote 3] We now conclude that, based on the entirety of this court's opinion in Daines, we did not intend to hold that municipal courts are inherently part of state government and thus completely distinct from their corresponding municipalities. The above statePHQWLQ'DLQHVZDVPDGHVROHO\IRUWKHSXUSRVHRIHPSKDVL]LQJ

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Title 42 U.S.C. § 1983 (1988), provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding or redress, . . . . ........................................

Ð116 Nev. 535, 540 (2000) Nunez v. City of North Las VegasÐ Ð ment in Daines was made solely for the purpose of emphasizing that municipal courts enjoy the inherent powers of all constitutionally created courts, and are entitled to manage internal affairs without interference from separate governmental branches. This was the foundation of the court's holding. [Headnote 4] In this respect, the court's conclusion in Pittman, that the municipal court system is part of the state judicial system, and not the individual municipality, took the above language in Daines out of context. To conclude otherwise would deprive municipal courts of their plenary powers and conflict with the fundamental concept that municipalities have certain rights of self-government. Additionally, an analysis of the status of these courts within the state system supports the conclusion that municipal courts are primarily city, not state entities. Although municipal courts are created by the legislature pursuant to authority vested in that body by the Nevada Constitution, these courts are separate branches of their respective city governments. See NRS 266.555; NRS 5.010; North Las Vegas City Charter, ch. 573, art. 5, § 4.005 (1971). [Headnotes 5-8] Accordingly, we conclude that the municipal court is not an extension of the state for purposes of suit under 42 U.S.C. § 1983. A municipal judge has the inherent power to dismiss a municipal court administrator in the exercise of his or her judicial functions as an agent or officer of the municipality, not of the state. This

conclusion is consistent with the United States Supreme Court's holding in Monell and its progeny, which provides that municipalities and other local governmental bodies are “persons” within the meaning of 42 U.S.C. § 1983. See Monell, 436 U.S. at 690; see also Board of Comm'rs of Bryan City v. Brown, 520 U.S. 397 (1997) (holding that a county may be held liable under 42 U.S.C. § 1983 if it could be established that the county sheriff demonstrated a conscious disregard for the public's safety through his hiring practices); Owen v. City of Independence, Mo., 445 U.S. 622 (1980) (holding that a city could not be immune from suit under 42 U.S.C. § 1983 for asserting that a chief of police was dismissed from his position in good faith). Thus, to the extent Pittman is inconsistent with the views stated herein, it is expressly overruled. We also conclude that the municipal courts of this state are separate branches of their respective municipal governments. Because they are not state governmental entities, the respective municipalities may be subject to suits such as the instant matter. We therefore reverse the district court's order dismissing Nunez's complaint against the City of North Las Vegas andUHPDQGWKLVPDWWHUWRWKHGLVWULFWFRXUW ........................................ Ð116 Nev. 535, 541 (2000) Nunez v. City of North Las VegasÐ Ð remand this matter to the district court. On remand, the district court shall allow Nunez leave to allege her Nevada state law claims for retaliatory discharge. All of her claims must be resolved on their merits, including possible substantive defenses available to the City. 5 Rose, C. J., Young, Shearing, Agosti and Becker, JJ., concur.

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Ð116 Nev. 541, 541 (2000) Barrick Goldstrike Mine v. PetersonÐ Ð Ð BARRICK GOLDSTRIKE MINE, Appellant, v. TODD PETERSON, Respondent. No. 33460 June 9, 2000

2 P.3d 850

Appeal from a district court order denying judicial review and affirming the ruling of an appeals officer from the Nevada Department of Administration. First Judicial District Court, Carson City; Michael E. Fondi, Judge. Employer sought judicial review of the decision of an appeals officer of the Department of Administration granting workers' compensation benefits pursuant to a compensation claim filed more than ninety days after the accident. The district court affirmed and denied judicial review. Employer appealed. The supreme court held that: (1) as a matter of first impression, a claimant must both provide written notice of the work-related injury to the employer within seven days of the injury and file a claim for compensation within ninety days of the accident; (2) employer's actual notice of injury did not excuse timely filing of claim; (3) it was not necessary to remand to the insurer as to claimant's excuse for the untimely filing of the claim; and (4) the untimely filing of the claim was excused. Affirmed. McDonald Carano Wilson McCune Bergin Frankovich & Hicks and Timothy E. Rowe, Reno, for Appellant. __________ 5

The City below argued that the emotional distress claims were invalid as a matter of law. Because there is no

indication that the district court reached the merits of this argument other than on the basis that the municipal court was a state entity, we instruct the district court on remand to allow discovery on these claims to proceed. The merits of the emotional distress claims may be revisited thereafter either by pre-trial motion or at trial. The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from participation in the decision of this appeal. ........................................ Ð116 Nev. 541, 542 (2000) Barrick Goldstrike Mine v. PetersonÐ Ð Easterly & Armstrong, Elko, for Respondent. 1. Workers' Compensation. A workers' compensation claimant must both provide written notice of the work-related injury to the employer within seven days of the injury and file a claim for compensation within ninety days of the accident. NRS 616C.015(1), 616C.020(1), 616C.025(1). 2. Appeal and Error. The construction of a statute is a question of law subject to de novo review. 3. Statutes. Statutes should be given their plain meaning. 4. Workers' Compensation. An injured employee must file a claim for compensation within ninety days of the accident, regardless of whether the injured employee seeks medical treatment within the ninety-day period. NRS 616C.020(1)(a). 5. Workers' Compensation. An employer's receipt of actual notice of an injury does not excuse the employee's failure to file a claim for compensation within ninety days of the accident. NRS 616C.020(1), 616C.025(1). 6. Workers' Compensation. Mistake or ignorance of fact excused electrician in employer's maintenance department from filing his claim for compensation within ninety days of accident, where the electrician did not associate his leg pain with the back injury he suffered in the accident, so that electrician sought medical attention belatedly. NRS 616C.020(1), 616C.025(1), (2)(b). 7. Administrative Law and Procedure. Administrative agencies may receive and weigh evidence and a reviewing court may not substitute its judgment on questions of fact. NRS 233B.135(3). 8. Administrative Law and Procedure. Substantial evidence supporting the agency's decision is that quantity and quality of evidence which a reasonable person could accept as adequate to support a conclusion. 9. Workers' Compensation. The insurer's decision to deny a claimant's excuse for failing to timely file the claim for compensation is reviewable de novo by an administrative officer. NRS 616C.020(1), 616C.025(1), (2). 10. Workers' Compensation. Remand from the supreme court to the insurer was not required regarding claimant's excuse for failing to timely file his claim for compensation, where insurer categorically stated at oral argument in the supreme court appeal that it would reject the excuse on remand but the appeals officer had accepted the excuse before the supreme court appeal, so that remand would foster needless litigation that would delay the payment of claimant's benefits. NRS 616C.020(1), 616C.025(1), (2).

Before the Court En Banc. ........................................ Ð116 Nev. 541, 543 (2000) Barrick Goldstrike Mine v. PetersonÐ Ð OPINION Per Curiam: Respondent Todd Peterson (“Peterson”) failed to comply with NRS 616C.020(1) by not filing his workers' compensation claim within ninety days of suffering a work-related injury. Appellant Barrick Goldstrike Mine (“Barrick”) denied Peterson's claim due, in part, to his failure to file a timely claim, and Peterson appealed this decision. A hearing officer and an appeals officer from the Nevada Department of Administration both reversed Barrick's decision and granted Peterson benefits. The district court affirmed the appeals officer's

decision and denied judicial review. For the reasons discussed herein, we conclude that the appeals officer interpreted NRS 616C.025(1) erroneously. However, we further conclude that substantial evidence in the record supports the appeals officer's alternative finding that Peterson's failure to comply with NRS 616C.020(1) is excused under NRS 616C.025(2). FACTS In 1992, Peterson began working for Barrick as an electrician in the maintenance department. On September 11, 1996, while attempting to lift a boarding ladder onto an electric shovel, Peterson felt a “pop” and an immediate burning sensation in his lower back. Peterson immediately notified his supervisor of the injury. Peterson and his supervisor then together filled out an “Employee's Notice of Injury or Occupational Disease” form. Peterson finished his shift and went home. Peterson had previously scheduled the next three days off from work and believed that his back pain would improve with time and rest. Peterson still experienced back pain for two to three weeks, but the pain eventually subsided. Peterson later began experiencing pain in his right leg, which he did not associate with the back injury. Because his leg pain progressively worsened, Peterson sought medical treatment on December 31, 1996, from Dr. John Sherwood (“Dr. Sherwood”). Despite treatment, Peterson continued to suffer leg pain. In March 1997, Dr. Sherwood referred Peterson to Dr. Dennis D. Thoen (“Dr. Thoen”) at the Western Neurological Center in Salt Lake City, Utah, for magnetic resonance imaging (“MRI”). The MRI revealed a serious lumbar disk herniation, which his physicians believed was the cause of the leg pain. Dr. Thoen recommended that Peterson undergo surgery. Dr. Sherwood concluded that the back injury and subsequent leg pain resulted fromWKH6HSWHPEHUDFFLGHQW ........................................ Ð116 Nev. 541, 544 (2000) Barrick Goldstrike Mine v. PetersonÐ Ð the September 11, 1996, accident. With the assistance of Dr. Sherwood, Peterson filled out a workers' compensation claim on March 24, 1997. On April 29, 1997, Barrick's insurance administrator denied Peterson's claim on the stated grounds that the injury was not work-related and that Peterson did not formally file the claim for workers' compensation benefits within ninety days of the injury, as required by NRS 616C.020(1). Peterson immediately appealed the insurance administrator's decision. On July 16, 1997, a hearing officer of the Nevada Department of Administration reversed the insurance administrator's decision and ruled that a preponderance of the evidence demonstrated that Peterson's back injury occurred as a result of his work duties. The hearing officer also ruled that “[b]enefits may not be denied for failure to give timely notice where the [e]mployer had actual notice of injury on date of occurrence.” Barrick appealed the hearing officer's ruling. On December 16, 1997, an appeals officer of the Nevada Department of Administration affirmed the hearing officer's decision. The appeals officer agreed that Peterson did not file an untimely claim because Barrick received actual notice of the injury. The appeals officer concluded that “it is only the failure to . . . both [file a notice of injury and file a workers' compensation claim] that operates as a total bar to industrial benefits.” The appeals officer also observed that Peterson sought medical attention only when his pain worsened, and subsequently filed a claim based upon medical evidence demonstrating that the injury occurred as a result of the September 11, 1996, accident. Accordingly, the appeals officer alternatively concluded that such a situation qualifies as “an excuse for failure to file the claim.” Barrick filed a petition for judicial review of the appeals officer's ruling. On October 16, 1998, the district court denied the petition, affirming the appeals officer's decision. Barrick appeals. DISCUSSION Whether the appeals officer correctly interpreted NRS 616C.025(1) [Headnote 1]

Barrick argues that the appeals officer erred in ruling that filing either a notice of injury or a claim for compensation satisfies NRS 616C.025(1). Instead, Barrick contends that NRS 616C.025(1) requires the filing of both a notice of injury, pursuant to NRS 616C.015(1), and a claim for compensation, pursuant to NRS 616C.020(1). Thus, if an employee fails to file either a notice of injury or a claim for compensation, the employee is, at least presumptively, barred from receiving benefits. We agree. ........................................ Ð116 Nev. 541, 545 (2000) Barrick Goldstrike Mine v. PetersonÐ Ð [Headnotes 2, 3] The construction of a statute is a question of law subject to de novo review. See State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 476, 874 P.2d 1247, 1249 (1994); see also American Int'l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983) (holding that this court may independently review the administrative construction of a statute). Additionally, in interpreting statutes, “[t]his court has long held that statutes should be given their plain meaning.” Alsenz v. Clark Co. School Dist., 109 Nev. 1062, 1065, 864 P.2d 285, 286 (1993). Moreover, “[t]his court has consistently upheld the plain meaning of the statutory scheme in workers' compensation laws.” SIIS v. Prewitt, 113 Nev. 616, 619, 939 P.2d 1053, 1055 (1997). How we should interpret NRS 616C.025(1) is an issue of first impression in Nevada. NRS 616C.025(1) provides: Except as otherwise provided in subsection 2, an employee or, in the event of the death of the employee, his dependent, is barred from recovering compensation pursuant to the provisions of chapters 616A to 616D, inclusive, of NRS if he fails to file a notice of injury pursuant to NRS 616C.015 or a claim for compensation pursuant to NRS 616C.020. After a careful review of NRS Chapter 616C, we conclude that the legislature established a comprehensive statutory scheme for workers' compensation claims that begins with a two-step process. First, under NRS 616C.015(1), 1 an injured employee must provide written notice of a work-related injury to the employer within seven days of the injury. Second, under NRS 616C.020(1), 2 the employee must file a claim for compensation for the injury within ninety days of the accident. In accordance with NRS 616C.015(1) and NRS 616C.020(1), NRS 616C.025(1) expressly provides that an injured employee is barred from receiving compensation if the employee fails to file a notice of injury or fails to file a claim for compensation. In this case, the appeals officer interpreted NRS 616C.025(1)WRPHUHO\UHTXLUHWKHILOLQJRIHLWKHUD

QRWLFHRILQMXU\RUDFODLPIRUFRPSHQVDWLRQ __________ 1

NRS 616C.015(1) provides that “[a]n 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 7 days after the accident.” 2

NRS 616C.020(1) states, in relevant part: [A]n injured employee, or a person acting on his behalf, shall file a claim for compensation with the insurer within 90 days after an accident if: (a) The employee has sought medical treatment for an injury arising out of and in the course of his employment; or (b) The employee was off work as a result of an injury arising out of and in the course of his employment. ........................................

Ð116 Nev. 541, 546 (2000) Barrick Goldstrike Mine v. PetersonÐ Ð to merely require the filing of either a notice of injury or a claim for compensation. Pursuant to the plain language of NRS 616C.025(1), we conclude that an injured employee must file both a notice of injury and a claim for compensation in order to receive benefits. Accordingly, we conclude that the appeals officer interpreted NRS 616C.025(1) erroneously in this case. Peterson contends that the ninety-day deadline provided for in NRS 616C.020(1) is inapplicable in this case. Specifically, Peterson argues that the statute only appears to apply if an employee seeks medical treatment within ninety days of the accident. See NRS 616C.020(1)(a). Here, Peterson sought treatment 111 days after he sustained his injury at Barrick. Although we acknowledge this apparent gap in NRS 616C.020(1), this case involves an unusual factual scenario because most injuries will generally manifest themselves within the ninety-day period. Moreover, to conclude that Peterson is excused from complying with NRS 616C.020(1) would inevitably lead to cases where the statute is rendered inoperative. See Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 502, 797 P.2d 946, 949 (1990) (“It is elementary that statutes . . . must be construed as a whole and not be read in a way that would render words or phrases superfluous or make a provision nugatory.”), overruled on other grounds by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000). [Headnotes 4, 5] Additionally, as noted above, the legislature set up an explicit two-step procedure in an effort to lend order and predictability to the entire workers' compensation process. If we began crafting exceptions to this otherwise unambiguous procedure, it is not difficult to imagine the absurd results that would inevitably flow from such exceptions. See Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 638, 503 P.2d 457, 459 (1972) (“The entire subject matter and the policy of the law may also be involved to aid in its interpretation, and it should always be construed as to avoid absurd results.”). Accordingly, subject to the provisions of NRS 616C.025(2), we conclude that an injured employee must file a claim for compensation under NRS 616C.020(1) within ninety days of the accident regardless of whether the injured employee seeks medical treatment within the ninety-day period. 3 __________ 3

Peterson also contends that if an employer receives actual notice of an injury, the failure to file either a notice of injury or a claim for compensation may be excused. We conclude that Peterson's argument lacks merit. We have held that if an employer receives actual notice of an injury, this may only excuse a failure to file a timely notice of injury, not a claim for compensation. 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, 271-72, ........................................ Ð116 Nev. 541, 547 (2000) Barrick Goldstrike Mine v. PetersonÐ Ð Whether substantial evidence in the record supports the appeals officer's alternative ruling [Headnote 6] Peterson also asserts that this case falls within the purview of NRS 616C.025(2), regardless of whether the appeals officer interpreted NRS 616C.025(1) erroneously. Thus, Peterson argues that the appeals officer's alternative ruling is supported by substantial evidence in the record. We agree. [Headnote 7] It is well-settled that “[a]dministrative agencies may receive and weigh evidence and a reviewing court may not substitute its judgment on questions of fact.” Southwest Gas v. Woods, 108 Nev. 11, 15, 823 P.2d 288, 290 (1992); see also NRS 233B.135(3) (“The court shall not substitute its judgment for that of the agency as to the

weight of evidence on a question of fact.”). Therefore, “[t]he central inquiry is whether substantial evidence in the record supports the agency decision.” Brocas v. Mirage Hotel & Casino, 109 Nev. 579, 583, 854 P.2d 862, 865 (1993). [Headnote 8] Substantial evidence is “ ‘that quantity and quality of evidence which a reasonable [person] could accept as adequate to support a conclusion.' ” State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608 n.1, 729 P.2d 497, 498 n.1 (1986) (quoting Robertson Transp. Co. v. P.S.C., 159 N.W.2d 636, 638 (Wis. 1968)); see also Maxwell v. SIIS, 109 Nev. 327, 331, 849 P.2d 267, 270-71 (1993). Accordingly, if the agency's decision lacks substantial evidentiary support, the decision is unsustainable as being arbitrary or capricious. See NRS 233B.135(3)(f). In the present case, the appeals officer ruled in the alternative that Peterson's circumstances qualified as “an excuse for failure to file the claim” under NRS 616C.025(2). NRS 616C.025(2) operates independently of NRS 616C.025(1) and expressly provides: 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; (b) The failure was caused by the employee's or dependent's mistake or ignorance of fact or of law; __________ 217 P.2d 348, 354 (1950). We decline to extend our holding in Brocas and Industrial Commission to include excusing the failure to file a timely claim for compensation based only on an employer's actual notice of injury. ........................................ Ð116 Nev. 541, 548 (2000) Barrick Goldstrike Mine v. PetersonÐ Ð (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. It is undisputed that Peterson did not associate his leg pain with his back injury. Because of his mistake or ignorance concerning the continuing nature of his back injury, Peterson sought medical attention belatedly, which caused his failure to file a claim for compensation within ninety days of the actual injury. Indeed, Peterson did not move to file a claim for compensation until medical evidence demonstrated that his pain was the result of the September 11, 1996, accident. Thus, the appeals officer alternatively ruled that Peterson's situation qualified as a mistake or ignorance of fact, thereby falling under excusable conduct pursuant to NRS 616C.025(2)(b). For the foregoing reasons, we conclude that substantial evidence in the record clearly supports the appeals officer's alternative finding that Peterson's failure to file a timely claim for compensation was excused under NRS 616C.025(2). [Headnotes 9, 10] Barrick contends that this case is controlled by our decision in Bally's Grand Hotel & Casino v. Reeves, 113 Nev. 926, 948 P.2d 1200 (1997). In Bally's, an injured employee failed to file a timely notice of injury, and her employer's insurer denied her benefits for this reason. On appeal, the employee argued that her failure should have been excused by the insurer pursuant to an earlier version of NRS 616C.025(2). We noted in Bally's that the statute gives “broad discretionary powers to employers as to whether they should accept or reject employees' excuses for failing to comply.” Id. at 929-30 n.4, 948 P.2d at 1203 n.4. Nonetheless, we stated that this “does not, mean, however, that the insurer's decision is inviolate.” Id. Thus, the insurer's decision to deny an excuse is reviewable de novo by an administrative officer. See id. Because it was unclear from the record whether the insurer actually considered the employee's excuse, we remanded the matter to the insurer for a reconsideration of the employee's excuse. See id. at 929, 948 P.2d at 1203; see also Bullock v. Pinnacle Risk Mgmt., 113 Nev.

1385, 1389, 951 P.2d 1036, 1039 (1997) (holding that Bally's requires remanding to the employer's insurer to consider the employee's excuse under NRS 616C.025(2)). Essentially, Barrick argues that under Bally's, remanding this case to its insurer is necessary. We disagree for the following reason. Although our holding in Bally's suggests that we mustUHPDQGWKLVPDWWHUWRWKH

LQVXUHU ........................................ Ð116 Nev. 541, 549 (2000) Barrick Goldstrike Mine v. PetersonÐ Ð remand this matter to the insurer, 4 the appeals officer already concluded that Peterson's failure to file a timely claim fell within the excuse provisions of NRS 616C.025(2). More importantly, at oral argument on this appeal, Barrick categorically stated that it would reject Peterson's excuse upon remand. In enacting the Nevada Industrial Insurance Act (“the Act”), which includes NRS Chapters 616A to 616D, the legislature expressly declared that the Act “must be interpreted and construed to ensure the quick and efficient payment of compensation to injured and disabled employees.” NRS 616A.010(1) (emphasis added). Therefore, remanding this case to Barrick's insurer would only further delay the payment of Peterson's workers' compensation benefits because the insurer would inevitably deny Peterson's excuse, and the appeals officer would then reverse the insurer's decision and accept the excuse. Accordingly, we now clarify our decision in Bally's and conclude that NRS 616C.025(2) does not require remand to the insurer in all cases. Thus, in light of Barrick's concession and the appeals officer's alternative ruling, we further conclude that remanding the case to Barrick's insurer risks non-compliance with the legislature's declaration and would merely serve to foster needless and continued litigation at that level. Consequently, we conclude that the appeals officer properly considered Peterson's excuse de novo and that substantial evidence in the record supports the appeals officer's alternative finding that Peterson's failure to file a timely claim for compensation is excused under NRS 616C.025(2). See Bally's, 113 Nev. at 929-30 n.4, 948 P.2d at 1203 n.4. CONCLUSION Although the appeals officer erroneously interpreted NRS 616C.025(1), we conclude that substantial evidence in the record supports the appeals officer's alternative ruling that Peterson's failure to comply with NRS 616C.020(1) is excused under NRS 616C.025(2). Accordingly, we affirm the order of the district court. __________ 4

Our opinion in Bally's noted that NRS 616C.025(2) “requires that the first decision in these matters must be made by the insurer.” Bally's, 113 Nev. at 930 n.4, 948 P.2d at 1203 n.4.

____________

Ð116 Nev. 550, 550 (2000) Freeman v. Dist. Ct.Ð Ð MARK FREEMAN, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF WASHOE, and THE HONORABLE PETER I. BREEN, District Judge, Respondents, and WEST AMERICAN INSURANCE COMPANY and OHIO CASUALTY INSURANCE COMPANY, Real Parties in Interest.

No. 33917 June 9, 2000

1 P.3d 963

Original petition for a writ of mandamus challenging an order of the district court granting the real parties in interest's motion to quash service of process. Insured brought action against two non-resident insurers based on previous litigation in another state. The district court granted insurers' motion to quash service of process based on lack of personal jurisdiction, and insured petitioned for writ of mandamus. The supreme court, addressing an issue of first impression, held that insurers did not consent to the general jurisdiction of Nevada's courts when they appointed the commissioner of insurance as an agent to receive service of legal process. Petition denied. Jones Vargas and Gregory A. Brower and Albert F. Pagni, Reno, for Petitioner. Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Michael A. Pintar, Carson City, for Real Parties in Interest. 1. Corporations. Appointment of the commissioner of insurance as an agent to receive service of legal process pursuant to statute requiring such appointment for non-resident insurer to transact business in state, does not, by itself, subject a non-resident insurer to personal jurisdiction in Nevada. NRS 680A.250. 2. Mandamus. Petition for a writ of mandamus is the proper means by which to challenge an order quashing service of process. 3. Courts. There are two types of personal jurisdiction: general and specific. 4. Courts. “General jurisdiction” occurs where a defendant is held to answer in a forum for causes of action unrelated to the defendant's forum activities. General jurisdiction over the defendant is appropriate where the defendant's forum activities are so substantial or continuous and systematic that it may be deemed present in the forum. 5. Courts. “Specific personal jurisdiction” over a defendant may be established only where the cause of action arises from the defendant's contacts withWKHIRUXP

........................................ Ð116 Nev. 550, 551 (2000) Freeman v. Dist. Ct.Ð Ð

6. 7.

8.

9.

the forum. To subject a defendant to specific jurisdiction, supreme court must determine if the defendant purposefully established minimum contacts so that jurisdiction would comport with fair play and substantial justice. Courts. Plaintiff bears the burden of producing some evidence in support of all facts necessary to establish personal jurisdiction. Corporations. Nevada activities of two non-resident insurers were not so substantial or continuous and systematic as to subject them to the general jurisdiction of the district court in dispute with Nevada insured that did not arise out of their Nevada contacts, where one insurer did not collect any premiums in state during previous year, and other insurer collected a de minimis amount. Corporations. Two non-resident insurers did not consent to the general jurisdiction of Nevada's courts when they appointed the commissioner of insurance as an agent to receive service of legal process. NRS 680A.250. Corporations. Two non-resident insurers did not have sufficient contacts with Nevada to subject them to the personal jurisdiction of Nevada courts in dispute with Nevada insured arising from previous litigation in another state, where one insurer did not collect any premiums in state during previous year, and other insurer collected a de minimis amount.

Before the Court En Banc. OPINION Per Curiam:

[Headnote 1] In this petition we are asked if the appointment of the commissioner of insurance as an agent to receive service of legal process pursuant to NRS 680A.250, 1 by itself, subjects a nonresident insurance company to personal jurisdiction in Nevada. We hold that it does not. __________ 1

NRS 680A.250 provides that: 1. Before the commissioner may authorize it to transact insurance in this state, each insurer must appoint the commissioner, and his successors in office, as its attorney to receive service of legal process issued against the insurer in this state. The appointment must be made on a form as designated and furnished by the commissioner, and must be accompanied by a copy of a resolution of the board of directors or like governing body of the insurer, if an incorporated insurer, showing that those officers who executed the appointment were authorized to do so on behalf of the insurer. 2. The appointment must be irrevocable, must bind the insurer and any successor in interest to the assets or liabilities of the insurer, and must remain in effect as long as there is in force any contract of the ........................................

Ð116 Nev. 550, 552 (2000) Freeman v. Dist. Ct.Ð Ð FACTS In August of 1998, Mark Freeman filed an action against West American Insurance Company (“West American”) and Ohio Casualty Insurance Company (“Ohio Casualty”) in Washoe County, Nevada, for malicious prosecution. Freeman has been a Nevada resident since 1994. Freeman's claim arose from previous litigation in California between Freeman and West American. The underlying dispute did not involve Nevada in any way. 2 Ohio Casualty is an Ohio corporation licensed to do business in Nevada since 1939. West American, a subsidiary of Ohio Casualty, is an Indiana corporation licensed to do business in Nevada since 1975. Pursuant to NRS 680A.250, each company has appointed the commissioner of insurance as its agent authorized to receive service of legal process in Nevada. After Freeman filed his Nevada action, West American and Ohio Casualty each made a special appearance and moved to quash service of process, claiming that Nevada lacked personal jurisdiction over them. The district court granted the motion after determining that neither general nor specific jurisdiction could be established over West American and Ohio Casualty. This original petition for a writ of mandamus followed. DISCUSSION [Headnote 2] It is well established that a petition for a writ of mandamus is the proper means by which to challenge an order quashing service of process. Firouzabadi v. District Court, 110 Nev. 1348, 1351-52, 885 P.2d 616, 618 (1994). __________ insurer in this state or any obligation of the insurer arising out of its transactions in this state. 3. Service of such process against a foreign or alien insurer must be made only by service thereof upon the commissioner. 4. Service of such process against a domestic insurer may be made as provided in this section, or in

any other manner provided by Nevada Rules of Civil Procedure. 5. At the time of application for a certificate of authority the insurer shall file the appointment with the commissioner, together with a designation of the person to whom process against it served upon the commissioner is to be forwarded. The insurer shall provide written notice to the commissioner of any change of such a designation by a new filing. 2

In 1995, West American sued Freeman for reimbursement of funds paid to Freeman to defend a lawsuit against Freeman concerning a house he built in Palo Alto, California. Freeman cross-complained for breach of contract, breach of the covenant of good faith and fair dealing and economic duress. The jury found in Freeman's favor, and the resulting judgment was affirmed on appeal. West American Ins. v. Freeman, 44 Cal. Rptr. 2d 555 (Ct. App. 1995). ........................................ Ð116 Nev. 550, 553 (2000) Freeman v. Dist. Ct.Ð Ð [Headnotes 3-5] There are two types of personal jurisdiction: general and specific. Trump v. District Court, 109 Nev. 687, 699, 857 P.2d 740, 748 (1993). “General jurisdiction occurs where a defendant is held to answer in a forum for causes of action unrelated to the defendant's forum activities.” Id. “General jurisdiction over the defendant ‘is appropriate where the defendant's forum activities are so “substantial” or “continuous and systematic” that it may be deemed present in the forum.' ” Id. (quoting Budget Rent-A-Car v. District Court, 108 Nev. 483, 485, 835 P.2d 17, 19 (1992)). “[S]pecific personal jurisdiction over a defendant may be established only where the cause of action arises from the defendant's contacts with the forum.” Trump, 109 Nev. at 699, 857 P.2d at 748. To subject a defendant to specific jurisdiction, this court must determine if the defendant “purposefully established minimum contacts” so that jurisdiction would “comport with ‘fair play and substantial justice.' ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 320 (1945)); see also Trump, 109 Nev. at 699-700, 857 P.2d at 748-49. [Headnotes 6, 7] The plaintiff bears the burden of producing some evidence in support of all facts necessary to establish personal jurisdiction. Trump, 109 Nev. at 692-93, 857 P.2d at 744. The record indicates that West American did not collect any premiums in Nevada in 1997 and that Ohio Casualty collected a de minimis amount in the same year. We conclude that the insurance companies' activities in Nevada were not so substantial or continuous and systematic as to subject them to the general jurisdiction of the district court. As previously mentioned, the underlying dispute did not arise out of the insurance companies' contacts with Nevada. Therefore, the district court properly determined that it lacked specific jurisdiction over the insurance companies. [Headnote 8] In this petition, Freeman contends that West American and Ohio Casualty consented to the general jurisdiction of Nevada's courts when the companies appointed the commissioner of insurance as an agent to receive service of legal process pursuant to NRS 680A.250. West American and Ohio Casualty argue that the mere act of appointing an agent to receive service of process does not subject a non-resident corporation to general jurisdiction. We note that Nevada has heretofore not addressed this question. Other jurisdictions, as well as legal authorities that have considered the issue, are divided. Freeman primarily relies on Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining and Milling Co., 243 U.S. 93  ........................................ Ð116 Nev. 550, 554 (2000) Freeman v. Dist. Ct.Ð Ð

(1917). In Gold Issue, the defendant insurance company obtained a license to do business in Missouri. Id. at 94. In order to obtain a license, the insurance company was required to, and did, file “with the superintendent of the insurance department a power of attorney consenting that service of process upon the superintendent should be deemed personal service upon the company so long as it should have any liabilities outstanding in the state.” Id. The Missouri Supreme Court held that the insurance company was thus subject to the jurisdiction of Missouri courts. Id. at 95. The United States Supreme Court affirmed, stating that “the construction did not deprive the defendant of due process of law even if it took the defendant by surprise.” Id. Gold Issue has not been expressly overruled. 3 Many courts have continued to apply the holding of Gold Issue. A thorough analysis of the issue was set forth in Sternberg v. O'Neil, 550 A.2d 1105 (Del. 1988). The Delaware Supreme Court recognized the dispute between the holding in Gold Issue and the “minimum contacts” analysis required under International Shoe. However, the court determined that the two theories “complement one another and are neither inconsistent nor mutually exclusive.” Id. at 1110. The court described two forms of consent to jurisdiction: implied and express. Id. The court then determined that a “minimum contacts” analysis is applicable “in the absence of any other basis for the exercise of jurisdiction.” Id. at 1111. The court took the view that “a state still has power to exercise general judicial jurisdiction over a foreign corporation which has expressly consented to the exercise of such jurisdiction,” and thus no “minimum contacts” analysis is necessary. 4 Id. at 1111, 1117. Thus, the court held that the Delaware court properly exercised jurisdiction over a non-resident corporation which had appointed an agent to receive service of process as a condition to conducting business in Delaware. 5 Id. Many courts and legal authorities agree that the appointment of an agent to receive service of process subjects a non-resident corporation to personal jurisdiction in that state. See Bane v. Netlink, Inc., 925 F.2d 637, 640 (3d Cir. 1991) (holding that a corporation was subject to jurisdiction in Pennsylvania because

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However, Gold Issue has been criticized by modern legal scholars. See Pierre Riou, General Jurisdiction Over Foreign Corporations: All that Glitters is not Gold Issue Mining, 14 Rev. Litig. 741 (1995); Matthew Kipp, Inferring Express Consent: The Paradox of Permitting Registration Statutes to Confer General Jurisdiction, 9 Rev. Litig. 1 (1990). 4

The court also made an alternative ruling that the Ohio corporation had sufficient “minimum contacts” with Delaware to support jurisdiction since the Ohio corporation owned a Delaware corporation whose alleged mismanagement was part of the lawsuit. Sternberg, 550 A.2d at 1125-26. 5

The reasoning in Sternberg was thoroughly criticized in the article by Matthew Kipp, 9 Rev. Litig. at 39-42. ........................................

Ð116 Nev. 550, 555 (2000) Freeman v. Dist. Ct.Ð Ð “Pennsylvania law explicitly states that the qualification of a foreign corporation to do business is sufficient contact to serve as the basis for the assertion of personal jurisdiction”); Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1200 (8th Cir. 1990) (“We conclude that appointment of an agent for service of process . . . gives consent to the jurisdiction of Minnesota courts for any cause of action, whether or not arising out of activities within the state. Such consent is a valid basis of personal jurisdiction, and resort to minimum-contacts or due-process analysis to justify the jurisdiction is unnecessary.”); Holloway v. Wright & Morrissey, Inc., 739 F.2d 695, 698 (1st Cir. 1984) (holding that a statute requiring a corporation to appoint a registered agent is not affected by New Hampshire's long arm statute); Werner v. Wal-Mart Stores, Inc., 861 P.2d 270, 272-73 (N.M. Ct. App. 1993) (holding that personal jurisdiction could be based on a theory of consent, and determining that New Mexico courts could obtain personal jurisdiction over all corporations who had appointed a registered

agent in compliance with New Mexico law); Sharkey v. Washington Nat. Ins. Co., 373 N.W.2d 421, 425-26 (S.D. 1985) (holding that South Dakota courts had jurisdiction over an out-of-state insurer in regard to an insurance contract signed by a South Dakota resident in Wyoming because the insurer had appointed the South Dakota Director of Insurance as its registered agent in compliance with South Dakota law); Restatement (Second) of Conflict of Laws § 44 (1971). West American and Ohio Casualty argue that the holding enunciated in Gold Issue was implicitly abandoned by the United States Supreme Court through its decisions in International Shoe and its progeny. At the time Gold Issue was decided in 1917, the theory which dominated the Supreme Court's thinking about jurisdiction had been characterized as the “power principle.” See 1 Robert C. Casad & William B. Richman, Jurisdiction in Civil Actions § 2-2(2)(a) (3d ed. 1998). As Justice Oliver Wendell Holmes explained, “the foundation of jurisdiction is physical power.” McDonald v. Mabee, 243 U.S. 90, 91 (1917). Under this theory, a court exercised jurisdiction over a foreign corporation only if the corporation was deemed to be present in the forum state or had consented to its jurisdiction. 1 Casad & Richman, Jurisdiction in Civil Actions § 2-2(3)(c)(iii). International Shoe marked the beginning of the shift away from the power principle of personal jurisdiction toward principles of fundamental fairness. See 1 Casad & Richman, Jurisdiction in Civil Actions §§ 2-2, 2-3. In International Shoe, the United States Supreme Court dealt with whether or not Washington State couldLPSRVH

D WD[ RQ D 0LVVRXULEDVHG 'HODZDUH FRUSRUDWLRQ DQG VXEMHFW LW WR VXLW LQ :DVKLQJWRQ WR FROOHFWWKHWD[ ........................................ Ð116 Nev. 550, 556 (2000) Freeman v. Dist. Ct.Ð Ð impose a tax on a Missouri-based Delaware corporation and subject it to suit in Washington to collect the tax. The corporation employed several salesmen in Washington. The United States Supreme Court considered whether Washington courts could properly exercise jurisdiction over the corporation, stating: Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of court was prerequisite to its rendition of a judgment personally binding him. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Milliken v. Meyer, 311 U.S. 457, 463 [1940]. International Shoe, 326 U.S. at 316 (citation omitted). The Court reconciled its decision with earlier cases which found jurisdiction based upon presence or consent. As for consent, the inquiry relevant to the instant case, the Court said: True, some of the decisions holding the corporation amenable to suit have been supported by resort to the legal fiction that it has given its consent to service and suit, consent being implied from its presence in the state through the acts of its authorized agents. But more realistically it may be said that those authorized acts were of such a nature as to justify the fiction. Id. at 318 (citations omitted). A few years after International Shoe, the Court upheld an Ohio court's exercise of jurisdiction over a non-resident corporation after its president was served with process while conducting business in Ohio. Perkins v. Benguet Mining Co., 342 U.S. 437, 448 (1952). The Court stated that “[t]he corporate activities of a foreign corporation which, under state statute, make it necessary for it to secure a license and to designate a statutory agent upon whom process may be served provide a helpful but not a conclusive test.” Id. at 445. In 1977, the Supreme Court decided Shaffer v. Heitner, 433 U.S. 186 (1977). In Shaffer, the Court held that

quasi in rem jurisdiction over a defendant's property, traditionally a per se basis for jurisdiction, must be tested under the “minimum contacts” standard, stating that “all assertions of state-court jurisGLFWLRQ PXVW EH

HYDOXDWHGDFFRUGLQJWRWKHVWDQGDUGVVHWIRUWKLQ,QWHUQDWLRQDO6KRHDQGLWVSURJHQ\ ........................................ Ð116 Nev. 550, 557 (2000) Freeman v. Dist. Ct.Ð Ð diction must be evaluated according to the standards set forth in International Shoe and its progeny.” 6 Id. at 212. A few years later the Court decided Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). There, the Court held that Florida properly obtained jurisdiction over two Michigan residents who had obtained a Burger King franchise from a Florida-based corporation, because the Michigan residents had reached out to Florida to get a business contract, and knew that all the decisions regarding the contract were made in Florida. Id. at 479-81. In reaching its decision, the Court summarized jurisdictional law since International Shoe. The Court noted that due process requires that a defendant should reasonably anticipate out-of-state litigation, i.e., “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. at 475 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). The Court stated: Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with “fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S., at 320. Thus courts in “appropriate case[s]” may evaluate “the burden on the defendant,” “the forum State's interest in adjudicating the dispute,” “the plaintiff's interest in obtaining convenient and effective relief,” “the interstate judicial system's interest in obtaining the most efficient resolution of controversies,” and the “shared interest of the several States in furthering fundamental substantive social policies.” Burger King, 471 U.S. at 476-77 (quoting World-Wide Volkswagen Corp., 444 U.S. 286, 292 (1980)). The United States Supreme Court in International Shoe and its progeny has shifted the focus of the jurisdictional inquiry from a state's physical power over a defendant to fundamental fairness and has abandoned the reasoning of Gold Issue. Other courts and legal scholars have agreed that the mere act of appointing an agent to receive service of process, by itself, does not subject a nonresident corporation to general jurisdiction. See Goodyear Tire & Rubber Co. v. Ruby, 540 A.2d 482, 487 (Md. 1988) (“The fact __________ 6

The Supreme Court may have retreated from this position in Burnham v. Superior Court of California, County of Marin, 495 U.S. 604 (1990), where only a plurality of four justices insisted that all jurisdictional bases must pass the International Shoe test. See 1 Casad & Richman, Jurisdiction in Civil Actions § 2-3[1][b]. ........................................ Ð116 Nev. 550, 558 (2000) Freeman v. Dist. Ct.Ð Ð that Goodyear has appointed a resident agent in this State would not alone be sufficient to subject it to suit here.”); In re Mid-Atlantic Toyota Antitrust Litigation, 525 F. Supp. 1265, 1277-78 (D. Md. 1981), aff'd, 704 F.2d 125 (4th Cir. 1983) (holding that West Virginia had no jurisdiction over a non-resident corporation that had a registered agent in West Virginia pursuant to state law, absent minimum contacts under International Shoe); Pierre Riou, General Jurisdiction Over Foreign Corporations: All that Glitters is not Gold Issue Mining, 14 Rev. Litig. 741 (1995); Matthew Kipp, Inferring Express Consent: The Paradox of Permitting Registration Statutes to Confer General Jurisdiction, 9 Rev. Litig. 1 (1990).

[Headnote 9] Therefore, we conclude that the appointment of an agent to receive service of legal process pursuant to NRS 680A.250 does not in itself subject a non-resident insurance company to the personal jurisdiction of Nevada courts. We further conclude that the district court properly determined that West American and Ohio Casualty did not have sufficient contacts with Nevada to subject them to the personal jurisdiction of Nevada courts. Accordingly, we deny Freeman's petition for a writ of mandamus.

____________

Ð116 Nev. 558, 558 (2000) Hart v. StateÐ Ð Ð RALPH LAURENCE HART, Appellant, v. THE STATE OF NEVADA, Respondent. No. 29857 June 14, 2000

1 P.3d 969

Proper person appeal from a district court order denying appellant's motion to withdraw a guilty plea brought subsequent to entry of the judgment of conviction. Eighth Judicial District Court, Clark County; Don P. Chairez, Judge. Defendant moved to withdraw guilty plea to murder charge over six years after entry of judgment of conviction. The district court considered motion to be a habeas corpus petition and denied it as untimely. Defendant appealed. After issuing show cause order, the supreme court held that: (1) motion to withdraw guilty plea, when brought after sentencing, is incident to proceedings in trial court and is thus not subject to statutory time limitations for habeas corpus petitions; (2) such a motion is subject to equitable doctrine of laches; (3) laches precluded consideration of defendant's motion; and (4) to ensure compliance with the relevant procedural requirements, defendants challenging a conviction entered upon a guilty plea should clearly identify the nature of the relief sought,DEURJDWLQJ3DQJDOORY6WDWH1HY3G  ........................................ Ð116 Nev. 558, 559 (2000) Hart v. StateÐ Ð abrogating Pangallo v. State, 112 Nev. 1533, 930 P.2d 100 (1996); Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967). Affirmed. Ralph Laurence Hart, Carson City, in Proper Person. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Clark County, for Respondent. 1. Criminal Law. District court order denying a motion to withdraw a guilty plea brought prior to entry of the judgment of conviction is reviewable, on direct appeal, as an intermediate order of the proceedings. NRS 176.165. 2. Criminal Law. Motion to withdraw a plea is incident to proceedings in trial court and is therefore not subject to statutory time limitations applicable to petitions for writ of habeas corpus. NRS 34.724(2)(a), 34.726(1), 176.165. 3. Criminal Law. Whether an injustice resulting from conviction entered upon a guilty plea is manifest, so as to permit a motion to withdraw plea to be considered after imposition of sentence, will depend upon a variety of factors, including whether the state would suffer prejudice if

the defendant is permitted to withdraw his or her plea. NRS 176.165. 4. Criminal Law. Consideration of the equitable doctrine of laches is necessary in determining whether a defendant has shown manifest injustice that would permit withdrawal of a guilty plea after sentencing. NRS 176.165. 5. Criminal Law. Application of the doctrine of laches to an individual case in which a defendant seeks to withdraw guilty plea after sentencing may require consideration of several factors, including: (1) whether there was an inexcusable delay in seeking relief, (2) whether an implied waiver has arisen from the defendant's knowing acquiescence in existing conditions, and (3) whether circumstances exist that prejudice the state. NRS 176.165. 6. Criminal Law. Where a defendant previously has sought relief from conviction entered upon guilty plea, failure to identify all grounds for relief in the first instance should weigh against consideration of a successive motion seeking to withdraw plea. NRS 176.165. 7. Criminal Law. While similar concerns underlie procedural default rules applicable to post-conviction relief proceedings and the equitable doctrine of laches as applied to post-sentence motions to withdraw guilty pleas, analysis as to timeliness of each type of proceeding is not identical. Timing of a post-conviction petition is of little importance until one year has lapsed since entry of judgment of conviction or issuance of the remittitur of a timely direct appeal, whereas significant delay of even less than one year may bear on consideration of post-sentence motion to withdraw a plea. NRS 34.726(1), 176.165. 8. Criminal Law; Habeas Corpus. To ensure compliance with relevant procedural requirements, defendants challenging a conviction entered upon a guilty plea should clearly identify the nature of the relief sought as a motion to withdraw plea orDSRVWFRQYLFWLRQSHWLWLRQIRUZULWRI

KDEHDVFRUSXV

........................................ Ð116 Nev. 558, 560 (2000) Hart v. StateÐ Ð a post-conviction petition for writ of habeas corpus, as the procedural label will be determinative; abrogating Pangallo v. State, 112 Nev. 1533, 930 P.2d 100 (1996); Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967). NRS 34.726(1), 176.165. 9. Criminal Law. Only issues relating to validity of plea are pertinent to a motion to withdraw plea. NRS 176.165. 10. Criminal Law. Doctrine of laches precluded consideration of motion to withdraw guilty plea to murder charge, where defendant delayed for more than six years after sentencing and entry of judgment of conviction before filing the motion at issue, defendant provided no reasonable explanation for delay despite being afforded an opportunity to do so, and state specifically asserted that it would suffer prejudice if forced to proceed to trial. NRS 176.165.

Before the Court En Banc. OPINION Per Curiam: This is a proper person appeal from a district court order denying a motion to withdraw a guilty plea brought subsequent to entry of the judgment of conviction. We hold that the district court erred in considering the motion as a post-conviction petition for a writ of habeas corpus and in concluding that it was untimely, pursuant to NRS 34.726(1). However, we further hold that the equitable doctrine of laches applies to motions to withdraw a guilty plea that are brought after sentencing. Applying laches to the instant case, we hold that the district court reached the proper result. Accordingly, we affirm. FACTS On July 13, 1990, the district court convicted appellant Ralph Laurence Hart, pursuant to a guilty plea, of second degree murder. The court sentenced Hart to serve a term of life imprisonment with the possibility of parole. Hart did not file a timely direct appeal. On September 13, 1996, Hart filed a proper person motion to withdraw his guilty plea in the district court. The State opposed Hart's motion, arguing that it should be treated as a post-conviction petition for a writ of habeas corpus and that it was barred pursuant to the applicable procedural default rules. Specifically, the State asserted that Hart's motion was untimely, pursuant to NRS 34.726(1), and barred by laches, pursuant to NRS 34.800(2). Hart responded that a motion to withdraw a guilty plea was not subject to time restrictions.

The district court ultimately considered Hart's motion as a habeas corpus petition DQG GHQLHG LW DV

XQWLPHO\SXUVXDQWWR156  ........................................ Ð116 Nev. 558, 561 (2000) Hart v. StateÐ Ð and denied it as untimely pursuant to NRS 34.726(1). This appeal followed. On February 4, 1999, this court entered an order directing the State to show cause why this matter should not be remanded to the district court for consideration of the merits of Hart's motion. This court also specifically requested the State to address the issue of whether the one-year filing deadline in NRS 34.726(1) applies to motions to withdraw pleas that are brought subsequent to entry of the judgment of conviction. In its response to our order, the State reverses its earlier position and concedes that NRS 34.726(1) does not apply to Hart's motion; however, the State argues that the equitable doctrine of laches should apply. The State asserts that “[t]he legislature could enact a time limit on motions to withdraw guilty plea[s] but in the absence of such legislation this Court should recognize the doctrine of laches to preclude stale motions” such as Hart's motion. We find the State's reasoning persuasive. DISCUSSION Viability of motion to withdraw a plea The statutory provisions governing the motion to withdraw a guilty plea are codified in NRS 176.165. NRS 176.165 contemplates that a defendant may file a motion to withdraw a plea both before and after imposition of the sentence: Except as otherwise provided in this section, a motion to withdraw a plea of guilty, guilty but mentally ill or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended. To correct manifest injustice, the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. Pursuant to the plain language of the statute, the district court may grant a motion to withdraw a plea even after sentencing or entry of the judgment of conviction “[t]o correct manifest injustice.” 1 [Headnote 1] Consistent with this statutory mandate, the motion to withdraw a plea has become established in our jurisprudence. In HargroveY6WDWH1HY3G  __________ 1

The quoted language of NRS 176.165 is modeled after a former provision in a Federal Rule of Criminal Procedure that has since been amended. See State v. District Court, 85 Nev. 381, 384-85, 455 P.2d 923, 925-26 (1969); Fed. R. Crim. P. 32(d) (1982). In 1983, the federal rule was amended to provide that a plea could be set aside only on direct appeal or by a habeas motion pursuant to 28 U.S.C. § 2255. However, prior to the amendment, federal courts recognized the viability of the motion to withdraw a plea when the motion was made subsequent to entry of the judgment of conviction. See discussion United States v. Baker, 790 F.2d 1437, 1438 (9th Cir. 1986). ........................................ Ð116 Nev. 558, 562 (2000) Hart v. StateÐ Ð v. State, 100 Nev. 498, 501-02, 686 P.2d 222, 224-25 (1984), this court explicitly recognized the right to appeal

from an order denying such a motion when the motion is brought subsequent to entry of the judgment of conviction. 2 In subsequent decisions, this court has consistently considered such appeals. See, e.g., Barajas v. State, 115 Nev. 440, 991 P.2d 474 (1999). Further, this court has indicated that the motion to withdraw a plea exists independently from provisions governing post-conviction relief. See Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986) (“[A] defendant must raise a challenge to the validity of his or her guilty plea in the district court in the first instance, either by bringing a motion to withdraw the guilty plea, or by initiating a post-conviction proceeding under NRS 34.360 or NRS 177.315.”). 3 Nevertheless, this court has yet to specifically address whether the provisions of NRS chapter 34, governing the post-conviction petition for a writ of habeas corpus, have subsumed the motion to withdraw a plea in cases where a judgment of conviction has been entered. NRS 34.724(2) provides, in pertinent part, that the post-conviction petition for a writ of habeas corpus: (a) Is not a substitute for and does not affect any remedies which are incident to the proceedings in the trial court or the remedy of direct review of the sentence or conviction. (b) Comprehends and takes the place of all other common law, statutory or other remedies which have been available for challenging the validity of the conviction or sentence, and must be used exclusively in place of them. Consistent with these provisions, the statutory motion to withdraw a plea is an available remedy for defendants challenging a plea after entry of the judgment of conviction only if the motion is “incident to the proceedings in the trial court.” [Headnote 2] Today we explicitly recognize that the motion to withdraw a plea is “incident to the proceedings in the trial court.” In so holding, we clarify references in prior cases that suggest that there are only two motions that are incident to the trial court proceedings, a “motion to modify a sentence based on very narURZGXHSURFHVV

JURXQGV __________ 2

A district court order denying a motion to withdraw a guilty plea brought prior to entry of the judgment of conviction is reviewable, on direct appeal, as an intermediate order of the proceedings. Hargrove, 100 Nev. at 502 n.3, 686 P.2d at 225 n.3. 3

At the time Bryant was decided, a dual system existed whereby a defendant could generally file a petition for post-conviction relief, pursuant to NRS 177.315, and then a petition for a writ of habeas corpus. NRS 177.315 and related provisions were repealed, effective January 1, 1993. 1991 Nev. Stat., ch. 44, §§ 31-33, at 92. ........................................ Ð116 Nev. 558, 563 (2000) Hart v. StateÐ Ð row due process grounds, and a motion to correct a facially illegal sentence.” See Edwards v. State, 112 Nev. 704, 707, 918 P.2d 321, 323-24 (1996); see also Pangallo v. State, 112 Nev. 1533, 1535 n.2, 930 P.2d 100, 102 n.2 (1996). 4 However, imposition of some limitation on the motion is appropriate. This court employed similar considerations to restrict the post-conviction petition for a writ of habeas corpus prior to the enactment of specific statutory time limitations on the petition. See Groesbeck v. Warden, 100 Nev. 259, 679 P.2d 1268 (1984). Indeed, “[t]he necessity for a workable [criminal justice] system dictates that there must exist a time when a criminal conviction is final.” Id. at 261, 679 P.2d at 1269. Moreover, the interest in finality of criminal judgments served by limiting collateral attack on the judgments “has special force with respect to convictions

based on guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784 (1979); see also Custis v. United States, 511 U.S. 485, 497 (1994). [Headnotes 3, 4] Our decision that some limitation should be placed on the motion to withdraw a plea is also grounded in the language of NRS 176.165. As previously discussed, the statute provides that the district court may permit a defendant to withdraw a plea, after sentencing, only to “correct manifest injustice.” Whether an “injustice” is “manifest” will depend upon a variety of factors, including whether the State would suffer prejudice if the defendant is permitted to withdraw his or her plea. Accordingly, we hold that consideration of the equitable doctrine of laches is necessary in determining whether a defendant has shown “manifest injustice” that would permit withdrawal of a plea after sentencing. [Headnotes 5, 6] Application of the doctrine to an individual case may require consideration of several factors, including: (1) whether there was an inexcusable delay in seeking relief; (2) whether an implied waiver has arisen from the defendant's knowing acquiescence in existing conditions; and (3) whether circumstances exist that prejXGLFH

WKH6WDWH __________ 4

We also recognize that a motion for a new trial, pursuant to NRS 176.515, is incident to the trial court proceedings. NRS 176.515 specifically provides that a motion for a new trial may be made within seven days after a verdict or finding of guilt or in such time as the court fixes within the seven day period. If based on newly discovered evidence, the motion may be made within two years after the verdict or finding of guilt. Although not mentioned in Edwards or Pangallo as incident to the proceedings in the trial court, the statutory provision for the motion for a new trial, like the provision for the motion to withdraw a plea, is unambiguous. We therefore conclude that the legislature did not intend to abolish this remedy in favor of the statutory habeas corpus remedy. ........................................ Ð116 Nev. 558, 564 (2000) Hart v. StateÐ Ð udice the State. See Buckholt v. District Court, 94 Nev. 631, 633, 584 P.2d 672, 673-74 (1978). Additionally, where a defendant previously has sought relief from the judgment, the defendant's failure to identify all grounds for relief in the first instance should weigh against consideration of the successive motion. [Headnote 7] We recognize that similar concerns underlie the procedural default rules of NRS chapter 34. Generally, a defendant must show cause and prejudice for filing an untimely or a successive petition. See NRS 34.726(1); NRS 34.810. However, the analysis is not identical. For instance, the timing of a post-conviction petition pursuant to NRS chapter 34 is of little importance until one year has lapsed since entry of the judgment of conviction or the issuance of the remittitur of a timely direct appeal. In contrast, a significant delay of even less than one year may bear on consideration of a post-sentence motion to withdraw a plea. [Headnote 8] To ensure compliance with the relevant procedural requirements, defendants should clearly identify the nature of the relief sought as the procedural label will be determinative. In this limited context, we depart from prior case law suggesting that “ ‘the procedural label' ” attached to a motion is “ ‘of little importance.' ” See Pangallo, 112 Nev. at 1535, 930 P.2d at 102 (quoting Warden v. Peters, 83 Nev. 298, 301, 429 P.2d 549, 551 (1967)).

[Headnote 9] Further, we caution that the motion to withdraw a plea is limited in scope. Only issues relating to the validity of the plea are pertinent to this motion. Challenges to the validity of a defendant's sentence, to the computation of time served toward the sentence, or to a conviction entered pursuant to a verdict are not appropriate to the motion to withdraw a plea. See NRS 176.165. Resolution of the instant case [Headnote 10] Having concluded that the equitable doctrine of laches applies to consideration of the post-sentence motion to withdraw a plea, we turn to the case at bar. Hart delayed for more than six years after sentencing and entry of the judgment of conviction before filing the motion at issue. Hart provided no reasonable explanation for his delay, despite being afforded an opportunity to do so. Moreover, the State specifically asserted that it would suffer prejudice if forced to proceed to trial on a murder that occurred in 1989. Accordingly, and after further review of Hart's motion, weFRQFOXGHWKDWODFKHVSUHFOXGHVFRQVLGHUDWLRQRIWKHPRWLRQRQWKH

PHULWV ........................................ Ð116 Nev. 558, 565 (2000) Hart v. StateÐ Ð conclude that laches precludes consideration of the motion on the merits. 5 CONCLUSION Having concluded that laches precludes consideration of Hart's motion, we affirm the district court order denying the motion.

____________

Ð116 Ð Nev. 565, 565 (2000) Sengel v. IGTÐ Ð CENGIZ SENGEL, Appellant, v. IGT, and THE SILVER LEGACY–RENO, Respondents. No. 32833 June 14, 2000

2 P.3d 258

Appeal from a district court order affirming the Nevada Gaming Board's determination that appellant did not win a valid progressive jackpot when a slot machine's internal malfunction caused three jackpot symbols to appear unevenly across the pay line. Second Judicial District Court, Washoe County; Peter I. Breen, Judge. Gambler petitioned for judicial review of decision of Gaming Control Board that he did not have valid win when internal malfunction suspended progressive slot machine game, stopping reels with three jackpot symbols appearing in uneven line across pay line. The district court dismissed petition and affirmed Board. Gambler appealed. The supreme court, Leavitt, J., held that Board's decision was not unsupported by any evidence and was not arbitrary or capricious or otherwise contrary to law. Affirmed. [Rehearing denied September 22, 2000]

White Law Chartered, Reno, for Appellant. __________ 5

We recognize that, among other claims, Hart alleged that he was not informed that he was ineligible for probation. Prior case law suggests that failure to inform a defendant of probation ineligibility may constitute a “manifest injustice” permitting post-sentence withdrawal of a plea pursuant to NRS 176.165. See Aswegan v. State, 101 Nev. 760, 761, 710 P.2d 83, 83 (1985); Meyer v. State, 95 Nev. 885, 888, 603 P.2d 1066, 1067 (1979). We need not reconsider these decisions at this time because the instant case is readily distinguishable. First, there could be no reasonable expectation that murder was a probationable offense. Second, as discussed above, a determination of “manifest injustice” is an individual determination that requires consideration of the equitable doctrine of laches. Given our conclusion that laches weighs against consideration of Hart's motion on the merits, there can be no “manifest injustice.” ........................................ Ð116 Nev. 565, 566 (2000) Sengel v. IGTÐ Ð Lionel Sawyer & Collins and Dan R. Reaser, Reno, for Respondents. 1. Gaming. “Any” evidence standard applied to judicial review of decision of Gaming Control Board that gambler did not have valid win when internal malfunction suspended progressive slot machine game, stopping reels with three jackpot symbols appearing in uneven line across pay line. NRS 463.3666(3)(d). 2. Appeal and Error. Correct decision of district court could be affirmed, even though based on the wrong standard. 3. Gaming. Reviewing court should affirm a decision of the Gaming Control Board which is supported by any evidence whatsoever, even if that evidence is less than that which a reasonable mind might accept as adequate to support a conclusion. NRS 463.3666(3)(d). 4. Gaming. Evidence that receipt of internal error code caused progressive slot machine to malfunction, suspending progressive slot machine game and stopping reels with three jackpot symbols appearing in uneven line across pay line, that machine was designed to produce jackpots via random number generator rather than with the sudden stoppage of reels caused by an error code, that jackpot light and sirens did not go off, that game was not designed to produce a final play alignment of the reels until after error code was cleared, and that when the game was completed the result was a non-winning alignment, supported determination that gambler did not have valid win. NRS 463.3666. 5. Gaming. Even alignment of the symbols on the pay table of progressive slot machine was an expressly stated term of wagering contract, where even alignment appeared on all groups of symbols on the face of the machine in the pay table. NRS 463.3666. 6. Gaming. Casino was not estopped from claiming that valid jackpot had to be result of random number generator by virtue of its conduct in presenting slot machine to public as a traditional reel-type machine that arguably made payouts dependent only on the position of the reels and not dependent on a hidden random number generator inside the machine. 7. Gaming. When he played progressive slot machine, gambler was chargeable with constructive knowledge of state gaming regulation requiring that game result be determined by random selection process, and that any result or apparent result caused by any other means, such as machine malfunction, would be invalid. NRS 463.3666(3)(d). 8. Gaming. Uneven alignment of the symbols on reels of progressive slot machine could not constitute a jackpot, even if that alignment had not been caused by a malfunction when machine received internal error code, where it was apparent from pay table on slot machine that even alignment was required. NRS 463.3666. 9. Gaming. Statement on the face of progressive slot machine, that “malfunction voids all pays and plays,” included type of malfunction occurring when internal malfunction caused progressive slot machine to receive errorFRGH

........................................ Ð116 Nev. 565, 567 (2000) Sengel v. IGTÐ Ð code, suspending progressive slot machine game and stopping reels with three jackpot symbols appearing in uneven line across pay

line. NRS 463.3666. 10. Gaming. In determining whether uneven alignment of winning symbols, occurring when internal error code stopped reels on progressive slot machine, constituted valid win within meaning of statement on face of machine that “on payline with two quarters in wins progressive,” Gaming Control Board did not act arbitrarily or capriciously in discounting testimony of former slot manager who had been retired for twenty years that the malfunction alignment was a winning alignment because all the symbols were cut somewhere by the pay line and in giving more weight to the picture on the pay table on machine showing an even alignment of jackpot symbols. NRS 463.3666.

Before the Court En Banc. OPINION By the Court, Leavitt, J.: While appellant was playing a slot machine, an internal malfunction suspended the game, abruptly stopping the reels. The reels stopped with three jackpot symbols appearing in an uneven line across the pay line. The internal error was cleared, causing the game to reset, and a non-winning combination appeared on the reels after play resumed. The Nevada Gaming Control Board agent dispatched to the scene conducted an investigation and concluded that appellant did not have a valid win because of the malfunction and the uneven alignment of the jackpot symbols. Appellant petitioned the Nevada Gaming Control Board for reconsideration and the Board affirmed the agent's decision. Appellant petitioned the district court for judicial review and the district court dismissed the petition, affirming the Board's decision. We affirm the district court's judgment upholding the Board's decision, because the decision was supported by adequate evidence and was not arbitrary or capricious or otherwise contrary to law. FACTS On September 21, 1996, appellant Cengiz Sengel was playing an IGT Quartermania Triple Diamond slot machine at the Silver Legacy Casino in Reno, Nevada. The IGT slot machine was part of a statewide, progressive jackpot system of inter-linked slot machines. Sengel placed two quarters, the required number to play for the progressive jackpot, into the machine and initiated a play. The progressive jackpot amount at the time of the play was approximately $1,797,000, to be awarded for an alignment of three Quartermania symbols across the sole pay line. ........................................ Ð116 Nev. 565, 568 (2000) Sengel v. IGTÐ Ð The slot machine malfunctioned when the microswitch on the cash door of the bill validator reported to the machine's internal monitoring system that the cash door was open. This malfunction caused the slot machine to immediately suspend play: (1) the reels abruptly stopped spinning with three Quartermania jackpot symbols appearing in an uneven line across the pay line; (2) a tilt code appeared in the “winner paid” window; (3) the light on top of the machine flashed a maintenance signal; (4) the progressive jackpot amount did not stop; (5) no sirens or music came from the slot machine; and (6) no jackpot win registered on the interlinked computer system. Sengel claimed a jackpot win, but the casino's slot shift manager concluded that there was not a valid win because of the apparent malfunction and the misalignment of the symbols. Sengel disagreed with the shift manager, who immediately contacted the Nevada Gaming Control Board (hereafter “Board”) and the slot machine manufacturer, IGT. Board agent Robert Johnson arrived at the Silver Legacy and conducted a thorough investigation of the dispute. The tilt error code was cleared by a casino employee, through a manual adjustment of the microswitch on the cash door, and the game was reset. As soon as the game reset, play resumed and a non-winning combination, three blanks, appeared on the slot machine. The Board agent performed several tests on the machine and verified that Sengel did not have a valid jackpot. The agent concluded his investigation and sent a letter to Sengel, stating

that there was not a valid win because the game had been suspended due to a malfunction and when the game was completed the result was a non-winning alignment. Sengel filed a petition for reconsideration with the Board. A two-day hearing was held before a Board hearing examiner, who concluded that Sengel had not demonstrated by a preponderance of evidence that the Board agent's decision should be modified or reversed and recommended that the Board affirm the agent's decision. The Board subsequently accepted that recommendation and affirmed the denial of the jackpot. Sengel filed a petition for judicial review with the district court. After a hearing, the district court dismissed the petition and affirmed the Board. This appeal followed. DISCUSSION The Nevada Gaming Control Board has exclusive jurisdiction to resolve a disputed claim, such as Sengel's, by a patron of a gaming licensee for payment of a gambling debt that is not evidenced by a credit instrument. NRS 463.361(2)(a). 1 No other remedyH[LVWVWRHQIRUFHDJDPLQJGHEWQRWHYLGHQFHGE\DFUHGLW

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NRS 463.361 provides, as follows: 1. Except as otherwise provided in NRS 463.361 to 463.366, inclu........................................

Ð116 Nev. 565, 569 (2000) Sengel v. IGTÐ Ð exists to enforce a gaming debt not evidenced by a credit instrument. NRS 463.361(1). Once the Board resolves such a gaming dispute, any person aggrieved by the Board's decision may obtain judicial review of the Board's decision, subject to the following limitations on judicial review: The reviewing court may affirm the decision and order of the board or the hearing examiner, or it may remand the case for further proceedings or reverse the decision if the substantial rights of the petitioner have been prejudiced because the decision is: (a) In violation of constitutional provisions; (b) In excess of the statutory authority or jurisdiction of the board or the hearing examiner; (c) Made upon unlawful procedure; (d) Unsupported by any evidence; or (e) Arbitrary or capricious or otherwise not in accordance with law. NRS 463.3666(3). I.

Decision supported by “any” evidence

Sengel implicitly argues that reversal of the Board is justified under NRS 463.3666(3)(d) because the Board's decision is not supported by any evidence. Sengel states that there are no disputed facts, yet consistently recasts the factual findings of the Board throughout his argument. Therefore, we will address the issue as though raised explicitly. [Headnotes 1, 2] The district court exhibited some confusion as to whether the “any” evidence or the “substantial” evidence standard applied. The district court stated that because there was “overwhelming” evidence supporting the Board's decision, there was enough evidence to affirm the Board under either standard. After reviewing the record, we agree that the Board's decision was supported by both “substantial” evidence and “any” evidence, although the district court should have conducted its review under the “any” HYLGHQFHVWDQGDUG

__________ sive, gaming debts that are not evidenced by a credit instrument are void and unenforceable and do not give rise to any administrative or civil cause of action. 2. A claim by a patron of a licensee for payment of a gaming debt that is not evidenced by a credit instrument may be resolved in accordance with NRS 463.362 to 463.366, inclusive: (a) By the board; or (b) If the claim is for less than $500, by a hearing examiner designated by the board. NRS 463.0171 defines a “licensee” as “any person to whom a valid gaming license, manufacturer's or distributor's license . . . has been issued.” Respondents meet this definition. ........................................ Ð116 Nev. 565, 570 (2000) Sengel v. IGTÐ Ð evidence standard. NRS 463.3666(3)(d). Because the district court arrived at the correct decision, even though based on the wrong standard, we affirm that decision. See Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981) (holding that a correct decision of a district court will be affirmed, even if based on the wrong reason). [Headnote 3] In order to give clear direction to the lower courts and prevent the application of the wrong standard in the future, primarily in cases with less than substantial evidence in which using the wrong standard could make a difference, we take this opportunity to clarify that the “any” evidence standard applies. NRS 463.3666(3)(d) uses the word “any” instead of “substantial,” indicating that a reviewing court should affirm a decision of the Board which is supported by any evidence whatsoever, even if that evidence is less than “that which ‘ “a reasonable mind might accept as adequate to support a conclusion.” ' ” City of Las Vegas v. Laughlin, 111 Nev. 557, 558, 893 P.2d 383, 384 (1995) (defining the “substantial” evidence standard) (quoting State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971))). This comports with the “great deference” we afford a decision of the Board on appeal. See Redmer v. Barbary Coast Hotel & Casino, 110 Nev. 374, 378, 872 P.2d 341, 344 (1994). With this standard in mind, we examine Sengel's contentions. [Headnote 4] Sengel contends that the slot machine did not malfunction because it acted exactly as it was designed to operate. By stopping abruptly upon receiving an error code, the machine produced a result on the reels in a manner in which it was designed. Because, argues Sengel, the reels were stopped in a manner in which they were designed to be stopped, the result was not a malfunction. However, the Board heard evidence that the slot machine was only designed to produce jackpots via the random number generator. It was not designed to produce a final game result with the sudden stoppage of the reels caused by an error code. Any result shown on the reels during suspension of the game was designed to be just that: a suspended result. Upon a reel shutdown caused by a tilt code, the machine was not designed to recognize the suspended result as a legitimate outcome, be it an apparent winning or non-winning alignment. Respondents' witnesses testified that, while the game did do what it was designed to do, which is to immediately shut down upon detection of an error code, the game was not designed to produce a final play alignment of the reels until after the error code was cleared. Sengel's own expert witness admitted on cross-examination that a door tilt code wouldKDYHWREHFRQVLGHUHGDPDOIXQFWLRQ ........................................ Ð116 Nev. 565, 571 (2000) Sengel v. IGTÐ Ð

have to be considered a malfunction. Further, the Board took evidence from Board agent Robert Johnson that the machine itself showed a malfunction code and in other ways visually appeared to not have a valid jackpot. The abrupt stop of the reels, the uneven alignment of the jackpot symbols, the tilt code in the “winner paid” window, the maintenance light on top of the machine and the absence of jackpot lights, the continued running of the progressive jackpot amount, the lack of sirens or music coming from the slot machine, and the fact that no jackpot win registered on the inter-linked computer system all support the Board's finding that a malfunction occurred. Accordingly, Sengel's argument is without merit, because there is evidence to support a finding that a malfunction occurred. Sengel challenges the Board's finding that the malfunction was part of the slot machine, not part of associated equipment. He argues that the slot machine itself is a “gaming device,” as defined in NRS 463.0155, but that the bill validator is merely “associated equipment,” as defined in NRS 463.0136. Sengel argues that some Quartermania slot machines have bill validators and some do not, so the bill validator is not an essential part of the actual gaming device. The Board, however, with its expertise in gaming matters, found that the bill validator, once placed inside the slot machine and connected with the machine's unified security system and part of the computerized “game flow” process, is part of the slot machine and not merely associated equipment. Because there is evidence supporting this finding, we again defer to the Board. II.

Decision not arbitrary, capricious or contrary to law

“An order of the Nevada Gaming Control Board will not be disturbed unless it is arbitrary, capricious or contrary to the law. Yet in spite of this standard, this court is free to examine purely legal questions decided at the administrative level.” Redmer, 110 Nev. at 378, 872 P.2d at 344 (citations omitted). “This court's role in reviewing an administrative decision is identical to that of the district court.” Nevada State Bd. of Nursing v. Merkley, 113 Nev. 659, 664, 940 P.2d 144, 147 (1997). Even alignment required by pay table [Headnote 5] The slot machine had a pay table which listed the possible winning alignments and their respective payoff amounts. The Board found that this pay table clearly showed an even alignment of jackpot symbols next to the progressive jackpot amount, and Sengel does not dispute this finding. The Board concluded from this finding that the even alignment of the symbols on the pay table was an express term of the wagering contract entered into between theSDUWLHV ........................................ Ð116 Nev. 565, 572 (2000) Sengel v. IGTÐ Ð parties. However, Sengel argues that the exact horizontal alignment of symbols on the pay table is merely for efficiency and aesthetics, and is not a binding term of the contract. However, no evidence in the record supports this claim. With no evidence to the contrary, the Board was justified in concluding that an even alignment of jackpot symbols was a term of the contract expressly stated on the face of the machine in the pay table. Notice of random number generator [Headnote 6] Sengel characterizes one basis of the Board's decision as follows: any result on the pay line not produced by the random number generator is void and therefore the reels themselves are irrelevant to the game. Sengel labels this reasoning as the Board's secret policy, which allows it to arbitrarily and capriciously deny valid jackpots at will, a secret policy whereby a visual jackpot that is not generated by a random number generator is not a valid jackpot. Sengel argues that because the public is not given notice that jackpots not generated by a random number generator are invalid, the Board's implementation of this policy without public notice is arbitrary or capricious or otherwise contrary to law. 2 Sengel correctly points out that Nevada statutory and case law provide that a malfunction voids the play of a slot machine, provided the slot machine has a statement

to that effect. He argues that if a new kind of malfunction, the kind that can merely suspend play for a time rather than void a play, is to be recognized by the Board, it is only fair that such a statement also be included on the face of the machine. He argues that it is arbitrary or capricious or contrary to law for the Board simply to recognize this new kind of malfunction without first requiring notification to the public on the face of the machine. [Headnotes 7-9] Sengel's argument fails for three reasons. First, Nevada Gaming Commission Regulation 14.040(2) requires that all gaming devices “[m]ust use a random selection process to determine the game outcome of each play of a game.” Because the public has constructive knowledge of this regulation, which is state law, Sengel had constructive knowledge when he played the machine that the game result was to be determined by a “random selection process,” and that any result or apparent result caused by anyRWKHUPHDQVZRXOGEHLQYDOLG __________ 2

Appellant makes this argument in conjunction with a novel promissory estoppel argument. He argues that because respondents present the Quartermania slot machine to the public as a traditional reel-type machine, with payouts dependent only on the position of the reels and not dependent on a hidden random number generator inside the machine, the respondents are estopped from conditioning a jackpot on the results of the random number generator. We conclude that this argument lacks merit. ........................................ Ð116 Nev. 565, 573 (2000) Sengel v. IGTÐ Ð other means would be invalid. See Smith v. State, 38 Nev. 477, 481, 151 P. 512, 513 (1915) (stating that “[e]very one is presumed to know the law, and this presumption is not even rebuttable”). Because of this constructive knowledge, Sengel's lack of notice argument fails. Second, even if the malfunction alignment was the final alignment and not the result of a malfunction, it is not a valid jackpot that is otherwise being denied arbitrarily. The Board found that the uneven alignment of the Quartermania symbols did not constitute a jackpot, even if that alignment had not been caused by a malfunction. Third, the statement on the face of the machine, “Malfunction voids all pays and plays,” was sufficient to include the type of malfunction which occurred in this case. Rules of play Next, Sengel contends that the Board's denial of the jackpot is arbitrary and capricious because it violates the “rules of play” associated with slot machine play. However, he cites no legal authority to support his rules of play and instead claims that the rules of play have “been in effect for so long, are used so often, and are so widely known that it is difficult to find them cited as such in any one place.” 3 We need not consider this argument because Sengel cites no legal authority to support it. See Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 938 (1978). Alignment anywhere on pay line [Headnote 10] Finally, Sengel argues that the language on the machine, “On payline with two quarters in wins progressive,” only requires that the symbols need be anywhere on the pay line, not perfectly aligned with the other symbols and not necessarily bisected by the pay line. The only evidence in support of this proposition is the testimony of Sengel's expert witness, a former slot manager who retired twenty years ago. The expert opined that the malfunction alignment was a winning alignment because all the symbols were cut somewhere by the pay line. He stated that a jackpot symbol is a winning symbol if it stops anywhere on the pay line, regardless of whether it is aligned with the other symbols. The Board, however, was free to discount the expert's testimony

because he had been out of the gaming industry for twenty years. The Board was free to give more weight to an express term on the face of the slotPDFKLQH __________ 3

Appellant further states that the decisions of the Board and district court “seem to presume” the existence of the rules of play, without elaborating why. Appellant also requests this court to take judicial notice of his rules of play, without citing any determinative legal or non-legal authority in support of his request. We decline to do so. ........................................ Ð116 Nev. 565, 574 (2000) Sengel v. IGTÐ Ð machine, the picture on the pay table showing an even alignment of jackpot symbols, than to the opinion of a retired casino manager. There was evidence on the pay table located on the face of the machine that the symbols had to be evenly aligned and there was evidence that the symbols were in fact not in the even alignment shown on the pay table. Accordingly, the Board's conclusion that Sengel did not have a valid win was not arbitrary or capricious or contrary to law. In closing, we note that both parties have advanced public policy arguments in support of their positions. While we appreciate the tension between these and other competing public policies, it is not this court's role to dictate public policy in gaming. The State Legislature, in enacting the legislative scheme of which NRS 463.3666 is a part, has empowered the Nevada Gaming Control Board, not this court, to make these policy decisions. CONCLUSION This court shows great deference to a decision of the Nevada Gaming Control Board. Because the Board's decision was not unsupported by any evidence and was not arbitrary or capricious or otherwise contrary to law, we affirm the order of the district court upholding the Board's decision. 4 Maupin, Shearing and Becker, JJ., concur, and Zenoff, Sr. J., concurs in result only. __________ 4

The Honorable David Zenoff, Senior Justice, was appointed by the court to sit in place of The Honorable Deborah Agosti, Justice. Nev. Const. art. 6, § 19; SCR 10. The Honorable Robert Rose, Chief Justice, and The Honorable Cliff Young, Justice, voluntarily recused themselves from participation in the decision of this appeal.

____________

Ð116 Nev. 575, 575 (2000) Cramer v. PeavyÐ Ð MARC CRAMER, Appellant, v. CHARLES WARREN PEAVY, NEVADA CHECKER CAB CORPORATION, a Nevada Corporation, dba CHECKER CAB CO., dba CHECKER CAB, Respondents. No. 33128 July 14, 2000

3 P.3d 665

Appeal from a judgment entered on a jury verdict and an order of the district court denying a motion for a new trial in a negligence action. Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge. Taxicab driver injured in collision with another taxicab brought personal injury action against owner and driver of other taxicab. The district court entered judgment on a jury verdict for defendants and denied plaintiff driver's motion for new trial. Plaintiff appealed. The supreme court held that: (1) defendants' improper references to plaintiff's receipt of workers' compensation benefits did not warrant mistrial, and (2) statute requiring that jury in personal injury action be instructed that plaintiff has received workers' compensation benefits and that procedure is in place for repaying those benefits from any damage award was constitutional. Affirmed. Hale Lane Peek Dennison Howard and Anderson and Robert D. Martin, Las Vegas, for Appellant. Kirby R. Wells & Associates, Las Vegas, for Respondents. Beckett & Yott, Carson City, for Amicus Curiae Employers Insurance Company of Nevada. 1. Appeal and Error. Denial of a motion for mistrial can only be reversed where there is a clear showing of an abuse of discretion. 2. Statutes. The intent of the legislature is the controlling factor in statutory interpretation. 3. Damages. Statute requiring that jury in personal injury action be instructed that plaintiff has received workers' compensation benefits and that procedure is in place for repaying those benefits from any damage award is intended to avoid jury speculation as to amount of workers' compensation benefits received and a corresponding reduction of any damage award by jury in an attempt to reach a just verdict. NRS 616C.215(10). 4. Trial. Defendant's improper references to plaintiff's receipt of workers' compensation benefits did not warrant mistrial in personal injury action, where ample evidence supported jury's verdict in favor of defendants and MXU\ ZDV SURSHUO\ LQVWUXFWHG RQ WKH

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........................................ Ð116 Nev. 575, 576 (2000) Cramer v. PeavyÐ Ð jury was properly instructed on the workers' compensation benefits. NRS 616C.215(10). 5. Constitutional Law. When a statute is challenged on constitutional grounds, it is to be construed in favor of the legislative power. 6. Courts. The legislature has the power to enact rules of evidence. 7. Constitutional Law; Damages. Legislature did not exceed its authority in enacting statute requiring that jury in personal injury action be instructed that plaintiff has received workers' compensation benefits and that procedure is in place for repaying those benefits from any damages award. NRS 616C.215(10). 8. Damages. Jury's verdict in favor of defendant was not inconsistent in personal injury action tried on issue of damages, notwithstanding defense counsel's concession during closing arguments that plaintiff was entitled to approximately $20,000.00 in damages, where plaintiff's attorney repeatedly invited the jury to award plaintiff nothing if it believed he was untruthful. 9. Courts. One of supreme court's primary objectives is to promote the efficient administration of justice. 10. Trial. The efficient administration of justice requires that any doubts concerning a verdict's consistency with Nevada law be addressed before the court dismisses the jury. 11. Appeal and Error. Failure to timely object to the filing of the verdict or to move that the case be resubmitted to the jury constitutes a waiver of the issue of an inconsistent verdict. 12. Appeal and Error. Personal injury plaintiff waived claim that jury verdict was inconsistent by failing to object to verdict before the jury was discharged.

Before Rose, C. J., Young and Agosti, JJ. OPINION Per Curiam: Appellant Marc Cramer was injured when the taxi he was driving collided with a taxi driven by respondent Charles Warren Peavy and owned by respondent Nevada Checker Cab Corporation. The jury returned a verdict in favor of the respondents (hereinafter “Checker Cab”). On appeal, Cramer contends that: (1) the district court erred in denying his motions for mistrial made when the jury was told he had received compensation from the State Industrial Insurance System (“SIIS”); (2) NRS 616C.215(10) violates the separation of powers doctrine; and (3) the district court abused its discretion LQ GHQ\LQJ KLV PRWLRQ IRU D QHZ WULDO RQ WKH JURXQG WKDW WKH MXU\ PDQLIHVWO\

GLVUHJDUGHGWKHFRXUW VLQVWUXFWLRQVLQUHDFKLQJDYHUGLFW ........................................ Ð116 Nev. 575, 577 (2000) Cramer v. PeavyÐ Ð in denying his motion for a new trial on the ground that the jury manifestly disregarded the court's instructions in reaching a verdict. We conclude first that the district court did not err in denying Cramer's motions for a mistrial, second that NRS 616C.215(10) is constitutional, and finally that Cramer failed to preserve the issue of whether the jury manifestly disregarded the court's instructions. Therefore, we affirm the judgment entered below. FACTS In January 1995 Marc Cramer was employed by Desert Cab. On January 19, 1995, a Checker Cab driven by Charles Warren Peavy ran a red light and collided with the taxi driven by Cramer. Checker Cab stipulated at trial that it was liable in causing the accident. Cramer has been involved in three serious automobile accidents. One was approximately two years prior to and the other approximately one year subsequent to the accident at issue here. Cramer sustained injuries in all three accidents. At trial, the central issue was which, if any, of his permanent injuries were caused by the January 1995 accident. During trial, Checker Cab primarily sought to undermine Cramer's credibility. While Cramer sought approximately $350,000.00 in damages for various injuries and pain and suffering, the defendants argued that the only injuries attributable to this accident were nothing more than cuts and bruises. The jury returned a verdict for Checker Cab. Cramer eventually consulted with eight doctors after the accident. Five of the doctors testified at trial, and the reports of the other three were entered into evidence. The medical evidence was frequently contradictory. The most seriously contested of Cramer's damage claims was an injury Cramer claimed he received to his coccyx. 1 Both Dr. Frederick C. Redfern, who was Cramer's treating physician, and a different doctor, who examined Cramer later, found that Cramer had injured his coccyx in the accident. Another doctor testified that Cramer could not have injured his coccyx in the accident. A fourth doctor testified that, theoretically, under exact conditions, Cramer could have injured his coccyx in the accident, but that if he had, he would have been in pain at the time he was examined, which he was not. Finally, yet another doctor testified that a fracture to the coccyx would not cause the symptoms that Cramer was experiencing. __________ 1

The coccyx is the last bone of the spinal column. J.E. Schmidt, M.D., 2 Attorneys' Dictionary of Medicine, C-335 (1999). ........................................

Ð116 Nev. 575, 578 (2000) Cramer v. PeavyÐ Ð At trial, Checker Cab made several references to the fact that SIIS had paid some of Cramer's medical expenses. In his opening statement, counsel for Checker Cab stated, “Surprise, surprise . . . . Dr. Redfern, first thing he does is he insists that the SIIS . . . pay for MRIs for Mr. Cramer's knees. The SIIS is . . . the entity that is responsible to pay for all the medical and disability that Mr. Cramer has gotten so far. That's what workman's comp is about.” Checker Cab also stated, “[T]he evidence is going to show, to a certain extent, poor old SIIS held the bag in this case.” During its cross-examination of Dr. Redfern, Checker Cab asked how much he was reimbursed by SIIS in contrast to what he had charged. The doctor was also questioned at length as to the intricacies of his billing procedures. The next day Cramer moved for a mistrial on the ground that Checker Cab had violated the collateral source rule by telling the jury that Cramer did not have to pay his medical bills. The motion was denied. However, the court said that it would give an instruction on it if Cramer wished. Checker Cab referred to the SIIS benefits again during its closing argument stating, “Mr. Cramer, of course, had all of the medical bills that were generated in this case paid for by SIIS and got a PPD [permanent partial disability] award on top of that.” Checker Cab then reread to the jury part of the SIIS instruction given earlier by the court 2 and stated: “That means regardless of how much you award Mr. Cramer in this case, he doesn't have to repay the SIIS for what he's already gotten.” At that point Cramer objected to the statement as being an incorrect statement of the law and moved again for a mistrial. Before the motion was denied, the following exchange took place: COUNSEL FOR CRAMER: Your Honor, I hate to object, but he just made a statement that's incorrect as to the law. THE COURT: I think you misstated. COUNSEL FOR CRAMER: He stated the exact opposite of what's legally true. THE COURT: I don't think he meant to do that. I think you— COUNSEL FOR CHECKER CAB: If the plaintiff does not obtain a judgment in his favor— THE COURT: —that's receiving enough. __________ 2

Checker Cab read to the jury as follows: “If the plaintiff does not obtain a judgment in his favor in this case, he is not required to repay his employer, the insurer or the administrator.” ........................................ Ð116 Nev. 575, 579 (2000) Cramer v. PeavyÐ Ð COUNSEL FOR CRAMER: You said if he receives an award, he doesn't have to repay. COUNSEL FOR CHECKER CAB: I apologize, Your Honor. You're right. I misspoke. COUNSEL FOR CRAMER: Your Honor, based on that comment, I'd move for a mistrial. THE COURT: Counsel, we are clearing it up right now. He just misspoke.

COUNSEL FOR CHECKER CAB: I misspoke about the SIIS. What I was trying to get at was the system, the SIIS system, doesn't depend upon fault. Before the jury commenced deliberations, the district court attempted to clarify any confusion created by Checker Cab's misstatement of the law. The court told the jurors that: On Instruction Number 21, it's really a quite simple instruction. All you have to remember, ladies and gentlemen, is that you come back with the judgment, the amount of money, if any, that you deem appropriate without any deductions. That's all you have to remember. You come back with a judgment, if any, that you deem it's [sic] appropriate; no deductions. Prior to closing arguments, the jury was given the statutory instruction on workers' compensation as required by NRS 616C.215(10). 3 The jury was also told that Checker Cab had admitted liability for any of Cramer's injuries that were proximately caused by the accident, and was instructed on proximate cause and damages. The jury returned a verdict for Checker Cab. Cramer moved for a new trial under NRCP 59 on the grounds that the district court HUUHG DV D PDWWHU RI ODZ EHFDXVH &KHFNHU &DE V UHIHUHQFHV WR 6,,6

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NRS 616C.215(10) requires that the jury be instructed that: Payment of workmen's compensation benefits by the insurer, or in the case of claims involving the uninsured employers' claim fund or a subsequent injury fund the administrator, is based upon the fact that a compensable industrial accident occurred, and does not depend upon blame or fault. If the plaintiff does not obtain a judgment in his favor in this case, he is not required to repay his employer, the insurer or the administrator any amount paid to him or paid on his behalf by his employer, the insurer or the administrator. If you decide that the plaintiff is entitled to judgment against the defendant, you shall find his damages in accordance with the court's instructions on damages and return your verdict in the plaintiff's favor in the amount so found without deducting the amount of any compensation benefits paid to or for the plaintiff. The law provides a means by which any compensation benefits will be repaid from your award. ........................................

Ð116 Nev. 575, 580 (2000) Cramer v. PeavyÐ Ð erred as a matter of law because Checker Cab's references to SIIS violated the collateral source rule and that the jury disregarded the court's instructions in reaching the verdict. The motion was denied. Cramer then filed this appeal. DISCUSSION References to SIIS Cramer contends that the district court's failure to grant a mistrial on the ground that Checker Cab repeatedly informed the jury of SIIS benefits is reversible error. We disagree. [Headnote 1] “Denial of a motion for mistrial can only be reversed where there is a clear showing of an abuse of discretion.” Mortensen v. State, 115 Nev. 273, 281, 986 P.2d 1105, 1111 (1999). NRS 616C.215(10) provides

that: In any trial of an action by the injured employee . . . against a person other than the employer . . . the jury must receive proof of the amount of all payments made or to be made by the insurer or the administrator. Based upon the language of the statute, we conclude that the district court did not abuse its discretion in failing to grant a mistrial on the ground that the jury was informed that Cramer received SIIS benefits. [Headnote 2] However, we note that the way in which Checker Cab chose to handle the SIIS issue skirted the edges of propriety. Having reviewed the legislative history of NRS 616C.215(10), we conclude that the legislature did not intend NRS 616C.215(10) to eviscerate the collateral source rule. Rather, the statute creates a narrow exception to the rule. “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). [Headnote 3] The legislative history of NRS 616C.215(10) shows that the legislature expressed concern about the practice of informing the jury that the plaintiff had received workers' compensation benefits. Minutes of the Meeting on S.B. 211 Before the Senate Judiciary Comm., 59th Leg. at 4 (Nev., February 23, 1977). Senate Bill 211 amended what was then NRS 616.560(5) and is currently NRS 616C.215(10) by adding the jury instructions that are now at issue. In considering the jury instructions, the legislature expressed its view that cases involving SIIS benefits are unique from other insurance cases because the jury already knows that the plaintiff has received SIIS benefits if the injury was workUHODWHG ........................................ Ð116 Nev. 575, 581 (2000) Cramer v. PeavyÐ Ð related. Id. at 3 (April 4, 1977). The legislature received evidence that under the system as it then existed, the jury was usually under the mistaken belief that the plaintiff was not required to repay SIIS from any damage award. Id. at Exhibit E. In an attempt to reach a just verdict, the jury would speculate as to how much the plaintiff had received from SIIS and reduce the award accordingly. Id. Thus, NRS 616C.215(10) was intended to curtail this practice. Accordingly, NRS 616C.215(10) cannot be used by the defense to imply that the plaintiff has already been compensated, will receive a double recovery if awarded a judgment or has overcharged SIIS. The statute properly informs the jury that the plaintiff has received SIIS benefits and that there is a procedure in place for repaying SIIS from any damage award. We conclude that the references made by Checker Cab concerning SIIS payments were improper. However, the references were neither so egregious nor so numerous as to confuse the jury or affect the verdict reached. [Headnote 4] Cramer's prior and subsequent accidents created a factual question for the jury as to which of his permanent injuries, if any, were caused by the accident of January 1995. See Mulder v. State, 116 Nev. 1, 15, 992 P.2d 845, 853-54 (2000) (“The trier of fact determines the weight and credibility to give conflicting testimony.”). This case was primarily about Cramer's credibility. The jury received ample evidence to support a finding that his permanent injuries were either non-existent or unrelated to this accident. In fact, in Cramer's closing argument, his attorney invited the jury to return a defense verdict if they did not believe his client. 4 The jury was properly instructed on SIIS payments, and its verdict is supported by substantial evidence and not clearly erroneous in light of all the evidence presented. Frances v. Plaza Pacific Equities, 109 Nev. 91, 94, 847 P.2d 722, 724 (1993). Accordingly, the district court did not abuse its discretion in declining to grant a mistrial.

Constitutionality of NRS 616C.215(10) Cramer also contends that NRS 616C.215(10) is unconstituWLRQDO EHFDXVH WKH OHJLVODWLYHO\

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Cramer's attorney told the jury on three occasions during closing arguments to award Cramer nothing if it did not believe him, saying at one point: [Cramer]'s the one who gets put on trial. He's the one who there are daggers being thrown at him throughout the trial, throughout the discovery process; he's a liar, he's dishonest; this is all baloney; this is all crap; none of it is true. If you believe that, don't award him a dime. If you think he's a liar, if you think everything he's told you is untrue, if you think those pictures are false, if you think they have been doctored, award zero dollars in this case; find for the defense. ........................................ Ð116 Nev. 575, 582 (2000) Cramer v. PeavyÐ Ð tional because the legislatively mandated jury instruction infringes on a judicial function and therefore violates the separation of powers doctrine. In Proctor v. Castelletti, 112 Nev. 88, 911 P.2d 853 (1996), we adopted “a per se rule barring the admission of a collateral source of payment for an injury into evidence for any purpose.” Id. at 90, 911 P.2d at 854. Cramer argues that NRS 616C.215(10) cannot be reconciled with Proctor, and that the statute is therefore unconstitutional. [Headnotes 5-7] When a statute is challenged on constitutional grounds, it is “to be construed in favor of the legislative power.” Galloway v. Truesdell, 83 Nev. 13, 20, 422 P.2d 237, 242 (1967). The legislature has the power to enact rules of evidence. Barrett v. Baird, 111 Nev. 1496, 1512, 908 P.2d 689, 700 (1995). Furthermore, “no person has a vested right in a rule of law, nor can anyone assert a vested right in any particular mode of procedure.” Nevada Industrial Comm'n v. Reese, 93 Nev. 115, 123, 560 P.2d 1352, 1357 (1977). We conclude that the legislature did not exceed its authority in enacting NRS 616C.215(10), and that NRS 616C.215(10) is not superceded by Proctor, but rather is an exception to the per se rule against collateral sources we articulated in that case. Jury verdict [Headnote 8] Cramer argues that the jury's verdict is inconsistent because in its closing arguments the defense conceded that Cramer was entitled to approximately $20,000.00 in damages, yet the jury awarded him nothing. We conclude that Cramer's argument lacks merit. As noted, Cramer's attorney repeatedly invited the jury to award Cramer nothing if it believed he was untruthful. We cannot say that the jury acted improperly when it apparently followed the direction of Cramer's attorney. Moreover, Cramer has failed to preserve the question of whether the jury manifestly disregarded the court's instructions. [Headnotes 9-12] One of this court's “primary objective[s]” is to promote the “efficient administration of justice.” Eberhard Mfg. Co. v. Baldwin, 97 Nev. 271, 273, 628 P.2d 681, 682 (1981). The efficient administration of justice requires that any doubts concerning a verdict's consistency with Nevada law be addressed before the court dismisses the jury. Carlson v. Locatelli, 109 Nev. 257, 262-63, 849 P.2d 313, 316 (1993). “Where possible, the

verdict should be salvaged so that no new trial is required.” Id. at 263, 3GDW ........................................ Ð116 Nev. 575, 583 (2000) Cramer v. PeavyÐ Ð 849 P.2d at 316-17. In furtherance of this goal, we have formulated the policy that “failure to timely object to the filing of the verdict or to move that the case be resubmitted to the jury” constitutes a waiver of the issue of an inconsistent verdict. Eberhard, 97 Nev. at 273, 628 P.2d at 682. See also Brascia v. Johnson, 105 Nev. 592, 596 n.2, 781 P.2d 765, 768 n.2 (1989); Carlson, 109 Nev. at 262-63, 849 P.2d at 316-17. Accordingly, to preserve the issue for appeal, Cramer was required to object to the verdict before the jury was discharged. The trial court would then have had the opportunity to consider whether it was impossible for the jury to return a defense verdict as a matter of law, and if so, the matter could have been returned to the jury with additional instructions. This procedure would have promoted fairness and the efficient administration of justice. Cramer failed to make a timely objection. Therefore, we will not consider his argument now. CONCLUSION We conclude that the district court did not abuse its discretion in denying a mistrial. We also conclude that NRS 616C.215(10) is constitutional. Finally, Cramer failed to preserve the issue of whether the jury manifestly disregarded the court's instructions in reaching a verdict. We therefore affirm the district court's judgment and the order denying Cramer's motion for a new trial.

____________

Ð116 Nev. 583, 583 (2000) Falcke v. Douglas CountyÐ Ð Ð ROGER FALCKE and HERBIG PROPERTIES LIMITED, a Nevada Limited Partnership, Petitioners, v. THE COUNTY OF DOUGLAS, a Political Subdivision of THE STATE OF NEVADA; and THE DOUGLAS COUNTY BOARD OF COMMISSIONERS, Respondents. No. 35076 July 14, 2000

3 P.3d 661

Original petition for a writ of mandamus challenging a decision by the Douglas County Board of Commissioners to deny petitioners' application for a master plan amendment. Landowner petitioned for writ of mandamus, challenging county board of commissioners' deemed denial of master plan amendment, occurring when amendment failed to achieve super-majority vote, as required by county ordinance. The supreme court, addressing an issue of first impression, held that ordinance conflicted with statute which permitted county board to approve master plan amendment recommended by county planning comPLVVLRQEXWGLGQRWUHTXLUHVXFKDSSURYDOWREHE\VXSHUPDMRULW\YRWH ........................................ Ð116 Nev. 583, 584 (2000) Falcke v. Douglas CountyÐ Ð mission, but did not require such approval to be by super-majority vote. Petition granted. Allison MacKenzie Hartman Soumbeniotis & Russell and James R. Cavilia, Carson City, for Petitioners.

Scott W. Doyle, District Attorney, and Thomas E. Perkins, Deputy District Attorney, Douglas County, for Respondents. 1. Mandamus. Petition for writ of mandamus was proper method to challenge county board of commissioners' deemed denial of master plan amendment, occurring when amendment failed to achieve super-majority vote. Although petitioner could have sought declaratory relief, petition raised urgent and important issue of law requiring clarification by supreme court. NRS 30.040, 34.160. 2. Mandamus. Where circumstances reveal urgency or strong necessity, supreme court may grant extraordinary relief. 3. Zoning and Planning. County code provision requiring two-thirds super-majority vote by county board of commissioners to approve a master plan amendment conflicted with statute which permitted county board to approve master plan amendment recommended by county planning commission, but did not require such approval to be by super-majority vote. NRS 278.210(2), 278.220. 4. Counties. Because counties obtain their authority from the legislature, county ordinances are subordinate to statutes if the two conflict. 5. Statutes. Where the language of a statute is plain and unambiguous there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself. 6. Statutes. Where a statute is susceptible to more than one interpretation it should be construed in line with what reason and public policy would indicate the legislature intended. 7. Zoning and Planning. Statute permitting county board to approve master plan amendment recommended by county planning commission does not require that the board's decision comport with the planning commission's decision in approving a master plan amendment. NRS 278.220.

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: Petitioners applied to the Douglas County Community Development Department for a master plan amendment and zonLQJFKDQJHWRUHDOSURSHUW\ ........................................ Ð116 Nev. 583, 585 (2000) Falcke v. Douglas CountyÐ Ð ing change to real property. After approval by the Douglas County Planning Commission, the Douglas County Board of Commissioners voted three-to-two in favor of the master plan amendment. However, the three-to-two vote was deemed a denial of the master plan amendment under Douglas County Development Code § 20.608.070, which requires a super-majority vote to approve any master plan amendment. For the reasons discussed herein, we conclude that the petitioners appropriately seek relief by way of a petition for a writ of mandamus and that Douglas County Development Code § 20.608.070 is invalid because it conflicts with NRS Chapter 278. We therefore grant this petition. FACTS While acting as the agent and representative for petitioner Herbig Properties Limited (“Herbig”), petitioner Roger Falcke (“Falcke”) applied to the Douglas County Community Development Department in June 1999 for a master plan amendment and zoning change to real property owned by Herbig. The property is located between U.S. Highway 395 and Waterloo Lane in Douglas County and is comprised of thirty and fifty-five one-hundredths (30.55) acres. Specifically, Falcke's application sought to change the property's master plan designation from 30.55 acres of agriculture to 22.87 acres of public facilities and 7.68 acres of commercial.

Falcke's application also sought a zoning change from all agriculture to 22.87 acres of public facilities and 7.68 acres of neighborhood commercial. On August 17, 1999, the Douglas County Planning Commission (“the Planning Commission”) recommended approval of the master plan amendment with a five-to-two vote in favor of the amendment. Under Douglas County Development Code (“DCDC”) § 20.608.030, a two-thirds vote is required by the Planning Commission to approve a master plan amendment. The Planning Commission also voted to recommend approval of the zoning change with a four-to-three vote in favor of the zoning change, which requires only a simple majority vote under DCDC § 20.610.020(D). On September 2, 1999, the Douglas County Board of Commissioners (“the Board”) met and considered the master plan amendment and the zoning change. After a motion was made to approve the requested master plan amendment, the Board voted three-to-two in favor of the master plan amendment. However, under DCDC § 20.608.070, a super-majority 1

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Because the Board is comprised of five members, a super-majority consists of a four-to-one vote.

........................................ Ð116 Nev. 583, 586 (2000) Falcke v. Douglas CountyÐ Ð is required to approve any master plan amendment. Therefore, the Board's vote in favor of the master plan amendment was deemed a denial. Because the Board did not approve the master plan amendment, it appears that the Board never reached the second issue of the zoning change. After a rehearing held on October 7, 1999, the Board again voted three-to-two in favor of the master plan amendment, which was again deemed a denial under DCDC § 20.608.070. Subsequently, Falcke and Herbig filed in this court an original petition for a writ of mandamus challenging the Board's decision. DISCUSSION [Headnote 1] As a threshold issue, we must first consider whether a petition for a writ of mandamus is the proper method to challenge the Board's decision. Falcke argues that a writ of mandamus is an appropriate remedy even though he could have sought relief through a declaratory judgment under NRS 30.040. We agree. [Headnote 2] This court may issue a writ of mandamus in order “to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station.” NRS 34.160. Generally, a writ of mandamus may issue only when there is no plain, speedy, and adequate remedy at law. See NRS 34.170. However, where circumstances reveal urgency or strong necessity, this court may grant extraordinary relief. See Jeep Corp. v. District Court, 98 Nev. 440, 443, 652 P.2d 1183, 1185 (1982). Moreover, “where an important issue of law needs clarification and public policy is served by this court's invocation of its original jurisdiction, our consideration of a petition for extraordinary relief may be justified.” Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998). In the present case, the Board correctly points out that Falcke could have sought relief through a declaratory judgment under NRS 30.040. NRS 30.040 provides that any person whose rights are affected by a statute or ordinance “may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.” Indeed, Falcke does challenge the validity of DCDC § 20.608.070. We conclude that the conflict presented by this petition between NRS Chapter 278 and DCDC § 20.608.070 is an urgent and important issue of law, which requires clarification by this court. As the Board acknowledges in

its opposition papers, land use and development are important public policy issues confronting 'RXJODV

&RXQW\DVZHOODVRWKHUFRXQWLHVLQ1HYDGD ........................................ Ð116 Nev. 583, 587 (2000) Falcke v. Douglas CountyÐ Ð Douglas County as well as other counties in Nevada. Here, public policy would be best served by reaching the merits of the instant petition in order to provide guidance to Douglas County, and other counties, in properly following the dictates of NRS Chapter 278. Consequently, we conclude that our consideration of this petition on its merits is justified under these circumstances. 2 [Headnote 3] Falcke next argues that DCDC § 20.608.070 conflicts with NRS 278.220 and is therefore invalid. We agree. Under NRS 278.020, the legislature granted counties the authority to regulate and restrict the improvement of land for the purpose of promoting health, safety, morals, or the general welfare of the community. Pursuant to this authority, the Planning Commission is required to prepare and enact a long-term master plan for the development of the county. See NRS 278.150. In 1996, the Board adopted a master plan, which can be amended subject to approval by the Planning Commission and the Board. NRS 278.210(2) provides that “[t]he adoption of the master plan, or of any amendment, extension or addition thereof, shall be by resolution of the [planning] commission carried by the affirmative votes of not less than two-thirds of the total membership of the commission.” DCDC § 20.608.030(A) echoes NRS 278.210(2) by stating that “[t]he [planning] commission may approve a master plan amendment only upon the affirmative vote of a two-thirds majority of the total membership of the commission.” The Planning Commission's recommendation is then forwarded to the Board for consideration. See NRS 278.210(4). NRS 278.220(1) states that “[u]pon receipt of a certified copy of the master plan, or of any part thereof, as adopted by the planning commission, the [Board] may adopt such parts thereof as PD\ SUDFWLFDEO\ EH

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The Board raises two additional arguments. First, the Board argues that Falcke has failed to exhaust his administrative remedies by not presenting to the Board his argument concerning the validity of DCDC § 20.608.070. The Board relies solely on First American Title Co. v. State of Nevada, 91 Nev. 804, 543 P.2d 1344 (1975), as support for its argument. In First Am. Title Co., this court held that a taxpayer could not maintain a suit where it had failed to challenge the property valuation before the county and state boards of equalization as required under Nevada statute. See id. at 805-06, 543 P.2d at 1345. We conclude that First Am. Title Co. is inapplicable to this case because no similar Nevada statute requires Falcke to first present his challenge to the Board. Second, the Board also argues that mandamus does not lie because the Board had no duty to grant the master plan amendment. As discussed herein, we conclude that the Board does have a duty to grant the master plan amendment under NRS 278.220 because it voted twice to approve the amendment on a three-to-two majority vote. Accordingly, we conclude that mandamus is appropriate in this case in order to compel the Board, by virtue of its vote, to grant Falcke's amendment to the master plan. ........................................ Ð116 Nev. 583, 588 (2000) Falcke v. Douglas CountyÐ Ð may practicably be applied to the development of the city, county or region for a reasonable period of time next ensuing.” Nothing in NRS 278.220 requires a two-thirds or super-majority vote by the Board to approve a

master plan amendment. Indeed, NRS 278.220 is silent on the issue. However, DCDC § 20.608.070(A) states that “[o]nly upon the affirmative vote of a super-majority of the total membership and concurrence by the planning commission shall the board approve a master plan amendment.” [Headnote 4] The question of whether DCDC § 20.608.070 conflicts with NRS 278.220 by requiring a super-majority vote to approve a master plan amendment is an issue of first impression in Nevada. As a preliminary matter, it is clear that counties are legislative subdivisions of the state. See Nev. Const. art. 4, § 25. Because counties obtain their authority from the legislature, county ordinances are subordinate to statutes if the two conflict. See Lamb v. Mirin, 90 Nev. 329, 332-33, 526 P.2d 80, 82 (1974). [Headnotes 5, 6] Additionally, “[i]t is well settled in Nevada that words in a statute should be given their plain meaning unless this violates the spirit of the act.” McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 440 (1986). “ ‘Where the language of a statute is plain and unambiguous . . . there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.' ” Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990), overruled on other grounds by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000) (quoting In re Walters' Estate, 60 Nev. 172, 183-84, 104 P.2d 968, 973 (1940)). However, “where a statute is susceptible to more than one interpretation it should be construed ‘in line with what reason and public policy would indicate the legislature intended.' ” State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 477, 874 P.2d 1247, 1250 (1994) (quoting State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986)). In an attempt to justify the deviation of DCDC § 20.608.070 from NRS 278.220, the Board essentially argues that the silence of NRS 278.220 gives the Board the authority to require a super-majority vote. On its face, the Board's argument appears reasonable. However, the Board fails to cite to any authority supporting the proposition that it may choose what portions of NRS Chapter 278 it must follow and what portions it does not have to follow. 3 __________ 3

The Board does cite to Lamb, 90 Nev. at 332-33, 526 P.2d at 82, as support for the proposition that local county or city ordinances are invalidated by statute only if the legislature intended to occupy the field of regulation in the relevant area of legislation. The Board goes on to argue that NRS Chapter ........................................ Ð116 Nev. 583, 589 (2000) Falcke v. Douglas CountyÐ Ð After a careful review of NRS Chapter 278 and other relevant statutes, we conclude that NRS Chapter 278 provides a comprehensive statutory framework for the Board to follow as it designs and implements the master plan for Douglas County. Because the legislature omitted any reference to a voting requirement in NRS 278.220, we conclude that this omission reflects the legislature's intent to require only a simple majority vote by the Board to approve a master plan amendment. If the legislature intended to require a super-majority vote of the Board to amend the master plan, it would have expressed this intent just as it had done in NRS 278.210 by requiring a two-thirds vote of the Planning Commission. Indeed, the legislature has expressly required a heightened voting standard by the Board in a number of other instances. See, e.g., NRS 377B.100 (two-thirds vote by the Board required to approve tax for infrastructure); NRS 540A.040 (two-thirds vote by the Board required to take action concerning the Board's administrative matters); NRS 705.020 (two-thirds vote by the Board required to grant use of a street to the railroad). Certainly, the desire of the Board to curtail development and strictly control land use is understandable. However, given the legislature's decision to not impose a heightened voting standard under NRS 278.220, we conclude that the Board cannot independently impose this requirement.

[Headnote 7] Accordingly, we conclude that the Board exceeded the legislative authority granted it under NRS Chapter 278 by requiring a super-majority vote by the Board to approve a master plan amendment. Because the legislature specifically excluded any reference to a two-thirds or super-majority voting requirement by the Board, we further conclude that the legislature intended to require only a simple majority vote by the Board to approve a master plan amendment under NRS 278.220. As this court has noted, “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.” McKay v. Board of Cty. Comm'r, 103 Nev.3G  __________ 278 has delegated all authority regarding land use and development issues to the Board, including the authority to require a super-majority vote by the Board to approve a master plan amendment. However, we conclude that Lamb is inapplicable to this case on this issue because, as discussed above, the legislature clearly did not intend to occupy the field of regulation concerning local land use and development issues. Rather, pursuant to NRS Chapter 278, the legislature sought to provide a clear and unambiguous statutory framework for the Board to follow as it created its own master plan and amendments thereto. Thus, we conclude that NRS Chapter 278 does not grant the Board authority to deviate from the specific language and requirements of NRS 278.220. ........................................ Ð116 Nev. 583, 590 (2000) Falcke v. Douglas CountyÐ Ð 490, 492, 746 P.2d 124, 125 (1987). We therefore hold that DCDC § 20.608.070 is invalid because it goes beyond the legislative intent espoused in NRS 278.220. 4 CONCLUSION Because the Board twice voted in favor of Falcke's application for a master plan amendment on a three-to-two majority vote, we conclude that the Board approved the master plan amendment under NRS 278.220. By virtue of its vote, we further conclude that the Board has a duty under NRS 34.160 to give effect to its vote and approve Falcke's master plan amendment. Accordingly, we grant Falcke's petition. The clerk of this court shall issue a writ of mandamus compelling the Board to approve Falcke's application for a master plan amendment. 5

____________

Ð116 Nev. 590, 590 (2000) Vitale v. Jefferson Ins. Co.Ð Ð Ð PHYLISS VITALE; CHRISTINE MASCOLA; JUSTIN SMITH, By and Through His Legal Guardian, CHRISTINE MASCOLA; CLARA MOOR and SECOND MOM CHILD CARE, an Unincorporated Business Entity, and DENNIS MOOR, Appellants, v. JEFFERSON INSURANCE COMPANY OF NEW YORK, Respondent. No. 32655 August 18, 2000

5 P.3d 1054

Appeal from a district court order and judgment declaring noncoverage under an insurance policy. Eighth Judicial District Court, Clark County; Nancy A. Becker, Judge.

Assignees of causes of action against general liability insurer for day care business brought action for declaratory judgment thatLQVXUHURZHGFRYHUDJHIRUDVVLJQHHV LQMXULHVLQDXWRPRELOHDFFLGHQW __________ 4

We note that DCDC §§ 20.608.060 and 20.608.070 conflict with NRS 278.220 in another crucial way. The plain language of NRS 278.220 does not require that the Board's decision comport with the Planning Commission's decision in approving a master plan amendment. See NRS 278.220; 79-14 Op. Att'y Gen. 73 (1979) (concluding that the Board “is not precluded from subsequently acting on a proposed amendment to the Master Plan which initially failed to obtain an affirmative two-thirds majority vote of the [Planning Commission]”). However, DCDC §§ 20.608.060 and 20.608.070 require that both the Board and the Planning Commission agree to the master plan amendment. In light of our conclusion that DCDC § 20.608.070 is invalid because it conflicts with NRS 278.220, we note this additional conflict between DCDC §§ 20.608.060 and 20.608.070 and NRS 278.220 in order to provide guidance to Douglas County on this issue. 5

We note that after a careful review of the entire record, it appears that Falcke's request for a zoning change of the Herbig property is still subject to approval by the Board pursuant to DCDC § 20.610.040. ........................................ Ð116 Nev. 590, 591 (2000) Vitale v. Jefferson Ins. Co.Ð Ð insurer owed coverage for assignees' injuries in automobile accident. The district court granted summary judgment to insurer. Assignees appealed. The supreme court held that: (1) named insured's spouse, who was conducting business for day care operation at time of collision, was a “person insured” for purposes of policy provision excluding coverage for bodily injuries arising out of operation of automobiles by any insured; and (2) insurer did not waive right to assert automobile exclusion when, in letter denying coverage, it failed to define “persons insured” under policy. Affirmed. Harrison Kemp & Jones, Chtd., Las Vegas, for Appellants. Beckley Singleton Jemison Cobeaga & List and Elizabeth Goff Gonzalez and Daniel F. Polsenberg, Las Vegas; and Provizer & Phillips, P.C., and Marilyn Madorsky, Bloomfield Hills, Michigan, for Respondent. 1. Insurance. Courts will construe the terms of an insurance policy in their plain and ordinary sense and from the viewpoint of one not trained in law. 2. Insurance. When an insurer restricts coverage of a policy, it should employ language that clearly and distinctly communicates to the insured the nature of the limitation. 3. Insurance. Any ambiguity or uncertainty in an insurance policy must be construed against the insurer and in favor of the insured. 4. Insurance. Husband of named insured under general liability policy for day care business was “person insured” under provision making spouse of a sole proprietor a person insured, and therefore policy's automobile exclusion was applicable to injuries allegedly caused by husband in accident that occurred as he conducted business for day care operation, though policy's declarations page did not designate business as a sole proprietorship or designate named insured as an individual in space indicated for that purpose. 5. Insurance. General liability insurer did not waive its right to assert automobile exclusion when, in letter denying coverage for injuries allegedly caused by named insured's husband, it failed to define the “persons insured” to whom policy's automobile exclusion was applicable. Insurer promptly noted named insured and her spouse that it was denying coverage under automobile exclusion, which was a standard and unambiguous provision common to general liability policies. 6. Insurance. Insurer does not waive its right to assert an exclusion where it has provided its insured with adequate notice of an unambiguous exclusion.

Before Rose, C. J., Maupin and Shearing, JJ. ........................................ Ð116 Nev. 590, 592 (2000) Vitale v. Jefferson Ins. Co.Ð Ð OPINION Per Curiam: SUMMARY This matter presents two issues: (1) whether the designation of the named insured in a general liability policy was ambiguous; and (2) under what circumstances does an insurer waive its right to assert an otherwise applicable exclusion set forth in an insurance policy. Jefferson Insurance Company of New York (“Jefferson”) issued a general liability policy to Clara Moor and Second Mom Child Care (“Second Mom”), a day care business that Clara operated out of her home. Clara is married to Dennis Moor. Dennis was involved in an automobile accident while driving one of their personal vehicles in the scope and course of this family business. Jefferson denied coverage for injuries arising out of the car accident, claiming that coverage was excluded under the automobile exclusion clause in the policy. Appellants ultimately filed a declaratory relief action to challenge the validity of that denial. The district court eventually granted Jefferson's motion for summary judgment, declaring that no coverage was afforded under the policy. Thereafter, appellants filed this timely appeal contending, among other things, that the district court erred in granting Jefferson's motion for summary judgment because the policy did not exclude coverage, or alternatively, because Jefferson had waived its right to assert this basis for denial of coverage. We conclude that appellants' contentions lack merit. We therefore affirm the order and judgment of the district court. STATEMENT OF THE FACTS On November 21, 1992, a car driven by Dennis, in which he held joint title with his wife, Clara, collided with a car driven by Christine Mascola and also occupied by Phyliss Vitale and Justin Smith. Dennis was apparently conducting business for Second Mom at the time of the accident. Thereafter, Vitale, Smith, and Mascola filed a personal injury action against the Moors and Second Mom. This action was defended by Liberty Mutual, as the Moors were covered by an automobile liability policy with Liberty Mutual with aggregate policy limits of $100,000.00. The parties to the personal injury action entered into a settlement agreement (the “agreement”), whereunder the Moors and Second Mom stipulated to entry of judgment against them for

DQGSXUVXDQWWRZKLFK/LEHUW\0XWXDOSDLGLWVSROLF\OLPLWVRI ........................................ Ð116 Nev. 590, 593 (2000) Vitale v. Jefferson Ins. Co.Ð Ð $717,500.00, and pursuant to which Liberty Mutual paid its policy limits of $100,000.00. The agreement further provided that the Moors and Second Mom would assign all of their causes of action against Jefferson to Vitale, Mascola and Smith in exchange for their agreement not to execute or record the judgment against the Moors and Second Mom. The agreement essentially shielded the Moors and Second Mom from any direct liability for the judgment and gave the personal injury plaintiffs the right to sue Jefferson. Jefferson issued a $300,000.00 aggregate general liability policy to Clara and Second Mom. Clara purchased the policy for $150.00 through the Professional Day Care Providers Association, a non-profit association that serves the needs of day care providers.

Jefferson was notified of the personal injury action prior to settlement with Liberty Mutual, but denied coverage in a letter, dated December 28, 1993. Jefferson's letter provided, in relevant part, that there was no coverage for the claim and cited the full text of exclusion (b) of the policy, an automobile exclusion provision. Armed with the assigned rights under the settlement agreement, Vitale, Mascola, Smith, the Moors, and Second Mom filed a complaint seeking damages against Jefferson. They later filed a motion for partial summary judgment alleging that exclusion (b) was inapplicable because Dennis was not one of the “persons insured” under the policy. This contention was based on the discreet failure to designate Second Mom as a sole proprietorship or Clara as an individual in the space indicated for that purpose on the declaration sheet. This failure, they argued, rendered Dennis a non-insured under the policy because he was not a spouse of an insured specifically designated as either an individual or a sole proprietorship. They therefore reasoned, because the automobile exclusion could only be triggered if Dennis was a “person insured” under section II(a), the exclusion could not apply. Appellants' position in this regard was offered notwithstanding that Clara was a named insured, was in fact operating Second Mom as a sole proprietorship, was married to Dennis, and that a named insured's spouse is a “person insured” under the policy. In support of their contentions, appellants proffered testimony from a purported insurance expert. Jefferson filed a countermotion for summary judgment, arguing that the exclusion of losses arising from automobile accidents involving “persons insured” applied (exclusion (b)) for the following reasons: First, Clara was one of the “persons insured” as set forth on the declaration page and an owner of the automobile that caused the accident; second, under section II(a) of the policy, Dennis, as the spouse of Clara, was one of the “persons insured,” UHJDUGOHVV RI WKH IDFW WKDW &ODUD ZDV QRW GHVLJQDWHG DV DQ LQGLYLGXDO RU WKDW

6HFRQG0RPZDVQRWGHVLJQDWHGDVDVROHSURSULHWRUVKLSRQWKHGHFODUDWLRQSDJH ........................................ Ð116 Nev. 590, 594 (2000) Vitale v. Jefferson Ins. Co.Ð Ð regardless of the fact that Clara was not designated as an individual or that Second Mom was not designated as a sole proprietorship on the declaration page. After conducting a hearing on the cross-motions for summary judgment, the district court ruled that Jefferson properly denied coverage under the automobile exclusion. Appellants filed this timely appeal, contending that the district court erred because Dennis was not a “person insured” under the policy or, alternatively, because Jefferson had waived its right to assert exclusion (b). DISCUSSION Summary judgment orders are reviewed de novo. See Day v. Zubel, 112 Nev. 972, 977, 922 P.2d 536, 539 (1996). Summary judgment is only appropriate when a review of the record in a light most favorable to the non-moving party reveals that there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. See id. at 972, 922 P.2d at 538. In the instant matter, appellants contend that the district court erred in granting Jefferson's motion for summary judgment because there was a triable issue of material fact concerning whether the policy provided coverage for the loss sustained in the automobile accident. Specifically, appellants argue that the policy provided coverage because it contained an extremely broad insuring clause from which the operation of motor vehicles by Dennis, Clara, and Second Mom was not excluded from coverage. We disagree. [Headnotes 1-3] In reviewing coverage under an insurance policy, we are guided by several well-recognized tenets of construction. First, we have held that we will construe the terms of an insurance policy in their plain and ordinary sense and from the viewpoint of one not trained in law. See National Union Fire Ins. v. Reno's Exec. Air, 100 Nev. 360, 364, 682 P.2d 1380, 1382 (1984). Second, we have held that when an insurer restricts coverage of a policy, it should employ language that clearly and distinctly communicates to the insured the nature of the limitation. See id. Finally, we have held that any ambiguity or uncertainty in an insurance policy must be construed against the insurer and in favor of the insured. See id.

The insuring clause in the policy at issue provides that: The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damageWRZKLFKWKLVLQVXUDQFHDSSOLHVFDXVHGE\DQRFFXUUHQFH ........................................ Ð116 Nev. 590, 595 (2000) Vitale v. Jefferson Ins. Co.Ð Ð to which this insurance applies, caused by an occurrence, . . . . .... An occurrence is defined as: [A]n accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured: . . . . Although this insuring clause contains broad language, it is clearly limited by the policy section titled “Exclusions.” Particularly, damages associated with an automobile accident are excluded in provision (b) that provides: This insurance does not apply: .... (b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of (1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or (2) any other automobile or aircraft operated by any person in the course of his employment by any insured; .... In Senteney v. Fire Insurance Exchange, 101 Nev. 654, 656, 707 P.2d 1149, 1150 (1985), we held that an analogous automobile exclusion provision was valid in a homeowner's policy because it was clear and unambiguous. In so doing, we stated that this court would neither rewrite unambiguous insurance provisions nor attempt to increase the legal obligations of the parties where the parties intentionally limited such obligation. See id. at 656, 707 P.2d at 1151. [Headnote 4] In light of this court's holding in Senteney and the plain language of the policy, we conclude that exclusion (b) clearly and unambiguously excludes coverage for losses arising out of the automobile accident. As noted, appellants contend that exclusion (b) does not apply to them because Dennis is not a “person insured” under the policy. The term “person insured” is defined, in relevant part, under section II of the policy: (a) if the named insured is designated in the declarations as an individual, [a person insured is] the person so designated but only with respect to the conduct of a business of whichKHLVWKHVROHSURSULHWRU ........................................ Ð116 Nev. 590, 596 (2000) Vitale v. Jefferson Ins. Co.Ð Ð he is the sole proprietor, and the spouse of the named insured with respect to the conduct of such a business;

(b) if the named insured is designated in the declarations as a partnership or joint venture, [a person insured is] the partnership or joint venture so designated and any partner or member thereof but only with respect to his liability as such; (c) if the named insured is designated in the declarations as other than an individual, partnership or joint venture, [a person insured is] the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such; .... Again, although Clara was named as the insured, was operating Second Mom as a sole proprietorship and was married to Dennis, and although a spouse of a named insured is a “person insured” under the Jefferson policy, appellants claim that the failure to designate Clara as an individual or a sole proprietor in the space provided for such designations is determinative of whether Dennis may be a “person insured” for the purpose of the exclusion. We disagree. The plain language of section II(a) defines a “person insured” as both an individual designated on the declarations page and the individual's spouse, provided they are conducting business for the insured sole proprietorship. We conclude that Dennis falls within the purview of section II(a) because he is the spouse of Clara, an individual named on the declarations page, and apparently conducting business for the insured sole proprietorship, Second Mom. Indeed, the declarations page of the policy designates the “Named Insured” as “Second Mom Child; Clara Moor.” Implicit in this designation is the fact that Clara is an individual. Further, because Second Mom is in actuality a sole proprietorship, and not a joint venture or partnership (implicating section II(b)), or a corporation (implicating section II(c)), section II(a)'s definition of “persons insured” is applicable. Thus, the failure to check the box on the declaration sheet denominating the named insured as either an individual or as a sole proprietorship is not determinative of coverage. 1 Accordingly, we conclude that Dennis was a “person insured” XQGHU WKH SROLF\ EHFDXVH KH IDOOV

ZLWKLQWKHSXUYLHZRIVHFWLRQ,,D  __________ 1

If appellants' contention were sustained, there would be no actual persons insured to be protected by this coverage. This would lead to an absurd construction of this insurance agreement. Additionally, the Moors may not contend that they were not “persons insured.” Thus, the assignees of their rights against Jefferson are barred from making this claim of coverage. ........................................ Ð116 Nev. 590, 597 (2000) Vitale v. Jefferson Ins. Co.Ð Ð under the policy because he falls within the purview of section II(a). Waiver of an otherwise applicable exclusion [Headnote 5] Appellants alternatively contend that Jefferson waived its right to deny coverage under the automobile exclusion provision because Jefferson did not designate the “persons insured” in its 1993 written denial of coverage. We conclude that Jefferson did not waive its right to assert this automobile exclusion by failing to define “persons insured” in its letter denying coverage. [Headnote 6] In Intel Corp. v. Hartford Accident & Indemnity Co., 952 F.2d 1551, 1561 (9th Cir. 1991), the Ninth Circuit Court of Appeals held that an insurer did not waive its right to rely on a different policy exclusion because the

insurer informed its insured that “the pollution exclusion,” a standard and unambiguous exclusion, was applicable. In its reasoning, the Intel court clarified the decision in McLaughlin v. Connecticut General Life Insurance Co., 565 F. Supp. 434 (N.D. Cal. 1983), 2 in stating that waiver applies only in instances where the insurer engaged in misconduct, such as “sandbagging” or failing to investigate a claim, or where the insured relied on an insurer's misrepresentation to his detriment. 952 F.2d at 1559-60. We agree with the Intel court that an insurer does not waive its right to assert an exclusion where it has provided its insured with adequate notice of an unambiguous exclusion. In the present case, like the insurer in Intel, Jefferson promptly informed the Moors that it was denying coverage based on exclusion (b)—a standard and unambiguous automobile exclusion provision common to general liability policies. Although Jefferson's 1993 letter denying coverage did not specifically identify the “persons insured” for purposes of exclusion (b), we cannot say that such failure misled appellants or was an attempt by Jefferson to mislead them. We conclude that the Moors were not prejudiced by Jefferson's failure to define the “persons insured” language in its 1993 letter because this definition could be readily ascertained from a layman's reading of section II(a) of the policy. Because the Moors were clearly on notice that Jefferson was UHO\LQJRQWKHDXWRPRELOHH[FOXVLRQ

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In McLaughlin, the court held that “where an insurer relies on a specified ground for denying liability, it may not thereafter deny liability on another ground if . . . a reasonable investigation would have revealed the basis.” 565 F. Supp. at 452 (citing Stone v. Waters, 483 S.W.2d 639 (Mo. Ct. App. 1972)). In so doing, the court reasoned that an insurer has a duty of good faith that requires it to fully inform the insured of its basis for denial of coverage. See id. ........................................ Ð116 Nev. 590, 598 (2000) Vitale v. Jefferson Ins. Co.Ð Ð relying on the automobile exclusion provision of the policy, we conclude that Jefferson did not waive its right to exclude coverage based upon exclusion (b) of the policy. CONCLUSION We conclude that the district court did not err in granting Jefferson's motion for summary judgment because losses arising from automobile accidents were excluded under exclusion (b) of the policy. Accordingly, we affirm the order and judgment of the district court.

____________

Ð116 Nev. 598, 598 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð Ð MICHAEL EVANS, as Special Administrator of the ESTATE OF ELFREDA A. GARDNER, Appellant/Cross-Respondent, v. DEAN WITTER REYNOLDS, INC., a Foreign Corporation; and WARREN HOUSE, Respondents/Cross-Appellants. No. 30843 August 18, 2000

5 P.3d 1043

Appeal and cross-appeal from a judgment of the district court, pursuant to a jury verdict, in an action for conspiracy to convert personal and real property. Ninth Judicial District Court, Douglas County; Michael R. Griffin, Judge. Deceased client's estate brought conversion action against stock broker and brokerage firm, based on alleged unauthorized transfers out of client's accounts. After jury awarded estate $2,600,000.00 in compensatory damages and awarded $6,000,000.00 in punitive damages against firm and $50,000.00 against broker, the district court reduced compensatory damages award to zero by applying equitable offsets for settlement payment estate received from third parties, but allowed punitive damages award to stand. Estate appealed, and defendants cross-appealed. The supreme court, Maupin, J., held that: (1) defendants, as intentional tortfeasors, were not entitled to equitable offset for settlement made by joint tortfeasor, overruling Bader v. Cerri, 96 Nev. 352, 609 P.2d 314 (1980); (2) evidence was sufficient to establish that defendants acted maliciously, as required to support punitive damages award; and (3) award of punitive damages was not excessive. Affirmed in part, reversed in part, and remanded. [Rehearing dismissed November 30, 2000] Goedert & Michaels, Reno; Terzich & Jackson, Gardnerville, for Appellant/Cross-Respondent. ........................................ Ð116 Nev. 598, 599 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð Schreck Morris and Kristina Pickering, Las Vegas; Mortimer, Sourwine & Sloane, Ltd., Reno; Sullwold & Hughes, San Francisco, California, for Respondents/Cross-Appellants. 1. Appeal and Error. Questions of law are reviewed de novo. 2. Trover and Conversion. “Conversion” is a distinct act of dominion wrongfully exerted over another's personal property in denial of, or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title or rights. 3. Trover and Conversion. “Conversion” is an act of general intent, which does not require wrongful intent and is not excused by care, good faith, or lack of knowledge. 4. Trover and Conversion. Whether a conversion has occurred is generally a question of fact for the jury. 5. Trover and Conversion. Evidence that real and personal property had been reconveyed to decedent's estate was inadmissible to show mitigation of damages in estate's conversion action against stock broker and brokerage firm. Estate sought value of securities at time of alleged conversion plus interest, and reconveyance was part of settlement of estate's claims against third parties, and only offset value of property taken by those parties; overruling Bader v. Cerri, 96 Nev. 352, 609 P.2d 314 (1980). 6. Trover and Conversion. Restitution evidence offered in mitigation of consequential damages attendant to an act of conversion is admissible. 7. Trover and Conversion. Stock broker and brokerage firm, as intentional tortfeasors in conversion action brought by decedent's estate, were not entitled to equitable offset for settlement made by joint tortfeasor. NRS 17.225 et seq. 8. Damages; Trover and Conversion. Intentional tortfeasors, including persons found liable in conversion and persons in conspiracy with them, may not apply credit from settlements by their joint tortfeasors in reduction of judgments against them arising from the intentional misconduct. NRS 17.225 et seq. 9. Damages. Contribution among tortfeasors statutes prohibit one intentional tortfeasor from taking advantage of restitution made by another. NRS 17.225, 17.245, 17.255, 17.305. 10. Damages. A plaintiff is never entitled to punitive damages as a matter of right. Rather, where the district court has determined that the conduct at issue is, as a threshold matter, subject to civil punishment, the allowance or denial of exemplary or punitive damages rests entirely in the discretion of the trier of fact. NRS 42.005(1). 11. Appeal and Error. Supreme court will not overturn an award of punitive damages supported by substantial clear and convincing evidence of malice. NRS 42.005(1).

........................................ Ð116 Nev. 598, 600 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð 12. Trover and Conversion. Evidence in estate's conversion action was sufficient to support finding that stock broker acted maliciously or with a conscious disregard of decedent's rights, as required to support award of punitive damages. Broker falsely notarized a full trading authorization on decedent's precious metals account and allowed decedent's nephew to transfer stock out of her active asset account after her death, despite policy of brokerage firm requiring him to freeze the account. NRS 42.005(1). 13. Appeal and Error. Although brokerage firm did not specifically object to language of vicarious liability instruction and failed to proffer alternate theory of punitive liability based on a complicity theory in conversion action brought against firm and stock broker, it preserved for review issue of whether there was substantial evidence in support of punitive damages claim based on malice and vicarious liability theory given at trial, where it generally objected to the giving of any punitive damage instruction. 14. Trover and Conversion. Evidence in estate's conversion action was sufficient to support finding that brokerage firm was vicariously liable for the malicious acts of stock broker and branch manager, as required to support award of punitive damages. Manager acted within scope of his authority when he participated in false notarization of full trading authorization on decedent's precious metals account, and broker acted within scope of his authority as manager of decedent's active asset account when he allowed decedent's nephew to transfer stock out of account after her death. NRS 42.005(1). 15. Damages. In determining whether a punitive damages award is excessive, supreme court considers numerous factors, including the defendant's financial position, culpability, and the extent to which this culpability offends one's sense of justice. 16. Damages. In determining whether a punitive damages award is excessive, supreme court considers the gravity of the injury suffered by the plaintiff and the means necessary to deter future similar conduct. 17. Trover and Conversion. Award of $6,000,000.00 in punitive damages against brokerage firm and $50,000.00 against stock broker was not excessive in conversion action brought by estate of deceased client. Punitive damages award was less than three times the compensatory damages award, awards made up a relatively small portion of the defendants' net worths, and there was substantial evidence of misconduct, which resulted in substantial depletion of multi-million-dollar estate of mentally and physically incompetent client. NRS 42.005. 18. Damages. “Award” in statute limiting amount of punitive damages to three times the compensatory damage award refers to an award of actual damages by the jury, not the net award calculated after equitable offsets. NRS 42.005(1). 19. Interest. Post-judgment interest should accrue on an award for punitive damages to compensate the plaintiff for the loss of the use of the money awarded in the judgment until paid.

Before the Court En Banc. ........................................ Ð116 Nev. 598, 601 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð OPINION By the Court, Maupin, J.: SUMMARY The estate of Elfreda Gardner (“the Estate”) obtained a favorable jury verdict against Dean Witter Reynolds, Inc. and Warren House, a stockbroker and senior vice president of Dean Witter, based upon a theory of conspiracy to commit conversion of securities. The jury awarded compensatory damages in the amount of $2,600,000.00, jointly and severally, against Dean Witter and House, and rendered separate punitive damage awards against Dean Witter and House in the respective amounts of $6,000,000.00 and $50,000.00. The district court, however, reduced the compensatory damage award to zero by applying equitable offsets for settlement payments received by the Estate from third parties. Notwithstanding the elimination of the compensatory damage verdict through the

offsets, the trial court let the punitive damage awards stand. On appeal, the Estate makes several claims of error by the district court including: (1) improper limitation of the scope of the conversion claim; (2) improper admission into evidence of restitution made by third parties in connection with pretrial settlements that resulted in a reduced jury award; (3) improper imposition of equitable offsets against the jury award ultimately rendered; and (4) failure to award post-judgment interest on the punitive damage awards. On cross-appeal, Dean Witter and House contend that the portion of the judgment awarding punitive damages should be reversed in its entirety because: (1) there was no evidence of malice; (2) the punitive damage awards were excessive; and (3) the reduction of the compensatory damages to zero mandates that the punitive damage awards should be set aside as a matter of law. Dean Witter separately argues that proof elicited at trial was insufficient to sustain vicarious imposition of punitive damages against it. We conclude the district court erred in admitting evidence relating to restitution by third parties and in applying post-verdict equitable offsets. Thus, we reverse that portion of the district court's judgment pertaining to compensatory damages and remand this matter for reinstatement of the compensatory damage award and the issuance of an additur. Finally, we affirm the judgment with respect to the awards of punitive damages. ........................................ Ð116 Nev. 598, 602 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð FACTS Jack Gardner, an attorney licensed in California, managed the legal, business, and personal affairs of his elderly aunt and uncle, Elfreda and Allen Gardner. These duties were performed pursuant to a personal employment agreement. Allen and Elfreda ultimately died testate leaving no children. 1 Prior to Allen's death, he established the Allen F. Gardner Trust to provide interest income to Elfreda during her lifetime and, upon her death, the trust estate was to be gifted to the Gardner heirs (Jack, his two sisters, and their heirs). Jack Gardner and Pioneer Citizens Bank were co-trustees of the trust. Allen predeceased Elfreda and, at the time of his death, the Allen F. Gardner Trust assets exceeded $8,000,000.00. Elfreda's Last Will and Testament left all of her real and personal property to Jack and his wife, Sue Gardner, except for money and securities which were bequeathed to Elfreda's nieces and nephews (the “Stiegler heirs”). After Allen's death, Elfreda lived alone. Ultimately, she became dependent upon nursing assistance for all of the activities of daily living. Although House testified that Elfreda was able to express concerns about the management of her financial affairs, one of her medical providers testified that her mental and physical condition was in a state of continued deterioration and that she ultimately became mentally incompetent and physically disabled. On October 11, 1989, Jack Gardner removed stock certificates held in Elfreda's name from a First Interstate Bank safe deposit box, which was held jointly by Elfreda and Jack Gardner. Thereafter, Jack deposited the certificates with Dean Witter into an active asset account 2 for registration in Dean Witter's street name. 3 Appellants allege that the value of the stock certificates at the time of the deposit exceeded $8,000,000.00. The valuation at that time was largely uncontested at trial. Donald Brooks, manager of Dean Witter's Stateline office, testified that on October 13, 1989, he and Jack Gardner witnessed Elfreda affix her signature to all of the opening account documents. Brooks also testified that he notarized Elfreda's signatures. However, two handwriting experts testified at trial that the signatures were not those of Elfreda, and that three different inks were used to execute the documents. __________ 1

Allen F. Gardner died in 1985. Elfreda Gardner died in 1993.

2

An active asset account is a checking account into which stock dividends and other proceeds can be

deposited; it authorizes the signatories to write checks on the margin, using the client's stock as security. 3

The “street name” designation involves registration of client securities in Dean Witter's name, thus allowing the firm to sell or transfer stock held for the client. Transactions are then memorialized via monthly statements. ........................................ Ð116 Nev. 598, 603 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð One of the documents allegedly signed by Elfreda was a full trading authorization, which gave Jack Gardner authority over the account, including the power to sell corporate securities. Jack wrote approximately $1,600,000.00 in checks from the active asset account to purchase real and personal property, including “Hummel” figurines, model trains, furniture, gold coins, and real property in Douglas County, Nevada. Because Elfreda's will left her real and personal property to Jack and Sue Gardner, and because all monies and securities were bequeathed to the Stiegler heirs, these transactions substantially depleted the portion of the estate gifted in Elfreda's will to the Stiegler heirs. Most of the assets purchased with these proceeds were then held jointly in the name of Mr. and Mrs. Jack Gardner. Jack also used the original full trading authorization to transfer United Airlines stock, the primary asset in the account, to his own accounts at Dean Witter and to those of his friends, with a total of 8,488 shares being distributed. He also distributed 3,365 of the shares to the Stiegler heirs. After Elfreda's death, Jack continued to transfer assets from Elfreda's account into his personal account. Dean Witter allowed these transfers, despite its policy of freezing accounts upon the death of a client. Further, after Elfreda's death, Dean Witter sold stock certificates from the account to pay off $903,508.52 in margin obligations incurred by Jack in connection with the active asset account in Elfreda's name. House was the account executive who serviced this account. In addition to the active asset account, Jack opened a separate precious metal account with Dean Witter in Elfreda's name. It is uncontested that Jack forged the signatures required to open this account. House admitted notarizing the false signatures. The account was used to transfer gold coins to Jack Gardner at his California address. After Jack Gardner's defalcations were identified, the Estate filed an action seeking damages against the Estate of Jack Gardner, 4 Sue Gardner, Pioneer Citizens Bank, trust counsel, Dean Witter, and House. The lawsuit alleged three separate loss categories, to wit: (1) losses incurred as a result of the handling of the Allen F. Gardner Trust, of which Elfreda was the income beneficiary during her lifetime; (2) losses stemming from the conversion of assets from Elfreda's personal bank account at First Interstate Bank (“FIB”); and (3) losses sustained in connection with diversions from the Dean Witter accounts. The complaint alleged breaches of fiduciary duty, conversion before letters, conversion, embezzlement, civil conspiracy, and racketeering with

UHJDUGWRHDFKVHSDUDWHORVVFDWHJRU\ __________ 4

Jack Gardner died prior to the trial of this matter. ........................................

Ð116 Nev. 598, 604 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð regard to each separate loss category. Although the Estate's pleadings alleged that all of the defendants named in connection with all three categories of loss were jointly and severally liable, the first two loss categories did not involve Dean Witter. Claims in connection with the third category were brought against the Estate of Jack Gardner, Sue Gardner, Dean Witter, and House. Prior to trial, Pioneer Citizens Bank and trust counsel each paid approximately $100,000.00 to settle, in part, the separate claims against the Allen F. Gardner Trust (the “Allen F. Gardner Trust Settlement”). Sue Gardner, individually and as executrix of the Estate of Jack Gardner, entered into a separate settlement

agreement with the Estate of Elfreda Gardner in exchange for cash, real estate, and personal property valued by the parties in excess of $4,000,000.00 (the “Jack Gardner Settlement”). The Jack Gardner Settlement allocated net proceeds, after deductions of $400,000.00 for attorney's fees, as follows: seventy-five percent for the depletion of Elfreda's personal accounts (assets on deposit with FIB and Dean Witter); and twenty-five percent for monies Elfreda should have received from the Allen F. Gardner Trust. There was no specific breakdown in the settlement agreement allocating credit between the FIB and Dean Witter losses. Thereafter, the Estate proceeded to trial against Dean Witter and House. Prior to trial, the district court ruled on motions in limine brought to exclude evidence of the prior settlements. The district court granted the motion in part, prohibiting admission of evidence that real and personal property was returned by virtue of a legal settlement. The district court, however, allowed Dean Witter and House to introduce evidence that personal and real property, valued at approximately $1,570,858.00, was returned, including evidence that the Hummel figurines, model trains, and furniture were returned to the estate, along with several parcels of real property. The district court also allowed Sue Gardner to testify that the value of the real property deeded back to the estate exceeded the original purchase price of the parcels. At trial, the district court limited the scope of the conversion claim by determining, as a matter of law, the time period within which the alleged conversion could have taken place. Specifically, the district court ruled that Dean Witter could not have converted the stock at the time that Jack Gardner removed the stock certificates from the FIB safe-deposit box and deposited them into the Dean Witter active asset account. Thus, the district court ruled that Dean Witter and House could only have been parties to the conversion at the time the stock was transferred from the active asset account. Because the corporate stock substantially decreased in value between the time of the deposit into the active asset DFFRXQW DQG WKH WLPH RI -DFN *DUGQHU V WUDQVIHU

WUDQVDFWLRQV ........................................ Ð116 Nev. 598, 605 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð account and the time of Jack Gardner's transfer transactions, the district court restricted the compensatory damage claim to $4,173,079.00, including interest. 5 (Dean Witter and House conceded that certain irregularities perpetrated by Jack Gardner occurred, and that the value of the securities lost by virtue of the Jack Gardner transactions amounted to $4,173,079.00, including interest. However, Dean Witter and House vehemently denied participation in the conversion of securities or a conspiracy to convert securities from Elfreda's accounts.) At the conclusion of the Estate's case-in-chief, the district court dismissed all of the claims, pursuant to NRCP 41(b), except the causes of action alleging conversion and conspiracy to convert. The court further ruled that there was insufficient evidence as a matter of law to support an award of punitive damages based upon fraud or oppression, but left the question of malice for decision by the jury. The jury returned a verdict for the defense on the conversion claims but, as previously noted, returned a verdict of $2,600,000.00 in compensatory damages against Dean Witter and House jointly and severally for conspiracy to commit conversion. As also noted, the jury, in bifurcated proceedings, ultimately awarded the Estate punitive damages against Dean Witter in the amount of $6,000,000.00 and against House in the amount $50,000.00. Thereafter, following post-trial motions by both parties, the district court reduced the compensatory damage award to zero, applying offsets for the entirety of the Jack Gardner and Allen F. Gardner Trust Settlements. The offsets were ordered notwithstanding the Estate's argument that offsets in any amount were barred under NRS 17.225 et seq., and affidavit evidence presented by the Estate that: (1) the settlement offsets that could be legally applied in connection with the Jack Gardner Settlement, assuming the offsets were legally appropriate, 6 could not exceed $480,659.50; and (2) the payors under the Allen F. Gardner Trust Settlement were not joint tortfeasors with Dean Witter, but were subject to liability for an alleged separate tort of conversion from the separate Allen F. Gardner Trust. __________

5

As noted, the value of the securities at the time of the creation of the accounts approximated $8,000,000.00. The $4,173,079.00 figure was based upon the value of the securities at the time of ultimate transfer. Thus, the district court's rulings had the effect of substantially reducing the Estate's claim of damages. 6

The Estate's primary argument in district court was that NRS 17.225 barred the imposition of any offsets. It argued in the alternative that the offsets should have been limited. On appeal, the Estate takes a reverse approach, to wit: the argument of total illegality of the offsets is made in the alternative to the argument that the offsets should have been limited. ........................................ Ð116 Nev. 598, 606 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð The punitive damage awards were reduced to judgment, even though the equitable offsets reduced the compensatory award to zero dollars. The district court refused the Estate's request for post-judgment interest on the punitive damages award pursuant to Ainsworth v. Combined Insurance Company, 105 Nev. 237, 774 P.2d 1003 (1989). DISCUSSION Standard of review [Headnote 1] “Questions of law are reviewed de novo.” SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993). Here, the district court was required to resolve numerous issues in the context of long-existing ambiguities in our decisional and statutory law. These issues include when and how an act of conversion can be committed, the rights governing litigation between and among multiple parties in the context of claims alleging intentional misconduct, and the relationships between recoveries of compensatory and punitive damages. In reversing the trial court, we take this opportunity to clarify these ambiguities, with which the district court understandably encountered considerable difficulty. The Estate primarily seeks reinstatement of the $2,600,000.00 compensatory damage award, which was reduced to zero via the settlement offsets. The Estate also requests an additur to account for the reduction of the verdict by the jury caused by the admission of the restitution evidence. We will therefore address the Estate's contentions as they relate to the primary relief sought in this appeal. Because the Estate seeks the clarification and application of doctrine in the context of claims of conversion and conspiracy to convert, a brief review of the tort of conversion under Nevada law is necessary. [Headnotes 2-4] Conversion is “a distinct act of dominion wrongfully exerted over another's personal property in denial of, or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title or rights.” Wantz v. Redfield, 74 Nev. 196, 198, 326 P.2d 413, 414 (1958). Further, conversion is an act of general intent, which does not require wrongful intent and is not excused by care, good faith, or lack of knowledge. See id.; Bader v. Cerri, 96 Nev. 352, 357 n.1, 609 P.2d 314, 317 n.1 (1980). Whether a conversion has occurred is generally a question of fact for the jury. See Bader, 96 Nev. at 356, 609 P.2d at 317. 7 __________ 7

As noted, the district court limited the scope of the Estate's conversion claim by informing the jury that Dean Witter's acceptance of Jack Gardner's ........................................ Ð116 Nev. 598, 607 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð

Prior settlements [Headnote 5] The district court allowed Dean Witter to present evidence demonstrating the reconveyance of three parcels of real property to Elfreda's estate pursuant to the Jack Gardner Settlement. Dean Witter was also allowed, through the testimony of Sue Gardner, to inform the jury that the property returned to the Estate was worth more at the time it was deeded back than when it was purchased. In sum, the district court permitted evidence of the return of certain real and personal property totaling $1,570,858.00, which included the Hummel figurines, model trains, furniture, gold coins, and money spent by Jack on the acquisition of various pieces of real property. Dean Witter contends that the restitution evidence was relevant to mitigate the damages sustained by the Estate. In making this contention, Dean Witter refers us to our statement in Bader that “[t]he return of the property converted does not nullify the conversion[, but can] serve to mitigate damages.” Bader, 96 Nev. at 356, 609 P.2d at 317. Alternatively, Dean Witter asserts that if the district court erred in admitting this evidence, any error was harmless. 8 We disagree. Although the fact that the Estate had settled its liability claims against Jack and Sue Gardner was not disclosed to the jury, the district court admitted evidence that real and personal property had been returned to the Estate. It did so under Bader's statement that, in a conversion case, damages may be reduced or “mitigated” by payments or return of the converted property by the tortfeasor. The district court's ruling on the admissibility of the restitution by Jack and Sue Gardner is problematic because of the context within which such evidence is admissible under Bader, and because of our subsequent ruling in Moore v. Bannen, 106 Nev. 679, 680-81, 799 P.2d 564, 565 (1990). __________ full trading authorization was not a conversion as a matter of law. This ruling had the net effect of reducing the damage claim based upon the value of the securities at the time of their transfers from the Dean Witter account, rather than their value at the time the account was created. As also noted, the value of the securities diminished almost by half during the period between the creation of the account and the ultimate transfers effected at the instance of Jack Gardner. We do not reach the issue of the timing of the conversion because the Estate primarily seeks reinstatement of the compensatory damage award plus additur. 8

The jury was not informed that Sue Gardner, Jack Gardner's widow, was later given ownership of the Hummels, model trains, furniture and other personal property after they had been recovered and inventoried. Thus, the mitigation evidence was placed before the jury on a “fictive” basis as a precaution to prevent the jury from inferring that the “mitigation” evidence was actually a settlement payment. ........................................ Ð116 Nev. 598, 608 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð Our statement in Bader that evidence of restitution is admissible for the purpose of showing mitigation of damages was made in reference to a matter where a single defendant charged with civil conversion had restored the property to the alleged victim of the conversion. The restitution in Bader was not, as here, made by a third party. Also, the evidence of “mitigation” in Bader, the restoration or release of a cattle brand back to the original owner, was relevant to show that consequential damages, i.e., loss of use stemming from the original conversion, were not as great as alleged. Therefore, return of converted property would only “mitigate” consequential damages attendant to the loss of use of the converted property. Here, the sole measure of damages sought by the Estate was the value of the securities at the time of conversion plus interest. The Estate made no claim for consequential damages other than loss of interest. Here, the district court, rather than the jury, assessed the interest to which the Estate was entitled. We therefore conclude that the district court erred in admitting evidence of the conveyance and return of personal and real property because this restitution did nothing to mitigate consequential damages; rather, it allowed the jury to

consider evidence of the value of property that was returned as an offset to the value of the property taken, i.e., non-consequential damages. This, we also conclude, runs afoul of our ruling in Moore v. Bannen. [Headnote 6] In Moore, we held that, “where there has been a settlement between a plaintiff and one of several defendants, the jury may not be informed as to either the fact of the settlement or the sum paid.” Moore, 106 Nev. at 680-81, 799 P.2d at 566 (emphasis added). Consistent with our decision in Moore, we now conclude that evidence of a portion of the consideration paid in settlement by third parties creates the same potential for confusion and speculation in the minds of the jurors as does evidence of the total consideration paid. We therefore hold that the restitution evidence was admitted below in error. Thus, to the extent that Bader would allow admission of such evidence in “mitigation” of non-consequential damages, it is hereby expressly overruled. 9 An examination of the record clearly shows that the mitigation evidence unduly influenced the outcome. Again, the court's ruling limited the extent of damages to $4,173,079.00. The jury then awarded compensatory damages in the sum of $2,600,000.00. The net result was a compensatory damage verdict in an amount substantially less than the minimum damages actually sustained by the Estate. __________ 9

Under Bader, restitution evidence offered in mitigation of consequential damages attendant to an act of conversion remains admissible. ........................................ Ð116 Nev. 598, 609 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð Accordingly, we conclude the district court erred in admitting the restitution evidence. Viability of the equitable offsets [Headnote 7] On appeal, the Estate argues that equitable offsets based upon the restitution payments should have been limited to payments made in connection with the Dean Witter losses, not losses in connection with the Allen F. Gardner Trust and the FIB accounts. 10 In addition to its claim of error that the equitable offsets should have been limited, the Estate contends in the alternative that any offset based upon restitution settlements made in response to the claims of intentional misconduct was improper under NRS 17.225 et seq., the Nevada “Contribution Among Tortfeasors” statute. Whether offsets should be permitted in any amount in the context of joint liability for intentional misconduct is the subject of a nationwide split of authority. Some courts have prohibited offsets under contribution statutes similar to those enacted by the Nevada legislature. See Klosterman v. Fussner, 651 N.E.2d 64, 68 (Ohio Ct. App. 1994) (likening the imposition of equitable credit to the collateral source rule). But see Hampton v. Safeway Sanitation Services, Inc., 725 S.W.2d 605 (Mo. Ct. App. 1987) (offsets applied in context of conversion claim under “contribution” statute). Other courts have split, as a matter of public policy, over whether general principles of equity prevent parties with “unclean hands” from obtaining equitable relief by way of offset. See generally Income Investors v. Shelton, 101 P.2d 973, 974 (Wa. 1940) (discussing the doctrine of unclean hands). In response, courts applying offsets have concluded that the potential for double recovery by the claimant mandates that such offsets be imposed, even in the context of intentional misconduct of the party seeking relief. See Krusi v. Bear, Stearns & Co., 192 Cal. Rptr. 793, 798 (Ct. App. 1983) (conversion of securities by two stockbrokers). [Headnote 8] We conclude that, as a matter of law, intentional tortfeasors, LQFOXGLQJ SHUVRQV IRXQG OLDEOH LQ

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__________ 10

In post-trial motions concerning the extent of the offsets, and thus, the net award from the verdict, the Estate provided affidavits memorializing allocations to the Allen F. Gardner Trust losses and explaining the allocations between the Dean Witter and FIB losses. The district court, without holding an evidentiary hearing, assessed the restitution payments in total, thus reducing the net verdict to zero. We harbor some concerns with regard to the application of offsets in connection with settlements of claims not involving Dean Witter. See NRS 17.225(1); cf. Levi v. Montgomery, 120 N.W.2d 383 (N.D. 1963). However, we choose not to reach the issue in the context of this case because of our decision that the contribution statute, NRS 17.225 et seq., bars any right of equitable offset in favor of Dean Witter or House. ........................................ Ð116 Nev. 598, 610 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð including persons found liable in conversion and persons in conspiracy with them, may not apply credit from settlements by their joint tortfeasors (here, Jack Gardner) in reduction of judgments against them arising from the intentional misconduct. See Harriss v. Elliott, 565 N.E.2d 1041, 1044 (Ill. App. Ct. 1991). First, and fundamentally, payments made in settlement of an intentional tort claim and applied to reduce another tortfeasor's payment of the claim by one of the joint tortfeasors would constitute equitable relief by way of an equitable setoff. Under the maxim that one seeking equity may not do so with “unclean hands,” an intentional tortfeasor by definition seeks such relief from a position of ineligibility for it. See Shelton, 101 P.2d at 974. Secondly, we conclude that NRS 17.225 prohibits the application of such credit. 11 The act provides that “where two or more persons become jointly or severally liable in tort for the same injury to person or property . . . , there is a right of contribution among them.” NRS 17.225(1). Section (a) of NRS 17.245(1) provides that payments in settlement by one of two or more persons liable for the “same injury” does not discharge the liability of non-settling parties unless the terms of the settlement so provide. However, the payments reduce “the claim against the others to the extent . . . of the consideration paid for it.” Id. While NRS 17.245(1) seems to mandate some of the credit sought by Dean Witter and applied by the district court, NRS 17.255 specifically provides that no right of contribution exists in favor of any tortfeasor who has intentionally caused or contributed to the injury sustained. 12 Reading NRS 17.225, NRS 17.245, NRS 17.255, and NRS 17.305 together, the prohibition against contribution in favor of persons liable in tort for intentional misconduct would make no sense if intentional tortfeasors were entitled to an equitable offset for settlements made by joint offenders. This is because the credit under NRS 17.245(1) would indirectly provide the non-settling LQWHQWLRQDO WRUWIHDVRU WKH VDPH

SURWHFWLRQDJDLQVWRYHUSD\PHQWWKDWDGLUHFWULJKWRIFRQWULEXWLRQZRXOGSURYLGH __________ 11

At common law, there was no contribution among joint tortfeasors. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 50 (5th ed. 1984). This rule is deeply rooted in our national jurisprudential history and developed because the word “tort” was, in the non-modern context, a descriptive term for intentional misconduct amounting to a “civil wrong,” not negligent misconduct. Over time, numerous states have adopted either by court rule or by statute variant forms of contribution recovery. These contribution constructs, which apply to non-intentional wrongs, come from the recognition that non-negligent torts committed by multiple offenders do not evoke the same policy that justifies the prohibition of credit for complete or partial reimbursement by third parties in the intentional tort context. See 2 Speiser, Krause and Gans, American Law of Torts, § 3:15 (1983). 12

The traditional restrictions against contribution by intentional wrongdoers that existed at common law are therefore retained. See supra, n.12.

........................................ Ð116 Nev. 598, 611 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð intentional tortfeasor the same protection against overpayment that a direct right of contribution would provide. Thus, the contribution statute renders any reduction in the verdict, regardless of its source, invalid. Accordingly, the district court erred in its admission of “mitigation” evidence and in the imposition of postverdict equitable setoffs. Our ruling on this issue has further significance to the dictum in Bader regarding restitution as evidence in mitigation of conversion damages. Not only is such evidence inadmissible under Moore, restitution payments by third parties cannot be utilized as an equitable offset to the verdict. Thus, insofar as Bader implies that a non-settling defendant in a conversion case may seek credit for third-party settlements post-verdict, it is expressly overruled. 13 [Headnote 9] We conclude that the legislative statement of policy in the Nevada “contribution” statutes prohibits one intentional tortfeasor from taking advantage of restitution made by another. To the extent that this long-standing public policy should to be overturned, we defer to the Nevada State Legislature. Based upon our conclusions that the restitution evidence was inadmissible and that the verdict rendered should not have been reduced via the equitable offsets, we remand this matter for reinstatement of the verdict rendered in the amount of $2,600,000.00, and for additur to increase the recovery of compensatory damages to a total of $4,173,079.00, plus interest. 14 Punitive damages Punitive damages are not designed to compensate a party but are awarded “for the sake of example and by way of punishing the defendant.” NRS 42.005(1). With respect to punitive damages, the district court instructed the jury that it could make such an award only upon a finding of malice. On cross-appeal, Dean Witter and House contend that: (1) malice was never proven; (2)WKHSXQLWLYHGDPDJHDZDUGZDVH[FHVVLYH __________ 13

In Bader, the “mitigation” evidence involved restitution by the defendant accused, not another separately accused defendant. Clearly, a defendant in any intentional tort case is entitled to credit for payments made on his own behalf. To this extent, Bader retains some limited vitality on the issue of restitution payments made by a tortfeasor. We note that some acts of conversion do not involve wrongful intent. In such a case, there is no reason not to impose equitable relief by way of offsets for third-party settlements. In this case, however, the jury found malice. Thus, equitable relief based upon third-party payments to the claimant is unavailable. 14

This total figure is based upon the value of the securities at the time of the transfers effected at the request of Jack Gardner. As noted, Dean Witter and House concede that the value of the securities at that time was $4,173,079.00. ........................................ Ð116 Nev. 598, 612 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð the punitive damage award was excessive; and (3) the reduction of the compensatory damages to zero mandates that the punitive damage awards should be set aside as a matter of law. We will address each contention in turn.

A. Proof of malice [Headnotes 10, 11] Nevada law requires clear and convincing evidence of malice before punitive damages may be recovered. NRS 42.005(1). “ ‘A plaintiff is never entitled to punitive damages as a matter of right.' ” Dillard Department Stores v. Beckwith, 115 Nev. 372, 380, 989 P.2d 882, 887 (1999) (quoting Ramada Inns v. Sharp, 101 Nev. 824, 826, 711 P.2d 1, 2 (1985)). Rather, where the district court has determined that the conduct at issue is, as a threshold matter, subject to civil punishment, the allowance or denial of exemplary or punitive damages rests entirely in the discretion of the trier of fact. See Smith's Food & Drug Cntrs. v. Bellegarde, 114 Nev. 602, 606, 958 P.2d 1208, 1211 (1998); Ramada Inns v. Sharp, 101 Nev. 824, 826, 711 P.2d 1, 2 (1985). Accordingly, this court will not overturn an award of punitive damages supported by substantial clear and convincing evidence of malice. [Headnote 12] NRS 42.001(3) defines express or implied malice as “conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of the rights or safety of others.” There is substantial evidence in the record to support the jury's finding that Dean Witter and House acted maliciously or with a conscious disregard of Elfreda's rights. House testified that he falsely notarized a full trading authorization on the precious metals account and that he allowed Jack to transfer stock out of Elfreda's account after her death, despite a Dean Witter policy requiring House to freeze her account. Additionally, there was evidence presented that would have supported an inference that House or Brooks either forged Elfreda's active asset account documents or knew that they were forged. Indeed, although House and Brooks testified that Elfreda signed these opening documents granting Jack control over her account, two handwriting experts concluded that three different pens were used to sign these documents and that the signatures were not Elfreda's. [Headnote 13] With respect to the jury instruction given on Dean Witter's punitive liability, we first address the threshold matter of whether Dean Witter preserved this issue on appeal. The Estate contends that Dean Witter waived its right to appeal its liability for puniWLYH GDPDJHV E\ IDLOLQJ WR REMHFW WR WKH YLFDULRXV OLDELOLW\

LQVWUXFWLRQWKDWZDVJLYHQWRWKHMXU\ ........................................ Ð116 Nev. 598, 613 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð tive damages by failing to object to the vicarious liability instruction that was given to the jury. We agree, in part, with the Estate's contention. A review of the record reveals that Dean Witter did not specifically object to the language of the vicarious liability instruction and failed to proffer the alternate theory of punitive liability based on a complicity theory. See, e.g., Etcheverry v. State, 107 Nev. 782, 784-85, 821 P.2d 350, 351 (1991) (holding that the failure to object or request a special instruction precludes appellate review). However, at trial, Dean Witter did generally object to the giving of any punitive damage instruction on the grounds that it was unconstitutional and not supported by the evidence. In so doing, Dean Witter preserved the right to argue on appeal that there was not substantial evidence in support of the punitive damage claim based on the theory given at trial, namely malice and vicarious liability. The jury was instructed on a vicarious liability theory via jury instruction 15: Dean Witter Reynolds, Inc., is a corporation and as such can act only through its officers and employees. Any act or omission of an officer or employee within the scope of authority or employment is in the law the act or omission of such corporation. This instruction properly set forth a theory of punitive liability under Nevada law as it existed at the time of

trial. 15 See Ramada, 101 Nev. at 826, 711 P.2d at 2 (implying that either a vicarious or complicity theory of principal liability was appropriate). We therefore will review this matter to determine whether there was substantial evidence of vicarious liability. [Headnote 14] In the instant case, we conclude that there was substantial evidence to support a finding that Dean Witter was vicariously liable for the malicious acts of Brooks and House. First, Brooks was in charge of the daily affairs of the Stateline branch, held both the branch office manager license and a registered principal license, and was acting within the scope of his authority when he participated in the notarization of the full trading authorization. Second, +RXVHZDVVHQLRUYLFHSUHVLGHQWRI'HDQ:LWWHUDQGDFWHGLQWKHVFRSHRIDXWKRULW\

DVDPDQDJHURI(OIUHGD VDFFRXQW __________ 15

We note that in 1998, after the trial of this matter, we rejected the application of “vicarious,” punitive liability and instead adopted the Restatement (Second) of Torts “complicity” theory of punitive liability. See Bellegarde, 114 Nev. at 610-11, 958 P.2d at 1214. We also note that, given the state of our punitive damage law as of the trial of this case, there was no ground upon which the district court could reject instructions based upon either theory. We conclude, however, based upon the analysis below, that a review of this case under a complicity theory of liability would not change the result. ........................................ Ð116 Nev. 598, 614 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð House was senior vice president of Dean Witter and acted in the scope of authority as a manager of Elfreda's account. Accordingly, in interpreting the evidence in a light most favorable to the Estate, we conclude that there was clear and convincing evidence in the record to support the jury's finding that Dean Witter and House were liable for maliciously conspiring with Jack Gardner to convert Elfreda's securities. Dean Witter and House contend that their acts were negligent at best, and that they were only complying with the requests by a person with authority to act on behalf of Elfreda Gardner. However, the record supports a finding that House and/or Brooks either forged or knew that Jack Gardner forged Elfreda's signature on the active asset account documents, thus giving him the power to transfer several million dollars worth of Elfreda's assets from the active asset account. B. Excessiveness as a matter of law NRS 42.005(1)(a) limits the amount of punitive damages to three times the compensatory damages in instances where such damages are equal to or exceed $100,000.00. [Headnotes 15, 16] Further, in determining whether a punitive damages award is excessive, we consider numerous factors including the defendant's financial position, culpability, and the extent to which this culpability offends one's sense of justice. See Wohlers v. Bartgis, 114 Nev. 1249, 1267, 969 P.2d 949, 962 (1998) (citing Ace Truck v. Kahn, 103 Nev. 503, 509-10, 746 P.2d 132, 136-37 (1987)). Finally, this court considers the gravity of the injury suffered by the plaintiff and the means necessary to deter future similar conduct. See id. [Headnote 17] In the case at bar, we see nothing excessive about the $6,000,000.00 punitive award against Dean Witter. These awards are well within the statutory parameters of NRS 42.005, which would have permitted an award not to exceed $7,800,000.00, three times the compensatory damages award of $2,600,000.00. Further, these awards did not annihilate either Dean Witter or House; both awards constituted a relatively small portion of the net

worths of these parties. Finally, there was substantial evidence, as discussed above, that proved misconduct resulting in the substantial depletion of the multi-million-dollar estate of their mentally and physically incompetent client. 16 __________ 16

We disagree with Dean Witter and House that their conduct was analogous to that of the corporate defendant in BMW v. Gore, 517 U.S. 559 (1996). ........................................ Ð116 Nev. 598, 615 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð C. Application of equitable offsets The district court applied equitable offsets to the compensatory damage award ultimately reducing the award to zero. Because punitive damages cannot be awarded unless compensatory damages are also awarded, 17

Dean Witter contends that the offsets removed the condition precedent to an award of punitive damages, to wit: an “award” of compensatory damages. We disagree. [Headnote 18] First, our ruling with regard to the equitable offsets restores the compensatory damage “award.” Second, we conclude that the term “award” in NRS 42.005 refers to an award of actual damages by the jury, not the net award calculated after equitable offsets. See Exxon Corp. v. Yarema, 516 A.2d 990 (Md. Ct. Spec. App. 1986). This is based upon the public policy consideration that a tortfeasor legally subject to civil punishment via punitive damages should not escape sanction, or have that sanction reduced, because of the actions of a third party. Thus, restitution made by a third party is irrelevant to whether a defendant's conduct merits punishment. In the instant case, the jury awarded compensatory damages. Thus, appellants satisfied the rule requiring proof of actual loss before punitive damages may be recovered. Post-judgment interest [Headnote 19] Elfreda's estate is entitled to post-judgment interest on the punitive damage award. We recently modified our previous ruling in Ainsworth v. Combined Insurance Company, 104 Nev. 587, 763 P.2d 673 (1988), and determined that post-judgment interest should accrue on an award for punitive damages, to compensate the plaintiff for the loss of the use of the money awarded in the judgment until paid. See Wohlers v. Bartgis, 114 Nev. 1249, 969 P.2d 949 (1998); Powers v. United Servs. Auto. Ass'n, 114 Nev. 690, 962 P.2d 596 (1998), modified on other grounds, 115 Nev. 38, 979 P.2d 1286 (1999). CONCLUSION We conclude that the minimum compensatory damages sustained by the estate was $4,173,079.00 plus interest, that the evidence of restitution payments was improperly admitted, and that the imposition of equitable offsets was improper as a matter of law. We therefore reverse that portion of the judgment below perWDLQLQJ

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See Sprouse v. Wentz, 105 Nev. 597, 781 P.2d 1136 (1989); City of Reno v. Silver State Flying Serv., 84 Nev. 170, 438 P.2d 257 (1968); and Novack v. Hoppin, 77 Nev. 33, 359 P.2d 390 (1961).

........................................ Ð116 Nev. 598, 616 (2000) Evans v. Dean Witter Reynolds, Inc.Ð Ð taining to compensatory damages and remand this matter to the district court for further proceedings consistent with this opinion. More particularly, we instruct the district court to amend the judgment via additur to reflect total compensatory damages sustained in the amount of $4,173,079.00 plus interest. See Drummond v. Mid-West Growers, 91 Nev. 698, 705, 542 P.2d 198, 203 (1975) (this court has set forth a two-prong test for additur: (1) whether the damages are clearly inadequate, and (2) whether the case would be a proper one for granting a motion for a new trial limited to damages). Finally, we affirm that portion of the district court's judgment awarding punitive damages, and we further instruct the district court to calculate the post-judgment interest on the award. Rose, C. J., Young, Shearing, Agosti, Leavitt and Becker, JJ., concur.

____________

Ð116 Nev. 616, 616 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð Ð DR PARTNERS, a Nevada General Partnership, dba LAS VEGAS REVIEW JOURNAL, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF CLARK COUNTY, NEVADA; YVONNE ATKINSON GATES, Chairperson; LORRAINE HUNT, ERIN KENNY, MARY J. KINCAID, MYRNA WILLIAMS, BRUCE WOODBURY and LANCE MALONE, in Their Representative Capacities; DALE ASKEW, Clark County Manager, in His Representative Capacity, and RANDY WALKER, Director of Aviation, in His Representative Capacity, Respondents. No. 31999 August 18, 2000

6 P.3d 465

Appeal from a district court order denying appellant's petition for a writ of mandamus compelling respondents to disclose Clark County officials' cellular telephone records. Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge. Newspaper petitioned for a writ of mandamus to compel the disclosure of billing statements documenting county officials' use of publicly owned cellular telephones. The district court denied the petition. Newspaper appealed. The supreme court, Maupin, J., held that: (1) as a matter of first impression, the common-law deliberative process privilege was inapplicable, and (2) disclosure would not violate the privacy rights of persons with unlisted telephone numbers that were shown on the billing statements. Reversed and remanded. Campbell & Williams, Las Vegas, for Appellant. ........................................ Ð116 Nev. 616, 617 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð Stewart L. Bell, District Attorney, and Mary-Anne Miller, Deputy District Attorney, Clark County, for Respondents. JoNell Thomas, Las Vegas, for Amicus Curiae the Nevada Press Association.

1. Records. The “official information” privilege for public officers did not protect county officers from newspaper's request under the Public Records Act for billing statements documenting use of publicly owned cellular telephones by county officers. The newspaper was not seeking testimony from the public officers, and the officers did not show that any particular public interest would suffer as a result of full compliance with the request. NRS 49.285, 239.005 et seq. 2. Mandamus. A writ of mandamus is available to control an arbitrary or capricious exercise of discretion. 3. Mandamus. A district court's decision to grant or deny a petition for a writ of mandamus is reviewed by the supreme court under an abuse of discretion standard. 4. Mandamus. Mandamus was the appropriate procedural remedy to compel county's production, at the request of newspaper, of records documenting county officials' use of publicly owned cellular telephones. NRS 239.011. 5. Records. The purpose of the Public Records Act is to ensure the accountability of the government to the public by facilitating public access to vital information about governmental activities. NRS 239.005 et seq. 6. Records. Billing statements documenting county officials' use of publicly owned cellular telephones were “public records,” within meaning of Public Records Act. NRS 239.005 et seq. 7. Records. The public official or agency bears the burden under the Public Records Act of establishing the existence of privilege as to public records, based upon confidentiality. NRS 239.005 et seq. 8. Witnesses. Privileges, whether creatures of statute or the common law, should be interpreted and applied narrowly. 9. Records. Unless a statute provides an absolute privilege against disclosure of public records under the Public Records Act, the burden of establishing the application of a privilege based upon confidentiality can only be satisfied pursuant to a balancing of interests. NRS 239.005 et seq. 10. Records. Any limitation on the general disclosure requirements of the Public Records Act must be based upon a balancing or “weighing” of the interests of non-disclosure against the general policy in favor of open government. NRS 239.010. 11. Witnesses. The common-law deliberative process privilege permits government decision-makers to engage in the frank exchange of opinions and recomPHQGDWLRQV QHFHVVDU\ WR WKH IRUPXODWLRQ RI SROLF\ ZLWKRXW EHLQJ LQKLELWHG E\ IHDU RI ODWHU SXEOLF

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........................................ Ð116 Nev. 616, 618 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð

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mendations necessary to the formulation of policy without being inhibited by fear of later public disclosure, and therefore protects materials or records that reflect a government official's deliberative or decision-making process. Witnesses. Purely factual matters are not protected under the common-law deliberative process privilege for government officials, unless inextricably intertwined with the policy-making process. Witnesses. To qualify for non-disclosure under the common-law deliberative process privilege for government officials, the requested documents must be both predecisional and deliberative. Witnesses. To establish that documents were predecisional, as element for the common-law deliberative process privilege for government officials, the officials had to identify an agency decision or policy to which the documents contributed. Witnesses. To qualify as part of a “deliberative” process, as element of the common-law deliberative process privilege for government officials, the materials must consist of opinions, recommendations, or advice about agency policies. Witnesses. The names of persons with whom government officials have consulted are not protected from disclosure under a common-law deliberative process privilege. Records. The common-law deliberative process privilege for government officials did not preclude disclosure under the Public Records Act of billing statements documenting county officials' use of publicly owned cellular telephones. The billing statements revealed nothing that would interfere with any deliberative process of government, and the county officials had not been compelled to conduct business over the telephone system, for which the billings, as a matter of course, included the local and long distance numbers of the parties to the telephonic conversations. NRS 239.005 et seq. Records.

The weighing process for the common-law deliberative process privilege for government officials compelled disclosure under the Public Records Act, to newspaper, of billing statements documenting county officials' use of publicly owned cellular telephones. County did not show any particularized need for non-disclosure, and the redacted billing statements provided by county, which omitted the last four digits of every telephone number, prevented the newspaper from determining the extent to which any governmental waste may have occurred. NRS 239.005 et seq. 19. Witnesses. Once the agency demonstrates that documents fit within the deliberative process privilege for government officials, the burden shifts to the party seeking disclosure to demonstrate that its need for the information outweighs the regulatory interest in preventing disclosure. 20. Records. Disclosure under the Public Records Act, to newspaper, of billing statements documenting county officials' use of publicly owned cellular telephones would not violate privacy rights of persons with unlisted teleSKRQH QXPEHUV WKDW ZHUH VKRZQ RQ WKH

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........................................ Ð116 Nev. 616, 619 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð phone numbers that were shown on the billing statements. There generally was no expectation of privacy, because the act of placing a cellular call to a private citizen placed the number called within the public domain and members of the public who knowingly placed calls to government- issued cellular phones knew that public billings would reflect their unlisted telephone numbers, and the unlisted numbers could be redacted if necessary. NRS 239.005 et seq.

Before the Court En Banc. OPINION By the Court, Maupin, J.: The appellant, DR Partners, a Nevada General Partnership, dba Las Vegas Review Journal (the “Newspaper”), operates a newspaper of general circulation in Clark County, Nevada. The respondents are the Clark County Board of Commissioners, individual members of that board, and two managerial employees of county government (the “County”). The district court denied the Newspaper's petition for writ of mandamus seeking disclosure of unredacted records documenting use of publicly owned cellular telephones. It did so under the County's claim of confidentiality based upon a “deliberative process” privilege. The Newspaper seeks reversal of this ruling. STATEMENT OF FACTS AND PROCEDURAL HISTORY On February 9, 1998, the Newspaper requested that the county manager of Clark County produce copies of records documenting the use, over a two-year period, of publicly owned cellular telephones issued to the individual respondents. This request was made in connection with the Newspaper's investigation into possible government waste, and the extent of influence over public officials by private lobbying interests. The County partially complied with the request by providing billing statements for the time period in question in edited form, i.e., with the last four digits of the listed incoming and outgoing telephone numbers redacted. The documents produced reflected all calls made on a monthly basis, whether the calls were local or long distance, the length of each call, whether the calls were incoming or outgoing, whether the calls were made to or from government land lines, the charges for each call and the total monthly expenses. The redactions prevented any person reviewing the documents from determining the identity of the individuals with whom cellular telephone conversations occurred, or whether numbers with non-government prefixes reflected personal or government business use. The County claimed that the redacted information was subjectWRFODLPVRIFRQILGHQWLDOLW\RQWKUHH

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Ð116 Nev. 616, 620 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð to claims of confidentiality on three grounds: first, the records were subject to a “deliberative process” privilege; second the disclosures were protected under an “official information” privilege, see NRS 49.285; and third, the disclosures sought would violate individual privacy rights of persons whose telephone numbers were listed on the billing statements. On February 17, 1998, the Newspaper filed a petition in the district court for issuance of a writ of mandamus compelling the County to produce unedited records. See NRS 239.011. The district court denied the petition, and the Newspaper timely appealed. For the reasons stated below, we reverse the district court's order and direct that the district court compel the disclosure of complete unredacted records documenting use of publicly owned cellular telephones. DISCUSSION [Headnote 1] The County argues that the ruling below should be affirmed based upon statutory and common-law claims of confidentiality. In substance, the only issue determined by the district court was whether a deliberative process privilege protects the County from disclosing the redacted portions of the cellular telephone records. In its written decision, the district court impliedly rejected the official information privilege asserted under NRS 49.285, and did not reach the issue of whether individual privacy rights were violated. Because the district court refused to find the presence of a statutory privilege, the primary issue to be determined in this matter is whether a deliberative process privilege applies as found by the district court. 1 Because we conclude that such a privilege is not implicated in this instance, we will also discuss the related issue of whether privacy considerations protect the County from disclosure of the unredacted records. [Headnotes 2-4] A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust or station, see NRS 34.160, or to control an arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. __________ 1

We note in the margin our agreement with the district court that the claim of “official information” privilege under NRS 49.285 was “tortured” and conclude that the claim was completely without merit. NRS 49.285 provides that “[a] public officer shall not be examined as a witness as to communications made to him in official confidence, when the public interests would suffer by disclosure.” First, no testimony was sought. Second, no showing was made by the County below that any particular public interest would suffer as a result of full compliance with the public records request in this case. ........................................ Ð116 Nev. 616, 621 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). A district court's decision to grant or deny a writ petition is reviewed by this court under an abuse of discretion standard. See County of Clark v. Doumani, 114 Nev. 46, 53, 952 P.2d 13, 17 (1998). Mandamus is the appropriate procedural remedy to compel production of the public records sought in this case. See, e.g., Donrey of Nevada v. Bradshaw, 106 Nev. 630, 798 P.2d 144 (1990). [Headnotes 5, 6] The Nevada Public Records Act provides that “[a]ll public books and public records of a governmental entity, the contents of which are not otherwise declared by law to be confidential, must be open at all times during office hours to inspection by any person.” NRS 239.010. The purpose of the Act is to ensure the

accountability of the government to the public by facilitating public access to vital information about governmental activities. Neither party to this appeal disputes that the records at issue are public records under the Act. This view is consistent with the prevailing weight of legal authority. See, e.g., City of Elkhart v. Agenda: Open Government, Inc., 683 N.E.2d 622 (Ind. Ct. App. 1997); PG Publishing Company v. County of Washington, 638 A.2d 422 (Pa. Commw. 1994); Dortch v. Atlanta Journal, 405 S.E.2d 43 (Ga. 1991). [Headnotes 7-9] The public official or agency bears the burden of establishing the existence of privilege based upon confidentiality. It is well settled that privileges, whether creatures of statute or the common law, should be interpreted and applied narrowly. See Ashokan v. State, Dept. of Ins., 109 Nev. 662, 668, 856 P.2d 244, 247 (1993) (citing United States v. Nixon, 418 U.S. 683, 710 (1974)). Unless a statute provides an absolute privilege against disclosure, the burden of establishing the application of a privilege based upon confidentiality can only be satisfied pursuant to a balancing of interests: In balancing the interests . . . , the scales must reflect the fundamental right of a citizen to have access to the public records as contrasted with the incidental right of the agency to be free from unreasonable interference. . . . The citizen's predominant interest may be expressed in terms of the burden of proof which is applicable in this class of cases; the burden is cast upon the agency to explain why the records should not be furnished. MacEwan v. Holm, 359 P.2d 413, 421-22 (Or. 1961); see Bradshaw, 106 Nev. at 635-36, 798 P.2d at 147-48. ........................................ Ð116 Nev. 616, 622 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð [Headnote 10] In Bradshaw, this court, at least by implication, recognized that any limitation on the general disclosure requirements of NRS 239.010 must be based upon a balancing or “weighing” of the interests of non-disclosure against the general policy in favor of open government. Bradshaw specifically held that, in the absence of an express statutory privilege against non-disclosure, certain criminal investigative reports prepared by a public law enforcement agency were subject to disclosure pursuant to the balancing test. The Bradshaw court did not elaborate on the existence or scope of common-law privileges protecting disclosure of public records. The claim of deliberative process privilege As noted, the district court concluded that the records at issue were subject to partial non-disclosure under a common-law “deliberative process privilege.” It then applied the Bradshaw balancing test and ruled that the production of redacted documents did not violate the Public Records Act. The County did not, in aid of the balancing process, provide the district court with particularized evidence showing that any interest in non-disclosure outweighed the general presumption in favor of public access. Noting apparent inconsistencies in the case law from around the country, and faced with a case of first impression in this state, the district court applied decisional law from California. See Times Mirror Co. v. Superior Ct., 813 P.2d 240, 242 (Cal. 1991) (discussing the rationale behind the deliberative process privilege); Rogers v. Superior Court, 23 Cal. Rptr. 2d 412 (Ct. App. 1993) (holding that cellular telephone bills of the Burbank City Council and other City employees were subject to the deliberative process privilege). Having considered the various approaches taken by other courts, and having weighed the public policy considerations inherent in our Public Records Act, we respectfully disagree with the district court and conclude that these records are not protected under a deliberative process privilege. [Headnotes 11, 12] The deliberative process or “executive” privilege is one of the traditional mechanisms that provide protection to the deliberative and decision-making processes of the executive branch of government and is preserved in

“Exemption 5” of the Freedom of Information Act, 5 U.S.C. § 552 (1994). This privilege “shields from mandatory disclosure ‘inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]' ” Paisley v. C.I.A., 712 F.2d 686, 697 (D.C. Cir. 1983) (quoting 5 U.S.C. § E   ........................................ Ð116 Nev. 616, 623 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð 552(b)(5)). It also permits “agency decision-makers to engage in that frank exchange of opinions and recommendations necessary to the formulation of policy without being inhibited by fear of later public disclosure,” id. at 698, and, thus, protects materials or records that reflect a government official's deliberative or decision- making process. See EPA v. Mink, 410 U.S. 73, 89 (1973). The privilege is not, at least in general, designed to protect purely factual matters. Id. More particularly, purely factual matters are not protected unless “inextricably intertwined” with the policy-making process. See Soucie v. David, 448 F.2d 1067, 1077-78 (D.C. Cir. 1971). But see National Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114, 1118-19 (9th Cir. 1988); Wolfe v. Department of Health and Human Services, 839 F.2d 768, 774 (D.C. Cir. 1988); Dudman Communications v. Dept. of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987); Russell v. Department of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); Ryan v. Department of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980); Lead Industries Ass'n v. OSHA, 610 F.2d 70, 85-86 (2d Cir. 1979); Montrose Chemical Corporation of California v. Train, 491 F.2d 63, 67-71 (D.C. Cir. 1974). 2 [Headnotes 13-15] To qualify for non-disclosure under this privilege, the requested documents must be both predecisional and deliberative. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-54 (1975); Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (9th Cir. 1975). To establish that the phone records in this case are “predecisional,” the County must identify an agency decision or policy to which the documents contributed. See Senate of Puerto Rico v. U.S. Dept. of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987). To qualify as part of “deliberative” process, the materials requested must consist of opinions, recommendations, or advice about agency policies. In Paisley v. C.I.A., 712 F.2d 686, 698 (D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984), the United States Court of Appeals for the District of Columbia explained the analysis as follows: To ascertain whether the documents at issue are predecisional, the court must first be able to pinpoint an agency decision or policy to which these documents contributed. The agency bears the burden of establishing the character of the decision, the deliberative process involved, and the role played by the documents in the course of that process. __________ 2

National Wildlife, Wolfe, Dudman, Russell, Ryan, Lead Industries and Montrose Chemical all found inextricable interconnection between documents sought and the deliberative process, i.e., none of the materials sought in those cases would have been discoverable in the context of ordinary litigation discovery. ........................................ Ð116 Nev. 616, 624 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð .... If, on remand, the District Court finds that the documents did play a role in some agency decision making process, the documents must yet be shown to be “deliberative” to be protected under Exemption 5. It is well established that purely factual material which is severable from the opinion or policy advice in a document is generally not protected and must be disclosed in a FOIA suit.

Id. at 698-99; see also Senate of Puerto Rico, 823 F.2d at 585. [Headnote 16] The County asserts that the factual nature of the documents requested should not be the primary focus of inquiry under the Public Records Act. Rather, the County contends that this court must center any analysis on “ ‘whether the disclosure of materials would expose an agency's decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.' ” Times Mirror, 813 P.2d at 250 (quoting Dudman Communications, 815 F.2d at 1568). The court in Times Mirror observed that “[d]isclosing the identity of persons with whom the Governor has met and consulted . . . would indicate which interests or individuals he deemed to be of significance with respect to critical issues of the moment. The intrusion into the deliberative process is patent.” Id. at 251. Thus, the County argues under Times Mirror and Rogers (applying Times Mirror to public cellular telephone records) that a particularized evidentiary showing was unnecessary to establish application of the deliberative process privilege. Id. We disagree with the premise of the California decisions and conclude that the names of persons with whom government officials have consulted are not protected from disclosure under a deliberative process privilege. See Van Bourg, Allen, Weinberg & Roger v. N.L.R.B., 751 F.2d 982, 985 (9th Cir. 1985) (inferentially stating that Exemption 5 to the Freedom of Information Act does not protect documents prepared for the government by outside consultants who do not have a formal relationship with the government); County of Madison, N.Y. v. U.S. Dept. of Justice, 641 F.2d 1036 (1st Cir. 1981) (approving principle that interested outside parties are not covered by Exemption 5 to FOIA). We agree with the proposition that identification of persons, retained or otherwise, who participate in policy formation and are somehow identified in the public written record, does not implicate the disclosure of factual information inextricably intertwined with the decision or policy-making processes of government. We also agree that “[f]ew outside consultants would be discouraged from providing recommendations by the mere prospect that their namesZRXOGEHGLVFORVHG ........................................ Ð116 Nev. 616, 625 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð would be disclosed, without the content of their advice” and that “there is . . . a public interest in knowing who is being consulted by the Government and contributing to its decisions.” Note, The Freedom of Information Act and the Exemption for Intra-Agency Memoranda, 86 Harv. L. Rev. 1047, 1065-66 (1973). [Headnote 17] Records kept with regard to use of cellular telephones issued to county officials, telephones that are issued as a matter of convenience, reveal nothing that would interfere with any deliberative process of government. The public officials in this case were not compelled to conduct business over a phone system where the billings, as a matter of course, include the local and long distance numbers of the parties to the telephonic conversations. We also conclude that Times Mirror and Rogers are distinguishable from the present matter. Times Mirror enforced executive privilege in the context of a request for copies of Governor George Deukmejian's appointment calendars and schedules for the preceding five-year period. We agree that such materials are protected under notions of executive privilege and note that, within the special facts of that case, the California Supreme Court performed a balancing test and concluded that the public interest in non-disclosure outweighed the public interest in disclosure under the California public records law. In Rogers, the California Court of Appeals simply extended the holding in Times Mirror to the public records kept in connection with public cellular telephone use. Further, Rogers did not reach the issue of whether disclosure of cellular telephone records could be justified in connection with an investigation of possible government waste. Finally, neither Rogers nor Times Mirror hold that disclosure of records of this nature is subject to blanket protection. Other courts have held publicly owned cellular telephone records subject to disclosure. See City of Elkhart v. Agenda: Open Government, Inc., 683 N.E.2d 622 (Ind. Ct. App. 1997); PG Publishing Company v. County of Washington, 638 A.2d 422 (Pa. Commw. 1994); Dortch v. Atlanta Journal, 405 S.E.2d 43 (Ga. 1991). While Elkhart, PG Publishing and Dortch do not resolve public disclosure of these records under a deliberative

process privilege, they acknowledge the public nature of these records and the general presumption in favor of public disclosure, subject only to a particularized showing of risks compelling non-disclosure. Further, as is true with regard to the materials sought in this case, the records in Elkhart, PG Publishing and Dortch fell within no statutory protection against disclosure. In the proceedings below, the County never identified the particular policies or decisions that could result from any of the cellular telephone calls documented in the redacted records. The &RXQW\ DOVR IDLOHG WR

GHPRQVWUDWHWKDWWKHUHFRUGVUHYHDOHGDQ\RSLQLRQ ........................................ Ð116 Nev. 616, 626 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð County also failed to demonstrate that the records revealed any opinion, recommendation, or advice held by or given to any of the individual respondents. Thus, the information requested is purely factual in nature and does not reveal the content of any deliberative processes of the County. Further, as noted, no showing was made that the factual material is “inextricably intertwined” with any policy-making process. [Headnote 18] We also conclude that any weighing process on this record would compel disclosure of the unredacted documents. In the proceedings below, payment for private use of governmental cellular phone service by government officials was not properly accounted for in the records produced by the County. This lack of accounting prevented the Newspaper from determining the extent to which any governmental waste may have occurred. The County also failed to demonstrate that the records, as they were disclosed, provided an exact accounting of government expenditures for what may have been personal calls. Rather, the County concedes that “ball park figures” were utilized to determine the proper amounts for which the individual respondents reimbursed the County for personal calls. Further, the records as released failed to establish which conversations were entitled to confidentiality. We therefore hold that the County did not make a showing that the requested records implicate a deliberative process privilege. These records contain only numbers and billing information. They contain no information as to topics discussed or advice or opinions exchanged between the parties to the telephone calls. [Headnote 19] We also note that a deliberative process privilege, even when applicable, is conditional: Once the court determines that a document is privileged, it must still determine whether the document should be withheld. Unlike some other branches of the executive privilege, the deliberative process privilege is a qualified privilege. Once the agency demonstrates that documents fit within it, the burden shifts to the party seeking disclosure. It must demonstrate that its need for the information outweighs the regulatory interest in preventing disclosure. Capital Info. Group v. Office of the Governor, 923 P.2d 29, 36 (Alaska 1996) (quoting Weaver & Jones, The Deliberative Process Privilege, 54 Mo. L. Rev. 279, 315 (1989)). Here, because the County never demonstrated by evidentiary proofs that a deliberative process privilege was implicated by the disclosure of the unredacted records, the burden never shifted to the Newspaper. ........................................ Ð116 Nev. 616, 627 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð Further, the absence of such proof prevented the district court from engaging in the weighing process mandated by Bradshaw.

Privacy considerations [Headnote 20] In a related argument, not based on privilege, the County contends that disclosure of unredacted records would violate the privacy of persons with unlisted telephone numbers reflected on the billing statements. We conclude that, in general, there is no expectation of privacy in these billings. First, public officials who make calls to unlisted numbers or who provide their cellular numbers to members of the public know that the billings are a public record. Thus, the act of placing a cellular call to a private citizen places the number called within the public domain. Second, members of the public who knowingly place calls to government-issued cellular phones know that the public billings will reflect their unlisted telephone numbers. Third, to the extent that exigent circumstances are shown to justify non-disclosure, a district court reviewing such a claim is required to apply the Bradshaw balancing test. This issue is addressed immediately below. The County registers its public policy concern that private numbers of public officials, police and other persons whose privacy, and possibly safety, might be compromised will be forced into the public record. The County asks us to consider the reasoning of the dissent in Dortch: The real result of today's opinion is that any member of the general public, including convicted felons, may access the personal unlisted telephone numbers of our citizens, including police officers and their families. All that is required is that a person's home receive a call from a city-subscribed cellular phone. This is especially troubling in light of the fact that many police officers order and pay for unpublished telephone numbers in order to protect their families from harassment. Today's opinion effectively denies these officers, and others, their right to privacy and frustrates their attempts to shield their families and homes from intrusion. Additionally, giving the public, through the release of the city's cellular telephone numbers, the means to call city officials at will and at the city's expense serves no conceivable purpose. The city has already complied with the Open Records Act by releasing the names of the official users of each cellular telephone and an accounting of the telephone expenses of each of those individuals. This adequately provides the public with the means to “evaluate the expenditure of public funds.” Revealing the city's cellular telephone numbers will do QRWKLQJ WR LPSURYH WKH SXEOLF V

DELOLW\ WR FRPPXQLFDWH ZLWK WKH JRYHUQPHQW RU WR PRQLWRU JRYHUQPHQW H[SHQVHV EXW ZLOO OHDYH FLW\ RIILFLDOV RSHQ WR KDUDVVPHQW DQG WKH FLW\ WUHDVXU\ RSHQ WR XQFKHFNHGFRVWV ........................................ Ð116 Nev. 616, 628 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð nothing to improve the public's ability to communicate with the government or to monitor government expenses but will leave city officials open to harassment and the city treasury open to unchecked costs. . . . The police have even more pressing reasons to keep their cellular telephone numbers confidential. . . . Allowing the general public, including pranksters, to clog these confidential lines may seriously impair [police] ability to communicate, respond to calls, and insure the public's safety. Dortch, 405 S.E.2d at 46-47 (citation omitted). Expanding on the concerns expressed in the dissent in Dortch, the County raises the point that “inside” or “back lines” of government offices, the cellular telephone numbers themselves, and the unlisted home telephone numbers of county employees who are contacted after hours will be subject to disclosure if the Newspaper prevails on this appeal. We conclude that the County has not laid an adequate predicate on this record for non-disclosure on this basis. First, these concerns are easily addressed by the balancing test adopted by this court in Bradshaw. Second, as noted, no offer of proof of any kind was submitted to the district court for the purpose of balancing important or critical privacy interests against the presumption in favor of public disclosure of these redacted records. 3 Rather, the County seeks to meet its burden by voicing non-particularized hypothetical concerns. See Star Pub. Co. v. Parks, 875 P.2d 837, 838 (Ariz. Ct. App. 1993) (observing that “it is insufficient

[for the public entity] to hypothesize cases where secrecy might prevail and then contend that the hypothetical controls all cases”). CONCLUSION We conclude that the district court erred in its denial of the Newspaper's petition for mandamus relief. While a deliberative process or “executive” privilege against certain disclosures exists in certain contexts, such a privilege is not implicated here. Thus, we defer any discussion of the scope of the deliberative process for an appropriate case. Further, even if a deliberative process privilege were found to apply, we conclude that public policy justifications for non-disclosure urged by the County below do not outweigh the presumption in favor of full disclosure in this instance. We therefore reverse the district court's order denying the1HZVSDSHU VZULWSHWLWLRQDQGUHPDQG

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To the extent that disclosure of an unlisted number might raise serious privacy concerns, the district court, applying the balancing test, could require the County to divulge the identity of the caller but not his or her unlisted telephone number. ........................................ Ð116 Nev. 616, 629 (2000) DR Partners v. Bd. of County Comm'rsÐ Ð Newspaper's writ petition and remand this matter to the district court for issuance of a writ of mandamus compelling the County to provide the Newspaper with unredacted copies of the requested records and for an award to the Newspaper of attorney's fees and costs pursuant to NRS 239.011. 4 Rose, C. J., Young, Shearing, Agosti, Leavitt and Becker, JJ., concur.

____________

Ð116 Nev. 629, 629 (2000) Washoe County Dist. Attorney v. Dist. Ct.Ð Ð Ð OFFICE OF THE WASHOE COUNTY DISTRICT ATTORNEY, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF WASHOE and THE HONORABLE DEBORAH SCHUMACHER, District Judge, Respondents, and DAVID L. BOLNICK, ESQ., and ALBERT McKEEL, Real Parties in Interest. No. 35125 August 18, 2000

5 P.3d 562

Original petition for a writ of mandamus or prohibition challenging an order of the district court imposing NRCP 11 sanctions against the Washoe County District Attorney's Office in an action seeking to enforce a child support order. District attorney's office filed petition for writ of mandamus, challenging order of the district court, which imposed NRCP 11 sanctions against the office for failing to discontinue action to enforce out-of-state child

support order. The supreme court held that: (1) writ of mandamus was an available remedy, (2) manifest abuse of discretion standard governed review of district court's NRCP 11 order, (3) arrears did not need to be reduced to a sum certain judgment before enforcement could be sought, and (4) district attorney's office did not have duty to discontinue enforcement action after district court ruled that the other state had continuing exclusive jurisdiction over the support order. Petition granted. __________ 4

NRS 239.011 provides, as follows: If a request for inspection or copying of a public book or record open to inspection and copying is denied, the requester may apply to the district court in the county in which the book or record is located for an order permitting him to inspect or copy it. The court shall give this matter priority over other civil matters to which priority is not given by other statutes. If the requester prevails, he is entitled to recover his costs and reasonable attorney's fees in the proceeding from the governmental entity whose officer has custody of the book or record. ........................................

Ð116 Nev. 629, 630 (2000) Washoe County Dist. Attorney v. Dist. Ct.Ð Ð Richard A. Gammick, District Attorney, and Susan D. Hallahan and Laurence B. Irwin, Deputy District Attorneys, Family Support Division, Washoe County, for Petitioner. David L. Bolnick, Reno, for Real Parties in Interest. 1. Mandamus. A writ of mandamus will issue to control a court's arbitrary or capricious exercise of discretion. NRS 34.160. 2. Mandamus. The supreme court has original jurisdiction to issue writs of mandamus. Const. art. 6, § 4. 3. Mandamus. District attorney's office, as a non-party in underlying proceedings to enforce out-of-state child support order, did not have right to appeal district court's order imposing NRCP 11 sanctions against the office, and thus writ of mandamus was an available remedy. NRS 34.160; NRAP 3A(a); NRCP 11. 4. Mandamus. In context of writ of mandamus proceeding initiated by district attorney's office, the supreme court would review district court's decision to impose NRCP 11 sanctions against district attorney's office, in underlying action to enforce out-of-state child support order, under a manifest abuse of discretion standard, rather than under the abuse of discretion standard. NRCP 11. 5. Appeal and Error. On direct appeal, an award of attorney's fees under NRCP 11 is reviewed under the abuse of discretion standard. NRCP 11. 6. Mandamus. Mandamus will not lie to control discretionary action, unless discretion is manifestly abused or is exercised arbitrarily or capriciously. NRS 34.160. 7. Parent and Child. Arrears owed by obligor under out-of-state child support order did not need to be reduced to a sum certain judgment before district attorney's office could seek enforcement of the order in Nevada. NRS 125B.140(1)(a). 8. Parent and Child. District attorney's office did not have duty to discontinue action to enforce out-of-state child support order after district court ruled that the other state had continuing exclusive jurisdiction over the support order. Statutes specifically authorized enforcement of the arrears in Nevada, regardless of support order's state of origin. Social Security Act, § 466(a)(9), as amended, 42 U.S.C. § 666(a)(9); NRS 125B.140(1)(a), 130.015(1). 9. Parent and Child. District attorney's office did not act in violation of NRCP 11 when it sought to enforce out-of-state child support order, and thus district court manifestly abused its discretion in ordering the office to pay obligor's attorney's fees and costs. District attorney's office properly relied on affidavit of child support arrears from other state's office of child support enforcement, properly responded to enforcement request and properly sought to enforce the support order in Nevada. Social Security Act, § 466(a)(9), as amended, 42 U.S.C. § 666(a)(9); NRS 125B.140(1)(a), 130.015(1); NRCP 11.

........................................

Ð116 Nev. 629, 631 (2000) Washoe County Dist. Attorney v. Dist. Ct.Ð Ð Before the Court En Banc. OPINION Per Curiam: In a case brought by the district attorney to enforce a Washington child support order in Nevada, the district court imposed NRCP 11 sanctions against the district attorney for failing to discontinue enforcement of the support order after the district court's previous ruling that Washington had continuing exclusive jurisdiction to adjudicate the arrearage amount. The district attorney now contends that the NRCP 11 order is legally insufficient and that the district court misinterpreted existing law in concluding that NRCP 11 was violated. We conclude that the district court manifestly abused its discretion in imposing NRCP 11 sanctions against the district attorney, because it based the order of sanctions on an erroneous view of the law governing enforcement of out-of-state child support orders. We also conclude that the conduct of the district attorney in initiating and continuing the enforcement action was in conformity with NRS 125B.140(1)(a), NRS 130.015(1) and 42 U.S.C. § 666(a)(9). FACTS Bonnie G. Davis (“obligee”) and real party in interest Albert H. McKeel (“obligor”) were divorced pursuant to a Decree of Dissolution (“divorce decree” and “support order”) entered in Washington state, where obligee and obligor were residents. The decree ordered obligor to pay child support to obligee of $150 per month for each of their two minor children. Fifteen years later, in 1996, obligor moved from Washington to Nevada. Shortly thereafter, the Everett County, Washington, Office of Child Support Enforcement (“OCSE”) sent a child support enforcement transmittal to petitioner, the Washoe County District Attorney's Office (“district attorney”). This transmittal requested that the Washington divorce decree be registered in Nevada “for enforcement only.” A copy of the divorce decree was included with the transmittal, as well as an affidavit of arrears signed by a representative of Washington OCSE. The affidavit included a monthly itemization from November 1981 to March 1996, showing an accumulation of $42,567 in child support arrears. From this $42,567, Washington OCSE deducted $11,425 as “lost to statute of limitations,” leaving an enforceable total of $30,992 in arrears. The obligor was personally served with a notice of intent to enforce child support, a copy of the divorce decree and the:DVKLQJWRQ2&6(DIILGDYLWRIDUUHDUV ........................................ Ð116 Nev. 629, 632 (2000) Washoe County Dist. Attorney v. Dist. Ct.Ð Ð Washington OCSE affidavit of arrears. The obligor requested a hearing regarding arrearages and his duty of support, claiming that in 1982 or 1983, Washington OCSE stopped accepting his child support payments because the obligee had refused to give Washington OCSE her address or phone number. The obligor also claimed that the obligee informed him in 1986 or 1987 that he had lost all parental rights to one of the children, due to the child's adoption by a step-parent. A hearing was conducted and a court master determined that one child had become emancipated and the other would be emancipated on July 1, 1997. The master recommended that obligor pay ongoing support of $150 per month for the remaining minor child, pursuant to the divorce decree. The arrears issue was not addressed in the court master's recommendation, apparently because of the defenses asserted by the obligor. The obligor did not object to the recommendation, and the district court affirmed the recommendation on December 30, 1996. The ongoing support is not the subject of this petition. Washington OCSE again requested that the district attorney collect arrears that had allegedly accrued pursuant to the divorce decree. After settlement negotiations failed, a hearing was set to address the issue of

collection of arrears. The notice of hearing stated that the purpose of the hearing was only for a “[f]inancial review to determine a payment on arrears,” and did not state that the amount of arrears would be adjudicated. At this hearing, the court master recommended that the district court conclude that Washington had continuing exclusive jurisdiction over the matter and that the obligor was “responsible for all child support and arrears payments due.” However, the court master stated that the issue of whether Nevada should adjudicate the actual amount of the arrears (including an adjudication of obligor's defenses to those arrears) was under submission, to be briefed by the parties. On December 10, 1997, the district court adopted the court master's findings and recommendations. The district attorney filed a brief requesting that the district court decline jurisdiction to determine the amount of arrears. The district attorney argued that the obligor could raise defenses only to the enforcement of the Washington support order, but not to the amount of arrears that may have accrued under that order, because Washington had continuing exclusive jurisdiction to make that determination. The district attorney argued that if the court determined that the obligor had a sufficient defense to enforcement of the child support order (as opposed to a defense to the amount of child support), the court should simply refuse to enforce the order but should not go further in making an adjudication as to the amount of arrears that had accrued under the order. Alternatively,WKHGLVWULFWDWWRUQH\DUJXHGWKDWWKHGLVWULFWFRXUWVKRXOGGHFOLQHMXULVGLFWLRQ

WRDGMXGLFDWHWKHDUUHDUVDPRXQWXQGHUWKHGRFWULQHRIIRUXPQRQFRQYHQLHQV ........................................ Ð116 Nev. 629, 633 (2000) Washoe County Dist. Attorney v. Dist. Ct.Ð Ð the district attorney argued that the district court should decline jurisdiction to adjudicate the arrears amount under the doctrine of forum non conveniens, because everything associated with the case, except the obligor, was still located in Washington. The obligor filed a responsive brief, arguing that the district court did have jurisdiction to determine the amount of child support arrears, if any, that accrued under the Washington divorce decree. The obligor argued that Nevada courts could adjudicate the amount of arrears because the Nevada proceeding was only an enforcement action, not a modification action. The obligor argued that an adjudication by Nevada as to the amount of arrears would not amount to a “modification” under 28 U.S.C. § 1738B(b), which defined modification of a support order as a change that “affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order.” The obligor also argued that forum non conveniens should not be invoked because no factual showing in support of forum non conveniens had been made. One day prior to filing this brief, the obligor filed and registered the Washington divorce decree with the district court. After briefing was completed, the court master recommended that “justice would be better served by having the court in Washington determine the issues, and defenses raised by the [o]bligor, involving the child support arrearage amount.” The court master's recommendation did not expressly state whether it was declining jurisdiction because of forum non conveniens or because it lacked jurisdiction due to Washington's continuing exclusive jurisdiction. The court master recommended that enforcement of the arrears be stayed if the obligor pursued his defenses in the state of Washington. The court master further recommended that if the obligor failed to pursue his defenses in Washington in good faith, and report the same to the district court within two months, wage withholding for the arrears was to commence at the rate of $300 per month. The obligor filed an objection to the court master's recommendations, arguing that if Nevada courts had no authority to adjudicate arrears then they had no authority to require him to assert his defenses in Washington. He argued that the initiation of an action in Washington regarding arrearages was the burden of the moving party, namely, the district attorney and the obligee. The obligor also argued that it was improper to order payment on arrears, when the alleged arrears had never been reduced to judgment by any court. The district court conducted a hearing on the obligor's objections to the court master's recommendations and adopted the recommendation that the district court did not have subject matterMXULVGLFWLRQWRDGMXGLFDWH

ZKHWKHUWKHREOLJRURZHGDQ\FKLOGVXSSRUWDUUHDUDJHV ........................................

Ð116 Nev. 629, 634 (2000) Washoe County Dist. Attorney v. Dist. Ct.Ð Ð jurisdiction to adjudicate whether the obligor owed any child support arrearages. The district court rejected the recommendation that the obligor must pay the alleged arrearages unless he initiated an action in Washington to present his defenses. At the hearing, the district court denied the obligor's oral motion for NRCP 11 sanctions against the district attorney, because the district attorney had not received adequate notice of the motion, but gave the obligor two weeks to file a written motion for NRCP 11 sanctions. The obligor thereafter filed a written motion for NRCP 11 sanctions, arguing that: (1) the district attorney had wrongfully commenced a proceeding in Nevada, rather than in Washington, to reduce the child support arrearages to judgment; (2) the action was frivolous under both Nevada and Washington law, because of the obligor's “uncontroverted” defenses to the payment of arrearages; and (3) the district attorney had failed to concede that the court master's recommendation ordering the obligor to initiate an action in Washington was erroneous. The district attorney responded to the motion for sanctions by arguing that the action was not wrongfully filed, because it was a legitimate attempt merely to enforce the valid Washington support order, unlike the obligor's mischaracterization of the action as an attempt to reduce the arrearages to judgment. The district attorney emphasized that the obligor was the one who wanted the arrearage adjudicated in Nevada, and that it had been the district attorney's position throughout the proceeding that Washington had continuing exclusive jurisdiction to adjudicate the arrears but that Nevada had jurisdiction to enforce the arrears. The district attorney argued that the action was filed within the scope of the Uniform Interstate Family Support Act (NRS 130.0902 to 130.802, inclusive), which recognizes that a state without continuing exclusive jurisdiction may enforce the orders of the state that has continuing exclusive jurisdiction. The district attorney also argued that the existence of the obligor's defenses did not make the action frivolous, but merely made it contested. Finally, the district attorney argued that NRCP 11 imposes no affirmative obligation to concede an erroneous court master's recommendation. The district court entered a written order (“NRCP 11 order”) imposing NRCP 11 sanctions against the district attorney on June 9, 1999. The district court accepted the obligor's argument that the enforcement of arrears should have been discontinued after the district court ruled eighteen months previously that Washington had continuing exclusive jurisdiction over the arrears. At that time, the district court concluded, the district attorney had a duty to stop attempting enforcement and inform Washington that Nevada could not enforce the child support provisions because the REOLJRU KDG D ULJKW WR SUHVHQW KLV GHIHQVHV EHIRUH EHLQJ

UHTXLUHGWRSD\DUUHDUV ........................................ Ð116 Nev. 629, 635 (2000) Washoe County Dist. Attorney v. Dist. Ct.Ð Ð obligor had a right to present his defenses before being required to pay arrears. The district court noted that the district attorney had conceded that Nevada lacked jurisdiction to adjudicate alleged arrears and that the district attorney claimed to have always maintained that Washington had continuing exclusive jurisdiction. However, the district court concluded that this claim was “belied” by the notice of hearing that the obligor received on August 20, 1997, which stated that the purpose of the hearing was to determine a payment on arrears. The district court ordered the district attorney to pay the obligor's attorney's fees and costs of approximately $3,300 incurred during the approximate eighteen months since the district court ruled that Washington had continuing exclusive jurisdiction. The order stated that NRCP 11 had been violated, but did not identify any specific documents in violation of NRCP 11 or which attorneys had signed the documents. Thereafter, the district attorney filed this petition for mandamus or prohibition, requesting that this court direct the district court to vacate its order of sanctions or refrain from enforcing the order. DISCUSSION I.

Writ properly before the court

[Headnotes 1, 2] This court may issue a writ of mandamus to enforce “the performance of an act which the law especially enjoins as a duty resulting from an office . . . or to compel the admission of a party to the use and enjoyment of a right . . . to which he is entitled and from which he is unlawfully precluded by such inferior tribunal.” NRS 34.160. “A writ of mandamus will issue to control a court's arbitrary or capricious exercise of discretion.” Marshall v. District Court, 108 Nev. 459, 466, 836 P.2d 47, 52 (1992) (citing Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981)). This court has original jurisdiction to issue writs of mandamus. See Nev. Const. art. 6, § 4. We decline petitioner's alternate request for a writ of prohibition because in this matter the district court did not act in excess of its jurisdiction. [Headnote 3] Petitioner district attorney, a non-party in the proceeding below, is without right to appeal and therefore is not an aggrieved party within the meaning of NRAP 3A(a). See Albany v. Arcata Associates, 106 Nev. 688, 799 P.2d 566 (1990). Because petitioner cannot appeal the NRCP 11 order of sanctions, petitioner has “no plain, speedy and adequate remedy at law other than to petition this court,” and therefore writ relief is an available remedy. Wardleigh v. District Court, 111 Nev. 345, 350, 891 P.2d 1180, 1183 (1995). ........................................ Ð116 Nev. 629, 636 (2000) Washoe County Dist. Attorney v. Dist. Ct.Ð Ð II.

Standard of review

[Headnotes 4-6] On direct appeal, an award of attorney's fees under NRCP 11 is reviewed under the abuse of discretion standard. Bergmann v. Boyce, 109 Nev. 670, 676, 856 P.2d 560, 564 (1993). However, because “[m]andamus will not lie to control discretionary action, unless discretion is manifestly abused or is exercised arbitrarily or capriciously,” we review this matter under a manifest abuse of discretion standard. Round Hill, 97 Nev. at 603-04, 637 P.2d at 536. NRCP 11 provides, in relevant part, as follows: The signature of an attorney or party constitutes a certificate by that attorney or party that he or she has read the pleading, motion, or other paper; that to the best of his or her knowledge, information and belief, formed after reasonable inquiry under the circumstances obtaining at the time of signature, that it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney fee. We conclude that the district court based its ruling on an erroneous view of the law regarding enforcement of out-of-state child support orders, as outlined below, and therefore manifestly abused its discretion in imposing sanctions against the district attorney. III. Enforcement of an out-of-state child support order Petitioner asserts two main arguments: (1) the NRCP 11 order is legally insufficient to support a finding that NRCP 11 was violated; and (2) the district court manifestly abused its discretion in ruling that NRCP 11 had been violated, because the ruling was based on an erroneous view of the law. First, petitioner argues that the NRCP 11 order is legally deficient because: (1) it fails to identify what, if any, document was signed in violation of NRCP 11; and (2) it fails to identify which attorney or party signed such document. The obligor 1 responds byDUJXLQJWKDWWKH15&3RUGHUGLGQRWQHHGWRLGHQWLI\

ZKLFK GRFXPHQWV ILOHG E\ WKH GLVWULFW DWWRUQH\ YLRODWHG 15&3  EHFDXVH WKH ³ILOH LV UHSOHWHZLWKVXFKSDSHUV´ __________ 1

For the discussion portion of this opinion, the “obligor” refers to real party in interest Albert McKeel (the “obligor” in this opinion's fact portion) ........................................ Ð116 Nev. 629, 637 (2000) Washoe County Dist. Attorney v. Dist. Ct.Ð Ð arguing that the NRCP 11 order did not need to identify which documents filed by the district attorney violated NRCP 11 because the “file is replete with such papers.” Second, petitioner argues that, even if the NRCP 11 order is valid despite its failure to identify which document signed by which attorney or party violated NRCP 11, the entire action to enforce the Washington decree was nevertheless well grounded in fact and warranted by existing law or good faith extension of existing law. Namely, the action was well grounded in fact because it was based upon the sworn affidavit of arrears from Washington OCSE. Further, the action was warranted by existing law because everything the district attorney did was in conformity with the mandates of NRS 130.015 and 42 U.S.C. § 666 and the provisions of NRS 125B.140(1)(a). NRS 130.015(1) provides as follows: If a support-enforcement agency of this state receives a request from a support-enforcement agency of another state to enforce a support order, the support-enforcement agency of this state shall respond to the request as required by 42 U.S.C. § 666. The request shall be deemed to constitute a certification by the support-enforcement agency of the other state: (a) Of the amount of support under the order for which payment is in arrears; and (b) That the agency has complied with all requirements for procedural due process applicable to the case. 42 U.S.C. § 666(a)(9) provides, in pertinent part, that each state shall have: [p]rocedures which require that any payment or installment of support under any child support order, whether ordered through the State judicial system or through the expedited processes required by paragraph (2), is (on or after the date it is due)— (A) a judgment by operation of law, with the full force, effect, and attributes of a judgment of the State, including the ability to be enforced, (B) entitled as a judgment to full faith and credit in such State and in any other State, and (C) not subject to retroactive modification by such State or by any other State. NRS 125B.140(1)(a) 2 provides as follows: __________ and to McKeel's counsel, David L. Bolnick, who is also a real party in interest. 2

NRS 125B.004 defines court as “the district court or any judicial or administrative procedure established in this or any other state to facilitate the ........................................ Ð116 Nev. 629, 638 (2000) Washoe County Dist. Attorney v. Dist. Ct.Ð Ð

If an order issued by a court provides for payment for the support of a child, that order is a judgment by operation of law on or after the date a payment is due. Such a judgment may not be retroactively modified or adjusted and may be enforced in the same manner as other judgments of this state. Thus, argues the district attorney, the entire proceeding was not only allowed by NRS 125B.140(1)(a), but mandated by NRS 130.015(1) and 42 U.S.C. § 666(a)(9). Pursuant to those statutes, the district attorney maintains that the action was a proper attempt to enforce, not to adjudicate, an out-of-state child support order. The response to Washington OCSE's request and the reliance on the Washington certification of arrears was proper, pursuant to NRS 130.015(1). Enforcement of the Washington support order as a judgment was proper, the district attorney asserts, pursuant to NRS 125B.140(1)(a). In summary, the district attorney argues that the district court misinterpreted these statutes in making its NRCP 11 ruling, and therefore the ruling constitutes a manifest abuse of discretion. The obligor essentially argues what the district court stated in the order of sanctions, that the district attorney should not simply proceed to “blind enforcement” of all out-of-state requests to enforce a foreign support order, but rather should exercise discretion as mandated by NRS 130.507(2). NRS 130.507(2) provides that the district attorney, upon receiving from an out-of-state support-enforcement agency the necessary documents to enforce a foreign support order, “shall consider and, if appropriate, use any administrative procedure authorized by the law of this state to enforce a support order.” (Emphasis added.) The obligor argues that the “if appropriate” language refutes the district attorney's claim that the statutes impose a mandate on the district attorney to enforce out-of-state support orders. 3 The obligor also argues that the support order has been at all times since the commencement of this action incapable of enforcement in Nevada because it had not been reduced to a sum certain by a court from Washington, the state with continuing exclusive jurisdiction to do so. The obligor further argues that the district attorney should have known the action was frivolous after reviewing the obligor's facially valid defenses. __________ collection of an obligation for the support of a child.” (Emphasis added.) Therefore, NRS 125B.140(1)(a) applies to the Washington child support order at issue here. 3

The obligor also argues that the district attorney has conceded that Nevada lacks subject matter jurisdiction to enforce the arrears. However, based on our review of the record, the district attorney merely conceded that Nevada has no jurisdiction to adjudicate the amount of arrears, while consistently maintaining that Nevada has authority to enforce the arrears. ........................................ Ð116 Nev. 629, 639 (2000) Washoe County Dist. Attorney v. Dist. Ct.Ð Ð [Headnote 7] We conclude that the district court, in imposing NRCP 11 sanctions, misapprehended the procedure outlined in state and federal law for the enforcement of out-of-state child support orders. The NRCP 11 order overlooked NRS 125B.140(1)(a), which provides that a child support order from a court of any state (see the definition of “court” in NRS 125B.004), is considered “a judgment by operation of law on or after the date a payment is due” and “may be enforced in the same manner as other judgments of this state.” Therefore, obligor's argument that the arrears must be reduced to a sum certain judgment prior to enforcement lacks merit. [Headnote 8] We also note that the NRCP 11 order misconstrued the other statutes cited in petitioner's argument. No statute supports the district court's conclusion that the district attorney had a duty to discontinue the enforcement of the arrears once the district court ruled that Washington had continuing exclusive jurisdiction over the support order. Rather, NRS 130.015(1), 42 U.S.C. § 666(a)(9), and NRS 125B.140(1)(a) specifically authorize the enforcement of arrears in Nevada, regardless of a support order's state of origin.

The NRCP 11 order referred to a notice of hearing sent to the obligor, saying that the notice “belied” the district attorney's argument that it never intended to adjudicate the amount of arrears. The district court misapprehended the notice of hearing, because a hearing to determine a “payment on arrears” is merely enforcement of the arrears, not an indication of an adjudication of what the amount of arrears should be. Accordingly, we conclude that the notice did not belie, but supported, the district attorney's claim to have never pursued an adjudication of the arrears. [Headnote 9] Because the district attorney properly relied on the affidavit of arrears from Washington OCSE, pursuant to NRS 130.015(1); properly responded to the enforcement request, pursuant to NRS 130.015(1) and 42 U.S.C. § 666(a)(9); and properly sought to enforce the Washington support order in Nevada, pursuant to NRS 125B.140(1)(a), we conclude that the district court relied on an erroneous view of the law in concluding that the district attorney acted in violation of NRCP 11. Because the district court erroneously interpreted the law governing the district attorney's enforcement of the arrears, its NRCP 11 ruling is a manifest abuse of discretion. Accordingly, we direct the clerk of the court to issue a writ of mandamus directing the district court to vacate the

15&3RUGHUHQWHUHGRQ-XQH ........................................ Ð116 Nev. 629, 640 (2000) Washoe County Dist. Attorney v. Dist. Ct.Ð Ð NRCP 11 order entered on June 9, 1999. 4 See Marshall, 108 Nev. at 466, 836 P.2d at 52 (stating that “[a] writ of mandamus will issue to control a court's arbitrary or capricious exercise of discretion”). CONCLUSION Based on the foregoing, we grant the petition for a writ of mandamus and instruct the clerk of the court to issue a writ of mandamus directing the district court to vacate the NRCP 11 order entered on June 9, 1999.

____________

Ð116 Nev. 640, 640 (2000) Las Vegas Downtown Redev. v. Dist. Ct.Ð Ð Ð CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT AGENCY, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE MARK R. DENTON, District Judge, Respondents, and HARRY PAPPAS, JOHN PAPPAS, and CAROL PAPPAS, Real Parties in Interest. No. 33779 August 18, 2000

5 P.3d 1059

Original petition for writ of mandamus or prohibition challenging a trial judge's decision to disqualify himself in an eminent domain proceeding. City redevelopment agency filed petition for writ of mandamus or prohibition, challenging a trial judge's decision to disqualify himself in an eminent domain action, involving agency and landowners whose property was condemned for the development of a certain street. The supreme court held that contributions made to judge's successful campaign to retain his seat by casinos that stood to benefit from outcome of eminent domain action did not constitute proper grounds for judge's disqualification. Petition granted.

Bradford R. Jerbic, City Attorney, Philip R. Byrnes, Jr., Assistant City Attorney, and William P. Henry, Senior Litigation Counsel, Las Vegas; Beckley Singleton Jemison Cobeaga & List DQG 'DQLHO )

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Regarding petitioner's argument that the NRCP 11 order is legally insufficient because it fails to identify the specific document or documents signed in violation of the rule, and fails to identify the specific attorney or attorneys who violated the rule, we need not decide the issue. Were the order remanded for clarification of these two points, the order would nevertheless constitute an abuse of discretion because of the erroneous view of the law upon which it was based. ........................................ Ð116 Nev. 640, 641 (2000) Las Vegas Downtown Redev. v. Dist. Ct.Ð Ð and Daniel F. Polsenberg, Las Vegas; and McDonough, Holland & Allen and Mark A. Wasser, Sacramento, California, for Petitioner. Glade L. Hall, Reno; and A. Grant Gerber, Elko, for Real Parties in Interest. 1. Prohibition. Writ of mandamus was more appropriate than writ of prohibition in case of city redevelopment agency that sought to compel a trial judge who disqualified himself from eminent domain action on basis that he received campaign contributions from a party interested in outcome of action to return to case, because agency sought to control a district court's actions after an alleged manifest abuse of discretion. 2. Judges. A judge has a duty to preside to the conclusion of all proceedings, in the absence of some statute, rule of court, ethical standard, or other compelling reason to the contrary. 3. Judges. Contributions made to judge's successful campaign to retain his seat by casinos that stood to benefit from outcome of eminent domain action, involving landowners and city redevelopment agency, did not constitute proper grounds for judge's disqualification from such action. Contributions were not extraordinary in amount, and without more, constituted only an insignificant interest that did not raise reasonable question as to judge's impartiality, and judge's minute order indicated that his recusal was made “notwithstanding the lack of actual or implied bias, prejudice, partiality, or impropriety.” Code of Jud. Conduct, Canon 3E.

Before the Court En Banc. OPINION Per Curiam: SUMMARY [Headnote 1] The case underlying this original petition involves Harry, John, and Carol Pappas's successful request to have Judge Mark R. Denton recuse himself from an eminent domain case involving the Pappases and the City of Las Vegas Downtown Redevelopment Agency (the “Agency”), which condemned the Pappases' property in order to develop the Fremont Street Experience project in downtown Las Vegas. The Pappases' request was based on their conclusion that Judge Denton's “impartiality might reasonably be questioned” under Nevada's Code of Judicial Conduct (“NCJC”) because Judge Denton had received campaign contributions from Fremont Street casinos standing to benefit from the outcome of the case. Despite stating that there existed no actual or impliedSUHMXGLFH

........................................ Ð116 Nev. 640, 642 (2000) Las Vegas Downtown Redev. v. Dist. Ct.Ð Ð prejudice, Judge Denton recused himself because of the contributions and in order to avoid the appearance of impropriety. Judge Denton's decision triggered a chain reaction of subsequent recusals, prompting the Agency to petition this court for a writ of mandamus or prohibition reinstating Judge Denton. 1 Because we conclude that the campaign contributions did not constitute proper grounds for disqualification, we grant the Agency's petition. STATEMENT OF FACTS On November 19, 1993, the Agency filed a complaint in eminent domain against the Pappases in the Eighth Judicial District. In this action, the Agency sought to obtain right, title, and interest to certain property in downtown Las Vegas for its Fremont Street Experience redevelopment project. As part of the project, the Agency planned to obtain the subject property and give it to the Fremont Street Experience Limited Liability Company (the “LLC”) and the Fremont Street Experience Parking Corporation (the “Parking Corp.”). Importantly, the LLC, and possibly the Parking Corp., is collectively owned by eight casinos on Fremont Street that stand to benefit from the redevelopment project. In August 1998, the underlying action was assigned to Judge Denton. 2 Later that same year, Judge Denton conducted a successful campaign to retain his seat, during which time he received contributions ranging from $150.00 to $2,000.00 from four casinos involved in or affiliated with the redevelopment project. At a preliminary hearing on January 25, 1999, Judge Denton informed the parties of the contributions. Judge Denton also stated that he did not think “that the making of any of those contributions would influence me one way or the other” and that he did not feel “any bias or prejudice whatsoever one way or another.” At the end of the hearing, Judge Denton and the parties agreed to reconvene on February 1, 1999, to resolve the situation. Immediately prior to the scheduled hearing on February 1, 1999, the Pappases filed an affidavit seeking to disqualify Judge Denton. The affidavit cited NCJC Canon 3E(1) 3 to support the 3DSSDVHV  FODLP WKDW

-XGJH 'HQWRQ V LPSDUWLDOLW\ FDQ UHDVRQDEO\ EH TXHVWLRQHG EHFDXVH RI WKH FDPSDLJQ FRQWULEXWLRQV DQG EHFDXVH WZR RI WKH SURSRVHG ZLWQHVVHV ZHUH FDVLQR RZQHUV ZKR KDG GRQDWHGWR-XGJH'HQWRQ VFDPSDLJQ __________ 1

While the Agency's petition alternatively requests a writ of prohibition, we conclude that a writ of mandamus is more appropriate because the petitioner seeks to control a district court's actions after an alleged manifest abuse of discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981) (writ of mandamus is proper where district judge manifestly abuses discretion). 2

The Pappases' land was obtained for redevelopment purposes in 1994. Therefore, at this point in time, the Pappases were disputing the amount they received in compensation, the lost rent and legal fees, and possible punitive damages based on their alleged constitutional violation. 3

Canon 3E(1) provides, in relevant part, that a judge “shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned,” including instances where the judge has a personal ........................................ Ð116 Nev. 640, 643 (2000) Las Vegas Downtown Redev. v. Dist. Ct.Ð Ð Pappases' claim that Judge Denton's impartiality can reasonably be questioned because of the campaign

contributions and because two of the proposed witnesses were casino owners who had donated to Judge Denton's campaign. In order to allow the Agency to prepare a response, the court adjourned the matter. Two days later, however, Judge Denton recused himself from the case and issued a minute order concluding that the decision to recuse was “in consonance with the spirit and substance” of the commentary to NCJC 3 E(1). Moreover, Judge Denton cited NCJC Canon 2 4 and concluded: “Given the proffered ‘appearance of impropriety,' and the need to avoid the actual appearance of impropriety, this Court enters its RECUSAL, notwithstanding the lack of actual or implied bias, prejudice, partiality, or impropriety.” Thereafter, three district court judges assigned to the case recused themselves, resulting in what the Agency appropriately terms “judicial pinball.” The case has since been stayed pending the outcome of this writ petition filed by the Agency on February 22, 1999, asking this court to issue a writ of mandamus compelling Judge Denton to return to the case. DISCUSSION [Headnote 2] As a general rule, a judge has a duty to “preside to the conclusion of all proceedings, in the absence of some statute, rule of court, ethical standard, or other compelling reason to the contrary.” Ham v. District Court, 93 Nev. 409, 415, 566 P.2d 420, 424 (1977); see also NCJC Canon 3B(1) (“A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.”). Further, a judge is presumed to be impartial, and the party asserting a challenge carries the burden of establishing sufficient factual and legal grounds warranting disqualification. See Hogan v. Warden, 112 Nev. 553, 559-60, 916P.2d 805, 809 (1996). In the present case, Judge Denton asserted two grounds for recusal: (1) the proceeding was one in which the judge's impartiality might reasonably be questioned under NCJC Canon 3E(1); and (2) his participation might create an appearance of impropriety under NCJC Canon 2. __________ bias or prejudice concerning a party, or where the judge has an economic or any other more than de minimis interest that could be substantially affected by the proceeding. 4

Canon 2 provides that “a judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.” ........................................ Ð116 Nev. 640, 644 (2000) Las Vegas Downtown Redev. v. Dist. Ct.Ð Ð [Headnote 3] In PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 436, 894 P.2d 337, 340 (1995), we held that the NCJC, including Canon 2, was not just a guide for the conduct of judges, but also provided substantive grounds for judicial disqualification. In City of Las Vegas Downtown Redevelopment Agency v. Hecht, 113 Nev. 632, 940 P.2d 127 (1997) (“Hecht I”), however, we clarified that NCJC Canon 2 in and of itself does not serve as grounds for disqualification. In particular, we held 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.” Hecht I, 113 Nev. at 636 n.2, 940 P.2d at 129 n.2; see also Las Vegas Downtown Redevelopment Agency v. Hecht, 113 Nev. 644, 650, 940 P.2d 134, 138 (1997) (Hecht II). Therefore, our analysis here is concerned with whether the Pappases have shown sufficient factual and legal grounds under NCJC Canon 3E requiring Judge Denton's disqualification. NCJC Canon 3E(1) provides, in pertinent part: 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; .... (c) the judge knows that he or she . . . 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; “De minimis” is then defined as: “an insignificant interest that could not raise reasonable question as to a judge's impartiality.” NCJC Terminology (1998). Further, we have held that whether a judge's impartiality can reasonably be questioned is an objective question that this court reviews as a question of law using its independent judgment of the undisputed facts. See In re Varain, 114 Nev. 1271, 1278, 969 P.2d 305, 310 (1998). In the context of campaign contributions, we have recognized that a contribution to a presiding judge by a party or an attorney does not ordinarily constitute grounds for disqualification. See In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988). Indeed, we commented that such a rule would “severely and intolerably” obstruct the conduct of judicial business in a state like Nevada where judicial officers must run for election and consequently seek campaign contributions. Id., 104 Nev. at 790, 3GDW ........................................ Ð116 Nev. 640, 645 (2000) Las Vegas Downtown Redev. v. Dist. Ct.Ð Ð 769 P.2d at 1275; see also O'Brien v. State Bar of Nevada, 114 Nev. 71, 76 n.4, 952 P.2d 952, 955 n.4 (1998) (judge serving on state bar board of governors was not disqualified from voting on appointment to commission on judicial selection despite having received over $100,000.00 in campaign contributions from prospective appointee and her partner). In recognition of this recurring problem of campaign contributions, this court recently amended the commentary to NCJC 3E(1) to include the following guidance: “The mere receipt of a campaign contribution from a witness, litigant or lawyer involved with a proceeding is not grounds for disqualification.” NCJC Canon 3E(1) Commentary (2000). In the present matter, the campaign contributions to Judge Denton, which ranged from $150.00 to $2,000.00, are not extraordinary in amount and, without more, constitute only an “insignificant interest” that does not raise a “reasonable question as to a judge's impartiality.” While we commend Judge Denton's efforts to carefully balance his duty to preside with his duty to uphold the integrity of the judiciary, we conclude that the campaign contributions to Judge Denton do not serve as grounds for disqualification under Canon 3E. We note that Judge Denton's minute order indicated that his recusal was made “notwithstanding the lack of actual or implied bias, prejudice, partiality, or impropriety.” Therefore, we see no reason why Judge Denton cannot preside over the matter, and accordingly we grant the Agency's petition for a writ of mandamus. 5 CONCLUSION We conclude that the contributions made to Judge Denton's campaign do not constitute grounds for disqualification under NCJC Canon 3E. Accordingly, we grant the Agency's petition. The clerk of the court shall issue a writ of mandamus compelling Judge Denton to preside over the district court proceedings. 6 __________ 5

The Agency also contends that the Pappases' affidavit failed to meet the procedural requirements of NRS 1.235(1). Because we choose to resolve the matter on other grounds, we need not address this issue. 6

Lamentably, we recognize that the Pappases have in the past made certain public remarks concerning the impartiality of the judiciary and may continue to do so as this matter proceeds. Although operating under such

circumstances may be difficult or disheartening, “the judicial duties of a judge take precedence over all the judge's other activities,” and “a judge shall hear and decide matters assigned to the judge except those in which disqualification is required.” NCJC Canon 3A and 3B(1). Indeed, if a party were allowed to selectively disqualify a judge through what amounts to media-bullying, the very integrity and independence upon which the judiciary depends would be undermined.

____________

Ð116 Nev. 646, 646 (2000) Pengilly v. Rancho Santa Fe HomeownersÐ Ð JAMES W. PENGILLY, and LORBER, BEDDOE & PENGILLY, Appellants, v. RANCHO SANTA FE HOMEOWNERS ASSOCIATION, a Nevada Nonprofit Corporation; and DONNA FISCHER and WILLIAM ROBINSON, Individually and on Behalf of Class Members at Rancho Santa Fe Homeowners Association, Respondents. No. 34352 August 18, 2000

5 P.3d 569

Appeal from an order of the district court holding appellants in contempt and imposing sanctions. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge. Counsel and insurers for defendants in construction defect case were found to be in contempt by the district court for failing to abide by terms of settlement agreement. Counsel appealed. The supreme court held that it did not have jurisdiction over an appeal from a contempt order and that proper mode of review is by original writ petition; overruling Poirier v. Board of Dental Examiners, 81 Nev. 384, 404 P.2d 1 (1965); abrogating Guerin v. Guerin, 114 Nev. 127, 953 P.2d 716 (1998), Awad v. Wright, 106 Nev. 407, 794 P.2d 713 (1990). Appeal dismissed for lack of jurisdiction. Lorber, Beddoe & Pengilly, Las Vegas; Lionel Sawyer & Collins and David N. Frederick, Las Vegas, for Appellants. Vannah Costello Canepa Riedy & Rubino, Las Vegas, for Respondents. 1. Contempt. Supreme court does not have jurisdiction over an appeal from a contempt order issued against party or non-party when no rule or statute provides for such an appeal. Proper mode of review is by original writ petition; overruling Poirier v. Board of Dental Examiners, 81 Nev. 384, 404 P.2d 1 (1965); abrogating Guerin v. Guerin, 114 Nev. 127, 953 P.2d 716 (1998), Awad v. Wright, 106 Nev. 407, 794 P.2d 713 (1990). 2. Appeal and Error. No appeal may be taken unless permitted by rule or statute. 3. Contempt. Whether a person is guilty of contempt is generally within the particular knowledge of the district court, and the district court's order should not lightly be overturned.

Before the Court En Banc. ........................................ Ð116 Nev. 646, 647 (2000) Pengilly v. Rancho Santa Fe HomeownersÐ Ð

OPINION Per Curiam: This appeal concerns the issue of the appropriate form of review of an order of contempt—a direct appeal or an original petition for relief pursuant to NRS Chapter 34. We take this opportunity to clarify a troublesome area of this court's jurisdictional case law. We conclude that, as no rule or statute authorizes an appeal from a contempt order, this court does not have jurisdiction over an appeal from such an order. Accordingly, the proper mode of review is by an original writ petition. This appeal arises in a construction defect case. A settlement conference was held before the district court, and a settlement was entered on the record. Thereafter, a settlement agreement was executed. Subsequently, the parties disputed the terms of the settlement, and plaintiffs/respondents (“Rancho Sante Fe”) filed a motion for an order to show cause, seeking to enforce the terms of the settlement. According to Rancho Sante Fe, the defendants, their counsel (appellants James Pengilly and Lorber, Beddoe & Pengilly) and defendants' insurers were not abiding by the settlement's terms. At a hearing held on Rancho Santa Fe's motion, the district court determined that counsel and the insurers had breached the settlement agreement and imposed sanctions of over $100,000. The written order entered after the hearing included a finding of contempt against counsel and the insurers. Counsel then appealed. It appeared that, in the past, this court had reviewed contempt orders by both writ petition and direct appeal, but had not engaged in any meaningful analysis or discussion of which mode of review was proper. Therefore, in this case, this court entered an order to show cause, directing appellants to file points and authorities on the issue of whether a finding of contempt was properly challenged by direct appeal or writ petition. Appellants filed a response, in which they argue that based on this court's decisions in Guerin v. Guerin, 114 Nev. 127, 953 P.2d 716 (1998), and Awad v. Wright, 106 Nev. 407, 794 P.2d 713 (1990), this court has jurisdiction over the appeal. Nevertheless, they ask that this court dismiss the appeal and instead consider the matter in the context of a writ petition they previously filed, on the condition that they may supplement their petition to provide authority on the specific issue of contempt. 1 __________ 1

We note that if appellate jurisdiction were proper, then writ relief would be inappropriate. See Guerin, 114 Nev. at 131, 953 P.2d at 719 (noting that ........................................ Ð116 Nev. 646, 648 (2000) Pengilly v. Rancho Santa Fe HomeownersÐ Ð At common law, there was no right of review of a contempt order. See Van Baalen v. Superior Court, County of Maricopa, 508 P.2d 771 (Ariz. Ct. App. 1973) (interpreting statute providing that contempt was to be punished in conformity with common law to preclude appeal). This rule has been changed in most jurisdictions by statute or constitutional provision. See generally 17 C.J.S., Contempt § 128 (1999). In some jurisdictions, a right of review has been found to exist under the general supervisory power of a high court over lower courts. See, e.g., State v. District Court, 278 P. 122 (Mont. 1929). Many jurisdictions differentiate between an order of criminal contempt and an order of civil contempt in determining whether a particular order may be appealable. See, e.g., State ex rel. Kandt v. North Platte Baptist Church, 365 N.W.2d 813 (Neb. 1985). The particular mode of review, whether by writ petition or appeal, varies widely. For example, in Louisiana, a contempt order is reviewable only by the supreme court upon application to its general supervisory jurisdiction; there is no right of appeal, and the intermediate appellate court has no jurisdiction. See Moity v. Mahfouz, 137 So. 2d 513 (La. Ct. App. 1961). Texas does not permit appeals from contempt orders. See Lamka v. Townes, 465 S.W.2d 386 (Tex. Civ. App. 1971). California's intermediate appellate courts review contempt proceedings on a petition for certiorari. See Nierenberg v. Superior Court, 130 Cal. Rptr. 847 (Ct. App. 1976). New Jersey and Indiana permit appeals from contempt orders. See State v. Roberts, 515 A.2d 799 (N.J. Super.

Ct. App. Div. 1986); Jacobsen v. State, 384 N.E.2d 1041 (Ind. Ct. App. 1979). In the past, this court has considered both appeals from contempt orders and writ petitions challenging contempt orders, without explicitly considering which form of review was proper. Compare Guerin, 114 Nev. 127, 953 P.2d 716, and Awad, 106 Nev. 407, 794 P.2d 713 (considering appeals from contempt orders) with Cunningham v. District Court, 102 Nev. 551, 729 P.2d 1328 (1986), and McCormick v. District Court, 67 Nev. 318, 218 P.2d 939 (1950) (considering petitions for extraordinary relief from contempt orders). It appears that the only case in which this court explicitly considered the jurisdictional basis for an appeal from a contempt order is Poirier v. Board of Dental Examiners, 81 Nev. 384, 404 P.2d 1 (1965). In Poirier, the appellant was held in contempt for violating an injunction prohibiting him from advertising that heFRXOGRU

ZRXOGSHUIRUPDFWVZKLFKFRQVWLWXWHGWKHSUDFWLFHRIGHQWLVWU\ __________ an appeal is an adequate legal remedy); NRS 34.020 (providing that a writ of certiorari may issue only if there is no appeal or other adequate remedy); NRS 34.170 (stating that a writ of mandamus may only issue if there is no other adequate and speedy remedy). ........................................ Ð116 Nev. 646, 649 (2000) Pengilly v. Rancho Santa Fe HomeownersÐ Ð could or would perform acts which constituted the practice of dentistry. Id. at 385, 404 P.2d at 1. The appellant filed an appeal, and the respondents moved to dismiss the appeal for lack of jurisdiction. Id. at 385, 404 P.2d at 2. The Poirier court denied the motion, reasoning that a criminal contempt order was appealable as a conviction for a crime over which the district court had original jurisdiction. Id. at 387, 404 P.2d at 2. [Headnote 1] We conclude that the reasoning in Poirier is flawed when the contempt proceeding is ancillary to an underlying case. This court has 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.” Nev. Const. art. 6, § 4 (emphasis added). When the contempt proceeding is ancillary, then it is not a criminal “case” in which an “offense” was “charged.” Rather, the proceeding is brought pursuant to NRS Chapter 22, under the caption and case number of the underlying action. Thus Poirier incorrectly suggested that jurisdiction was proper with respect to all criminal contempt orders. [Headnote 2] “Jurisdictional rules go to the very power of this court to act.” Rust v. Clark Cty. School District, 103 Nev. 686, 688, 747 P.2d 1380, 1382 (1987); accord Phillips v. Welch, 11 Nev. 187, 188 (1876) (“Every court is bound to know the limits of its own jurisdiction, and to keep within them.”). This court has consistently explained that unless permitted by rule or statute, no appeal may be taken. See Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984); Kokkos v. Tsalikis, 91 Nev. 24, 530 P.2d 756 (1975). No rule or statute authorizes an appeal from an order of contempt. See NRAP 3A(b) (listing orders which may be appealed); NRS Chapter 22 (concerning grounds and procedure for imposing contempt sanctions). We therefore conclude that this court does not have jurisdiction over an appeal from a contempt order where no rule or statute provides for such an appeal. Rather, contempt orders must be challenged by an original petition pursuant to NRS Chapter 34. 2 Writ petitions are also more suitable vehicles for review of contempt orders. Particularly where the purpose of the contemptRUGHULVWRFRHUFHFRPSOLDQFHZLWKWKHGLVWULFWFRXUW VRUGHUV __________ 2

To the extent Poirier is inconsistent with this opinion, it is overruled. Further, we note that although

appellants in this case were not parties to the proceedings below, our analysis applies equally to cases in which parties are sanctioned for contempt. Whether the contempt sanction is imposed on a nonparty or a party, the proper way to challenge it is through a writ petition. ........................................ Ð116 Nev. 646, 650 (2000) Pengilly v. Rancho Santa Fe HomeownersÐ Ð order is to coerce compliance with the district court's orders, it appears preferable for the district court to be able to modify its orders to meet changing circumstances. A writ petition permits the district court this flexibility because the court retains jurisdiction over the order during the pendency of the writ petition. In contrast, the district court would be divested of jurisdiction to modify or vacate the contempt order once a notice of appeal had been filed. See Rust, 103 Nev. at 688, 747 P.2d at 1382. [Headnote 3] Additionally, the standard of review in a writ petition is appropriate to the review of a contempt order. Whether a person is guilty of contempt is generally within the particular knowledge of the district court, and the district court's order should not lightly be overturned. A writ of mandamus is available to control a manifest abuse of discretion—for example, when the order purportedly violated does not clearly prohibit the conduct engaged in by the contemnor. See Cunningham, 102 Nev. at 559-60, 729 P.2d at 1333-34. A writ of prohibition is available where the district court clearly exceeded its jurisdiction—for example, when a finding of indirect contempt is not based upon a proper affidavit. See Awad, 106 Nev. at 409, 794 P.2d at 714. These standards provide a fitting level of deference for the review of contempt orders. As this court lacks jurisdiction over this appeal, the appeal is dismissed. 3

____________

Ð116 Nev. 650, 650 (2000) Fritz Hansen A/S v. Dist. Ct.Ð Ð Ð FRITZ HANSEN A/S, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE GARY L. REDMON, District Judge, Respondents, and ROBERT P. GUSTAVSON, RAMPARTS, INC., and INTERNATIONAL CONTRACT FURNISHINGS, INC., Real Parties in Interest. No. 35252 August 21, 2000

6 P.3d 982

Motion for a stay of district court proceedings pending the resolution of an original petition for a writ of prohibition. Alleged tortfeasor petitioned for writ of prohibition challenging a district court order that denied its motion to quash service ofSURFHVVIRUODFNRISHUVRQDOMXULVGLFWLRQ __________ 3

We note that appellants have already filed a petition for extraordinary relief, and the merits of their challenge to the contempt order will be addressed in that proceeding. The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this appeal.

........................................ Ð116 Nev. 650, 651 (2000) Fritz Hansen A/S v. Dist. Ct.Ð Ð process for lack of personal jurisdiction, and moved to stay district court proceedings pending resolution of the petition. The supreme court held that: (1) it would abrogate general/special appearance doctrine, and (2) petitioner was not entitled to stay. Motion denied. Hunterton & Associates and Terry John Care, Las Vegas; and Jones Day Reavis & Pogue and Jeffrey G. Close, Chicago, Illinois, for Petitioner. Smith Larsen & Wixom and Stewart C. Fitts, Las Vegas; Law Office of V. Andrew Cass and Michael R. Hall, Las Vegas; and Amesbury & Schutt, Las Vegas, for Real Parties in Interest. 1. Appearance. Supreme court would abrogate the doctrine of special/general appearances. NRCP 12(b). 2. Pretrial Procedure. Before a defendant files a responsive pleading such as an answer, that defendant may move to dismiss for lack of personal jurisdiction, insufficiency of process, and/or insufficiency of service of process, and such a defense is not waived by being joined with one or more other defenses. NRCP 12(b). 3. Pleading; Process. A defendant may raise its defenses, including those relating to jurisdiction and service, in a responsive pleading. Objections to personal jurisdiction, process, or service of process are waived, however, if not made in a timely motion or not included in a responsive pleading such as an answer. NRCP 12(b), (g), (h)(1). 4. Pleading; Process. To avoid waiver of a defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process, the defendant should raise its defenses either in an answer or pre-answer motion. NRCP 12(b). 5. Appeal and Error. Rules requiring a party to seek a stay in district court before seeking a stay in supreme court applies to writ petitions when the order the petition seeks to challenge is one issued by a district court. NRAP 8(a). 6. Action; Pleading. Stay of district court proceedings pending resolution of alleged tortfeasor's writ petition challenging denial of its motion to quash service of process for lack of personal jurisdiction was not warranted. Tortfeasor would not waive its jurisdictional defense by answering after its motion to quash was denied, would not suffer irreparable or serious injury if stay was denied, and failed to demonstrate that writ petition raised a substantial legal issue. NRAP 8(a). 7. Appeal and Error. In deciding whether to issue a stay, supreme court generally considers: (1) whether the object of the appeal or writ petition will be defeated if the stay is denied, (2) whether appellant/petitioner will suffer irreparable or serious injury if the stay is denied, (3) whether respondent/real party in interest will suffer irreparable or serious injury if the stay isJUDQWHG

........................................ Ð116 Nev. 650, 652 (2000) Fritz Hansen A/S v. Dist. Ct.Ð Ð granted, and (4) whether appellant/petitioner is likely to prevail on the merits in the appeal or writ petition. NRAP 8(c). 8. Appearance. Alleged tortfeasor's appearance, after its motion to quash service of process for lack of personal jurisdiction was denied, would not amount to a waiver of its challenge to the district court's jurisdiction. NRCP 12(b). 9. Appeal and Error. Although, when moving for a stay pending an appeal or writ proceedings, a movant does not always have to show a probability of success on the merits, the movant must present a substantial case on the merits when a serious legal question is involved and show that the balance of equities weighs heavily in favor of granting the stay. NRAP 8(a).

Before the Court En Banc. OPINION Per Curiam:

This is an original petition for a writ of prohibition challenging a district court order that denied a motion to quash service of process for lack of personal jurisdiction. Petitioner has filed a motion for a stay of the district court proceedings pending resolution of the petition so that it will not be forced to risk making a general appearance by answering the complaint filed against it. We conclude that the special/general appearance doctrine should be abrogated in light of the 1998 amendments to NRCP 12(b) and several recent decisions of this court, and that a stay is not warranted. Real party in interest Robert P. Gustavson filed a complaint in the district court against real party in interest Ramparts, Inc., alleging that he was injured when a chair broke at its property, the Luxor Hotel and Casino. Ramparts then filed a third-party complaint against real party in interest International Contract Furnishings, Inc. (“ICF”), the vendor of the chair. ICF subsequently filed its own third-party complaint against the chair's manufacturer, petitioner Fritz Hansen A/S. Fritz Hansen moved to quash service of process, arguing that the district court lacked personal jurisdiction over it. Without holding an evidentiary hearing, the district court denied the motion. Shortly thereafter, ICF served a notice of its intention to take default; that same day, Fritz Hansen filed its petition in this court. Fritz Hansen later filed a motion in the district court for a stay of proceedings, pending resolution of the writ petition, which the district court denied. Fritz Hansen now seeks a stay in this court. Fritz Hansen is understandably concerned that if the litigation proceeds and it answers the complaint to avoid entry of default, itZLOOKDYHEHHQGHHPHGWRKDYHPDGHDJHQHUDODSSHDUDQFH ........................................ Ð116 Nev. 650, 653 (2000) Fritz Hansen A/S v. Dist. Ct.Ð Ð will have been deemed to have made a general appearance, thus waiving its contention that the district court lacks jurisdiction over it. This court has long endorsed the special/general appearance doctrine, which is the basis for much confusion and complexity regarding jurisdictional defenses and procedures in Nevada. Previously, we have explained that “[a] general appearance is entered when a person (or the person's attorney) comes into court as party to a suit and submits to the jurisdiction of the court. A special appearance is entered when a person comes into court to test the court's jurisdiction or the sufficiency of service.” Milton v. Gesler, 107 Nev. 767, 769, 819 P.2d 245, 247 (1991). More specifically, “when a defendant requests a remedy in addition to relief from jurisdictional defects or defective service of process, the defendant enters a general appearance and submits to the jurisdiction of the court.” Id. at 771 n.6, 819 P.2d at 248 n.6. On many occasions, we have held that litigants have undertaken some act that is inconsistent with appearing specially, thus subjecting themselves to the jurisdiction of the district court. See, e.g., Davis v. District Court, 97 Nev. 332, 629 P.2d 1209 (1981) (holding that objecting to a motion for leave to file a second amended complaint and seeking attorney's fees as a condition for leave to amend the complaint was a general appearance); Havas v. Long, 85 Nev. 260, 454 P.2d 30 (1969) (noting that filing a motion for summary judgment was a general appearance); Rahn v. Searchlight Mercantile Co., 56 Nev. 289, 49 P.2d 353 (1935) (holding that signing a stipulation extending the time to answer or otherwise respond to a complaint was a general appearance). The federal courts have concluded that the special/general appearance doctrine was abolished when they adopted Federal Rule of Civil Procedure 12, the origin of NRCP 12. The leading treatise on federal procedure observes: Prior to the federal rules, the practice was to appear specially for the purpose of objecting by motion to the jurisdiction of the court, the venue of the action, or an insufficiency of process or service of process; a failure to follow the correct procedure for doing so often resulted in a waiver of the defense. There no longer is any necessity for appearing specially to challenge personal jurisdiction, venue, or service of process. This is made clear by the absence in Rule 12 of any reference to either a general or special appearance and the express provisions in subdivision (b) to the effect that every defense may be made either in the responsive pleading or by motion, and that no defense or objection is waived by being joined with any other defense or objection in a responsive pleading or motion. Thus, technical distinctions between general and special appearances have been abolished and no HQG LV DFFRPSOLVKHG E\

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........................................ Ð116 Nev. 650, 654 (2000) Fritz Hansen A/S v. Dist. Ct.Ð Ð end is accomplished by retaining the terms in federal practice. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1344 (1990) (footnotes omitted); accord S.E.C. v. Wencke, 783 F.2d 829, 832 n.3 (9th Cir. 1986) (noting that “Federal Rule of Civil Procedure 12 abolished the distinction between general and special appearances when the Federal Rules were adopted in 1938”). When the Nevada Rules of Civil Procedure were adopted, however, NRCP 12 was modified from the federal rule so that it could co-exist with the special/general appearance doctrine. At that time, and until amendments in 1998, NRCP 12(b) provided that [n]o defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion, except defenses numbered (2)-(4) [lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process] are waived if joined with one or more defenses other than defenses (2)-(4), or by further pleading after denial of such defenses. Barnato v. Dist. Court, 76 Nev. 335, 338, 353 P.2d 1103, 1104 (1960). The Barnato court expressly rejected the notion that NRCP 12's adoption abrogated the special/general appearance doctrine: “Rule 12(b) as adopted in this state has not changed the general rule in existence at the time of its adoption which is to the effect that a defendant who requests relief additional to that necessary to protect him from defective service of process renders his appearance general.” Id. at 340, 353 P.2d at 1105. Consequently, Barnato concluded that a defendant who had moved to dismiss on jurisdiction and insufficiency of service grounds had made a general appearance, thereby waiving the jurisdiction defense. Id. Although this court strictly adhered to the reasoning in Barnato for many years, 1 we have more recently limited the application of the special/general appearance doctrine. For example, Barnato and its progeny were overruled by Indiana Insurance Co. v. District Court, 112 Nev. 949, 920 P.2d 514 (1996), which held that personal jurisdiction could be challenged by a motion to dismiss under NRCP 12(b)(2). 2 Similarly, Doyle v. Jorgensen, 821HY1HY3G  __________ 1

See, e.g., Silver v. Telerent Leasing, 105 Nev. 30, 768 P.2d 879 (1989); Deros v. Stern, 87 Nev. 148, 483 P.2d 648 (1971); Benson v. District Court, 85 Nev. 327, 454 P.2d 892 (1969). 2

Even though in Indiana Insurance we held that a motion to dismiss for lack of personal jurisdiction was no longer a general appearance, we also continued to embrace the special/general appearance doctrine and stated that “[a] request for relief other than a challenge to the court's jurisdiction, . . . such as a request for relief premised on the court's having jurisdiction over the parties, still constitutes a general appearance.” Indiana Insurance, 112 Nev. at 951, 920 P.2d at 516. ........................................ Ð116 Nev. 650, 655 (2000) Fritz Hansen A/S v. Dist. Ct.Ð Ð Nev. 196, 414 P.2d 707 (1966), which held that a motion under NRCP 60(b)(1) to set aside a judgment that was void for ineffective service was a general appearance, was later overruled by Gassett v. Snappy Car Rental, 111 Nev. 1416, 906 P.2d 258 (1995), which held that filing a motion to set aside a void judgment was not a general appearance. Additionally, in another recent opinion, we determined that once the personal jurisdiction issue has been initially raised, the district court need not resolve it completely until trial. Trump v. District Court, 109 Nev. 687,

692-93, 857 P.2d 740, 743-45 (1993). In Trump, we explained that if a defendant challenges personal jurisdiction, the plaintiff may demonstrate jurisdiction in one of two ways. First, the plaintiff may establish personal jurisdiction over the defendant by preponderance of the evidence at an evidentiary hearing. Alternatively, the plaintiff may make a prima facie showing of jurisdiction before trial commences, and then must prove jurisdiction at trial by a preponderance of the evidence. Id. Although we did not address the special/general appearance doctrine in Trump, we later stated that “so long as the personal jurisdiction issue is properly presented to the district court prior to trial, a defendant does not waive the right to challenge jurisdiction by making an appearance at trial and arguing the case on the merits.” Hospital Corp. of America v. Dist. Court, 112 Nev. 1159, 1161 n.2, 924 P.2d 725, 726 n.2 (1996). 3 Thus, a conflict was created with respect to the procedure outlined in Trump and the doctrine of special/general appearances, as reflected in NRCP 12(b) as it then existed. In 1998, following our decision in Trump, we amended NCRP 12(b) so that it became consistent with the federal rule. In particular, NRCP 12(b) was revised to provide that the defenses of lack of jurisdiction and insufficient process and service of process are not waived by being joined with other defenses and objections in a responsive pleading or pre-pleading motion. The rule now provides, in pertinent part, as follows: Every defense, in law or fact . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . . (2) lack of jurisdiction over the person, (3) insufficiency of process, (4) insufficiency of service of process . . . . No defense or objection is waived by being MRLQHG ZLWK RQH RU PRUH RWKHU GHIHQVHV RU

REMHFWLRQVLQDUHVSRQVLYHSOHDGLQJRUPRWLRQ __________ 3

The approach in Trump and Hospital Corp. is consistent with NRCP 12(d), which provides that “[t]he defenses specifically enumerated [in NRCP 12(b)(1)-(6)], whether made in a pleading or by motion . . . shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.” ........................................ Ð116 Nev. 650, 656 (2000) Fritz Hansen A/S v. Dist. Ct.Ð Ð joined with one or more other defenses or objections in a responsive pleading or motion. NRCP 12(b). [Headnote 1] In light of these changes to Rule 12(b), we now abrogate the doctrine of special/general appearances. As the Ninth Circuit has recognized, “the express language and purpose of Rule 12 . . . seeks to consolidate all pre-trial defenses and objections by eliminating the distinction between general and special appearances.” Martens v. Winder, 341 F.2d 197, 200 (9th Cir. 1965). The amendments to NRCP 12 have abolished the age-old distinction between general and special appearances. A defendant need no longer appear specially to attack the court's jurisdiction over him. He is no longer required at the door of the . . . courthouse to intone that ancient abracadabra of the law, de bene esse, in order by its magic power to enable himself to remain outside even while he steps within. He may now enter openly in full confidence that he will not thereby be giving up any keys to the courthouse door which he possessed before he came in. This, of course, is not to say that such keys must not be used promptly. Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3d Cir. 1944), quoted in Wright & Miller, § 1344, at 171. Because any technical differences between general and special appearances no longer exist under Rule 12, the doctrine has no remaining vitality in Nevada. It will no longer serve as a “trap for the

unwary.” See Paul A. Bible, Special Appearances[:] Trap for the Unwary, 43 Inter Alia 16 (1978). Our conclusion today is consistent with the procedure outlined in Trump and Hospital Corp., as well as our prior retreat from a rigid application of the general/special appearance doctrine. [Headnotes 2-4] Now, before a defendant files a responsive pleading such as an answer, that defendant may move to dismiss for lack of personal jurisdiction, insufficiency of process, and/or insufficiency of service of process, and such a defense is not “waived by being joined with one or more other defenses.” Alternatively, a defendant may raise its defenses, including those relating to jurisdiction and service, in a responsive pleading. Objections to personal jurisdiction, process, or service of process are waived, however, if not made in a timely motion or not included in a responsive pleading such as an answer. 4 See NRCP 12(g) and (h)(1). Thus, to avoid waiverRIDGHIHQVH

RIODFNRIMXULVGLFWLRQRYHUWKHSHUVRQ __________ 4

Defenses under NRCP 12(b) are subject to waiver if not raised promptly. NRCP 12(g) provides that any Rule 12 motion may be joined with any other ........................................ Ð116 Nev. 650, 657 (2000) Fritz Hansen A/S v. Dist. Ct.Ð Ð of a defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process, the defendant should raise its defenses either in an answer or pre-answer motion. See NRCP 12; Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992), abrogated in part on other grounds by Scrimer v. District Court, 116 Nev. 507, 998 P.2d 1190 (2000). Fritz Hansen's stay motion [Headnotes 5, 6] This court's rules generally require a party to seek a stay in the district court before seeking a stay in this court. NRAP 8(a). While this rule applies on its face to appeals, the requirement is a sound one that should also apply to writ petitions when the order the petition seeks to challenge is one issued by a district court. Fritz Hansen fulfilled this requirement by unsuccessfully moving for a stay in the district court. [Headnote 7] In deciding whether to issue a stay, this court generally considers the following factors: (1) Whether the object of the appeal or writ petition will be defeated if the stay is denied; (2) Whether appellant/petitioner will suffer irreparable or serious injury if the stay is denied; (3) Whether respondent/real party in interest will suffer irreparable or serious injury if the stay is granted; and (4) Whether appellant/petitioner is likely to prevail on the merits in the appeal or writ petition. See NRAP 8(c); Kress v. Corey, 65 Nev. 1, 189 P.2d 352 (1948). The object of the writ petition [Headnote 8] First, the object of the writ petition will not be defeated if the stay is denied. Fritz Hansen will not waive its jurisdictional defense by answering after its motion to quash was denied; as Fritz Hansen timely challenged jurisdiction, Rule 12's waiver provisions do not apply. Additionally, in denying Fritz Hansen's motion to quash

without an evidentiary hearing, the district court presumably applied a prima facie standard of review, and the disWULFWFRXUWLPSOLFLWO\RUGHUHGWKDWWKHKHDULQJDQGGHWHUPLQDWLRQRISHUVRQDOMXULVGLFWLRQ

EHGHIHUUHGWRWULDO __________ Rule 12 motion, but that if a defense or objection is omitted from a motion, the movant may not later make a motion based on the omitted defense or objection. NRCP 12(h)(1) explains that defenses relating to jurisdiction and sufficiency of process or service of process are generally waived if not raised “by motion under this rule [or] included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.” ........................................ Ð116 Nev. 650, 658 (2000) Fritz Hansen A/S v. Dist. Ct.Ð Ð trict court implicitly ordered that the hearing and determination of personal jurisdiction be deferred to trial. See Hospital Corp., 112 Nev. at 1161 n.2, 924 P.2d at 726 n.2; Trump, 109 Nev. at 692-93, 857 P.2d at 743-45. Hence, Fritz Hansen's appearance, after its motion to quash was denied, would not amount to a waiver of its challenge to the district court's jurisdiction. Accordingly, the first stay factor does not suggest that a stay is warranted. Irreparable or serious harm Fritz Hansen would not suffer irreparable or serious injury if the stay is denied. It argues that it should not be required to participate “needlessly” in the expense of lengthy and time-consuming discovery, trial preparation, and trial. Such litigation expenses, while potentially substantial, are neither irreparable nor serious. See, e.g., Dixon v. Thatcher, 103 Nev. 414, 415, 742 P.2d 1029, 1029-30 (1987) (noting that, with respect to injunctive relief, irreparable harm is harm for which compensatory damages would be inadequate, such as the sale of a home at trustee's sale, because real property is unique); Berryman v. Int'l Bhd. Elec. Workers, 82 Nev. 277, 280, 416 P.2d 387, 389 (1966) (stating that with respect to harm, there should be a “reasonable probability that real injury will occur if the injunction does not issue”); see Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985) (noting that “ ‘[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough' ” to show irreparable harm) (quoting Virginia Petroleum Job. Ass'n v. Federal Power Com'n, 259 F.2d 921, 925 (D.C. Cir. 1958)); cf. Sobol v. Capital Management, 102 Nev. 444, 446, 726 P.2d 335, 337 (1986) (concluding, in the context of an injunction, that “acts committed without just cause which unreasonably interfere with a business or destroy its credit or profits, may do an irreparable injury”). Additionally, it does not appear from the documents before us that ICF would suffer irreparable or serious injury if the stay were granted. Nevertheless, the underlying proceedings could be unnecessarily delayed by a stay, particularly where the district court has made only a preliminary determination as to personal jurisdiction, and the issue remains for trial. Likelihood of success on the merits [Headnote 9] Finally, we conclude that Fritz Hansen has not shown that it is likely to prevail on the merits. Its argument, that this court may have erred in its discussion of certain personal jurisdiction principles in Judas Priest v. District Court, 104 Nev. 424, 760 P.2d 137 (1988), runs contrary to this court's well-established case law. ........................................ Ð116 Nev. 650, 659 (2000) Fritz Hansen A/S v. Dist. Ct.Ð Ð

Thus, Fritz Hansen cannot be deemed likely to demonstrate that extraordinary relief is warranted. Although, when moving for a stay pending an appeal or writ proceedings, a movant does not always have to show a probability of success on the merits, the movant must “present a substantial case on the merits when a serious legal question is involved and show that the balance of equities weighs heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981). Here, Fritz Hansen has not demonstrated that its writ petition raises a substantial legal question; additionally, the other stay factors do not militate in Fritz Hansen's favor. Accordingly, we deny Fritz Hansen's motion for a stay. 5

____________

Ð116 Nev. 659, 659 (2000) Flores v. StateÐ Ð Ð JOSE FLORES, Appellant, v. THE STATE OF NEVADA, Respondent. No. 33186 August 21, 2000

5 P.3d 1066

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. Appellant was sentenced to two consecutive terms of life imprisonment without the possibility of parole. Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge. Defendant was convicted in the district court of first degree murder with the use of a deadly weapon, and he appealed. The supreme court, Shearing, J., held that (1) evidence that co-defendant had been convicted of earlier murder in which same gun was used was not admissible against defendant, and (2) detective's testimony concerning his encounters with defendant and co-defendant in course of his work for police department's gang unit was admissible. Reversed and remanded. David M. Schieck, Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and Michael N. O'Callaghan, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. Evidence of another crime is not admissible to prove the character of a person in order to show that he acted in conformity therewith on aSDUWLFXODURFFDVLRQ __________ 5

On January 31, 2000, we granted a temporary stay in order to consider Fritz Hansen's motion. In light of our decision, we vacate the temporary stay. ........................................ Ð116 Nev. 659, 660 (2000) Flores v. StateÐ Ð particular occasion. However, other crime evidence may be admissible for other purposes, such as to prove identity or motive. NRS 48.045(2). 2. Criminal Law. Evidence of other bad acts may be admissible to provide necessary context under the “complete story doctrine.” NRS 48.035. 3. Criminal Law.

Evidence that co-defendant had been convicted of earlier murder in which same gun was used was not admissible against defendant in instant murder prosecution. Danger of unfair prejudice created by introducing evidence of prior murder by co-defendant far outweighed tenuous probative value on issue of defendant's identity. 4. Criminal Law. Detective's testimony concerning his encounters with defendant and co-defendant in course of his work for police department's gang unit was admissible in murder prosecution, where both defendant and co-defendant had admitted their gang membership, virtually all witnesses testified without objection regarding gang affiliation, and evidence of gang unit's involvement was limited to identification of photographs with no other adverse inferences.

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Shearing, J.: Jose Flores and Carlos Escobar were charged with murder with the use of a deadly weapon in the shooting death of Francisco Cabral. Flores went to trial separately and a jury found him guilty of first degree murder with the use of a deadly weapon. Flores appeals from the judgment of conviction. He alleges that the trial court erred in admitting certain evidence, including evidence that Escobar had been previously convicted of a murder and that Flores and Escobar were affiliated with a gang. FACTS Two men approached Francisco Cabral and his fianceé, Charmaine Felix, as they walked together on a Las Vegas street at night on October 17, 1995. Felix was pushing her infant son in a baby carriage. One of the men asked Cabral, “Where are you from?” Cabral answered “L.A.” The man who had not spoken fired two shots at Cabral with a Glock 9mm semi-automatic handgun. One of the bullets hit Cabral in the head; he fell to the ground and died minutes later. The two men ran away. On November 3, 1995, Felix tentatively identified Flores from a photo lineup. She said she was almost seventy-five percent sure the person in the photo was the shooter in the Cabral killing. She also stated the shooter was the taller man, even though at trial itZDVFOHDUWKDW(VFREDUZDVWKHWDOOHURIWKHWZR ........................................ Ð116 Nev. 659, 661 (2000) Flores v. StateÐ Ð was clear that Escobar was the taller of the two. She was unable to identify the other man from another photo line-up although that photo line-up included Escobar. On November 8, 1995, she assisted a police artist in preparing a drawing of the second man. In April 1997, Felix was shown another photo line-up which included a computer-enhanced photograph of Escobar. A hat and goatee, as previously described by Felix, had been added to the photograph of Escobar. This time she identified Escobar. On February 14, 1997, the police recovered the Glock 9mm handgun used in the Cabral shooting in an apparently unrelated incident. The man from whom the gun was recovered denied knowing Flores. Ballistic tests showed the handgun was the same one used in both the Cabral shooting and the killing of Daniel Arrequin on September 28, 1995, three weeks before the Cabral killing. Escobar was identified as the shooter in the Arrequin killing and, by the time of Flores' trial, had already been convicted of the Arrequin murder. Wilfredo Sanchez had also been shot in the same incident, but survived. Sanchez testified at Flores' trial that Escobar approached him and asked “Where are you from?” before shooting him. Sanchez testified that he understood the question to mean, “What gang are you in?” Sanchez did not answer Escobar, but at trial Sanchez admitted to being a gang member. Felix testified at trial that Cabral told her he was in a gang. Felix also identified Flores and Escobar as the two men who approached her when Cabral was killed. Other testimony established that Flores and Escobar were friends; they lived together for a time, and Flores visited Escobar several times in jail. Police Detective Fred Garcia testified that he met Flores and Escobar in his work with the police gang unit, although such contact did not necessarily imply criminal activity. Flores also gave a taped statement to the police, which the jury heard in court, in which he admitted that he had been a gang member.

DISCUSSION Admissibility of prior murder [Headnote 1] Flores argues the trial court erred in admitting evidence of Escobar's prior murder of Arrequin against him. Evidence of another crime is not admissible to prove the character of a person in order to show that he acted in conformity therewith on a particular occasion. See NRS 48.045(2). Other crimes, however, may be admissible for other purposes, such as to prove identity or motive. Id. In the district court, the State argued in a motion in limine that the murder conviction of Escobar was admissible to corroborate the identification of Escobar. This argument on thePRWLRQZDVPDGHEHIRUHWKHWULDOVRI(VFREDUDQG)ORUHVZHUHVHYHUHG ........................................ Ð116 Nev. 659, 662 (2000) Flores v. StateÐ Ð motion was made before the trials of Escobar and Flores were severed. The district court, in its ruling that the evidence was admissible as to Escobar, stated “[a]s to how that plays with Mr. Flores, that is a difficulty. . . . So for limited purposes it can be used. Not necessarily against Mr. FLORES, because he didn't have the gun at the earlier setting but nonetheless it's part of the story and the jury should be entitled to hear that, for whatever it's worth.” [Headnote 2] The State now argues that the evidence of Escobar's murder of Arrequin is admissible under the complete story doctrine. Evidence of other bad acts may be admissible to provide necessary context under the complete story doctrine. See NRS 48.035. 1 We conclude, however, that the complete story doctrine is not implicated on the facts of this case. There is no basis for suggesting that the Arrequin killing was so interconnected with the Cabral killing that a witness could not describe the Cabral killing without referring to the Arrequin killing. See Bletcher v. State, 111 Nev. 1477, 1480, 907 P.2d 978, 980 (1995) (admitting evidence of other crime was reversible error). The State also argues the evidence of the Arrequin murder is admissible to show motive. There is no evidence in the record to support that argument. There is evidence that all the victims and both accused killers were gang members, and the same question, apparently related to gang membership, was asked in each case. Why that would provide motivation for the killing, however, is mere speculation, not evidence or a legitimate inference from the evidence. [Headnote 3] The relevant argument for admitting Escobar's participation in the Arrequin murder into evidence against Flores is to help corroborate the identity of Flores. Linking the gun used in the Cabral killing to the gun Escobar used in the Arrequin killing and then linking Flores to Escobar does have some relevance on the issue of Flores' identity. According to NRS 48.035(1), however, even if the evidence of Escobar's prior bad act was relevant, the district court was still obligated to determine whether its probative value was substantially outweighed by the danger of unfair prejudice. __________ 1

The complete story doctrine is codified in NRS 48.035(3), which provides: 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 . . . 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.

........................................ Ð116 Nev. 659, 663 (2000) Flores v. StateÐ Ð See Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985). We hold the district court abused its discretion by admitting the prior murder by Escobar in the Flores trial. The danger of unfair prejudice created by introducing a prior murder by Flores' friend and co-defendant far outweighed the tenuous probative value on the issue of Flores' identity. Furthermore, the fact that the same gun allegedly used by Flores was previously in the hands of his partner Escobar could have been admitted without ever referring to the prior murder. The district court did not reconsider the admissibility of Escobar's prior bad act after Escobar's trial was severed, despite express reservations about its admissibility as to Flores when the motion in limine was granted. No limiting instruction was given. The probative value of the evidence for permissible purposes was minimal, while the danger of unfair prejudice was substantial. It was manifest error to admit the murder by Escobar into evidence in the severed trial of Flores. [Headnote 4] Flores also argues that Detective Garcia's testimony concerning his encounters with Flores and Escobar in the course of his work for the gang unit was improperly admitted. We disagree. Garcia's testimony related to the identification of Flores and Escobar, and their association, through a series of photographs taken by the gang unit of the Metropolitan Police Department. Flores admitted to having been a gang member and Garcia testified that the fact that the gang unit took the photograph did not mean that a criminal act was involved. The evidence of the gang unit's involvement was thus properly limited to identification of photographs with no other adverse inferences. Futhermore, virtually all the witnesses testified regarding gang affiliation without objection by counsel, so the fact that a gang unit might have identified the defendant is not any more prejudicial than the gang affiliation. The district court did not abuse its discretion in admitting the testimony of a gang unit officer. We have considered the other arguments on appeal and find them to be without merit. In view of the error in admitting the evidence of the murder committed by Escobar against Flores, we reverse the judgment of conviction and remand the case to the district court for further proceedings. Maupin and Becker, JJ., concur.

____________

Ð116 Nev. 664, 664 (2000) Cordova v. StateÐ Ð CLYDE CORDOVA, JR., Appellant, v. THE STATE OF NEVADA, Respondent. No. 33873 August 21, 2000

6 P.3d 481

Appeal from a judgment of conviction, pursuant to a jury verdict, of second-degree murder with the use of a deadly weapon. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge. Defendant was convicted in the district court of second-degree murder with the use of a deadly weapon, and he appealed. The supreme court held that: (1) instruction defining malice was not plainly erroneous, (2) enhancement of defendant's sentence based upon use of deadly weapon was not precluded by statute, and (3) any error in admitting detective's testimony that he believed defendant's confession was “sincere” was harmless.

Affirmed. [Rehearing denied October 3, 2000] John P. Calvert, Reno, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent. 1. Criminal Law. Failure to object during trial generally precludes appellate consideration of an issue. 2. Homicide. Jury instruction in second-degree murder prosecution which stated that “malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart,” was not plainly erroneous. Instruction used statutory language, and jury was properly instructed on presumption of innocence and State's burden to prove every element of crime charged beyond reasonable doubt. NRS 200.020(2). 3. Sentencing and Punishment. Offense of second-degree murder did not include use of a firearm as essential element, and thus statute authorizing sentence enhancement imposed for use of deadly weapon unless use of firearm was essential element of offense for which defendant was convicted did not preclude imposition of enhancement for defendant convicted of second-degree murder based upon his shooting through closed front door of victim's apartment. NRS 193.165(1). 4. Criminal Law. Any error in admitting detective's testimony on redirect examination that he believed defendant's confession that he acted alone in committing murder was “sincere” was harmless, where detective did not testify asH[SHUWZLWQHVV

........................................ Ð116 Nev. 664, 665 (2000) Cordova v. StateÐ Ð expert witness, defense counsel on cross-examination initiated inquiry into detective's experience regarding false confessions, and defendant's assertion that he confessed falsely to take blame for his friend was not plausible. 5. Criminal Law. An expert may not comment on a witness's veracity or render an opinion on a defendant's guilt or innocence.

Before Maupin, Shearing and Becker, JJ. OPINION Per Curiam: A jury found appellant Clyde Cordova, Jr., guilty of second-degree murder with the use of a deadly weapon. Cordova contends that the jury instruction defining implied malice was erroneous, the enhancement for use of a deadly weapon does not apply in this case, and a witness for the State improperly testified regarding Cordova's veracity. FACTS Early in the morning on March 11, 1997, there was a knock at the door of Richard Harding's apartment on Kietzke Avenue in Reno. Harding was present with other residents of the apartment and some visitors. Harding approached the door and asked, “Who is it?” Several bullets were then fired through the door. Two struck Harding, and he died within a short time. Police recovered nine nine-millimeter shell casings outside the apartment. A number of people had visited the apartment that night, including Cordova, and alcohol and marijuana had been consumed. The next day, after questioning Cordova, police obtained a warrant and searched the apartment of Damian Hodson. They found three handguns, including the nine-millimeter pistol that was used to kill Harding. Hodson told police that he had loaned the gun to Cordova the night before. After further questioning, Cordova confessed to police that he had obtained the pistol from Hodson, gone to the victim's apartment, knocked on the door, and then fired through it. Cordova had been drinking alcohol

and felt that the occupants of the apartment had insulted him earlier. The jury found Cordova guilty of second-degree murder with the use of a deadly weapon. The district court entered judgment accordingly and sentenced him to two consecutive terms of life imprisonment with the possibility of parole. ........................................ Ð116 Nev. 664, 666 (2000) Cordova v. StateÐ Ð DISCUSSION The jury instruction defining implied malice Jury instruction number 14 stated: “Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.” Cordova claims that this instruction was improper because the word “shall” creates an impermissible mandatory presumption, relieving the State of its burden of proof. [Headnotes 1, 2] Cordova failed to object to the instruction below. Failure to object during trial generally precludes appellate consideration of an issue. Rippo v. State, 113 Nev. 1239, 1259, 946 P.2d 1017, 1030 (1997). Despite such failure, this court has the discretion to address the assigned error if it was plain and affected Cordova's substantial rights. See NRS 178.602 (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”). No such error occurred here. The instruction uses the language provided in NRS 200.020(2), and this court has upheld use of the instruction where the jury is properly instructed on the presumption of innocence and the State's burden to prove beyond a reasonable doubt every element of the crime charged. See Doyle v. State, 112 Nev. 879, 900-02, 921 P.2d 901, 915-16 (1996). The jury was so instructed here. Therefore, no error occurred at all. We take this opportunity, however, to clarify that nothing prevents district courts from instructing juries that malice “may be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.” 1 The legislature has not prohibited any definition of malice other than that set forth in NRS 200.020, as it has done in regard to defining reasonable doubt. See NRS 175.211(2) (providing that no definition of reasonable doubt other than the one in NRS 175.211(1) may be given to juries). Moreover, the use of “may” in the instruction is preferable because it eliminates the issue of a mandatory presumption, raised by Cordova and manyDSSHOODQWVFKDOOHQJLQJPXUGHUFRQYLFWLRQV __________ 1

This court has never addressed this matter before. In Witter v. State, 112 Nev. 908, 917 n.3, 921 P.2d 886, 893 n.3 (1996), overruled on other grounds by Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), we approved an instruction which stated that malice “may” be implied. However, we did so apparently assuming that the instruction used “shall,” as provided in NRS 200.020(2) and approved in Guy v. State, 108 Nev. 770, 777 & n.2, 839 P.2d 578, 582 & n.2 (1992). See Witter, 112 Nev. at 918, 921 P.2d at 893. In Witter and Guy, the use of “shall” in defining implied malice was not at issue; rather, the court considered whether the instruction adequately distinguished express malice and implied malice. See id.; Guy, 108 Nev. at 777, 839 P.2d at 582. ........................................ Ð116 Nev. 664, 667 (2000) Cordova v. StateÐ Ð appellants challenging murder convictions, and avoids the concerns addressed in Doyle, which prompted this court to look to other instructions to determine if the State's burden of proof had been properly articulated. See

Byford v. State, 116 Nev. 215, 248 n.11, 994 P.2d 700, 722 n.11 (2000) (Maupin, J., concurring). Enhanced punishment for use of a deadly weapon [Headnote 3] Cordova argues that the sentence enhancement imposed for his use of a deadly weapon was improper because use of a deadly weapon was a necessary element of the crime he committed. He made this argument at his sentencing, and the district court rejected it. We conclude that the district court did not err. NRS 193.165(1) provides for imposition of an additional, consecutive prison term equal to the term prescribed for a crime when a deadly weapon is used to commit the crime. However, pursuant to NRS 193.165(3), this provision does not apply where the use of a deadly weapon “is a necessary element of such crime.” The jury in this case was instructed that if it found beyond a reasonable doubt that the Defendant committed the offense of shooting or aiding or abetting the shooting by another into an occupied dwelling, and that it is a felony dangerous to human life, then you may return a verdict of guilty on the felony offense of Murder of the Second Degree. 2 The jury returned a special verdict form showing that it found Cordova guilty of second-degree murder in the commission of a dangerous felony. Because the jury found that he committed felony murder based on the predicate felony of shooting into an occupied dwelling, Cordova asserts that use of a deadly weapon was an element of the crime he committed. Therefore, he concludes, NRS 193.165(3) precludes the deadly weapon enhancement in his case. The California Supreme Court considered this issue in People v. Hansen, 885 P.2d 1022 (Cal. 1994). In that case, the appellant was convicted of second-degree murder based on felony murder,WKHSUHGLFDWHIHORQ\

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This instruction was drafted by Cordova's counsel based on Sheriff v. Morris, 99 Nev. 109, 659 P.2d 852 (1983), which discusses the requirements for second-degree felony murder. However, the instruction misstated Morris, which requires a predicate felony to be “inherently dangerous,” not simply “dangerous,” to human life. See Morris, 99 Nev. at 115-19, 659 P.2d at 857- 59. We conclude that any error was insignificant because the felony of discharging a firearm into an occupied building is inherently dangerous to human life. Cf. People v. Hansen, 885 P.2d 1022, 1026-27 (Cal. 1994). Moreover, the error has not been raised on appeal and is attributable to Cordova in the first place. ........................................ Ð116 Nev. 664, 668 (2000) Cordova v. StateÐ Ð the predicate felony being discharging a firearm at an inhabited dwelling. Hansen, 885 P.2d at 1031. A California statute provided for an enhancement of a person's sentence for using a firearm in the commission of a felony “ ‘unless use of a firearm is an element of the offense of which he or she was convicted.' ” Id. (quoting Cal. Penal Code § 12022.5(a)). The court held: The phrase “element of the offense” signifies an essential component of the legal definition of the crime, considered in the abstract. In the present case, the crime of which defendant was convicted was second degree murder. The offense, considered in the abstract, does not include use of a firearm as an element. Second degree murder may be committed in a myriad of ways, some that involve use of a firearm, and others, such as stabbing, poisoning, or strangling, that do not involve use of this type of weapon. Under [the pertinent statute], the enhancement applies unless “use of a firearm is an element of the offense” and

not merely the means by which the offense was committed or the factual predicate of a theory upon which the conviction was based. Id. at 1031-32 (citations omitted); cf. State v. Olsen, 760 P.2d 603, 605 (Ariz. Ct. App. 1988) (“Appellant's suggestion that the mandatory sentencing scheme did not apply because the elements of the crime included the ‘enhancer' is not persuasive. Appellant confuses the elements of the crime with the mode of its commission.”). We consider the reasoning in Hansen persuasive and applicable to NRS 193.165(3). NRS 193.165(3) precludes the weapon enhancement only if use of a deadly weapon is a “necessary element” of the crime committed. This language refers to, as stated by the California court, “an essential component of the legal definition of the crime, considered in the abstract.” In decreeing that a crime committed with the use of a deadly weapon should be punished more severely than one committed without such use, the Nevada Legislature did not intend to exclude felony murder whenever an element of the predicate felony was use of a deadly weapon. Cf. Hansen, 885 P.2d at 1032. On the contrary, we conclude that this is precisely the kind of situation for which enhanced punishment is intended. Comments by a witness on the veracity of the appellant Cordova contends that a witness for the prosecution improperly commented on the truthfulness of Cordova's pretrial statement to police. Cordova did not object to the testimony in question, so again we review for plain error affecting Cordova's substantial rights, pursuant to NRS 178.602. We conclude that admission of the testimony was not plainly erroneous or prejudicial to Cordova. ........................................ Ð116 Nev. 664, 669 (2000) Cordova v. StateÐ Ð [Headnote 4] Cordova's only defense was to raise the possibility that Hodson, the friend who loaned Cordova the murder weapon, accompanied Cordova to the victim's apartment and fired the shots and that Cordova falsely accepted the blame for his friend. Hodson had fled and gone into hiding sometime after the crime. During cross-examination of the detective who took Cordova's confession, defense counsel asked if the detective had “been involved in investigations where individuals in serious felony cases, even shooting cases, have taken responsibility for shooting to cover someone else?” The detective answered that he had. On redirect examination, the prosecutor asked the detective, “And in all of the murder investigations which you have ever conducted, have you ever had a person confess to a murder they did not commit?” The detective answered that he never had, other than persons who were mentally disturbed and claimed responsibility for a murder that never occurred. The prosecutor asked if Cordova had seemed mentally disturbed, and the detective said no. The detective felt that Cordova was “sincere” when he said he committed the crime by himself. 3 [Headnote 5] Cordova contends that the detective improperly testified on Cordova's veracity and guilt under Nevada case law. An expert may not comment on a witness's veracity or render an opinion on a defendant's guilt or innocence. See Lickey v. State, 108 Nev. 191, 196, 827 P.2d 824, 827 (1992); Winiarz v. State, 104 Nev. 43, 50-51, 752 P.2d 761, 766 (1988). This case law is not precisely on point here. The detective did not testify as an expert, nor did he comment on Cordova's veracity as a witness. However, the detective's opinion on the truthfulness of Cordova's confession did implicate the ultimate question of guilt or innocence, and we recognize the possibility that jurors “may be improperly swayed by the opinion of a witness who is presented as an experienced criminal investigator.” Sakeagak v. State, 952 P.2d 278, 282 (Alaska Ct. App. 1998). More apposite is Flynn v. State, 847 P.2d 1073 (Alaska Ct. App. 1993), which Cordova cites. In that case the court concluded WKDW D SROLFH VHUJHDQW V H[SHUW WHVWLPRQ\ ³WKDW KH KDG µ\HW WR KDYH DQ

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__________ 3

In response to other questions by the prosecutor, the detective opined that Hodson had gone into hiding because he did not want to testify against his friend, Cordova. Cordova complains that this opinion was improper, but he failed to object below, and he provides no authority to this court in support of his claim. We therefore decline to consider it. See Jones v. State, 113 Nev. 454, 468, 937 P.2d 55, 64 (1997) (a contention unsupported by specific argument or authority should be summarily rejected on appeal). It should be noted that another possible motive for Hodson's disappearance was that he faced likely felony charges because police had found more than a pound of marijuana at his apartment when they recovered the murder weapon. ........................................ Ð116 Nev. 664, 670 (2000) Cordova v. StateÐ Ð that a police sergeant's expert testimony “that he had ‘yet to have an innocent person confess' was tantamount to a statement of his professional opinion that [the appellant] had confessed truthfully and was therefore guilty as charged.” Flynn, 847 P.2d at 1075. The appellant had objected unsuccessfully to the testimony. Id. The appellant's “confession was central to the prosecution's case at trial; yet the circumstances surrounding the confession rendered [the appellant's] claim of coercion at least arguably plausible.” Id. at 1076. The appellate court concluded that the trial court had abused its discretion in admitting the testimony. Id. This case still differs from Flynn in several ways. First, Cordova's counsel initiated inquiry into the detective's experience regarding false confessions. Thus, Cordova opened the door to the prosecutor's questions on the subject. Cf. Colon v. State, 113 Nev. 484, 493, 938 P.2d 714, 720 (1997) (prosecutor's reference to appellant's refusal to cooperate with police not reversible error where appellant's counsel raised the issue), limited on other grounds by Salgado v. State, 114 Nev. 1039, 1042, 968 P.2d 324, 326 (1998). Second, although Cordova implied that he confessed falsely to take the blame for Hodson, the circumstances surrounding the confession do not render this implication plausible. And third and fourth, Cordova did not object to the prosecutor's questions, and the detective did not testify as a qualified expert. We conclude that if any error occurred here, it was not plain error and did not affect Cordova's substantial rights. CONCLUSION None of Cordova's assignments of error warrants relief. We affirm his conviction and sentence.

____________

Ð116 Nev. 670, 670 (2000) Walker v. StateÐ Ð Ð JOHNNY HUGHES WALKER, JR., Appellant, v. THE STATE OF NEVADA, Respondent. No. 34061 August 21, 2000

6 P.3d 477

Appeal from a judgment of conviction entered pursuant to a jury verdict of one count of battery with the use of a deadly weapon. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge. Defendant was convicted in the district court of one count of battery with the use of a deadly weapon, and he appealed. The supreme court, Becker, J., held that: (1) information was sufficiently detailed to put defendant on notice that State was pursuLQJDOWHUQDWHWKHRULHVRIFULPLQDOOLDELOLW\

........................................ Ð116 Nev. 670, 671 (2000) Walker v. StateÐ Ð ing alternate theories of criminal liability; (2) accomplice's statement to victim during earlier confrontation was admissible under Hillmon doctrine, Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892); (3) accomplice's statement to third party that he shot victim because victim had tried to steal accomplice's necklace was admissible as statement against penal interest; and (4) refusal to admit accomplice's statement to third party was harmless error. Affirmed. Philip J. Kohn, Special Public Defender, and Dayvid J. Figler, Deputy Special Public Defender, Clark County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. The State may proceed on alternate theories of liability as long as there is evidence in support of those theories. 2. Conspiracy. Although the State must allege specific facts concerning its theories of liability so as to afford a criminal defendant adequate notice to prepare his defense, it is not necessary to plead a conspiracy in the charging document if the evidence actually shows its existence. 3. Indictment and Information. Information was sufficiently detailed to put defendant on notice that State was pursuing alternate theories of criminal liability. State alleged, that defendant either directly committed offense, aided and abetted in offense by acting in concert in its commission, or conspired to commit offense and was vicariously liable for acts committed in furtherance of conspiracy. 4. Criminal Law. Under the Hillmon doctrine, when the performance of a particular act by an individual is an issue in a case, his intention, or state of mind, to perform that act may be shown, and 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. NRS 51.105(1). 5. Criminal Law. Accomplice's statement to victim during earlier confrontation that “[I] ain't going out like no punk,” was admissible in battery prosecution under Hillmon doctrine to show that victim, whom defendant had accused of stealing accomplice's necklace, believed that defendant and accomplice intended to retaliate for that theft. Statement was highly relevant to show that defendant and accomplice had carried out intent to retaliate when they lured victim and victim's friend to schoolyard and then shot victim. NRS 51.105(1). 6. Criminal Law. Accomplice's statement to third party that he shot victim because victim had tried to steal accomplice's necklace was admissible in battery prosecution as statement against penal interest. Accomplice was set to be WULHG VHSDUDWHO\ IROORZLQJ GHIHQGDQW V

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........................................ Ð116 Nev. 670, 672 (2000) Walker v. StateÐ Ð tried separately following defendant's trial, and was thus unavailable to testify, accomplice exposed himself to criminal liability for battery or attempted murder by bragging that he shot victim, and defendant made statement during private conversation with good friend at time when he was not implicated in shooting. NRS 51.345. 7. Criminal Law. The statutory test for determining the admissibility of statements against penal interest is whether the totality of the circumstances indicates the trustworthiness of the statement or corroborates the notion that the statement was not fabricated to exculpate the defendant. Corroboration by a particular type of independent evidence is not required to establish the trustworthiness of the statement. NRS 51.345. 8. Criminal Law. Hearsay errors are subject to harmless error analysis. 9. Criminal Law. Error in refusing to admit accomplice's statement to third party that he shot victim because victim had tried to steal accomplice's necklace as statement against penal interest was harmless in battery prosecution, where evidence was sufficient to convict defendant under alternate theories as either aider and abettor or co-conspirator. NRS 51.345.

Before Maupin, Shearing and Becker, JJ. OPINION By the Court, Becker, J.: Appellant Johnny Hughes Walker, Jr., was sentenced to a minimum term of four years in the Nevada State Prison after a jury convicted him of one count of battery with the use of a deadly weapon. Walker alleges numerous errors on appeal, including the failure to admit an out-of-court statement made by his co-defendant. Having considered Walker's claims of error, we affirm Walker's conviction for battery with the use of a deadly weapon. However, we take this opportunity to clarify the statutory test for admission at trial of statements against penal interest. 1 FACTS In September of 1997, police responded to a 911 call at the residence of seventeen-year-old David Dimas in Las Vegas. He had been shot in the neck. David recovered from the gunshot wound and eventually gave a statement to police implicating Walker and his cousin, Christian Walker, in the shooting. Both Walker and Christian were arrested and charged with attempted murder with WKH XVH RI D GHDGO\ ZHDSRQ DQG

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Walker also alleges prosecutorial misconduct, erroneous admission of photographs at trial, insufficient evidence to support his conviction, and cumulative error. After carefully reviewing the record on appeal and the briefs filed herein, we conclude that these remaining contentions are without merit.

........................................ Ð116 Nev. 670, 673 (2000) Walker v. StateÐ Ð the use of a deadly weapon and battery with the use of a deadly weapon. Their trials were severed, and Walker's first jury trial ended in a mistrial. According to the evidence presented by the State at Walker's second trial, a dispute over a missing necklace belonging to Christian had arisen between Christian and David on the day of the shooting, and Christian had accused David of stealing the necklace. After confronting David at his house earlier that day, Christian returned to David's house late that evening, this time with Walker, and the two lured David and his friend, Brandon Douzat, to a nearby schoolyard. Although the State presented alternate theories of liability against Walker, including aiding and abetting and conspiracy, David testified that Walker shot him as they shook hands before leaving the schoolyard. The jury acquitted Walker of attempted murder with the use of a deadly weapon but found him guilty of battery with the use of a deadly weapon. DISCUSSION I.

Jury instructions on conspiracy

Walker contends that the district court erred in allowing the State to proceed on a theory of conspiracy because conspiracy was not pleaded in the information and there was no evidence of conspiracy presented at trial. We disagree. Initially, the record reveals that, although he did move to dismiss the conspiracy counts at trial, Walker did not object to the jury instructions on the record. Accordingly, we conclude that Walker has waived any right to assign error to the jury instructions on appeal. See Etcheverry v. State, 107 Nev. 782, 784-85, 821 P.2d 350,

351 (1991) (failure to object to jury instruction at trial bars appellate review). [Headnotes 1, 2] Even if Walker had not waived this issue, the result would be the same. The State may proceed on alternate theories of liability as long as there is evidence in support of those theories. See Holmes v. State, 114 Nev. 1357, 1363, 972 P.2d 337, 341-42 (1998). Although the State must allege specific facts concerning its theories of liability so as to afford a criminal defendant adequate notice to prepare his defense, it is not necessary to plead a conspiracy in the charging document if the evidence actually shows its existence. See Goldsmith v. Sheriff, 85 Nev. 295, 304-05, 454 P.2d 86, 92 (1969). [Headnote 3] We conclude that the information in this case was sufficiently detailed to put Walker on notice that the State was pursuing alterQDWHWKHRULHVRIFULPLQDOOLDELOLW\ ........................................ Ð116 Nev. 670, 674 (2000) Walker v. StateÐ Ð nate theories of criminal liability. In particular, the State alleged three theories of principal liability in Walker's information: (1) Walker directly committed the offense; (2) Walker aided and abetted in the offense by acting in concert in its commission; and (3) Walker conspired to commit the offense and is vicariously liable for acts committed in furtherance of the conspiracy. II.

Admission of hearsay statement of co-defendant

Walker contends that his co-defendant Christian's statement, “I ain't going out like no punk,” was not admissible pursuant to the state of mind exception to the hearsay rule because it was too ambiguous to bear on Walker's state of mind. Christian allegedly made the statement to the victim, David, during an earlier confrontation between Christian and David over the missing necklace. We disagree. [Headnote 4] Pursuant to NRS 51.105, 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. See NRS 51.105(1). The Hillmon 2

doctrine, a well-settled rule of evidence, provides that: [W]hen 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.

Lisle v. State, 113 Nev. 679, 691, 941 P.2d 459, 467 (1997) (citations omitted). [Headnote 5] We conclude that Christian's statement was properly admitted to show Christian's, not Walker's, state of mind. The record reveals that on the day of the shooting, Christian told David that he “ain't going out like no punk.” David understood this statement to mean that Christian was going to retaliate because his necklace was missing. In light of the State's theories of conspiracy and/or aiding and abetting, Christian's statement of intent was highly relevant to show that he and Walker carried out his intent to retaliate by luring David and Brandon to the schoolyard and then shooting David. Accordingly, we conclude that the districtFRXUWGLGQRWDEXVHLWV

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__________ 2

Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892). ........................................

Ð116 Nev. 670, 675 (2000) Walker v. StateÐ Ð court did not abuse its discretion by admitting Christian's statement at trial. See Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985) (decision to admit evidence is within the sound discretion of the district court, and this court will not disturb that decision unless it is manifestly wrong). III. Exclusion of hearsay statement of co-defendant [Headnote 6] Walker contends that the district court erred by refusing to admit at trial another statement allegedly made by Christian after the shooting as a statement against penal interest. We agree. Pursuant to NRS 51.345, a statement against penal interest is admissible if: (1) at the time of its making, the statement tends to subject the declarant to civil or criminal liability; (2) a reasonable person in that position would not have made the statement unless he believed it to be true; and (3) the declarant is unavailable as a witness at the time of trial. See NRS 51.345(1). If the statement is offered to exculpate an accused, however, an additional requirement exists: corroborating circumstances must clearly indicate the trustworthiness of the statement. Id. At trial, Walker proffered the testimony of Josh Martinez who, if allowed to testify, would have stated that Christian told him, “I shot a guy over my necklace. He tried to jack me.” The State objected to the admission of the testimony, arguing that there were no corroborating circumstances indicating the trustworthiness of the statement. The district court found the statement unreliable and refused to admit the testimony. During the defense offer of proof, Martinez stated that he and Christian were good friends and that Christian told him that he shot someone over his necklace. Martinez further stated that sometime later, while the two were driving to pick up a friend, Christian recanted the statement, saying “I was just messing [with you].” Martinez indicated that the two were smoking marijuana and drinking alcohol when Christian made the statement and that he understood from his conversation with Christian that the shooting occurred during the course of a robbery. Martinez also indicated that Christian gave him a gun for safekeeping on the evening that he made the statement and that Christian and Walker retrieved the gun from him several days later. The record reveals that Martinez's proffered testimony clearly complied with the first three requirements of NRS 51.345. Christian, the declarant, was a co-defendant set to be tried separately after Walker's trial and thus was unavailable within the meaning of the statute. By bragging that he shot David for stealing his necklace, Christian exposed himself to criminal liability for attempted murder or battery. ........................................ Ð116 Nev. 670, 676 (2000) Walker v. StateÐ Ð It was the fourth requirement of trustworthiness that concerned the district court and upon which it based the decision to exclude Christian's statement. During the defense offer of proof below, the State urged the district court to exclude the statement because there was no independent corroborating evidence demonstrating the trustworthiness of the statement. In refusing to admit the statement, the district court indicated that it found the statement unreliable. [Headnote 7] The fact that much of the State's argument focused on a lack of independent corroborating evidence indicates to us that the use in the statute of the language “corroborating circumstances” gives the erroneous impression

that some sort of specific independent evidence is necessary to establish trustworthiness. Accordingly, we take this opportunity to clarify our decisions in Sparks v. State, 104 Nev. 316, 759 P.2d 180 (1988) and Woods v. State, 101 Nev. 128, 696 P.2d 464 (1985) by reiterating that the statutory test for determining the admissibility of statements against penal interest under NRS 51.345 is whether the totality of the circumstances indicates the trustworthiness of the statement or corroborates the notion that the statement was not fabricated to exculpate the defendant. Corroboration by a particular type of independent evidence is not required to establish the trustworthiness of the statement. We conclude that the district court erred by refusing to admit Martinez's proffered statement. The record reveals that Christian made the statement to Martinez during a private conversation at home and that Christian was not implicated in the shooting at that time. The record further reveals that the two were good friends, and it is well-settled that a statement against interest made to a close friend or relative is considered to be more reliable than a statement made to a stranger. See Woods, 101 Nev. at 134-35, 696 P.2d at 469 (1985). Christian's recantation a short time later could indicate that he realized the grave consequences of making such a statement and wanted to protect himself from criminal liability. There is no indication that Martinez was in any way involved in the shooting and no advantage accrued to him for proffering the testimony. These corroborating circumstances support a finding of trustworthiness under NRS 51.345 for purposes of admissibility of evidence. The fact that Christian was drinking and smoking marijuana when he uttered the confession should be considered by the jury in determining what weight and credence to give Martinez's testimony. See Hutchins v. State, 110 Nev. 103, 107, 867 P.2d 1136, 1139 (1994) (weight and credibility issues are solely for the jury). ........................................ Ð116 Nev. 670, 677 (2000) Walker v. StateÐ Ð [Headnotes 8, 9] However, hearsay errors are subject to harmless error analysis. See Franco v. State, 109 Nev. 1229, 1237, 866 P.2d 247, 252 (1993). The State was proceeding on alternate theories of liability. Thus, even if the jury rejected the notion that Walker was the shooter in this case, the jury could still find him guilty as an aider and abettor or a co-conspirator. The record reveals sufficient evidence to support Walker's conviction based upon these alternate theories of liability. Accordingly, we conclude that the failure to admit Christian's out-of-court statement was harmless error. CONCLUSION We affirm Walker's judgment of conviction of battery with the use of a deadly weapon. Maupin and Shearing, JJ., concur.

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Ð116 Nev. 677, 677 (2000) Speer v. StateÐ Ð Ð MICHAEL RICHARD SPEER, Appellant, v. THE STATE OF NEVADA, Respondent. No. 35587 August 21, 2000

5 P.3d 1063

Appeal from a district court order denying appellant's post-conviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge.

Petitioner, who had been convicted pursuant to guilty plea of felony driving under the influence (DUI), filed petition for writ of habeas corpus. The district court denied petition. Petitioner appealed. The supreme court held that petitioner's prior felony DUI conviction was properly used to enhance his subsequent DUI conviction to a felony. Affirmed. Richard F. Cornell, Reno, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent. 1. Statutes. The construction of a statute is a question of law. 2. Statutes. 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.

........................................ Ð116 Nev. 677, 678 (2000) Speer v. StateÐ Ð 3. Statutes. Statutory language should be construed to avoid absurd or unreasonable results. 4. Statutes. In construing statute, no part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided. 5. Automobiles. Prior felony driving under the influence (DUI) conviction may be used to enhance a subsequent DUI conviction to a felony so long as the prior offense occurred within 7 years immediately preceding the date of the principal offense or after the principal offense. NRS 484.379, 484.3792. 6. Automobiles. Trial court properly used defendant's prior felony driving under the influence (DUI) conviction to enhance a subsequent DUI conviction to a felony, where prior felony DUI conviction occurred within 7 years immediately preceding the date of the principal offense. NRS 484.379, 484.3792.

Before Maupin, Shearing and Becker, JJ. OPINION Per Curiam: The issue before this court is whether a felony DUI conviction may be used as a prior offense to enhance a subsequent DUI conviction to a felony. We conclude that it may. FACTS Appellant Michael Richard Speer pleaded guilty to driving under the influence in violation of NRS 484.379. At sentencing, the State offered evidence of two prior convictions for the same or similar conduct within the preceding 7 years. One of the prior convictions was entered in connection with a misdemeanor offense that occurred in 1996; the other involved a felony offense that occurred in 1991. The 1991 offense was enhanced to a felony because Speer had two or more DUI convictions prior to the 1991 offense. The 1996 offense was treated as an unenhanced “first offense” pursuant to a plea agreement; however, the parties agreed that the conviction would not be treated as a “first offense” for all purposes and that Speer's next offense could be treated as a felony. Speer did not challenge the use of the prior convictions for enhancement purposes. The district court found that the State had proved that Speer had sustained two valid prior convictions and enhanced the offense to a felony. The court sentenced appellant to 28 to 72 months.

........................................ Ð116 Nev. 677, 679 (2000) Speer v. StateÐ Ð Speer subsequently filed a post-conviction petition for a writ of habeas corpus. Among other things, Speer claimed that the district court erred in using a prior felony conviction for enhancement purposes. Speer argued that only offenses denominated as a “first offense” or “second offense” may be used for enhancement. The district court denied the petition. This timely appeal followed. DISCUSSION Speer contends that the district court erred in rejecting his claim that the 1991 DUI conviction could not be used for enhancement purposes because it was a felony conviction. Speer essentially argues that under NRS 484.3792 only misdemeanor convictions may be used to enhance a subsequent offense to a felony. We disagree. [Headnotes 1-4] The issue raised in this appeal requires this court to interpret the sentencing scheme set forth in NRS 484.3792. “The construction of a statute is a question of law.” Anthony Lee R., A Minor v. State, 113 Nev. 1406, 1414, 952 P.2d 1, 6 (1997). “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.” Id. However, statutory language should be construed to avoid absurd or unreasonable results, id., and “ ‘no part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided.' ” Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) (citation omitted). Nevada law provides for a graduated scheme of sentence enhancements for DUI convictions which is based on the number of prior offenses within a given period of time. See NRS 484.3792. A person who violates NRS 484.379: (1) “[f]or the first offense within 7 years, is guilty of a misdemeanor”; (2) “[f]or a second offense within 7 years, is guilty of a misdemeanor”; and (3) “[f]or a third or subsequent offense within 7 years, is guilty of a category B felony.” NRS 484.3792(1). The statute further provides: “An offense that occurred within 7 years immediately preceding the date of the principal offense or after the principal offense constitutes a prior offense for the purposes of this section when evidenced by a conviction, without regard to the sequence of the offenses and convictions.” NRS 484.3792(2). [Headnote 5] We conclude that NRS 484.3792 is clear and unambiguous: any two prior offenses may be used to enhance a subsequent DUI so long as they occurred within 7 years of the principal offense andDUHHYLGHQFHGE\D

FRQYLFWLRQ ........................................ Ð116 Nev. 677, 680 (2000) Speer v. StateÐ Ð are evidenced by a conviction. The statute does not limit offenses that may be used for enhancement to those designated as a “first offense” or a “second offense.” In other words, the statute does not limit the use of prior offenses for enhancement purposes to misdemeanors. Rather, the statute provides that an offense, as defined by NRS 484.3792(8), that occurred within 7 years immediately preceding or after the date of the principal offense constitutes a prior offense for enhancement purposes. See NRS 484.3792(2). Thus, the key requirements for enhancement are whether the offense meets the requirements of NRS 484.3792(8) and whether it occurred within 7 years of the principal offense. Whether the prior offense was a misdemeanor or a felony is not otherwise relevant under the statute. We therefore conclude that the statute clearly allows the use of a felony conviction for enhancement purposes so long as the felony conviction was for an offense occurring within the requisite 7-year period. 1

Speer contends that this interpretation of the statute has been considered and rejected by this court in a series of prior decisions. We disagree. In several prior cases, this court has held that a second DUI conviction may not be used to enhance a conviction for a third DUI arrest to a felony where the second conviction was obtained pursuant to a guilty plea agreement specifically permitting the defendant to enter a plea of guilty to first offense DUI and limiting the use of the conviction for enhancement purposes. See, e.g., State v. Crist, 108 Nev. 1058, 843 P.2d 368 (1992); Perry v. State, 106 Nev. 436, 794 P.2d 723 (1990); State v. Smith, 105 Nev. 293, 774 P.2d 1037 (1989). Our decisions in Crist, Perry and Smith were based solely on the necessity of upholding the integrity of plea bargains and the reasonable expectations of the parties relating thereto. See Grover v. State, 109 Nev. 1019, 862 P.2d 421 (1993). The rule recognized in these cases is not applicable where, as here, there is no plea agreement limiting the use of the prior conviction for enhancement purposes. See id. Because our prior decisions in Crist, Perry and Smith depend on the existence of a plea agreement limiting the use of the prior conviction for enhancement purposes, they do not stand for the general proposition that only offenses designated as a “first” or “second” offense may be used for enhancement purposes. We therefore conclude that Speer's reliance on those cases is misplaced. Speer also argues that the interpretation adopted in this opinion is contrary to legislative intent because the legislature has rejected attempts to amend NRS 484.3792 to provide that once a defenGDQW VXIIHUV DQ

HQKDQFHGIHORQ\'8,FRQYLFWLRQDQ\VXEVHTXHQW'8,LVDIHORQ\ __________ 1

We note that the interpretation urged by Speer would lead to absurd results and would render the phrase “or subsequent offense” in NRS 484.3792(1)(c) superfluous. For these reasons, we also reject Speer's interpretation. ........................................ Ð116 Nev. 677, 681 (2000) Speer v. StateÐ Ð dant suffers an enhanced felony DUI conviction any subsequent DUI is a felony. However, we conclude that our interpretation of the statute does not necessarily lead to the same result as the amendments that the legislature has rejected. The amendments addressed by Speer essentially sought to eliminate the 7-year requirement once a person has sustained a felony conviction. By giving effect to the language in NRS 484.3792(1)(c), we have not eliminated the 7-year requirement. A defendant still must have at least two prior offenses within 7 years of the charged offense for the charged offense to be enhanced to a felony. See NRS 484.3792(2). The interpretation we endorse today comports with the plain language of the statute and gives meaning to all of the language in the statute. 2 CONCLUSION [Headnote 6] We conclude that a prior felony DUI conviction may be used to enhance a subsequent DUI conviction so long as the prior offense occurred within 7 years immediately preceding the date of the principal offense or after the principal offense. We therefore conclude that the district court did not err in rejecting Speer's claim that the 1991 felony conviction could not be used for enhancement purposes. 3 __________ 2

Speer also argues that the 1991 felony conviction was impermissibly “double counted.” The legal underpinnings of this contention are not entirely clear. Most of the cases cited by Speer involved the use of a single prior conviction to enhance the primary offense to a felony and then also to sentence the defendant for the primary offense under a general habitual felon statute. Even assuming these cases correctly state the law, Speer's 1991 felony conviction was not used both to enhance the instant offense to a felony and to adjudicate Speer as a habitual felon with respect to the instant offense. We therefore conclude that this contention lacks

merit. 3

We acknowledge that the issue addressed in this opinion appears to be a direct appeal issue that cannot be raised in a post-conviction petition for a writ of habeas corpus challenging a conviction based on a guilty plea. See NRS 34.810(1)(a); Franklin v. State, 110 Nev. 750, 877 P.2d 1058 (1994) (issues that could have been raised on direct appeal from a judgment of conviction based on a guilty plea are waived), overruled in part on other grounds by Thomas v. State, 115 Nev. 148, 979 P.2d 222 (1999). Speer raised this issue in his amended supplemental petition as a claim of ineffective assistance of counsel. However, the district court's order appears to resolve the issue on its merits, not in the context of an ineffective assistance claim. The appellate briefs address the issue in a similar fashion. We conclude that the merits of the underlying issue would be relevant to an examination of whether counsel provided ineffective assistance by failing to raise the issue at or before sentencing and, therefore, we have addressed the merits of the issue raised on appeal. Because we conclude that the issue raised lacks merit, we further conclude that trial counsel was not deficient for failing to raise the issue. See Strickland v. Washington, 466 U.S. 668 (1984). ____________

Ð116 Nev. 682, 682 (2000) Matter of Estate of FriedmanÐ Ð In the Matter of the ESTATE OF MARGARET M. FRIEDMAN. No. 33956 August 21, 2000

6 P.3d 473

Appeal from an order of the district court denying admission of a will to probate. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge. Executor of estate filed petition for probate of will. The district court denied probate, on ground that will had not been signed by two attesting witnesses, and executor appealed. The supreme court held, on issue of first impression, that notary's signature on single witness's self-proving affidavit was sufficient to constitute signature of an attesting witness to will if notary signed in presence of testator. Reversed and remanded. Theodore J. Manos & Associates, Las Vegas, for the Estate of Margaret M. Friedman. 1. Appeal and Error. The interpretation of a statute is a legal question subject to de novo review. 2. Statutes. Words in a statute should be given their plain meaning unless this violates the spirit of the act. 3. Statutes. When the language of a statute is plain and unambiguous, there is no room for construction, and the courts are not permitted to search for meaning beyond the statute itself. 4. Wills. Notary's signature on single witness's self-proving affidavit was sufficient to constitute signature of an attesting witness to will, in satisfaction of statutory requirement that will be attested by at least two witnesses, if notary signed in presence of testator. NRS 133.040. 5. Wills. Notary's signature may be sufficient to constitute signature of an attesting witness to will if notary signed in presence of testator. NRS 133.040.

Before the Court En Banc.

OPINION Per Curiam: This is an appeal from a district court order denying admission of a will to probate on the basis that the will was not attested by at least two competent witnesses as required by NRS 133.040. ........................................ Ð116 Nev. 682, 683 (2000) Matter of Estate of FriedmanÐ Ð The issue in this appeal is whether the signature of a notary public may constitute the signature of an attesting witness to a will. We conclude that the signature of the notary in this case may constitute the signature of a witness under NRS 133.040, if the notary signed the self-proving affidavit in the presence of the testator. We therefore reverse the order of the district court. Because it is not clear from the record whether the notary signed in the presence of the testator, we remand this matter to the district court for a factual determination on this issue, and for further proceedings. FACTS This case involves the last will and testament of Margaret M. Friedman, who died on May 9, 1998. Friedman executed the will on October 18, 1995, in the presence of Bobbie Mickens, Sr., a witness, and Claudette J. Moore, a notary public. Friedman's signature is contained on page four of the will. Beneath Friedman's signature is the signature of Mickens. By his signature, Mickens attested that he witnessed Friedman sign the will and declare it to be her last will and testament, and that he signed the will in the presence of Friedman. Moore did not sign this page of the will. Attached to the will as page five is a self-proving affidavit executed by Mickens on the same day, which states: Then and there personally appeared the within-named Bobbie Mickens Sr. who, being duly sworn, depose[s] and say[s]: That he witnessed the execution of the within Will of the within named Testator, Margaret M. Friedman; that the Testator subscribed the Will and declared the same to be her last Will and testament in his presence; that he thereafter subscribed the same as witness in the presence of the Testator and at the request of the Testator; that the Testator at the time of execution of the Will appeared to him to be of full age and of sound mind and memory, and that he make[s] this affidavit at the request of the Testator. Mickens signed this affidavit in his capacity as a witness, and Moore notarized Mickens' signature. Thus, Moore signed her name on the self-proving affidavit in her capacity as a notary. Frank Silver, who was named as the executor of Friedman's estate, filed a petition for probate of the will, appointment of an executor, and for letters testamentary in the district court. Silver submitted to the district court a sworn affidavit from Moore prepared during the probate proceedings, averring that she was personally present when Friedman signed the will, and that she notarized Mickens' signature on the self-proving affidavit. Moore further averred: ........................................ Ð116 Nev. 682, 684 (2000) Matter of Estate of FriedmanÐ Ð I witnessed the execution of the Will of the within-named Testatrix, Margaret M. Friedman, that the Testatrix subscribed the Will and declared the same to be her last Will and testament in my presence and in the presence of the witness Bobbie Mickens, Sr. who thereafter subscribed the same as witness in the presence of the Testatrix and at the request of the Testatrix. I further affirm that at the time of execution

of the Will Margaret M. Friedman appeared to me to be of full age and of sound mind and memory. The district court entered a written order denying admission of the will to probate on the basis that the will did not conform to the requirements of NRS 133.040. Silver appeals from the district court's order. 1 DISCUSSION The district court may admit a will to probate if it conforms to the requirements of law. Specifically, NRS 136.150(1) provides that if no person contests the probate of a will, the court may admit the will to probate on the testimony of one of the subscribing witnesses, if such testimony shows that the will was executed in all particulars as required by law, and if the testator was of sound mind at the time of execution. The district court concluded that the signature of Moore, as a notary and not as a witness, was not sufficient to satisfy the requirements of NRS 133.040. NRS 133.040 requires that a will must be attested by at least two competent witnesses who subscribe their names to the will in the testator's presence: No will executed in this state, except such nuncupative wills and such holographic wills as are mentioned in this chapter, shall be valid unless it be in writing and signed by the testator, or by some other person in his presence, and by his express direction, and attested by at least two competent witnesses, subscribing their names to the will in the presence of the testator. 2 [Headnotes 1-3] The interpretation of a statute is a legal question subject to de novo review. See Madera v. SIIS, 114 Nev. 253, 257, 956 P.2d 117, 120 (1998). It is well established that words in a statute VKRXOG EH JLYHQ WKHLU

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The district court found that none of the parties formally objected to admission of the will to probate, or requested that the estate be administered as an intestate estate. Consequently, there is no respondent on appeal, and this appeal was submitted for decision on the opening brief, appendix, and record before this court. 2

This is the version of NRS 133.040 in effect at the time relevant to this matter. NRS 133.040 was subsequently amended in 1999 to provide, in rele........................................ Ð116 Nev. 682, 685 (2000) Matter of Estate of FriedmanÐ Ð should be given their plain meaning unless this violates the spirit of the act. See County of Clark v. Doumani, 114 Nev. 46, 52, 952 P.2d 13, 16 (1998). When the language of a statute is plain and unambiguous, there is no room for construction, and the courts are not permitted to search for meaning beyond the statute itself. See id. It must be determined whether Moore's signature on the self-proving affidavit in her capacity as a notary can constitute the signature of a witness attesting the will under NRS 133.040. This is an issue of first impression in Nevada. A review of other court decisions addressing this issue is instructive. Some courts have held that a notary who signs a will in his or her capacity as a notary could be considered a valid witness to the will, even if the intent was to sign only as a notary. See Matter of Estate of Zelikovitz, 923 P.2d 740 (Wyo. 1996); Matter of Estate of Martinez, 664 P.2d 1007 (N.M. Ct. App. 1983). In both Zelikovitz and Martinez, the notary observed the testator sign the will (or codicil in the case of Zelikovitz), the notary signed the will by notarizing the testator's signature, and the notary was identified in the will as a notary. Other courts hold that a notary's signature on a will may be deemed the signature of an attesting witness if the legal requirements of a valid attestation were satisfied by the notary's signature. See In re Estate of Price, 871 P.2d 1079, 1083 (Wash. Ct. App. 1994). In the case of In re Estate of Alfaro, 703 N.E.2d 620, 627 (Ill. App. Ct.

1998), the court held that “a notary's signature may be deemed the signature of an attesting witness so long as all of the legal requirements of a valid attestation were nonetheless complied with when the notary affixed his signature.” The court explained: [T]he question to be determined is whether the notary was attesting merely to the genuineness of a signature or signatures and was therefore acting only in the capacity of a notary or whether the notary was attesting to all of the acts required by the statute that comprise the proper execution of the will and he was therefore acting as an attesting witness. Id. Only in the latter situation will the notary's signature be held to be the signature of a valid attesting witness. See id.; see also Simpson v. Williamson, 611 So. 2d 544, 546 (Fla. Dist. Ct. App. 1992) (noting that a notary has been held to be a valid witness to the execution of a will where the notary could have served as a witness, under the circumstances, had he signed in that capacity). As set forth above, NRS 133.040 requires that a will (1) must EH DWWHVWHG E\ DW OHDVW WZR

FRPSHWHQWZLWQHVVHV __________ vant part, that the will be “attested by at least two competent witnesses who subscribe their names to the will in the presence of the testator.”1999 Nev. Stat. ch. 467, § 73, at 2254. The amendment does not change our analysis. ........................................ Ð116 Nev. 682, 686 (2000) Matter of Estate of FriedmanÐ Ð be attested by at least two competent witnesses (2) subscribing their names to the will in the presence of the testator. In the case at bar, we recognize that Moore apparently intended to sign only in the capacity of a notary, and not in the capacity of a witness. Further, unlike the facts in Zelikovitz and Martinez, Moore notarized the witness's signature rather than the testator's signature. Nevertheless, we conclude that under the unique facts and circumstances of this case, Moore's signature is sufficient to constitute the signature of an attesting witness under NRS 133.040, provided that Moore signed in the presence of Friedman. First, Moore's actions constituted those of a witness attesting the will within the meaning of NRS 133.040. Moore had personal knowledge that Friedman signed the will, as Moore was present when Friedman signed the will and declared it to be her last will and testament. See Matter of Estate of Lindsay, 957 P.2d 818, 820 (Wash. Ct. App. 1998) (stating that a witness to a will is one who has personal knowledge that the testator signed the will); Price, 871 P.2d at 1083 (providing that the witness's attestation certifies that the testator's signature was valid). Moore also signed a sworn affidavit during the probate proceedings averring that Friedman appeared to be of full age and sound mind at the time she executed the will. See generally NRS 133.050(2) (providing the form for a self-proving affidavit in which the attesting witness avers that the testator appeared to be of full age and of sound mind and memory at the time of execution of the will); see also In re Weber's Estate, 387 P.2d 165, 169 (Kan. 1963) (recognizing that attesting witnesses to a will must be satisfied that the testator is of sound mind and capable of executing a will). [Headnotes 4, 5] Second, it appears that Moore may have subscribed her name to the will in Friedman's presence within the meaning of NRS 133.040. It is not clear from the record that Moore signed her name in the presence of Friedman. Moore's affidavit, prepared during the probate proceedings, does not expressly state that she signed while Friedman was present. In addition, the district court's findings of fact do not explain the precise circumstances of Moore's notarization. Provided, however, that Moore did sign in the presence of Friedman, Moore's signature complies with the statutory requirement that a witness must subscribe his or her name in the presence of the testator. 3 Additionally, even though Moore's signature is not contained on the fourth page of the will where Friedman signed, but rather on Mickens' self-proving affidavit attached to the will on page five, we

conclude that under theFLUFXPVWDQFHVRIWKLVFDVH __________ 3

If Moore did not sign in the presence of Friedman, however, then this statutory requirement was not met, and Moore's signature may not constitute the signature of an attesting witness under NRS 133.040. ........................................ Ð116 Nev. 682, 687 (2000) Matter of Estate of FriedmanÐ Ð circumstances of this case, Moore's signature on the affidavit may be considered a signature on the will itself. See NRS 133.050(1) (providing that attesting witnesses may sign self-proving affidavits to attach to the will); NRS 133.055 (stating that a signature on a self-proving affidavit attached to a will is considered a signature affixed to the will if necessary to prove the execution of the will). 4 We conclude that Moore's signature was sufficient to meet the requirements of an attesting witness under NRS 133.040, provided that Moore signed the self-proving affidavit in Friedman's presence. CONCLUSION For the reasons set forth above, we reverse the order of the district court, and we remand this matter to the district court for a factual determination on whether Moore signed the self-proving affidavit in the presence of Friedman, and for further proceedings consistent with this opinion. 5

____________

Ð116 Nev. 687, 687 (2000) Collman v. StateÐ Ð Ð THOMAS COLLMAN, Appellant, v. THE STATE OF NEVADA, Respondent. No. 31085 August 23, 2000

7 P.3d 426

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree murder and a sentence of death. Seventh Judicial District Court, White Pine County; Dan L. Papez, Judge. Defendant was convicted following jury trial in the district court of first-degree murder in connection with death of live-in girlfriend's three-year-old son and was sentenced to death. Defendant appealed. The supreme court, Agosti, J., held that: (1) evidence that defendant's girlfriend allegedly had interest in vampirism, biting, and devil worship was properly excluded at guilt phase; (2) evidence of girlfriend's lack of remorse was relevant toGHIHQVHWKHRU\WKDWJLUOIULHQGZDVUHDONLOOHU __________ 4

We recognize that the likely purpose of NRS 133.055 is to consider an attesting witness's signature, as opposed to any signature, on a self-proving affidavit attached to the will to be a signature affixed to the will itself. In this case, however, if Moore's signature constituted that of an attesting witness, then her signature on the self-proving affidavit may be considered a signature on the will itself. We note that NRS 133.055 was amended in 1999 to require also that the self-proving affidavit be executed at the same time as the will. See 1999 Nev. Stat. ch. 467, § 76, at 2255.

5

The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from participation in the decision of this appeal. ........................................ Ð116 Nev. 687, 688 (2000) Collman v. StateÐ Ð defense theory that girlfriend was real killer, but evidence of girlfriend's alleged sexual conduct immediately following victim's death was not adequately proven for purposes of admissibility; (3) evidence supported conviction; (4) child abuse is not conclusive evidence of malice in first-degree murder prosecution; (5) improper instruction to that effect was harmless; (6) supreme court will review for harmless error instructions omitting, misdescribing, or presuming an element of an offense if error is not “structural” in form and effect, overruling Thompson v. State, 108 Nev. 749, 838 P.2d 452 (1992); and (7) death sentence was not excessive or imposed under influence of prejudice or passion. Affirmed. [Rehearing denied October 25, 2000] Rose, C. J., dissented. David M. Schieck, Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Sudabeh Fahami, District Attorney, and Theodore J. Beutel and Rusty D. Jardine, Chief Deputy District Attorneys, White Pine County, for Respondent. Franny A. Forsman, Federal Public Defender, and Michael L. Pescetta, Assistant Federal Public Defender, Las Vegas, for Amicus Curiae Federal Public Defender. Stewart L. Bell, District Attorney, and Brian S. Rutledge, Chief Deputy District Attorney, Clark County, for Amicus Curiae Clark County District Attorney's Office. 1. Jury. Refusal in capital murder prosecution to excuse for cause two potential jurors who had read about case in newspaper and had heard others talk about it was not error, where district court questioned both potential jurors closely, both consistently stated that they could be fair and impartial, and court determined that neither had formed any opinion or had any bias against defendant. NRS 16.050(1), 175.036(1). 2. Criminal Law. In order to determine admissibility of evidence of prior bad acts, the district court must determine 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. NRS 48.045(2). 3. Criminal Law. Decision to admit or exclude evidence rests within the trial court's discretion, and supreme court will not overturn that decision absent manifest error.

........................................ Ð116 Nev. 687, 689 (2000) Collman v. StateÐ Ð 4. Criminal Law. Evidence that defendant's live-in girlfriend allegedly had interest in vampirism, biting, and devil worship, as proffered to prove that girlfriend, and not defendant, had committed abuse resulting in death of girlfriend's three-year-old son, was properly excluded at guilt phase of capital murder prosecution based on determination that probative value of evidence was substantially outweighed by the danger of confusing the issues and misleading the jury. NRS 48.035(1), 48.045(2), 200.030(1)(a). 5. Criminal Law; Witnesses. Defendant who advanced theory in capital murder prosecution that his live-in girlfriend, rather than he, had caused death of girlfriend's infant son by child abuse could not impeach girlfriend's testimony that she loved being pregnant with evidence that she had

once undergone an abortion. Evidence of alleged abortion was collateral to issue of who killed child, and any probative value was substantially outweighed by danger of unfair prejudice, confusing the issues, and misleading jury. NRS 48.035(1), 48.045(2), 50.085(3), 200.030(1)(a). 6. Witnesses. Impeachment of a witness on a collateral matter is not allowed. NRS 50.085(3). 7. Homicide. Evidence that defendant's girlfriend displayed lack of remorse in period immediately following death of her three-year-old son was relevant in capital murder prosecution to defense theory that girlfriend was the real killer, especially since the court admitted prosecution's evidence of defendant's lack of remorse over the child's death through testimony that defendant propositioned girlfriend for sex around the time of child's funeral. 8. Homicide. Alleged sexual conduct by defendant's girlfriend with two other women in period immediately following death of her three-year-old son, though relevant to show girlfriend's lack of remorse and to support defense theory that girlfriend was real killer, was properly excluded in murder prosecution on basis that defendant failed to prove allegations by even a preponderance of evidence. NRS 48.045(2). 9. Homicide. Evidence that defendant, in month prior to death of his girlfriend's three-year-old son, had received temporary, nondisciplinary transfer from lockdown unit of prison where he worked as guard to a less stressful unit was not improper character evidence in murder prosecution arising from death of girlfriend's son, but was admissible to show that defendant was under stress shortly before child's death. NRS 48.045(2). 10. Criminal Law. Reference to a defendant's prior criminal history may be reversible error. 11. Criminal Law. Test for determining whether there has been improper reference to prior criminal history is whether the jury could reasonably infer from the evidence presented that defendant had engaged in prior criminal activity. 12. Criminal Law. Testimony of two State witnesses in murder prosecution, alluding to fact that defendant had been in jail, were improper references to defendant's prior criminal history.

........................................ Ð116 Nev. 687, 690 (2000) Collman v. StateÐ Ð 13. Criminal Law. Improper references to prior criminal history by two State witnesses, in testimony referring to fact that defendant had been in jail, were harmless in capital murder prosecution. Statements were not made or elicited by prosecutor but were brief, inadvertent comments by inexperienced witnesses in a long and complicated trial, and jury found in penalty phase that defendant's lack of criminal history was mitigating factor. 14. Criminal Law. Videotape depicting victim as a happy baby was admissible, in capital murder prosecution arising from victim's death at age three at a time when his mother was defendant's live-in girlfriend, to show victim's demeanor prior to defendant's involvement in his life. 15. Criminal Law. Trial court has the discretion to admit or exclude photographs of a victim, and supreme court will not overturn such a ruling absent an abuse of that discretion. 16. Criminal Law. Trial court must determine in murder prosecution whether the probative value of photographs of victim is substantially outweighed by the danger of unfair prejudice. 17. Criminal Law. Entire report prepared by State's forensic expert, in which expert concluded that three-year-old victim had suffered nine different bite marks and found with high degree of confidence that defendant, who lived with victim's mother, was the biter, was admissible in capital murder prosecution after defense utilized report to cross-examine expert and showed a photograph of report to jury. Entire report was relevant because evidence of bite marks tended to prove victim was abused child. NRS 47.120(1), 200.030(1)(a). 18. Criminal Law. Proposed hearsay testimony by defense expert in forensic dentistry, that colleagues at professional conference had opined after seeing photograph of three-year-old victim's body that victim possessed only one bite mark, was not admissible in murder prosecution against boyfriend of victim's mother in which State attempted to establish pattern of child abuse. Colleagues' opinions did not possess requisite assurances of accuracy. NRS 51.075(1). 19. Criminal Law. Defense expert in forensic dentistry, in opining in murder prosecution arising from alleged child abuse that three-year-old victim's body displayed only one bite mark, could not properly testify, as basis for that opinion, to comments made by colleagues at professional conference after viewing one photograph of victim's body. Such comments would not be reasonably relied upon by an expert in forming an opinion. NRS 50.285(2). 20. Witnesses. Witness who testified that defendant's girlfriend proudly displayed bruises she allegedly inflicted on three-year-old son could properly be impeached, in capital murder prosecution arising from alleged child abuse, by evidence that witness had not called

authorities to report defendant's girlfriend as child abuser. That evidence impeached sincerity of witness's alleged concern for victim, and witness's testimony suggested a bias in favor of defendant. NRS 200.030(1)(a). 21. Witnesses. “Impeachment” consists of attacking a witness's credibility, which depends on that witness's willingness and ability to tell the truth.

........................................ Ð116 Nev. 687, 691 (2000) Collman v. StateÐ Ð 22. Witnesses. One may be impeached with respect to such matters as perception, memory, communication, sincerity, or bias. 23. Criminal Law. Proposed instruction on child abuse causing substantial bodily harm, as lesser related offense of first-degree murder, was inconsistent with defendant's theory of defense and was thus properly refused in prosecution arising from death of three-year-old son of defendant's live-in girlfriend, where defendant asserted that victim had either fallen down stairs, choked on bubble gum, or died from abuse by his mother. NRS 200.030(1)(a). 24. Criminal Law. Requirement that a defendant seeking instruction on lesser related offense demonstrate that his theory of defense is consistent with proposed instruction does not violate Fifth Amendment right against self-incrimination. U.S. Const. amend. 5. 25. Homicide. First-degree murder conviction arising from death of three-year-old son of defendant's girlfriend was supported by evidence including defendant's abuse of child in months leading up to his death, overlapping bruises of various ages on child's body, and defendant's failure to call 911 when child died while in his care. NRS 200.030(1)(a). 26. Criminal Law. In reviewing the evidence supporting a jury's verdict, supreme court must determine whether the jury, acting reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt by the competent evidence. 27. Criminal Law. Supreme court will not disturb a jury's verdict on appeal where there is substantial evidence to support it. 28. Criminal Law. Jury determines what weight and credibility to give conflicting testimony. 29. Criminal Law. Circumstantial evidence alone may support a judgment of conviction. 30. Homicide. Malice is not subsumed by willfulness, deliberation, and premeditation. NRS 200.030(1)(a). 31. Homicide. Legal defense of defense of self or others justifies a homicide and negates the element of malice. 32. Homicide. Specific intent to kill is not synonymous with malice, and thus the fact that not every murder requires a specific intent to kill does not relieve the State of the burden to prove some kind of malice to establish murder. 33. Homicide. To establish that a killing is murder, in prosecution for first-degree murder under provision that enumerates various means of causing death, State must prove that the killer acted with malice aforethought, i.e., with the deliberate intention unlawfully to take life or with an abandoned and malignant heart, and must prove one of the enumerated means to establish that the murder is of the first degree. NRS 200.020, 200.030(1)(a).

........................................ Ð116 Nev. 687, 692 (2000) Collman v. StateÐ Ð 34. Homicide. Child abuse is not conclusive evidence of malice when first-degree murder is charged under provision that enumerates several possible means of willful, deliberate, and premeditated killing. NRS 200.030(1)(a), (6)(a). 35. Criminal Law. Where a jury-instruction error is not “structural” in form and effect, supreme court will review for harmless error improper instructions omitting, misdescribing, or presuming an element of an offense; overruling Thompson v. State, 108 Nev. 749, 838 P.2d 452 (1992). 36. Homicide. Erroneous instruction in first-degree murder prosecution, that child abuse was conclusive evidence of malice, was subject to harmless-error review. Error in question was not structural in form and effect. NRS 200.030(1)(a), (6)(a). 37. Homicide. Improper instruction that child abuse was conclusive evidence of malice was harmless beyond a reasonable doubt in first-degree murder prosecution arising from death of three-year-old son of defendant's girlfriend, in light of other proper instructions, overwhelming evidence of express and implied malice, and jury's finding as aggravating circumstance in penalty phase that killing of

victim involved torture. NRS 200.030(1)(a), (6)(a). 38. Criminal Law. Harmless-error inquiry requires reviewing court to ask and answer whether it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. 39. Sentencing and Punishment. Proposed evidence that three-year-old victim's mother, who was defendant's live-in girlfriend, had interest in the occult, had once received an abortion, and allegedly lacked remorse over victim's death was irrelevant as mitigating evidence at penalty phase of capital murder prosecution arising from alleged child abuse by defendant. NRS 175.552(3), 200.030(1)(a). 40. Sentencing and Punishment. No case law or statute requires admission of witness character evidence in a penalty hearing. 41. Sentencing and Punishment. Questions concerning the admissibility of evidence during the penalty phase of a capital murder trial are generally left to the trial judge's discretion. 42. Sentencing and Punishment. Death sentence in capital murder prosecution arising from death of three-year-old son of defendant's live-in girlfriend was not imposed under influence of passion, prejudice, or any arbitrary factor and was not excessive. Jury properly found that aggravating circumstances of victim's age and defendant's torture of victim outweighed six mitigating circumstances including no significant criminal history, lack of intent to kill, and no flight of any kind. NRS 177.055(2), 200.030(1)(a), 200.033. 43. Sentencing and Punishment. Mitigating circumstance of lack of intent to kill does not prohibit imposition of death penalty in capital murder prosecution.

Before the Court En Banc. ........................................ Ð116 Nev. 687, 693 (2000) Collman v. StateÐ Ð OPINION By the Court, Agosti, J.: Appellant Thomas Collman was convicted of first-degree murder and sentenced to death for killing three-year-old Damian Stach, the son of Lory Stach, Collman's live-in girlfriend. On appeal, Collman challenges various evidentiary and other rulings of the district court. None of these challenges warrant relief. Although we conclude that the jury was erroneously instructed in the guilt phase that child abuse constituted conclusive evidence of malice aforethought, we conclude that the error was harmless. We therefore affirm Collman's conviction and sentence of death. FACTS Damian was born to Stach and her ex-boyfriend, Warren Williams, on January 5, 1993. Stach was apparently a loving, affectionate mother, and Damian a happy, healthy, and energetic baby. In September 1994, Stach moved to Las Vegas, Nevada. Stach soon met Collman, and they began dating. Shortly thereafter, Stach became pregnant with Collman's child. Stach, Collman, and two-year-old Damian then moved into a house together. Collman and Stach decided to move to Ely, Nevada, where Collman would train for a position as a prison guard at the Ely State Prison. In order to save money, Stach, Collman, and Damian moved into the home of Collman's parents in Las Vegas. On June 3, 1995, Collman moved to Ely to begin his training, and Stach and Damian remained at the Collman residence. Damian's brother, Darian, was born in August 1995. In October 1995, Stach, Damian, and Darian joined Collman at the Cross Timbers Trailer Park in Ely. In November 1995, Stach started noticing that Damian was losing his hair and that he bruised easily. She could not afford to take Damian to the doctor; however, she falsely told people that she had sought medical care for him and discovered that Damian had a disease. Stach's brother, Richard Stach, sent her $300.00 to take Damian to the doctor; instead, Stach spent the money on household bills and Christmas presents. Around this time, Damian became shy, withdrawn, and lethargic. In December 1995, the family rented a house with a basement on Avenue E in Ely. The carpeted stairs to

the basement did not have a railing, but had a T-shaped landing in the middle dividing the stairway into two sections of six steps each. On January 19, 1996, Collman was home sick and slept until noon. At about 7 a.m., Stach and the children were awake, and 6WDFK GLVFRYHUHG WKDW 'DPLDQ KDG HDWHQ D ZKROH SDFN RI EXEEOH

JXPDQGVRPHWDFRVKHOOV ........................................ Ð116 Nev. 687, 694 (2000) Collman v. StateÐ Ð Stach discovered that Damian had eaten a whole pack of bubble gum and some taco shells. Stach swatted Damian on his buttocks and sent him to his room. At noon, when Collman awakened, Stach told him what Damian had done that morning. Collman called Damian over to him and asked about the incident. Damian lied and said he did not eat the gum or the taco shells; therefore, Collman swatted Damian for lying and sent him to his room. Stach left the house at approximately 12:20 to 12:30 p.m. to do some errands. Collman, Damian, and Darian stayed at the house. According to Collman, he saw Damian go into the kitchen with the family dog following. He then heard Damian scream and a loud thud, like something hit a wall. Collman ran to the kitchen and looked down the stairs leading to the basement. He saw Damian lying at the bottom, crumpled up. Collman apparently attempted cardiopulmonary resuscitation (CPR) on Damian, but was unable to do so because the smell of Damian's vomit made Collman feel sick. Collman called the office of Jamie Sullivan, where he knew Stach was completing an errand. He told Sullivan to tell Stach that Damian fell down the stairs, Damian was turning blue, and she should get her “fucking ass” home immediately. Sullivan testified that Collman sounded angry on the phone. Collman failed to call 911; rather, he put on his clothes, picked up Damian, and ran outside and toward the hospital. When Stach received the message from Sullivan, she immediately drove home where she encountered Collman running in the street with Damian in his arms. All together Stach was away from the house for approximately twenty to thirty minutes. They rushed to the hospital, arriving at 12:53 p.m., and Collman told Stach that Darian was still at home alone and she should return to pick him up. At the hospital, the medical personnel unsuccessfully attempted for thirty minutes to resuscitate Damian, who was dead on arrival. Members of the medical staff testified that Damian was nonresponsive, bluish in color, and exhibited no signs of life when they began lifesaving procedures. They further testified that Damian was covered by overlapping bruises of various ages and possible bite marks. The bruises covered Damian's arms, legs, neck, face, head, abdomen, perineum (the area between the genitals and anus), rectum, penis, and testicles. Due to the amount, age, and areas of bruising, members of the medical staff testified that Damian's injuries were inconsistent with a fall down the stairs. Members of the medical staff testified that a story that the child fell down the stairs, the guardian's failure to call 911, the existence of overlapping bruises of varying ages, and inconsistency ofWKHEUXLVHVZLWKWKHJXDUGLDQ VVWRU\DUHDOOLQGLFDWRUVRIFKLOGDEXVH ........................................ Ð116 Nev. 687, 695 (2000) Collman v. StateÐ Ð the bruises with the guardian's story are all indicators of child abuse. Dr. Ellen Clark, the medical examiner who performed the autopsy on Damian, testified that the cause of Damian's death was asphyxia leading to brain swelling, arrhythmia due to bruising around the heart, and/or multiple blunt trauma impact. She further testified that she found no bubble gum in Damian's airway. Dr. Clark explained that Damian apparently died from his body being placed in an awkward position where his knees were very forcefully and acutely bent and pulled all the way up to his chest, compressing his chest muscles. Such compression restricted Damian's breathing and disturbed the regulation of his heartbeat. This position would also leave Damian's buttocks and genital area exposed. The multiple trauma would additionally cause fat particles to break off and travel through Damian's body into his lungs and kidneys. Dr. Clark examined and removed Damian's spinal cord and discovered that it was not injured; had it been

injured, such an injury could have been consistent with a fall downstairs. Dr. Anton Sohn, Collman's medical expert, examined only photographs of the removed spinal cord. He testified that Damian died from spinal cord injury, not blunt trauma, indicating that Damian did die from falling. Shortly after Damian's death, Stach called her brother, Richard, who immediately went to Ely with his girlfriend, Ana Flores. Collman's parents also went to Ely. On January 20, 1996, a search warrant was issued to search the house on Avenue E, requiring that Stach and Collman leave the house for a few days; during this time, they shared a motel room with Richard and Flores. Damian's funeral took place in San Mateo, California in early February 1996. Eventually, investigations led the police to arrest Collman and charge him with murder. They also arrested Stach, charging her with child abuse and neglect causing substantial bodily harm. On June 20, 1996, the State filed a notice of intent to seek the death penalty against Collman based on two aggravating factors: the murder was committed by torture, and the victim was under fourteen years of age. On June 24, 1996, Stach pleaded guilty to child neglect causing substantial bodily harm for permitting Damian to remain with a man she knew abused him. 1 In exchange for this plea, she DJUHHG WR WHVWLI\

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No allegations were made that Collman or Stach abused or neglected Damian's brother, Darian. After the events in this case, Richard became Darian's guardian. ........................................ Ð116 Nev. 687, 696 (2000) Collman v. StateÐ Ð agreed to testify truthfully against Collman. Collman's trial commenced June 16, 1997. Further evidence presented by the State The State presented evidence of Collman's prior abuse of Damian, his general treatment of Damian, and his lack of remorse over Damian's death. In January 1995, when Richard and Flores visited Collman and Stach in Las Vegas, Stach asked Collman to bathe Damian so she could wash the dishes. Collman refused, replying, “It's not my fucking kid.” In February 1995, Damian's paternal grandmother and his great aunt visited Las Vegas. They observed Collman become very agitated when Damian would cry, and Collman stated that the next time he had to watch Damian, he would throw Damian in the swimming pool and make it look like an accident. Also in February 1995, Collman hit Damian on the buttocks with a piece of wood from a broken chair, leaving a large, dark purple bruise across both buttocks and extending down his legs. When Stach confronted Collman about the severe bruise, he instructed her to tell people that Damian fell; Stach complied. Collman testified at trial that Damian had headed for the pool, and because Damian did not know how to swim, Collman hit him with the wood to stop him. In May 1995, Stach's friend, Monique Shaw, was at Collman and Stach's house. Damian was running down the street with the dog when Collman yelled to Damian to come back. Damian was laughing and did not respond to Collman. Collman stormed over to Damian, grabbed his shoulder, swung him around, and shook him. Collman had his hand up as if to hit Damian and brought his hand down. Shaw observed Damian jerk as if he had been hit. Damian started crying and ran to Stach. Around the end of May 1995, shortly before Collman left for Ely, he spent a week working on a landscaping job with his friend, Michael Palombo. During this week, Collman brought Damian to the job site everyday. One day, Damian was sitting in the truck when he soiled himself. Collman was very angry and dragged Damian from the truck, held him up in the air by one of Damian's arms, and sprayed him full blast with a hose. Damian cried during this incident. On another day, Palombo noticed Collman yelling loudly at Damian and poking him hard in the chest. At one point, Collman made a fist and reached back as if to hit Damian, when Palombo yelled to Collman not to hit Damian. Collman replied, “It teaches the kid to show me respect.”

........................................ Ð116 Nev. 687, 697 (2000) Collman v. StateÐ Ð Sometime between June and October 1995, Collman and his friend, Robert Marcum, were talking about disciplining their children. Marcum confided to Collman that he once spanked his son, Ian, too hard. Marcum explained that after he did it, he was very upset with himself, hugged Ian, and told Ian that he loved him. In response, Collman told Marcum that he had hit Damian too hard and left bruises. Sometime between October 1995 and January 1996, Stach, Collman, and Damian were at the McDonald's in Ely when they saw Marcum and Ian there. Marcum testified that Damian looked pale, sickly, and blotchy; he soon realized that Damian's face was very bruised. Damian and Ian played in the Playland and returned to the adults just as Collman brought the food from the counter. In a voice loud enough to attract attention, Collman said, “Damian, where did you get those bruises?” According to Marcum, Damian had no more bruises after returning from Playland than he did before playing. Marcum found Collman's behavior strange and his question to Damian contrived. Marcum was so concerned for Damian's welfare that he called Support, Inc., the town's support group service. The record does not reflect the result of Marcum's phone call. In November 1995, Damian had diarrhea which leaked out of his diaper and ran all over himself. Stach cleaned him up and told Collman what happened. Collman stated that little boys should not do that and spanked Damian with a plastic slotted spoon on his naked buttocks three to five times. Sometime between December 1995 and January 1996, Stach punished Damian for misbehaving by making him stand in the corner. Damian was fidgeting with his hands, so Stach told him to stop. When Damian continued to fidget, Collman used duct tape to tape Damian's hands together and to the wall high above Damian's head. When Damian started screaming hysterically, Stach made Collman let Damian loose. The incident lasted only ten to twenty seconds, and Collman testified that the tape did not stick. In January 1996, a woman observed Collman, Stach, and Damian at a store. She noticed that Damian was very bruised and became concerned for his welfare. She said hello to Damian, who looked frightened, and told Collman that she would love to take Damian home with her. The woman testified that Collman replied in a serious tone that he would give her five dollars to take him. She also noticed Collman speak to Damian in a harsh, stern, and cold way, causing Damian to cry. The woman explained that she was unable to report this incident to the authorities because no license plate was on Collman and Stach's car. ........................................ Ð116 Nev. 687, 698 (2000) Collman v. StateÐ Ð Throughout most of the time that Collman and Stach lived together, Damian almost always had bruises; the bruising became more regular after Stach, Damian, and Darian joined Collman in Ely in October 1995. 2 Stach testified that when she would return from errands after leaving the boys with Collman, Damian would have unexplained bruises. Collman repeatedly told Stach that Damian fell and instructed her to tell people the same. Stach testified that she complied with this request because she did not want to believe that Collman was harming Damian. Stach also discovered new bruises on the evening before Damian's death. In November 1995, Damian began losing his hair, possibly due to stress. Starting in December 1995, within a month of Damian's death, he became withdrawn, serious, sad, and less vivacious, and he stopped being affectionate with Collman. Many witnesses testified that Collman was not upset or emotional at the hospital on January 19, 1996. Within the couple of weeks following Damian's death, Collman repeatedly stated that he thought he was going to prison. He was also very defensive when any family member would question him about what had happened and would state that the hospital must have caused all Damian's bruises. In addition, one day the family was watching videotapes of Damian, and one showed Collman giving Damian a fake punch; Collman stated that they had better not show that videotape again. Further, Collman acted angry, impatient, uncomfortable, and irritated when Stach would cry over Damian's death. In early February 1996, while in San Mateo, California for Damian's funeral, Collman propositioned Stach

for sex and complained that they had not had sex for a long time. When she refused because she was still distraught, he responded that they were still a couple. In April 1996, when the police transported Collman from Las Vegas to Ely for questioning, he continually asked what Stach had told them and stated that “she better not have sold me out for some stupid reason.” Evidence presented by Collman Collman presented three theories of defense: that Damian died from a fall down the stairs; that Stach, not Collman, was Damian's abuser and killer; and that Damian died from choking on the bubble gum he had eaten the morning of his death. To support his theory that Damian died from falling down the stairs, Collman presented testimony from his expert witness, Dr. 6RKQWKDW'DPLDQ VGHDWKZDVWKHUHVXOWRIDVSLQDOFRUGLQMXU\FRQVLVWHQW

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Apparently, Damian did not bruise excessively between June and October 1995, when Collman was in Ely and Damian was in Las Vegas. However, one of Damian's particularly serious facial bruises in December 1995 evidently resulted when the dog accidentally knocked Damian into a fence post. ........................................ Ð116 Nev. 687, 699 (2000) Collman v. StateÐ Ð Sohn, that Damian's death was the result of a spinal cord injury consistent with a fall. Further, Collman testified that when he was lying on the couch, he heard Damian scream and then a thud. Collman stated that he found Damian at the bottom of the stairs and was unable to resuscitate him with CPR. Collman claimed that he did not call 911 because he believed that the ambulance would come from McGill (a town about twelve miles outside Ely). To support his theory that Stach had abused Damian and caused his death, Collman presented several incidents in which Stach allegedly abused Damian and was generally a bad mother, including the following. In 1993, after Damian was born, Stach was frustrated with Damian's crying and eating habits and would have others help her care for him. She once slapped Damian's leg for being uncooperative when she was changing his diaper. One witness testified that when Damian was learning to walk and used a walker, Stach allegedly kicked the walker, sending it flying across the room until Damian smashed into the wall. Stach testified that in fact Damian was about to reach a sharp knife and out of fear she pushed away Damian's walker, which rolled to the other side of the room, tapping the wall. In December 1994, Stach and Damian were staying in a hotel room with Flores and Richard in Santa Fe, New Mexico. Damian had been “acting up” all day and repeatedly made racial slurs about an African-American man who was walking outside the hotel window. Stach told him to stop, but he continued to repeat the epithet. Stach slapped Damian across the face with the back of her hand; Stach's ring cut Damian's lip, which started bleeding. Stach testified that she felt very bad about this incident and had not intended to injure Damian as she had. In October 1995, Stach brought Damian over to Rick and Kim Colon's house. Rick Colon was Collman's friend from prison guard training. Stach pulled down Damian's pants to show them his bruises and proudly announced, “That's what bad boys get at my house.” Stach suggested to the Colons that they discipline their children the same way. Rick Colon testified that he felt uncomfortable around Stach and felt concerned for Damian's welfare. However, he did not call the authorities on Damian's behalf. On Halloween 1995, Stach, Kim Colon, Shelley Muir, and their children went trick-or-treating. Damian was costumed as a football player, and Muir commented on Damian's authentic black-eye makeup. Stach allegedly replied in a serious tone, “What makeup? The little bastard did something wrong today, and I had to reprimand him.” Further, after the children got tired of walking, both Muir and Kim Colon picked up their children and carried them home, while Stach made Damian walk the whole way, calling him lazy when he would fall down.

........................................ Ð116 Nev. 687, 700 (2000) Collman v. StateÐ Ð Sometime after Halloween 1995, when Kim Colon was at Stach's residence, Damian turned on the propane gas tank for the stove. Stach, who was about to light a cigarette, saw what Damian did and punished him by hitting his naked buttocks with a spatula, causing a bruise. Stach testified that she punished him severely only because his action caused her great fear; if she had lit her cigarette, the house could have blown up from the propane. Shortly after the spatula incident, Stach and Damian visited the Colons' house, when their son, Christopher, and Damian started to turn on the propane gas tank on the stove. Kim Colon testified that Stach punished Damian by hitting his hands with a wooden spoon fifteen to twenty times, and Kim Colon did not hit Christopher. Stach testified that Kim Colon punished Christopher by hitting his hands a couple of times with a wooden spoon, and therefore, Stach did the same to Damian because she believed that the punishments should be equal. In December 1995, Damian was standing near Stach, who was smoking a cigarette. Stach bent over to pick up a puppy and accidentally burned Damian in the forehead with the cigarette. Stach would also trip Damian with a child's hockey stick as he walked by her. She testified that this was done playfully and not intended to hurt Damian. In support of his third theory, that Damian died from choking on bubble gum, Collman testified that Damian had eaten a whole pack of gum the morning of his death. At the hospital, Collman had suggested to the medical personnel that Damian may have choked on the gum. Further, members of the medical staff testified on cross-examination that they had difficulty putting an endotracheal tube down Damian's throat, indicating a blockage. This evidence was impeached by testimony that the blockage was mucous, which very commonly forms in the throat of abused children due to crying. Additionally, Dr. Clark testified that during the autopsy, she found no gum in Damian's throat. She further stated that had the gum lodged in Damian's throat at 7 a.m., when he ate the gum, he would have choked right away and not five and a half hours later. Collman's conviction and sentence On July 9, 1997, the jury returned a guilty verdict of first-degree murder against Collman. At the conclusion of the penalty phase, the jury found two aggravating factors: torture and victim under fourteen years old. The jury also found six mitigating circumstances: no significant criminal history; job history; cooperation with law enforcement; lighter sentence for Stach; lack of intent to kill; and no flight of any kind. After determining that the mitigating circumstances did not outweigh the aggravating circumstances, the jury sentenced Collman to death. ........................................ Ð116 Nev. 687, 701 (2000) Collman v. StateÐ Ð On September 8, 1997, the district court sentenced Collman to death and sentenced Stach to a term of eight to twenty years in prison. Collman's judgment of conviction and notice of appeal were filed that same day. DISCUSSION I.

Denial of motions to excuse two potential jurors for cause

[Headnote 1] Collman contends that the district court erred by failing to excuse two potential jurors for cause. Both had read about the case in the newspaper and had heard others talk about it. Collman eventually removed one by peremptory challenge, but the other served on the jury. NRS 175.036(1) permits either party to challenge an individual juror for cause if she could not adjudicate the facts fairly. NRS 16.050(1) lists grounds upon which a juror may be dismissed for cause, including:

(f) Having formed or expressed an unqualified opinion or belief as to the merits of the action, or the main question involved therein; but the reading of newspaper accounts of the subject matter before the court shall not disqualify a juror either for bias or opinion. (g) The existence of a state of mind in the juror evincing enmity against or bias to either party. In this case the district court questioned both potential jurors closely, and both consistently informed the court that they could be fair and impartial. The court determined that neither had formed any opinion or had any bias against Collman. We conclude that the court did not err in refusing to excuse either potential juror for cause. Cf. Thompson v. State, 111 Nev. 439, 441-43, 894 P.2d 375, 376-77 (1995); Bryant v. State, 72 Nev. 330, 332-35, 305 P.2d 360, 361-62 (1956). II.

Evidence of other acts by a state witness

Collman attempted to introduce evidence of other acts by Stach to impeach her credibility or to show that she was responsible for Damian's death. The evidence fell into three types. The district court did not admit any of the evidence, and Collman asserts that in each case the court erred. [Headnotes 2, 3] NRS 48.045(2) prohibits the admission of evidence of other crimes, wrongs, or acts to prove a person's character, but such evidence may be admissible for other purposes. In order to determine admissibility of those acts, the district court must determineWKDW ³ WKHLQFLGHQWLVUHOHYDQWWRWKHFULPHFKDUJHG ........................................ Ð116 Nev. 687, 702 (2000) Collman v. StateÐ Ð 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.” Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997). The decision to admit or exclude evidence rests within the trial court's discretion, and this court will not overturn that decision absent manifest error. Daly v. State, 99 Nev. 564, 567, 665 P.2d 798, 801 (1983). The witness's alleged interest in vampirism, biting, and devil worship [Headnote 4] On October 24, 1996, Collman moved the district court to admit evidence that Stach allegedly had an interest in vampirism, biting, and devil worship in order to prove that she, and not Collman, had abused Damian resulting in his death. After an evidentiary hearing, the district court denied Collman's motion. Using a less stringent standard than when the State requests admission of prior acts by the defendant, 3 the district court concluded that the probative value of the evidence was substantially outweighed by the danger of confusing the issues and misleading the jury. See NRS 48.035(1). After a review of the evidence that Collman requested be admitted, we conclude that the district court did not abuse its discretion by excluding it. The witness's abortion [Headnote 5] During Stach's testimony on direct examination that she did not work and stayed home with the kids, she stated that she loved being pregnant. Prior to cross-examination and outside the jury's presence, the defense requested permission to impeach Stach's statement by questioning her about an abortion she had previously undergone. The district court conducted the requisite balancing test pursuant to NRS 48.035(1) between probative value and danger of unfair prejudice. The court concluded that the information about Stach's abortion was a collateral matter and the minimalYDOXHRILWZDV³RYHUZKHOPLQJO\RXWZHLJKHG´E\

WKHGDQJHURIXQIDLUSUHMXGLFHFRQIXVLQJWKHLVVXHVDQGPLVOHDGLQJWKHMXU\

__________ 3

The district court followed the decision in United States v. Stevens, 935 F.2d 1380, 1404-05 (3rd Cir. 1991), which used a reduced standard when determining whether prior act evidence introduced by the defendant should be admitted. The United States Court of Appeals for the Third Circuit held that in such a situation, the trial court need only decide that the prior act evidence has a tendency to negate the defendant's guilt and that the probative value is not substantially outweighed by the danger of unfair prejudice. Id. at 1405. Because no risk of prejudice to the defendant is present if the acts are admitted, the Third Circuit concluded that a less stringent standard is justified. Id. at 1404. ........................................ Ð116 Nev. 687, 703 (2000) Collman v. StateÐ Ð value of it was “overwhelmingly outweighed” by the danger of unfair prejudice, confusing the issues, and misleading the jury. Collman contends that the district court abused its discretion and permitted Stach to “lie with impunity” about her feelings toward pregnancy. We disagree. [Headnote 6] NRS 50.085(3) permits impeaching a witness on cross-examination with questions about specific acts as long as the impeachment pertains to truthfulness or untruthfulness and no extrinsic evidence is used. Impeachment on a collateral matter is not allowed. McKee v. State, 112 Nev. 642, 647, 917 P.2d 940, 943 (1996). The district court was correct that whether or not Stach once had an abortion is collateral to the issue of who killed Damian. It was also correct that any probative value the evidence might have was substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury. We conclude that the district court did not abuse its discretion in disallowing impeachment on this question. The witness's alleged lack of remorse over the victim's death The State presented evidence of Collman's lack of remorse through testimony that Collman propositioned Stach for sexual relations around the time of Damian's funeral. Stach testified that she had refused Collman's advances because she was too emotionally distraught over Damian's death. In response, the defense wanted to present evidence of Stach's lack of remorse through her alleged sexual conduct shortly after Damian's death. Specifically, the defense wanted to present evidence that Stach had allegedly propositioned Kim Colon for sex and had allegedly had a sexual affair with Ana Flores. The district court conducted an evidentiary hearing to determine whether these prior acts were admissible. At the evidentiary hearing, Collman's parents each testified as to an alleged incident occurring between Flores and Stach on January 21, 1996. Further, Kim Colon testified that while Stach was temporarily living with her in February 1996, Stach propositioned her. The district court denied Collman's motion, concluding that the information was irrelevant, prejudicial, and incredible. [Headnote 7] Collman argues that the district court abused its discretion by excluding this evidence. See Daly, 99 Nev. at 567, 665 P.2d at 801 (holding that the trial court has the discretion to admit or exclude evidence). We conclude that evidence regarding Stach's lack ofUHPRUVHZDVUHOHYDQWWR&ROOPDQ VGHIHQVHWKDW6WDFKZDV

WKHUHDONLOOHU ........................................ Ð116 Nev. 687, 704 (2000) Collman v. StateÐ Ð

remorse was relevant to Collman's defense that Stach was the real killer. Because the district court admitted evidence that Collman lacked remorse over Damian's death, Stach's lack of remorse was equally relevant. Therefore, the district court incorrectly concluded that the evidence was irrelevant. [Headnote 8] Nevertheless, our review of the record reveals that Collman's allegation of Stach's sexual conduct was not proven by even a preponderance of the evidence, let alone clear and convincing evidence. The record reflects that the testimony of Collman's parents was inconsistent and implausible and that Kim Colon had animosity toward Stach. Kim Colon further admitted that she had previously lied to a police officer who interviewed her and that she would lie to protect herself. Accordingly, the district court did not abuse its discretion by excluding such evidence. III. Evidence of other acts by appellant [Headnote 9] Collman claims that evidence that he had been transferred at work was improperly admitted as character evidence. To reiterate, in order to admit evidence of a person's other crimes, wrongs, or acts, the district court must determine that the other act is relevant for an admissible purpose, that it was proven by clear and convincing evidence, and that the probative value of the act is not substantially outweighed by unfair prejudice. NRS 48.045(2); Tinch, 113 Nev. at 1176, 946 P.2d at 1064-65. This court will not overturn a district court's decision to admit or exclude evidence absent an abuse of discretion. Daly, 99 Nev. at 567, 665 P.2d at 801. The State presented testimony that in December 1995, Collman felt stress from working in the lockdown unit of the prison, Unit 2, a difficult and dangerous section also known as “the prison within the prison.” Collman mentioned to a co-worker that he also felt stress at home because Damian was “getting into things,” was out of control, and did not listen to Collman. For his benefit, Collman transferred to a less stressful unit for two weeks before returning to his original post in Unit 2. Prior to admitting this testimony, the district court conducted an evidentiary hearing and determined that the temporary transfer was relevant to show that Collman was under stress shortly before Damian's death. The court also determined that the probative value of the evidence of the nondisciplinary transfer was not substantially outweighed by the danger of unfair prejudice. We conclude that based on the district court's reasoning and the record as a whole, the court did not abuse its discretion. ........................................ Ð116 Nev. 687, 705 (2000) Collman v. StateÐ Ð IV. Evidence that appellant had been in jail [Headnotes 10, 11] Collman argues that the district court erred by denying his motion for a mistrial based on references made to his being in jail. Reference to a defendant's prior criminal history may be reversible error. See Witherow v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1155 (1988). The test for determining if such a reference occurred is whether the jury could reasonably infer from the evidence presented that the defendant had engaged in prior criminal activity. Id. During the prosecutor's direct examination of Collman's friend, Robert Marcum, the following exchange took place. Q. Now, do you recall—do you remember when that happened when you went to pick up this mattress? A. Hum, it was actually the same—I guess he was in jail down in Las Vegas. And it was supposedly he was getting out of jail that day. ....

Q. . . . . Do you remember how long after [Damian's death] that could have happened? A. Not exactly. That's the best way I can. Additionally, during defense counsel's cross-examination of another of Collman's friends, Michael Palombo, Palombo also mistakenly and briefly revealed that Collman was in jail. Shortly thereafter, outside the jury's presence, Marcum testified that although the prosecutor had specifically instructed him not to, he mistakenly revealed that Collman was in a Las Vegas jail in approximately February 1996. (The record does not divulge why Collman was in jail.) Marcum stated, “It just came out. I just—you know, I wasn't thinking about it.” At the conclusion of this hearing, Collman moved for a mistrial. The district court denied the motion, stating that the slips were inadvertent, Marcum and Palombo did not disclose why Collman was in jail, and the jury could easily think that Collman was in jail due to the present matter. [Headnotes 12, 13] After reviewing the references made and the hearing afterward, we conclude that the remarks improperly referred to Collman's prior criminal history but were harmless. Thus, the district court did not err in denying the motion for a mistrial. Palombo's and Marcum's statements that Collman was in jail were not made or elicited by the prosecutor; they were brief, inadvertent comments made by inexperienced witnesses in the midst of a long and complicated trial. Additionally, Marcum stated that “he” was in jail DQG GLG QRW XVH

&ROOPDQ VQDPH ........................................ Ð116 Nev. 687, 706 (2000) Collman v. StateÐ Ð and did not use Collman's name. While the jury may have realized that “he” was Collman, that fact was not emphasized. Moreover, in the penalty phase, the jury found as a mitigating factor Collman's lack of a criminal history. We are convinced, therefore, that Collman was not prejudiced by the witnesses' remarks. V.

The videotape of the victim when he was a healthy baby

[Headnote 14] Richard Stach testified as to Damian's demeanor prior to Collman's involvement in Damian's life. During this testimony, the State sought admission of a videotape depicting Damian as a happy baby with no bruises. The district court conducted a hearing and viewed the videotape. The court concluded that because the videotape's quality was deficient, it could not be used to demonstrate Damian's lack of bruises. However, the court determined that the probative value of establishing Damian's demeanor was not substantially outweighed by the danger of unfair prejudice or emotional appeal to the jury. Accordingly, over Collman's objection, the court admitted the videotape for that limited purpose. [Headnotes 15, 16] Collman contends that the videotape had no probative value and only served to appeal to the jurors' emotions. The trial court has the discretion to admit or exclude photographs of a victim, and this court will not overturn such a ruling absent an abuse of that discretion. Browne v. State, 113 Nev. 305, 314, 933 P.2d 187, 192 (1997). The court must determine whether the probative value is substantially outweighed by the danger of unfair prejudice. Id. at 313 n.1, 933 P.2d at 192 n.1. Here, the district court reviewed the videotape and determined that it was relevant and probative. We conclude that Collman failed to demonstrate that the district court abused its discretion. VI. Report by the state's expert regarding bite marks on the victim's body [Headnote 17] Collman contends that the district court erroneously admitted a report made by the state's forensic expert.

Dr. Raymond D. Rawson, the state's expert witness, prepared a forensic report, Exhibit 96, concluding that Damian suffered nine separate bite marks and with “a high degree of confidence” that Collman was the biter. Dr. Rawson testified to this opinion at trial. The defense utilized the report to cross-examine Dr. Rawson and even showed a photograph in the report to the jury. Based onWKLVXVHRIWKHUHSRUWE\&ROOPDQWKH

6WDWHDVNHGWKDWWKHZKROHUHSRUWEHDGPLWWHG ........................................ Ð116 Nev. 687, 707 (2000) Collman v. StateÐ Ð this use of the report by Collman, the State asked that the whole report be admitted. The defense objected, arguing that Dr. Rawson had not testified to all portions of the report. Specifically, Dr. Rawson's report referred to nine bite marks on Damian's body, while Dr. Rawson's testimony focused on only three of the most severe and obvious bites. The district court admitted the report into evidence. Collman argues that the district court erroneously admitted the entire report. We conclude that this argument has no merit pursuant to NRS 47.120(1), which provides: “When any part of a writing or recorded statement is introduced by a party, he may be required at that time to introduce any other part of it which is relevant to the part introduced, and any party may introduce any other relevant parts.” See also Domingues v. State, 112 Nev. 683, 693-94, 917 P.2d 1364, 1372 (1996). Here, Collman in effect introduced portions of the report during cross-examination of Dr. Rawson. Under NRS 47.120(1), the State was permitted to introduce any other relevant parts. The entire report was relevant to the case because evidence of bite marks tended to prove that Damian was an abused child. Further, Dr. Rawson's testimony referred to his overall conclusion that nine bite marks were present and that Collman caused them all; therefore, contrary to Collman's contention, the entire report contained information to which Dr. Rawson testified. We conclude that the district court did not err in admitting the report. VII. Defense evidence regarding bite marks on the victim's body [Headnote 18] The State presented evidence that Damian had several bite marks on his body. While one mark on his forearm was indisputably a bite mark, the parties vigorously litigated whether the other marks were bites. Dr. Norman Sperber was one of three defense experts in forensic dentistry. All three experts agreed that Damian had one bite mark on his arm, but ruled out the other marks as bites. Outside the presence of the jury, Dr. Sperber testified that he became involved with this case while at a conference attended by law enforcement agents and other forensic dentists. One of the police officers assigned to the instant case showed Dr. Sperber Damian's photographs and a report written by the state's forensic dentist expert. Dr. Sperber showed the photographs and/or portions of the report to his colleagues at the conference. Those colleagues apparently opined based solely on the photographs that Damian possessed only one bite mark on his forearm. Collman moved the district court to permit Dr. SperberWRWHVWLI\WRKLVFROOHDJXHV VWDWHPHQWV ........................................ Ð116 Nev. 687, 708 (2000) Collman v. StateÐ Ð to testify to his colleagues' statements. The district court denied the motion because the statements were not reliable. Arguing that the district court erred by excluding the statements, Collman cites NRS 51.075(1) and Emmons v. State, 107 Nev. 53, 807 P.2d 718 (1991). NRS 51.075(1) provides: “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.” In Emmons, the district court permitted the testifying medical examiner to discuss the concurring opinion of her colleague, a radiologist, regarding certain medical evidence. Additionally, the court admitted a letter written by the radiologist outlining his opinion. Emmons, 107 Nev. at 57, 807 P.2d at 720. This court concluded that the trial court did not err by

admitting the testimony and letter pursuant to NRS 51.075 because the radiologist was a disinterested witness with no motive to lie. Id. at 57, 807 P.2d at 721. [Headnote 19] Collman argues that this case is like Emmons because the doctors at the conference were disinterested witnesses with no motive to lie; therefore, “assurances of accuracy” exist. We conclude that while Dr. Sperber's colleagues may have been disinterested with no motive to lie, the requisite assurances of accuracy are not as strong as those in Emmons. Specifically, the radiologist in Emmons wrote a letter discussing the medical evidence and why he agreed with the medical examiner. It also appears that the two doctors consulted extensively. By contrast, in the present case, Dr. Sperber only showed his colleagues photographs of Damian's body. They did not possess molds of Collman's, Stach's, and Damian's teeth, they did not read reports by the state's expert, and they did not view Damian's body. Further, each colleague apparently looked over the photographs for only a few minutes each in between seminars at the conference. Accordingly, because calling those colleagues to the stand was the only way to test the accuracy of their hearsay statements, we conclude that Dr. Sperber's proposed testimony of his colleagues' opinions does not fall within the exception in NRS 51.075. 4 Therefore, we conclude that the district court did not err in excluding that testimony. __________ 4

Collman does not make this argument, but we note that the evidence in question was also not admissible under NRS 50.285(2), which provides that “facts or data need not be admissible in evidence” if they are “of a type reasonably relied upon by experts in forming opinions or inferences.” This provision might have provided the best basis for admitting the evidence in Emmons since the radiologist's considered opinion set forth in a letter appears to be information which an expert like the medical examiner would reasonably rely on. By contrast, we conclude that Dr. Sperber's recollection of oral ........................................ Ð116 Nev. 687, 709 (2000) Collman v. StateÐ Ð VIII.

Impeachment of a defense witness

[Headnote 20] Rick Colon testified for the defense that Stach proudly displayed bruises she allegedly inflicted on Damian. He testified that due to Stach's behavior, he was concerned for Damian's welfare. On cross-examination, the State asked whether he had called the authorities to report Stach as a child abuser. The defense objected, arguing that failure to call the authorities is not proper impeachment. The district court overruled the objection, permitting Rick Colon to answer. Rick Colon testified that he did not call the authorities to report Stach and that he also refused to speak with the police or prosecutors about this case because he preferred to “keep them in the dark.” Collman argues that the State improperly impeached Rick Colon. Collman cites only to two New York cases which hold that a prosecutor may not impeach an alibi witness based on the witness's failure to inform the police of the alibi and that no inference may be drawn from such failure. See People v. Allen, 425 N.Y.S.2d 144, 148 (N.Y. App. Div. 1980), overruled by People v. Knight, 570 N.Y.S.2d 617 (N.Y. App. Div. 1991); People v. Hamlin, 395 N.Y.S.2d 679, 681 (N.Y. App. Div. 1977). These cases are inapplicable in the present matter. [Headnotes 21, 22] Impeachment consists of attacking a witness's credibility, which depends on that witness's willingness and ability to tell the truth. 1 John William Strong, McCormick on Evidence § 33 (4th ed. 1992). One may be impeached with respect to such matters as perception, memory, communication, sincerity, or bias. Id. Here, the State attempted to prove that Stach was not Damian's abuser. In asking whether Rick Colon called the

authorities, the State impeached the sincerity of his alleged concern for Damian. Further, the fact that Rick Colon preferred not to talk to police or prosecutors suggested a bias for the defense. Accordingly, we conclude that the State properly impeached Rick Colon. IX. Proposed jury instruction on child abuse causing substantial bodily harm, a felony [Headnote 23] During the settling of the jury instructions, Collman requested an instruction on child abuse causing substantial bodily harm, a felony, but the district court refused to give the instruction. Collman contends that the court erred. In Moore v. State, 105 Nev. 378, 383, 776 P.2d 1235, 1239  __________ comments made to him by colleagues under the circumstances he described could not be offered to jurors as facts or data “reasonably relied upon by experts in forming opinions or inferences.” ........................................ Ð116 Nev. 687, 710 (2000) Collman v. StateÐ Ð (1989), this court held that the trial court must give a defendant's proffered jury instruction on a lesser related offense if three conditions are satisfied: “(1) the lesser offense is closely related to the offense charged; (2) defendant's theory of defense is consistent with a conviction for the related offense; and (3) evidence of the lesser offense exists.” 5 Here, child abuse causing substantial bodily harm is closely related to first-degree murder from child abuse and is supported by evidence presented by the State. We conclude, however, that the second condition is not satisfied. In Moore v. State, 109 Nev. 445, 446-47, 851 P.2d 1062, 1063 (1993), the jury was instructed on a lesser related offense at the state's request and convicted the defendant of the lesser related offense. This court reversed the conviction because the lesser related offense was inconsistent with the defendant's theory of defense, a complete denial of culpability. This court concluded that the defendant must admit to some conduct which constitutes the lesser crime before the jury may be instructed on the lesser related offense. Id. at 447, 851 P.2d at 1065; see Johnson v. State, 111 Nev. 1210, 1213-14, 902 P.2d 48, 50 (1995). [Headnote 24] Collman contends that admitting “to some conduct which constitutes the lesser crime” violates his Fifth Amendment right against self-incrimination. Accordingly, he argues that he should not have to admit to any action which caused Damian substantial bodily harm to get the lesser related offense instruction. This argument clearly lacks merit. Collman was not compelled to admit to criminal conduct. He was merely required to demonstrate that his theory of defense was consistent with his proposed instruction. He had no right to an instruction which was inconsistent with his “complete denial of culpability.” Again, all of Collman's defense theories consisted of denying any wrongful action on his part. He asserted that Damian fell down the stairs, choked on bubble gum, or died from Stach's abuse. None of these defenses are consistent with Collman's claim of inflicting substantial bodily harm upon Damian on January 19, 1996. The district court therefore did not err by refusing to give the requested instruction. __________ 5

We note that the continuing validity of this holding is in doubt. The Moore decision adopted the reasoning and rationale of People v. Geiger, 674 P.2d 1303 (Cal. 1984). Geiger has now been overruled by People v. Birks, 960 P.2d 1073 (Cal. 1998). In Birks, the California Supreme Court noted that the rationale for the Geiger decision has been “unequivocally repudiated by the United States Supreme Court.” Birks, 960 P.2d at 1082 (citing Hopkins v. Reeves, 524 U.S. 88 (1998)). For the purposes of this decision, however, we have applied the

standards adopted in Moore and have concluded that Collman's claim is nevertheless without merit. ........................................ Ð116 Nev. 687, 711 (2000) Collman v. StateÐ Ð X.

Sufficiency of the evidence to support the conviction

[Headnote 25] Collman contends that the evidence was insufficient to support his conviction. We reject this contention. [Headnotes 26-29] In reviewing the evidence supporting a jury's verdict, this court must determine whether the jury, acting reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt by the competent evidence. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). This court will not disturb a jury's verdict on appeal where there is substantial evidence to support it. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981). The jury determines what weight and credibility to give conflicting testimony. Id. Circumstantial evidence alone may support a judgment of conviction. Deveroux v. State, 96 Nev. 388, 391, 610 P.2d 722, 724 (1980). Collman asserts that Stach lied on the stand and that the evidence was just as strong that Stach caused the fatal injuries, not he, or that Damian had died as a result of a fall down the stairs. Collman seeks to reargue the credibility of the witnesses, particularly Stach's. The jury, however, already determined credibility in the state's favor. Also, sufficient evidence existed to convince the jury beyond a reasonable doubt that Damian's death was not caused by an accidental fall. XI. The jury instruction that child abuse constituted conclusive evidence of malice aforethought During the guilt phase, the jury received instruction number 11, which read: There are certain kinds of murder which carry with them conclusive evidence of malice aforethought. One of these classes of murder is murder committed by means of child abuse. Therefore, a killing which is committed by child abuse is deemed to be murder of the first degree, whether the killing was intentional or unintentional. (Emphasis added.) Collman did not challenge this instruction below or on appeal, but after reviewing the record, we ordered the parties to provide supplemental briefs addressing whether this instruction correctly provided that child abuse constituted conclusive evidence of malice when murder is charged pursuant to NRS 200.030(1)(a). Having considered the supplemental briefs of the parties and of amici curiae, we conclude that instruction number 11 was erroQHRXV ........................................ Ð116 Nev. 687, 712 (2000) Collman v. StateÐ Ð neous, but we conclude that the error was harmless beyond a reasonable doubt in light of the other proper instructions provided to the jury, the jury's verdicts as a whole, and the evidence in this case. 6 The types of malice and of murder In Nevada, consistent with the common law, murder “is the unlawful killing of a human being, with malice aforethought, either express or implied.” 7 NRS 200.010; see Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 7.1, at 605-06 (2d ed. 1986); Model Penal Code and Commentaries § 210.2 cmt. 1 at 13-15 (Official Draft and Revised Comments 1980). Today, the phrase “malice aforethought”

does not even approximate its literal meaning. Hence it is preferable not to rely upon that misleading expression for an understanding of murder but rather to consider the various types of murder (typed according to the mental element) which the common law came to recognize and which exist today in most jurisdictions: (1) intent-to-kill murder; (2) intent-to-do-serious-bodily-injury murder; (3) depraved-heart murder; and (4) felony murder. LaFave & Scott, Criminal Law § 7.1, at 605. Originally, in addition to an intent to kill, malice included “perhaps an element of hatred, spite or ill-will,” though this element is not actually necessary. Id. A cold-blooded murderer could kill a kidnap victim, for example, simply for the sake of convenience. Nevertheless, as demonstrated below, consistent with its ordinary connotation, malice of all four types includes an intent to act wrongfully. Nevada expressly recognizes three of these malicious states of mind in its statutes and case law. 8 NRS 200.020 defines express malice as the “deliberate intention unlawfully to take away” another's life and implied malice as “an abandoned and malignant heart.” These forms of malice are, respectively, the mental elements for intent-to-kill murder and depraved-heart murder. Nevada statutes and this court have apparently never employed the phrase “depraved heart,” but that phrase and “abandoned and PDOLJQDQW KHDUW´ ERWK UHIHU WR WKH

VDPH³HVVHQWLDOFRQFHSWRQHRIH[WUHPHUHFNOHVVQHVVUHJDUGLQJKRPLFLGDOULVN´ __________ 6

Cause appearing, we deny Collman's motion to allow supplemental oral argument on this issue, filed December 20, 1999. 7

Nevada's statutory definition of murder also extends beyond the common law, including the unlawful killing of a human being “caused by a controlled substance which was sold, given, traded or otherwise made available to a person in violation of chapter 453 of NRS.” NRS 200.010. 8

Nevada law has apparently never expressly addressed intent-to-do-serious-bodily-injury murder, but this court has recognized the concept in regard to murder perpetrated by means of lying in wait. See note 13 and the accompanying text below. ........................................ Ð116 Nev. 687, 713 (2000) Collman v. StateÐ Ð malignant heart” both refer to the same “essential concept . . . one of extreme recklessness regarding homicidal risk.” Model Penal Code § 210.2 cmt. 1 at 15; see also Thedford v. Sheriff, 86 Nev. 741, 744, 476 P.2d 25, 27 (1970) (malice as applied to murder includes “general malignant recklessness of others' lives and safety or disregard of social duty”). NRS 200.030(1)(b) defines felony murder, in which “[t]he felonious intent involved in the underlying felony may be transferred to supply the malice necessary to characterize the death a murder.” Ford v. State, 99 Nev. 209, 215, 660 P.2d 992, 995 (1983). Instruction number 11 was patterned after the felony-murder instruction approved of in Ford. See id. at 214, 660 P.2d at 995. Nevada defines by statute three kinds of first-degree murder. 9 Murder of 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 sexual assault, kidnaping, arson, robbery, burglary, invasion of the home, sexual abuse of a child or sexual molestation of a child under the age of 14 years; or (c) Committed to avoid or prevent the lawful arrest of any person by a peace officer or to effect the escape of any person from legal custody.

NRS 200.030(1). The issue presented in this case is: for first-degree murder under subsection (1)(a) of NRS 200.030, can malice be established simply by proving that the killing was done by an enumerated means? The State answers this question affirmatively, offering three or four arguments in support of its position. We conclude that none has merit. Malice versus willfulness, deliberation, and premeditation First, the State asserts that: (1) the means enumerated in NRS 200.030(1)(a) constitute willfulness, deliberation, and premeditation as a matter of law, and (2) willfulness, deliberation, and premeditation subsume malice aforethought as a matter of law. Thus, the State contends, the child abuse in this case established willfulness, deliberation, and premeditation which in turn established malice. We reject both prongs of the state's argument. The means enumerated in subsection (1)(a) do not necessarily constitute willfulness, deliberation, and premeditation, though there is authority for construing the statute in this manner. See *UDKDP Y 6WDWH

1HY3G  __________ 9

The legislature recently added a fourth kind, involving school-related killings. See 1999 Nev. Stat., ch. 319, § 3, at 1335. ........................................ Ð116 Nev. 687, 714 (2000) Collman v. StateÐ Ð Graham v. State, 116 Nev. 23, 992 P.2d 255 (2000). The original enumerated means are poison, lying in wait, and torture, whereas child abuse was added to subsection (1)(a) only recently. 10 Although the three traditional enumerated means are normally consistent with deliberate, premeditated action, cf. LaFave & Scott, Criminal Law § 7.1, at 605, child abuse can be and often is a rash, impulsive crime. It is unnecessary to analyze murder by means of child abuse in terms of deliberation and premeditation because the soundest view is simply that a murder perpetrated by an enumerated means is first-degree murder by force of statute, without legal concern with or factual inquiry into willfulness, deliberation, and premeditation. See Graham, 116 Nev. at 28-29, 992 P.2d at 257-58; State v. Johnson, 344 S.E.2d 775, 781 (N.C. 1986); People v. Thomas, 261 P.2d 1, 3 (Cal. 1953). [Headnotes 30, 31] The second prong of the state's argument contains a more pronounced flaw because malice is not subsumed by willfulness, deliberation, and premeditation. This court has so stated, but without much explanation. See, e.g., Hern v. State, 97 Nev. 529, 532, 635 P.2d 278, 280 (1981). But the proposition can be easily illustrated. For example, it is possible for a police sniper to act willfully, deliberately, and premeditatedly but without malice in fatally shooting a man who has taken hostages and threatens their lives. The legal defense of defense of self or others justifies a homicide and negates the element of malice. “[E]ven a deliberate killing, if done in actual self-defense, is justifiable; the intent is not unlawfully to take the life of another.” Kelso v. State, 95 Nev. 37, 42, 588 P.2d 1035, 1039 (1979); see also State v. Vaughan, 22 Nev. 285, 299-302, 39 P. 733, 735-36 (1895). Malice versus specific intent to kill [Headnote 32] As a second argument, the State repeatedly invokes and cites authority for the proposition that specific intent to kill is not a necessary element of murder. This proposition, however, does not address this court's concern with jury instruction number 11. The instruction stated that “murder committed by means of child

abuse” is a kind of murder which carries with it “conclusive eviGHQFHRIPDOLFHDIRUHWKRXJKW´ __________ 10

Though Nevada's code now appears to be in the minority, for many years statutes commonly deemed poison, lying in wait, and torture to be predicates of first-degree murder. See LaFave & Scott, Criminal Law § 7.1(a), at 605, and § 7.7(c), at 646; Model Penal Code § 210.2 cmt. 2 at 16. By contrast, child abuse was added to NRS 200.030(1)(a) just ten years ago. See 1989 Nev. Stat., ch. 408, § 1, at 865. The most recent legislative session resulted in the removal of child abuse from subsection (1)(a) and its placement in (1)(b), the felony murder subsection. See 1999 Nev. Stat., ch. 319, § 3, at 1335. ........................................ Ð116 Nev. 687, 715 (2000) Collman v. StateÐ Ð dence of malice aforethought.” (Emphasis added.) Specific intent to kill is not synonymous with malice. The fact that not every murder requires a specific intent to kill does not relieve the State of the burden to prove some kind of malice to establish murder. 11 As the West Virginia Supreme Court of Appeals explained, “the language ‘murder by poison, lying in wait, imprisonment, starving' does not require that premeditation or a specific intent to kill has to be shown, but to elevate the homicide to first-degree murder, a killing with malice must be proved and one of the four enumerated acts must be established.” State v. Harper, 365 S.E.2d 69, 72 (W. Va. 1987); see also People v. Benjamin, 124 Cal. Rptr. 799, 813 (Ct. App. 1975). First-degree murder by an enumerated means versus first-degree felony murder The State analogizes murder under NRS 200.030(1)(a) to felony murder under subsection (1)(b). In the latter case, by law the malice required for murder is supplied by the intent to commit an enumerated felony. Likewise, the State argues, the requisite malice arises as a matter of law from the use of an enumerated means under subsection (1)(a). However, this and other courts have never followed the view urged by the State (we discuss exceptional cases treating murder by torture below). The California Supreme Court explained this matter clearly in People v. Mattison, 481 P.2d 193, 196 (Cal. 1971). Thus if a killing is murder within the meaning of sections 187 [defining murder as an unlawful killing with malice aforethought] and 188 [defining express and implied malice], and is by one of the means enumerated in section 189 [i.e., poison, lying in wait, or torture], the use of such means makes the killing first degree murder as a matter of law. It must be emphasized, however, that a killing by one of the means enumerated in the statute is not murder of the first degree unless it is first established that it is murder. If the killing was not murder, it cannot be first degree murder, and a killing cannot become murder in the absence of malice aforethought. Without a showing of malice, it is immaterial that the killing was perpetrated by one of the means enumerated in the statute. It is true that murder may be committed without express PDOLFHLHZLWKRXWDVSHFLILFLQWHQW

WRWDNHKXPDQOLIH __________ 11

The State also invokes the legislative history of the bill which added child abuse to the enumerated means in NRS 200.030(1)(a), emphasizing that legislators intended to make murder by child abuse murder of the first degree. However, this legislative intent is not in dispute and has no bearing on the question in this case: did the jury instruction improperly dispense with the state's burden to prove malice? ........................................

Ð116 Nev. 687, 716 (2000) Collman v. StateÐ Ð malice, i.e., without a specific intent to take human life. To be so committed, however, unless the felony-murder rule is applicable, “the defendant must intend to commit acts that are likely to cause death and that show a conscious disregard for human life.” [Thomas, 261 P.2d at 7 (Traynor, J., concurring).] . .. The above rules apply to all murders, other than felony murders, regardless of whether they are committed by one of the means enumerated in section 189. See also Harper, 365 S.E.2d at 72 (quoted above); Benjamin, 124 Cal. Rptr. at 813 (cited above); cf. State v. Johnson, 821 P.2d 1150, 1156-57 (Utah 1991) (first-degree murder first requires proof of what would otherwise be second-degree murder and then proof of an enumerated aggravating factor, e.g., administering poison). This court's case law is in accord with Mattison. That malice is required to find murder by an enumerated means was implicit to this court's reasoning in Pinana v. State, 76 Nev. 274, 286, 352 P.2d 824, 831 (1960). In that case, the court upheld the giving of a jury instruction which stated: “All murder which is perpetrated by means of lying in wait is murder of the first degree.” Id. Appellant contends that this instruction was defective because the court failed to explain that murder must first be established before the question of lying in wait can arise. In the other instructions given the court defined murder and stated that to find appellant guilty thereof all of the elements must have been proven beyond a reasonable doubt. . . . [T]his instruction was proper to aid the jury in determining the degree of the offense in the event they found the appellant guilty of murder. Id. (emphasis added). The court accepted the appellant's premise that “murder must first be established before the question of lying in wait can arise.” In Moser v. State, 91 Nev. 809, 812 & n.3, 544 P.2d 424, 426 & n.3 (1975), the appellant challenged an instruction which read, “The unlawful killing of a human being, with malice aforethought, with express or implied intent, which is committed by a person lying in wait for his victim, is Murder in the First Degree.” (Emphasis added.) This court held that the instruction was properly given and quoted People v. Atchley, 346 P.2d 764, 772 (Cal. 1959), for the proposition that the elements constituting lying in wait “ ‘are watching, waiting, and concealment from the person killed with the intention of inflicting bodily injury upon such person or of killing such person.' ” 12 Id. at 813,3GDWHPSKDVLVDGGHG  __________ 12

On the required intent regarding bodily injury, see note 13 below. ........................................

Ð116 Nev. 687, 717 (2000) Collman v. StateÐ Ð 346 P.2d at 426 (emphasis added). Again, there was no question that malice was a required element to prove murder by an enumerated means. The state's position is not only contrary to the law regarding murder by enumerated means, but seeks to expand the doctrine of felony murder when the weight of authority calls for restricting it. Many commentators criticize the felony-murder doctrine, and the trend has been to limit its applicability, not extend it. See Model Penal Code § 210.2 cmt. 6 at 29-42; LaFave & Scott, Criminal Law § 7.5, at 622-23, 632, 640-41. Furthermore, first-degree murder by an enumerated means fundamentally differs from felony murder. Although child abuse, as discussed below, is a special case, the means originally enumerated in subsection (1)(a)—use of poison, lying in wait, and torture—do not denote crimes. Thus, it cannot be presumed that they necessarily carry a felonious intent which can supply the malice necessary to characterize a killing as a murder. For example, friends and family who spring a surprise birthday party on a middle-aged man as he steps into his home may be “lying in wait,” but they are not liable for murder if he collapses and dies from a heart attack

because they did not act with malice. As noted, lying in wait is defined as watching, waiting, and concealment from the person killed with the intention of killing or inflicting bodily injury upon that person. 13 See Moser, 91 Nev. at 812 & n.3, 544 P.2d at 426 & n.3. In effect, this definition places the requisite malice within the element of lying in wait. Of course, a prosecutor would not charge murder in the case of a surprise party, but even wrongful acts involving an enumerated means and causing death may not constitute murder. For example, if a nurse carelessly administers a lethal dose of the wrong medicine to a hospital patient, he has killed someone by means of poison. But the nurse is liable for murder only if he acted with extreme recklessness regarding the risk to human life, “an abandoned and malignant heart.” See Mattison, 481 P.2d at 197 (holding that absent a specific intent by the defendant to kill, to find murder by means of poison, the jury had to find beyond a reaVRQDEOHGRXEWWKDW

WKHGHIHQGDQW³KDGIXOONQRZOHGJHWKDWKLVFRQGXFWHQGDQJHUHGWKHOLIHRIGHFHGHQW __________ 13

Moser and Leonard v. State, 114 Nev. 639, 655-56, 958 P.2d 1220, 1232 (1998), cert. denied, 525 U.S. 1154 (1999), actually understate the required intent regarding bodily injury and are hereby clarified. To constitute malice for murder, the standard is intent to inflict “serious” (or “grievous” or “great”) bodily injury. See LaFave & Scott, Criminal Law § 7.3, at 617; cf. Thomas, 261 P.2d at 7 (“[T]he defendant must intend to commit acts that are likely to cause death and that show a conscious disregard for human life.”) (Traynor, J., concurring). Nevada's statutory code does not expressly include this form of malice aforethought, but intent to do serious bodily injury constitutes implied malice, “an abandoned and malignant heart,” if it is sufficiently reckless. See LaFave & Scott, Criminal Law § 7.3, at 616-17; Model Penal Code § 210.2 cmt. 5 at 28. ........................................ Ð116 Nev. 687, 718 (2000) Collman v. StateÐ Ð sonable doubt that the defendant “had full knowledge that his conduct endangered the life of decedent, but that he nevertheless deliberately administered the poison with conscious disregard for that life”). Murder by torture warrants further discussion because the State has cited authority for the proposition that the malice required for murder can be transferred from the commission of torture. This is the only authority that supports the state's position, and it provides support only if it can be extended to apply to murder by other enumerated means. However, it appears that no court has taken this approach with poison, lying in wait, or any other enumerated means. More important, we conclude that the approach is not sound even in regard to torture. The Supreme Court of North Carolina reasoned that murder by torture “is analogous to felony murder in that malice may be implied by the very act of torturing the victim. Torture is a dangerous activity of such reckless disregard for human life that, like felony murder, malice is implied by the law.” State v. Crawford, 406 S.E.2d 579, 587-88 (N.C. 1991). The California Supreme Court also held: “When a killing is perpetrated by means of torture, the means used is conclusive evidence of malice and premeditation, and the crime is murder of the first degree.” People v. Turville, 335 P.2d 678, 685 (Cal. 1959), overruled on other grounds by People v. Morse, 388 P.2d 33, 44 (Cal. 1964). Although as a practical matter malice may almost always be factually present when there is a killing by torture, the decisions in Crawford and Turville err in abandoning the established analysis of first-degree murder by enumerated means and concluding that, given torture, malice must be present as a matter of law. Such an approach introduces laxness and inconsistency into the application of a statute which defines first-degree murder by enumerated means in a uniform, reliable way. This lax approach is not sound because it is conceivable that torture, like other enumerated means, can be done without legal malice. 14 Actually, although Turville has not been expressly overruled on this point, the California Supreme Court has since reiterated that to prove murder by torture, “[i]t must be established that the defendant intended to ‘cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity.' ” Mattison, 481 P.2d at 197 (quoting People v. Tubby, 207 P.2d 51, 54 (Cal. 1949)). The required “untoward propensity” goes to theHOHPHQWRIPDOLFH

__________ 14

For example, a man discovers that the kidnapper of his infant daughter has placed her in a safe. The baby will soon suffocate, but the kidnapper refuses to open the safe or divulge the combination. Desperate, the man tries to torture the kidnapper into revealing the combination but does not intend to kill him. If the kidnapper dies, the man is not guilty of murder. ........................................ Ð116 Nev. 687, 719 (2000) Collman v. StateÐ Ð element of malice. The California Supreme Court has also explained that murder by torture is first-degree murder not because of the amount of pain inflicted but because of “the state of mind of the torturer—the cold-blooded intent to inflict pain for personal gain or satisfaction.” People v. Steger, 546 P.2d 665, 669 (Cal. 1976). Therefore, the court has held that first-degree murder by torture is “murder committed with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain.” Id.; see also People v. Wiley, 554 P.2d 881, 887 (Cal. 1976). Further, in cases of murder by torture in California, the current standard jury instructions require the jury to find both malice aforethought and that “[t]he perpetrator committed the murder with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose.” California Jury Instructions, Criminal 8.24 and accompanying use note (6th ed. 1996). Thus, despite the unqualified statement made in Turville, malicious intent must be independently proved to establish murder by torture in California. As already discussed, child abuse was added only recently to the means enumerated in NRS 200.030(1)(a) and is somewhat anomalous, but the State has not argued nor would we agree that this is a basis to treat it differently from the other enumerated means. To maintain coherency and rigor in the application of the statute, first-degree murder by child abuse can and must be proven in the same manner as the other three enumerated means. To reiterate, poison, lying in wait, and torture are not separate statutory offenses, but all are consistent with deliberate, premeditated action. Child abuse, on the other hand, can denote a crime, but does not appear to do so in NRS 200.030(1)(a) because the statute provides its own definition of child abuse in subsection (6)(a) rather than referencing the independent offenses involving abuse or neglect of children proscribed in NRS 200.508. Child abuse more clearly diverges from the other three enumerated means in that it does not strongly correlate with deliberate, premeditated action since it can be and often is committed in a rash, impulsive manner. Therefore, it is critical that jurors expressly find malice aforethought before convicting a child abuser of first-degree murder under subsection (1)(a). Otherwise, a single rash, impulsive act by an otherwise decent parent leading to a child's death—an act which was abusive to the child but lacked legal malice—would constitute first-degree murder. 15 [Headnote 33] Thus, unlike felony murder pursuant to NRS 200.030(1)(b), to __________ 15

Whether such a scenario would properly establish a predicate felony for first-degree murder under current NRS 200.030(1)(b) is not at issue here. ........................................ Ð116 Nev. 687, 720 (2000) Collman v. StateÐ Ð establish that a killing is murder under subsection (1)(a), the State must prove that the killer acted with malice aforethought, i.e., with the deliberate intention unlawfully to take life or with an abandoned and malignant heart.

See NRS 200.020. Proof of an enumerated means then establishes that the murder is of the first degree. [Headnote 34] The jury instruction in this case improperly relieved the State of this requirement. For Collman's actions to constitute murder, the jury had to find that he acted with malice aforethought. This malice could not be presumed simply from his commission of child abuse pursuant to NRS 200.030(6)(a), i.e., physical injury of a nonaccidental nature to a child. Harmless-error analysis We conclude that the giving of instruction number 11 was harmless error beyond a reasonable doubt. Collman contends that the erroneous instruction concerning malice is not subject to harmless-error analysis under Thompson v. State, 108 Nev. 749, 838 P.2d 452 (1992). Therefore, Collman asserts, automatic reversal is required. We disagree. We take this opportunity to clarify the issue of whether erroneous instructions omitting, misdescribing, or presuming an element of an offense are subject to a harmless-error analysis in light of Neder v. United States, 527 U.S. 1 (1999). In Neder, a case involving an erroneous instruction omitting an element of an offense from the jury's consideration, the United States Supreme Court concluded that such instructions are reviewable according to a harmless-error analysis. Id. at 13-15. Traditionally, this court has held that “violations of NRS 47.230 will not be deemed harmless where the erroneous instruction concerns an essential element of the offense charged.” Hollis v. State, 96 Nev. 207, 209, 606 P.2d 534, 536 (1980). In Thompson, 108 Nev. at 755-56, 838 P.2d at 456-57, this court created exceptions to the traditional rule. Thompson concluded that an instruction establishing an improper mandatory presumption concerning an element of a crime is subject to a harmless-error analysis in “rare situations” such as: (1) where the defendant is acquitted of the offense on which the jury was improperly instructed; (2) where the defendant admitted the element on which the jury was improperly instructed; and (3) where no rational jury could find the predicate facts beyond a reasonable doubt without also finding the ultimate presumed fact. Id. at 756, 838 P.2d at 456-57. In Neder, however, the Court recently rejected the view thatRQO\LQWKHVHWKUHH³UDUHVLWXDWLRQV´

FDQ D MXU\ LQVWUXFWLRQ WKDW RPLWV PLVGHVFULEHV RU HUURQHRXVO\ DVVHUWV D FRQFOXVLYH SUHVXPSWLRQFRQFHUQLQJDQHOHPHQWRIDQRIIHQVHEHVXEMHFWWRDKDUPOHVVHUURUDQDO\VLV ........................................ Ð116 Nev. 687, 721 (2000) Collman v. StateÐ Ð only in these three “rare situations” can a jury instruction that omits, misdescribes, or erroneously asserts a conclusive presumption concerning an element of an offense be subject to a harmless-error analysis. Neder, 527 U.S. at 13-15. Neder concluded that such errors are subject to a harmless-error analysis if they do not involve the type of jury-instruction error which “vitiates all the jury's findings” and produces “consequences that are necessarily unquantifiable and indeterminate.” Id. at 10-11 (citing Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993)). Notably, the Court also stated: We have often applied harmless-error analysis to cases involving improper instructions on a single element of the offense. See, e.g., Yates v. Evatt, 500 U.S. 391 (1991) (mandatory rebuttable presumption); Carella v. California, 491 U.S. 263 (1989) (per curiam) (mandatory conclusive presumption); Pope v. Illinois, 481 U.S. 497 (1987) (misstatement of element); Rose [v. Clark, 478 U.S. 570 (1986)] (mandatory rebuttable presumption). In other cases, we have recognized that improperly omitting an element from the jury can “easily be analogized to improperly instructing the jury on an element of the offense, an error which is subject to harmless-error analysis.” Johnson [v. United States, 520 U.S. 461, 469] (citations omitted) . . . .

Neder, 527 U.S. at 9-10. Two of the cases cited above in Neder provide particularly strong support for our conclusion that the erroneous instruction in this case is subject to harmless error analysis: Yates v. Evatt, 500 U.S. 391 (1991), and Rose v. Clark, 478 U.S. 570 (1986). As in the instant case, both Yates and Rose involved murder trials where erroneous instructions were given concerning presumptions applicable to the element of malice. In Rose, for example, the jury was instructed that proof establishing beyond a reasonable doubt that a killing occurred created a rebuttable presumption that the killing was done maliciously. Rose, 478 U.S. at 574. The Court ruled that “the error at issue here—an instruction that impermissibly shifted the burden of proof on malice—is not ‘so basic to a fair trial' that it can never be harmless.” Id. at 580 (citing Chapman v. California, 386 U.S. 18, 23 (1967)). See also Clark v. Rose, 822 F.2d 596 (6th Cir. 1987) (on remand from Supreme Court, the court of appeals applied harmless error analysis and concluded that the improper malice instruction was harmless). Subsequently, in Yates, a murder case involving improper mandatory rebuttable presumption instructions on the element of malice, the Court set forth a two-step analysis for determiningZKHWKHUVXFKLQVWUXFWLRQV

DUHKDUPOHVVHUURU ........................................ Ð116 Nev. 687, 722 (2000) Collman v. StateÐ Ð whether such instructions are harmless error. 16 The Court explained first that “[i]f . . . the fact presumed is necessary to support the verdict, a reviewing court must ask what evidence the jury considered as tending to prove or disprove that fact.” Yates, 500 U.S. at 404. At issue is whether the jury looked only at the predicate facts or whether it considered “other evidence bearing on the fact subject to the presumption.” The court should also apply the “customary presumption that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so.” Id. Second, Yates explained, the court reviewing for harmless error must “weigh the probative force of that evidence as against the probative force of the presumption standing alone.” Id. The issue is “whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption.” Id. If “the force of the evidence presumably considered is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption[,]” then the reviewing court can conclude that the erroneous instruction did not contribute to the verdict rendered. Id. at 405. [Headnotes 35-37] Accordingly, based on the Supreme Court's decisions in Neder, Yates, and Rose, we hold that where, as here, a jury-instruction error is not “structural” in form and effect, this court will henceforth review for harmless error improper instructions omitting, misdescribing, or presuming an element of an offense. To the extent that Thompson v. State, 108 Nev. 749, 838 P.2d 452 (1992) is inconsistent with this holding, Thompson is hereby overruled. Under the holdings discussed above, the error at issue in this case is clearly subject to harmless error analysis. Having so concluded, we now turn to an analysis of whether instruction number 11 was in fact harmless beyond a reasonable doubt. [Headnote 38] Harmless-error inquiry requires us to ask and answer: “Is it clear beyond a reasonable doubt that a rational jury would haveIRXQGWKHGHIHQGDQWJXLOW\DEVHQWWKHHUURU"´ __________ 16

We recognize that language in Yates relating to the standard of review for jury instructions was subsequently disapproved in Estelle v. McGuire, 502 U.S. 62, 72-73 n.4 (1991). Estelle acknowledged that Yates could be read as endorsing a standard of review that was different from the standard articulated in Boyde v.

California, 494 U.S. 370, 380 (1990). The Court reaffirmed that the Boyde standard remains the proper formulation, i.e., whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Yates otherwise remains valid precedent, and the language in Yates that was disapproved in Estelle is not implicated in our conclusion that the instruction at issue here is subject to harmless error analysis. ........................................ Ð116 Nev. 687, 723 (2000) Collman v. StateÐ Ð found the defendant guilty absent the error?” Neder, 527 U.S. at 18. If the reviewing court cannot reach this conclusion—“for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless.” Id. at 19. We are convinced beyond a reasonable doubt that the erroneous instruction here did not induce the jury to find Collman guilty of murder without a finding of malice. It is clear that the jury believed that Collman acted with malice and thus would have found him guilty of murder even absent the erroneous instruction. First, the jury was given proper guidance by the other instructions it received. Instruction number 7 correctly informed the jury that murder is “the unlawful killing of a human being, with malice aforethought, whether express or implied.” Pursuant to NRS 200.020, instruction number 10 correctly defined express malice as a “deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof.” Instruction number 10 also correctly stated that “[m]alice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.” In addition, instruction number 12 provided: In order to prove the crime of First Degree Murder By Child Abuse, the State must prove each of the following elements beyond a reasonable doubt: 1. [t]hat at the time and place indicated in the Information, the Defendant did willfully, feloniously and without authority of law 2. [k]ill a human being 3. with malice aforethought 4. by means of child abuse. Pursuant to these instructions, it is reasonable to expect that the jury considered all of the evidence of express and implied malice revealed by our review of the entire record. In our view, that evidence is “so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption.” Yates, 500 U.S. at 405. Moreover, although at least one juror found as a mitigating circumstance in the penalty phase that Collman lacked the intent to kill, the jury was properly informed that malice could be implied when no considerable provocation appeared or all the circumstances of the killing showed an abandoned and malignant heart. ........................................ Ð116 Nev. 687, 724 (2000) Collman v. StateÐ Ð Thus, the jury did not need to find that Collman specifically intended to kill Damian in order to find implied malice. Second, during the penalty phase of the trial, the jury unanimously found as an aggravating circumstance that the killing of Damian involved torture. The district court instructed the jury that:

In order to find the aggravating circumstance of torture, the State must prove each of the following elements beyond a reasonable doubt: (1) The defendant committed the act or acts with the intent to inflict cruel pain and suffering upon a living human being for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. (2) The defendant did inflict cruel physical pain and suffering upon a living human being no matter how long its duration. Torture must be beyond the act of killing. The record reveals that the jury's finding of torture was based upon the evidence adduced during the guilt phase of the trial, as no new evidence on this point was offered during the penalty phase. Thus, the guilt phase evidence proved to the jury beyond a reasonable doubt that Collman intentionally inflicted cruel pain and suffering on Damian “for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.” As explained above, if sufficiently reckless of human life, this state of mind constitutes implied malice. Third, the evidence established such recklessness here. Collman's ongoing and viciously abusive behavior toward Damian and the manner of Damian's death provided sufficient evidence to support a finding of both implied malice and torture. We are convinced that the jury's unanimous finding that the killing of Damian involved torture established that the jury found that Collman killed the three-year-old victim with malice. Pursuant to the other proper instructions on malice that were provided to the jury, we are also convinced that the jury considered all the relevant and overwhelming evidence of malice presented at trial. We conclude beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of instruction number 11 and that therefore, the erroneous instruction concerning malice was harmless beyond a reasonable doubt. XII.

Evidence about the victim's mother in the penalty phase

[Headnote 39] At the penalty hearing, Collman moved to admit all the evidence the district court had excluded from the guilt phase regarding Stach: specifically, her alleged interest in the occult, her prior abortion, and her alleged lack of remorse over Damian's death. ........................................ Ð116 Nev. 687, 725 (2000) Collman v. StateÐ Ð Collman intended to refute the state's torture allegation by establishing that Stach had been the one who tortured Damian the last few months of his life and it was “just fortuitous that [Collman] was the individual [who] inflicted the final abuse.” The court denied the motion because the evidence was dubious, tenuous, and irrelevant to the penalty phase. Collman contends that the district court denied him his “unfettered” right to present mitigating evidence. NRS 175.552(3) provides in part: “In the [penalty] hearing, evidence may be presented concerning aggravating and mitigating circumstances relative to the offense, defendant or victim and on any other matter which the court deems relevant to sentence . . . .” (Emphasis added.) The United States Supreme Court has also announced that the trier of fact in a penalty phase of a capital case must consider evidence about the defendant and his offense; the Court does not require considering evidence about a prosecution witness. See Woodson v. North Carolina, 428 U.S. 280, 304 (1976). [Headnotes 40, 41] No case law or statute requires admission of witness character evidence in a penalty hearing. The hearing in the instant matter was about Collman, Damian, and Collman's crime, not about Stach. “[Q]uestions concerning the admissibility of evidence during the penalty phase of a capital murder trial are generally left to the trial judge's discretion.” Emil v. State, 105 Nev. 858, 864, 784 P.2d 956, 960 (1989). The district court here correctly concluded that the evidence was irrelevant to the penalty phase proceedings. That Stach allegedly had an interest in the occult, had an abortion, and allegedly lacked remorse remained irrelevant to the offense for which

Collman was convicted. Accordingly, we conclude that the district court did not abuse its discretion by denying Collman's motion to admit this evidence. XIII.

Statutory review of the death sentence in this case

[Headnote 42] Collman contends that the death sentence is not appropriate in this case. He reiterates the mitigating circumstances found by the jurors and claims that the death penalty resulted from emotion and passion. Pursuant to NRS 177.055(2), we have reviewed Collman's death sentence and conclude that the evidence supports the aggravating circumstances, that the sentence was not imposed under the influence of passion, prejudice, or any arbitrary factor, and that the sentence is not excessive, considering both Collman and his crime. At the penalty phase, the State reasserted the evidence presented at the guilt phase and introduced other evidence of Collman's violent temper and previous instances of abuse. TheMXU\IRXQGWKHH[LVWHQFHRI

WZRDJJUDYDWLQJFLUFXPVWDQFHVWRUWXUHDQGYLFWLPXQGHUIRXUWHHQ\HDUVROG ........................................ Ð116 Nev. 687, 726 (2000) Collman v. StateÐ Ð jury found the existence of two aggravating circumstances, torture and victim under fourteen years old. See NRS 200.033(8), (10). The jury found six mitigating circumstances: no significant criminal history, job history, cooperation with law enforcement, lighter sentence for Stach, lack of intent to kill, and no flight of any kind. After determining that the mitigating circumstances did not outweigh the aggravating circumstances, the jury sentenced Collman to death. We conclude that the evidence supported both the aggravator of torture, as discussed earlier in this opinion, and the aggravator of victim under fourteen. There is no indication that the death sentence was imposed under the influence of passion, prejudice, or any arbitrary factor. Nor is the sentence excessive, considering Collman and his crime. In addition to the details of Collman's mistreatment and murder of Damian, the jury heard evidence that Collman had a long history of severely mistreating women and children and derived pleasure from their fear and pain. Angela Collman, Collman's former wife, described in detail how Collman abused, controlled, raped, and threatened her throughout their marriage. She further testified that while she was pregnant with their daughter, Kendra, Collman put a gun to her stomach because she refused to have an abortion. Angela testified that Collman was rough with Kendra and once dropped her into her bassinet from a height of two feet. Angela also related an incident where she was driving sixty to seventy miles per hour and Collman held Kendra out the car window, threatening to drop her if Angela stopped the car or slowed down. Naomi Wade, Collman's former girlfriend, also testified to the abuse she endured from Collman. Collman liked to see her cry and would choke, hit, and punch her, slam her against the wall, and spit on her. [Headnote 43] Finally, although a lack of intent to kill was found as one mitigator, this does not prohibit imposition of the death penalty. Collman did not raise this issue on appeal, but it is clear that the death penalty is not prohibited here even if Collman did not specifically intend to kill Damian. The United States Supreme Court has held that reckless disregard for human life may be sufficient to warrant a death sentence even when a defendant has no specific intent to kill. See generally Tison v. Arizona, 481 U.S. 137, 146-58 (1987). CONCLUSION Although instruction number 11 erroneously instructed the jury on the requirement of malice aforethought, we conclude that theHUURUZDVKDUPOHVV ........................................

Ð116 Nev. 687, 727 (2000) Collman v. StateÐ Ð error was harmless. We therefore affirm Collman's conviction and death sentence. Young, Shearing, Leavitt and Becker, JJ., concur. Maupin, J., concurring: I agree that defects in jury instructions defining the elements of a charged crime may be the subject of a harmless error analysis under Neder. However, our embrace of the United States Supreme Court decision in Neder does not involve a mere clarification of our prior decision in Thompson v. State, 108 Nev. 749, 838 P.2d 452 (1992). Rather, our decision today comprehensively expands the basic proposition of law articulated in that opinion. The majority is careful to observe that it is “critical” for juries to be instructed on the need to prove malice, express or implied, before convicting a defendant of murder under NRS 200.030(1)(a). See Graham v. State, 116 Nev. 23, 992 P.2d 255 (2000). This underscores the care that should be exercised in the application of Neder to these matters. Here, the majority's conclusion that the defects in the instruction constitute harmless error did not subject Collman to criminal liability for murder based upon a “single rash, impulsive act by an otherwise decent parent.” Overwhelming evidence demonstrated that Collman serially and maliciously abused a small and defenseless toddler. On these facts, the jury could not have been misled by the instruction regarding the element of malice. I would also separately comment on the marginal nature of Collman's alternative defense, to wit: that Damian's mother was the perpetrator. First, the need to take the child to the hospital occurred while Collman was alone with the child. Second, substantial circumstantial evidence confirms that the final physical insult to this child did not occur at any other time or by means other than by child abuse. Thus, the trial court's refusal to admit extraneous evidence regarding the mother's conduct before and after Damian Stach's demise does not dictate reversal of Collman's conviction. While resort to a harmless error analysis in these cases should be the exception rather than the rule, I agree with the majority that the error in this case was harmless beyond a reasonable doubt. Rose, C. J., dissenting: I concur in the majority's cogent analysis that it was error to give instruction #11, which states that malice aforethought, an essential element of the crime of murder, is conclusively established when death by child abuse has been proven. However, I GLVDJUHH ZLWK WKH PDMRULW\ WKDW ZH VKRXOG GLVFDUG RXU

ORQJHVWDEOLVKHG SUHFHGHQW WKDW SURKLELWV KDUPOHVV HUURU DQDO\VLV IURP EHLQJ XVHG WR H[FXVHMXU\LQVWUXFWLRQVWKDWIDLOWRLQFOXGHDOOWKHHVVHQWLDOHOHPHQWVRIWKHFULPH ........................................ Ð116 Nev. 687, 728 (2000) Collman v. StateÐ Ð disagree with the majority that we should discard our long-established precedent that prohibits harmless error analysis from being used to excuse jury instructions that fail to include all the essential elements of the crime. Instead, I would prefer to stay with the time-honored rule that such errors are so fundamental to due process and fairness that they cannot be considered harmless. For this reason and the fact that I conclude that admissible evidence was improperly excluded, I would reverse this case and remand for a new trial. This court has held that there are a few types of error that are so fundamental to our concept of justice that harmless error analysis is inapplicable. See Thompson v. State, 108 Nev. 749, 838 P.2d 452 (1992). A jury instruction that incorrectly states the elements of the charged crime is one of them. In Thompson, we held that where the jury instructions fail to correctly state all of the elements of the crime, we will permit harmless error analysis only in certain limited circumstances. These circumstances are: (1) where the defendant is acquitted of the offense on which the jury was improperly instructed; (2) where the defendant admitted the element on which the jury was improperly instructed; and (3) where no rational jury, having already

found the predicate facts beyond a reasonable doubt, could find those facts without also finding the ultimate presumed fact. See id. at 756, 838 P.2d at 456-57. As none of these circumstances is present here, the inclusion of a jury instruction that omits an essential element of the crime is not harmless, and thus warrants reversal. The majority, however, alters the harmless error jurisprudence of this state by relying on Neder v. United States, 119 S. Ct. 1827 (1999), a recent United States Supreme Court decision in a federal property crime case. In Neder, the United States Supreme Court held that a trial court's failure to include all the essential elements of the crime in the jury instruction is subject to harmless error analysis. This holding, however, is in no way binding upon us, and the dissent, written by Justice Anton Scalia, persuasively articulates why adopting this new rule is erroneous and invades the province of the jury. In accord with the dissent in Neder, I believe that the right to be tried by a jury, a guarantee that is central to the Constitution, includes the right to have the jury determine the guilt or innocence of a defendant—a determination that necessarily requires proof of all elements of a crime. Thus, “the right to render the verdict in criminal prosecutions belongs exclusively to the jury; reviewing it belongs to the appellate court.” Neder v. United States, 119 S. Ct. 1827, 1848 (1999) (Scalia, J., dissenting). The majority of this court, however, applies the harmless error DQDO\VLV DQG DVNV ZKHWKHU LW LV

³FOHDU EH\RQG D UHDVRQDEOH GRXEW WKDW D UDWLRQDO MXU\ ZRXOG KDYH IRXQG WKH GHIHQGDQW JXLOW\´DEVHQWWKHHUURQHRXVLQVWUXFWLRQ ........................................ Ð116 Nev. 687, 729 (2000) Collman v. StateÐ Ð analysis and asks whether it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty” absent the erroneous instruction. Thus, the majority essentially steps into the shoes of the jury and fills in “gaps” necessary to the verdict. While I believe that harmless error analysis may properly be used to review a verdict under the circumstances outlined in Thompson, such analysis only applies when the jury actually renders a verdict —that is, when the jury has considered all the elements of the crime and found the defendant guilty. Although I disagree with the majority's general conclusion that harmless error review applies to “instructions which omit, misdescribe, or presume an element of an offense,” I also have concerns with the majority's application of harmless error analysis to the facts of this case. The majority concludes that the use of the erroneous instruction, which omitted an essential element of the crime of murder, was harmless because: (1) the jury was given one proper instruction, jury instruction #10, that defined implied malice on which the jury could have relied; and (2) the jury's finding of torture in the penalty phase provided sufficient evidence to support a finding of implied malice in the guilt phase. I strongly disagree with these conclusions. First, it is mere speculation to assume that the jury relied on instruction #10 because there is no evidence in the guilt phase so indicating. During the guilt phase, rather than convicting Collman of first-degree murder based on a finding of implied malice, the jury could have relied on the improper mandate set forth in instruction #11, and thus concluded that malice was established solely because the murder occurred “by means of child abuse.” Because it is unclear, and particularly because it is not “clear beyond a reasonable doubt,” that the jury made any finding in the guilt phase with respect to malice aforethought, I cannot say that this error was harmless. Second, I disagree with the majority that we can bootstrap findings made in the penalty phase to cure errors made in the guilt phase. By statute, the guilt and penalty phases of a criminal trial are separate hearings in which different evidentiary rules apply. See NRS 175.552. Often, in the penalty phase, the jury hears evidence concerning a defendant that was inadmissible during the guilt phase—evidence that the jury was forbidden from considering in determining the guilt or innocence of the accused. Therefore, because the rules of evidence, the ultimate purpose, and the overall tenor of these two proceedings are vastly different, I cannot conclude that the jury's finding of torture in the penalty hearing equates to a finding of implied malice in the guilt phase. Further, using penalty phase findings to cure errors in the guilt phase may result in harsher and unequal treatment for deathSHQDOW\GHIHQGDQWVZKRGRQRWKDYHWKHRSWLRQWRZDLYHVXFKDKHDULQJ ........................................

Ð116 Nev. 687, 730 (2000) Collman v. StateÐ Ð penalty defendants who do not have the option to waive such a hearing. See NRS 175.552(2) (“In a case in which the death penalty is not sought, the parties may by stipulation waive the separate penalty hearing . . . .”). Thus, I conclude that based on the erroneous jury instruction alone, reversal is warranted in this matter. To compound matters, I believe that the trial court improperly excluded relevant, admissible evidence. One of Collman's defenses was that Stach was the abuser and killer of Damian. This included specific evidence of Stach slapping Damian across the face with her hand hard enough to draw blood and across the buttocks with a spatula, beating Damian across the hands and over his body with a wooden spoon, and Stach bragging that she gave Damian a very noticeable black eye for misbehaving. Despite Collman's defense, the State put forth great effort to show that the bite marks that could be identified on Damian's body were inflicted by Collman. One dental expert was called by the State to testify that the bite marks matched Collman's teeth. Collman countered by presenting three expert witnesses who testified that the bite marks were not Collman's and that the bite mark evidence was inconclusive. Accordingly, whether there were any bite marks, let alone who inflicted them, were central issues at trial. To bolster his defense that Stach inflicted the bite marks, Collman attempted to introduce evidence that Stach was interested in vampirism and the occult. This evidence included items of vampire literature, two dots tattooed on Stach's neck to resemble a vampire bite, and the fact that Stach had given her son a name that closely resembled the child devil's designation in a popular movie. Collman alleged that this evidence was probative because, in a matter where two people were accused of biting another, it was more probable that the biting was done by someone who was involved in vampirism and the occult. The State, however, argued against admission of this evidence alleging that it was irrelevant and that Stach had recently rejected her vampire practices and beliefs. The district court agreed, and no evidence of Stach's vampire proclivities was admitted into evidence. Normally we permit the district court substantial discretion in determining what constitutes relevant evidence, but we have also held that the district court's exercise of its discretion must not prohibit a defendant from presenting his or her full defense. See Stinnet v. State, 106 Nev. 192, 196, 789 P.2d 579, 582 (1990); Vincent v. State, 97 Nev. 169, 170, 625 P.2d 1172, 1173 (1981). Moreover, a defendant in a death penalty case is generally afforded greater latitude in the presentation of evidence. See U.S. v. Stevens, 935 F.2d 1380, 1404-05 (3rd Cir. 1991). With these principles in mind, I believe that the vampire propensities of StachVKRXOGKDYHEHHQUHFHLYHGLQWRHYLGHQFH ........................................ Ð116 Nev. 687, 731 (2000) Collman v. StateÐ Ð should have been received into evidence, and that the district court erred in not permitting Collman to present this evidence. Further, the evidence of Stach's interest in vampirism and the occult at the time Damian was being abused could have affected the jury's finding of torture as an aggravating factor during the penalty phase of Collman's trial. Such evidence may well have led the jury, or certain of its members, to conclude that Stach was more likely the one who inflicted the bite marks on Damian, especially in light of Stach's guilty plea for child neglect. Thus, the jury may ultimately have concluded that the aggravating factor of torture could not be found beyond a reasonable doubt. This would then leave one aggravating factor against six mitigating factors, with one of the mitigating factors being that Collman did not intend to kill Damian. 1 Accordingly, I believe that the decision to impose the death penalty may well have been different had Collman been permitted to present the evidence of Stach's practice and interest in vampirism and the occult. Finally, the district court's error in refusing to admit evidence to show Stach's vampire practices and beliefs is compounded by the fact that the district court allowed the State to present remote, tenuous evidence of Collman's guilt. Specifically, the district court allowed the State to enter evidence suggesting that Collman was not remorseful over killing Damian because he propositioned Stach for sex around the time of Damian's funeral. I see, at best, an attenuated relationship between sexual desire and lack of remorse. Moreover, my colleagues in the majority point out the inconsistent evidentiary rulings made by the district court in that evidence of Collman's

sexual desires were deemed admissible, whereas evidence concerning Stach's sexual desires—mainly propositioning another for sexual relations—was deemed irrelevant, prejudicial, and incredible. Throughout the trial, it appeared that the relevancy of the State's evidence was upheld, but the converse was not true when Collman attempted to present evidence in his own behalf. In conclusion, I think it is a mistake to apply the harmless error rule to an error so fundamental as the correct statement of the elements of the crime and there is no compelling reason to reverse our prior authority that refused to overlook this type of substantial error. Further, Collman was prevented from presenting evidence that would have had a tendency to show that Stach was the RQH ZKR KDG LQIOLFWHG WKH ELWH PDUNV RQ

'DPLDQ __________ 1

At least one and perhaps all of the jurors found that Collman did not intend to kill Damian. While the United States Supreme Court has held that a defendant may be given the death penalty even though he or she did not intend to kill the victim, see Tison v. Arizona, 481 U.S. 137 (1987), I believe the state courts should be reluctant to affirm the death penalty in such a case where a substantial error was admittedly made at trial and the defendant was prevented from presenting key evidence on an important issue. ........................................ Ð116 Nev. 687, 732 (2000) Collman v. StateÐ Ð one who had inflicted the bite marks on Damian. In reviewing death penalty cases, we are instructed by the United States Supreme Court that we are to do so with a heightened sense of scrutiny. See, e.g., Green v. Georgia, 442 U.S. 95 (1979); Gardner v. Florida, 430 U.S. 348 (1977); Furman v. Georgia, 408 U.S. 238 (1972). It seems to me that the majority has done just the opposite in this case. I would reverse this case and remand it for a new trial.

____________

Ð116 Nev. 732, 732 (2000) Hollaway v. StateÐ Ð Ð ROY HOLLAWAY, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32142 August 23, 2000

6 P.3d 987

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree murder and a sentence of death. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge. Defendant was convicted in the district court of first-degree murder, and he received death sentence. Defendant appealed. The supreme court, Shearing, J., held that: (1) trial court was not required to appoint standby counsel for defendant during penalty phase; (2) activation of defendant's electronic stun belt, during prosecutor's final closing argument during penalty phase, required reversal of death sentence; (3) prosecutor improperly stated to jury that victim's family would have no more holidays with their daughter and their sister; and (4) jurors should have been given instruction affirmatively informing them of their responsibility to independently assess all the evidence in considering mitigation. Conviction affirmed; sentence reversed; remanded for new penalty hearing. Young, J., with whom Leavitt, J., joined, dissented.

David M. Schieck, Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and David B. Barker, Deputy District Attorney, Clark County, for Respondent. 1. Sentencing and Punishment. Trial court was not required to appoint standby counsel for defendant during penalty phase of capital murder case, where defendant rejected court's express offer to appoint standby counsel.

........................................ Ð116 Nev. 732, 733 (2000) Hollaway v. StateÐ Ð 2. Sentencing and Punishment. Defendant could waive right to present mitigating circumstances at penalty phase of capital murder case. 3. Sentencing and Punishment. Statute which requires the supreme court to consider “whether the sentence of death is excessive, considering both the crime and the defendant,” does not unconstitutionally preclude the court from considering mitigating evidence when reviewing death sentence. Provision in fact requires the supreme court to consider mitigating evidence when determining whether death sentence is excessive. NRS 177.055(2)(d). 4. Sentencing and Punishment. Because the death penalty is unique in its severity and irrevocability, the supreme court must carefully review every death sentence to minimize the risk that the penalty is imposed in error or in an arbitrary and capricious manner. NRS 177.055(2). 5. Sentencing and Punishment. Activation of defendant's electronic stun belt, during prosecutor's final closing argument during penalty phase of capital murder case, was arbitrary and prejudicial factor which required reversal of defendant's death sentence, though court attempted to allay the prejudice by informing jury that defendant was wearing stun belt and had done nothing to warrant its activation. Belt activated as prosecutor was stressing to jury how violent defendant was, and activation of belt reinforced image of defendant as extremely violent man with whom authorities had to take exceptional security precautions. NRS 177.055(2)(c). 6. Sentencing and Punishment. Prosecutor's statement to jury, during closing argument in penalty phase of capital murder case, that victim's family would have no more holidays with their daughter and their sister improperly encouraged jury to impose sentence under influence of passion. NRS 177.055(2)(c). 7. Sentencing and Punishment. During penalty phase of capital murder case in which defendant elected to present no mitigating circumstances, jurors should have been given instruction affirmatively informing them of their responsibility to independently assess all the evidence in considering mitigation, and lack of such instruction required reversal of death sentence, where record revealed number of potential mitigating factors, defendant told jurors not to “bother” with mitigating circumstances, and prosecutors also argued that no mitigating circumstances existed. 8. Sentencing and Punishment. Even where no mitigating circumstances are presented at the penalty phase of capital case, the jurors may consider any evidence presented in the guilt phase that may indicate that a penalty less than death is appropriate. 9. Sentencing and Punishment. When death penalty is sought during penalty phase, jurors must be instructed that, in determining whether mitigating circumstances exist, they have obligation to make independent and objective analysis of all the relevant evidence, that arguments of counsel or party do not relieve jurors of this responsibility, that jurors must consider totality of circumstances of crime and defendant, as established by evidence presented in guilt and penalty phases of trial, and that neither the prosecution's nor defendant's insistence on existence or nonexistence of mitigating circumstances is binding upon jurors.

........................................ Ð116 Nev. 732, 734 (2000) Hollaway v. StateÐ Ð 10. Sentencing and Punishment. A state's capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty. 11. Sentencing and Punishment. Aggravating circumstances are expressly enumerated by statute, and only evidence relevant to these enumerated aggravators will serve to establish a defendant's eligibility for the death penalty. NRS 200.030(4)(a), 200.033. 12. Sentencing and Punishment. In penalty phase of capital case, a mitigating circumstance can be any circumstance relative to the offense, defendant or victim which a juror considers mitigating. NRS 175.552(3), 200.035(7). 13. Sentencing and Punishment. In penalty phase of capital case, aggravating evidence and mitigating evidence also entail relevant rebuttal evidence. A defendant

can offer evidence to rebut the State's proof of aggravating circumstances, as can the State to rebut proof of mitigating circumstances. 14. Sentencing and Punishment. Under state's capital sentencing scheme, two things are necessary before a defendant is eligible for death: the jury must find unanimously and beyond a reasonable doubt that at least one enumerated aggravating circumstance exists, and each juror must individually consider the mitigating evidence and determine that any mitigating circumstances do not outweigh the aggravating. 15. Sentencing and Punishment. Even if the jury as a whole finds aggravating circumstances and every juror determines that mitigating circumstances either do not exist or do not outweigh the aggravating, the defendant is only death-eligible. The jury must then decide on a sentence unanimously and still has discretion to impose a sentence less than death. NRS 175.554(2), (3), 175.556. 16. Sentencing and Punishment. To be admissible in penalty phase of capital case, “other matter” evidence must be relevant, and its danger of unfair prejudice must not substantially outweigh its probative value. To be relevant, like mitigating evidence, it must relate to the offense, defendant or victim. NRS 175.552(3). 17. Sentencing and Punishment. During penalty phase of capital case, State can offer “other matter” evidence for only one purpose: for jurors to consider in deciding on an appropriate sentence after they have determined whether the defendant is or is not eligible for death. NRS 175.552(3). 18. Sentencing and Punishment. “Other matter” evidence is not admissible, during penalty phase of capital case, for use by the jury in determining the existence of aggravating circumstances or in weighing them against mitigating circumstances. NRS 175.552(3). 19. Sentencing and Punishment. District courts at capital penalty hearings must ascertain purpose for which the State offers any evidence and inform the jury of the evidence's proper use. Three purposes are proper: to prove an enumerated aggravator, to rebut specific mitigating evidence, or to aid the jury in determining the appropriate sentence after any enumerated aggravating circumstances have been weighed against any mitigating circumstances. NRS 175.552(3).

........................................ Ð116 Nev. 732, 735 (2000) Hollaway v. StateÐ Ð 20. Sentencing and Punishment. When the State offers evidence at capital penalty hearing for the purpose of aiding jury in determining appropriate sentence after any enumerated aggravating circumstances have been weighed against any mitigating circumstances, the court must admonish the jury that the evidence is not to be used in determining the existence or the weight of aggravating circumstances. NRS 175.552(3). 21. Sentencing and Punishment. Once the jurors determine whether or not the defendant is death-eligible, then they must consider all the relevant evidence to determine the appropriate sentence for the defendant. 22. Sentencing and Punishment. The Eighth Amendment requires that the death penalty be imposed fairly, and with reasonable consistency, or not at all. U.S. Const. amend. 8.

Before the Court En Banc. OPINION By the Court, Shearing, J.: Appellant Roy Hollaway strangled his wife, Carolyn Whiting, on January 27, 1996. The couple had been arguing for days and drinking heavily when Hollaway strangled Whiting, first with his hands and then with an electrical cord. Hollaway then called 911 and reported the crime. He admitted the crime to the 911 operator and to police after they arrived. Whiting was in a coma and died about two weeks later. The State charged Hollaway with first-degree murder and sought the death penalty. Hollaway chose to represent himself, and at trial he offered no defense. After the jury found him guilty, he offered no mitigating evidence and asked for and received a death sentence. Pursuant to this court's order, the district court appointed counsel to represent Hollaway on appeal. Counsel challenges Hollaway's death sentence on a number of grounds. We conclude that these grounds are meritless, but pursuant to our mandatory review of the death sentence, we conclude that Hollaway's sentence was imposed under the influence of prejudicial and arbitrary factors. We therefore vacate the sentence and remand for a new penalty hearing.

FACTS On March 22, 1996, the State filed an information charging Hollaway with murder. Hollaway pleaded not guilty at his arraignment on March 26, 1996. On April 15, 1996, the State filed a notice of intent to seek the death penalty, alleging as a single aggravating circumstance that Hollaway was convicted of second-GHJUHHDUPHGUREEHU\DQGIDOVHLPSULVRQPHQWLQ&DOLIRUQLDLQ ........................................ Ð116 Nev. 732, 736 (2000) Hollaway v. StateÐ Ð degree armed robbery and false imprisonment in California in 1990. 1 On August 13, 1996, Hollaway's counsel moved the district court for a competency hearing. In an attached affidavit, counsel informed the court that Hollaway consistently “expressed a desire to receive the death penalty” and had been severely depressed and despondent. On October 11, 1996, several defense motions were filed. One moved to allow Hollaway to represent himself and to allow the public defender to withdraw. Another moved to withdraw his plea of not guilty and to plead guilty to first-degree murder. Attached was an affidavit by Hollaway, stating that he did not want a trial and wanted to proceed directly to sentencing. Defense counsel also filed a motion to set a hearing to determine Hollaway's competency. Attached were, among other things, evaluations of Hollaway by psychiatrist William O'Gorman, M.D., and psychologist Lewis Etcoff, Ph.D.; a transcript of a police interview of Hollaway after his arrest; a transcript of his call to 911; and copies of letters from Hollaway to family and friends after the crime. In the letters, Hollaway expressed regret over killing Whiting. For example, in a letter to his mother, he told how he and Whiting had been drinking all day and arguing, that he “lost it” and “came completely unglued” and killed her, that there was no excuse for it, and that he would regret it the rest of his life; he also asked his mother to call and try to comfort Whiting's mother. Hollaway also exchanged letters with Whiting's mother and expressed his regret. Dr. O'Gorman concluded that Hollaway was clinically depressed and “should be more carefully evaluated with an Electroencephalogram (EEG) that may show evidence of disturbance of stream of consciousness, under the influence of alcohol.” O'Gorman concluded, however, that Hollaway's depression did not render him incompetent to stand trial. Dr. Etcoff, while recognizing Hollaway's desire to die as a part of Hollaway's clinical depression, agreed that Hollaway was competent to stand trial. O'Gorman and Etcoff both testified before the district court at a hearing on October 30, 1996. After their testimony, Hollaway told the court that he preferred the death penalty to thirty to forty years in prison. In responding, the court said that it had not prejudged the case but had seen worse murders where defendants did not get the death penalty. It told Hollaway that he was probably wrong if he thought a three-judge panel would automatically sentence him to death and that an average jury might be more likely to return a death sentence. __________ 1

Hollaway robbed a gas station attendant at knife point. After serving approximately 18 months in prison, he was paroled. He had successfully completed his parole prior to strangling his wife. ........................................ Ð116 Nev. 732, 737 (2000) Hollaway v. StateÐ Ð On December 5, 1996, the district court found that Hollaway was not competent to understand the charges against him and to aid in his own defense and ordered him committed to Lakes Crossing Center for a determination of his ability to attain competency. On April 3, 1997, after reviewing the reports of a sanity commission, the court found Hollaway competent to stand trial. At that time, Hollaway told the court that he no longer wanted to plead guilty but preferred to go to trial.

At a hearing on April 17, 1997, the district court canvassed Hollaway regarding his motion to represent himself. The court took the matter under consideration and strongly urged Hollaway to try antidepressant medication in the meantime. 2 Hollaway admitted that he wished to represent himself in order to receive the death penalty. At a hearing on May 29, 1997, the court ruled that Hollaway had a right to represent himself and relieved the public defender as counsel. Hollaway also rejected standby counsel. The guilt phase of the jury trial began on October 27, 1997, and ended the next day. During jury selection, the State and Hollaway each used peremptory challenges to strike venire members who expressed hesitation about having to judge another person or return a death sentence. During the trial, Hollaway made no objections, asked only a handful of questions on cross-examination, presented no evidence, and made no argument. During the guilt phase the 911 operator who took Hollaway's call on the night of January 27, 1996, testified as follows. Hollaway called and said that his wife would not die despite his repeated efforts to strangle her over a thirty-minute period. He said that he considered using a knife but that was too messy. He also said that he and his wife had been fighting for about three days. When told that the conversation was being recorded, Hollaway said, “Cool. I did this deliberately because I wanted her to die. . . . [I]f that don't get me the death penalty, I reckon nothing will.” Portions of the taped call were played to the jury. A Las Vegas Metropolitan Police Department (LVMPD) officer was dispatched to Hollaway's apartment after the call and testified to the following. Hollaway told the officer that he had killed his wife. The officer found Whiting lying on the apartment floor. Hollaway told the officer that he had tried to drown her, then choked her with his hands, and then because he was not strong enough used an electrical cord. Medical personnel arrived, tried to resuscitate Whiting, and then took her from the apartment on a gurney. Hollaway was in the patrol car with the officer and “said something to the effect that, ‘I can't believe the bitch is still alive.' ” __________ 2

There is no indication that Hollaway ever did so. ........................................

Ð116 Nev. 732, 738 (2000) Hollaway v. StateÐ Ð A second LVMPD officer who arrived at the apartment that night testified. Hollaway also told this officer how he had tried to drown his wife, strangle her manually, and then used an electrical cord. He said he did so because he believed that she was cheating on him with another man. After Hollaway was put in the patrol car, he began to beat his head on the window between the front and the back seat: “He was—he was going pretty ballistic, banging his head on the window; he was pretty distraught.” When Hollaway saw his wife on the gurney, “[h]e said, ‘Don't tell me the bitch isn't dead, by god, she had better be dead.' ” Whiting died two weeks after the strangling. The doctor who performed the autopsy found that she had died from asphyxiation due to strangulation and that her brain had liquefied due to lack of blood supply. An LVMPD detective conducted an audiotaped interview of Hollaway the night of his arrest. The detective testified regarding the interview, but the tape was not played during the guilt phase. The detective told the jury that Hollaway said he and Whiting “had been drinking and arguing and at a point he snapped and said, ‘Fuck it, you gotta die.' ” Hollaway said that they had been arguing for several days and that Whiting had been comparing him to her ex-husband, which he hated. He stated that he first choked her with his hands, then resorted to an electrical cord, and stopped only when he was exhausted. When the detective asked if alcohol had impaired his thinking, Hollaway said, “ ‘No, I ain't copping that plea.' ” Whiting's mother testified. During her testimony, she stated that she and Hollaway had exchanged letters after her daughter's death and that Hollaway “admitted what he did and he was sorry.” The jury found Hollaway guilty of first-degree murder. The penalty hearing was held the next day, October 29, 1997. The State first played the entire tape of the 911 call and then the tape of the interview of Hollaway by the detective. The complete tapes contained additional statements of Hollaway demonstrating his appreciation of the consequences of his conduct and his desire to face up to what he had done, as well as more details about the arguments and drinking that preceded the strangulation.

(911 Tape) Hollaway: Miss. Look, I know I'm going to prison. I have the door open. It's not locked. Police can come in. I'm not violent. .... 911 Operator: I just hope your wife's not dead. ........................................ Ð116 Nev. 732, 739 (2000) Hollaway v. StateÐ Ð Hollaway: Well, truth to tell, now, I kinda hope she ain't either. (Voluntary Statement) Hollaway: We had been arguing for several days. Although today was . . . I never actually planned on killin' her ‘til tonight. And then she . . . Fuck, I just had enough. Fuck it. I just killed her. .... Detective: Are you remorseful about what happened? Hollaway: I don't know, I think I'm still in kind of in shock. Detective: Okay. Have you been drinkin' tonight? Hollaway: Yes, I have. .... Detective: Okay. When had you stopped drinkin' prior to the, uh, fight? How long had it been since your last drink before the fight? Hollaway: Well, we sit . . . we were both sittin' in the house havin' a beer. Detective: So you were drinking up to the time— Hollaway: Right. Detective: —right to the fight. Hollaway: Correct. .... Detective: Okay. Once again, is there anything else you'd like to add to this that I may not have asked you? That may clear this up? Before we conclude the interview. Hollaway: What is there to clear up? You know, there ain't nothin'. Detective: Okay.

Hollaway: Stupid fucked up. Now I pay the price. Joanna Stutheit, a friend of Whiting's, testified. She worked at a bar and liquor store and saw Whiting and Hollaway daily. On two occasions, she saw Hollaway grab Whiting's throat and choke her. One time was at the bar; Whiting was angry with Hollaway DQG DUJXHG ZLWK KLP IRU IRUW\ILYH PLQXWHV WR DQ KRXU

EHIRUHKHDWWDFNHGKHU ........................................ Ð116 Nev. 732, 740 (2000) Hollaway v. StateÐ Ð and argued with him for forty-five minutes to an hour before he attacked her; another man pulled Hollaway away. Stutheit could not remember why the other incident, at the liquor store, occurred; Hollaway stopped choking Whiting after other people told him to. Stutheit said that Whiting was sometimes verbally abusive to Hollaway: “There was times where she'd call him stupid and she'd just humiliate him.” Richard Ziemelis testified. He had lived next door to Hollaway and Whiting. About one month before the fatal assault, Hollaway and Whiting had argued in their apartment. Ziemelis went into their apartment, found Hollaway choking Whiting, and pulled him off of her. Another time, when Ziemelis asked Whiting about the cracked windshield in her car, Whiting said that she had argued with Hollaway and he had slammed her head into the windshield. Dolores Killmer, another friend of Whiting's, testified. One time she was visiting Whiting, and Whiting and Hollaway had been drinking. Hollaway began choking Whiting in the bedroom, and Killmer had to pull him off of her. The State presented evidence of Hollaway's prior conviction and rested. Hollaway presented no evidence. In his opening statement during the penalty phase, prosecutor David Barker informed the jury that Hollaway's blood alcohol level was .13 percent, and the lab report was entered into evidence. In closing argument, however, the prosecutors did not mention Hollaway's intoxication and argued that no mitigating circumstances existed. During closing argument, prosecutor Laura Rehfeldt reminded jurors of the testimony by Whiting's mother and the pain that Whiting's death had caused her family. Rehfeldt said: “There will be no more holidays the family spends with their daughter and their sister, Carolyn Whiting.” In his closing argument, Hollaway told the jury that he was in disciplinary lock-up. He claimed that this was because he was a threat to other prisoners, and he implied that he might kill again. There was no evidence presented during trial or anywhere else in the record to support Hollaway's assertion that he was in disciplinary lock-up or that the jail considered him a threat to other inmates. During final closing argument, as prosecutor Barker was stressing to the jury how violent Hollaway was, an electronic stun belt that Hollaway was wearing was activated and shocked him, completely disrupting the proceedings. The jury was excused, and the district court stated that it was “intolerable that this can happen by accident when he's doing absolutely nothing.” When the jury returned, the court explained that Hollaway was wearing a stun belt and emphasized that he had done nothing to warrant its activation. The prosecutor then finished his argument. ........................................ Ð116 Nev. 732, 741 (2000) Hollaway v. StateÐ Ð The jury retired to its deliberations and returned a verdict of death. The jury found one aggravating circumstance—Hollaway had been previously convicted of a felony involving the use or threat of violence—and no mitigating circumstances. The district court imposed the sentence of death on December 15, 1997. The district court clerk sent this court the record on appeal, pursuant to NRS 177.055(1). Pursuant to this court's order, the district court appointed counsel to represent Hollaway in this appeal.

DISCUSSION I.

Issues raised by way of appeal

In his briefs to this court, Hollaway 3 argues that the right to self-representation is not unqualified, particularly in the penalty phase of a capital case, and that the district court erred in not appointing counsel to act as a friend of the court and present mitigating evidence. He also argues that the failure to present mitigating evidence frustrated the State's statutory capital sentencing scheme. Finally, he claims that NRS 177.055(2) is unconstitutional. [Headnotes 1, 2] Hollaway cites no authority that requires a court to appoint standby counsel. He does cite authority holding that courts have the discretion to appoint such counsel, and this court has so held. Harris v. State, 113 Nev. 799, 804, 942 P.2d 151, 155 (1997). Harris also states that a defendant who elects to represent himself does not have a constitutional right to advisory counsel and the court has no duty to appoint such counsel. Id. Furthermore, in this case Hollaway rejected the district court's express offer to appoint standby counsel. Therefore, the court did not err in failing to appoint standby counsel for Hollaway. Regarding the failure to present mitigating circumstances, this court has ruled that a capital defendant may waive the right to do so. See Colwell v. State, 112 Nev. 807, 811, 919 P.2d 403, 406 (1996). [Headnote 3] Hollaway claims that NRS 177.055(2) unconstitutionally precludes this court from considering mitigating evidence when reviewing a death sentence. This claim is meritless. NRS 177.055(2)(d) requires this court to consider: “Whether the sentence of death is excessive, considering both the crime and the defendant.” (Emphasis added.) This provision not only permitsEXWUHTXLUHVWKLVFRXUWWRFRQVLGHUDQ\PLWLJDWLQJ

HYLGHQFHZKHQGHWHUPLQLQJZKHWKHUDGHDWKVHQWHQFHLVH[FHVVLYH __________ 3

Hollaway's appointed counsel actually raises the issues on appeal because Hollaway himself is not actively pursuing the appeal. ........................................ Ð116 Nev. 732, 742 (2000) Hollaway v. StateÐ Ð but requires this court to consider any mitigating evidence when determining whether a death sentence is excessive. II.

Mandatory review of the death sentence: the influence of prejudicial and arbitrary factors

[Headnote 4] NRS 177.055(2) requires this court to review every death sentence and consider in addition to any issues raised on appeal: (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 (d) Whether the sentence of death is excessive, considering both the crime and the defendant. We are also cognizant that because the death penalty is unique in its severity and irrevocability, this court must carefully review every death sentence to minimize the risk that the penalty is imposed in error or in an arbitrary

and capricious manner. Cf. Spaziano v. Florida, 468 U.S. 447, 460 n.7 (1984). Pursuant to NRS 177.055(2)(c), we conclude that imposition of Hollaway's sentence was improperly influenced in three ways. We therefore set aside Hollaway's sentence and remand for a new penalty hearing. See NRS 177.055(3). [Headnote 5] First, during his final closing argument the prosecutor was asking “how deep, deep into this man's being does this violence run,” when Hollaway's electronic stun belt was set off. This completely disrupted the proceedings, requiring the jurors to leave the courtroom. When they returned, they were informed that Hollaway was wearing an electronic stun belt. The timing could not have been better to reinforce the image of Hollaway as an extremely violent man with whom authorities had to take exceptional security precautions. 4 Hollaway did absolutely nothing to justify the belt's activation, and though it was apparently accidental, the State was solely responsible for the accident. Although the district court did its best to allay any prejudice arising from this incident, the incident remained an arbitrary and prejudicial factor which requires reversal of Hollaway's sentence. [Headnote 6] Second, the prosecutor's statement to the jury that Whiting's family would have no more holidays with their daughter and their sister was improper. See Quillen v. State, 112 Nev. 1369, 1382,  3G  

  __________ 4

In actuality, the jail had just received the stun belt device and was testing it by routinely putting it on first-degree murder defendants. ........................................ Ð116 Nev. 732, 743 (2000) Hollaway v. StateÐ Ð 929 P.2d 893, 901 (1996). The statement encouraged the jury to impose a sentence under the influence of passion: “holiday arguments” are meant only to appeal to jurors' emotions and arouse their passions. Id. [Headnote 7] Third, under the circumstances of this case, we conclude that the jury required further instruction regarding its responsibilities in assessing the evidence during the penalty phase. The record before us exhibits sufficient evidence to support the conviction for first-degree murder. However, it also reveals a number of potential mitigating factors. For example, there was substantial evidence that Hollaway was remorseful following the murder. There was extensive evidence that alcoholic intoxication played a major role in the crime. The record also showed that Hollaway and Whiting had been arguing incessantly when the killing occurred. Further, the crime did not threaten or endanger any other persons. Also, Hollaway did not flee or conceal the crime in any way or deny his actions; rather, he immediately reported the crime and admitted his guilt. [Headnote 8] None of this in any way excuses or justifies Hollaway's crime, nor does any of this necessarily render Hollaway death “ineligible,” but it could provide a basis for jurors to find the crime mitigated and impose a less severe sentence. As explained below, due to Hollaway's refusal to present any case in mitigation, the prosecutors' arguments, and the jury instructions, jurors may have erroneously concluded they were not required or even permitted to determine for themselves whether any mitigating circumstances existed. Even where no mitigating circumstances are presented at the penalty phase, the jurors may consider any evidence presented in the guilt phase that may indicate that a penalty less than death is appropriate.

At the end of the penalty phase, in Hollaway's only statement to the jurors, he told them: “As far as the special verdict for the mitigating circumstances, defense is not alleging any mitigating circumstances, so I don't see that you need to bother with that at all.” The prosecutors also argued that no mitigating circumstances existed. In final closing argument, the prosecutor told the jurors: “If you determine that there are not mitigating circumstances, and he has offered none and told you there are none, simply sign the form with no checks in any of the boxes or on any of the lines.” This is what the jury did. The jury was not instructed in the penalty phase that statements, arguments, or opinions of counsel or a party were not evidence in the case and that regardless of such statements, arguPHQWV RU RSLQLRQV LWV

GHOLEHUDWLRQV ZHUH WR EH JRYHUQHG E\ WKH HYLGHQFH DV LW XQGHUVWRRG DQG UHPHPEHUHG LW DQGE\WKHODZDVJLYHQLWE\WKHFRXUW ........................................ Ð116 Nev. 732, 744 (2000) Hollaway v. StateÐ Ð ments, or opinions, its deliberations were to be governed by the evidence as it understood and remembered it and by the law as given it by the court. Cf. Flanagan v. State, 112 Nev. 1409, 1420, 930 P.2d 691, 698 (1996). The instructions directed the jury to determine whether any mitigating circumstances existed, but also informed the jury that it only needed to consider evidence “that the Defendant proffer[s] as a basis for a sentence less than death.” The United States Supreme Court has held that to ensure that jurors have reliably determined death to be the appropriate punishment for a defendant, “the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant's background and character or the circumstances of the crime.” Penry v. Lynaugh, 492 U.S. 302, 328 (1989). In Penry, the absence of instructions informing the jury that it could consider and give effect to certain mitigating evidence caused the Court to conclude that the jury was not provided with a vehicle for expressing its “reasoned moral response” to that evidence in rendering its sentencing decision. Our reasoning in [Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982),] thus compels a remand for resentencing so that we do not “risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.” Id. (quoting Lockett, 438 U.S. at 605). That same risk compels us to remand for resentencing here. [Headnote 9] If upon remand the State again seeks a death sentence and in all future cases where the death penalty is sought, we direct that the following jury instruction be given. In determining whether mitigating circumstances exist, jurors have an obligation to make an independent and objective analysis of all the relevant evidence. Arguments of counsel or a party do not relieve jurors of this responsibility. Jurors must consider the totality of the circumstances of the crime and the defendant, as established by the evidence presented in the guilt and penalty phases of the trial. Neither the prosecution's nor the defendant's insistence on the existence or nonexistence of mitigating circumstances is binding upon the jurors. III. Instruction regarding the proper use of evidence during the penalty phase We are also concerned that the jury receive clear instruction regarding the proper use of evidence introduced by the State which goes beyond proof of a statutory aggravating circumstance. ........................................ Ð116 Nev. 732, 745 (2000) Hollaway v. StateÐ Ð

[Headnote 10] “[A] State's capital sentencing scheme . . . must ‘genuinely narrow the class of persons eligible for the death penalty.' ” Arave v. Creech, 507 U.S. 463, 474 (1993) (quoting Zant v. Stephens, 462 U.S. 862, 877 (1983)). To implement this narrowing function, in 1977 the Nevada Legislature passed and the Governor approved Senate Bill No. 220, which established the procedures by which capital punishment may be imposed in this state. See S.B. 220, 59th Leg. (Nev. 1977). Basically, three types of evidence are relevant at the penalty hearing when the State seeks a death sentence: evidence relating to aggravating circumstances, mitigating circumstances, and “any other matter which the court deems relevant to sentence.” NRS 175.552(3). [Headnotes 11-13] Statutes and this court's case law make clear the nature and use of the first two types of evidence. Aggravating circumstances are expressly enumerated by statute, and only evidence relevant to these enumerated aggravators will serve to establish a defendant's eligibility for the death penalty. See NRS 200.030(4)(a); NRS 200.033; Middleton v. State, 114 Nev. 1089, 1116-17 & n.9, 968 P.2d 296, 314-15 & n.9 (1998), cert. denied, 120 S. Ct. 322 (1999). A mitigating circumstance can be any circumstance “relative to the offense, defendant or victim” which a juror considers mitigating. See NRS 175.552(3); NRS 200.035(7); Evans v. State, 112 Nev. 1172, 1204, 926 P.2d 265, 285 (1996). 5 Aggravating evidence and mitigating evidence, of course, also entail relevant rebuttal evidence: a defendant can offer evidence to rebut the State's proof of aggravating circumstances, as can the State to rebut proof of mitigating circumstances. [Headnotes 14, 15] Under Nevada's capital sentencing scheme, two things are necessary before a defendant is eligible for death: the jury must find unanimously and beyond a reasonable doubt that at least one enumerated aggravating circumstance exists, and each juror must individually consider the mitigating evidence and determine that any mitigating circumstances do not outweigh the aggravating. __________ 5

In Evans, we approved the following jury instruction: The mitigating circumstances which I have read for your consideration are given only as examples of some of the factors you may take into account as reasons for deciding not to impose a sentence of death on the defendant. Any aspect of the defendant's character or record and any of the circumstances of the offense, including any desire you may have to extend mercy to the defendant, which a jury believes is a basis for imposing sentence less than death may be considered a mitigating factor. Any one of them may be sufficient, standing alone, to support a decision that death is not the appropriate punishment in this case. Evans, 112 Nev. at 1204, 926 P.2d at 285-86. ........................................ Ð116 Nev. 732, 746 (2000) Hollaway v. StateÐ Ð Geary v. State, 114 Nev. 100, 105, 952 P.2d 431, 433 (1998). Even if the jury as a whole finds aggravating circumstances and every juror determines that mitigating circumstances either do not exist or do not outweigh the aggravating, the defendant is only death-eligible. The jury must then decide on a sentence unanimously and still has discretion to impose a sentence less than death. See NRS 175.554(2), (3); NRS 175.556; Bennett v. State, 111 Nev. 1099, 1109-10, 901 P.2d 676, 683 (1995). [Headnotes 16, 17] We are concerned here with explaining the nature and use of the third type of evidence, permitted by NRS 175.552(3), concerning “any other matter which the court deems relevant to sentence.” Because evidence

relevant to mitigation is broadly defined, this provision is of little practical benefit to the defendant. Normally, NRS 175.552(3) serves to permit the State to introduce evidence against the defendant which goes beyond the enumerated statutory aggravators, but this “other matter” evidence is restricted in its scope and use. It must be relevant, and its danger of unfair prejudice must not substantially outweigh its probative value. McKenna v. State, 114 Nev. 1044, 1051-52, 968 P.2d 739, 744 (1998), cert. denied, 120 S. Ct. 342 (1999). To be relevant, like mitigating evidence, it must relate “to the offense, defendant or victim.” See NRS 175.552(3). Furthermore, under Nevada's statutory sentencing scheme, the State can offer this evidence for only one purpose: for jurors to consider in deciding on an appropriate sentence after they have determined whether the defendant is or is not eligible for death. [Headnotes 18-21] “Other matter” evidence is not admissible for use by the jury in determining the existence of aggravating circumstances or in weighing them against mitigating circumstances. See Middleton, 114 Nev. at 1116-17 & n.9, 968 P.2d at 314-15 & n.9. Such use of this evidence would undermine the constitutional narrowing process which the enumeration and weighing of specific aggravators is designed to implement. We therefore direct the district courts at capital penalty hearings to ascertain the purpose for which the State offers any evidence and to inform the jury of the evidence's proper use. Three purposes are proper: to prove an enumerated aggravator, to rebut specific mitigating evidence, or to aid the jury in determining the appropriate sentence after any enumerated aggravating circumstances have been weighed against any mitigating circumstances. When the State offers evidence for the last purpose, the court must admonish the jury that the evidence is not to be used in determining the existence or the weight of aggravating circumstances. Once the jurors determine whether orQRW

WKHGHIHQGDQWLVGHDWKHOLJLEOH ........................................ Ð116 Nev. 732, 747 (2000) Hollaway v. StateÐ Ð not the defendant is death-eligible, then they must consider all the relevant evidence to determine the appropriate sentence for the defendant. See id. CONCLUSION [Headnote 22] The Eighth Amendment requires that the death penalty “be imposed fairly, and with reasonable consistency, or not at all.” Eddings, 455 U.S. at 112. We believe that capital trials in this state normally result in fair and reasonably consistent imposition of the death penalty. In this case, with the unprovoked electric shocking of a capital defendant at his penalty hearing in the presence of jurors and with the lack of an instruction affirmatively informing the jurors of their responsibility to independently assess all the evidence in considering mitigation, we cannot conclude that this constitutional requirement was met. Therefore, we affirm Hollaway's judgment of conviction but reverse his sentence and remand for a new penalty hearing consistent with this opinion. Agosti and Becker, JJ., concur. Rose, C. J., concurring: I concur with the majority's conclusion that this matter should be remanded for a new penalty hearing because the activation of Hollaway's stun belt was an arbitrary and prejudicial act that improperly influenced the jury. I believe that giving an additional instruction on the jury's consideration of mitigating circumstances is appropriate. I write separately, however, because I further conclude that this case should be remanded with special instructions that separate counsel be appointed to represent the State's interest in ensuring a reliable penalty determination. See New Jersey v. Loedatich, 548 A.2d 939 (N.J. 1988). Nevada's statutory scheme includes numerous safeguards to ensure that the death penalty determination is

reliable and not given randomly or disproportionately. Indeed, NRS 175.554(3) prohibits a jury from imposing a death sentence in matters where the mitigating circumstances outweigh the aggravating ones. The majority opinion properly observes that the United States Supreme Court requires a jury to be able to consider and give effect to any relevant mitigating evidence. Penry v. Lynaugh, 492 U.S. 302, 328 (1989). I do not see how a jury could fulfill its legal, and perhaps moral, duty of considering the mitigating circumstances when no such evidence is presented. Further, NRS 177.055(2)(d) compels this court to consider “[w]hether the sentence of death is excessive, considering bothWKHFULPHDQGWKHGHIHQGDQW´ ........................................ Ð116 Nev. 732, 748 (2000) Hollaway v. StateÐ Ð the crime and the defendant.” (Emphasis added.) This provision not only permits, but requires, this court to consider any mitigating evidence when determining whether a death sentence is excessive. This statutory mandate, however, is thwarted in circumstances where compelling mitigating evidence is neither investigated nor presented at the sentencing phase. Although we concluded in Colwell v. State, 112 Nev. 807, 919 P.2d 403 (1996), that a criminal defendant is entitled to represent himself in any manner he wishes, we did not address whether the State had an interest in assuring the presentation of mitigating evidence. 1 This court has recognized that Nevada has an interest in preserving life and preventing suicide. See McKay v. Bergstedt, 106 Nev. 808, 801 P.2d 617 (1990). With respect to this issue, I conclude that because the State has a strong interest in protecting against arbitrary implementation of the death penalty, a representative should be appointed for sentencing to prevent such arbitrary imposition of the death penalty. This representative would act as an amicus curiae and investigate and present mitigating factors, thus fulfilling the aforementioned statutory directives that safeguard against random and arbitrary death sentences. Maupin, J., concurring: I concur with the majority that Hollaway's conviction on the charge of first-degree murder should be affirmed. I also agree with the majority's statements of doctrine with regard to the process by which persons charged with murder in Nevada may receive the death penalty. Thus, I further agree that a second sentencing hearing is required, but primarily because of the activation of the “stun belt” during the State's closing argument. 1

I do have some concern with the majority's observation that evidence admitted at the guilt phase may be considered by the jury in mitigation of penalty. First, there will be no guilt phase on remand. Second, if Hollaway continues in his quest to be executed, that evidence will never come to light. Third, the defendant, although having no right to set his own penalty—it is the prerogative of the jury or a three-judge panel to determine that issue—has the absolute right to waive or renounce the presentation of any evidence. Thus, on remand, while the process should SURFHHG DV LQGLFDWHG E\ WKH PDMRULW\ VRPH RI WKDW SURFHVV

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I note, however, that a defendant's right to control his defense is not without limitations. For example, NRS 177.055(2) mandates that this court review a defendant's sentence of death, regardless of whether the defendant waived his right to appeal. This statute is protective; it furthers the State's interest in ensuring that a death sentence was not arbitrarily imposed, regardless of the defendant's desire to forego such review. 1

I do not, however, attach the same significance to the conduct of the prosecutors at trial. My review of the record demonstrates that, with the few exceptions noted by the majority, the prosecutors exercised considerable restraint in their presentation of the case against Hollaway.

........................................ Ð116 Nev. 732, 749 (2000) Hollaway v. StateÐ Ð proceed as indicated by the majority, some of that process may not eventuate at Hollaway's election. Young, J., with whom Leavitt, J., joins, dissenting: I respectfully dissent because I disagree with the majority's conclusion that Hollaway's sentence was imposed under the influence of prejudicial and arbitrary factors. While review of this case is required by statute, under the facts and circumstances of the instant appeal, I feel that more consideration should have been given to Hollaway's competency and desire to represent himself in the manner in which he saw fit. Hollaway was initially examined by a psychiatrist who recommended further evaluation and a psychologist who concluded that he was competent to stand trial. Hollaway was subsequently committed to Lakes Crossing Center, a decision which the district court later characterized as a “very, very close question in the first place.” Several months after commitment, the district court reviewed the reports of a sanity commission, comprised of two psychiatrists and one psychologist, concluding that Hollaway was competent to stand trial. The district court agreed with this determination and found Hollaway competent to stand trial. The district court also concluded that Hollaway had the right to represent himself. Hollaway has not expressed dissatisfaction with the guilt or penalty phases of his trial and has not pursued this appeal. Therefore, I feel that remanding for a new penalty hearing is unwarranted. The majority concludes that the imposition of Hollaway's sentence was improperly influenced in three ways. First, the majority cites the incident in which Hollaway's electronic stun belt was accidentally set off. The district court immediately excused the jury and ascertained that the belt had merely malfunctioned. After calling the jury back into the courtroom, the district court informed the jury that [t]he corrections officers often ask with people who are charged with murder to use the latest technology. Mr. Hollaway is wearing a belt, an electric belt. It's only supposed to be used if the defendant causes some problem. Mr. Hollaway, not today, nor at any other day in this [c]ourt, nor as far as I know in the jail, has caused any trouble at all. But he does have the belt on, and the court services officer in leaning over, he has the control in his pocket, just zapped Mr. Hollaway accidentally. That causes him to get quite a shock, an electric shock, and as I said, he did absolutely nothing to cause it. It was a pure accident. Every once in a while there are people that cause disruptions in court. Mr. Hollaway hasn't at any time done that. ........................................ Ð116 Nev. 732, 750 (2000) Hollaway v. StateÐ Ð The majority appears very focused on the fact that Hollaway did nothing to provoke the activation of the stun belt. However, it is clear from the above quotation that this fact was made abundantly clear to the jury by the district court. I conclude that it is unnecessary to remand this case for an entirely new sentencing phase based on an accident that was immediately explained to the jury and appropriately handled by the district court. Second, the majority finds that the “holiday arguments” made by the prosecutor to the jury in closing arguments during the penalty phase were improper. In support of this finding, the majority cites Quillen v. State, 112 Nev. 1369, 929 P.2d 893 (1996). The prosecutor in Quillen “referred to Thanksgiving no fewer than eight times, stating on two occasions that [the victims] were having their ‘Thanksgiving meal' ” when they were attacked. Quillen, 112 Nev. at 1381, 929 P.2d at 901. In the instant case, the prosecutor only once stated to the jury that Whiting's family would have no more holidays with their daughter and their sister. I conclude that while improper, the prosecutor's comments clearly do not rise to the level of egregious conduct with which this court was concerned in Quillen. Finally, the majority concludes that under the circumstances of this case, the jury required further instruction regarding its responsibilities in assessing the evidence during the penalty phase. The majority first concludes that the jury was not instructed in the penalty phase that the statements,

arguments, or opinions of counsel or a party were not evidence in the case and that their deliberations were to be governed by the evidence as understood and remembered and by the law as given it by the court. However, the record reveals that the jury did receive such instruction during the guilt phase. Further, this court has never held that it is mandatory that such an instruction be given during the penalty phase and does not appear to do so now. Next, the majority also concludes that under Penry v. Lynaugh, 492 U.S. 302 (1989), to ensure that jurors have reliably determined death to be the appropriate punishment for a defendant, “the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant's background and character or the circumstances of the crime.” Id. at 328. However, the defendant in Penry, unlike Hollaway, offered mitigating evidence of his mental retardation and abused childhood in support of a sentence of life imprisonment as opposed to death. Id. at 320. The Court was concerned that the jury would be unable to give effect to that mitigating evidence under the instructions given in the case. Id. at 326. However, this is not the issue in the present case because Hollaway did not present any mitigating evidence. Therefore, I conclude that Penry is inapplicable to the instant case. ........................................ Ð116 Nev. 732, 751 (2000) Hollaway v. StateÐ Ð Here, the majority is imposing an additional burden upon the jury in considering whether mitigating circumstances exist by instructing the jury to make an independent and objective analysis of all the relevant evidence. I find this type of instruction unnecessary because the Nevada legislature has already spoken on this issue. NRS 175.554 provides in pertinent part: 1. If the penalty hearing is conducted before a jury, the court shall instruct the jury at the end of the hearing, and shall include in its instructions the aggravating circumstances alleged by the prosecution . . . . The court shall also instruct the jury as to the mitigating circumstances alleged by the defense upon which evidence has been presented during the trial or at the hearing. If the legislature intended for the jury to conduct an independent review of all the evidence presented during both the guilt and penalty phases in a search for mitigating evidence, the legislature would have included such an instruction in this statute. Instead, the statute very clearly states that the court shall instruct the jury as to the mitigating circumstances alleged by the defense. In this case, there is no mitigating evidence to be considered because Hollaway chose not to present any. The majority goes beyond the intention of the legislature and places an additional and unnecessary burden upon our juries in cases in which the death penalty is sought. Finally, Hollaway has made it clear that he wanted no defense presented at trial, nor did he want mitigating evidence presented during the penalty phase. In fact, Hollaway himself was not interested in actively pursuing this appeal. This being the case, it would appear that remanding to the district court for a second penalty phase is a useless, expensive, and time-consuming undertaking. The new instruction imposed by the majority requires the jury to review the evidence presented during both the guilt and penalty phases. However, the jury impaneled on remand will presumably be a new jury that did not sit for the extensive presentation of evidence that occurred during the guilt phase. Additionally, the State will most likely introduce only the most damning and inculpatory evidence against Hollaway upon remand at the second penalty hearing. Finally, there is no indication that Hollaway has experienced a change of heart and now wishes to present mitigating evidence. Therefore, I believe that remanding this case for a new penalty hearing will be a costly exercise in futility and may give rise to additional appeals. Therefore, I would affirm Hollaway's sentence. For the foregoing reasons, I dissent.

____________

Ð116 Nev. 752, 752 (2000) Bridges v. StateÐ Ð SEBASTIAN S. BRIDGES, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32887 August 23, 2000

6 P.3d 1000

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of first degree kidnapping with the use of a deadly weapon, second degree kidnapping with the use of a deadly weapon, battery with the use of a deadly weapon, and first degree murder with the use of a deadly weapon, and from a sentence of death. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge. Defendant was convicted, after a jury trial in the district court of first degree kidnapping with the use of a deadly weapon, second degree kidnapping with the use of a deadly weapon, battery with the use of a deadly weapon, and first degree murder with the use of a deadly weapon, and was sentenced to death. Defendant appealed. The supreme court held that: (1) trial court properly limited the scope of recross-examination of kidnapping victim to show bias, (2) prosecutor's reference to defendant's failure to testify was not plain error under the circumstances, (3) evidence established kidnapping, (4) penalty-phase error in aggravating circumstance instruction was harmless, (5) error was harmless as to prosecutor's improper use of terms such as “aggravating” and “aggravation” to refer to evidence that was not relevant to the statutory aggravating circumstance, and (6) death penalty was not excessive punishment. Affirmed. Morgan D. Harris, Public Defender, and Robert L. Miller, Deputy Public Defender, Clark County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Brian S. Rutledge, Chief Deputy District Attorney, and David T. Wall, Deputy District Attorney, Clark County, for Respondent. 1. Witnesses. The trial court properly limited the scope of defendant's recross-examination of kidnapping victim to show bias, after victim had referred during State's redirect examination to having had a relationship outside of prison, by precluding defendant from asking the victim whether she had breached a duty of trust as a peace officer/nurse by having a relationship with defendant when he had been an inmate or by having a relationship with another inmate. The questioning was of marginal relevance to victim's bias or motive to fabricate, defendant was able to elicit testimony that a relationship with an inmate was against the law, and questioning regarding the other inmate exceeded the scope of permissible recross-examination. NRS 48.015 et seq., 50.115.

........................................ Ð116 Nev. 752, 753 (2000) Bridges v. StateÐ Ð 2. Witnesses. Although the district court's discretion to limit cross-examination regarding potential bias is limited, judges retain wide latitude to restrict such inquiry based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant. 3. Criminal Law. If defendant does not object at trial and preserve issues for appeal, defendant is not entitled to relief on appeal absent plain or constitutional error. 4. Criminal Law. There was no plain error or constitutional error in allowing jury to hear portion of letter defendant had written to his wife before trial, in which defendant stated that “what two people share in a marriage should be sacred, something most Americans don't know anything about,” though defendant claimed the statement prejudicially referred to nationality because defendant was from South Africa, where defendant had made the tactical decision to allow the jury to hear the entire letter and the statement was relevant to defendant's motives, such as jealousy or possessiveness, for kidnapping his wife and killing her lover. 5. Criminal Law.

The State is free during closing arguments to comment on the evidence and invite the jury to draw reasonable inferences. 6. Criminal Law. Failure to give an additional instruction on the deliberation element of first degree murder, so that the distinctions between premeditation, deliberation, and malice aforethought would not be blurred, was not plain error or constitutional error, where the evidence of premeditation and deliberation was overwhelming and the conviction was also supported, on an independent basis, by overwhelming evidence of first degree murder under a felony murder theory. 7. Criminal Law. Prosecutor's comment during his objection to pro se defendant's closing argument, that the defendant was presenting his “testimony” and that “[i]f he would like to be sworn, he had the opportunity to do that,” was not plain error as to defendant's right against self-incrimination, where the prosecutor did not ask the jury to draw any impermissible inference or otherwise negatively comment on the defendant's failure to testify, and the trial court had already allowed defendant to explain why he did not testify. U.S. Const. amend. 5. 8. Criminal Law. A direct comment by the prosecution on defendant's failure to testify violates the constitutional right against self-incrimination. U.S. Const. amend. 5. 9. Criminal Law. An indirect reference to the defendant's failure to testify violates the constitutional right against self-incrimination if 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. U.S. Const. amend. 5. 10. Criminal Law. A prosecutor's comments should be viewed in context, and a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone.

........................................ Ð116 Nev. 752, 754 (2000) Bridges v. StateÐ Ð 11. Criminal Law. Where the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel, there is no violation of the constitutional right against self-incrimination. U.S. Const. amend. 5. 12. Kidnapping. Testimony from defendant's wife that defendant used a ruse to lure her lover to a remote location for the purpose of killing him and that defendant actually killed the lover in the course of the kidnapping, and the physical evidence found in defendant's vehicle, established first degree kidnapping with the use of a deadly weapon. 13. Sentencing and Punishment. Kidnapping, as aggravating circumstance at penalty phase of capital murder trial, was established by testimony from defendant's wife that defendant used a ruse to lure her lover to a remote location for the purpose of killing him and that defendant actually killed the lover in the course of the kidnapping, and by the physical evidence found in defendant's vehicle. 14. Criminal Law. When the supreme court reviews the evidence supporting a jury's verdict, the question is whether the jury, acting reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt by the evidence it had a right to consider. 15. Kidnapping. A kidnapping does not require force or restraint. NRS 200.310. 16. Criminal Law. Error was harmless at penalty phase of capital murder trial in giving aggravating circumstance instruction that referred to the murder being committed during a kidnapping with use of a deadly weapon, without specifying that the kidnapping had to be the first degree kidnapping of the murder victim rather than the second degree kidnapping of the victim's lover, where the jury previously had found defendant guilty of the first degree kidnapping and there was no mitigating circumstance to weigh against the aggravating circumstance. NRS 200.033(4). 17. Sentencing and Punishment. The federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing the aggravating and mitigating evidence or by harmless-error review. 18. Criminal Law. Error was harmless as to prosecutor's improper use, during rebuttal closing argument in penalty phase of capital murder trial, of terms such as “aggravating” and “aggravation” to refer to evidence that was not relevant to the statutory aggravating circumstance of murder committed in the course of kidnapping with use of a deadly weapon, where the jury instructions, the prosecutor's closing argument, and the special verdict form reflected only one aggravating circumstance and the weighing process could not have been tainted because there was little to weigh on the side of mitigation. 19. Criminal Law. Because the term “aggravating circumstance” is a term of art, misleading references to “aggravation” or “aggravating” could taint the jury's weighing of the legitimate aggravating and mitigating circumstances at the penalty phase of a capital murder trial, resulting in the arbitrary imposition of the death penalty.

........................................

Ð116 Nev. 752, 755 (2000) Bridges v. StateÐ Ð 20. Criminal Law. Where the defendant represented himself, he could not complain that his own representation constituted ineffective assistance of counsel. U.S. Const. amend. 6. 21. Criminal Law. Defendant's waiver of his right to counsel at his capital murder trial was valid, knowing, voluntary, and intelligent, even if defendant had narcissistic personality disorder, where three experts determined that defendant was competent to proceed and capable of representing himself, and the trial court carefully canvassed defendant and admonished him concerning the dangers of self-representation. U.S. Const. amend. 6. 22. Sentencing and Punishment. A criminal defendant is entitled to represent himself in whatever manner he wishes, whether that be by introducing mitigating evidence at the penalty phase of a capital murder trial, by not introducing mitigating evidence, or even by actively seeking the death penalty. 23. Homicide. Death penalty was not excessive punishment, where defendant behaved in a calculated fashion in tracking down his wife and her lover several months after she left him and in killing the lover, the killing was not immediately preceded by a dispute or altercation, defendant treated the dying lover with extreme callousness, defendant placed the blame on other individuals, including his wife, and he had a prior criminal history, although it apparently did not involve violent offenses.

Before the Court En Banc. OPINION Per Curiam: The State charged appellant Sebastian Stephanus Bridges with the October 26, 1997, murder of Hunter Blatchford, and with related offenses. The State sought the death penalty for the murder. Bridges represented himself at trial pursuant to his own request, after the district court found him competent to proceed and capable of representing himself. Bridges was subsequently convicted of: (1) first degree kidnapping (of Blatchford) with the use of a deadly weapon; (2) second degree kidnapping (of Bridges' wife, Laurie) with the use of a deadly weapon; (3) battery (of Laurie) with the use of a deadly weapon; and (4) murder with the use of a deadly weapon. After the penalty hearing, the jury sentenced Bridges to death for the murder, finding one aggravating circumstance: that the murder was committed during a kidnapping or attempted kidnapping with the use of a deadly weapon. The district court sentenced Bridges to terms of imprisonment for the other offenses. The district court entered the judgment of conviction on July 24, 1998. This appeal followed. We affirm Bridges' conviction and sentence of death. ........................................ Ð116 Nev. 752, 756 (2000) Bridges v. StateÐ Ð FACTUAL SUMMARY Guilt phase evidence Laurie Bridges (“Laurie”), Bridges' wife, testified to events leading up to the murder of Hunter Blatchford. Laurie and Bridges were living together in California prior to May of 1997, when Laurie decided to leave Bridges and go to Las Vegas. She did not tell Bridges that she was leaving or where she was going. While in Las Vegas, Laurie became involved in a serious relationship with Hunter Blatchford. 1 Laurie avoided contact with Bridges out of fear; Bridges had threatened that if he ever found out that she was with another man, he would kill both Laurie and the other man. Bridges eventually tracked Laurie down. On October 21, 1997, he confronted her at the residence she shared with Blatchford. Bridges had a gun, and he told Laurie that he had tried to kill himself but could not do it. During an emotional discussion, Bridges gave the gun to Laurie and suggested that she kill him; Laurie

refused. Ultimately, Bridges asked Laurie to drive him to the apartment where he was staying, and she agreed. At his apartment, Bridges pleaded with Laurie to give him another chance. Bridges then asked if they could at least be friends, and he gave Laurie his phone number. Subsequently, Bridges asked Laurie to drive him back to his car, which he had left near her residence. In Laurie's truck, Bridges handed her a key that fit the ignition. Bridges said, “[J]ust remember wherever you go, whatever you do for the rest of your life I'll know where you are and what you're doing, and you can never get away from me.” Bridges told Laurie that he had been secretly watching her and Blatchford for the last three weeks and that he knew their schedules. Later that day, Laurie told Blatchford of her encounter with Bridges. Using the phone number that Bridges had given to Laurie, Blatchford called Bridges and spoke with him on at least two occasions. Blatchford and Bridges agreed to meet, together with Laurie, at Bridges' apartment. According to Laurie, the purpose of the meeting was “to bring closure to the whole thing . . . so that everybody would know where they stood and what was what and end it.” At approximately 5:00 p.m. on October 26, the trio met at Bridges' apartment. They discussed why Laurie had left, and they discussed an offer by Bridges to buy Blatchford a new truck if Blatchford would allow Laurie to return and live with Bridges for two months. Blatchford refused. Additionally, Bridges offered /DXULH

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Laurie and Blatchford originally met as co-workers in 1996, while Laurie and Bridges were living in Las Vegas. ........................................ Ð116 Nev. 752, 757 (2000) Bridges v. StateÐ Ð Laurie $50,000 in cash that he claimed was her share of a business that he had liquidated. Bridges ultimately informed the couple that he was leaving the next day, but that he had some of Laurie's belongings and other household items in storage. Laurie and Blatchford agreed to go with Bridges, in his car, to the supposed storage site. At that time, Laurie observed that Bridges was upset but that he did not seem threatening, and it appeared that he was going to accept the situation. Bridges drove to a remote location where several trailers were sitting. It was getting dark by this time. The trio got out of the car, and Bridges directed Blatchford and Laurie to one of the trailers that Bridges claimed had his name on it. Bridges indicated that he would give them the key to the trailer, which he had left at his car, so all three returned to the car. After Blatchford and Laurie got into the car, Bridges reached down near the driver's seat and pulled out a gun. The child safety locks in the car were engaged, so Laurie and Blatchford could not get out of the car. Bridges “turned very angry in his face and he said, now we're really gonna talk, now we're really gonna talk,” and he pointed the gun at Blatchford. Blatchford responded, “[Y]ou're gonna kill me now, aren't you? I trusted you. I trusted you, man, we were gonna talk.” Then, Bridges fired one shot at Blatchford, hitting him in the abdominal region. Bridges told Laurie that it was her fault that a man had to die because of what she had done. Blatchford groaned and fell unconscious shortly after the shooting. Bridges began beating Blatchford over the head with the gun. Laurie put her hand up to stop Bridges from hitting Blatchford, and he struck her three times with the gun: once on each side of the head and once on the hand. Bridges handcuffed Blatchford and Laurie, and he placed cuffs on Laurie's legs. 2 Bridges used garbage bags to cover Blatchford's body; he told Laurie that he did not want police to see the body. Afterwards, he drove with Laurie toward California. Bridges exited the freeway at Nipton Road and stopped the car. He removed Laurie's leg-cuffs. Using a shovel taken from the trunk of his car, Bridges dug a grave for Blatchford. Before placing the body in the grave, Bridges removed the handcuffs and garbage bags from the body. Bridges also decided to remove Blatchford's clothes, apparently to expedite the decomposition process. He then covered Blatchford's body with dirt and rocks. Before they left the site, Bridges removed Laurie's handcuffs.

Bridges and Laurie left the gravesite, and Bridges drove backWRZDUG/DV9HJDV __________ 2

The State produced photographs taken after the incident that showed that Laurie sustained visible injuries to the head and that she had marks on her wrists consistent with handcuffing. ........................................ Ð116 Nev. 752, 758 (2000) Bridges v. StateÐ Ð toward Las Vegas. Bridges told Laurie that she must never tell anyone what had happened and that, if she told, she would be implicated. Laurie responded that she would not tell, and she asked Bridges to let her go. He indicated that he did not trust her and that he would take her to his apartment to stay with him. At one point, Bridges asked Laurie whether it would make her happy if he shot himself or turned himself in. During the drive, Bridges began “fiddling” with the gun. Bridges indicated that the gun was jammed, and Laurie warned him that the gun might discharge if he tried to fix it while driving. Bridges pulled his car off the road and tried to fix the gun. Then, a policeman pulled up, exited his car, and approached Bridges' car. Bridges gave the gun to Laurie, telling her to place it between her legs. Officer Kenneth M. Twiddy testified concerning the following events. At approximately 9:48 p.m., Twiddy observed Bridges' car parked at the shoulder of the road. He stopped and approached Bridges to see if he needed assistance. Bridges told Twiddy that he had stopped so that a woman passenger could go to the bathroom. At one point during the conversation, Twiddy pointed his flashlight inside the car and observed Laurie, who was shaking and appeared frightened. Twiddy also observed what appeared to be blood on the passenger seat, console, door, and driver's seat, and he observed ammunition on the floor of the car. Twiddy called for back-up, and he ordered Bridges to step out of the car and approach Twiddy's police car. After Bridges had exited the car, and while Twiddy was speaking with him, Laurie emerged from the driver's side and came toward Twiddy. Laurie yelled that Bridges had murdered her friend. Twiddy searched Bridges for weapons and found a pair of handcuffs in Bridges' back pocket. In addition, Twiddy noticed blood on Bridges' pants and shirt, and dirt on his hands, arms, and nails, and on his shoes. After back-up arrived, the investigation continued. Bridges waived his rights pursuant to Miranda 3 and spoke with police about what had happened. Bridges eventually admitted to shooting Blatchford, but he claimed that it was an accident. Bridges told police that he had wanted to take his wife and Blatchford to California so that they could see a priest. Bridges stated that, at gunpoint, he ordered Blatchford to place handcuffs on his wrists. According to Bridges, the gun accidentally discharged. Bridges admitted that he had buried the body in the desert. A search of the passenger compartment of Bridges' car resulted in the discovery of several items, including: (1) a Colt .45 pistol and a holster; (2) .45 magazines and cartridges; (3) a pin used for

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Miranda v. Arizona, 384 U.S. 436 (1966). ........................................

Ð116 Nev. 752, 759 (2000) Bridges v. StateÐ Ð assembling/disassembling the gun; (4) a bag containing two rolls of duct tape and a box of 42-gallon plastic trash bags (as well some of the ammunition noted above); (5) a bank bag containing $50,000 in cash; (6) two sets of handcuffs and a set of leg-cuffs; and (7) a plastic bag containing latex gloves, white nylon ropes, black nylon cords, a black shirt, a black stocking cap, a pair of black gloves, and a box of envelopes. A search of the trunk yielded several additional items, including: (1) a stun gun; (2) a shovel; and (3) a black plastic bag

containing bloodstained clothing and a wallet belonging to Blatchford. Police obtained a positive match for Bridges' fingerprints on the pistol, one of the magazines, the leg-cuffs, the lid of the trunk, and the rear driver's side door. Blatchford's body was exhumed. An autopsy revealed that Blatchford had sustained a single, close-range, non-contact gunshot that went through his left forearm and abdominal area, perforating the small intestine and cutting the internal iliac artery. As a result, Blatchford suffered internal hemorrhaging, causing his death at the earliest five minutes, and probably ten to fifteen minutes, after he was shot. Bridges did not testify at trial or call any witnesses. However, he argued that the shooting was accidental. Penalty phase During the penalty phase, the State produced evidence that Bridges had been involved in property crimes in California that resulted in charges and convictions for criminal offenses, including burglary. In one incident, Bridges stole property worth possibly more than $200,000. The State also presented victim impact testimony. Bridges did not present any witnesses. In closing argument, prosecutor David T. Wall reviewed the procedure for determining the penalty. Bridges then spoke: If what [the prosecutors say] is true, there's only one equation, and I don't think I have to even tell you what that is. I know I didn't murder Hunter Blatchford. You've made a determination; it took you twenty-five minutes to determine my innocence versus my guilt. If you could make that determination in twenty-five minutes based on lies, then it shouldn't even take your twenty-five minutes to come to a conclusion. There's only one answer to the equation, and that is to execute me. Thank you. In rebuttal, prosecutor Gary L. Guymon remarked that Bridges had on several occasions invited the jury to take his life. Guymon discussed the circumstances of the crime and concluded by comPHQWLQJ WKDW WKH ODZ

SHUPLWWHGLPSRVLWLRQRIWKHGHDWKSHQDOW\DQGWKDWWKHGHDWKSHQDOW\ZDVDSSURSULDWHLQ WKLVFDVH ........................................ Ð116 Nev. 752, 760 (2000) Bridges v. StateÐ Ð menting that the law permitted imposition of the death penalty and that the death penalty was appropriate in this case. DISCUSSION Bridges is represented by counsel in this appeal. Bridges, through counsel, makes several arguments challenging his conviction and sentence. Bridges' recross-examination of Laurie [Headnote 1] Bridges claims that the district court erroneously restricted his recross-examination of Laurie. The relevant facts surrounding the redirect and recross-examination are important to considering Bridges' claim. On redirect, the State questioned Laurie about a letter that she had written to Bridges. According to the trial transcript, Laurie indicated that she wrote the letter before she “ever had a relationship outside of the person with whom—.” It appears from Bridges' statements and from the subsequent discussion of Laurie's testimony outside the presence of the jury that Laurie said “prison” rather than “person.” 4 The court indicated that any reference to Bridges' incarceration was unclear, but that the court would be willing to give a cautionary instruction or permit Bridges to conduct further inquiry of Laurie. Ultimately, Bridges decided not to ask Laurie

any further questions. However, Bridges subsequently changed his mind after the next witness began to testify. The court permitted Bridges to conduct a limited recross-examination “on the very limited area of the redirect” to explore what Laurie said about meeting Bridges “outside” of prison. During the recross-examination, Bridges elicited testimony that established that: (1) Laurie met him while he was a prison inmate and while Laurie was a peace officer/nurse at the prison; (2) Laurie became involved in a physical relationship with Bridges; and (3) it was against the law to have such a relationship. On appeal, Bridges claims that the district court erroneously precluded questioning as to: (1) whether Laurie breached a duty of trust when she became involved in a physical relationship with Bridges while she was working at the prison; and (2) whether Laurie also breached a duty of trust by having a relationship with another inmate. We conclude that the district court did not err in restricting questioning on these two points. Although the court did not perPLW%ULGJHVWRDVN/DXULHVSHFLILFDOO\ZKHWKHUVKHEUHDFKHGDGXW\RIWUXVW __________ 4

The State conceded, at oral argument, that the transcript likely contains an error in that Laurie did refer to “prison” during questioning. ........................................ Ð116 Nev. 752, 761 (2000) Bridges v. StateÐ Ð mit Bridges to ask Laurie specifically whether she breached a duty of trust, the court subsequently (as noted above) permitted him to elicit Laurie's admission that it was against the law for her to have a relationship with an inmate. Inquiry as to whether Laurie had also acted improperly with another inmate would have clearly exceeded the permissible scope of the recross-examination. Given the marginal relevance of the inquiry, the court did not err in precluding further inquiry into this area. See NRS 50.115; see also NRS 48.015-.035. [Headnote 2] We reject Bridges' argument that the district court was required to permit further questioning to show bias or emotional partiality of Laurie. The proposed questioning was of marginal relevance to the issue of Laurie's veracity and would have provided little evidence of bias or a motive to fabricate. Further, although the district court's discretion to limit cross-examination regarding potential bias is limited, 5 consistent with constitutional norms trial judges “retain wide latitude” to restrict such inquiry “based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see also Davis v. Alaska, 415 U.S. 308, 316, 320 (1974); Bushnell v. State, 95 Nev. 570, 573, 599 P.2d 1038, 1040 (1979) (recognizing that inquiry into a witness's possible bias or motive to testify could be restricted when the inquiry was “repetitive, irrelevant, vague, speculative, or designed merely to harass, annoy or humiliate the witness”). Alleged error at guilt phase not preserved for appeal [Headnote 3] Bridges raises three instances of alleged error that occurred during the guilt phase of his trial, but that he did not properly preserve for appeal by appropriate objection. Given that Bridges failed to timely object and preserve these issues for appeal, he is not entitled to relief absent plain or constitutional error. See Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992). [Headnote 4] First, Bridges complains that the district court erred in permitting an allegedly prejudicial reference to nationality in a letter written by him to Laurie prior to trial. Specifically, Bridges, who is from South Africa,

objects to the following reference: “whatWZRSHRSOHVKDUHLQDPDUULDJHVKRXOGEHVDFUHG __________ 5

See Jackson v. State, 104 Nev. 409, 412, 760 P.2d 131, 133 (1988); Bushnell v. State, 95 Nev. 570, 572-73, 599 P.2d 1038, 1039-40 (1979). ........................................ Ð116 Nev. 752, 762 (2000) Bridges v. StateÐ Ð two people share in a marriage should be sacred, something most Americans don't know anything about.” 6 (Emphasis added.) Bridges concedes that he failed to make a timely objection to the reference. The district court repeatedly told Bridges that he was entitled to the redaction of potentially prejudicial references in the letter. Bridges ultimately refused, indicating that he wanted the jury to see the whole letter. In closing argument, the State specifically referred to certain passages, including the one quoted above, as reflecting Bridges' attempt to manipulate Laurie. [Headnote 5] We conclude that Bridges has failed to demonstrate plain or constitutional error. Bridges made a tactical decision not to contest the letter so that it would be admitted in its entirety. Further, the letter (including the quoted reference) was relevant to Bridges' motive for the offense, as it is strong evidence of Bridges' jealousy and possessiveness. Additionally, it could reasonably be argued from the evidence that Bridges was attempting to manipulate or coerce his wife, the key State witness in this case. The State was free to comment on the evidence, including the letter, and invite the jury to draw such reasonable inferences. See Green v. State, 81 Nev. 173, 176, 400 P.2d 766, 767 (1965) (“The prosecutor had a right to comment upon the testimony and to ask the jury to draw inferences from the evidence, and has the right to state fully his views as to what the evidence shows.”). [Headnote 6] Second, Bridges argues that the jury instructions blurred the distinction between the elements of first degree murder (premeditation and deliberation) and malice aforethought. Bridges asserts that additional instruction was necessary. Specifically, Bridges challenges the constitutionality of jury instruction 19, which informed the jury of the elements of premeditation and deliberation. This instruction is virtually identical to the instruction given to the jury, and upheld on appeal, in Kazalyn v. State, 108 Nev. 67, 75-76, 825 P.2d 578, 583-84 (1992), prospectively modified in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000). In Byford, we recently reconsidered the Kazalyn instruction. While we did not conclude that use of the instruction was error, we concluded that further instruction on the issue of deliberation would be preferable in the future, and we set forth other instructions for future use. Byford, 116 Nev. at 234-37, 994 P.2d at 713- 15. We affirmed Byford's conviction, concluding that the record contained sufficient evidence of both premeditation and deliberation. Id. at 233-34, 994 P.2d at 712-13. __________ 6

Because the letter itself is partially illegible, the quotation is taken from the State's closing argument, wherein the State specifically quoted passages from the letter. ........................................ Ð116 Nev. 752, 763 (2000) Bridges v. StateÐ Ð Consistent with Byford, the jury instructions in the instant case do not constitute reversible error. Bridges was

tried prior to our decision in Byford; consequently, additional instruction as articulated in that decision was not required. Moreover, the evidence of premeditation and deliberation in this case is overwhelming. Similarly, the evidence of first degree murder under a felony murder theory is overwhelming; consequently, there is a valid independent basis to uphold the jury's verdict. The felony murder theory was also charged by the State and presented to the jury. The jury found Bridges guilty of the first degree kidnapping of Blatchford, which, as alleged in the information read to the jury, required proof that the kidnapping was for the purpose of committing murder. The jury's finding of kidnapping suggests that the jury agreed that Bridges was guilty of first degree felony murder under the facts presented here. [Headnote 7] Third, Bridges claims that the State improperly commented on Bridges' failure to testify. Again, Bridges failed to properly preserve this issue for review by making an appropriate objection. In the context of alleged prosecutorial misconduct that has not been preserved for review, only plain or “patently prejudicial” error will be considered. See Riker v. State, 111 Nev. 1316, 1328, 905 P.2d 706, 713 (1995). The allegedly improper comment occurred during Bridges' closing argument: THE DEFENDANT: . . . . A lot of people would say I was trying to avoid an altercation, and he came across with his arm, he swung out and that's when— MR. WALL: Judge, I'm going to object. This is testimony. If he would like to be sworn, he had the opportunity to do that. The court sustained the prosecutor's objection to the extent that Bridges' argument was not based on the evidence. Bridges asserts that the prosecutor's remark was a direct comment on Bridges' failure to testify. Bridges further claims that reversal is required even if this court construes the remark as an indirect comment on his failure to testify. [Headnotes 8, 9] If the remark is construed as a “direct” comment on Bridges' failure to testify, it would violate Bridges' constitutional right against self-incrimination. See Harkness v. State, 107 Nev. 800, 803, 820 P.2d 759, 761 (1991). Even if the remark was an “indirect” reference, it would be impermissible if “ ‘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 GHIHQGDQW VIDLOXUHWRWHVWLI\ ........................................ Ð116 Nev. 752, 764 (2000) Bridges v. StateÐ Ð defendant's failure to testify.' ” See id. (quoting United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968)). [Headnotes 10, 11] The context of the prosecutor's comment must be taken into account in determining whether a defendant should be afforded relief. “A prosecutor's comments should be viewed in context, and ‘a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone . . . .' ” Knight v. State, 116 Nev. 140, 144-45, 993 P.2d 67, 71 (2000) (quoting United States v. Young, 470 U.S. 1, 11 (1985)). Indeed, where “the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel,” there is no constitutional violation. United States v. Robinson, 485 U.S. 25, 32 (1988). Here, the State did comment on Bridges' “opportunity” to testify, however the State did not ask the jury to draw any impermissible inference or otherwise negatively comment on Bridges' failure to testify. Rather, the State's objection was directed at what the State perceived was an improper attempt by Bridges to testify in his closing argument. Further, prior to the prosecutor's comment at issue, the court permitted Bridges to explain,

over the State's objection, why he did not testify. Since Bridges himself had already made an issue of his failure to testify, any prejudice from the State's reference was substantially diminished. Accordingly, we conclude that Bridges has failed to demonstrate prejudicial error such that relief would be warranted, notwithstanding his failure to object. Although the prosecutor should have phrased his objection without referring to Bridges' opportunity to testify, we conclude that the prosecutor's comments in this case were not “patently prejudicial.” See Riker, 111 Nev. at 1328, 905 P.2d at 713; see also Chapman v. California, 386 U.S. 18, 21-26 (1967) (applying harmless error analysis where prosecutor improperly commented on defendant's failure to testify), cited in McNelton v. State, 111 Nev. 900, 904, 900 P.2d 934, 936 (1995). Sufficiency of the evidence [Headnotes 12-14] Bridges claims that insufficient evidence supports his conviction for first degree kidnapping with the use of a deadly weapon and the jury's finding of the kidnapping aggravating circumstance. When this court reviews the evidence supporting a jury's verdict, the question is whether the jury, acting reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt by the evidence it had a right to consider. See Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). ........................................ Ð116 Nev. 752, 765 (2000) Bridges v. StateÐ Ð [Headnote 15] Here, there is ample evidence to demonstrate that Bridges committed first degree kidnapping and the kidnapping aggravating circumstance. Laurie's testimony shows that Bridges used a ruse to lure Blatchford to a remote location for the purpose of killing him and that Bridges actually killed Blatchford in the course of that kidnapping. The physical evidence, including the items found in Bridges' car, supports this conclusion. A kidnapping does not require force or restraint and may be shown, for example, where the defendant willfully “inveigles, entices, decoys, abducts, . . . or carries away a person by any means whatsoever.” NRS 200.310. Jury instruction on statutory aggravating circumstance [Headnote 16] Bridges asserts that the jury was erroneously instructed, at the penalty phase, on the statutory aggravating circumstance. Jury instruction No. 11 indicated that Bridges was charged with a single aggravating circumstance: “The murder was committed while the person was engaged in the commission of or an attempt to commit Kidnapping with Use of a Deadly Weapon.” Bridges notes that the instruction omitted the requirement of first degree kidnapping, pursuant to NRS 200.033(4). 7 The special verdict form was consistent with the erroneous instruction. According to Bridges, the error was prejudicial because the jury could have believed that evidence of both the second degree kidnapping of Laurie and the first degree kidnapping of Blatchford could be considered as part of the statutory aggravating circumstance. [Headnote 17] We conclude that Bridges is not entitled to relief notwithstanding the erroneous instruction. “[T]he Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review . . . .” Clemons v. Mississippi, 494 U.S. 738, 741 (1990); see also Pertgen v. State, 110 Nev. 554, 563, 875 P.2d 361, 366 (1994). __________ 7

NRS 200.033(4) provides, in pertinent part, that it is an aggravating circumstance where:

The murder was committed while the person was engaged, alone or with others, in the commission of or an attempt to commit or flight after committing or attempting to commit, any . . . kidnaping in the first degree, and the person charged: (a) Killed or attempted to kill the person murdered; or (b) Knew or had reason to know that life would be taken or lethal force used. ........................................ Ð116 Nev. 752, 766 (2000) Bridges v. StateÐ Ð First, we emphasize that there is no doubt concerning the propriety of the jury's finding of the aggravating circumstance, notwithstanding the erroneous instruction. Here, the jury had previously found Bridges guilty of the first degree kidnapping of Blatchford. Given the jury's prior determination of first degree kidnapping and the fact that Blatchford was killed in the course of that kidnapping, there is no doubt that the kidnapping aggravating circumstance applied. Thus, the only question is whether the error in the instruction resulted in an erroneous weighing of the aggravating versus mitigating circumstances. Bridges claims that the erroneous instruction might have caused the jury to place greater weight on the aggravating circumstance than it might have otherwise done because the jury could have improperly considered the second degree kidnapping of Laurie as part of the aggravating circumstance. We reject Bridges' argument and conclude that the jury's weighing of the aggravating and mitigating circumstances could not have been tainted, under the unique circumstances of this case. As the State persuasively argued before the jury and on appeal, there is no compelling evidence in mitigation in this case. Thus, we are not persuaded that any error tainted the balancing process. To foreclose possible future litigation, however, we have elected to explicitly reweigh the aggravating and mitigating circumstances based upon our independent review of the trial record, and to detail our determination. Here, we must reweigh any mitigating circumstances versus the valid aggravating circumstance insofar as it is limited to first degree kidnapping. See Pertgen, 110 Nev. at 563, 875 P.2d at 366 (“Reweighing involves disregarding the invalid aggravating circumstances and reweighing the remaining permissible aggravating and mitigating circumstances.”). None of the specific statutory mitigating circumstances apply. See NRS 200.035. Bridges had a significant prior criminal history, and he was thirty-four years old at the time of the offense. See NRS 200.035(1), (6). Bridges acted alone, and there was no compelling evidence presented at trial that he acted under duress or “extreme mental or emotional disturbance.” See NRS 200.035(2)-(5). Nor do we perceive any “other” non-statutory mitigating circumstance. See NRS 200.035(7). Accordingly, we conclude that there is no mitigating circumstance or circumstances sufficient to outweigh the single valid aggravating circumstance. State's rebuttal closing argument during penalty phase [Headnote 18] Bridges claims that, in the rebuttal closing argument during the penalty phase, prosecutor Guymon improperly and repeatedly XVHG WHUPV VXFK DV ³DJJUDYDWLQJ´ DQG ³DJJUDYDWLRQ´ WR UHIHU WR

HYLGHQFHWKDWZDVQRWUHOHYDQWWRWKHVWDWXWRU\DJJUDYDWLQJFLUFXPVWDQFH ........................................ Ð116 Nev. 752, 767 (2000) Bridges v. StateÐ Ð used terms such as “aggravating” and “aggravation” to refer to evidence that was not relevant to the statutory aggravating circumstance. According to Bridges, Guymon's repeated references suggest that these references were not inadvertent. 8 Bridges argues that the references were misleading, given Guymon's comparison of this evidence to the lack of mitigating evidence, his reference to the kidnapping aggravating circumstance, and asserted ambiguity in the jury instructions.

[Headnote 19] Although Bridges did not object to Guymon's references, it is essential that we carefully review his claim, given the serious impropriety alleged. NRS 177.055(2)(c) mandates that we consider whether the death penalty has been imposed “under the influence of passion, prejudice or any arbitrary factor.” Because the term “aggravating circumstance” is a term of art, misleading references to “aggravation” or “aggravating” could taint the jury's weighing of the legitimate aggravating and mitigating circumstances, resulting in the arbitrary imposition of the death penalty. Further, this court has indicated greater flexibility in considering issues of prosecutorial misconduct that were not preserved for appeal where a defendant's life is at stake. Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991). Although we strongly criticize prosecutor Guymon's characterization of the evidence in terms of aggravation and aggravating, 9 we have carefully considered the issue and determine that the error was harmless under the unique facts and circumstances of this case. Three factors support our conclusion. First, the jury instructions reflected that only one aggravating circumstance was actually alleged, and the special verdict form itself only included one aggravating circumstance. 10 Second, in the State's originalFORVLQJUHPDUNV __________ 8

For example, Guymon commented, “Is there aggravation when the script writer to this somehow says, I'm going to take it upon myself now to bury this body and left the body interred in the ground, somehow denying the family of a decent burial . . . ?” Guymon further commented near the conclusion of the rebuttal, “The law permits you to send a message with this case that we, the jury, find that there is great aggravation in you, Mr. Bridges's conduct, for your repeated criminal conduct, for your repeated placing the blame on someone else, for you . . . failing to take responsibility for your conduct; and for the very fact that there is an aggravator of first degree kidnapping with use of a deadly weapon . . . .” 9

We caution prosecutors to avoid references that might mislead the jury concerning the essential process for determining the appropriate penalty in a death penalty case. Although we elect not to sanction prosecutor Guymon in this case, we will not hesitate to impose sanctions in future cases involving similar conduct. 10

Jury instruction No. 11 provided: You are instructed that the following factors are circumstances by which Murder of the First Degree may be aggravated: ........................................

Ð116 Nev. 752, 768 (2000) Bridges v. StateÐ Ð closing remarks, prosecutor Wall had carefully guided the jury through the steps for determining the appropriate penalty, including the weighing of the alleged aggravating circumstance versus any mitigating circumstances. Prosecutor Wall explained that “there's only one aggravating circumstance alleged,” that the murder occurred during a kidnapping. Third and finally, the weighing process could not have been tainted because there was little to weigh on the side of mitigation. As discussed above, the aggravating circumstance unequivocally outweighed any mitigating circumstances. Bridges' failure to present evidence of personality disorder Bridges claims that the penalty determination was tainted because the jury did not hear evidence that he had narcissistic personality disorder. Further, Bridges asserts that the disorder itself precluded him from making a rational decision not to introduce this evidence. Three experts evaluated Bridges. All three found evidence of a narcissistic personality, although they all found him to be competent. 11 Bridges argues that the personality disorder was a mitigating factor, and that it was important that the jury be presented with all mitigating evidence. Bridges attempts to analogize his failure to present the potentially mitigating evidence to the situation where trial counsel does not present mitigating evidence because he or she

is unaware of the evidence. In this regard, Bridges relies on Kirksey v. State, 112 Nev. 980, 923 P.2d 1102 (1996). In .LUNVH\ WKLV FRXUW FRPPHQWHG ³WKDW IDLOXUH WR DGHTXDWHO\ LQYHVWLJDWH WKH

DYDLODELOLW\ RI PLWLJDWLQJ HYLGHQFH RU WR DGYLVH WKH GHIHQGDQW UHJDUGLQJ LWV VLJQLILFDQFH PLJKWXQGHUPLQHWKHGHIHQGDQW VGHFLVLRQQRWWRSUHVHQWPLWLJDWLQJHYLGHQFHDQGWKHUHE\ VXSSRUWDFODLPRILQHIIHFWLYHDVVLVWDQFH´ __________ 1. The murder was committed while the person was engaged in the commission of or an attempt to commit Kidnapping With Use of a Deadly Weapon. Nevertheless, Bridges claims the instructions were ambiguous because they included references to “aggravating circumstances.” For example, the instructions further indicated that the jury had to find “at least one of the aggravating circumstances alleged” in order to consider the death penalty, and that the jury had to balance any mitigating circumstances against “one or more aggravating circumstances.” Bridges asserts that the jury should have been specifically instructed that kidnapping was the only aggravating circumstance to consider. We encourage the district courts and the parties to carefully tailor the jury instructions to the case at issue. However, we conclude that the jury could not have been misled by the instructions in the instant case. 11

Psychologist Lewis M. Etcoff indicated that Bridges felt superior to the human race and that Bridges believed that there was very little wrong with him. Etcoff explained that Bridges knew the difference between right and wrong but that he could not “easily conform to right and wrong because a narcissist places himself above the right and wrongs of society.” Psychiatrist Jack A. Jurasky stated that persons with the personality disorder might act impulsively or rashly, although they know the difference between right and wrong. Jurasky explained that Bridges was caught up in very powerful emotions. Finally, psychologist Marv A. Glovinsky stated that Bridges' thinking pattern was “self-centered,” “grandiose,” and characterized by a sense of entitlement. ........................................ Ð116 Nev. 752, 769 (2000) Bridges v. StateÐ Ð Kirksey, this court commented “that failure to adequately investigate the availability of mitigating evidence or to advise the defendant regarding its significance might undermine the defendant's decision not to present mitigating evidence and thereby support a claim of ineffective assistance.” Id. at 996, 923 P.2d at 1112. [Headnotes 20, 21] Bridges' attempt to analogize the instant matter to a case involving counsel is unpersuasive. Because Bridges represented himself, he cannot complain that his own representation constituted ineffective counsel. See Faretta v. California, 422 U.S. 806, 835 n.46 (1975). Nor has Bridges presented any persuasive argument that he should not have been permitted to represent himself. As noted above, three experts determined that Bridges was competent. Moreover, the trial court carefully canvassed Bridges pursuant to Faretta and admonished him concerning the dangers of self-representation. Accordingly, we are not persuaded that Bridges' decision to represent himself and to waive his right to counsel was anything but a constitutionally valid, knowing, voluntary, and intelligent decision. See id. at 835-36. [Headnote 22] Further, the State persuasively argues that to find error here would undermine Faretta because it would suggest that a defendant with narcissistic personality disorder who is otherwise competent and capable of representing himself or herself could not do so in all circumstances. At oral argument, Bridges' counsel conceded that they were unable to cite to any case law recognizing an exception to Faretta under the circumstances presented here. We decline Bridges' invitation to carve out an exception to Faretta. We reaffirm our own prior decision that “a criminal defendant is entitled to represent himself in whatever manner he wishes, whether that be

by introducing mitigating evidence, by not introducing mitigating evidence or even by actively seeking the death penalty.” Colwell v. State, 112 Nev. 807, 811, 919 P.2d 403, 406 (1996). Whether the death penalty is excessive [Headnote 23] Finally, Bridges argues that the death penalty is excessive given the crime and the defendant. We disagree. Bridges' wife, Laurie, left him several months before he tracked her down, confronted her, and eventually killed her lover. The evidence reflects that Bridges behaved in a calculated fashion, both in his extensive preparation for the killing and in the commission of the killing itself. The killing was not immediately preceded by a dispute or altercation. After shooting Blatchford, Bridges treated the dying man with extreme callousness. Indeed, he beat both BlatchfordDQG/DXULHZLWKKLVJXQDIWHUWKHVKRRWLQJ ........................................ Ð116 Nev. 752, 770 (2000) Bridges v. StateÐ Ð and Laurie with his gun after the shooting. He had a prior criminal history, although it apparently did not involve violent offenses. He placed blame on other individuals, including Laurie. Mandatory review NRS 177.055(2) requires this court to review every death sentence and consider in addition to any issues raised on appeal: (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 (d) Whether the sentence of death is excessive, considering both the crime and the defendant. We have fully discussed issues pertinent to NRS 177.055(2)(b) and (d) in the context of Bridges' claims. The only remaining issue is whether the death sentence was “imposed under the influence of passion, prejudice or any arbitrary factor.” See NRS 177.055(2)(c). Having reviewed the record, we conclude that it was not. In so ruling, we emphasize that prosecutor Wall carefully explained to the jury the requisite steps of the sentencing determination. Wall did not rely on Bridges' failure to present mitigating evidence at the penalty phase but instead discussed each of the possible statutory mitigating circumstances and explained the reason for the State's assertion that the circumstance was not present. Although prosecutor Guymon's comments concerning “aggravation” and “aggravating” were inappropriate, we reiterate our conclusion that they did not taint the penalty determination under the unique facts and circumstances of this case. CONCLUSION We affirm Bridges' conviction and sentence of death.

____________

Ð116 Nev. 770, 770 (2000) Garner v. StateÐ Ð Ð TYRONE LAFAYETTE GARNER, Appellant, v. THE STATE OF NEVADA, Respondent. No. 34569 August 23, 2000

6 P.3d 1013

This is an appeal from a judgment of conviction, pursuant to a jury trial, of one count each of conspiracy to commit robbery, burglary while in possession of a firearm, robbery with use of a deadly weapon, first-degree kidnapping with use of a deadly weapon, and first-degree murder with use of a deadly weapon. ........................................ Ð116 Nev. 770, 771 (2000) Garner v. StateÐ Ð Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge. Defendant was convicted in the district court of conspiracy to commit robbery, burglary while in possession of a firearm, robbery with use of a deadly weapon, first-degree kidnapping with use of a deadly weapon, and first-degree murder with use of a deadly weapon. Defendant appealed. The supreme court held that: (1) evidence was sufficient to support convictions for conspiracy to commit robbery, aiding and abetting burglary, and aiding and abetting robbery; (2) defendant was liable under felony-murder rule for murder his accomplice perpetrated in course of robbery; (3) defendant's status as a co-conspirator and accomplice to robbery established his liability for kidnapping; (4) even if evidence of and reference to defendant's attempts to negotiate some kind of arrangement for clemency with police were erroneous, such error was harmless; (5) trial court's error in giving improper instruction on involuntary intoxication was harmless; (6) trial court correctly instructed jury on conspiracy; and (7) giving of Kazalyn instruction, which did not fully define “willful, deliberate, and premeditated” did not constitute plain or constitutional error. Affirmed. JoNell Thomas, Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. In reviewing the evidence supporting a jury's verdict, supreme court must determine whether the jury, acting reasonably, could have been convinced beyond a reasonable doubt of the defendant's guilt by the competent evidence. 2. Criminal Law. Where conflicting testimony is presented, the jury determines what weight and credibility to give it. 3. Criminal Law. In reviewing the evidence supporting a jury's verdict, the relevant inquiry for supreme 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. 4. Conspiracy. “Conspiracy” is an agreement between two or more persons for an unlawful purpose. NRS 199.490. 5. Conspiracy. Conspiracy is seldom demonstrated by direct proof and is usually established by inference from the parties' conduct. NRS 199.490.

........................................ Ð116 Nev. 770, 772 (2000) Garner v. StateÐ Ð 6. Conspiracy. Evidence of a coordinated series of acts furthering the underlying offense is sufficient to infer the existence of an agreement and support a conspiracy conviction; however, absent an agreement to cooperate in achieving the purpose of a conspiracy, mere knowledge of, acquiescence in, or approval of that purpose does not make one a party to conspiracy. NRS 199.490. 7. Conspiracy. Evidence of defendant's actions after robbery was relevant to question of whether defendant was guilty of conspiracy to commit robbery. 8. Criminal Law. Conduct occurring after a crime may be relevant to proving the commission of the crime. 9. Criminal Law.

Evidence of flight is circumstantial evidence which can be considered with other evidence in determining guilt. 10. Burglary; Conspiracy; Robbery. Evidence was sufficient to support convictions for conspiracy to commit robbery, aiding and abetting burglary, and aiding and abetting robbery. Defendant admitted to police that he knew his accomplice had a gun when accomplice entered bar, defendant parked car outside bar that allowed him to act as lookout and drive away quickly, defendant had no money or drugs before crimes and had a large amount of both soon afterwards, defendant attempted to evade police, and just a few hours after crimes, defendant had possession of and authority over gun accomplice had in his possession when he entered bar. 11. Homicide. Defendant, by conspiring with accomplice to commit robbery, was liable under felony-murder rule for murder his accomplice perpetrated in the course of the robbery. 12. Kidnapping. Defendant's status as a co-conspirator and accomplice to robbery established his liability for kidnapping. Evidence established that defendant entered into a plan or scheme with accomplice to commit robbery and aided accomplice in committing robbery, and thus resulting kidnapping was not attenuated from defendant's criminal intent and actions in aid of the robbery, rather, it was in the ordinary course of things a natural or probable consequence of the planned robbery. 13. Criminal Law. Rule that a person who enters into a common plan or scheme but does not intend a particular crime committed by the principal can be liable for the crime if, in the ordinary course of things, the crime was the natural or probable consequence of such common plan or scheme does not constitute a per se basis for holding an accomplice to one crime liable for a related crime by the principal simply because the related crime was foreseeable. 14. Criminal Law. Where the relationship between the defendant's acts and the charged crime is too attenuated, the State must provide some showing of specific intent to aid in, or specific knowledge of, the crime charged. 15. Criminal Law. To determine if a discussion should be characterized as a plea negotiation, supreme court considers whether the accused had a subjective expectation of negotiating a plea at the time of discussion and whether that expectation was reasonable.

........................................ Ð116 Nev. 770, 773 (2000) Garner v. StateÐ Ð 16. Criminal Law. Even if State's presentation of evidence of and State's reference to defendant's attempts to negotiate some kind of arrangement for clemency with police at start of each of his two police interviews were erroneous, such error was harmless, in prosecution for conspiracy to commit robbery, murder, and other offenses. Defendant made no substantive admissions during his entreaties and thus evidence of these attempts to negotiate was of little significance, defendant's crucial admissions came only later after any alleged negotiations had ended, and defendant testified as to his version of events. NRS 48.125(1). 17. Criminal Law. When an appellant fails to raise an issue below and the asserted error is neither plain nor constitutional in magnitude, supreme court need not consider it on appeal. 18. Criminal Law. To be plain, an error must be so unmistakable that it is apparent from a casual inspection of the record. 19. Criminal Law. Trial court's instruction on involuntary intoxication, which improperly implied that defense had burden to disprove specific intent element of State's case, impermissibly shifted burden of proof of specific intent to defendant, in prosecution for conspiracy to commit robbery, first-degree murder with a deadly weapon, and other offenses. NRS 193.220. 20. Criminal Law. Trial court's error in giving improper instruction on involuntary intoxication was harmless, in prosecution for conspiracy to commit robbery, first-degree murder with a deadly weapon and other offenses. Instruction had no practical impact on jury's deliberations, as defendant never presented a defense of lack of specific intent due to involuntary intoxication, and defendant was not entitled to involuntary intoxication instruction, as he did not present evidence on effect that his consumption of drugs had on his mental state. NRS 193.220. 21. Criminal Law. Supreme court would review defendant's claim that instruction on conspiracy was erroneous for plain or constitutional error, in prosecution for conspiracy to commit robbery and other offenses, where defendant failed to object to instruction at trial, and defense counsel told trial court that instruction as a whole correctly instructed jury on conspiracy. 22. Conspiracy. Trial court correctly instructed jury on conspiracy, in prosecution for conspiracy to commit robbery and other offenses, where instructions stated in part that no express or formal agreement was required, and that conspiracy was an agreement between two or more persons to commit any criminal or unlawful act. NRS 199.490. 23. Criminal Law. Giving of Kazalyn instruction, which did not fully define “willful, deliberate, and premeditated,” did not constitute plain or constitutional error, in prosecution for first-degree murder with a deadly weapon and other offenses. 24. Criminal Law. Defendant failed to preserve for appeal absent showing of plain or constitutional error issue of whether use of Kazalyn instruction

at trial, which did not fully define “willful, deliberate, and premeditated,” required reversal of his conviction for first-degree murder with use of a deadly weapon, where defendant failed to object to instruction at trial.

........................................ Ð116 Nev. 770, 774 (2000) Garner v. StateÐ Ð 25. Criminal Law. A conviction becomes final when the judgment of conviction has been entered, the availability of appeal has been exhausted, and a petition for certiorari to the United States Supreme Court has been denied or the time for such a petition has expired.

Before the Court En Banc. OPINION 1 Per Curiam: Early in the morning on May 5, 1998, appellant Tyrone Lafayette Garner drove Charles Randolph to a bar in Las Vegas. Randolph entered the bar, shot the bartender to death, and stole cash and video equipment. After a jury trial, Garner was convicted of conspiring to commit robbery, first-degree murder with use of a deadly weapon, and three other crimes. Garner contends that: there was insufficient evidence to convict him; the State improperly commented on his attempt to negotiate a deal with police; and the jury instructions on voluntary intoxication, conspiracy, and deliberation and premeditation were erroneous. This appeal also presents the issue of how this court's recent decision, Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), should apply to convictions which are not final but were entered before Byford was decided. FACTS Just before midnight on May 4, 1998, 2 John Shivell started the graveyard shift as a security guard at Angel Park Apartment complex in Las Vegas. The guard shack was at the front of the complex, and Doc Holliday's, a bar, was immediately to the west. Shivell parked his car in the parking lot at Doc Holliday's where he could see it from the guard shack. Around 1:00 a.m. (May 5), Shivell heard a “sharp barking-type laugh” coming from two men who were approaching a car parked near his own. The men's car was facing the bar and had a view of the bar's two entrances and the entrance to the parking lot. The man approaching the passenger side of the car appeared to be stockier than the one on the driver side, and the two seemed to be conversing as they got in the car. The car then started up, pulled away without its lights on, and went behind Doc Holliday's, where the lights came on. TheFDUWXUQHGVRXWKRQ'XUDQJR'ULYHDQGWKHQHDVWRQ:HVWFOLII'ULYH __________ 1

Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in this appeal. Also, cause appearing we deny appellant's request, filed April 24, 2000, concerning publication of this opinion. 2

All dates relevant to the commission and investigation of the crimes in this case are in 1998. ........................................

Ð116 Nev. 770, 775 (2000) Garner v. StateÐ Ð car turned south on Durango Drive and then east on Westcliff Drive, passing by Shivell and the guard shack. He identified it as an older model Cadillac. He saw two occupants, but thought there might have been a third because there seemed to be “a hump” behind the driver. Shivell decided to call Doc Holliday's. He got no answer, dialed again, and again got no answer. He then called the police, who arrived about ten minutes later. Inside Doc Holliday's, Las Vegas Metropolitan Police found Shelly Lokken, the bartender, handcuffed and

lying face down in the bar's cooler with two gunshot wounds to the head. A deformed bullet and a 9-millimeter cartridge case were on the floor of the cooler. The manager at Doc Holliday's found that the bar's security videocassette recorder (VCR) and multiplexer were gone. (A multiplexer allows multiple views to be monitored on a single screen.) Cash totaling $4,629.00 had been taken from the safe, cash register, and gaming drawer. JoAnn McCarty was a major witness for the State. On the evening of May 4, she and other persons, including Charles Randolph and appellant Garner, were smoking crack cocaine at a trailer in Las Vegas. Garner and Randolph did not have money or cocaine so McCarty shared some of her own cocaine with them. Garner and Randolph also got some cocaine on credit from another person, Jay, but when they asked for more, Jay refused. About ten minutes after this refusal, Garner and Randolph left the trailer in Garner's Cadillac. The two men returned to the trailer a couple of hours later. McCarty noticed that they were “hyper.” They had also returned with crack cocaine and money. McCarty estimated that Randolph had a bag holding two hundred to five hundred dollars' worth of cocaine. Garner had less, maybe two hundred dollars' worth. Garner also had a lot of small bills of money, folded and tied with a rubber band. Randolph said he had got money from his attorney and loaned some to Garner. According to McCarty, Garner “just kept pulling it and putting it in his pocket, pulling it out, putting it in, putting—you know, like he had never had money before. It was just kind of weird.” Garner also asked if anyone there wanted a VCR. McCarty and another woman then left with Garner and Randolph in Garner's Cadillac. They were getting high and being loud when Garner said to quiet down because there was “heat” in the car. He told McCarty that there was a gun at her feet. McCarty looked down and saw a white plastic bag with a gun in it. They then drove to a motel, where Garner went in and registered while the other three waited at the car. He came back, wrapped the bag holding the gun in a towel, took it upstairs to their motel room, and placed it behind the toilet tank. McCarty testified that the four then “got high, partied, had fun, just took VKRZHUV VRPH JRW QDNHG D

IHZVH[XDODFWLYLWLHV´ ........................................ Ð116 Nev. 770, 776 (2000) Garner v. StateÐ Ð showers, some got naked, a few sexual activities.” Both men “had lots of money,” which they shared with the women. Randolph even gave money to Garner. Randolph and McCarty prepared to go to the closest casino and gamble, and he gave her two or three hundred dollars. Randolph never made it out the door with McCarty, however. He looked “kind of spooked” so McCarty walked to the casino alone. She gambled for about an hour, but when she returned, no one was in the motel room. McCarty then made her way back to the trailer. Garner was there, but not Randolph, whom she did not see again. McCarty and a friend, Gail Rancher, then left with Garner in his Cadillac to go to another motel. On the way, Garner gave Rancher some money, and she bought more cocaine. They went to a Best Western, where Garner registered. They then went up to the room, used cocaine, and engaged in sexual activities. Around noon (May 5), the three were watching television in the room when there was a news report of a murder at a bar involving a Cadillac that looked like Garner's. Garner “really tuned in” and lost his interest in getting high. He immediately jumped up, got dressed, said that he was going to get his car painted, and left. He came back after about half an hour. The atmosphere had become “weird” for McCarty and Rancher. They went in the bathroom and discussed how to leave. Garner was sitting on the bed, holding the phone. McCarty thought that she overheard Garner saying something about “ ‘our car' and the news,” but she was not sure if he was speaking to anyone on the phone. McCarty and Rancher told Garner, untruthfully, that McCarty was pregnant and feeling sick, and they left the room. Because they had no money, they tried unsuccessfully to get Garner's room deposit from the motel clerk. They then started to catch a bus, but returned to the front desk and told the clerk that they thought that Garner was involved in the murder reported on the news. McCarty called Secret Witness from the front desk, while the motel owner called the police. The police soon arrived. A police officer spoke to McCarty and then went to the motel room and spoke to Garner. Garner admitted that he owned a Cadillac but said that he had loaned it to a friend, who currently had it. Based on what McCarty had told him, the officer thought that the car might be nearby so he went in search of it. He found it in a parking lot about five blocks away. A police detective arrived and interviewed Garner at the Best Western. Garner said that he had lent his car to

his friend Larry so that Larry could deliver some rock cocaine. He said that the night before he had lent the car to someone named Charles, whose last name he did not know. Garner consented to a search of his motel room, and the detective found $459.00 in small bills wrapped in a rubber band under the mattress. The detective also

IRXQGDVHWRINH\VWRD*0FDU ........................................ Ð116 Nev. 770, 777 (2000) Garner v. StateÐ Ð found a set of keys to a GM car. Garner admitted that the keys were to his car, but said he gave another set to Larry. He also said that there was no way his car was involved in the Doc Holliday's crime, and he consented to a search of his car whenever it was found. A crime scene analyst processed Garner's car. He found the entire outside of the car, metal and windows, was covered with an oily film that precluded processing the exterior for fingerprints. Inside the car he found a nearly empty spray bottle of Armor All, the apparent source of the film. In the car's trunk he found a VCR and a multiplexer. The VCR had a videotape in it, which was handed over to detectives. The trunk also held a plastic grocery bag containing a 9-millimeter handgun wrapped in a chamois cloth. Forensic lab analysis later showed that the handgun had fired the cartridge found at the murder scene. According to Detective James Vaccaro's narrative at the trial, the surveillance videotape from Doc Holliday's at the time of the murder showed the following. Lokken, the bartender, was working alone. A man, later identified as Charles Randolph, entered and sat at the bar. (Lokken knew Randolph, who worked as a cook at the establishment.) Randolph then stood up, pulled a handgun from his jacket, and leaped over the bar, confronting Lokken. The two then went back towards the cooler. Randolph later emerged from the cooler area and went to various parts of the bar, including the cash register, gaming drawers, and office. Detectives tape-recorded interviews of Garner at the jail on May 5 and May 8. 3 At the beginning of the May 5 interview, Garner asked what “guarantees” he would get for his statement and said that he needed “something to work with too.” A detective responded: I will guarantee you that if we don't have any evidence that you were, had nothing to do with this robbery and murder that we're talking about, and we don't have any evidence that you weren't in your car at the time that this robbery and murder occurred, then we don't have any evidence to charge you with. Garner asked for the guarantee in writing, but was persuaded to talk after the detectives pointed out their words were being recorded. Garner said he had been at the trailer smoking dope for a few days. The night before, he had loaned his car to Randolph so that Randolph could sell some dope for him. Randolph returned afterDFRXSOHRIKRXUVDQG

JDYH*DUQHUILIW\GROODUV __________ 3

Garner was not read his rights under Miranda v. Arizona, 384 U.S. 436 (1966), before the interview on May 5. However, after Garner testified at the trial, the State introduced evidence of the interview for impeachment purposes without objection. ........................................ Ð116 Nev. 770, 778 (2000) Garner v. StateÐ Ð a couple of hours and gave Garner fifty dollars. Garner then changed his story and said that Randolph had taken the car because Garner owed Randolph money. Garner related that he went for a ride with Randolph. Garner waited while Randolph went into an apartment and came out with a gun that looked like a 9-millimeter. Randolph then dropped Garner back off at the trailer, and Garner did not know what happened after that. Garner said he did not know how his car ended up where police found it, but then admitted he parked it there. When

asked what was in the car's trunk, Garner said he was “scared to find out.” Eventually, Garner admitted that he had driven Randolph to Doc Holliday's without knowing what Randolph was going to do. Garner knew Randolph had the gun and wanted to pick up some money at the bar, but Randolph had said he used to work at the bar. Garner himself never went in the bar. Garner said that the gun and a VCR and other stuff from the bar were in his car's trunk. He did not know about any cash from the bar. When Garner saw the TV news report earlier that day, he realized what Randolph had done. Before the May 8 interview, Garner was read his Miranda rights. Garner was concerned about what the detectives were going to give him in return for his statement. He said that he “wanted something from the district attorney's office.” “And I'm doing all of this signing, you know, and I'm trying to be of help all I can, but I'm not getting nothing in return, man.” A detective responded that “we can give you all the assurances that we can,” but only the district attorney could reduce to writing an agreement that Garner “isn't going to go to jail for what happened here.” Garner nevertheless again gave a statement. His story now remained that he drove Randolph to the bar, but did not go in with Randolph and did not know what Randolph was going to do. The detective asked, “He had the gun before you guys went up there, right?” A: Yeah. Q: To Doc Holliday's. And he stuck it in his pants or hid it on him somewhere? A: I think he stuck it in his pants. Q: Okay. So when he walked into Doc Holliday's, he had that gun with him? A: I think he did. Yeah he did. He had to have, yeah, he put it in his pants. He put it in his pants. Q: Okay. So, did that put a question in your mind about what was going on in there? ........................................ Ð116 Nev. 770, 779 (2000) Garner v. StateÐ Ð A: Now that you've mentioned it. But I didn't, I didn't . . . you know, ‘cause he told me he worked at this place so I wasn't really . . . Garner testified at trial largely consistently with his last statements to police. He drove Randolph to Doc Holliday's on the night of the murder but did not know what Randolph was going to do and did not realize what had happened until he saw the news report. However, Garner's account regarding the murder weapon changed: Randolph had had a gun earlier that night but traded it for drugs, and Garner did not realize that Randolph had a different gun when they went to the bar. In closing argument, the State called the jury's attention to Garner's desire for a deal when he spoke to detectives. The State argued that it was inconsistent for Garner to claim that he had known nothing about Randolph's plans but would provide information if he got a deal. The jury found Garner guilty of conspiracy to commit robbery (count I), burglary while in possession of a firearm (count II), robbery with use of a deadly weapon (count III), first-degree kidnapping with use of a deadly weapon (count IV), and first-degree murder with use of a deadly weapon (count V). The district court sentenced him to prison terms of: 16 to 72 months on count I; 40 to 180 months on count II, concurrent to count I; 72 to 180 months plus a consecutive term of 72 to 180 months on count III, concurrent to counts I and II; life with the possibility of parole after five years plus a consecutive term of life with the possibility of parole after five years on count IV, consecutive to counts III and V; and twenty to fifty years plus a consecutive term of twenty to fifty years on count V, consecutive to count IV. Garner was also ordered to pay $5,041.34 in restitution. DISCUSSION

Sufficiency of the evidence Garner points out that there is no evidence that he directly committed the burglary, robbery, kidnapping, or murder. He also contends that there is no evidence that he conspired with Randolph to commit the crimes or that he knew Randolph's intentions. [Headnotes 1-3] In reviewing the evidence supporting a jury's verdict, this court must determine whether the jury, acting reasonably, could have been convinced beyond a reasonable doubt of the defendant's guilt by the competent evidence. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). Where conflicting testimony is preVHQWHGWKHMXU\GHWHUPLQHVZKDWZHLJKWDQGFUHGLELOLW\WRJLYHLW%ROGHQY6WDWH

1HY3G  ........................................ Ð116 Nev. 770, 780 (2000) Garner v. StateÐ Ð sented, the jury determines what weight and credibility to give it. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981). 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)). The State charged Garner with conspiring with Randolph to commit robbery and aiding and abetting Randolph in the commission of burglary, robbery, kidnapping, and murder. There appears to be no comprehensive statutory definition of conspiracy. See NRS 199.480 (providing various penalties for conspiracy to commit various crimes or acts); NRS 199.490 (providing that it is not necessary to prove any overt act was done in pursuance of a conspiracy). [Headnotes 4-6] According to this court's case law, conspiracy is “an agreement between two or more persons for an unlawful purpose.” Thomas v. State, 114 Nev. 1127, 1143, 967 P.2d 1111, 1122 (1998), cert. denied, 120 S. Ct. 85 (1999). Conspiracy is seldom demonstrated by direct proof and is usually established by inference from the parties' conduct. Id. Evidence of a coordinated series of acts furthering the underlying offense is sufficient to infer the existence of an agreement and support a conspiracy conviction. Id. However, absent an agreement to cooperate in achieving the purpose of a conspiracy, mere knowledge of, acquiescence in, or approval of that purpose does not make one a party to conspiracy. Doyle v. State, 112 Nev. 879, 894, 921 P.2d 901, 911 (1996). We conclude that the evidence here was sufficient for the jury to reasonably infer that Garner had agreed to aid Randolph in committing the robbery. [Headnotes 7-9] As an initial issue, to prove conspiracy the State relied in part on evidence of matters that occurred after the robbery, but Garner contends that such evidence is not relevant to prove his intentions before the robbery. We reject this contention. Evidence is relevant if it has “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. Conduct occurring after a crime may be relevant to proving the commission of the crime. For example, evidence of flight is circumstantial evidence which can be considered with other evidence in determining guilt. Maresca v. State, 103 Nev. 669, 674, 748 P.2d 3, 6-7 (1987). Some of Garner's actions after the robbery are very relevant to the question of conspiracy. ........................................ Ð116 Nev. 770, 781 (2000) Garner v. StateÐ Ð

[Headnote 10] Viewed in the light most favorable to the prosecution, the record shows the following. On the night of the crimes, Garner and Randolph were together at a trailer with others smoking crack cocaine. Neither had money or drugs of their own. Soon after they were refused further cocaine on credit, they left together. Garner drove Randolph to a location where Randolph obtained a 9-millimeter handgun. Around 1:00 a.m., Garner drove Randolph to Doc Holliday's and backed his car into a parking space outside the bar. Randolph entered the bar, carrying the gun, and Garner knew that Randolph had the gun. Garner waited in the car, which faced the bar and had a view of the bar's two entrances and the entrance to the parking lot. Randolph later came out of the bar carrying a VCR, a multiplexer, and a large amount of cash. The video equipment was placed on the back seat. Garner drove away behind the bar before turning on the car's headlights. Upon returning to the trailer, Garner helped put the video equipment in the trunk. By this time, he and Randolph had acquired several hundred dollars' worth of cocaine. They also had hundreds of dollars in cash, and Garner repeatedly handled a bundle of small-denomination bills. Driving to the first motel, Garner told two women passengers that there was a gun in the car. At the motel, Garner took the gun from the car and hid it in the motel room. Garner and Randolph displayed and shared more money with the two women. At the second motel, Garner's demeanor changed dramatically when the TV news reported a murder at Doc Holliday's involving a Cadillac like his own. He immediately dressed, said that he was going to have his car painted, and left. He drove his car about five blocks and parked it. Garner completely covered the car's exterior with a film of Armor All before police found it later that afternoon. After Garner returned to the motel, he talked to someone on the phone regarding the news report and his car. When police questioned him in the case, Garner repeatedly lied to them, changing his story several times. Some of this evidence is ambiguous, i.e., consistent both with Garner's claim that he drove to the bar unaware of Randolph's criminal intentions and with the State's theory that he conspired with Randolph. However, considered as a whole the evidence is highly incriminating and more consistent with the State's theory. For example, Garner admitted to police (but not at trial) that he knew Randolph had a gun when Randolph entered the bar, and Garner parked the car in a location and manner that allowed him to act as a lookout and drive away quickly. Garner had no money or drugs before the crimes and had a large amount of both soon afterwards. If he had not agreed to assist Randolph in the crimes, there is no apparent reason why Randolph would share the criminal gains so generously with him. Garner's reactions to the newsUHSRUWDUHDOVRPRUHFRQVLVWHQW

ZLWKDFRQFHUQWRFRQFHDOKLVLQYROYHPHQWZLWKWKHFULPHVWKDQZLWKVXUSULVHDWUHDOL]LQJ WKDW5DQGROSKKDGFRPPLWWHGWKHFULPHV ........................................ Ð116 Nev. 770, 782 (2000) Garner v. StateÐ Ð report are also more consistent with a concern to conceal his involvement with the crimes than with surprise at realizing that Randolph had committed the crimes. And Garner's claim that he suspected nothing until the news report is unconvincing; his repeated evasions with police also reflect a consciousness of guilt. One piece of evidence particularly undermines Garner's claim of ignorant innocence—his control over the handgun at the first motel. His possession of and authority over the gun just a few hours after the crimes at Doc Holliday's are completely inconsistent with his claim that he had nothing to do with the crimes and did not even know that Randolph had a gun at the scene of the killing. This evidence was sufficient to prove the conspiracy charge, i.e., sufficient for the jury to infer that Garner agreed to drive Randolph to and from Doc Holliday's and act as his lookout so that Randolph could commit a robbery there. The evidence also was sufficient to prove that Garner aided and abetted Randolph's commission of the robbery and burglary. Aiding and abetting the commission of an offense is treated and punished the same as directly committing the offense. See NRS 195.020. [Headnote 11] There is no direct evidence that Garner intended or agreed that Lokken be kidnapped or murdered. Nevertheless, under the felony-murder rule, by conspiring to commit robbery Garner is liable for the murder

perpetrated in the course of the robbery. See McKinney v. Sheriff, 93 Nev. 70, 72, 560 P.2d 151, 152 (1977); State v. Beck, 42 Nev. 209, 213, 174 P. 714, 715 (1918); cf. NRS 200.030(1)(b). [Headnotes 12-14] We conclude that under the circumstances of this case Garner's status as a conspirator and accomplice establishes his liability for the kidnapping as well. This court has held that when a person enters into a common plan or scheme but does not intend a particular crime committed by the principal, the person is liable for the crime if “in the ordinary course of things [the crime] was the natural or probable consequence of such common plan or scheme.” See State v. Cushing, 61 Nev. 132, 148, 120 P.2d 208, 216 (1941). This rule does not constitute a per se basis for holding an accomplice to one crime liable for a related crime by the principal simply because the related crime was foreseeable. See United States v. Greer, 467 F.2d 1064, 1068-69 (7th Cir. 1972). To do so would be “to base criminal liability only on a showing of negligence rather than criminal intent.” Id. at 1069. Where the relationship between the defendant's acts and the charged crime is too attenuated, the State must provide “some showing of specific intent to aid in, or specific knowledge of, the crime charged.” Id. ........................................ Ð116 Nev. 770, 783 (2000) Garner v. StateÐ Ð See also Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 6.8(b), at 590-91 (2d ed. 1986). Here, the evidence established that Garner entered into a plan or scheme with Randolph to commit robbery and aided Randolph in committing the crime. We conclude that the resulting kidnapping was not attenuated from Garner's criminal intent and actions in aid of the robbery; rather, it was in the ordinary course of things a natural or probable consequence of the planned robbery. Thus, Garner properly may be held liable for it. The evidence was sufficient to support the judgment of conviction. Evidence of and comment on appellant's attempt to negotiate with police Garner claims that the State violated NRS 48.125 when it presented evidence of and commented on his attempts to negotiate the charges against him during the interviews on May 5 and May 8. Garner challenges only the admission of his remarks seeking a deal at the beginning of each interview and the State's references to those remarks. He does not challenge the numerous substantive admissions which he made later in both interviews. Thus he tacitly concedes that his attempts to gain a deal were unsuccessful and the later admissions were not part of any alleged negotiating process. [Headnote 15] NRS 48.125(1) provides: “Evidence of a plea of guilty or guilty but mentally ill, later withdrawn, or of an offer to plead guilty or guilty but mentally ill to the crime charged or any other crime is not admissible in a criminal proceeding involving the person who made the plea or offer.” To determine if a discussion should be characterized as a plea negotiation, this court considers whether the accused had a subjective expectation of negotiating a plea at the time of discussion and whether that expectation was reasonable. McKenna v. State, 101 Nev. 338, 344, 705 P.2d 614, 618 (1985). [Headnotes 16-18] Garner admits that he did not object at trial to the evidence or argument at issue. When an appellant fails to raise an issue below and the asserted error is neither plain nor constitutional in magnitude, this court need not consider it on appeal. Walch v. State, 112 Nev. 25, 34, 909 P.2d 1184, 1189 (1996). To be plain, an error must be so unmistakable that it is apparent from a casual inspection of the record. Patterson v. State, 111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995). The record clearly shows that Garner tried to make some kind of arrangement for clemency with the police at the start of eachLQWHUYLHZEXWLWLVQRWFOHDUWKDWKHDFWXDOO\H[SHFWHGWRQHJRWLDWHDSOHD

........................................ Ð116 Nev. 770, 784 (2000) Garner v. StateÐ Ð interview, but it is not clear that he actually expected to negotiate a plea. Even if he did, given the detectives' responses to his entreaties, it is not unmistakably apparent that such an expectation was reasonable. No plain error occurred in this regard. Garner nevertheless claims that under this court's case law his due process right to a fair trial was violated and the error cannot be considered harmless. This court refused to deem violations of NRS 48.125(1) harmless in two cases: Robinson v. State, 98 Nev. 202, 644 P.2d 514 (1982), and Mann v. State, 96 Nev. 62, 605 P.2d 209 (1980). In Robinson, the prosecutor intentionally elicited evidence of admissions made by the defendant during plea negotiations and then remarked on it three times during closing argument. Robinson, 98 Nev. at 203, 644 P.2d at 514. This court concluded that the improper evidence was probably foremost in the jurors' minds and it would be inconsistent with fair trial standards to hold the error harmless. Id. In Mann, the defendant chose not to testify after the district court erroneously ruled that statements made by the defendant in entering a guilty plea, later withdrawn, would be admissible for impeachment purposes. Mann, 96 Nev. at 64, 605 P.2d at 210. In addition to violating the statute, the error implicated “serious constitutional questions concerning the privilege against compulsory self-incrimination.” Id. at 66, 605 P.2d at 211. “Since the district court's ruling prevented appellant from testifying in his own behalf, the degree of prejudice arising from the error is unascertainable and the normal rules of harmless and reversible error do not apply.” Id. at 66-67, 605 P.2d at 211. Here, by contrast, Garner made no substantive admissions during his entreaties; thus, the evidence of these attempts to negotiate was of little significance. Garner's crucial admissions came only later after any alleged negotiations had ended. Also, Garner was not prevented from testifying at trial; he took the stand and told the jury his version of events. Therefore, even assuming that evidence of and reference to his attempts to negotiate were error, any resulting prejudice was negligible and harmless beyond a reasonable doubt. The instruction on voluntary intoxication and specific intent [Headnote 19] Garner asserts that the jury instruction on voluntary intoxication erroneously suggested that he had the burden to prove that he lacked specific intent to commit the charged offenses. Garner is correct regarding the error in the instruction, but the error was of no consequence since Garner was not entitled to the instruction in the first place. ........................................ Ð116 Nev. 770, 785 (2000) Garner v. StateÐ Ð The district court rejected an instruction on voluntary intoxication offered by Garner based on NRS 193.220. 4

The State objected to instructing on voluntary intoxication, but provided the following instruction, which the district court gave as Instruction No. 34. No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition. In order to negate specific intent, the evidence must show not only the defendant's consumption of intoxicants, but also the intoxicating effect of the substances imbibed and the resultant effect on the mental state pertinent to the proceedings. (Emphasis added.) Much of the second sentence of Instruction No. 34 comes from Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985), which concluded that the district court properly refused an instruction on voluntary intoxication. In order for a defendant to obtain an instruction on voluntary intoxication as negating specific intent, the evidence must show not only the defendant's consumption of intoxicants, but also the intoxicating effect

of the substances imbibed and the resultant effect on the mental state pertinent to the proceedings. Nevius, 101 Nev. at 249, 699 P.2d at 1060 (emphasis added). The language emphasized from Nevius refers to the burden of production a defendant must meet to obtain an instruction. It does not set forth a burden of proof a defendant must meet to negate specific intent, as the language emphasized in Instruction No. 34 suggests. 5 In effect, the instruction informed the jury that Garner had to prove that he was so intoxicated that he lacked any requisite specific intent. __________ 4

NRS 193.220 provides: No act committed by a person while in a state of insanity or voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the fact of his insanity or intoxication may be taken into consideration in determining the purpose, motive or intent.

5

This court has made this same distinction in regard to the defense of entrapment. [T]he ‘affirmative' nature of the [entrapment] defense merely requires the defendant to put forth evidence of governmental instigation. Thereafter it is incumbent upon the state to demonstrate the defendant's predisposition. Essentially, the defendant bears the burden of production on the first element, while the prosecution subsequently bears the burden of proof on the second element. Shrader v. State, 101 Nev. 499, 504, 706 P.2d 834, 837-38 (1985). ........................................ Ð116 Nev. 770, 786 (2000) Garner v. StateÐ Ð The State does not dispute Garner's claim that specific intent is an element of conspiracy, burglary, and willful, deliberate, and premeditated murder. Nor does it dispute that the prosecution has the burden of proving every element of a charged crime. The latter proposition is black letter law. E.g., Barone v. State, 109 Nev. 778, 780, 858 P.2d 27, 28 (1993). The State simply claims in a conclusory way that the instruction is not erroneous. Alternatively, it argues that any error was harmless. We conclude that the instruction was erroneous: it improperly implied that the defense had the burden to disprove an element of the State's case. Cf. Barone, 109 Nev. at 780, 858 P.2d at 28 (holding that requiring defendant to negate unlawfulness element of battery by proving self-defense violates due process by diluting State's burden of proving every element of charged crime); Shrader v. State, 101 Nev. 499, 505, 706 P.2d 834, 838 (1985) (reversing where instruction on entrapment failed to inform jury that State ultimately bore burden of proving that defendant had predisposition to commit crime). [Headnote 20] However, the error was harmless for two reasons. First, Garner never presented a defense of lack of specific intent due to voluntary intoxication. Although Garner testified that he had gone without sleep, had consumed drugs, and was not always thinking clearly, this evidence was offered to explain his actions and statements after the crimes were reported and after police questioned him. His defense to the crimes remained simply that he never knew what Randolph planned to do, and defense counsel in closing argument presented that same defense and never mentioned or relied on voluntary intoxication. Therefore, we conclude that an incorrect instruction on voluntary intoxication had no practical impact on the jury's deliberations. Second, Garner was not entitled to an instruction on voluntary intoxication. As noted above, to obtain such an instruction, “the evidence must show not only the defendant's consumption of intoxicants, but also the intoxicating effect of the substances imbibed and the resultant effect on the mental state pertinent to the proceedings.” Nevius, 101 Nev. at 249, 699 P.2d at 1060. Garner did not present evidence on the effect that his consumption of drugs had on his mental state.

The instruction on conspiracy Garner claims that the jury was improperly instructed regarding conspiracy. He challenges Instruction No. 8, which stated in part that to prove a conspiracy it was not necessary to show “the making of an express or formal agreement.” This claim has no merit. ........................................ Ð116 Nev. 770, 787 (2000) Garner v. StateÐ Ð [Headnotes 21, 22] First, Garner never objected to the instruction. On the contrary, defense counsel told the district court that the instructions as a whole correctly instructed the jury on conspiracy. Therefore, Garner must show that the instruction constituted plain or constitutional error. See Walch, 112 Nev. at 34, 909 P.2d at 1189. He cannot. He claims that Instruction No. 8 told the jury that no agreement was necessary to establish conspiracy. This misrepresents the instruction, which states that no “express or formal” agreement is required. Further, Garner completely ignores Instruction No. 6, which told the jury: “A conspiracy is an agreement between two or more persons to commit any criminal or unlawful act.” The instruction on deliberation and premeditation [Headnote 23] In his opening brief, Garner argues that the jury was improperly instructed on the meaning of malice, deliberation, and premeditation. Shortly after the opening brief was filed, this court entered its decision in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000). In his reply brief, Garner asserts that Byford requires reversal of his conviction. 6 [Headnote 24] Garner admits that he did not object at trial to this jury instruction. Therefore, this issue is not preserved for consideration on appeal unless use of the instruction constituted plain or constitutional error. 7 See Walch, 112 Nev. at 34, 909 P.2d at 1189. Under Byford, there was no such error. Our opinion in Byford concludes that the Kazalyn instruction does not fully define “willful, deliberate, and premeditated,” and it provides other instructions for future use—but it does not hold that giving the Kazalyn instruction constituted error, nor does it articulate any constitutional grounds for its decision. Byford, 116 Nev. at 233-37, 994 P.2d at 712-15. Instead, the opinion relies onDQGJLYHVHIIHFWWRWKHUHOHYDQWVWDWXWRU\

ODQJXDJHLQ156 D  __________ 6

Jury instruction number 32 in this case defined premeditation as a design, a determination to kill, distinctly formed in the mind at any moment before or at the 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 act 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. This is “the Kazalyn instruction” considered by this court in Byford. Byford, 116 Nev. at 233, 994 P.2d at 712. 7

As explained in note 9 below, the practical effect of failing to preserve this issue is inconsequential. ........................................

Ð116 Nev. 770, 788 (2000) Garner v. StateÐ Ð and gives effect to the relevant statutory language in NRS 200.030(1)(a). Most pertinently, Byford states that the Kazalyn instruction . . . do[es] not do full justice to the phrase “willful, deliberate, and premeditated.”. . . Because deliberation is a distinct element of mens rea for first-degree murder, we direct the district courts to cease instructing juries that a killing resulting from premeditation is “willful, deliberate, and premeditated murder.” Further, if a jury is instructed separately on the meaning of premeditation, it should also be instructed on the meaning of deliberation. Id. at 235-36, 994 P.2d at 714. The opinion then sets forth jury instructions for future use. Id. at 236-37, 994 P.2d at 714-15. Thus, contrary to Garner's characterization of Byford, the opinion does not hold that giving the Kazalyn instruction was error or violated any constitutional rights. Indeed, we affirmed the appellant's conviction in Byford notwithstanding the use of the Kazalyn instruction. To the extent that our criticism of the Kazalyn instruction in Byford means that the instruction was in effect to some degree erroneous, the error was not plain. Before Byford was decided, our case law was divided on this issue, and several opinions of this court supported use of the instruction. See id. at 233-35, 994 P.2d at 712-14. Therefore, under Byford, no plain or constitutional error occurred here. Independently of Byford, however, Garner argues that the Kazalyn instruction caused constitutional error. We are unpersuaded by his arguments and conclude that giving the Kazalyn instruction was not constitutional error. [Headnote 25] Nevertheless, Garner maintains that Byford has retroactive effect and should be applied to convictions which have not yet become final, 8 regardless of a failure to preserve the issue below. It is true that “failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.” Griffith v. Kentucky, 479 U.S. 314, 322 (1987). But, as discussed above, Byford does not invoke any constitutional mandate in directing that its new instructions be given in future cases, so there is no constitutional requirement that this direction have any retroactive effect. On the contrary, this court has generally held that new rules of law apply prospectively unless they are rules of constitutional law,ZKHQWKH\DSSO\UHWURDFWLYHO\RQO\XQGHUFHUWDLQFLUFXPVWDQFHV __________ 8

A conviction becomes final when the judgment of conviction has been entered, the availability of appeal has been exhausted, and a petition for certiorari to the United States Supreme Court has been denied or the time for such a petition has expired. See Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). ........................................ Ð116 Nev. 770, 789 (2000) Garner v. StateÐ Ð when they apply retroactively only under certain circumstances. Bridgewater v. Warden, 109 Nev. 1159, 1161, 865 P.2d 1166, 1167 (1993); Gier v. District Court, 106 Nev. 208, 212, 789 P.2d 1245, 1248 (1990). Therefore, the required use of the Byford instructions applies only prospectively. Thus, with convictions predating Byford, neither the use of the Kazalyn instruction nor the failure to give instructions equivalent to those set forth in Byford provides grounds for relief. Garner failed to object to the use of the Kazalyn instruction at his trial and therefore failed to preserve this issue for appeal absent a showing of plain or constitutional error. Use of the Kazalyn instruction in trials which predate Byford does not constitute plain or constitutional error. Nor do the new instructions required by Byford have any retroactive effect on convictions which are not yet final: the instructions are a new requirement with

prospective force only. 9 CONCLUSION We affirm Garner's judgment of conviction and sentence. __________ 9

This does not mean, however, that the reasoning in Byford is unprecedented. Although Byford expressly abandons some recent decisions of this court, it also relies on long-standing statutory language and other prior decisions of this court in doing so. Basically, Byford interprets and clarifies the meaning of a preexisting statute by resolving conflicting lines in prior case law. Therefore, its reasoning is not altogether new. Because the rationale in Byford is not new and could have been—and in many cases was—argued in district courts before Byford was decided, it is fair to say that the failure to object at trial means that the issue is not preserved on appeal. However, in practical terms, the failure to preserve a challenge to the Kazalyn instruction is inconsequential since use of the Kazalyn instruction is not grounds for reversal under Byford. As this court receives appeals from post-conviction habeas petitioners citing Byford on this issue, it appears that analogous treatment will be in order. The reasoning in Byford may be apposite to a post-conviction habeas claim, but the claim will be procedurally barred unless a petitioner can show good cause for not raising the issue before—or for raising it again—and prejudice. See NRS 34.810(3). In short, absent extraordinary circumstances, nothing in Byford provides grounds for a successive habeas petition: anything new in the decision is not retroactive, and anything not new will be procedurally barred from consideration.

____________

Ð116 Nev. 790, 790 (2000) Matter of Parental Rights as to N.J.Ð Ð In the Matter of TERMINATION OF PARENTAL RIGHTS AS TO N.J., a Minor. SAM Z. and TALIA Z., Appellants, v. HIKMET and RAJA J., and the MINOR CHILD N.J., Respondents. No. 32436 August 24, 2000

8 P.3d 126

Appeal from orders of the district court denying a petition for termination of parental rights and denying a motion for a new trial. Eighth Judicial District Court, Clark County; Cynthia Dianne Steel, Judge, and Robert E. Gaston, Judge, Family Court Division. In an adoption proceeding, the child's uncle and aunt petitioned to terminate the biological parents' parental rights. The district court denied the petition and denied a motion for new trial. Uncle and aunt appealed. The supreme court, Agosti, J., held that: (1) a best interests/parental fault standard applies to termination of parental rights, under which the district court must always consider the best interests of the child in conjunction with a finding of parental fault, overruling Matter of Parental Rights as to Carron, 114 Nev. 370, 956 P.2d 785 (1998), Matter of Parental Rights as to Daniels, 114 Nev. 81, 953 P.2d 1 (1998), Cooley v. State, Dep't Hum. Res., 113 Nev. 1191, 946 P.2d 155 (1997), Matter of Parental Rights as to Gonzales, 113 Nev. 324, 933 P.2d 198 (1997), Matter of Parental Rights as to Bow, 113 Nev. 141, 930 P.2d 1128 (1997), Matter of Parental Rights of Weinper, 112 Nev. 710, 918 P.2d 325 (1996), Scalf v. State, Dep't of Human Resources, 106 Nev. 756, 801 P.2d 1359 (1990), Smith v. Smith, 102 Nev. 263, 720 P.2d 1219 (1986), Daly v. Daly, 102 Nev. 66, 715 P.2d 56 (1986), and McGuire v. Welfare Division, 101 Nev. 179, 697 P.2d 479 (1985); (2) trial court should have

applied statutory presumption of abandonment; and (3) letters written by biological father were not excluded under the hearsay rule. Reversed and remanded with instructions. Jimmerson Hansen, Las Vegas, for Appellants. Paul M. Gaudet, Las Vegas, for Respondents Hikmet and Raja J. Kirby R. Wells & Associates and Allison L. Herr, Las Vegas, for Respondents. 1. Infants. Termination of parental rights is an exercise of awesome power and is tantamount to imposition of a civil death penalty, and, accordingly, the supreme court closely scrutinizes whether the district court properly preserved or terminated the parental rights at issue.

........................................ Ð116 Nev. 790, 791 (2000) Matter of Parental Rights as to N.J.Ð Ð 2. Constitutional Law. Due process requires that clear and convincing evidence be established before terminating parental rights. U.S. Const. amend. 14. 3. Infants. The supreme court will uphold orders terminating parental rights based on substantial evidence, and will not substitute its own judgment for that of the district court. 4. Infants. The district court always maintains subject matter jurisdiction over a properly filed petition to terminate parental rights. 5. Statutes. Words in a statute should be given their plain meaning unless this violates the spirit of the act. 6. Statutes. No part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided. 7. Statutes. Where a statute is clear on its face, a court may not go beyond the language of the statute in determining the legislature's intent. 8. Infants. In all termination of parental rights proceedings, the best interests of the child must be the primary consideration. NRS 128.105. 9. Infants. A best interests/parental fault standard applies to termination of parental rights, under which the district court must always consider the best interests of the child in conjunction with a finding of parental fault; overruling Matter of Parental Rights as to Carron, 114 Nev. 370, 956 P.2d 785 (1998), Matter of Parental Rights as to Daniels, 114 Nev. 81, 953 P.2d 1 (1998), Cooley v. State, Dep't Hum. Res., 113 Nev. 1191, 946 P.2d 155 (1997), Matter of Parental Rights as to Gonzales, 113 Nev. 324, 933 P.2d 198 (1997), Matter of Parental Rights as to Bow, 113 Nev. 141, 930 P.2d 1128 (1997), Matter of Parental Rights of Weinper, 112 Nev. 710, 918 P.2d 325 (1996), Scalf v. State, Dep't of Human Resources, 106 Nev. 756, 801 P.2d 1359 (1990), Smith v. Smith, 102 Nev. 263, 720 P.2d 1219 (1986), Daly v. Daly, 102 Nev. 66, 715 P.2d 56 (1986), and McGuire v. Welfare Division, 101 Nev. 179, 697 P.2d 479 (1985). NRS 128.105. 10. Infants. The best interests of the child and parental fault must both be shown by clear and convincing evidence before parental rights can be terminated. NRS 128.105. 11. Infants. The purpose of the parental right termination statute is not to punish parents, but to protect the welfare of children. NRS 128.005. 12. Constitutional Law. The parent-child relationship is a fundamental liberty interest. U.S. Const. amend. 14. 13. Infants. Deciding whether to terminate parental rights requires weighing the interests of the children and the interests of the parents. NRS 128.105. 14. Infants. Evidence that biological parents left the child with the child's aunt and uncle without any provision for support for over seven years, that mother saw the child only twice during that period and father did not seeWKHFKLOGDWDOO

........................................ Ð116 Nev. 790, 792 (2000) Matter of Parental Rights as to N.J.Ð Ð

the child at all, and that the parents spoke to the child on the telephone only once during that period, satisfied the statutory presumption of abandonment in proceeding to terminate parental rights, thereby shifting the burden to the biological parents to prove they did not abandon the child. NRS 47.180(1), 128.012(2). 15. Infants. The application of the statutory presumption of abandonment of a child by a parent is not discretionary. NRS 128.012(2). 16. Infants. Hearsay rule did not exclude admission, in proceeding to terminate parental rights, of four letters written in Arabic by the biological father to the child's guardians, which were accompanied by a sworn affidavit of the translator. The nature of the letters and the special circumstances under which they were written offered assurances of accuracy not likely to be enhanced by calling the father as a witness. NRS 51.075. 17. Appeal and Error; Trial. The district court has considerable discretion in determining the admissibility of evidence, and the supreme court will not disturb a district court's ruling absent an abuse of that discretion.

Before the Court En Banc. OPINION By the Court, Agosti, J.: This is an appeal from an order of the district court denying a petition for termination of parental rights and from an order denying a motion for a new trial. In determining whether to terminate parental rights, this court has consistently applied the jurisdictional/dispositional standard set forth in Champagne v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984). Based on legislative amendments to NRS 128.105, which sets forth the grounds for terminating parental rights, we now reject our Champagne standard, which requires a district court to find jurisdictional grounds to terminate parental rights before it considers the best interests of the child. In its place, we adopt a best interest/parental fault standard which requires a district court to consider whether the best interests of the child would be served by the termination and whether parental fault exists. We also conclude that the district court failed to apply the statutory presumption of abandonment as codified in NRS 128.012(2). In light of our decision today, we reverse the district court's orders and remand this matter for a new trial. FACTS In 1988, a child was born to respondents Hikmet and Raja J. in Baghdad, Iraq. In early 1990, Raja and the child traveled from Iraq to Michigan, where family resides. That summer, RajaGHSDUWHGIURPWKH

8QLWHG6WDWHVDQGOHIWWKHFKLOGEHKLQGLQ0LFKLJDQZLWKKHUVLVWHUDQGEURWKHULQODZ ........................................ Ð116 Nev. 790, 793 (2000) Matter of Parental Rights as to N.J.Ð Ð departed from the United States and left the child behind in Michigan with her sister and brother-in-law, appellants Talia and Sam Z. Since then, Talia and Sam have raised the child in Las Vegas and San Diego. Talia and Sam are the only parents the child has ever known. Until recently, the child was unaware of the true identity of her biological parents. In 1996, after caring for the child for approximately six years, Talia and Sam petitioned the Nevada district court for guardianship of the child. Talia and Sam's petition was granted. Subsequently, Raja and Hikmet filed a petition to terminate the guardianship, which was denied. Thereafter, Talia and Sam sought to adopt the child. Accordingly, in May 1997, Talia and Sam moved the district court to terminate the parental rights of Raja and Hikmet. An evidentiary hearing was conducted on November 21, 1997. During the hearing, the parties offered drastically differing evidence regarding the reasons why Talia and Sam have raised the child since 1990. Talia testified that following the news of Raja's pregnancy with the child, a family member informed her that Raja was going to give the baby to her. According to Talia, Raja allegedly said that she wanted Talia to raise the child because Raja was too old and Talia was unable to conceive. Talia further testified that when Raja brought the child to the United States in 1990, Raja told Talia that the baby was

now hers. Talia testified that she telephoned Hikmet, and he also told her to keep the baby. Raja testified that she brought the child to Michigan in 1990 simply to visit family members. Raja further testified that her mother, the child's grandmother, convinced her to leave the child in the United States so that Raja could join Hikmet at a medical conference in London, England. 1 Following the London conference, Raja and Hikmet returned to Iraq. According to Raja, she and Hikmet intended to retrieve the child in October 1990 when Hikmet was scheduled to attend a medical conference in Toronto, Canada. However, on August 2, 1990, Iraq invaded Kuwait. The allied forces began bombing Iraq on January 17, 1991. According to Raja and Hikmet, travel out of Iraq was restricted due to the conflict. Exactly when travel was restricted and for how long is unclear. The record indicates that in 1993, Raja traveled to Michigan to attend her older daughter's wedding. In 1995, Raja returned to the United States to renew her green card. Allegedly, there was a ban on highly educated people leaving Iraq without special permission, and according to Raja and Hikmet, Hikmet was not allowed to leave Iraq until 1997. Talia and Sam insist that Hikmet traveled to Jordan in 1995. __________ 1

At the time, Hikmet was a university professor and medical doctor in Baghdad. ........................................

Ð116 Nev. 790, 794 (2000) Matter of Parental Rights as to N.J.Ð Ð Siblings of Talia and Raja testified that the entire family discussed the fact that Raja intended to give the child to Talia. According to one family member, Raja said that she gave Talia her baby in order for Talia to have luck in having children of her own. This family member testified that, “[t]hat's a superstition . . . in our culture.” Also during the evidentiary hearing, the parties presented conflicting evidence regarding two adoption consent forms allegedly executed by Raja and Hikmet. Raja admitted signing the first adoption consent form in Michigan on July 2, 1990, the day she left the United States for England. However, Raja testified that she did not read the document and thought it was an application to extend the child's visa. Talia testified that Raja is fluent in English and knew that the document was an adoption consent form. Talia further testified that Hikmet signed this document in her presence when she traveled to Iraq in 1994. 2 Raja and Hikmet admitted that they executed a second adoption consent form during December 1990 in Iraq. Raja and Hikmet further testified that they mailed this document with a will to Raja's mother. Raja and Hikmet insist that a letter, enclosed with the documents, instructed Raja's mother not to give the adoption consent form to Talia and Sam unless Raja and Hikmet and their three grown children died during the war. Raja reclaimed the adoption consent form from her mother in 1993, but apparently did not recover the letter or will. 3 Raja and Hikmet resided in Iraq until the beginning of 1997 when they immigrated to the United States. During the seven years before Talia and Sam filed their petition to terminate Raja and Hikmet's parental rights, Raja saw the child two times while visiting the United States, and Hikmet did not see the child at all. Talia testified that even though she telephoned Raja and Hikmet frequently, Raja and Hikmet showed no interest in communicating with the child; according to Talia they spoke to the child once by telephone when the child was four or five years old. Talia and Sam insist that Raja and Hikmet never provided any financial support for the child. Talia testified that Raja and Hikmet never sent the child presents or cards, except on one occasion when Raja and Hikmet allegedly sent a Christmas card addressed to the entire Z. family. The record establishes that immediately after Talia and Sam took custody of the child from5DMDDQG+LNPHWWKH\FKDQJHGWKH

FKLOG VQDPH __________ 2

The notarized adoption consent form indicates that Hikmet executed this document in the presence of Dolores Fox, a notary public, and in the presence of two independent witnesses. However, Dolores Fox admitted that Hikmet did not sign the adoption consent form in her presence and that her notarization was unlawful.

Hikmet contended that he never signed this document. 3

The letter and will were never produced at the hearing. ........................................

Ð116 Nev. 790, 795 (2000) Matter of Parental Rights as to N.J.Ð Ð Raja and Hikmet, they changed the child's name. Raja and Hikmet, and their three grown children, have since referred to the child by the new name. Following the evidentiary hearing, the district court denied the petition to terminate Raja and Hikmet's parental rights. The district court determined that the evidence presented did not establish by clear and convincing evidence jurisdictional grounds that Raja and Hikmet had abandoned the child. Thereafter, Talia and Sam timely filed a motion for a new trial. On May 14, 1998, the district court denied Talia and Sam's motion. Talia and Sam timely filed this appeal. DISCUSSION Standard of review [Headnotes 1-3] Termination of parental rights is “an exercise of awesome power.” Smith v. Smith, 102 Nev. 263, 266, 720 P.2d 1219, 1220 (1986). Severance of the parent-child relationship is “tantamount to imposition of a civil death penalty.” Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989). Accordingly, this court closely scrutinizes whether the district court properly preserved or terminated the parental rights at issue. See, e.g., Matter of Parental Rights as to Carron, 114 Nev. 370, 956 P.2d 785 (1998); Matter of Parental Rights as to Gonzales, 113 Nev. 324, 933 P.2d 198 (1997); Scalf v. State, Dep't of Human Resources, 106 Nev. 756, 801 P.2d 1359 (1990); Kobinski v. State, 103 Nev. 293, 738 P.2d 895 (1987). Due process requires that clear and convincing evidence be established before terminating parental rights. See Cloninger v. Russell, 98 Nev. 597, 655 P.2d 528 (1982). This court will uphold termination orders based on substantial evidence, and will not substitute its own judgment for that of the district court. See Kobinski, 103 Nev. at 296, 738 P.2d at 897. Grounds for termination of parental rights NRS 128.105 sets forth the basic considerations relevant in determining whether to terminate parental rights: the best interests of the child and parental fault. In 1997, at the time of this proceeding, this statute provided as follows: 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: ........................................ Ð116 Nev. 790, 796 (2000) Matter of Parental Rights as to N.J.Ð Ð 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; (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. Talia and Sam contend that the district court failed to apply the correct standard of law in denying their petition for termination of Raja and Hikmet's parental rights. Specifically, Talia and Sam contend that the district court reached its decision by relying on the standard set forth in Champagne, which addressed NRS 128.105 as it was written in 1985. Talia and Sam insist that the district court is required to consider the best interests of the child in reaching its decision. Nevada's termination statute has changed significantly since its enactment in 1975. The earliest version of the statute did not expressly address the best interests of the child. Rather, the statute articulated specific grounds upon which termination could be granted: “A finding by the court of any of the following: (a) Abandonment of a child; (b) Neglect of a child; or (c) Unfitness of a parent, is sufficient ground for termination of parental rights.” 1975 Nev. Stat. ch. 549, § 10, at 964. In 1981, the legislature amended the statutory provisions addressing the grounds for terminating parental rights. In particular, the legislature inserted an opening paragraph: “An order of the court for termination of parental rights may be made on the grounds that the termination is in the child's best interest in light of the considerations set forth in this section and [NRS 128.106 to 128.108], inclusive.” 1981 Nev. Stat. ch. 718, § 19, at 1755 (emphasis added). The amendment expanded the grounds upon which termination could be granted to include (in addition to abandonment, neglect, and unfitness of the parent) risk of serious physical, mental or emotional injury to the child, and token efforts by the parent. Id. ........................................ Ð116 Nev. 790, 797 (2000) Matter of Parental Rights as to N.J.Ð Ð Following the 1981 amendments to NRS 128.105, this court in Champagne interpreted the statute and announced a two-step analysis to be applied when deciding whether to terminate parental rights. According to Champagne, the first step in the analysis requires that there be what the court characterized as “jurisdictional” grounds for termination. Id. at 640, 691 P.2d at 849. Jurisdictional grounds relate to “parental conduct or incapacity and the parent's suitability as a parent.” Id. at 646, 691 P.2d at 854 (footnote omitted). In other words, jurisdictional grounds focus on parental fault or inability to act as a parent. If jurisdictional grounds for termination are not established, the inquiry ends. Id. at 647, 691 P.2d at 854. If jurisdictional grounds are established, the analysis turns to whether dispositional grounds exist for termination. Dispositional grounds relate to whether “the child's interest would be served by termination.” Id. at 652, 691 P.2d at 857. The Champagne court explained that “[i]f under no reasonable circumstances the child's best interest can be served by sustaining the parental tie, dispositional grounds for termination exist.” Id. at 652, 691 P.2d at 858. [Headnote 4] As described, we used the term “jurisdictional” in Champagne to describe parental fault. The term jurisdictional, as used in this context, may have been misleading in that it suggests that the district court would be without subject matter jurisdiction to act on a termination petition absent a finding of parental fault. In fact, the district court always maintains subject matter jurisdiction over a properly filed petition to terminate parental rights. Despite the unfortunate choice of the word “jurisdictional,” Champagne actually held that relief prayed for in the petition, i.e., termination of parental rights, could not be granted unless parental fault was first established and a subsequent finding that termination would be in the child's best interests was made. Our holding in Champagne placed the main focus on the conduct of the parents. In 1987, the legislature responded to our decision in Champagne, and again amended the termination statute. The amended version provided in relevant part that “an order of the court for termination of parental rights must be made . . . with the initial and primary consideration being whether the best interests of the child would be served by the

termination, but requiring a finding” of parental fault. 1987 Nev. Stat. ch. 116, § 1, at 210. The legislative history indicates that the legislature was concerned that the Champagne decision bifurcated the issues regarding children's rights and parent's rights in termination proceedings. See Hearing on A.B. 308 Before the Nevada Assembly Committee on Judiciary, 64th Leg. (Nev., March 20, 1987). During the hearings, Senator Sue Wagner, chairperson of the committee on the judiciary, stated that the purpose of the bill asDPHQGHGZDVWR

SURYLGH WKDW SDUHQWDO ULJKWV DQG FKLOGUHQ V ULJKWV ZHUH RI HTXDO LPSRUWDQFH LQ WKH WHUPLQDWLRQRISDUHQWDOULJKWVSURFHHGLQJVDQGPXVWEHFRQVLGHUHGWRJHWKHU ........................................ Ð116 Nev. 790, 798 (2000) Matter of Parental Rights as to N.J.Ð Ð amended was to provide that parental rights and children's rights were of equal importance in the termination of parental rights proceedings and must be considered together. Id. Following the 1987 amendment to the termination statute, we acknowledged the statutory revision in Greeson v. Barnes, 111 Nev. 1198, 1200-01, 900 P.2d 943, 945 (1995), and concluded that jurisdictional grounds must still be established before terminating parental rights: In Champagne, this court designated the considerations relating to the conduct of the parent as the “jurisdictional” ground, and the considerations relating to the child's best interest as the “dispositional” ground. In 1989, [sic] in reaction to our decision in Champagne which seemed to accord primary emphasis to the rights of the parent over the rights of the child, the legislature added the following language to NRS 128.105: “with the initial and primary consideration being whether the best interests of the child would be served by the termination” (citation omitted). This amendment did not alter the requirement set out in NRS 128.105 and Champagne that at least one of the grounds alleging parental fault must be proven by clear and convincing evidence. In affirming the district court's order terminating the father's parental rights, the Greeson court explained that under NRS 128.105 “a lower court may terminate a parent's rights if it finds by clear and convincing evidence that the parent has abandoned the child and that terminating the parent's rights is in the best interest of the child.” Id. at 1201, 900 P.2d at 945. The opinion concluded that the statutory amendment did not alter the Champagne analysis. In 1995, the same year that Greeson was decided, the legislature once again amended NRS 128.105 by changing the introductory sentence as follows: “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.” 1995 Nev. Stat., ch. 146, § 1, at 215. The following year, in Matter of Parental Rights of Montgomery, 112 Nev. 719, 917 P.2d 949 (1996), this court reversed a district court order terminating the mother's parental rights on the basis that jurisdictional grounds for termination were not proved by clear and convincing evidence. In Montgomery, we began our analysis by setting forth the Champagne standard. Id. at 726, 917 P.2d at 955. Thereafter, we concluded that since the jurisdictional grounds were not supported by clear and convincing evidence, the district court erred in terminating the mother's parental rights. Additionally, we determined that an analysis of the child's best interests was not warranted: ........................................ Ð116 Nev. 790, 799 (2000) Matter of Parental Rights as to N.J.Ð Ð Because none of the jurisdictional findings were supported by clear and convincing evidence, we conclude that the district court erred in finding jurisdictional grounds for termination of Cherrel's parental rights. Therefore, we need not address the district court's findings with respect to dispositional grounds for termination. Id. at 729-30, 917 P.2d at 956-57.

In 1997, in Matter of Parental Rights as to Gonzales, 113 Nev. 324, 334, 933 P.2d 198, 205 (1997), we noted that “[i]n 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.' ” Despite our recognition of the legislative amendment, we analyzed the case under the Champagne framework. Our adherence to the Champagne standard has resulted in the improper application of the termination statute. The amendments to NRS 128.105 demonstrate the legislature's frustration with Champagne and its progeny, which place too much emphasis on the conduct of the parents instead of on the best interests of the child. Clearly, the legislative amendments of NRS 128.105 illustrate the legislature's concern with protecting the best interests of the child. [Headnotes 5-9] “It is well settled in Nevada that words in a statute should be given their plain meaning unless this violates the spirit of the act.” McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). “ ‘[N]o part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided.' ” Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) (alteration in original) (quoting Torreyson v. Board of Examiners, 7 Nev. 19, 22 (1871)). Thus, “[w]here a statute is clear on its face, a court may not go beyond the language of the statute in determining the legislature's intent.” McKay, 102 Nev. at 648, 730 P.2d at 441. Pursuant to the plain meaning of the termination statute, as amended in 1995, it is unmistakable that in all termination of parental rights proceedings, the best interests of the child must be the primary consideration. Moreover, the statute clearly provides that when deciding whether to terminate parental rights, the district court must always consider the best interests of the child in conjunction with a finding of parental fault. Accordingly, we now abandon Champagne's strict adherence to a finding of parental fault to terminate parental rights before theGLVWULFWFRXUWFRQVLGHUVWKHEHVWLQWHUHVWVRIWKHFKLOG ........................................ Ð116 Nev. 790, 800 (2000) Matter of Parental Rights as to N.J.Ð Ð district court considers the best interests of the child. 4 Application of the Champagne standard may have resulted in an artificial determination by the district court concerning parental fault, because such a determination cannot be made without considerations of how the parents' conduct has impacted the child. The impact of parental conduct on the child is, in turn, one consideration in determining the best interests of the child. We will no longer require district courts, in the name of determining parental fault, to consider rigidly and formulaically the conduct of the parents in a vacuum, without considering the best interests of the child. Instead, in conformance with NRS 128.105, we adopt a best interests/parental fault standard for termination cases. 5 Accordingly, the district court in determining whether to terminate parental rights must consider both the best interests of the child and parental fault. The termination statute sets forth factors to be considered in determining the best interests of the child. In particular, the statute provides that the “continuing needs of a child for proper physical, mental and emotional growth and development are the decisive considerations in proceedings for termination of parental rights.” NRS 128.005(2)(c). These factors allow the district court to consider the distinct facts of each case in deciding whether or not to terminate parental rights. In Cooley v. State, Department of Human Resources, 113 Nev. 1191, 946 P.2d 155 (1997), this court addressed the best-interests-of-the-child standard. In Cooley, the mother was sixteen years old when she gave birth to the child. Two years later, during termination proceedings, evidence was offered to show that the mother was raising that child in a home that was unsanitary and dangerous, that the mother had a bad temper, that the mother failed to complete two separate case plans, and that the mother exhibited no emotional connection with the child. Id. at 1192-96, 946 P.2dDW

__________ 4

To the extent that our case law follows the jurisdictional/dispositional analysis announced in Champagne, we overrule the following cases: Matter of Parental Rights as to Carron, 114 Nev. 370, 956 P.2d 785 (1998); Matter of Parental Rights as to Daniels, 114 Nev. 81, 953 P.2d 1 (1998); Cooley v. State, Dep't Hum. Res., 113 Nev. 1191, 946 P.2d 155 (1997); Matter of Parental Rights as to Gonzales, 113 Nev. 324, 933 P.2d 198 (1997); Matter of Parental Rights as to Bow, 113 Nev. 141, 930 P.2d 1128 (1997); Matter of Parental Rights of Weinper, 112 Nev. 710, 918 P.2d 325 (1996); Scalf v. State, Dep't of Human Resources, 106 Nev. 756, 801 P.2d 1359 (1990); Smith v. Smith, 102 Nev. 263, 720 P.2d 1219 (1986); Daly v. Daly, 102 Nev. 66, 715 P.2d 56 (1986); McGuire v. Welfare Division, 101 Nev. 179, 697 P.2d 479 (1985). 5

In light of this new standard, we will no longer refer to the terms “jurisdictional” and “dispositional” to describe the judicial findings that must be made in termination cases. ........................................ Ð116 Nev. 790, 801 (2000) Matter of Parental Rights as to N.J.Ð Ð at 155-58. The district court found that the mother's conduct established abuse and neglect. Id. at 1196, 946 P.2d at 158. The district court concluded that termination was in the best interests of the child because the mother was incapable of caring for the child, lacked parenting skills and could not provide the child with a stable home. Id. The district court further noted that the mother was immature, selfish, and indifferent towards the child. Id. Finally, the district court observed that the child needed a parent immediately and that the child should not have to defer her needs until the mother decided that she wanted to be a parent. Id. Accordingly, in determining whether it was in the best interests of the child to terminate the mother's parental rights, the district court considered that particular child's physical, mental and emotional well being. 6 [Headnote 10] In addition to considerations of the best interests of the child, the district court must find at least one of the enumerated factors for parental fault: abandonment of the child; neglect of the child; unfitness of the parent; failure of parental adjustment; risk of injury to the child if returned to, or if left remaining in, the home of the parents; and finally, only token efforts by the parents. See NRS 128.105(2)(a)-(f). Although the best interests of the child and parental fault are distinct considerations, the best interests of the child necessarily include considerations of parental fault and/or parental conduct. Accordingly, the best interests of the child and parental fault must both be shown by clear and convincing evidence. See Montgomery, 112 Nev. at 726, 917 P.2d at 955. [Headnotes 11-13] The purpose of Nevada's termination statute is not to punish parents, but to protect the welfare of children. See NRS 128.005. The United States Supreme Court has decisively established that the parent-child relationship is a fundamental liberty interest. See, e.g., Lehr v. Robertson, 463 U.S. 248, 258 (1983) (maintaining that the relationship of love and duty in a family unit is a liberty interest entitled to constitutional protection); Santosky v. Kramer, 455 U.S. 745, 753 (1982) (noting that the fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents); Quilloin v. Walcott, 434 U.S. 246, 255  __________ 6

We note that the results of this case may have been different had the child been older and had different needs. A child's needs necessarily affect the impact of parental conduct. ........................................

Ð116 Nev. 790, 802 (2000) Matter of Parental Rights as to N.J.Ð Ð (1978) (recognizing that the parent-child relationship is constitutionally protected); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (stressing the importance of the family and the right to raise children); see also Francis Barry McCarthy, The Confused Constitutional Status and Meaning of Parental Rights, 22 Ga. L. Rev. 975 (1988) (examining the historical development of parents' constitutional rights). While we recognize the importance of parents' constitutional interest in maintaining a relationship with their children, we also recognize that as a society we have an interest in raising children in an environment that is not harmful to their welfare or best interests. See Mary S. Coleman, Standards for Termination of Parental Rights, 26 Wayne L. Rev. 315, 322 (1980) (examining the interests of parents and children in termination proceedings); see also Raymond C. O'Brien, An Analysis of Realistic Due Process Rights of Children Versus Parents, 26 Conn. L. Rev. 1209 (1994) (contending that application of preponderance of the evidence standard, as opposed to clear and convincing evidence, in termination cases would recognize both the parental presumption and the rights of the child). Accordingly, deciding whether to terminate parental rights requires weighing the interests of the children and the interests of the parents. Numerous courts have recognized a best interests/parental fault standard in deciding whether to terminate parental rights. See, e.g., Egly v. Blackford County Dep't of Pub. Welfare, 592 N.E.2d 1232 (Ind. 1992) (reviewing evidence of parents' failure to meet responsibility as parents and best interests of the child); L.B.A. v. H.A., 731 S.W.2d 834 (Ky. Ct. App. 1987) (considering the rights of the natural mother and the best interests of child in termination proceedings); In re Christina H., 618 A.2d 228 (Me. 1992) (recognizing that best interests of the child inquiry is separate and distinct from parental fault inquiry); In re J.J.B., 390 N.W.2d 274 (Minn. 1986) (noting that in termination cases, balance between child's best interest and parents' interest is required); In re A.K.L. and A.M.L., 942 S.W.2d 953 (Mo. Ct. App. 1997) (recognizing the primary concern must be best interest of the child and parental fault); In re M.B., 386 N.W.2d 877 (Neb. 1986) (balancing best interests of child with parental fault in termination proceeding); In re Kristopher B., 486 A.2d 277 (N.H. 1984) (balancing best interests of the child with parental fault required in termination proceeding); Ward v. Commonwealth, 408 S.E.2d 921 (Va. Ct. App. 1991) (stating that termination of parental rights requires examination of best interests of the child and the likelihood of parental rehabilitation). These courts have acknowledged the importance of weighing the interests of the child and the interests of the parents in termination proceedings. ........................................ Ð116 Nev. 790, 803 (2000) Matter of Parental Rights as to N.J.Ð Ð In the present case, the district court did not consider the best interests of the child, because the court found that the jurisdictional grounds for termination were not proven by clear and convincing evidence. In light of the statutory amendments to the termination statute, we conclude that, upon remand, the district court must consider whether the best interests of the child would be served by the termination, coupled with considerations of whether parental fault exists. Statutory presumption of abandonment [Headnote 14] The district court did not apply the statutory presumption of abandonment contained in NRS 128.012(2) in considering whether Raja and Hikmet abandoned the child. NRS 128.012 defines “abandonment of a child” 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. NRS 128.090(2) provides in relevant part that the district court “shall in all cases require the petitioner to establish the facts by clear and convincing evidence and shall give full and careful consideration to all of the evidence presented.” Talia and Sam introduced evidence that Raja and Hikmet had abandoned the child. The evidence showed that Raja and Hikmet left their child with Talia and Sam without any provision for support for over seven years. During that period, Raja saw the child only twice and Hikmet did not see the child at all. Talia and Sam also offered evidence that Raja and Hikmet spoke to the child on the telephone only once during this time. As stated previously, the district court did not apply the statutory presumption of abandonment in considering whether Raja and Hikmet abandoned the child. Once Talia and Sam introduced evidence that Raja and Hikmet left the child for six months without communication or provisions for support, application of the statutory presumption of abandonment shifted the burden to Raja and Hikmet to prove that they did not abandon the child. See NRS 47.180(1) (providing that “[a] presumption, other than a presumption against the accused in a criminal action, imposes on the party against whom it is directed the burden of proving that the

QRQH[LVWHQFHRIWKHSUHVXPHGIDFWLVPRUHSUREDEOHWKDQLWVH[LVWHQFH´  ........................................ Ð116 Nev. 790, 804 (2000) Matter of Parental Rights as to N.J.Ð Ð nonexistence of the presumed fact is more probable than its existence”). [Headnote 15] We conclude that the district court erred in failing to apply the statutory presumption. This court has previously acknowledged that the application of the statutory presumption of abandonment contained in NRS 128.012(2) is not discretionary. See Gonzales, 113 Nev. at 331 n.5, 933 P.2d at 202 n.5. Exclusion of English translations of four Arabic letters [Headnote 16] During the proceedings, Talia and Sam attempted to admit four Arabic letters written by Hikmet to Talia and Sam. Talia and Sam had the letters translated by a translator certified by the Eighth Judicial District Court. The translations were accompanied by a sworn affidavit of the translator. The significance of the letters, according to Talia and Sam, is that they rebut Raja and Hikmet's assertions that they never intended the child to remain with Talia and Sam. Talia and Sam contend that this excluded evidence is manifestly important to their case and that the district court erred in excluding the letters. [Headnote 17] The district court has considerable discretion in determining the admissibility of evidence and this court will not disturb a district court's ruling absent an abuse of that discretion. See K-Mart Corporation v. Washington, 109 Nev. 1180, 866 P.2d 274 (1993). NRS 51.075 provides in relevant part that “[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.” We conclude that the district court abused its discretion in excluding the certified translations of the four Arabic letters written by Hikmet to Talia and Sam. CONCLUSION We conclude that a new trial is required in light of the legislative amendments to NRS 128.105, which require the district courts to give primary consideration to whether the child's best interests will be served by the parental termination. We also conclude that a new trial is warranted because the district court failed to apply the statutory presumption of abandonment as codified in NRS 128.012(2), and erred in excluding the

certified English translations of the four Arabic letters. Accordingly, we reverse the order of the district court denying Talia and Sam's petition to terminate the parental rights of Raja DQG +LNPHW DV ZHOO DV WKH GLVWULFW FRXUW V RUGHU GHQ\LQJ 7DOLD DQG

6DP VPRWLRQIRUDQHZWULDO ........................................ Ð116 Nev. 790, 805 (2000) Matter of Parental Rights as to N.J.Ð Ð and Hikmet as well as the district court's order denying Talia and Sam's motion for a new trial, and remand this matter for further proceedings consistent with this opinion. 7 Rose, C. J., Young, Maupin, Shearing, Leavitt and Becker, JJ., concur. ____________

Ð116 Nev. 805, 805 (2000) South Fork Band, Te-Moak Tribe v. Dist. Ct.Ð Ð Ð SOUTH FORK BAND OF THE TE-MOAK TRIBE OF WESTERN SHOSHONE INDIANS OF NEVADA; MARVIN McDADE, in His Capacity as Chairman of the South Fork Band Council, Petitioners, v. THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF HUMBOLDT, and THE HONORABLE RICHARD A. WAGNER, District Judge, Respondents, and STATE ENGINEER OF THE STATE OF NEVADA and WATER COMMISSIONERS OF THE SIXTH JUDICIAL DISTRICT COURT, Real Parties in Interest. No. 35591 August 24, 2000

7 P.3d 455

Original petition for writ of prohibition seeking to prevent the district court from proceeding on a petition for an order requiring petitioners to show cause why they should not be held in contempt for interfering with the state engineer and water commissioners in regulating adjudicated water rights along the Humboldt River. Indian tribe and tribal officer petitioned for writ of prohibition to prevent the district court from proceeding on a petition for an order requiring petitioners to show cause why they should not be held in contempt for interfering with the state engineer and water commissioners in entering reservation to regulate adjudicated water rights pursuant to the Humboldt Decree of water rights along the Humboldt River. The supreme court held that: (1) the tribe had waived its sovereign immunity, and (2) the United States, as legal owner of the reservation, was not an indispensable party. Petition denied. Nevada Legal Services and Raymond Rodriguez, Carson City, for Petitioners. David G. Allison, District Attorney, Humboldt County, for Respondents. __________ 7

In light of our disposition, we need not address the other contention raised on appeal: whether newly discovered evidence warrants a new trial or new and additional testimony. ........................................ Ð116 Nev. 805, 806 (2000) South Fork Band, Te-Moak Tribe v. Dist. Ct.Ð Ð

Frankie Sue Del Papa, Attorney General, and Paul G. Taggart, Deputy Attorney General, Carson City, for Respondents and Real Parties in Interest. 1. Indians. Indian tribes possess the same common-law immunity from suit traditionally enjoyed by sovereign powers. 2. Indians. An Indian tribe's sovereign immunity can be waived. 3. Indians. An Indian tribe's waiver of sovereign immunity may not be implied, but must be expressed unequivocally. 4. Indians. A waiver of sovereign immunity does not require the invocation of “magic words” indicating that a tribe has waived its sovereign immunity. 5. Indians. Generally, without congressional authority to consent to suit, Indian tribes are exempt from suit. 6. Indians. Indian tribe waived sovereign immunity as to district court's authority to exercise jurisdiction over the tribe concerning its alleged interference with administration of water rights pursuant to water rights decree, where the United States had purchased, and the tribe had taken, the reservation land subject to previously adjudicated water rights, and where the tribe's actions in benefiting from and abiding by the decree for more than five decades, such as by paying assessment fees and permitting state engineer and water commissioners access to the reservation, served to ratify the waiver. 7. Waters and Water Courses. The district court has continuing jurisdiction over matters arising out of the administration of the Humboldt Decree of water rights along the Humboldt River. 8. Contempt. The district court has the authority to hold in contempt those who interfere with or frustrate the actions of the state engineer or water commissioners in the administration of the Humboldt Decree of water rights along the Humboldt River. 9. Indians. A tribe enjoys sovereign immunity, and thus, generally, cannot be subjected to the jurisdiction of a state court. 10. Contempt. The United States was not an “indispensable party” in a proceeding to hold Indian tribe and tribal officer in contempt for interfering with regulation of adjudicated water rights, though the United States, as trustee, was the legal owner of the reservation and accompanying water rights, where the tribe and tribal officer, but not the United States, created and adopted the resolutions that frustrated and interfered with the water commissioners' efforts to enter the reservation to regulate the water rights, and the interests of the United States would not be affected by the contempt proceedings. 11. Prohibition. A writ of prohibition is an appropriate vehicle through which to challenge the district court's improper exercise of jurisdiction. NRS 34.320.

........................................ Ð116 Nev. 805, 807 (2000) South Fork Band, Te-Moak Tribe v. Dist. Ct.Ð Ð Before the Court En Banc. OPINION Per Curiam: This is an original petition for writ of prohibition seeking to prevent the district court from proceeding on a petition for an order requiring petitioners to show cause why they should not be held in contempt for interfering with the state engineer and water commissioners in regulating adjudicated water rights along the Humboldt River. Petitioners contend that the district court lacks jurisdiction based on sovereign immunity. We conclude that petitioners waived sovereign immunity when the United States purchased, and petitioners took, the reservation land subject to previously adjudicated water rights. Petitioners ratified this waiver by their historical compliance with the Humboldt Decree, including paying assessment fees and permitting the state engineer and water commissioners access to the reservation. Consequently, petitioners are subject to the jurisdiction of the Sixth Judicial District Court, and we therefore deny the petition for writ of prohibition. In 1913, the state engineer initiated water rights adjudication procedures for the Humboldt River. See

Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803 (1914). The state engineer issued an order of determination for the Humboldt River in 1923. As part of the adjudication, the Sixth Judicial District Court decreed water rights to five ranches. In 1935, the Sixth Judicial District Court amended the decree, completing its adjudication of water rights for the Humboldt River. This decree became known as the Humboldt Decree, and thereafter, the state engineer and the water commissioners were responsible for distributing the water rights adjudicated under the Decree. Subsequently, between 1937 and 1942, the United States purchased the five ranches to form the South Fork Reservation for the Te-Moak Tribe of the Western Shoshone Indians (the tribe). For approximately fifty-five years, the tribe cooperated with the state engineer and water commissioners, allowing them access onto the reservation. In particular, the tribe allowed the state engineer and water commissioners to enter the reservation and to traverse the reservation to reach private lands on which diversions that served the tribe's water rights, as well as other landowners' rights, were located. It appears from the documentation submitted to this court that the United States paid the assessment fees for a period of time in the 1970s and early 1980s, and that the tribe paid the assessment fees from the mid-1980s until at least theHDUO\V ........................................ Ð116 Nev. 805, 808 (2000) South Fork Band, Te-Moak Tribe v. Dist. Ct.Ð Ð early 1990s. However, on March 8, 1998, the tribe adopted two resolutions decreeing that water commissioners would not be allowed to enter the reservation and that the tribe would not pay assessment fees that were charged against every holder of water rights in the Humboldt River. Subsequently, and at different times, the state engineer and water commissioners of the Sixth Judicial District Court filed three contempt proceedings in the Sixth Judicial District Court. 1 We are presently concerned with the third contempt proceeding, which is the subject of this petition. In that contempt proceeding, the state engineer sought an order from the district court directing petitioners to show cause why they should not be held in contempt for frustrating the water commissioners' enforcement of the Humboldt Decree, specifically regarding an incident that occurred on September 13, 1999. On September 13, 1999, Wayne Testolin, a supervising water commissioner, and two other water commissioners entered the reservation to reach a private ranch adjacent to the reservation, known as the Gund Ranch, for the purpose of regulating the river pursuant to the Humboldt Decree. Some of the tribe's water rights are served by diversions located on the Gund Ranch. Consequently, to properly control the tribe's water rights, as well as water rights for other private landowners, the diversions located on the Gund Ranch must be adjusted. 2

When the water commissioners entered the reservation, they were followed by a tribal peace officer. The water commissioners traveled off the reservation and onto the Gund Ranch, where they were stopped by the tribal peace officer and Mr. Marvin McDade, chairman of the South Fork Band Council, and escorted back to the tribal office on the reservation. Mr. Testolin was handcuffed, charged with trespass and escorted off the reservation. On November 9, 1999, the state engineer and water commissioners of the Sixth Judicial District Court petitioned the districtFRXUWIRUDQRUGHUWRVKRZFDXVHZK\WKHWULEHDQG0U0F'DGHVKRXOG

QRW EH KHOG LQ FRQWHPSW IRU LQWHUIHULQJ ZLWK WKH ZDWHU FRPPLVVLRQHUV  DXWKRULW\ WR UHJXODWHWKH+XPEROGW5LYHU __________ 1

The first contempt proceeding (Humboldt I) was filed against petitioners, but was subsequently amended to name the United States as a respondent. The United States filed a notice of removal, removing the proceeding to federal court. The federal court denied the state's motion to remand the case to state court. See State Engineer v. South Fork Band of Te-Moak Tribe, 66 F. Supp. 2d 1163 (D. Nev. 1999). The state engineer also filed a separate contempt proceeding (Humboldt II) in the Sixth Judicial District Court against the United States in an effort to compel the United States to pay the assessment fees. Again, the United States filed a notice of removal to federal court. The state engineer filed a motion to remand the proceedings to state court. At the time this

petition for writ of prohibition was filed, the state engineer's motion to remand remained pending in federal court. 2

The state engineer and water commissioners contend that they cross the reservation to reach the Gund Ranch because it provides the most reasonable access to the ranch. ........................................ Ð116 Nev. 805, 809 (2000) South Fork Band, Te-Moak Tribe v. Dist. Ct.Ð Ð court for an order to show cause why the tribe and Mr. McDade should not be held in contempt for interfering with the water commissioners' authority to regulate the Humboldt River. The tribe and Mr. McDade filed a motion to dismiss the petition, which the district court denied. The tribe and Mr. McDade then filed this petition for a writ of prohibition to prevent the district court from proceeding with a contempt hearing, contending that the district court lacks jurisdiction over the tribe and Mr. McDade, in his official capacity, and that the United States is an indispensable party to the district court contempt proceedings. [Headnotes 1-4] Turning to the issue of the district court's jurisdiction over the tribe, “[i]t is well established that Indian tribes possess the same common-law immunity from suit traditionally enjoyed by sovereign powers.” Val-U Constr. Co. v. Rosebud Sioux Tribe, 146 F.3d 573, 576 (8th Cir. 1998); accord Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991); Pan American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir. 1989). However, sovereign immunity can be waived. See Puyallup Tribe v. Washington Game Dept., 433 U.S. 165 (1977). Such a waiver may not be implied, but must be expressed unequivocally. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 (1978). A waiver does not require the invocation of “magic words” indicating that a tribe has waived its sovereign immunity. See Val-U Constr. Co., 146 F.3d at 577. [Headnote 5] Generally, without congressional authority, Indian tribes are exempt from suit. See Santa Clara, 436 U.S. at 58. However, some courts have concluded that a tribe, by its actions, may consent to suit without express congressional authority. For example, in United States v. Oregon, 657 F.2d 1009, 1013-16 (9th Cir. 1981), the court held that an Indian tribe may consent to suit without express congressional authority, and that a tribe's intervention in establishing its fishing rights constituted consent to the district court's jurisdiction to issue and modify an equitable decree that encompassed tribal rights. See also McClendon v. United States, 885 F.2d 627, 629 n.1 (9th Cir. 1989) (stating that initiation of litigation by the United States in its capacity as tribal trustee could potentially result in a waiver of tribal immunity despite the fact that the tribe was not a party to the suit); Native Village of Eyak v. GC Contractors, 658 P.2d 756 (Alaska 1983) (determining that an Indian tribe waived its sovereign immunity from suit without obtaining congressional authority by entering into an agreement containing an arbitration clause). ........................................ Ð116 Nev. 805, 810 (2000) South Fork Band, Te-Moak Tribe v. Dist. Ct.Ð Ð [Headnote 6] In this case, the tribe is the successor-in-interest to owners of Humboldt Decree water rights and has enjoyed the benefits of the Decree. Until 1998, water commissioners entered the reservation without interference to regulate the Humboldt River to ensure that all users received their decreed water rights. For the past fifty-five years, the tribe allowed the water commissioners to travel on and across the reservation, and the tribe paid assessment fees pursuant to the Decree for some period of time between the mid-1980s and early 1990s. Finally, the deeds to the property the United States purchased for the tribe specifically mention the appurtenant water rights and/or the Humboldt Decree. We conclude that the purchase of the reservation land subject to previously

adjudicated water rights constituted an express waiver of sovereign immunity, and that the tribe's actions in benefiting from and abiding by the Humboldt Decree for more than five decades served to ratify this waiver. See State Engineer v. South Fork Band of Te-Moak Tribe, 66 F. Supp. 2d at 1163, 1172 (D. Nev. 1999) (stating that “[i]f there remain[s] any doubt as to the United States['] express and unequivocal waiver in behalf of the Tribe, in its initial purchase of the decreed rights, the Tribe's actions over the ensuing fifty years since the purchase of their decreed water rights clearly demonstrate a continuing ratification of its initial waiver of immunity”). [Headnotes 7, 8] We have recognized that the Sixth Judicial District Court has continuing jurisdiction over matters arising out of the administration of the Humboldt Decree. State Engineer v. Sustacha, 108 Nev. 223, 826 P.2d 959 (1992). The Sixth Judicial District Court has the authority to hold in contempt those who interfere with or frustrate the actions of the state engineer or water commissioners in the administration of the Humboldt Decree. State v. District Court, 52 Nev. 270, 286 P. 418 (1930). [Headnote 9] The tribe enjoys sovereign immunity, and thus, generally, cannot be subjected to the jurisdiction of a state court. See, e.g., Snooks v. District Court, 112 Nev. 798, 919 P.2d 1064 (1996) (holding that a Nevada state court had no jurisdiction to entertain a civil action filed by a non-Indian against an Indian for events that occurred on Indian land); Patterson v. Four Rent, Inc., 101 Nev. 651, 707 P.2d 1147 (1985) (holding that a Nevada state court had no jurisdiction over Indian claims to land allotments). However, here, as the purchase of the tribe's reservation land subject to the Humboldt Decree, constituted a waiver of sovereign immunity, the Sixth Judicial District Court is within its authorityLQH[HUFLVLQJMXULVGLFWLRQRYHUWKHWULEHFRQFHUQLQJLWVDOOHJHG

LQWHUIHUHQFHZLWKWKHDGPLQLVWUDWLRQRIZDWHUULJKWVSXUVXDQWWRWKH'HFUHH ........................................ Ð116 Nev. 805, 811 (2000) South Fork Band, Te-Moak Tribe v. Dist. Ct.Ð Ð in exercising jurisdiction over the tribe concerning its alleged interference with the administration of water rights pursuant to the Decree. To hold that the tribe is not amenable to the jurisdiction of the Sixth Judicial District Court under these circumstances would frustrate the district court's authority over matters arising out of the administration of the Decree. [Headnote 10] Finally, petitioners' contention that the district court lacks jurisdiction over the contempt proceeding because the United States is an indispensable party and has not been joined is without merit. The actions giving rise to the contempt proceedings are those of petitioners, not the United States. Petitioners, not the United States, created and adopted the resolutions that frustrated and interfered with the water commissioners' efforts to regulate the Humboldt River. Although the United States, as trustee, is the legal owner of the property and accompanying water rights, see Appropriations Act for the Department of the Interior, Pub. L. No. 68-580, 43 Stat. 1141, 1149 (1925); Proclaiming Certain Lands in Nevada to be an Indian Reservation, 6 Fed. Reg. 1203 (1941), the interests of the United States will not be affected by the contempt proceedings. Consequently, we conclude that the district court does have jurisdiction because the United States has not been joined as a party to the contempt proceedings. [Headnote 11] 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; see Budget Rent-A-Car v. District Court, 108 Nev. 483, 835 P.2d 17 (1992). We have held that a writ of prohibition is an appropriate vehicle through which to challenge the district court's improper exercise of jurisdiction. See Indiana Ins. Co. v. District Court, 112 Nev. 949, 920 P.2d 514 (1996); Phelps v. District Court, 106 Nev. 917, 803 P.2d 1101 (1990).

Here, since petitioners waived their sovereign immunity, we conclude the Sixth Judicial District Court has jurisdiction over petitioners in the underlying contempt proceedings. Consequently, we are not satisfied that this court's intervention by way of extraordinary relief is warranted at this time. We therefore deny the petition. 3 __________ 3

We grant the real parties in interest's motion to file supplemental authority and direct the clerk of this court to file the supplemental authority appended to the motion. We have considered this supplemental authority in resolving the instant petition.

____________

Ð116 Nev. 812, 812 (2000) DeJesus v. FlickÐ Ð KENNETH DeJESUS, Appellant, v. SHERRY FLICK, Respondent. No. 30158 August 24, 2000

7 P.3d 459

Appeal from a judgment entered on a jury verdict and a district court order denying appellant's motion for a new trial. Eighth Judicial District Court, Clark County; Jack Lehman, Judge. Vehicle passenger brought personal injury action against driver of other vehicle, claiming she suffered head and hand injuries during off-road travel when defendant forced the vehicle in which she was riding off the freeway. After defendant stipulated to his liability, the district court entered judgment on jury's award of $1,470,000.00 in damages and denied defendant's motion for a new trial. Defendant appealed. The supreme court, Agosti, J., held that the improper personal opinions and “golden rule” arguments presented by passenger's counsel during closing arguments warranted a new trial. Reversed and remanded for a new trial. Rose, C. J., with whom Shearing and Leavitt, JJ., agreed, dissented. Beckley Singleton Jemison Cobeaga & List and Rex A. Jemison and Daniel F. Polsenberg, Las Vegas, for Appellant. Mainor & Harris and W. Randall Mainor, Las Vegas, for Respondent. 1. Damages. Evidence of defendant motorist's intentional conduct during altercation, after defendant had forced the vehicle in which plaintiff passenger was riding off the freeway, was admissible in passenger's personal injury action relating to injuries she suffered when her head struck the vehicle and her hands were jammed against the dashboard during the off-road travel. The evidence was relevant to passenger's claim for mental pain and suffering and was not unduly prejudicial. NRS 48.015, 48.035. 2. Appeal and Error. On review, the supreme court will not disturb the district court's ruling on a motion for a new trial absent an abuse of discretion. NRCP 59. 3. New Trial. To warrant reversal and a new trial on grounds of attorney misconduct of the prevailing party's attorney, the flavor of misconduct must sufficiently permeate an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict. NRCP 59(a)(2), (6). 4. New Trial. The district court may grant a new trial based upon attorney misconduct without proof that the misconduct changed the

outcome of the first trial. NRCP 59(a)(2), (6).

........................................ Ð116 Nev. 812, 813 (2000) DeJesus v. FlickÐ Ð 5. Appeal and Error. Generally, a failure to object at trial to attorney misconduct precludes appellate review. 6. Appeal and Error. The inflammatory quality and sheer quantity of attorney misconduct warranted review, to prevent plain error, as to the closing argument of counsel for vehicle passenger in personal injury action against driver of another vehicle who had forced passenger's vehicle off the road, though the defendant had failed to object to the closing argument at trial. 7. Trial. Closing argument of passenger's counsel in personal injury action against driver of other vehicle, in which counsel accused defendant's medical expert of committing perjury and personally attacked the expert's credibility, told the jury how much he personally disliked defendant because defendant nearly killed two people and because counsel had acquired some sense of plaintiff's suffering, and gave his personal opinion that defense counsel was trying to get the jury to shortchange plaintiff's damages claim, violated the rule prohibiting a lawyer from stating a personal opinion as to the justness of a cause, the credibility of a witness, or the culpability of a civil litigant. SCR 173. 8. Trial. Passenger's counsel made improper “golden rule” closing arguments in personal injury action against driver of other vehicle, where counsel asked jurors to “tap into feelings” about passenger's fears in light of passenger's physical condition, asked jurors “How do you put a value on not using your fingers?” after telling jury he would not trade the use of his own fingers for ten million dollars, and asked jurors to “send a message” to law firms that try to prevent injured people from recovering for their damages. 9. New Trial. The attorney misconduct of counsel for plaintiff passenger, in injecting his personal opinions and using improper “golden rule” arguments during closing arguments in personal injury action against driver of other vehicle, including an argument inviting the jury to send a message to all defense attorneys who try to shortchange injured people, warranted a new trial. Jury's award of $1,470,000.00 must have been based on passion or prejudice, because the medical expert testimony regarding passenger's injuries was conflicting and the award far exceeded the damages passenger had sought. NRCP 59(a)(2), (6).

Before the Court En Banc. OPINION By the Court, Agosti, J.: This appeal is from a final judgment pursuant to a jury verdict and a subsequent order denying a new trial. The jury awarded respondent $1,470,000.00, substantially more than she requested, in a personal injury action arising out of an altercation on a Las Vegas freeway. The primary question presented on appeal is whether misconduct by the plaintiff's attorney so permeated the SURFHHGLQJV WKDW LW

LPSURSHUO\LQIOXHQFHGWKHMXU\ ........................................ Ð116 Nev. 812, 814 (2000) DeJesus v. FlickÐ Ð proceedings that it improperly influenced the jury, thereby warranting a new trial under NRCP 59(a). We conclude that it did; therefore, we reverse the district court's judgment and order and remand for a new trial on damages. FACTS In June 1992 respondent Sherry Flick was riding as a passenger in a vehicle driven by her sister, Julie Flick. As they proceeded southbound on Interstate 15 in Las Vegas, appellant Kenneth DeJesus tailgated the Flick vehicle, then moved into its lane and forced it off the roadway into a ravine in the freeway median. The off-road travel cracked the front axle of the Flick vehicle. DeJesus stopped, got out of his vehicle, pounded his fists on the windshield of the Flick vehicle and made threatening gestures. DeJesus was cited for misdemeanor assault, and later pleaded guilty to the offense.

Sherry Flick filed a personal injury action against DeJesus, claiming negligence. 1 DeJesus rejected an offer to settle for $100,000.00; however, he stipulated to liability, so the only issue for trial was Flick's damages. Consequently, most trial testimony related to the nature and extent of Flick's injuries. Flick's medical experts, Dr. Edward N. Fishman and Dr. John Sterling Ford, testified that Flick sustained permanent brain and nerve damage when, during the accident, her head struck the vehicle and she jammed her hands against the dashboard. The brain damage caused Flick to suffer from headaches, dizzy episodes, blackouts, memory loss and neck pain, while the nerve damage caused numbness and tingling in Flick's hands, and curling of her outer fingers in a claw-like manner. Dr. Ford testified he was not able to locate the head injury precisely, but it appeared that the balance organ in the inner ear had been damaged. He also testified there was little hope that Flick's dizziness and blackout spells would cease, as they had persisted for four years, and that Flick's carpal tunnel syndrome was not likely to improve, as it was getting worse. Flick's sister, Julie, testified that these problems limited Flick's ability to drive and to work. In contrast, DeJesus's medical experts, Dr. David Oliveri and Dr. Gerald Dunn, testified that the accident did not cause Flick's symptoms and that Flick's medical records did not indicate that she had a brain disorder until one year after the accident. Another physician, Dr. Robert Voy, testified that he treated Flick before the accident for kidney infections, which caused symptoms similar to those complained of after the accident: specifically, nausea, KHDGDFKHV GL]]LQHVV DQG EODFNRXW VSHOOV RU PRPHQWDU\ ODSVHV RI

FRQVFLRXVQHVV __________ 1

Flick also named her sister Julie as a defendant, but settled with her before trial for $10,000.00.

........................................ Ð116 Nev. 812, 815 (2000) DeJesus v. FlickÐ Ð headaches, dizziness and blackout spells or momentary lapses of consciousness. Flick's attorney, W. Randall Mainor, presented an emotional and provocative closing argument to the jury, and he injected his personal life and opinions into this argument. Among other things, Mainor personally vouched for the justness of his cause, talked about his grandchildren, his career with the FBI, his twenty years' experience as a trial lawyer, and even cried during his closing argument. Mainor expressed his disdain for DeJesus, said he was in a better position than the jury to know Flick's suffering and stated he would not trade the use of his own fingers for ten million dollars. In painting a negative image of DeJesus's medical experts, Mainor informed the jury that Drs. Dunn and Oliveri were motivated to testify for DeJesus solely by money and that, in his opinion, Dr. Oliveri lied and the jury could discard his testimony in a garbage can. Finally, Mainor invited the jury to punish defense counsel and all civil defense attorneys with its verdict. The jury returned a verdict of $1,470,000.00. The award included $100,000.00 for future medical expenses, far in excess of the $21,000.00 2 supported by the evidence and well in excess of counsel's request for $30,000.00 to $35,000.00, and $300,000.00 for future loss of income. The award also included $1,000,000.00 for future pain and suffering, approximately twice the amount counsel requested. [Headnote 1] DeJesus moved for a new trial, claiming that Mainor's misconduct inflamed the jury's passions and prejudiced the jury's verdict. The district court denied the motion, concluding that substantial evidence supported the verdict. DeJesus appeals. 3 DISCUSSION [Headnote 2] Under NRCP 59(a)(2) and (6), a district court may grant a new trial based on “[m]isconduct of the jury or

prevailing party” orZKHQLWDSSHDUVWKDW³>H@[FHVVLYHGDPDJHVKDYHEHHQJLYHQXQGHU

WKHLQIOXHQFHRISDVVLRQRUSUHMXGLFH´ __________ 2

Letters by Flick's experts, Dr. Fishman and Dr. Ford, indicated that Flick's future medical expenses could reach $21,000.00. 3

DeJesus also contends that a new trial is warranted because the district court abused its discretion by admitting evidence of DeJesus's intentional conduct during the freeway altercation, as it was irrelevant and prejudicial. We disagree. We conclude that the district court did not abuse its discretion in admitting this evidence as relevant to Flick's claim for mental pain and suffering. See Southern Pac. Transp. Co. v. Fitzgerald, 94 Nev. 241, 243, 577 P.2d 1234, 1235 (1978) (noting that a district court has broad discretion in deciding whether evidence is admissible); NRS 48.015 (defining relevant evidence); NRS 48.035 (providing that relevant evidence is admissible “if its probative value is [not] substantially outweighed by the danger of unfair prejudice”). ........................................ Ð116 Nev. 812, 816 (2000) DeJesus v. FlickÐ Ð when it appears that “[e]xcessive damages . . . have been given under the influence of passion or prejudice.” On review, we will not disturb the district court's ruling on a motion for a new trial absent an abuse of discretion. Southern Pac. Transp. Co. v. Fitzgerald, 94 Nev. 241, 244, 577 P.2d 1234, 1236 (1978). [Headnotes 3, 4] In Barrett v. Baird, 111 Nev. 1496, 1515, 908 P.2d 689, 702 (1995), we established the standard used to determine whether reversal is warranted by misconduct of the prevailing party's attorney: “[t]o warrant reversal on grounds of attorney misconduct, the ‘flavor of misconduct must sufficiently permeate an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.' ” Kehr v. Smith Barney, Harris Upham & Co., Inc., 736 F.2d 1283, 1286 (9th Cir. 1984) (quoting Standard Oil of California v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965)). The district court may grant a new trial based upon such misconduct without proof that the misconduct changed the outcome of the first trial. Id. (citing Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S. 520, 521-22 (1931)). [Headnotes 5, 6] Initially, we note that DeJesus's attorney failed to object to most of Mainor's improper arguments. Generally, a failure to object to attorney misconduct precludes review. Southern Pac. Transp., 94 Nev. at 244, 577 P.2d at 1235 (noting that “[t]o preserve the contention for appellate review, specific objections must be made to allegedly improper closing argument”). Nevertheless, in light of the inflammatory quality and sheer quantity of misconduct in this case, review is warranted to prevent plain error. See Bradley v. Romeo, 102 Nev. 103, 104, 716 P.2d 227, 228 (1986) (recognizing that “[t]he ability of this court to consider relevant issues sua sponte in order to prevent plain error is well established”); see also Kaas v. Atlas Chem. Co., 623 So. 2d 525, 526 (Fla. Dist. Ct. App. 1993) (attorney's expression of his personal opinion that an expert witness is a liar is misconduct warranting a new trial, and no objection is required because such arguments fall squarely within that category of fundamental error in which the basic right to a fair trial has been fatally compromised); Sadler v. Arizona Flour Mills Co., 121 P.2d 412, 413 (Ariz. Ct. App. 1942) (when prevailing party's attorney's misconduct during argument is a ground for vacating the verdict, trial court may grant a new trial despite the absence of any objection).

........................................ Ð116 Nev. 812, 817 (2000) DeJesus v. FlickÐ Ð [Headnotes 7, 8] Many of Mainor's arguments to the jury far exceeded the boundaries of acceptable professional conduct. The record is replete with examples; the following excerpts illustrate the level of impropriety that Mainor exhibited. To begin, Mainor inappropriately accused DeJesus's expert witness, Dr. Oliveri, of committing perjury and personally attacked his credibility: I guarantee you if I'd have hired Oliveri, you'd have heard that [Flick] had all these problems. I guarantee you that. If I'd have given him fifteen hundred bucks ($1500.00), he'd have come in and he would have been able to concur with Ford [Flick's expert]. That's the way it works. That's the real world. See, you folks don't know that. But I've been doing this for twenty years and that's the way it's done. And—and what they try to do is influence jurors by this nonsense, these IMEs. They're not independent of anything. They are biased and prejudiced against people who are hurt. .... [T]he reason why I put [Flick's] dad on for the one question, it was to merely show you folks that Oliveri does not—did not tell the truth. I knew I could . . . present evidence that he wasn't qualified in what he was saying and I knew his opinions wouldn't hold any water, but I wanted you to—I wanted you to look at him and question his truthfulness. I was going to have [Flick's dad] tell more about what he observed there, but all that would have done, I think, is make Oliveri look a little more stupid than I'd already done, and I didn't think that was necessary. . . . [T]he issue is was [Oliveri] telling the truth and the answer is, no, he wasn't. You're at liberty, if you want, to take Oliveri's testimony and tear it up and throw it in the garbage can because I think he lied on the stand, didn't necessarily lie but didn't totally tell the truth. . . . He violated his oath because he told the truth but he didn't tell the whole truth, and he told a few things other than the truth. His testimony is—is not credible in my estimation. Mainor improperly interjected his personal opinions about the defendant. He told the jury how much he personally disliked DeJesus because DeJesus nearly killed two people and because he had acquired some sense of Flick's suffering during preparation for trial: I have a hard time liking this man. He nearly killed a couple of people. And, you know, I'm not sure that I accept hisUHSHQWDQFH ........................................ Ð116 Nev. 812, 818 (2000) DeJesus v. FlickÐ Ð repentance. I have a forgiving heart. I think I can do that. But I can tell you, I don't like him. And the reason why I don't is because you guys have only seen [Flick] for four days. I've seen her for nearly two years. I've seen her a lot. And you got a little bit of a sense of what she's been going through. I have a much greater sense of what she's gone through ‘cause I've been with her and been with her family. Mainor improperly gave his personal opinion as to the justness of Flick's cause, and that of other plaintiffs claiming injuries. Although he stated to the jury that the case was not a crusade for him, he explained that it was close to a crusade because defense counsel was trying to get the jury to shortchange Flick's damage claim. Thus, Mainor asked the jury to send a “message” to defense firms in town:

What I'd like the message to be to this law firm and to other law firms is, dang it, when someone is hurt, pay them, pay them what's reasonable and let's go on with life. But if you let them get away with this, if you let them get away with bringing some clown like Oliveri in here to try to convince the jury that—that she's not hurt, they'll keep doing that. . . . that's the way the game is played, . . . that's what happens, that's what the power brokers of this world do to people like you. Mainor also impermissibly asked the jurors to place themselves in Flick's position: I want you men to listen to these women because . . . there's things that a woman experiences that you don't . . . . [Y]ou're going to be able to tap in a little bit to their feelings, I think, as to fear. . . . [Flick's] afraid to be alone. She's afraid to take a bath because if she gets in the bathtub and she's sitting there enjoying a bath and has one of these things, she'd go in the water and she's dead. There's just hundreds of things like that. She's afraid . . . that if she gets married . . . to have a baby. I mean, think of . . . the human suffering that would occur if she gets pregnant and falls down and loses her baby or, worse yet, drops her baby and hurts her baby. After summarizing the evidence regarding medical expenses and lost income, Mainor told the jury the hard part would be calculating fair and reasonable compensation for Flick's pain and suffering, and lost job opportunities. Mainor indicated he would not trade places with Flick for ten million dollars and asked the jury: ........................................ Ð116 Nev. 812, 819 (2000) DeJesus v. FlickÐ Ð How do you compensate—well, how do you put a value on not using your fingers? I don't know. I mean, I don't know how you do that. . . . I wouldn't take ten million dollars if I had to do this. I like to play golf once in awhile. And if I couldn't play golf, I mean, I wouldn't die but I—I just would not do that. All of these arguments, and others not included here, were improper and inflammatory, and constituted egregious misconduct. Mainor's attack on Dr. Oliveri, as well as DeJesus, and his commentary on the virtues of Flick's cause, blatantly violated SCR 173, which provides that “[a] lawyer shall not . . . state a personal opinion as to the justness of a cause, the credibility of a witness, [or] the culpability of a civil litigant.” See Yates v. State, 103 Nev. 200, 204, 734 P.2d 1252, 1255 (1987) (improper to characterize a doctor's testimony as “melarky, ” “outright fraud” or to accuse the doctor of “crawl[ing] up on the witness stand”); Sipsas v. State, 102 Nev. 119, 125, 716 P.2d 231, 234 (1986) (improper to call a medical expert a “hired gun from Hot Tub Country” and “a living example of Lincoln's law [who] can fool all of the people enough of the time”); Owens v. State, 96 Nev. 880, 886, 620 P.2d 1236, 1239 (1980) (improper to argue that “I was brought up to believe that there is some good in all of us. For the life of me, on the evidence presented to me, I can't see the good in [this defendant]”). Further, Mainor impermissibly asked the jurors to place themselves in Flick's position when he asked them to “tap into feelings” about Flick's fears, in light of her physical condition, and to “send a message” to law firms that try to prevent injured persons from recovering (“that's what the power brokers of this world do to people like you”). We have previously held that such “golden rule” arguments are forbidden because they interfere with the jury's objectivity. See Boyd v. Pernicano, 79 Nev. 356, 358, 385 P.2d 342, 343 (1963) (improper to ask the jurors to place themselves in the shoes of the victim because such argument interferes with the objectivity of the jury); see also DuBois v. Grant, 108 Nev. 478, 481, 835 P.2d 14, 16 (1992) (golden rule argument is the impermissible suggestion that the jurors trade places with the victim); McGuire v. State, 100 Nev. 153, 158, 677 P.2d 1060, 1064 (1984). With respect to his “power broker” message, the fact that Mainor did not expressly remind the jury that Flick is “people like you” does not save him from a violation of the golden rule. He clearly asked the jurors to “allow such recovery as they would wish if in the same position.” Moreover, Mainor's “testimony” during his argument,

that he personally would not want to tradeWHQPLOOLRQGROODUVIRUWKHXVHRIKLVILQJHUVYLRODWHGWKH

JROGHQUXOH ........................................ Ð116 Nev. 812, 820 (2000) DeJesus v. FlickÐ Ð ten million dollars for the use of his fingers, violated the golden rule. While making this argument, he asked the jurors, “How do you put a value on not using your fingers?” He thus invited the jury to agree that neither would they make such a trade. [Headnote 9] Individually, Mainor's inappropriate remarks violated well-established standards of professional conduct. Taken cumulatively, Mainor's improper arguments so thoroughly permeated the proceeding that we are convinced they tainted the entire trial and resulted in a jury verdict that was the product of passion and prejudice. The $1,470,000.00 verdict plainly reflects the influence of counsel's improper arguments. There is simply no other explanation for it, particularly in light of the conflicting expert testimony regarding Flick's injuries. 4 The award far exceeds what counsel requested, and there is no objective basis in the record to support it. 5 It is apparent that the jury accepted Mainor's improper invitation to punish the “power brokers” and send a message to all the defense attorneys who try to shortchange people like Flick and themselves. Given Mainor's impropriety, DeJesus was deprived of a fair trial. 6 We therefore conclude that the district court abused its discretion in denying a new trial under NRCP 59(a)(2), misconduct by the prevailing party, and NRCP 59(a)(6), excessive damages awarded “under the influence of passion or prejudice.” __________ 4

See Boyd, 79 Nev. at 359, 385 P.2d at 343 (concluding that counsel's inappropriate statements are given more weight when a notable conflict in the evidence exists). 5

Counsel argued that Flick's future medical expenses would range between $30,000.00 and $35,000.00, but he miscalculated the total sum supported by the medical evidence; as previously noted, the evidence submitted to the jury supports an award of $21,000.00, at most. The jury disregarded the evidence and awarded Flick $100,000.00 for future medical expenses. Similarly, depending on the method of calculation used, counsel asked for $400,000.00 to $630,000.00 for Flick's future pain and suffering. The jury awarded $1,000,000.00. 6

The dissent offers as a possible alternative explanation for the unreliable verdict, that it was solely the result of the jurors' negative reaction to DeJesus's road rage conduct. After reading what is characterized in the concurring opinion as a record “replete with instances of serious misconduct by [Mainor] during the summation,” one cannot accept the dissent's theory. Of course, DeJesus's conduct was deplorable. And Mainor impermissibly capitalized on those facts to inflame the jury and to incite the jury to decide this case out of moral indignation against DeJesus and a desire to punish him. The verdict was in no way reliable as a reflection of the value of Sherry Flick's case. ........................................ Ð116 Nev. 812, 821 (2000) DeJesus v. FlickÐ Ð Accordingly, we reverse the district court's judgment and remand for a new trial on damages. 7 Young and Becker, JJ., concur.

Papez, D. J., concurring: The record in this case is replete with instances of serious misconduct by plaintiff's counsel during summation. Rather than “isolated instances” of misconduct as the dissent suggests, it appears to me that plaintiff's counsel, an accomplished trial attorney with over twenty years of experience, strayed across the permissible boundaries of argument with calculation and purpose. That purpose was realized in a verdict returned by the jury far in excess of what plaintiff requested. I believe the verdict was the product of counsel's calculated, repeated and seriously improper argument to the jury. Without question, the facts of this case are upsetting, and naturally evoke sympathy for plaintiff and anger toward defendant. A young woman's health and life have been drastically altered because of the acts of the defendant. Plaintiff deserves to be and should be compensated for these damages. Counsel's zeal for his client's cause does not, however, allow for departure from the ethical and procedural rules of fair play. Because the amount of compensation owed to plaintiff is in dispute, a jury in a neutral and impartial forum, free from passion or prejudice, must decide the damage claim. As stated in the Hamline Law Review, in an article entitled “Summation At The Border: Serious Misconduct In Final Argument In Civil Trials”: One speculates that litigators evaluate their own final argument misconduct, at least implicitly, by subjective standards such as motive and intent. In moral evaluations, if the ends are good, one tends to be more lenient when criticizing the means by which the ends were achieved. One may think, “A mistake was made, but he or she was trying to do the right thing.” Acts grounded in good motives tend to be treated more leniently than are acts grounded in bad motives—he or she was a good person, even if he or she did a bad thing. One would expect that litigators' evaluations of their own final DUJXPHQW PLVFRQGXFW WR EH FRQVFLRXVO\ RU VXEFRQVFLRXVO\

FRORUHGE\WKHRYHUDOO³JRRGQHVV´RIWKHLUFOLHQWRUWKHLUFODLP __________ 7

The Honorable Dan L. Papez, Judge of the Seventh Judicial District Court, was designated by the Governor to sit in place of The Honorable A. William Maupin, Justice. Nev. Const. art. 6, § 4. ........................................ Ð116 Nev. 812, 822 (2000) DeJesus v. FlickÐ Ð argument misconduct to be consciously or subconsciously colored by the overall “goodness” of their client or their claim, and the “justness” of the outcome sought. The litigator's platform is one of feeling that his or her motives are good, his or her client's motives are good, his or her claim is good, and the outcome he or she seeks is good. Conversely, a litigator may feel that opposing counsel is bad, the opposing party is bad, or the claims or the underlying conduct, or both, are bad. One cannot fail to see how annoying and aggravating it is to be faced with these factors, particularly in the focused, emotional atmosphere of a trial. Serious misconduct in final argument in civil trials may be the result of excesses on the part of well-intentioned counsel. Nonetheless, the objective approach to serious misconduct in final argument is the correct approach. Parties, whether popular or unpopular, must be permitted to make claims and defenses in a neutral and impartial system. Serious misconduct in final argument can never be justified, not even with reference to motive or intent. What matters the most is the type of conduct and its impact. 19 Hamline Law Review 179, 192-193 (1995). Because of the serious nature of the misconduct and the obvious impact on the verdict, this matter should be retried. Another troubling aspect of this case is what the dissent calls “a freewheeling atmosphere” in which the case was tried. Certainly it is the responsibility of counsel to make objections and seek rulings from the trial court to prevent “a freewheeling atmosphere” from developing. In my opinion, when serious misconduct occurs and is

not met by an objection, a trial judge has an obligation to intervene sua sponte to protect the litigant's right to a fair trial. See Sipas v. State, 102 Nev. 119, 125, 716 P.2d 231, 235 (1986). See also Casey v. Musgrave, 72 Nev. 31, 292 P.2d 1066 (1956) (a trial judge is charged with a superintending duty to regulate and control the course of proceedings in a trial); Schreier v. Parker, 415 So. 2d 794 (Fla. Dist. Ct. App. 1982) (arguments in derogation of professional conduct rules should not be condoned by a trial court, even absent objection); Wanner v. Keenan, 317 N.E. 2d 114 (Ill. App. Ct. 1974) (the trial judge is responsible for the justice of his judgments and has a duty to control the trial in order to ensure a just result); Paulsen v. Gateway Transportation Co., 252 N.E. 2d 406 (Ill. App. Ct. 1969) (if the argument of counsel is seriously prejudicial, the trial court sua sponte should stop the argument and direct the jury not to consider it); N.Y. Central R.R. Co. v. Johnson, 279 U.S. 310 (1929) (every litigation should be conducted fairly and impartially andWKHSXEOLFLQWHUHVWUHTXLUHVWKDWDWULDO

FRXUWVXDVSRQWHH[HUFLVHLWVSRZHUDQGGXW\WRSURWHFWOLWLJDQWVLQWKHLUULJKWWRDYHUGLFW ........................................ Ð116 Nev. 812, 823 (2000) DeJesus v. FlickÐ Ð the public interest requires that a trial court sua sponte exercise its power and duty to protect litigants in their right to a verdict, uninfluenced by the appeals of counsel to passion or prejudice). If the trial judges of Nevada would aggressively intervene in instances of serious misconduct by counsel where no objection is tendered, it would seem to me that appellate litigation in this area would be greatly reduced. Rose, C. J., with whom Shearing and Leavitt, JJ., agree, dissenting: This is a case about the road rage conduct of Kenneth DeJesus that caused a substantial permanent brain injury to Sherry Flick. The majority concludes that the jury's award be reversed because Sherry's attorney made improper statements, despite the fact these statements were not objected to. I disagree. I believe that some of the statements that were not objected to were not improper. I further believe that those statements that were improper did not so pervade the trial with prejudice as to require the reversal of this case. I would therefore affirm the judgment entered below, except for the award for future medical expenses, which I would reduce to an amount supported by the evidence. Sherry sustained serious injuries while riding as a passenger in a vehicle driven by her sister on the freeway. Because DeJesus believed that Sherry's sister had cut him off in traffic, DeJesus began tailgating the Flick vehicle. DeJesus then pulled ahead and cut the Flick vehicle off, forcing it into the dirt and bushes in the median. The force of the impact with the median broke the axle of the Flick vehicle, disabling the car. Upon leaving his vehicle, DeJesus leaned over the front hood of the Flick car, pounded his fists on the front windshield, and demanded that Sherry and her sister exit their car. Sherry and her sister were paralyzed with fear, and Sherry testified that DeJesus made a throat-slashing gesture signaling “that he was going to cut my throat or kill me or Julie or the people who were there.” DeJesus then left the scene of the accident, but later returned. Upon his return to the scene, DeJesus was cited for misdemeanor assault for cutting off the Flick vehicle, and pleaded guilty to this charge. Thereafter, Flick filed a negligence action against DeJesus. Prior to trial, DeJesus's attorneys admitted liability, and then attempted to suppress the inflammatory facts concerning DeJesus's conduct. The district court denied this attempt to conceal DeJesus's inflammatory acts, and even the majority agrees that these facts were admissible and relevant to Sherry's physical and emotional injuries caused by DeJesus. ........................................ Ð116 Nev. 812, 824 (2000) DeJesus v. FlickÐ Ð Because of the inflammatory nature of DeJesus's conduct, I believe that it is more likely that the jury was inflamed by his road rage, rather than Sherry's attorney's statements. Indeed, DeJesus's conduct was so egregious that going into this trial, anyone could have predicted that the jury would give top dollar for any injuries it

believed Sherry sustained. We will affirm a jury verdict that is alleged to be excessive provided it is supported by substantial evidence. See Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 955 P.2d 661 (1998). There was substantial, although contradicting, evidence presented to support the jury's award of damages. Although DeJesus's experts opined that Sherry did not have any serious injuries, Sherry's neurologist and medical expert testified that she had sustained a moderate brain injury from the accident and would have periodic spells of dizziness and blackouts for the rest of her life. Sherry's neurologist further testified that Sherry had permanently damaged the nerves in her hands, resulting in numbness and the clawing of her fingers. Shortly after the accident, Sherry testified that she would fall when she blacked out, resulting one time in black eyes and another time in burns from hot asphalt on her hands, knees, and legs. Sherry further testified that she was afraid to become a mother because she might black out and injure her baby, and that she was afraid she would lose her driver's license and eventually be unable to drive because of her blackouts. While damages were high in this matter, they nonetheless are supported by substantial evidence provided the jury believed the physicians who testified in Sherry's favor. Again, when considering that Sherry's injuries were essentially the product of road rage, a recent phenomenon that has many drivers fearing for their safety on the streets, the high verdict in this case should have surprised no one. 1 In reviewing whether an attorney's improper statements affect the verdict, this court considers whether Sherry's attorney's statements were so prejudicial and egregious that they infected the entire trial so that the judgment could only be the result of thatPLVFRQGXFW __________ 1

DeJesus cites an offer of judgment made by Sherry to settle for $100,000.00. Offers of judgment are made for several reasons and often have no relation to the value of the offering party's case. Specifically, offers are often made for a defendant's insurance policy limits, but the insurance company is unwilling to pay the policy limits to an injured plaintiff. By refusing to pay the policy limits, the risk of an excess verdict is transferred to the insurance company. See, Green v. J.C. Penney Auto Ins. Co., 806 F.2d 759, 763-64 (7th Cir. 1986); 46A C.J.S. Insurance § 1584 (1993). While settlement negotiations are usually not part of the record on appeal, I would suspect that Sherry's offer to settle for $100,000.00 was a demand for the policy limits and made to obtain a strategical advantage once the insurance company refused to pay, and not made because Sherry thought $100,000.00 was the value of her case. ........................................ Ð116 Nev. 812, 825 (2000) DeJesus v. FlickÐ Ð misconduct. See Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689 (1995). I conclude that the proceeding below was not so prejudicial and egregious as to warrant reversal, and the high verdict was in all probability the result of DeJesus's road rage conduct. Preliminarily I note that several statements made in closing argument and characterized as improper do not seem improper to me. Sherry's attorney argued that in considering future damages, the men on the jury should consider the problems and emotional trauma Sherry would experience if she became pregnant. While perhaps inartfully phrased, any concern that Sherry's attorney was asking the male jurors to put themselves in Sherry's place could have been cured by an objection that would have simply resulted in Sherry's attorney rephrasing his argument. Further, Sherry's attorney's statement that the jury should tap into Sherry's feelings of fear likewise is not improper because it was a mere reference to the evidence presented, namely Sherry's testimony concerning her fear, and not a request for the jurors to place themselves in Sherry's place. At another point in closing argument, Sherry's attorney commented that the jury had the right to reject Oliveri's medical testimony because his testimony was bought and paid for. I believe that this was a permissible argument in light of both Oliveri's large fee and the starkly contradicting medical testimony presented by the parties. First, during cross-examination of Dr. Oliveri, Sherry's attorney elicited the fact that he was charging a total of $5000.00 for his testimony. Second, Dr. Oliveri's statement that Sherry was able to stand with her eyes

closed without losing her balance was directly contradicted by Sherry's father, who testified that Sherry fell backwards when performing this test in Dr. Oliveri's presence. Third, Dr. Oliveri testified that Sherry's symptoms were inconsistent with a brain injury, while Sherry's doctors testified to the contrary. It can be inferred from the aforementioned evidence in the record that Dr. Oliveri's testimony was misleading and paid for by excessive fees. I see nothing wrong with a party arguing that the medical testimony produced by the opposing party was the result of something other than objective assessment where that party has produced contradicting evidence. I do agree with the majority, however, that the continuing argument by Sherry's attorney that this is how the system works, how civil defense attorneys secure the desired testimony, and that the verdict should punish all civil defense attorneys was improper in a negligence action where punitive damages are disallowed. However, Sherry's attorney did not object to these arguments. Moreover, the record reveals that both plaintiff's and defendant's attorneys permitted a lot of testimony and argument into evidenceZLWKRXWREMHFWLRQFUHDWLQJ

DIUHHZKHHOLQJDWPRVSKHUHWKDWWKHGLVWULFWFRXUWSHUPLWWHG ........................................ Ð116 Nev. 812, 826 (2000) DeJesus v. FlickÐ Ð without objection, creating a freewheeling atmosphere that the district court permitted. In civil cases, we place great reliance on the advocacy system and require the attorneys for the parties to present their case competently and to timely state all objections. If evidence or argument is not objected to, it cannot be later claimed as grounds for reversal unless it can be determined that plain error occurred that prejudiced and inflamed the jury. Other courts have faced factual situations very similar to the one presented here, and these courts have developed a rule that would better compliment our holding in Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689 (1995). See Horn v. Atchison, Topeka and Santa Fe Ry. Co., 394 P.2d 561, 565 (Cal. 1964); Neumann v. Bishop, 130 Cal. Rptr. 786, 811-12 (Ct. App. 1976); Budget Rent A Car Sys., Inc. v. Jana, 600 So. 2d 466, 467-68 (Fla. Dist. Ct. App. 1992). In Horn, the California Supreme Court concluded that the remarks of plaintiff's counsel had created an atmosphere of bias and prejudice that was manifestly calculated to deprive the defendant of a new trial. 394 P.2d at 565. Despite this conclusion, the court affirmed the jury's verdict for plaintiff and held that the defendant had waived his right to complain by failing to object: Generally, a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished. The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeated improprieties, thus avoiding the necessity of a retrial. “It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have.” In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice. Horn, 394 P.2d at 565-66 (emphasis added) (citations omitted) (quoting Tingley v. Times-Mirror Co., 89 P. 1097, 1106 (Cal. 1907)). Numerous other California courts have followed the holding in Horn and affirmed verdicts where there was improper trial conduct to which the opposing attorney failed to object. For example,LQ6DEHOODY6RXWKHUQ

3DFLILF&R3G&DO  ........................................ Ð116 Nev. 812, 827 (2000) DeJesus v. FlickÐ Ð

in Sabella v. Southern Pacific Co., 449 P.2d 750, 754 (Cal. 1969), the court affirmed a verdict for plaintiff despite the fact that plaintiff's counsel had accused the defense witnesses of committing perjury, appealed to the jurors' sympathies through repeated references to both the defendant's wealth and plaintiff's lack of resources, and made an improper golden rule argument. Similarly, in Neumann, 130 Cal. Rptr. at 811-12, the court concluded that plaintiff's counsel had made numerous improper arguments, including several improper golden rule arguments, an argument that pain and suffering should be four times the special damages, and an erroneous argument that the defendant had a right to indemnity. Despite this impropriety, the court affirmed the jury verdict and held that the defense counsel had waived its claim of error by failing to object or by making an inadequate objection. See Neumann, 130 Cal. Rptr. at 812. The court further concluded that the jury's award was not so “grossly excessive as to shock the moral sense so that the trial court as well as the jury can be deemed to have succumbed to passion or prejudice.” Id. at 814. The Florida courts, like California, have also recognized that the failure to object to an attorney's improper argument in a civil case generally constitutes a waiver of the right to appeal this issue. In Budget Rent A Car Systems, Inc. v. Jana, 600 So. 2d 466, 467- 68 (Fla. Dist. Ct. App. 1992), the court held that although the plaintiff's attorney clearly made arguments “in violation of the well known golden rule,” review of this issue was precluded, as the defense counsel did not object and the arguments made were not “sinister”: This court has held that, absent contemporaneous objection, an improper comment made during closing remarks will not support reversal. In [one Florida appellate case] this court held that failure to object below to improper comments made in closing remarks constitutes a waiver of any right to complain on appeal. It is only in those rare circumstances where the comments are “of such sinister influence as to constitute irreparable and fundamental error” that the absence of objection will be overlooked. Id. at 467-68 (emphasis added) (citations omitted) (quoting LeRetilley v. Harris, 354 So. 2d 1213 (Fla. Dist. Ct. App. 1978)). As in California and Florida, our review should narrow where there is no objection in order to discourage the needless waste of judicial resources required for a new trial. See generally McGuire v. State, 100 Nev. 153, 158-59, 677 P.2d 1060, 1065 (1984) (discussing the costs associated with attorney misconduct). Indeed,WKH

IDLOXUH WR REMHFW IUXVWUDWHV WKH GLVWULFW FRXUW V DELOLW\ WR DGPRQLVK WKH MXU\ DQG LQVWUXFW FRXQVHO VR WKDW LW PD\ IRUHVWDOO WKH DFFXPXODWLRQ RI SUHMXGLFH WKHUHE\ DYRLGLQJ WKH QHFHVVLW\RIDQHZWULDO ........................................ Ð116 Nev. 812, 828 (2000) DeJesus v. FlickÐ Ð the failure to object frustrates the district court's ability to admonish the jury and instruct counsel so that it may forestall the accumulation of prejudice, thereby avoiding the necessity of a new trial. See Horn, 394 P.2d at 565. I am concerned that this case will increase appellate litigation. In the future, this court will be required to review many more civil cases where improper argument is claimed but no objection was made at trial. Adopting the rule espoused in Horn, Neumann, and Budget Rent A Car would prevent this situation from occurring. Sherry sustained permanent brain damage from the road rage conduct of DeJesus. Substantial evidence supported the admittedly high jury award. I am convinced, however, that if the jury was in any way inflamed, such passion was caused by the conduct of DeJesus and not by a few improper statements made by Sherry's attorney. I would affirm the verdict with the exception that I would reduce future medical expenses to the evidence presented. Accordingly, I dissent to the majority opinion.

____________

Ð116 Nev. 828, 828 (2000) English v. StateÐ Ð Ð ROBERT BARNES ENGLISH, JR., Appellant, v. THE STATE OF NEVADA, Respondent. No. 33055 August 24, 2000

9 P.3d 60

Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of battery constituting domestic violence while having two or more prior convictions of battery constituting domestic violence within seven years. Second Judicial District Court, Washoe County; Steven P. Elliott, Judge. Defendant was convicted in the district court on his plea of guilty to one count of battery constituting domestic violence while having two or more prior convictions of battery constituting domestic violence within seven years. Defendant appealed. The supreme court, Agosti, J., held that: (1) defendant's prior conviction for domestic battery, which occurred prior to effective date of domestic violence enhancement law, could be used to enhance penalty for defendant's present conviction for battery constituting domestic violence; and (2) documents relating to defendant's prior conviction for domestic battery constituted sufficient evidence of defendant's prior domestic battery conviction for enhancement purposes. Affirmed. Leavitt, J., with whom Rose, C. J., and Young, J., joined, dissented. ........................................ Ð116 Nev. 828, 829 (2000) English v. StateÐ Ð Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender, Washoe County, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe County, for Respondent. 1. Constitutional Law. Alleging a prior conviction in a complaint or information where the state seeks to enhance the conviction from a misdemeanor to a felony or increase the misdemeanor penalty comports with the procedural due process consideration of notice. U.S. Const. amend. 14. 2. Sentencing and Punishment. Defendant's prior conviction for domestic battery, which occurred prior to effective date of domestic violence enhancement law, could be used to enhance penalty for defendant's present conviction for battery constituting domestic violence. NRS 200.485. 3. Statutes. No rule of statutory construction requires that a penal statute be strained and distorted to exclude conduct clearly intended to be within its scope. 4. Statutes. A statute should be construed in light of the policy and the spirit of the law, and the interpretation should avoid absurd results. 5. Statutes. When interpreting a statute, supreme court resolves any doubt as to legislative intent in favor of what is reasonable, and against what is unreasonable. 6. Sentencing and Punishment. Criminal complaint, signed waiver of rights form, and two pages of handwritten notes, which appeared to be municipal court clerk's notes of proceedings, taken as a whole, constituted sufficient evidence of defendant's prior domestic battery conviction for enhancement purposes, and thus prior conviction could be used to enhance defendant's subsequent conviction for battery constituting domestic violence. NRS 200.485.

Before the Court En Banc.

OPINION By the Court, Agosti, J.: The issues raised in this appeal are: (1) whether convictions for battery constituting domestic violence occurring prior to January 1, 1998, may be used to enhance the penalty of a subsequent conviction for battery constituting domestic violence under NRS 200.485; and (2) whether the evidence of a prior misdemeanor conviction demonstrated its constitutional validity for enhancement purposes. We conclude that convictions occurring prior to January 1, 1998, may be used to enhance the penalty of the appellant's present conviction. We also conclude that the district courtSURSHUO\GHWHUPLQHGWKDWWKHHYLGHQFH

SUHVHQWHGUHODWLQJWRDSSHOODQW VSULRUFRQYLFWLRQGHPRQVWUDWHGWKHFRQVWLWXWLRQDOYDOLGLW\ RIWKDWFRQYLFWLRQIRUHQKDQFHPHQWSXUSRVHV ........................................ Ð116 Nev. 828, 830 (2000) English v. StateÐ Ð properly determined that the evidence presented relating to appellant's prior conviction demonstrated the constitutional validity of that conviction for enhancement purposes. We therefore affirm appellant's conviction. FACTS On May 13, 1998, appellant Robert Barnes English, Jr., battered his live-in girlfriend. He was charged by criminal information with a felony crime that was denominated as “domestic battery, a violation of NRS 33.018, NRS 200.481 and NRS 200.485.” To enhance English's crime to a felony under NRS 200.485, the information alleged that English was previously convicted of battery constituting domestic violence on September 28, 1995 and February 11, 1998. [Headnote 1] After English pleaded guilty, the prosecutor provided the district court with copies of records concerning English's prior domestic battery convictions. 1 English conceded that the documents evidencing his February 1998 conviction were valid proof of a prior conviction for enhancement purposes. However, he challenged the use of the documents relating to his September 1995 conviction. English argued that this conviction could not be used to enhance the penalty of his present offense because NRS 200.485 does not permit convictions that occurred prior to January 1, 1998, to be used for enhancement purposes. He further argued that this conviction could not be used for enhancement purposes because the documents provided to the district court do not show that constitutional principles were respected in the prior misdemeanor proceedings. __________ 1

The original criminal complaint alleged that English had previously been convicted of an offense constituting domestic battery on January 5, 1995, September 28, 1995, August 9, 1996, and February 11, 1998. The subsequent information filed against English alleged only the September 1995 and February 1998 convictions. The State presented documents at the arraignment evidencing all four of English's prior misdemeanor convictions, but the district court only considered the documents relating to the convictions alleged in the complaint. On appeal, the State argues that the district court should have considered the records relating to all four convictions because unlike NRS 484.3792(2), which requires that the prior offenses of driving under the influence must be alleged in the complaint, indictment or information in order for such offenses to be used to enhance the penalty for a subsequent conviction, NRS 200.485 does not contain such a requirement. Because we conclude that English's September 1995 conviction is constitutionally valid for enhancement purposes, we need not address the State's argument at this time, except to observe, in passing, that alleging a prior conviction in a complaint or information where the state seeks to enhance the conviction from a

misdemeanor to a felony or increase the misdemeanor penalty comports with the procedural due process consideration of notice.

........................................ Ð116 Nev. 828, 831 (2000) English v. StateÐ Ð The district court disagreed and used English's September 1995 and February 1998 convictions to enhance to a felony the conviction from which he now appeals. The district court entered judgment against English and sentenced him to imprisonment for a minimum term of twelve months to a maximum term of thirty-six months, to run concurrently with any sentence English was currently serving. English then filed this appeal. DISCUSSION Whether a conviction for battery constituting domestic violence occurring prior to January 1, 1998, may be used to enhance the penalty of the present conviction under NRS 200.485 [Headnote 2] In July 1997, the Nevada Legislature passed Assembly Bill 170 (“the domestic violence enhancement law”), which sought to ensure the effective prosecution of crimes involving domestic violence. 1997 Nev. Stat., ch. 476, § 1, at 1799. Section 18 of that bill increases the severity of the offense and consequent penalty for battery constituting domestic violence from a misdemeanor to a felony when the defendant has two prior convictions for the same offense within the immediately preceding seven years. Id., § 18, at 1811-12. Section 18 is codified at NRS 200.485, which provides, in part: 1. Unless a greater penalty is provided pursuant to NRS 200.481, a person convicted of a battery that constitutes domestic violence pursuant to NRS 33.018: (a) For the first offense within the immediately preceding 7 years, is guilty of a misdemeanor . . . . (b) For the second offense within the immediately preceding 7 years, is guilty of a misdemeanor . . . . (c) For the third and any subsequent offense within the immediately preceding 7 years, is guilty of a category C felony and shall be punished as provided in NRS 193.130. This provision of the domestic violence enhancement law took effect on January 1, 1998. 1997 Nev. Stat., ch. 476, § 34(4), at 1821. Section 32 of the domestic violence enhancement law provides that “[s]ections 18 and 19 of this act do not apply to offenses that are committed before January 1, 1998.” 1997 Nev. Stat., ch. 476, § 32, at 1821 (emphasis added). English contends that this latter provision is ambiguous because it could be interpreted to have two different meanings. One interpretation is that “offenses” committed before January 1, 1998, cannot be enhanced using prior convictions. The other interpretation is that convictions which occurred before January 1, 1998, cannot be used to enhance the penalty of a present conviction. ........................................ Ð116 Nev. 828, 832 (2000) English v. StateÐ Ð English asks this court to conclude that the legislature intended the latter meaning. We must decline English's request. [Headnotes 3-5] English argues that because the statute is ambiguous, it must be construed in his favor. See Shrader v. State, 101 Nev. 499, 505- 06, 706 P.2d 834, 838 (1985) (“criminal statutes must be liberally construed in favor of the accused when resolving ambiguities”). However, “no rule of construction requires that a penal statute be strained

and distorted to exclude conduct clearly intended to be within its scope.” Polson v. State, 108 Nev. 1044, 1047 n.4, 843 P.2d 825, 827 n.4 (1992). “A statute should be construed in light of the policy and the spirit of the law, and the interpretation should avoid absurd results.” Hunt v. Warden, 111 Nev. 1284, 1285, 903 P.2d 826, 827 (1995). “When interpreting a statute, this court resolves any doubt as to legislative intent in favor of what is reasonable, and against what is unreasonable.” Id. English's claim that the statute is ambiguous and consequent request for construction of the statute in his favor leads to a result which is strained and distorted. Therefore, we decline to interpret section 32 of the domestic violence enhancement law to mean that offenses occurring prior to January 1, 1998, cannot be used to enhance a current conviction. The legislature intended as a matter of public policy that convictions of battery constituting domestic violence occurring before the law's effective date could be used for enhancement purposes. Assemblywoman Genie Ohrenschall testified before the Senate Committee on Judiciary that “domestic violence was characterized particularly by its repetitive nature” and that the domestic violence enhancement law sought to reduce the high rate of recidivism by providing “a comprehensive program to combat the problem of domestic violence.” 2 Ohrenschall stressed that “all the efforts under this bill were to prevent the third offense from ever happening.” 3 It is difficult to reconcile Assemblywoman Orenschall's remarks with the interpretation of the statute proffered by English. It is evident that in enacting section 32 of the domestic violence law, the legislature intended to preclude an offense that was committed prior to January 1, 1998, from being enhanced using prior convictions. For example, a battery constituting domestic violence which occurred on December 31, 1997 (New Year's Eve), or at a 1997 holiday party cannot be enhanced using prior convictions even though the state filed its complaint after January 1, 1998. __________ 2

Hearing on A.B. 170 Before the Senate Comm. on Judiciary, 69th Leg. at 235-36 (Nev., June 27, 1997).

3

Id. at 239, 240. ........................................

Ð116 Nev. 828, 833 (2000) English v. StateÐ Ð Accordingly, we conclude that the legislature intended that domestic battery convictions occurring before the effective date of the domestic violence enhancement law may be used for enhancement purposes. English provides no reason, nor can we discern any reason, why the legislature would allow current habitual domestic batterers to avoid immediate enhancement penalties once the domestic violence enhancement law took effect. This law places repeat offenders on notice that they will be charged with a felony if their next charge of domestic battery constitutes a third offense. It would be unreasonable to interpret the law in a way that would allow current habitual domestic batterers to commit two more offenses after January 1, 1998, before their next conviction could be enhanced to a felony under NRS 200.485(1)(c). To further support his position, English analogizes NRS 200.485 to Nevada's current DUI enhancement law, as amended in 1983. 4 Specifically, English points to section 35 of A.B. 167 (“DUI bill”), wherein the legislature provided July 1, 1976, as a starting date from which prior DUI convictions could be used to enhance the penalty for a subsequent conviction. That section reads: In extending to 7 years the period during which prior [DUI] offenses may be considered, the legislature intends that any offense as defined in subsection 6 of section 10 of this act which occurred on or after July 1, 1976, and is evidenced by a conviction be considered a prior offense for the purposes of this act. 1983 Nev. Stat., ch. 426, § 35, at 1089. English contends that if the legislature had intended that domestic battery offenses occurring before January 1, 1998, be used to enhance the penalty for a subsequent offense, it would have similarly included a starting date.

We conclude that English's argument is without merit. In amending the DUI enhancement law in 1983, the legislature extended from five to seven years the period from which prior DUI convictions could be considered for enhancement purposes. 5 By providing a starting date in section 35 of the DUI bill the legLVODWXUHPHUHO\

VRXJKWWRDYRLGDQ\FRQIXVLRQFUHDWHGE\WKHH[WHQVLRQRIWLPHIURPILYHWRVHYHQ\HDUV __________ 4

See NRS 484.3792 which provides, in part: 1. A person who violates the provisions of NRS 484.379: (a) For the first offense within 7 years, is guilty of a misdemeanor . . . . (b) For a second offense within 7 years, is guilty of a misdemeanor . . . . (c) For a third or subsequent offense within 7 years, is guilty of a category B felony . . . .

5

1983 Nev. Stat., ch. 426, § 8, at 1068-69 deleted the subsections of NRS 484.379 which provided enhanced penalties for DUI convictions when the ........................................ Ð116 Nev. 828, 834 (2000) English v. StateÐ Ð islature merely sought to avoid any confusion created by the extension of time from five to seven years. 6 By contrast, in enacting the domestic violence enhancement law, the legislature did not need to provide a starting date to avoid confusion. Since the domestic violence enhancement law took effect on January 1, 1998, it necessarily follows that January 1, 1991, is the starting date from which prior convictions can be used for enhancement purposes. Indeed, by providing a starting date seven years before the amendments to the DUI enhancement law took effect, the legislature clearly revealed its intention that DUI convictions occurring prior to the effective date of that law be considered for enhancement purposes. Because the domestic violence enhancement law was modeled after the DUI bill, 7 domestic violence convictions which occurred prior to the effective date of the domestic violence enhancement law must similarly be considered for enhancement purposes. See State Farm Mut. v. Comm'r of Ins., 114 Nev. 535, 541, 958 P.2d 733, 737 (1998) (noting that the “meaning of a statute may be determined by referring to laws which are ‘in pari materia' ” i.e., “when they relate to the same person or things, to the same class of persons or things, or have the same purpose or object”). English also contends that any conviction prior to the enactment of the statute could not be used for enhancement purposes because the offense of battery constituting domestic violence did not exist prior to the effective date of the domestic violence enhancement law. The definition and penalties for battery constituting domestic violence is codified at NRS 200.485 which took effect on January 1, 1998. Subsection (6)(b) of that statute provides that: “Offense” includes a battery which constitutes domestic violence pursuant to NRS 33.018 or a violation of the law of any other jurisdiction that prohibits the same or similar conduct. NRS 33.018 provides that domestic violence occurs when a person commits a battery against or upon one of the following persons: __________ defendant had prior DUI convictions in the preceding five years. 1983 Nev. Stat., ch. 426, § 10, at 1070-71 added NRS 484.3792 which provides enhanced penalties for DUI convictions when the defendant has prior DUI convictions within the preceding seven years. 6

See Hearing on A.B. 167 Before the Senate Comm. on Transp., the Assembly Comm. on Transp., and the Assembly Comm. on Judiciary, 62nd Leg. at 19 (Nev., February 17, 1983) (stating that the DUI legislative

subcommittee believed that the five-year prior offense period should be extended to seven years). 7

Hearing on A.B. 170 Before the Senate Comm. on Judiciary, 69th Leg. at 239, 244 (Nev., June 27, 1997). ........................................

Ð116 Nev. 828, 835 (2000) English v. StateÐ Ð his spouse, former spouse, any other person to whom he is related by blood or marriage, a person with whom he is or was actually residing, a person with whom he has had or is having a dating relationship, person with whom he has a child in common, the minor child of any of those persons or his minor child. The legislature did not create a new crime by the passage of this statute. At the time English committed his prior offense in 1995, the former version of NRS 200.481, the general battery statute, subjected those who committed a battery upon someone with whom they had a domestic relationship to the possibility of an increased penalty. Former NRS 200.481(2)(a) gave the sentencing court the option of requiring the defendant to participate in counseling if the defendant committed the battery upon: his spouse, former spouse, a person to whom he is related by blood, a person with whom he is or was actually residing or with whom he has a child in common, his minor child or a minor child of that person. 1987 Nev. Stat., ch. 232, § 1, at 515. This is virtually the same definition of a battery constituting domestic violence pursuant to NRS 33.018. By enacting the domestic violence enhancement law, the legislature simply moved the provisions concerning the crime of battery constituting domestic violence from NRS 200.481 to 200.485 and provided new enhanced penalties when the defendant had prior convictions. We therefore disagree with English's assertion that the legislature created a new crime by enacting the domestic violence enhancement law. Whether the documents evidencing English's September 1995 misdemeanor conviction were adequate for enhancement purposes [Headnote 6] English also contends that the documents evidencing his September 1995 conviction fail to show that constitutional principles were respected in obtaining that conviction, and that it is unclear if he was represented by counsel or waived his right to counsel. We conclude that these contentions lack merit. In Dressler v. State, 107 Nev. 686, 697, 819 P.2d 1288, 1295 (1991), this court held that “in order to rely on a prior misdemeanor judgment of conviction for enhancement purposes, the state had the burden of proving either that the defendant was represented by counsel or validly waived that right, and that the spirit of constitutional principles was respected in the prior misdemeanor proceedings.” Documents relating to English's September 1995 conviction included the criminal complaint, a signed waiver of rights form,DQGWZRSDJHVRIKDQGZULWWHQQRWHV ........................................ Ð116 Nev. 828, 836 (2000) English v. StateÐ Ð and two pages of handwritten notes, which appear to be the municipal court's notes of the proceedings. We consider this sufficient evidence of English's 1995 conviction, when taken as a whole and in consideration of the realities of misdemeanor prosecutions. See Pettipas v. State, 106 Nev. 377, 794 P.2d 705 (1990) (formal, written judgment of conviction not required if other documents, such as docket sheets, evidence the conviction); Isom v. State, 105 Nev. 391, 776 P.2d 543 (1989) (citation and plea are sufficient evidence of conviction; complaint, plea, and sentence are sufficient evidence of conviction). We conclude that the district court did not err by finding that these documents evidenced English's September 1995 conviction by a preponderance of the evidence. See Dressler, 107 Nev. at 693, 819 P.2d at

1293 (question of constitutionality of prior conviction decided by a preponderance of the evidence). The municipal court notes indicate that English pleaded guilty to domestic battery in the Reno Municipal Court on September 26, 1995. Although the waiver of rights form does not have a case number on it, English signed this form on the same day. Therefore, it appears that the waiver form relates to the same case. The waiver form is also signed by English's attorney. The municipal court notes also indicate that English was sentenced for this offense on September 28, 1995. The court notes indicate that English's attorney was present at his sentencing hearing. Together, these documents constitute sufficient evidence of English's September 1995 conviction of domestic battery for enhancement purposes. CONCLUSION We conclude that a conviction for battery constituting domestic violence occurring prior to January 1, 1998, may be used to enhance a subsequent conviction of battery constituting domestic violence under NRS 200.485. We further conclude that the documents relating to English's September 1995 conviction were adequate to show that English was represented by counsel and that the spirit of constitutional principles was respected in the prior misdemeanor proceedings. Accordingly, we affirm English's judgment of conviction. Shearing, J., concurs. Maupin, J., with whom Becker, J., agrees, concurring: Effective January 1, 1998, NRS 200.485 prescribes the penalties attendant to convictions for violations of NRS 33.018. ........................................ Ð116 Nev. 828, 837 (2000) English v. StateÐ Ð 1. Unless a greater penalty is provided pursuant to NRS 200.481, a person convicted of a battery that constitutes domestic violence pursuant to NRS 33.018: (a) For the first offense within the immediately preceding 7 years, is guilty of a misdemeanor and shall be sentenced to: (1) Imprisonment in the city or county jail or detention facility for not less than 2 days, but not more than 6 months; and (2) Perform not less than 48 hours, but not more than 120 hours, of community service. The person shall be further punished by a fine of not less than $200, but not more than $1,000. A term of imprisonment imposed pursuant to this paragraph may be served intermittently at the discretion of the judge or justice of the peace, except that each period of confinement must be not less than 4 consecutive hours and must occur either at a time when the person is not required to be at his place of employment or on a weekend. (b) For the second offense within the immediately preceding 7 years, is guilty of a misdemeanor and shall be sentenced to: (1) Imprisonment in the city or county jail or detention facility for not less than 10 days, but not more than 6 months; and (2) Perform not less than 100 hours, but not more than 200 hours, of community service. The person shall be further punished by a fine of not less than $500, but not more than $1,000. (c) For the third and any subsequent offense within the immediately preceding 7 years, is guilty of a category C felony and shall be punished as provided in NRS 193.130. The legislature went on to provide that sections 18 and 19 of Assembly Bill 170 “do not apply to offenses that are committed before January 1, 1998.” The quoted language does not create an ambiguity as to whether convictions for offenses prior to that date may or may not be used for enhancement of offenses committed after

that date. It simply delineates how offenses committed after that date are to be treated for sentencing purposes. There being no language relating to when convictions must be committed to be considered for enhancement purposes, there is no ambiguity to resolve. The plain meaning of the provision is that, when an offense committed after January 1, 1998, is the third suchRIIHQVHFRPPLWWHGZLWKLQDVHYHQ\HDUSHULRGLW

LVVXEMHFWWRHQKDQFHPHQW ........................................ Ð116 Nev. 828, 838 (2000) English v. StateÐ Ð offense committed within a seven-year period, it is subject to enhancement. It is therefore unnecessary to resort to alternate rules of statutory construction to resolve this appeal. See State v. Jepsen, 46 Nev. 193, 196, 209 P. 501, 502 (1922) (declining resort to judicial construction when the language of a statute is unambiguous). Leavitt, J., with whom Rose, C. J., and Young, J., join, dissenting: As early as 1896 this court held that a penal statute “requires a strict construction when against a citizen, but a liberal one in his favor.” State v. Wheeler, 23 Nev. 143, 152, 44 P. 430, 431-32 (1896). The proposition was reaffirmed recently when we stated “this court will narrowly construe penal statutes where they are ambiguous.” Buschauer v. State, 106 Nev. 890, 896, 804 P.2d 1046, 1049 (1990) (citing Carter v. State, 98 Nev. 331, 334-35, 647 P.2d 374, 376 (1982)). See also Bradvica v. State, 104 Nev. 475, 478, 760 P.2d 139, 141 (1988); Anderson v. State, 95 Nev. 625, 629-30, 600 P.2d 241, 243 (1979); Smith v. District Court, 75 Nev. 526, 528, 347 P.2d 526, 527 (1959). The Nevada Legislature in 1997 passed a statute creating a crime, “battery that constitutes domestic violence,” which is penal in nature. It makes a battery that constitutes domestic violence pursuant to NRS 33.018 a separate crime from a simple battery and enhances a domestic violence battery to a felony after two prior misdemeanor convictions. Prior to the passage of the new law, a battery that constituted domestic violence pursuant to NRS 33.018, was treated as a simple battery and prosecuted under NRS 200.481, which defines battery as “any willful and unlawful use of force or violence upon the person of another.” Since this is a penal statute creating a crime, an interpretation of the law requires a strict, narrow construction and one that is liberal in favor of a defendant. Although the majority's “interpretation of the statutory language is not unreasonable, it is one of two reasonable interpretations. Therefore, the statute is ambiguous and it must be read narrowly in accordance with [English's] equally tenable interpretation.” Buschauer, 106 Nev. at 896, 804 P.2d at 1049. “ ‘[W]here an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject, and against the legislature which has failed to explain itself.' ” Wheeler, 23 Nev. at 153-54, 44 P. at 432 (quoting Endlich, Stat. Int., sec. 330). “ ‘Penal statutes should be so clear as to leave no room for doubt as to the intention of the legislature, and where a reasonable doubt does exist as to whether the person charged with a violation of its provisions is within theVWDWXWHWKDWGRXEWPXVWEHUHVROYHGLQIDYRURIWKHLQGLYLGXDO ........................................ Ð116 Nev. 828, 839 (2000) English v. StateÐ Ð statute, that doubt must be resolved in favor of the individual.' ” Sheriff v. Hanks, 91 Nev. 57, 60, 530 P.2d 1191, 1193 (1975) (quoting Ex Parte Davis, 33 Nev. 309, 318, 110 P. 1131, 1135 (1910)). “We have repeatedly held that where there is ambiguity in the language of a penal statute, ‘that doubt must be resolved in favor of the individual.' ” Demosthenes v. Williams, 97 Nev. 611, 614, 637 P.2d 1203, 1204 (1981) (quoting Ex Parte Davis, 33 Nev. at 318, 110 P. at 1135). “The purpose of this rule is to impose criminal liability only in cases where the accused had adequate notice of the act forbidden.” Bradvica, 104 Nev. at 478, 760 P.2d 141. The majority cites Polson v. State, 108 Nev. 1044, 1047 n.4, 843 P.2d 825, 827 n.4 (1992), for the principle that “no rule of construction requires that a penal statute be strained and distorted to exclude conduct clearly intended to be within its scope” and concludes English's interpretation is “strained and distorted.” The statement

overlooks the “clearly intended” portion of the principle. The legislature in this case failed to state what it “clearly intended to be within its scope” and thus caused the ambiguity involved in this case. There could have been no notice of the forbidden criminal act of “battery that constitutes domestic violence” until such time as it was made a crime by the legislature, beginning January 1, 1998. Additionally, there was no notice that a simple battery that occurred prior to January 1, 1998, could be used to enhance a battery that constitutes domestic violence into a felony. Additionally, an added element must now be proven to convict a person under the “battery that constitutes domestic violence” crime, i.e., the victim must be one of the designated persons protected under NRS 33.018. Further, in section 32 of the Act, the legislature indicated its intent to apply the law prospectively only by providing that the new law does not apply “to offenses that are committed before January 1, 1998.” 1997 Nev. Stat., ch. 476, § 32, at 1821 (emphasis added). Any simple battery which may have occurred prior to January 1, 1998, involving designated victims listed in NRS 33.018, cannot be considered for enhancement purposes under the crime created by NRS 200.485 because the crime of “battery that constitutes domestic violence” did not exist prior to January 1, 1998. In this case the battery that constitutes domestic violence occurred when appellant threw a platter of spaghetti at his live-in girlfriend, pushed her to the floor and tried to pinch her nose. Appellant is now charged with a felony, without any prior notice that the previous misdemeanor convictions for battery would be used to enhance his crime to a felony. ........................................ Ð116 Nev. 828, 840 (2000) English v. StateÐ Ð The district court's order denying English's motion to strike his prior conviction for the battery that occurred on September 28, 1995, should be vacated and the matter remanded with instructions that the prior September 1995 conviction cannot be used for enhancement purposes. Only the conviction for battery that constitutes domestic battery that occurred on February 11, 1998, after the effective date of the new law can be used for enhancement purposes.

____________

Ð116 Nev. 840, 840 (2000) Peck v. StateÐ Ð Ð FRANK M. PECK, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32031 August 24, 2000

7 P.3d 470

Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of sexual assault. The district court sentenced appellant to two consecutive terms of life with the possibility of parole after ten (10) years. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge. Defendant was convicted, on retrial in the district court of two counts of sexual assault. Defendant appealed. The supreme court, Leavitt, J., held that: (1) a defendant is not entitled to an instruction on lesser-related offenses, overruling Moore v. State, 105 Nev. 378, 776 P.2d 1235 (1989); (2) wife's consent to search was voluntary; (3) defendant and his wife waived spousal privilege; (4) double jeopardy did not prevent retrial; and (5) there was no merger between the forced digital penetration and the coercive sexual intercourse. Affirmed. Amesbury & Schutt, Las Vegas; Law Offices of Lloyd Douglas Dix, LLP, and Julius A. Dix, Calabasas,

California, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent. 1. Criminal Law. Defendant's testimony that the sexual encounter was consensual did not warrant an instruction on battery with intent to commit sexual assault as a lesser-included offense of sexual assault. 2. Criminal Law. 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.

........................................ Ð116 Nev. 840, 841 (2000) Peck v. StateÐ Ð 3. Indictment and Information. To determine whether an offense is necessarily included in the offense charged, the test is whether the offense charged cannot be committed without committing the lesser offense. 4. Criminal Law. Where there is evidence which would absolve the defendant from guilt of the greater offense or degree but would support a finding of guilt of the lesser offense or degree, an instruction on the lesser-included offense is mandatory even if not requested. 5. Criminal Law. It is not error to refuse to instruct the jury on an issue that is contrary to the defendant's testimony. 6. Criminal Law. A defendant is not entitled to an instruction on lesser-related offenses; overruling Moore v. State, 105 Nev. 378, 383, 776 P.2d 1235 (1989). 7. Criminal Law. Indecent exposure, and open or gross lewdness, were lesser-related offenses to sexual assault, and thus, defendant was not entitled to an instruction on the offenses. 8. Searches and Seizures. Testimony from police that defendant's wife invited them into defendant's and wife's apartment and that she voluntarily signed a consent to search form supported trial court's ruling that the wife voluntarily consented to the search of the apartment. U.S. Const. amend. 4. 9. Criminal Law. Findings of fact in a suppression hearing will not be disturbed on appeal if supported by substantial evidence. 10. Criminal Law. A district court's findings of fact are reviewed under a deferential standard. 11. Searches and Seizures. A waiver and consent, freely and intelligently given, converts a search and seizure which otherwise would be unlawful into a lawful search and seizure. U.S. Const. amend. 4. 12. Searches and Seizures. Whether in a particular case an apparent consent to search without a warrant was voluntarily given is a question of fact. U.S. Const. amend. 4. 13. Witnesses. The subpoena for defendant's wife to testify for State at defendant's sexual assault trial merely compelled the wife's attendance at trial and did not prevent the wife from invoking the spousal privilege at trial, and thus, the wife waived the privilege by failing to invoke it before she testified. NRS 49.295(1)(a). 14. Witnesses. Defendant waived his privilege to prevent his wife from testifying where defendant failed to specifically state his objection prior to wife's testimony. NRS 49.295(1)(b). 15. Double Jeopardy. Defendant's first sexual assault trial did not result in an acquittal, and retrial therefore was not barred by double jeopardy, though the jury foreman had signed a verdict form finding defendant not guilty of one ofWKHWZRFRXQWV

........................................ Ð116 Nev. 840, 842 (2000) Peck v. StateÐ Ð the two counts, where the trial judge did not accept the verdict, did not poll the jury to determine if the verdict was unanimous, and did not record the verdict in the court's minutes, but instead declared a mistrial after questioning the jury foreman and ascertaining that the jury was unable to reach a verdict. U.S. Const. amend. 5. 16. Double Jeopardy.

The prohibition against double jeopardy protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. U.S. Const. amend. 5. 17. Double Jeopardy. When a mistrial has been declared by a district court, a defendant may be retried without implicating double jeopardy. U.S. Const. amend. 5. 18. Criminal Law. There was no merger between the forced digital penetration of the victim and the coercive sexual intercourse, where the defendant testified that he first fondled the victim digitally, partially removed some of her clothing, and then stopped before engaging in sexual intercourse. 19. Criminal Law. Separate and distinct acts of sexual assault committed as a part of a single criminal encounter may be charged as separate counts, and convictions entered thereon.

Before the Court En Banc. OPINION By the Court, Leavitt, J.: Appellant Frank M. Peck was convicted of two counts of sexual assault. His defense at trial was that the sexual encounter with the victim was consensual. On appeal he asserts that the district court erred by: (1) failing to instruct the jury on the lesser-included offense of battery with intent to commit sexual assault and the lesser-related crimes of indecent exposure and open or gross lewdness; (2) denying his motion to suppress evidence obtained after a search of his apartment; and (3) allowing his wife to testify against him. He further claims that his conviction is barred by double jeopardy and the principle of merger of offenses. We have considered appellant's claims and conclude that they lack merit. Therefore, we affirm appellant's conviction. FACTS The events leading to the convictions below occurred following a University of Nevada football game in Reno, Nevada. The victim, who had been drinking, was accosted by appellant Frank M. Peck (hereinafter “Peck”) as she was urinating under some trees bordering a parking lot near Mackay Stadium. Peck grabbed herDURXQGWKHQHFNFRYHUHGKHUPRXWKDQGWROGKHUWKDWKHKDGDNQLIHDQGZRXOGNLOO

KHULIVKHVFUHDPHG ........................................ Ð116 Nev. 840, 843 (2000) Peck v. StateÐ Ð around the neck, covered her mouth, and told her that he had a knife and would kill her if she screamed. He dragged her backwards causing her to fall down. According to the victim, Peck digitally assaulted her and then forcibly engaged her in sexual intercourse. She also claimed that, after discontinuing the assault, he masturbated. Peck testified at trial that he approached the victim while she was urinating and admitted digitally penetrating her prior to consensual sexual intercourse. He denied that the victim fell to the ground and claimed they had consensual sexual intercourse while standing up. While on her back, the victim felt a set of keys on the ground. She took the keys and ran to a friend's house nearby. The police were notified and began an investigation of the incident. The victim and the officers returned to the parking lot where the officers located the automobile. The car was registered to Peck and his wife. The victim was taken to the hospital for an examination. She had no serious physical injuries, but the nurse noticed that she had leaves and grass in her hair and on her clothing. Upon arrival at the Peck residence, officers were greeted by Mrs. Peck. She partially opened the door and asked the officers to wait while she retrieved a bathrobe. The evidence is conflicting with regard to the events that followed. The officers testified that Peck's wife invited them to enter the apartment. Mrs. Peck testified that the officers barged in while she was getting her bathrobe. She admitted signing a consent to search form, but

claimed the officers told her that if she refused to sign the form, they would get a warrant, return, and tear up the apartment. The officers testified they asked her if her husband was hiding in the bathroom and she responded, “Yeah.” The officers entered the bathroom and found Peck attempting to crawl into a closet. They also found evidence in the bathroom that Peck had shaved his beard after he returned home that night. This evidence was the subject of a motion to suppress, which was denied by the district court. The jury was unable to reach a verdict at Peck's first trial, and the district court declared a mistrial. Prior to the declaration of mistrial, the jury foreman had completed and signed the jury verdict forms, both forms for guilty and not guilty on both counts and a form which stated that Peck's statements to the police were voluntary. The verdicts were not accepted by the trial judge, the jury was not questioned to determine if the verdicts were unanimous, and they were not recorded in the minutes of the court. Peck was retried and the jury returned a verdict of guilty on both counts. ........................................ Ð116 Nev. 840, 844 (2000) Peck v. StateÐ Ð DISCUSSION Instructions to the jury [Headnote 1] Peck contends that the district court erred by refusing to instruct the jury on proffered lesser-related or lesser-included offenses. The requested instructions included indecent exposure, open or gross lewdness, and battery with intent to commit sexual assault. [Headnote 2] “We have previously held that ‘[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.' ” Harris v. State, 106 Nev. 667, 670, 799 P.2d 1104, 1105-06 (1990) (quoting Roberts v. State, 102 Nev. 170, 172-73, 717 P.2d 1115, 1116 (1986) (quoting Williams v. State, 99 Nev. 530, 531, 665 P.2d 260, 261 (1983))). [Headnotes 3-5] This court has held “to determine whether an offense is necessarily included in the offense charged, the test is whether the offense charged cannot be committed without committing the lesser offense.” Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 594 (1966) (citing State v. Carter, 79 Nev. 146, 379 P.2d 945 (1963); State v. Holm, 55 Nev. 468, 37 P.2d 821 (1935)). Where “there is evidence which would absolve the defendant from guilt of the greater offense or degree but would support a finding of guilt of the lesser offense or degree,” an instruction on the lesser-included offense is mandatory even if not requested. Id. at 187, 414 P.2d at 595. However, it is not error to refuse to instruct the jury on an issue that is contrary to the defendant's testimony. Ruland v. State, 102 Nev. 529, 531, 728 P.2d 818, 819 (1986). Here, a jury instruction on the lesser-included offense of battery with intent to commit sexual assault was inconsistent with Peck's testimony that the sexual encounter was consensual. Thus, the district court did not err in refusing to give the instruction. In Moore v. State, 105 Nev. 378, 383, 776 P.2d 1235, 1238 (1989), we concluded, “fairness to the defendant requires instructions on related but not necessarily included offenses.” We held that a “jury should receive instruction on a lesser-related offense when three conditions are satisfied: (1) the lesser offense is closely related to the offense charged; (2) defendant's theory of defense is consistent with a conviction for the related offense; and (3) evidence of the lesser offense exists.” Id. The principle was taken from People v. Geiger, 674 P.2d 1303, 1304 (Cal. 1984). Prior to the decision in Moore we held “. . . if the offense for which the defendant is found guilty is not

necessarily includedZLWKLQWKHRIIHQVHFKDUJHGWKHFRQYLFWLRQLVYRLGDQGPXVWEHVHWDVLGH´ ........................................ Ð116 Nev. 840, 845 (2000) Peck v. StateÐ Ð within the offense charged, the conviction is void and must be set aside.” McKinnon v. State, 96 Nev. 821-22, 618 P.2d 1222 (1980). See also State v. Carter, 79 Nev. 146, 379 P.2d 945 (1963) where this court held a jury verdict was a nullity and void for purporting to convict a defendant for an offense that was not charged in an information nor necessarily included as a lesser offense. The California Supreme Court recently overruled Geiger in People v. Birks, 960 P.2d 1073 (Cal. 1998). The court stated, “since Geiger was decided, all arguable federal support for its conclusions has been withdrawn . . . and the rationale of that decision has been unequivocally repudiated by the United States Supreme Court.” Id. at 1082 (citing Hopkins v. Reeves, 524 U.S. 88 (1998), reh'g denied, 524 U.S. 968 (1998); Schmuck v. United States, 489 U.S. 705 (1989)). The Birks court noted that “[t]he Geiger rule contravenes the principle of mutual fairness by giving the defendant substantially greater rights either to require, or to prevent, the consideration of lesser nonincluded offenses than are accorded to the [State], the party specifically responsible for determining the charges.” Id. at 1084. Additionally, by allowing convictions only on lesser-included offenses and not on lesser-related offenses both the prosecution and defense will know in advance what elements must be proven at trial, what jury instructions will be available and may prepare accordingly. [Headnote 6] Given the recent evolution of the “lesser related” doctrine and our previous holdings on this issue, a re-examination of our decision in Moore is appropriate. We therefore now conclude that allowing instructions on offenses that are not included offenses, but are merely related offenses, makes the fairness of a verdict questionable. To allow a conviction on a crime that the State has not even attempted to prove is not a reliable result, therefore, we expressly overrule Moore as it pertains to the necessity of giving a jury instruction on a lesser-related offense. [Headnote 7] In view of our decision, we determine that the district court did not err in refusing to give a jury instruction on the lesser-related offenses of indecent exposure, or open or gross lewdness. Evidence obtained from appellant's apartment [Headnote 8] Peck claims that the entry and search of his apartment was illegal and that the evidence obtained should have been suppressed. There was conflicting evidence presented during the suppression hearing. The police testified that Peck's wife invited them into theDSDUWPHQWDQGVKHYROXQWDULO\VLJQHGDFRQVHQWWR

VHDUFKIRUP ........................................ Ð116 Nev. 840, 846 (2000) Peck v. StateÐ Ð apartment and she voluntarily signed a consent to search form. Peck's wife stated that the officers came in when she went to get her bathrobe and she signed the consent form only after the officers threatened that if she did not sign they would obtain a search warrant, return and tear up the apartment. The district court denied the motion to suppress. [Headnotes 9, 10] “[F]indings of fact in a suppression hearing will not be disturbed on appeal if supported by substantial

evidence.” Stevenson v. State, 114 Nev. 674, 679, 961 P.2d 137, 140 (1998); see also Rice v. State, 113 Nev. 425, 427, 936 P.2d 319, 320 (1997). Further, a district court's findings of fact are reviewed under a deferential standard. See Hayes v. State, 106 Nev. 543, 550 n.1, 797 P.2d 962, 966 n.1 (1990). [Headnotes 11, 12] “[A] waiver and consent, freely and intelligently given, converts a search and seizure which otherwise would be unlawful into a lawful search and seizure.” State v. Plas, 80 Nev. 251, 254, 391 P.2d 867, 868 (1964). “Whether in a particular case an apparent consent to search without a warrant was voluntarily given is a question of fact.” Id. at 253, 391 P.2d at 868. “This court is not a fact-finding tribunal; that function is best performed by the district court.” Zugel v. Miller, 99 Nev. 100, 101, 659 P.2d 296, 297 (1983). In this case, the district court resolved the discrepancies in the testimony in favor of the police officers and ruled that the consent to enter the apartment and search was voluntarily given by Peck's wife. There was sufficient evidence to support the ruling and the district court did not err when it refused to suppress the evidence obtained during the search of the apartment. Spousal immunity [Headnotes 13, 14] Peck's wife was subpoenaed and testified for the State as an adverse witness. Peck claims this was a violation of the spousal privilege set forth in NRS 49.295. 1 __________ 1

NRS 49.295 provides in pertinent part as follows: 1. Except as otherwise provided in subsections 2 and 3 and NRS 49.305: (a) A husband cannot be examined as a witness for or against his wife without his consent, nor a wife for or against her husband without her consent. (b) Neither a husband nor a wife can be examined, during the marriage or afterwards, without the consent of the other, as to any communication made by one to the other during marriage. ........................................

Ð116 Nev. 840, 847 (2000) Peck v. StateÐ Ð A spouse has a statutory privilege to refuse to take the stand when called to testify against his or her spouse. NRS 49.295(1)(a). This privilege belongs to the testifying spouse and in this case could only be waived by [the spouse] if and when she took the stand. . . . [T]he testifying spouse privilege is only waived by taking the stand at trial and testifying .... [The defendant] also enjoyed the privilege to prevent [his spouse] from testifying regarding any statements made in reliance on marital confidence. Franco v. State, 109 Nev. 1229, 1243-44, 866 P.2d 247, 256 (1993) (footnote omitted). Peck's wife waived her privilege when she testified in the case and failed to invoke the right not to testify. Peck likewise waived his privilege to prevent his wife from testifying by not specifically stating his objection prior to her testimony. Peck argues that his wife did not voluntarily consent to testify because she was subpoenaed by the State. We disagree. A subpoena merely compels the attendance of a witness at trial. The privilege could have been invoked prior to her testifying. The failure to do so waives the privilege. Double jeopardy—merger of offenses [Headnote 15] Peck's double jeopardy claim is based on his first trial, which ended in a mistrial. Prior to the district court

declaring a mistrial, the jury foreman had signed verdict forms finding Peck both guilty and not guilty of Count I, Sexual Assault, the digital penetration of the victim's vagina. Peck claims that Count I could not be litigated again in a second trial based upon the principles of double jeopardy and merger of offenses. [Headnote 16] The prohibition against double jeopardy “protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” State v. Lomas, 114 Nev. 313, 315, 955 P.2d 678, 679 (1998); see also Gordon v. District Court, 112 Nev. 216, 220, 913 P.2d 240, 243 (1996). [Headnote 17] Peck was not acquitted at his first trial. Although the jury foreman signed the verdict form finding Peck not guilty of Count I, the verdict was not accepted by the district judge. The jury was not polled to determine if the verdict was unanimous, and the verGLFWZDVQRWUHFRUGHGLQWKHPLQXWHVRIWKHFRXUW ........................................ Ð116 Nev. 840, 848 (2000) Peck v. StateÐ Ð dict was not recorded in the minutes of the court. Instead, the district judge declared a mistrial after questioning the jury foreman and ascertaining that the jury was unable to reach a verdict. When a mistrial has been declared by a district court, a defendant may be retried without implicating the Double Jeopardy Clause of the United States Constitution. Beck v. District Court, 113 Nev. 624, 939 P.2d 1059 (1997). [Headnote 18] Peck contends that the two counts of sexual assault should be merged, citing Townsend v. State, 103 Nev. 113, 734 P.2d 705 (1987), in support of his claim. In Townsend, we held that only one sexual assault occurred when Townsend's actions were continuous and did not stop between the different acts. Townsend began lubricating the victim's vaginal area, stopped to put more lubricant on his finger and then penetrated the child's vagina with his finger. We held that these acts could not be charged as more than one sexual assault because “[s]uch a hypertechnical division of what was essentially a single act is not sustainable.” Id. at 121, 734 P.2d at 710. Peck also cites Oswald v. State, 715 P.2d 276 (Alaska Ct. App. 1986), as authority that an act of digital penetration merges with the act of genital penetration into one offense. However, the Oswald case was overruled a year later in Rodriquez v. State, 741 P.2d 1200 (Alaska Ct. App. 1987), wherein the court held that separate convictions are permissible where each conviction is for a different type of sexual penetration. The Alaska court reinforced the holding in Yearty v. State, 805 P.2d 987 (Alaska Ct. App. 1991), where it upheld separate convictions for multiple acts of penetration which involved different types of sexual penetration. The court held that the convictions did not merge. Id. at 993. [Headnote 19] Peck testified at trial that he first fondled the victim digitally, partially removed some of her clothing, and then stopped before engaging in sexual intercourse. “The great weight of authority supports the proposition that separate and distinct acts of sexual assault committed as a part of a single criminal encounter may be charged as separate counts and convictions entered thereon.” Deeds v. State, 97 Nev. 216, 217, 626 P.2d 271, 272 (1981); see also Hamill v. State, 602 P.2d 1212 (Wyo. 1979); People v. Perez, 153 Cal. Rptr. 40 (1979); People v. Saars, 584 P.2d 622 (Colo. 1978); People v. Robinson, 264 N.W.2d 58 (Mich. Ct. App. 1978); State v. Hill, 450 P.2d 696 (Ariz. 1969). We have previously upheld four counts of sexual assault that occurred during one attack upon a victim. Hutchins v. State, 110 Nev. 103, 867 P.2d 1136 (1994). ........................................

Ð116 Nev. 840, 849 (2000) Peck v. StateÐ Ð In this case, there was no merger between the forced digital penetration and the coercive sexual intercourse because both acts were separate and distinct acts of sexual assault. These separate acts cannot be considered a “hypertechnical division of what was . . . a single act.” Townsend, 103 Nev. at 121, 734 P.2d at 710. CONCLUSION After carefully reviewing Peck's various claims of error and by reason of the foregoing, his convictions of two separate and distinct sexual assaults are affirmed. Young, Shearing, Agosti and Becker, JJ., concur. Rose, C. J., with whom Maupin, J., agrees, concurring: I write separately to address the circumstances surrounding the alleged not guilty jury verdict on Count I, Sexual Assault, in Peck's first trial and to discuss the majority's modification of Moore. Peck argues that the district court should have dismissed Count I based on the Double Jeopardy Clause of the United States Constitution because the jury in Peck's first trial found him not guilty of this offense. 1 The incomplete record 2 of the first trial that is before us seems to support the State's claim that the jury could not reach a verdict on either count. However, if Peck could prove that the jury had reached a verdict on Count I, but it was not presented to the district court because of his trial attorney's ineffectiveness, I believe a claim of ineffective assistance of counsel would be established. Therefore, I do not think that he should be precluded from exploring this issue in post-appeal proceedings. With respect to Moore, I disagree with the majority that it is necessary to modify this decision concerning a defendant's right to have the jury instructed on lesser-related offenses. Although the majority concludes that allowing the defendant to request lesser-related offense instructions brings into doubt the reliability of a verdict, I believe such instructions actually increase reliability. The fundamental purpose of a criminal trial is the discovery of the truth. See People v. Perry, 594 N.W.2d 477, 485 (Mich. 1999) (Brickley, J., dissenting). At trial, the jury must determineZKHWKHUWKHGHIHQGDQW

FRPPLWWHGWKHFULPHFKDUJHGRUVRPHUHODWHGRIIHQVHEDVHGRQWKHHYLGHQFHSUHVHQWHG __________ 1

I agree with the majority that the Double Jeopardy Clause of the United States Constitution is not implicated, on the facts of this case, where a mistrial has been declared. See Beck v. District Court, 113 Nev. 624, 939 P.2d 1059 (1997). 2

The majority states that “the district judge declared a mistrial after questioning the jury foreman and ascertaining that the jury was unable to reach a verdict.” However, a thorough review of the record on appeal reveals no support for this proposition, as the minutes and transcripts of the first proceeding are absent. ........................................ Ð116 Nev. 840, 850 (2000) Peck v. StateÐ Ð whether the defendant committed the crime charged or some related offense based on the evidence presented. See id. The absence of a lesser-related offense, however, increases the risk that the jury will convict the defendant of the charged offense, merely because the jury's only other choice would be to set the accused criminal free. See id (citing People v. Hendricks, 521 N.W.2d 461 (1994)) (quoting Spaziano v. Florida, 468 U.S. 447, 455 (1984)). Allowing an instruction on a lesser-related offense gives the factfinder more choices, and consequently gives jurors the ability to convict a defendant for the crime that is best substantiated by the evidence. Accordingly, I believe such instructions promote our justice system's effective search for the truth. Based on this reasoning, I see no need to modify Moore, and disagree that taking away choices from the jury

promotes “mutual fairness.” The rule in Moore allows the factfinder to agree with an interpretation of the evidence presented that may not be embodied in the charges brought by the State. Thus, the jury is able to obtain a verdict grounded on truth and distortion in the factfinding process is minimized. See id. Further, Moore does not give the defendant an unequivocal right to present lesser-related offense instructions. Instead, the defendant must first satisfy three conditions: “(1) the lesser offense is closely related to the offense charged; (2) defendant's theory of defense is consistent with a conviction for the related offense; and (3) evidence of the lesser offense exists.” Moore, 105 Nev. at 383; 776 P.2d at 1238. Of these requisites, the second provides adequate protection against potential abuse by the defense. 3 For instance, if the district court finds that the defendant is proposing instructions merely for the purpose of distracting the jury or some other untoward purpose, the court should, in its discretion, find that the instruction is inconsistent with the defense theory and reject the request. Because I believe that the conditions required in Moore sufficiently address any mutuality of fairness concern and because the rule, in general, effectively promotes the truthfinding process, I would refrain from modifying the holding in Moore. In the present matter, Peck's defense was that the sexual encounter was consensual. Therefore, Peck contends that he was guilty of, at most, open or gross lewdness and indecent exposure. Because these offenses were clearly consistent with Peck's theory, and otherwise meet the Moore criteria, I would hold that the district court erred in failing to give the lesser-related instructions. See also Young v. State, 109 Nev. 205, 215, 849 P.2d 336, 343 (1993) (“A conviction [of open or gross lewdness or indecentH[SRVXUH@GRHVQRWUHTXLUHSURRIRI

LQWHQWWRRIIHQGDQREVHUYHURUHYHQWKDWWKHH[SRVXUHZDVREVHUYHG´  __________ 3

Indeed, if Moore needs to be changed, perhaps clarification of this condition is more appropriate than an outright abolition of the rule. ........................................ Ð116 Nev. 840, 851 (2000) Peck v. StateÐ Ð exposure] does not require proof of intent to offend an observer or even that the exposure was observed.”). However, because of the overwhelming evidence of guilt presented at trial, I cannot see how the failure to instruct on these misdemeanors would have in any way affected the felony verdicts in this case. Therefore, I believe that the error here is harmless and does not affect the reliability of the verdicts. Accordingly, I concur with the majority.

____________

Ð116 Nev. 851, 851 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð Ð MEDICAL DEVICE ALLIANCE, INC., Appellant, v. ROBERT AHR, an Individual; ANTOINETTE AHR, an Individual; RICHARD ALBIN, an Individual; DONNA ALBIN, an Individual; NICHOLAS ALEXANDER, Trustee; GLENN ALPERT, Trustee; GREGORY ANDERSON, an Individual; ANTIN & HAAS; LESTER AROH, an Individual; KENNETH ASCH, an Individual; JULIAN BEALE, an Individual; RICHARD BERTI, an Individual; MARGUERITE BERTI, Trustee; FREDERICK BINKLEY, Trustee; MICHAEL BOGGS, an Individual; DONALD BORDEN, an Individual; JEFFREY BRENNER, an Individual; BELLE BRONFELD, an Individual; LARRY BRUNGARDT, an Individual; WILLIAM COLEMAN BRYAN, an Individual; CABRILLO CARD. MED. GP. (R. ROTHCHILD); JOSEPH CAMARDESE, an Individual; CHELSEA ASSOCIATES (RANDALL HARRIS); WARREN CLARK, an Individual; ROBERT CLARK, an Individual; HAROLD COHEN, an Individual; WILLIAM CONLEY, an Individual; TED COOPER, an Individual; SEAN

COUGHLIN, an Individual; KANAAN “KENNY” DANDACHI, an Individual; THOMAS DEAKMAN, an Individual; STEVEN DRESNER, an Individual; LAWRENCE DUMAIN, an Individual; DEANNA DUMAIN, an Individual; JAMES “JIM” FAYETTE, an Individual; MARK FERGUSON, an Individual; STEPHEN FROST, an Individual; SUZANNE FROST, an Individual; EDWARD I. GALFSKY, an Individual; JOHN GASSER, an Individual; ROBERT GAULT, an Individual; THELMA GAULT, an Individual; DARRELL GLAHN, an Individual; BLYTHE GLAHN, an Individual ; MICHAEL GROSSMAN, an Individual; BRIAN HALINA, an Individual; KATHLEEN HELLMERS, Trustee; KENNETH HERSH, an Individual; HILLIARD LTD. ........................................ Ð116 Nev. 851, 852 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð PARTNERSHIP; DANIEL HILLIARD, an Individual; WJ HILLIARD FAMILY TRUST; SY HIMELSTEIN, an Individual; INNER SOURCES, INC.; MIKE ISMAIL, an Individual; HERB JOHNSON, an Individual; BRENDA JOHNSON, an Individual; GABRIEL KAPLAN, an Individual; L. ROLLS (NOMINEES) LTD. (L. ROLLS); WILLIAM LARRABEE, an Individual; BONNIE LARRABEE, an Individual; PETER LAWRENCE, an Individual; MARK LEGGIO, an Individual; LEVANTHAL PAGET LLC, an Individual; JAMES LYNCH, an Individual; EDWARD MARANDOLA, JR., an Individual; FILIZI “PHILIP” MATHIS, an Individual; FRANK MATHIS, an Individual; ROBERT McCURDY, an Individual; EDWARD LOW MILLS, an Individual ; JAMES MILLS, an Individual; MICHAEL MOELLER, an Individual; ALBERT MOLINARO, an Individual; STEVE NATALE, an Individual; KAY NIX, an Individual; LINDA WALLACE PATE, an Individual; ROBERT PEKELNICKY, an Individual; EMILY PEKELNICKY, an Individual; JON PETERS, an Individual; ALICE POSHKUS, an Individual; REGINA POSHKUS, an Individual; NICHOLAS POSHKUS, an Individual; DAVID B. RADDEN, an Individual; RICHARD ROSSI, an Individual; JAMES SCHLOEMAN, an Individual; DAVID A. SCHULT, an Individual; JEFF SEAVEY, an Individual; MORRIS SILVER, an Individual; HOLLIS R. SMITH, an Individual; LEMBITU SORRA, M.D., an Individual; ARTHUR STEINBERG, an Individual; IRA ACCOUNT; CARL F. STEINFIELD, an Individual; KEN STOKES, an Individual; THOMAS SULZBACH, an Individual; EUNA SULZBACH, an Individual; ROBERT E. WALKER, an Individual; DAVID WILSON, an Individual; CHIEFTAIN LLC; WILLIAM J. DOWNEY, JR., an Individual; MARY ANN FLYNN, an Individual; R. KARL LICHTY, an Individual; LAURENS L. LICHTY, an Individual; LEONARD MAKOWKA, an Individual; AND KURT G. TOPPEL, an Individual, Respondents. No. 34586 DONALD K. McGHAN, Appellant, v. GEORGE C. SWARTS as Receiver for MEDICAL DEVICE ALLIANCE, INC.; ROBERT AHR, an Individual; ANTOINETTE AHR, an Individual; RICHARD ALBIN, an Individual; DONNA$/%,1DQ,QGLYLGXDO ........................................ Ð116 Nev. 851, 853 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð ALBIN, an Individual; NICHOLAS ALEXANDER, Trustee; GLENN ALPERT, Trustee; GREGORY ANDERSON, an Individual; ANTIN & HAAS; LESTER AROH, an Individual; JULIAN BEALE, an Individual; RICHARD BERTI, an Individual; MARGUERITE BERTI, Trustee; FREDERICK BINKLEY, Trustee; MICHAEL BOGGS, an Individual; DONALD BORDEN, an Individual; JEFFREY BRENNER, an Individual; BELLE BRONFELD, an Individual; LARRY BRUNGARDT, an Individual; WILLIAM COLEMAN BRYAN, an Individual; CABRILLO CARD. MED. GP. (R. ROTHCHILD); JOSEPH CAMARDESE, an Individual; CHELSEA ASSOCIATES (RANDALL HARRIS); WARREN CLARK, an Individual; ROBERT CLARK, an Individual; HAROLD COHEN,

an Individual; WILLIAM CONLEY, an Individual; TED COOPER, an Individual; SEAN COUGHLIN, an Individual; KANAAN “KENNY” DANDACHI, an Individual; STEVEN DRESNER, an Individual; LAWRENCE DUMAIN, an Individual; DEANNA DUMAIN, an Individual; JAMES “JIM” FAYETTE, an Individual; MARK FERGUSON, an Individual; STEPHEN FROST, an Individual; SUZANNE FROST, an Individual; EDWARD I. GALFSKY, an Individual; JOHN GASSER, an Individual; ROBERT GAULT, an Individual; THELMA GAULT, an Individual; DARRELL GLAHN, an Individual; BLYTHE GLAHN, an Individual; MICHAEL GROSSMAN, an Individual; BRIAN HALINA, an Individual; KATHLEEN HELLMERS, Trustee; KENNETH HERSH, an Individual; HILLIARD LTD. PARTNERSHIP; DANIEL HILLIARD, an Individual; WJ HILLIARD FAMILY TRUST; SY HIMELSTEIN, an Individual; INNER SOURCES, INC.; MIKE ISMAIL, an Individual; HERB JOHNSON, an Individual; BRENDA JOHNSON, an Individual; GABRIEL KAPLAN, an Individual; L. ROLLS (NOMINEES) LTD. (L. ROLLS); WILLIAM LARRABEE, an Individual; BONNIE LARRABEE, an Individual; PETER LAWRENCE, an Individual; MARK LEGGIO, an Individual; JEFFREY LEVANTHAL, an Individual; JAMES LYNCH, an Individual; EDWARD MARANDOLA, JR., an Individual; FILIZI “PHILIP” MATHIS, an Individual; FRANK MATHIS, an Individual; ROBERT MCCURDY, an Individual; EDWARD LOW MILLS, an Individual; JAMES MILLS,DQ,QGLYLGXDO ........................................ Ð116 Nev. 851, 854 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð an Individual; MICHAEL MOELLER, an Individual; ALBERT MOLINARO, an Individual; STEVE NATALE, an Individual; KAY NIX, an Individual; LINDA WALLACE PATE, an Individual; ROBERT PEKELNICKY, an Individual; EMILY PEKELNICKY, an Individual; JON PETERS, an Individual; ALICE POSHKUS, an Individual; REGINA POSHKUS, an Individual; NICHOLAS POSHKUS, an Individual; DAVID B. RADDEN, an Individual; RICHARD ROSSI, an Individual; JAMES SCHLOEMAN, an Individual; DAVID A. SCHULT, an Individual; JEFF SEAVEY, an Individual; MORRIS SILVER, an Individual; HOLLIS R. SMITH, an Individual; LEMBITU SORRA, M.D., an Individual; ARTHUR STEINBERG, an Individual; CARL F. STEINFIELD, an Individual; KEN STOKES, an Individual; THOMAS SULZBACH, an Individual; EUNA SULZBACH, an Individual; ROBERT E. WALKER, an Individual; DAVID WILSON, an Individual; CHIEFTAIN LLC; WILLIAM J. DOWNEY, JR., an Individual; R. KARL LICHTY, an Individual; LAURENS L. LICHTY, an Individual; LEONARD MAKOWKA, an Individual; and KURT G. TOPPEL, an Individual, Respondents. No. 35013 August 25, 2000

8 P.3d 135

Consolidated appeals from an order of the district court appointing a temporary receiver for appellant Medical Device Alliance, Inc., and from an order of the district court denying appellant Donald K. McGhan's subsequent motion to terminate the receivership. Eighth Judicial District Court, Clark County; Nancy M. Saitta, Judge. Shareholders sought appointment of receiver for corporation on basis of waste, corporate mismanagement and fraud. The district court appointed temporary receiver and subsequently denied motion of intervenor, a director and large shareholder, to terminate receivership. Corporation and intervenor appealed, and appeals were consolidated. The supreme court held that: (1) shareholders satisfied ten percent requirement for appointment of receiver, (2) second amended complaint related back to filing of original amended complaint, and (3) appointing temporary receiver and refusing to terminate receivership was not abuse of discretion. Affirmed. ........................................

Ð116 Nev. 851, 855 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð William E. Cooper Law Offices, Las Vegas, for Appellant Medical Device Alliance, Inc. Schreck Morris and Amelia R. De Los Santos, Kristina Pickering and Elayna J. Youchah, Las Vegas, for Appellant Medical Device Alliance, Inc., and for Appellant McGhan. Jones Vargas and Philip M. Ballif and Kirk B. Lenhard, Las Vegas, for Appellant McGhan. James, Driggs, Walch, Santoro, Kearney, Johnson & Thompson and Aviva Y. Gordon, John E. Ham, Mark A. James and L. Kirk Williams, Las Vegas, for Respondents. Jolley Urga Wirth & Woodbury, Las Vegas, for Respondents. Bernhard & Leslie, Las Vegas, for Respondents. Harrison Kemp & Jones, Chtd., and Jennifer C. Popick, Las Vegas, for Respondents. Frank A. Ellis & Associates, Las Vegas, for Respondents. 1. Corporations. Whether shareholders met ten percent requirement for seeking appointment of receiver was to be determined at moment court considered their motion for appointment of temporary receiver. NRS 78.650. 2. Corporations. Shareholders satisfied requirement that they hold ten percent of stock in corporation, so as to be entitled to seek appointment of corporate receiver, at time of hearing on their motion, based on amended complaint that added additional shareholder plaintiffs. NRS 78.650. 3. Limitation of Actions. Filing of the shareholders' second amended complaint in action to appoint receiver for corporation related back to the filing of shareholders' first amended complaint, so as to satisfy ten percent requirement and give court jurisdiction at time it appointed receiver, where shareholders sought leave to file second amended complaint in order to comply with the original order allowing leave to amend, which was not complied with solely to clerical error in refiling original complaint rather than first amended complaint. NRS 78.650. 4. Parties. Allowing plaintiff shareholders to amend their complaint seeking appointment of corporate receiver to add additional plaintiffs, in order to satisfy requirement that plaintiff shareholders hold at least ten percent of outstanding shares, was not abuse of discretion. NRS 78.650. 5. Appeal and Error; Corporations. Appointing temporary receiver for corporation upon shareholders' allegations of corporate fraud and mismanagement was not abuse of discretion. NRS 78.650(1).

........................................ Ð116 Nev. 851, 856 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð 6. Appeal and Error; Corporations. Refusal to terminate temporary receivership, which had been ordered on basis of alleged fraud and mismanagement, on motion of large shareholder and director, was not abuse of discretion. NRS 78.650(4).

Before the Court En Banc. OPINION Per Curiam: Respondents (“Nevada shareholders”) filed suit in district court seeking the appointment of a receiver for appellant Medical Device Alliance, Inc. (“MDA”). After finding strong evidence of serious corporate mismanagement and fraud, the district court appointed a temporary receiver for MDA. Subsequently,

appellant Donald K. McGhan (“McGhan”) successfully intervened and filed a motion to terminate the receivership, which the district court denied. MDA and McGhan both appealed, and their appeals have been consolidated. For the reasons discussed herein, we conclude that the Nevada shareholders met the statutory requirement under NRS 78.650 prescribing that at least ten percent of MDA's shareholders apply for the appointment of a temporary receiver. We also conclude that the district court did not abuse its discretion by appointing a temporary receiver for MDA or by denying McGhan's subsequent motion to terminate the receivership. FACTS In September 1995, McGhan founded MDA, which incorporated in Nevada. MDA sought to develop, manufacture, and market medical devices that were used to remove body fat. As part of this effort, MDA entered into an exclusive, worldwide licensing agreement with Misonix, Inc. to market and sell Misonix's patented ultrasound liposuction device, which liquefies body fat and then suctions it out of the body. In 1997, over 270 private investors, which included the Nevada shareholders, invested approximately $14,313,750.00 in MDA through private placements. MDA sought to use these funds “to finance further research, development and testing of [MDA's] products, to fund costs associated with commercial development, production and marketing of [MDA's] products, to acquire other related technologies and targeted companies and as working capital.” McGhan, members of his family, and companies owned and controlled by McGhan now hold approximately twenty-four percent of the shares in MDA. ........................................ Ð116 Nev. 851, 857 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð After allegations of fraud and mismanagement arose and after unsuccessfully pursuing the appointment of a receiver for MDA in California, 1 the Nevada shareholders filed suit in district court on March 19, 1999, seeking the appointment of a receiver under NRS 78.650. 2 The suit named only MDA as a defendant and did not name McGhan or the other directors of MDA as defendants. The Nevada shareholders subsequently filed a motion seeking the appointment of a temporary receiver for MDA. Specifically, the Nevada shareholders' suit and motion alleged that McGhan and the other directors of MDA were guilty of fraud, gross mismanagement, and self-dealing in conducting MDA's corporate affairs. The suit and motion also alleged that McGhan and the directors were guilty of misfeasance, malfeasance, or nonfeasance and that MDA's assets were being wasted. In order to protect MDA's current and future assets, the Nevada shareholders sought the appointment of a temporary receiver. The Nevada suit was initiated at the request of a California attorney, Kathryn Tschopik (“Tschopik”), who had earlier pursued the appointment of a receiver for MDA in California. Tschopik associated with the Nevada firm of James, Driggs, Walch, Santoro, Kearney, Johnson & Thompson (“James Driggs”) to represent the Nevada shareholders, some of whom had previously attempted to intervene in the California suit. Acting as the agent for the Nevada shareholders, Tschopik authorized James Driggs to file the Nevada suit. Tschopik later successfully associated into the Nevada suit as co-counsel for the Nevada shareholders under Nevada Supreme Court Rule 42. Five days before the scheduled hearing on their motion to appoint a temporary receiver, the Nevada shareholders filed a motion for leave to file an amended complaint, along with an ex parte motion to shorten the time to hear the motion. The Nevada shareholders sought to amend their complaint to add seven additional MDA shareholders as plaintiffs, to rename three current shareholders in order to reflect their proper capacity as trustees instead of individuals, and to substitute a partnership in place of a current individual shareholder since the partnership held the shares. __________ 1

Although the California court did impose an injunction on MDA to prevent the diversion of its corporate

assets, the California court denied a request to appoint a receiver for MDA. It appears from the record on appeal that the California court's decision was based, at least in part, on MDA's argument that Nevada had exclusive jurisdiction over the appointment of a receiver. 2

Initially, the Nevada shareholders sought an accounting of MDA's transactions and financial activities. However, the Nevada shareholders voluntarily dismissed the accounting claim at a hearing in the district court on June 28, 1999. ........................................ Ð116 Nev. 851, 858 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð The Nevada shareholders filed their motion in response to MDA's argument that the Nevada shareholders lacked the requisite number of shareholders necessary to seek a receiver. The Nevada shareholders argued that if the district court permitted them to file the amended complaint, they would have the requisite number of shareholders needed to seek the appointment of a receiver under NRS 78.650 based on the number of outstanding shares claimed by MDA. Because the motion to amend the complaint would resolve the jurisdictional issue of whether the Nevada shareholders had the necessary number of shareholders as required by NRS 78.650, the district court granted the Nevada shareholders' ex parte motion to shorten time to hear the motion and set arguments for June 28, 1999, which was the same date for arguments on the motion to appoint the temporary receiver. On June 28, 1999, the district court heard arguments concerning the Nevada shareholders' motion to amend their complaint and their motion to appoint a temporary receiver. After reviewing the evidence and hearing the parties' arguments, the district court made a finding on the date of the hearing and subsequently issued an order dated June 30, 1999, wherein it granted the Nevada shareholders' motion to amend their complaint. The district court concluded that “[t]he court, after granting leave to amend the complaint, finds that it has jurisdiction to appoint a receiver over [MDA].” The district court then went on to grant the Nevada shareholders' motion to appoint a temporary receiver. Specifically, the district court found “that it should appoint a receiver in accordance with NRS [78.650(1)(b)], since it finds that the trustees or directors of [MDA] have been guilty of fraud or collusion or gross management [sic] in the conduct or control of its affairs.” The district court also found “that the trustees or directors have been guilty of misfeasance, malfeasance or nonfeasance” under NRS 78.650(1)(c). Further, the district court found “that it should appoint a receiver in accordance with NRS [78.650(1)(e)], since it finds that the assets of [MDA] are in danger of waste, sacrifice or loss through attachment, foreclosure, litigation or otherwise.” On August 23, 1999, McGhan filed a motion to intervene and a motion to terminate the receivership. In support of his motion, McGhan submitted a proposed plan of action to the district court. McGhan argued that if the district court accepted the proposed plan, the plan would obviate the need for a continuation of the receivership. Meanwhile, on August 27, 1999, the receiver filed his first report with the district court. The receiver's report confirmed most, if not all, of the Nevada shareholders' allegations of waste, IUDXG DQG JURVV

PLVPDQDJHPHQWFRPPLWWHGE\0F*KDQDQGWKHRWKHUGLUHFWRUV ........................................ Ð116 Nev. 851, 859 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð fraud, and gross mismanagement committed by McGhan and the other directors. After reviewing the evidence and hearing the parties' arguments on September 7, 1999, the district court granted McGhan's motion to intervene, but denied his motion to terminate the receivership because the district court found that there was insufficient cause to terminate the receivership at that time. MDA and McGhan now appeal the district court's order appointing the temporary receiver and the order denying the motion to terminate the receivership.

DISCUSSION The primary issue presented by these appeals is whether the Nevada shareholders met the statutory requirement under NRS 78.650 prescribing that at least ten percent of MDA's shareholders apply for the appointment of a receiver. MDA and McGhan argue that the district court lacked jurisdiction to appoint a temporary receiver because the Nevada shareholders failed to satisfy the ten percent requirement under NRS 78.650. We disagree and conclude that the Nevada shareholders complied with NRS 78.650 once the district court granted their motion to amend the complaint. Nevada law mandates that “[a]ny holder or holders of one-tenth of the issued and outstanding stock may apply to the district court” for an order appointing a receiver. NRS 78.650(1). “The district court does not have jurisdiction to appoint a corporate receiver, unless the applicant holder or holders of one-tenth of the issued and outstanding stock has legal title at the time the court considers the application.” Searchlight Dev., Inc. v. Martello, 84 Nev. 102, 109, 437 P.2d 86, 90 (1968). Accordingly, “ ‘the moment when the court is determining whether or not a temporary receiver should be appointed . . . is the controlling time' ” for determining whether the shareholders hold the requisite ten percent stock under NRS 78.650(1). Id. (quoting Hill v. Vaill, 176 A.2d 881, 883 (Conn. Super. Ct. 1961)). [Headnotes 1, 2] In the present case, the controlling time for determining whether the Nevada shareholders satisfied the ten percent requirement under NRS 78.650 was at the June 28, 1999, hearing where the district court considered appointing the temporary receiver for MDA. At the hearing, MDA essentially argued that once the district court subtracted the shares held by the improperly named shareholders, the four uninterested shareholders who did not desire the appointment of a receiver, and the one shareholder who sold his stock from the number of shares claimed by the NevadaVKDUHKROGHUV ........................................ Ð116 Nev. 851, 860 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð shareholders, the Nevada shareholders did not then hold the requisite ten percent of MDA's shares. 3 However, MDA's contention is undermined by the affidavit of Charles E. Barrantes (“Barrantes”), the executive vice president, chief financial officer, and secretary of MDA. In his June 2, 1999, affidavit, Barrantes stated that MDA had 10,879,239 outstanding shares. Importantly, Barrantes conceded in his affidavit that if the improperly named shareholders in the original complaint were included in their proper capacities, the Nevada shareholders would have 1,020,750 shares, or 9.38 percent of MDA's outstanding stock. Consequently, even accepting MDA's argument that the 5,000 shares of MDA stock that were sold and the 15,000 shares of MDA stock held by the four uninterested shareholders should have been subtracted from the 1,020,750 shares held by the Nevada shareholders, the Nevada shareholders were still left with 1,000,750 shares. When the district court granted the Nevada shareholders' motion to amend their complaint, seven additional MDA shareholders collectively holding an additional 110,000 shares of MDA stock were added as plaintiffs. Therefore, at the time of the June 28, 1999, hearing, the Nevada shareholders held 1,110,750 shares of MDA stock, which reflected 10.21 percent of MDA's outstanding stock. Accordingly, we conclude that the Nevada shareholders satisfied the statutory requirements of NRS 78.650 and that the district court had jurisdiction to appoint a temporary receiver. 4 Our conclusion that the district court had jurisdiction to appoint a temporary receiver is somewhat complicated by the facts surrounding the filing of the Nevada shareholders' amended complaint. Following the district court's granting of the Nevada shareKROGHUV PRWLRQWRDPHQGWKHLUFRPSODLQW __________

3

MDA and McGhan also contend that during depositions taken in the prior California case, eight MDA shareholders who are named in the Nevada suit indicated that they had no knowledge of the Nevada suit and did not seek the appointment of a receiver. However, after a careful review of the depositions, it is clear that the shareholders authorized a suit against MDA, but did not draw a distinction between the proceedings in California and Nevada. Even assuming that the eight deponents did not authorize the Nevada suit, MDA and McGhan did not present this evidence to the district court until November 30, 1999. Thus, the district court did not have this evidence before it at the June 28, 1999, hearing, which was the controlling time for determining whether the Nevada shareholders satisfied NRS 78.650. Accordingly, we conclude that the depositions of the eight shareholders do not apply to the issue of whether the district court had jurisdiction on June 28, 1999, to appoint a temporary receiver under NRS 78.650. 4

We note that if the Nevada shareholders eventually seek the appointment of a permanent receiver and this case proceeds to trial, the district court must again determine at that time whether the Nevada shareholders hold the requisite ten percent of MDA's stock. See NRS 78.650; Searchlight Dev., Inc., 84 Nev. at 108-09, 437 P.2d at 90. ........................................ Ð116 Nev. 851, 861 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð holders' motion to amend their complaint, the Nevada shareholders filed their amended complaint on July 6, 1999. Unfortunately, due to a clerical error by James Driggs, the Nevada shareholders actually re-filed the original complaint instead of the amended complaint. Eventually, the error was discovered, and on October 1, 1999, the Nevada shareholders filed a second motion for leave to file a second amended complaint. In the second motion, the Nevada shareholders sought to correct the earlier problems and also sought to add even more MDA shareholders, as well as name the remaining directors of MDA as defendants. On December 10, 1999, the district court granted the Nevada shareholders' second motion to amend their complaint and permitted the Nevada shareholders to correct the earlier problems and name the remaining directors of MDA, but did not permit the additional MDA shareholders, first mentioned in the second motion to amend, to join in the suit. On January 4, 2000, the Nevada shareholders filed their second amended complaint. As a result, the additional plaintiffs who held the 110,000 shares of MDA stock that gave the Nevada shareholders the requisite ten percent of stock under NRS 78.650 did not definitively become plaintiffs until the second amended complaint was filed on January 4, 2000. Although the Nevada shareholders erred by filing the incorrect version of their amended complaint, this error in no way undermines the fact that the Nevada shareholders represented more than ten percent of MDA's shareholders at the time of the June 28, 1999, hearing. [Headnote 3] Accordingly, we conclude that the district court had jurisdiction to appoint the temporary receiver based on its June 30, 1999, order granting the Nevada shareholders' first motion to amend their complaint. We also conclude that under the circumstances, the filing of the Nevada shareholders' second amended complaint on January 4, 2000, relates back to the filing of the Nevada shareholders' first amended complaint on July 6, 1999, because the Nevada shareholders sought leave to file the second amended complaint in order to comply with the June 30, 1999, order of the district court. 5 __________ 5

Our conclusion that the Nevada shareholders' second amended complaint relates back to the filing of the Nevada shareholders' first amended complaint should not be confused with NRCP 15(c) and the relating back of amendments to the original pleading. NRCP 15(c) involves whether claims or defenses asserted in an amended pleading relate back to the date of the original pleading. See NRCP 15(c). Because this case does not involve claims and defenses, we conclude that NRCP 15(c) is inapplicable to this case. See Nurenberger Hercules-Werke v. Virostek, 107 Nev. 873, 882, 822 P.2d 1100, 1106 (1991) (concluding that NRCP 15(c) does

not apply when adding or ........................................ Ð116 Nev. 851, 862 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð [Headnote 4] Moreover, although MDA and McGhan do not specifically argue that the district court abused its discretion by granting the Nevada shareholders' motions to amend their complaint, we conclude that the district court acted within its discretion by granting the Nevada shareholders' motions to amend their complaint. 6 See Connell v. Carl's Air Conditioning, 97 Nev. 436, 439, 634 P.2d 673, 675 (1981) (holding that a motion to amend a complaint is addressed to the sound discretion of the trial court, and its decision will not be disturbed absent a showing of abuse of discretion). MDA and McGhan next argue that the district court abused its discretion by appointing a temporary receiver for MDA. Specifically, MDA and McGhan contend that the district court abused its discretion because: (1) an injunction imposed on MDA by the California court provided the district court an alternative remedy sufficient to preserve the status quo; (2) the California court's decision not to appoint a receiver should have been given effect by the district court under the principle of comity; (3) the district court's order in effect imposed a permanent receiver on MDA with overly broad powers; (4) MDA's directors were denied due process by not being named as parties and by not being provided notice; and (5) MDA's directors are preferred as a receiver under NRS 78.650. [Headnote 5] “The appointment of a receiver is an action within the trial court's sound discretion and will not be disturbed absent a clear abuse.” Nishon's Inc. v. Kendigian, 91 Nev. 504, 505, 538 P.2d 580, 581 (1975); see also Peri-Gil Corp. v. Sutton, 84 Nev. 406, 411, 442 P.2d 35, 37 (1968); Bowler v. Leonard, 70 Nev. 370, 383, 269 P.2d 833, 839 (1954). Under NRS 78.650(1), the district court may appoint a temporary receiver in a number of instances, including, but not limited to, situations where corporate directors are guilty of fraud or gross mismanagement or where the assets of the corporation are in danger of waste. Having carefully reviewed and considered the parties' contentions and theHQWLUHUHFRUGRQDSSHDO __________ substituting parties because NRCP 15(c), by its terms, applies only to claims or defenses). 6

The parties dispute the applicability of Transcontinental Oil Company v. Free, 80 Nev. 207, 391 P.2d 317 (1964), to this case. We conclude that Transcontinental Oil is inapplicable because it does not touch on the precise issue before this court. In Transcontinental Oil, the issue was whether the district court had jurisdiction to set a hearing date on the plaintiff's motion to appoint a receiver. See id. at 207-10, 391 P.2d at 317-19. Here, the issue is whether the district court had jurisdiction to grant the Nevada shareholders' first motion to amend their complaint in order to ensure jurisdiction over this case. ........................................ Ð116 Nev. 851, 863 (2000) Medical Device Alliance, Inc. v. AhrÐ Ð entire record on appeal, we conclude that the district court acted well within its discretion in appointing a temporary receiver for MDA. 7 [Headnote 6] Lastly, McGhan asserts that the district court abused its discretion by denying his motion to terminate the

receivership. NRS 78.650(4) provides that the district court “may at any time for sufficient cause make a decree terminating the receivership.” Consequently, the decision to terminate a receivership rests in the sound discretion of the district court under the plain language of NRS 78.650(4). We again conclude that the district court acted within its discretion in denying McGhan's motion to terminate the receivership. CONCLUSION Accordingly, we conclude that the district court properly granted the Nevada shareholders' first motion to amend their complaint, properly determined that the Nevada shareholders satisfied the statutory requirements of NRS 78.650, and had jurisdiction to appoint the temporary receiver for MDA. We also conclude that the district court did not abuse its discretion by appointing a temporary receiver or by denying McGhan's motion to terminate the receivership. Having reviewed MDA and McGhan's remaining contentions on appeal and finding them to be without merit, we affirm the order of the district court appointing a temporary receiver and the order denying the subsequent motion to terminate the receivership. __________ 7

Without citing any legal authority, MDA and McGhan also contend that the district court appointed a temporary receiver and denied McGhan's subsequent motion to terminate the receivership without holding an evidentiary hearing and permitting witnesses to testify. We decline to consider this argument because MDA and McGhan fail to cite any legal authority in support of their position. See SIIS v. Buckley, 100 Nev. 376, 382, 682 P.2d 1387, 1390 (1984) (declining to consider “conclusory arguments, lacking substantive citation to relevant authority, and failing to address the pivotal issues in the case”). Moreover, we emphasize that the district court has only appointed a temporary receiver for MDA. If this case proceeds to trial, the district court should admit evidence and testimony in order to determine whether a permanent receiver should be appointed to run MDA's corporate affairs.

____________

Ð116 Nev. 864, 864 (2000) Las Vegas Hous. Auth. v. RootÐ Ð LAS VEGAS HOUSING AUTHORITY and EMPLOYERS INSURANCE COMPANY OF NEVADA, fka STATE INDUSTRIAL INSURANCE SYSTEM, Appellants, v. GERALD ROOT and CITY OF HENDERSON, Respondents. No. 32571 August 30, 2000

8 P.3d 143

Appeal from a district court order denying judicial review and affirming an appeals officer's determination in a workers' compensation case involving successive employers and successive industrial injuries. Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge. Claimant who had sustained injury to his left shoulder over ten years earlier while working for different employer, for which benefits claim was closed, sought recovery of benefits after he sustained additional shoulder injuries while working for City. After City's claims administrator denied benefits, an administrative hearing officer reversed, and City appealed. After separate denial of claimant's request to reopen prior claim was affirmed, and appeals were consolidated, an appeals officer directed reopening of prior claim, and affirmed denial of later claim. The district court denied judicial review. Appeal was taken. The supreme court held that under last injurious exposure rule, City, which employed claimant at times when injury to his right shoulder

caused him to overuse and aggravate prior injury to his left shoulder, and when he subsequently incurred more serious injury, was responsible for providing workers' compensation benefits, as later injuries were not merely a recurrence of earlier injury. Reversed and remanded. Kimberly A. Wanker, Ltd., Henderson, for Appellant Las Vegas Housing Authority. Lenard Ormsby, General Counsel, and Javier A. Arguello, Associate General Counsel, Carson City, for Appellant Employers Insurance Company of Nevada. King Gross & Sutcliffe, Ltd., Las Vegas, for Respondent Gerald Root. Gugino & Schwartz, Las Vegas, for Respondent City of Henderson. 1. Workers' Compensation. Fact that industrial accident resulted in aggravation of worker's preexisting shoulder condition did not provide basis for denial of workers' FRPSHQVDWLRQEHQHILWVZKHUHSUHH[LVWLQJFRQGLWLRQDURVHRXWRIKLVSDVWHPSOR\PHQW

........................................ Ð116 Nev. 864, 865 (2000) Las Vegas Hous. Auth. v. RootÐ Ð compensation benefits, where preexisting condition arose out of his past employment. NRS 616C.175. 2. Workers' Compensation. For a workers' compensation claim to be reopened, statute requires proof of a change of circumstances, and proof that the primary cause of the change of circumstances is the injury for which the claim was originally made. NRS 616C.390. 3. Workers' Compensation. Workers' compensation claimant who sustains a nonindustrial injury that aggravates or exacerbates a previous industrial injury is entitled to reopening of prior workers' compensation claim as long as the industrial injury is the primary cause of the claimant's worsened condition, and the employer at the time of the industrial injury remains liable. NRS 616C.390. 4. Workers' Compensation. In occupational disease, successive-employer cases, “last injurious exposure rule” places full liability for workers' compensation benefits upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability. 5. Workers' Compensation. Last injurious exposure rule applies to cases involving successive employers and successive industrial injuries, and provides for full liability for workers' compensation benefits to be placed upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability. 6. Workers' Compensation. Successive accidental injuries may be divided into three categories—new injuries, aggravations of a prior injury, and recurrences—with liability for workers' compensation benefits generally depending on how injury is characterized: employer/insurer at the time of a new injury or aggravation of a prior injury is liable for all benefits, even if subsequent injury would have been much less severe in the absence of the prior condition, and even if the prior condition contributed to the final condition, but if subsequent injury is merely a recurrence of the first, and does not contribute even slightly to the causation of the disabling condition, the employer/insurer covering the risk at the time of the original injury remains liable for the subsequent injury. 7. Workers' Compensation. Last injurious exposure rule frees claimant seeking workers' compensation benefits from the burden of allocating responsibility for his disability, and forestalls any determination regarding which employment was the primary cause of a work-related disease or injury. 8. Workers' Compensation. Under last injurious exposure rule, claimant's employer at times when injury to his right shoulder caused him to overuse and aggravate old injury to his left shoulder, which had been incurred while working for different employer, and when he subsequently incurred more serious injury to his left shoulder while using wrench, was responsible for providing workers' compensation benefits, where later injuries to left shoulder were not merely a recurrence of earlier injury, and overuse and incident involving wrench contributed at least slightly to causation of disabling condition.

Before Maupin, Shearing and Becker, JJ. ........................................ Ð116 Nev. 864, 866 (2000) Las Vegas Hous. Auth. v. RootÐ Ð

OPINION Per Curiam: At issue in this case is which of two successive employers is liable for workers' compensation benefits when an employee sustains a later industrial injury that aggravates an earlier industrial injury. An administrative appeals officer held the first employer liable by requiring reopening of the employee's original claim under NRS 616C.390. We conclude the appeals officer should have held the subsequent employer liable under the last injurious exposure rule, which places full liability upon the employer covering the risk at the time of the most recent industrial injury that bears a causal relation to the employee's disability, rather than resolving the matter under the claim reopening statute. Because the appeals officer misapplied the law, the district court should have granted judicial review and reversed the administrative decision. FACTS AND PROCEDURAL HISTORY Respondent Gerald Root injured his left shoulder in 1981 while working for appellant Las Vegas Housing Authority (LVHA). Appellant Employers Insurance Company of Nevada's predecessor, the State Industrial Insurance System (SIIS), accepted Root's workers' compensation claim. Root was treated for shoulder strain, but he received no disability benefits, and the claim was closed in 1982. Root worked full duty for LVHA for another five or six years, then worked for Stratton Electric, Inc., for two years. In 1989 Root began working as a maintenance man for the City of Henderson, a self-insured employer. In April 1994 Root injured his right shoulder at work. The City's claims administrator, CDS of Nevada, ultimately accepted Root's workers' compensation claim, and Root underwent right shoulder surgery a year later, in April 1995. While awaiting surgery and during recovery, Root favored his right shoulder and overused his left shoulder, which began hurting. In October 1995 Root sought treatment for pain in his left shoulder, and in November 1995 he requested that his 1981 claim be reopened. [Headnote 1] In January 1996, while trying to move a water line with a wrench held in his left hand, Root felt a sudden pain and a tearing sensation in his left shoulder. He finished his shift, reported the injury to his supervisor that evening, and filed a written injury report the following day. Root's physician later concluded that Root had probably sustained a rotator cuff tear. Root submitted aZRUNHUV FRPSHQVDWLRQFODLPZLWKWKH

&LW\ ........................................ Ð116 Nev. 864, 867 (2000) Las Vegas Hous. Auth. v. RootÐ Ð workers' compensation claim with the City. CDS denied the claim under NRS 616.50185 (now NRS 616C.175) based on Root's preexisting problems with his left shoulder. 1 An administrative hearing officer reversed the claim denial, and the City appealed. Meanwhile, SIIS denied Root's reopening request. An administrative hearing officer affirmed, and Root appealed. The appeals were consolidated. In February 1996, while the administrative appeals were pending, Root underwent surgery to repair the torn rotator cuff in his left shoulder. The surgeon discovered the supraspinatus tendon was torn across its entire width, the coracoacromial ligament and biceps tendons were frayed and the synovial membranes were inflamed; however, the surgeon could not tell from the appearance of these conditions when or how they developed. A number of doctors rendered opinions regarding causation; some related Root's torn rotator cuff back to the 1981 injury and natural deterioration, aggravated by the 1994 and 1996 injuries, and some concluded that the torn rotator cuff resulted solely from the 1996 injury. The appeals officer concluded “the 1996 incident was an aggravation of the 1981 injury.” Noting that Root's left shoulder had already become symptomatic in late 1995, before the January 1996 incident with the wrench, the appeals officer decided the January 1996 incident was not the primary cause of Root's disability although it made his shoulder pain worse. Based on the finding that the primary cause of Root's disability was his

preexisting shoulder condition, the appeals officer directed SIIS to reopen the 1981 claim and affirmed CDS's denial of Root's 1996 claim. The district court denied judicial review, and LVHA and SIIS appealed to this court. They contend the appeals officer should have applied the last injurious exposure rule, which places full liability upon the carrier covering the employee at the time of the most recent injury bearing a causal relationship to the disability, instead of determining which injury was the “primary cause” of Root's shoulder disability and whether reopening was warranted. 2 We agree. __________ 1

Denial on this basis was wrong. When CDS denied the claim, NRS 616C.175, formerly NRS 616.50185, provided that an employee was not entitled to compensation if a subsequent industrial injury aggravated, precipitated or accelerated a preexisting condition from a cause or origin that did not arise out of or in the course of his current or past employment. Root's preexisting condition arose out of his past employment. 2

SIIS and LVHA also contend the appeals officer's determination that the 1981 injury was the primary cause of Root's 1996 disability is not supported by substantial evidence. This contention is without merit. The determination is supported by substantial medical evidence, and while there was conflicting ........................................ Ð116 Nev. 864, 868 (2000) Las Vegas Hous. Auth. v. RootÐ Ð DISCUSSION Reopening claims under NRS 616C.390 [Headnotes 2, 3] For a workers' compensation claim to be reopened, NRS 616C.390 requires proof of a change of circumstances and proof that the primary cause of the change of circumstances is the injury for which the claim was originally made. Specifically, NRS 616C.390 provides, in pertinent part: 1. If an application to reopen a claim to increase or rearrange compensation is made in writing more than 1 year after the date on which the claim was closed, the insurer shall reopen the claim if: (a) A change of circumstances warrants an increase or rearrangement of compensation during the life of the claimant; [and] (b) The primary cause of the change of circumstances is the injury for which the claim was originally made; . . . . Thus, a claimant who sustains a nonindustrial injury that aggravates or exacerbates a previous industrial injury is entitled to reopening as long as the industrial injury is the primary cause of the claimant's worsened condition, and the employer at the time of the industrial injury remains liable. See Warpinski v. SIIS, 103 Nev. 567, 747 P.2d 227 (1987). Had this case not involved successive industrial injuries, the appeals officer's determination of primary cause would have been appropriate. A different analysis is required, however, in cases involving successive employers and successive industrial injuries. In these kinds of cases, the last injurious exposure rule applies. See id. at 569, 747 P.2d at 229. The last injurious exposure rule [Headnotes 4, 5] This court adopted the last injurious exposure rule for occupational disease, successive employer cases in

State Industrial Insurance System v. Jesch, 101 Nev. 690, 709 P.2d 172 (1985). “Simply stated, the last injurious exposure rule in occupational disease, successive-employer cases ‘places full liability upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability.' ” Id. at 696, 709 P.2d at 176 (quoting 4 A. Larson, The Law of Workmen's Compensation†  __________ evidence, it was the appeals officer's job to weigh the evidence. See NRS 233B.135(3). The problem here is that the appeals officer should not have been trying to decide the primary cause of Root's 1996 shoulder disability. ........................................ Ð116 Nev. 864, 869 (2000) Las Vegas Hous. Auth. v. RootÐ Ð § 95.20 (1984)). The last injurious exposure rule applies to successive injury cases in the same way. SIIS v. Swinney, 103 Nev. 17, 19, 731 P.2d 359, 360 (1987). Thus, 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. Id. [Headnotes 6, 7] Successive accidental injuries may be divided into three categories —new injuries, aggravations of a prior injury, and recurrences —with the question of who is liable generally depending on how the injury is characterized. Id. at 19, 731 P.2d at 361. The employer/insurer at the time of a new injury or aggravation of a prior injury is liable for all of the claimant's benefits, even if the subsequent injury would have been much less severe in the absence of the prior condition, and even if the prior condition contributed to the final condition. Id. at 19-20, 731 P.2d at 361. However, if the subsequent injury is merely a recurrence of the first, and does not contribute even slightly to the causation of the disabling condition, the employer/insurer covering the risk at the time of the original injury remains liable for the subsequent injury. Id.; see also Collett Electric v. Dubovik, 112 Nev. 193, 198, 911 P.2d 1192, 1196 (1996). The last injurious exposure rule thus frees the employee from the burden of allocating responsibility for his disability and forestalls any determination regarding which employment was the “primary cause” of a work-related disease or injury. See Collett Electric, 112 Nev. at 197, 911 P.2d at 1195; Warpinski, 103 Nev. at 569, 747 P.2d at 229. Although the rule may sometimes produce harsh results for an employer, this court has concluded that it serves the best interests of employees, avoids the difficulties of attempting to apportion responsibility between successive employers and spreads the risks between employers overall. Collett Electric at 197, 911 P.2d at 1195. [Headnote 8] Here, there was evidence that Root's 1994 injury to his right shoulder caused him to overuse his left shoulder, which aggravated his old injury, and that Root's 1996 injury to his left shoulder further aggravated the old injury, or constituted a new injury. The appeals officer concluded “the 1996 incident was an aggravation of the 1981 industrial injury,” and substantial evidence supports that determination. There was no evidence, however, that Root's 1996 left shoulder condition was merely a recurrence of his 1981 injury, and that the 1994 overuse and 1996 incident with the wrench did not contribute even slightly to the causation of the disabling condition. The City of Henderson was Root's employerGXULQJWKHVHODWHULQMXULHV ........................................ Ð116 Nev. 864, 870 (2000) Las Vegas Hous. Auth. v. RootÐ Ð during these later injuries, and the last injurious exposure rule places responsibility for payment of Root's benefits on the City and CDS. CONCLUSION

The appeals officer misconstrued the law and failed to properly apply the last injurious exposure rule. The City was Root's employer at the time of the most recent injuries that bore a causal relation to Root's disability. Consequently, we reverse the district court's order and remand to the district court for entry of an order granting judicial review, reversing the appeals officer's decision and directing the City of Henderson to accept Root's 1996 claim for workers' compensation. See NRS 233B.135(3)(d) (authorizing judicial reversal of an administrative decision affected by a prejudicial error of law).

____________

Ð116 Nev. 870, 870 (2000) Conway v. Circus Circus Casinos, Inc.Ð Ð Ð BEVERLY CONWAY, JULIE REYNOLDS, MALINDA RUIZ, JERI TOW, SHEILA PHILLIPS–HORSLEY, SHERI JOHNSON, KRISTI FITE, ULA GEYER, RENE ROUX, LAURA MATCHAM, SERGIO GARCIA, ROBERT GARCIA, PHYLLIS SHIVELY and MICHELE CAIRNS, Appellants, v. CIRCUS CIRCUS CASINOS, INC., a Nevada Corporation, Respondent. No. 32705 September 15, 2000

8 P.3d 837

Appeal from a district court order dismissing an action filed by employees against their employer requesting injunctive relief and damages for personal injuries. Second Judicial District Court, Washoe County; Peter I. Breen, Judge. Employees sued employer for injunctive relief and for damages for personal injuries sustained as result of their exposure to noxious fumes. The district court dismissed complaint for failure to state claim for relief. Employees appealed. The supreme court held that: (1) Industrial Insurance Act's exclusive remedy provision barred claims for personal injury damages alleging that employer knew of hazardous condition but failed to correct it, but (2) exclusive remedy provision did not bar employees' claims for injunctive relief. Affirmed in part, reversed in part, and remanded. [Rehearing denied March 23, 2001] William M. O'Mara, Reno, for Appellants. ........................................ Ð116 Nev. 870, 871 (2000) Conway v. Circus Circus Casinos, Inc.Ð Ð Robison Belaustegui Sharp & Low, Reno, for Respondent. 1. Appeal and Error. In reviewing dismissal for failure to state claim for relief, appellate court construes the pleading liberally, draws every fair intendment in favor of the non-moving party, and accepts all factual allegations contained in the complaint as true. NRCP 12(b)(5). 2. Appeal and Error. Appellate court will not affirm a district court's dismissal of a complaint 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. NRCP 12(b)(5). 3. Workers' Compensation. For an incident to qualify as an “accident,” for which claimant can recover workers' compensation benefits, the claimant must show the following three 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. NRS 616A.020(1). 4. Workers' Compensation. Industrial Insurance Act's exclusive remedy provision barred employees' claims against employer for damages for injuries arising

from their exposure to noxious fumes, alleging that employer knew of hazardous condition but failed to correct it. Alleged injuries qualified as “accidents” under Act in absence of allegation that employer acted with deliberate and specific intent to injure them. NRS 616A.020(1). 5. Workers' Compensation. Simply labeling an employer's conduct as intentional will not subject the employer to tort liability outside workers' compensation. To avoid Industrial Insurance Act's exclusive remedy provision, employee must factually allege that employer acted with deliberate and specific intent to injure. NRS 616A.020(1). 6. Workers' Compensation. Industrial Insurance Act's exclusive remedy provision did not bar employees' claims for injunctive relief. NRS 616A.020(1).

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: The question in this case is whether the claims contained in the appellants' second amended complaint were properly dismissed by the district court. To answer this question, we are called upon to decide whether the exclusive remedy provision of the Nevada Industrial Insurance Act (“NIIA”) bars appellants' claims. We conclude that the appellants' claims for damages were properly dismissed as being barred by the exclusive remedy provision of the NIIA. However, we conclude that the district court erred by dismissing the appellants' claim for injunctive relief on theJURXQGWKDWLWZDVEDUUHGE\WKHH[FOXVLYHUHPHG\

SURYLVLRQRIWKH1,,$ ........................................ Ð116 Nev. 870, 872 (2000) Conway v. Circus Circus Casinos, Inc.Ð Ð ground that it was barred by the exclusive remedy provision of the NIIA. Because this case was dismissed at the pleading stage, the underlying facts are derived from the appellants' second amended complaint. Appellants (“Employees”) are all employees or former employees of respondent Circus Circus Casinos, Inc. (“Circus Circus”), which operates a hotel-casino in downtown Reno, Nevada. The Employees work in the PBX office, which is the communication switchboard room for the hotel. Prior to 1991, the PBX office was located in the hotel near the casino. In approximately October of 1991, in conjunction with the expansion of the casino, the PBX office was moved to a basement. After several weeks of working in the new location, the Employees began to complain of noxious fumes accumulating in the PBX office. Many of them became sick to their stomachs, experienced headaches and became dizzy while working. In the fall of 1992, one of the Employees was hospitalized. 1 Some of the Employees underwent medical testing at the behest of Circus Circus. The results of the tests were not made known to the Employees. The Employees continued to complain to Circus Circus management about the poor air quality, the noxious fumes and the physical ailments they were experiencing. In October of 1996, some of the Employees had their blood gases tested immediately following their shifts, after having worked a full five-day workweek. 2 The results of the tests indicated that the carbon monoxide levels in the Employees' blood streams were dangerously high. Just prior to returning to work from their days off, their blood gases were tested again. At that time, the carbon monoxide levels were within normal limits. The Employees filed a complaint in the district court alleging various claims of tortious conduct by Circus Circus. The Employees' first amended complaint alleged the following claims for relief: (1) injunctive relief for failure to provide a safe workplace; (2) intentional infliction of physical harm; (3) failure to advise of a dangerous condition; and (4) negligent infliction of mental and physical damage. Pursuant to NRCP 12(b)(5), Circus Circus moved to dismiss the second, third and fourth claims for relief. The district court dismissed the third and fourth claims with prejudice as barred by the NIIA. The district court dismissed the second claim without prejudice, finding that intentional infliction of physical harm is not a legally cognizable cause of action. The court indicated that while a cause of action is recognized for battery or assault, it hadQRWEHHQSURSHUO\VHWRXWLQWKHVHFRQGFDXVHRIDFWLRQ

__________ 1

The record does not reflect the reason for the hospitalization.

2

It is unclear from the factual allegations in the complaint whether these tests were done at the behest of Circus Circus, or whether the Employees arranged for the tests themselves. ........................................ Ð116 Nev. 870, 873 (2000) Conway v. Circus Circus Casinos, Inc.Ð Ð not been properly set out in the second cause of action. The district court allowed the Employees ten days to amend their complaint to state a cognizable claim for relief. The Employees then filed their second amended complaint. This complaint contained the same claims for relief as the previous complaint and added three additional claims: (5) battery; (6) intentional infliction of mental harm; and (7) outrage. 3 Circus Circus moved to dismiss the second through seventh claims for relief. The district court ultimately found that all of the claims for relief were barred by the exclusive remedy provision of the NIIA and dismissed the entire complaint with prejudice. On appeal, the Employees contend that the district court erred in dismissing the first, second, third, fifth, sixth and seventh claims for relief. 4 They argue that these claims fall outside the scope of the NIIA. Circus Circus contends that the district court properly dismissed the Employees' entire complaint as barred by the exclusive remedy provision of the NIIA. 5 [Headnotes 1, 2] 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 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)). In doing so, we accept all factual allegations contained in the complaint as true. See Capital Mortgage Holding v. Hahn, 101 Nev. 314, 315, 705 P.2d 126, 126 (1985). We will not affirm a district court's dismissal of a complaint for failure to state a claim “unless it appears beyond a doubt that the plaintiff could prove no set of facts which, if DFFHSWHG E\ WKHWULHURIIDFWZRXOGHQWLWOHKLP>RU

KHU@WRUHOLHI´ __________ 3

We note that the Employees' sixth and seventh claims for relief, intentional infliction of emotional distress and outrage, are redundant. See Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90, 91 (1981) (recognizing that the torts of intentional infliction of emotional distress and outrage are synonymous). 4

The dismissal of the negligent infliction of mental and physical damage claim is not being appealed.

5

Circus Circus also contends that the Employees' second amended complaint violated NRCP 15(a) and the district court's order because it stated the same claims for relief that were previously dismissed and also added three additional claims for relief without leave of court. The district court's order dismissing the second amended complaint based upon an analysis of NIIA coverage indicated that the Employees tried to comply with the previous order granting leave to amend to state a “cognizable claim for relief.” Therefore, we determine that the second amended complaint was not filed without leave of court. Even if the second amended complaint had been filed without leave of court, a dismissal without prejudice is all that would have been warranted. The district court ultimately dismissed the entire complaint with prejudice on the ground that all the claims for relief were barred by the exclusive remedy provision of the NIIA. ........................................

Ð116 Nev. 870, 874 (2000) Conway v. Circus Circus Casinos, Inc.Ð Ð 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). [Headnote 3] The exclusive remedy provision of the NIIA provides that “[t]he rights and remedies provided in chapters 616A to 616D, inclusive, of NRS for an employee on account of an injury by accident sustained arising out of and in the course of the employment shall be exclusive.” NRS 616A.020(1). An injury is defined, in relevant part, as “a sudden and tangible happening of a traumatic nature, producing an immediate or prompt result which is established by medical evidence.” NRS 616A.265(1). NRS 616A.030 defines an accident as “an unexpected or unforeseen event happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.” Therefore, “[i]n order for an incident to qualify as an accident, the claimant must show the following three 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.” Bullock v. Pinnacle Risk Mgmt., 113 Nev. 1385, 1389, 951 P.2d 1036, 1039 (1997). [Headnote 4] The second amended complaint alleges that the Employees suffered various ailments resulting from their exposure to the noxious fumes. Normally, the exposure to noxious fumes would be classified as an unexpected and unforeseen event. However, the Employees allege that the exposure to these fumes was the result of intentional conduct by Circus Circus and, therefore, not an accident. We have “recognized that employers do not enjoy immunity, under the exclusive remedy provisions of the workers' compensation statutes, from liability for their intentional torts. . . . An employer who commits an intentional tort upon an employee cannot claim that the intentional act resulted in an accidental injury.” Advanced Countertop Design v. Dist. Ct., 115 Nev. 268, 270, 984 P.2d 756, 758 (1999). [Headnote 5] We conclude, however, that the Employees failed to properly plead their intentional torts in order to avoid being barred by the exclusive remedy provision of the NIIA. Simply labeling an employer's conduct as intentional, as the Employees did, will not subject the employer to liability outside workers' compensation. Sanford v. Presto Mfg. Co., 594 P.2d 1202, 1203 (N.M. Ct. App. 1979). The relevant inquiry is not the degree of negligence or even depravity on the part of the employer, but the more narrow question of whether the specific action that injured the employee was an act intended to cause injury to the employee. Id. at 1204. ........................................ Ð116 Nev. 870, 875 (2000) Conway v. Circus Circus Casinos, Inc.Ð Ð We conclude that the Employees may avoid the exclusive remedy provision of the NIIA in regard to their injuries only if Circus Circus deliberately and specifically intended to injure them. See King v. Penrod Drilling Co., 652 F. Supp. 1331, 1334 (D. Nev. 1987); Cerka v. Salt Lake County, 988 F. Supp. 1420, 1421-1422 (D. Utah 1997) (“a showing of knowledge coupled with the substantial certainty that injury will result” is not enough to avoid the exclusive recovery provision of worker's compensation system); Angle v. Alexander, 945 S.W.2d 933, 935 (Ark. 1997) (“the facts must show the employer had a ‘desire' to bring about the consequences of the acts or that the acts were premeditated with the specific intent to injure the employee”); Austin v. Johns-Manville Sales Corp., 508 F. Supp. 313, 317 (D. Maine 1981) (“Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, . . . [or] willfully failing to furnish a safe place to work, . . . this still falls short of the kind of actual intention to injure that robs the injury of accidental character.”) (quoting 2A Arthur Larson & Lex K. Larson, Workmen's Compensation Law § 68.13 at 13-8, and cases cited in n.11 (1976)); Martinkowski v. Carborundum Co., 437

N.Y.S.2d 237, 238 (Sup. Ct. 1981) (“mere knowledge and appreciation of a risk is not the same as the intent to cause injury”). In this case, the Employees failed to factually allege that Circus Circus acted with deliberate and specific intent to injure them. A bare allegation is not enough. An employee must provide facts in his or her complaint which show the deliberate intent to bring about the injury. See Hay v. Hay, 100 Nev. 196, 198, 678 P.2d 672, 674 (1984) (“[a] complaint must set forth sufficient facts to establish all necessary elements of a claim for relief”); see also 6 Larson, supra, § 103.04. The second amended complaint alleges that Circus Circus knew of a condition that was injurious to the Employees, but failed to correct it. This is insufficient to remove their claim from the purview of the exclusive remedy provision of the NIIA. If an employee may exempt his or her claim from the exclusive remedy provision of the NIIA by merely pleading that the employer knew of a condition and failed to remedy it, then the workers' compensation system would be rendered meaningless. For these reasons, we conclude that the exposure to the noxious fumes was “an unexpected or unforeseen event.” We further conclude that the exposure to the noxious fumes satisfies the “suddenly and violently” requirement. In American International Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983), an employee's knee “ ‘gave way' two or three inches, causing a twisting motion and pain and discomfort in his lower back.” The employee continued with his duties, but wasDGPLWWHGWRWKHHPHUJHQF\URRPWKH

QH[WPRUQLQJIRUEDFNSDLQ ........................................ Ð116 Nev. 870, 876 (2000) Conway v. Circus Circus Casinos, Inc.Ð Ð admitted to the emergency room the next morning for back pain. He eventually had to undergo surgery on his back for a rupture of an intervertebral disc caused by the twisting incident at work. This court determined that the incident satisfied the “suddenly and violently” requirement of an accident. Id. at 327, 661 P.2d at 1303. In doing so, this court recognized that “[o]ther jurisdictions . . . have construed similar statutory requirements that compensable accidents occur ‘violently' as properly descriptive of any cause efficient in producing a harmful result.” Id. The third requirement of an accident is also satisfied in this case. As previously stated, some of the Employees allegedly became sick to their stomachs, and experienced headaches and dizziness as a result of being exposed to the noxious fumes. Furthermore, the Employees allege that tests revealed that the carbon monoxide levels in the Employees' blood streams were dangerously high. Therefore, we conclude that the exposure to the noxious fumes produced “at the time, or within a reasonable time, objective symptoms of injury.” For these reasons, we conclude that the Employees' alleged injuries are “injur[ies] by accident sustained arising out of and in the course of the employment.” NRS 616A.020(1). Therefore, the Employees are limited to the remedies provided for under the NIIA. See id. Therefore, we affirm the dismissal of the second through seventh claims for relief. [Headnote 6] We now turn to the question of the dismissal of the Employees' claim for injunctive relief contained in their first cause of action. 6 We conclude that the exclusive remedy provision of the NIIA does not bar injunctive relief. Therefore, we must reverse that portion of the district court's order dismissing the Employees' claim for injunctive relief and remand this case to the district court. In sum, we conclude that the district court properly dismissed the Employees' claims for relief seeking damages because the Employees failed to plead facts showing that Circus Circus deliberately and specifically intended to injure them. Therefore, their alleged injuries come within the purview of the NIIA. However, we conclude that the exclusive remedy provision of the NIIA does not bar the Employees' claim for injunctive relief. __________ 6

The district court's order summarily dismissed the claim for injunctive relief. Neither the Employees' nor

Circus Circus's briefs addressed the district court's dismissal of this claim. However, since the Employees have not advised us that they no longer wish to pursue the dismissal of the claim for relief seeking injunctive relief, we address it here.

____________

Ð116 Nev. 877, 877 (2000) State, Tax Comm'n v. Nevada Cement Co.Ð Ð NEVADA TAX COMMISSION; DEPARTMENT OF TAXATION, THE STATE OF NEVADA, Appellants, v. NEVADA CEMENT COMPANY, Respondent. No. 33178 September 15, 2000

8 P.3d 147

Appeal from a district court order granting a petition for judicial review and reversing a decision of the Nevada Tax Commission that certain parts of machinery and equipment used by respondent are not exempt from the sales and use tax. First Judicial District Court, Carson City; Michael R. Griffin, Judge. Taxpayer, a manufacturer of Portland Cement, sought judicial review of Tax Commission's denial of claim for refund of sales or use taxes paid for steel grinding balls, steel kiln chains, kiln bricks, and castable materials purchased by taxpayer. The district court reversed. Commission appealed. The supreme court held that: (1) as a matter of first impression, a “primary purpose” test applies when determining whether items are exempt from sales or use taxes; and (2) taxpayer's purchases were not exempt from taxation. Reversed and remanded. Rehearing granted; opinion withdrawn; reversed and remanded on rehearing. 117 Nev. ---- , 36 P.3d 418 (2001). Frankie Sue Del Papa, Attorney General, and Elaine S. Guenaga, Deputy Attorney General, Carson City, for Appellants. Paul D. Bancroft, Incline Village, for Respondent. 1. Administrative Law and Procedure. Although the supreme court shall not substitute its judgment for that of the agency on a question of fact, review of questions of law, including a district court's interpretation of statutes, is de novo. NRS 233B.135(3). 2. Taxation. Tax exemptions are strictly construed in favor of finding taxability, and any reasonable doubt about whether an exemption applies must be construed against the taxpayer. 3. Taxation. Under a primary purpose test, only items purchased for the express purpose of resale, and not items purchased for dual purposes that included a purpose that was not resale, were exempted from sales or use taxes, where “retail sale” was defined by statute as “a sale for any purpose other than resale in the regular course of business of tangible personal property.” NRS 372.050, 372.075, 372.080. 4. Taxation. Steel grinding balls, steel kiln chains, kiln bricks, and castable materials were not purchased by manufacturer of Portland Cement for the sole purpose of resale, but instead served the dual purposes of use for manufacture of Portland Cement and contribution of ingredients to the raw mix, and thus, under the primary purpose test, the purchases were not exempt from sales or use taxes. NRS 372.050, 372.075.

........................................

Ð116 Nev. 877, 878 (2000) State, Tax Comm'n v. Nevada Cement Co.Ð Ð 5. Taxation. Tax Commission's interpretation of sales and use tax statutes facially, and as applied in a specific context, was not “rulemaking” that was subject to Administrative Procedures Act's notice and public hearing requirements. NRS 233B.060, 372.050, 372.075.

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: Respondent Nevada Cement Company (“Nevada Cement”) purchases steel grinding balls, steel kiln chains, kiln bricks and castable materials for use in the manufacturing of cement. Nevada Cement paid either sales or use tax when it purchased those items and later sought a refund of the taxes paid. Appellant Nevada Tax Commission (“Commission”) disagreed and determined that the items were not exempt from the sales tax. For the reasons discussed herein, we conclude that the Commission properly concluded that the items were subject to tax. The district court, therefore, erred in reversing the decision of the Commission. FACTS Nevada Cement manufactures and sells Portland Cement. Portland Cement is a chemical bonding agent which, when mixed with water and aggregate, produces ready-mix concrete. Portland Cement is composed of specific proportions of limestone, clay, gypsum, iron, and silica. Throughout the manufacturing process, measurements are taken to evaluate and regulate the amounts and proportions of these ingredients in the product. The manufacturing process is a vigorous, heat-intensive, abrasive process. It begins by crushing limestone, clay, and iron into a raw mix. The raw mix is then heated in the kiln to temperatures over 2,000 degrees. The extreme heat is distributed throughout the mix by the kiln chain. A chemical reaction causes some of the mix to liquefy and the raw mix turns into “clinker,” which is a rock-like substance. The clinker is cooled, then mixed with gypsum and crushed into a fine powder, which is the finished product. During the manufacturing process, various components become disintegrated and are incorporated into the product. These include the steel grinding balls, which crush the raw mix and the clinker. The steel kiln chain also gradually disintegrates in the kiln and becomes part of the raw mix. Next, the kiln brick, which is made of cement-like materials and lines the kiln, gradually disintegrates DQG EHFRPHV LQFRUSRUDWHG

LQWRWKHSURGXFW ........................................ Ð116 Nev. 877, 879 (2000) State, Tax Comm'n v. Nevada Cement Co.Ð Ð and becomes incorporated into the product. The portion of the kiln brick that does not completely disintegrate into the raw mix in the kiln is removed from the kiln, crushed and introduced back into the raw mix. There are also castables, which are made of cement-like materials and line the passageways through which the product passes. The castables gradually disintegrate and are incorporated into the product. The portion of the castables that does not completely disintegrate is removed, crushed, and introduced back into the raw mix. The steel grinding balls, steel kiln chains, kiln brick and castables are composed of iron alumina and silica elements, which are necessary ingredients of Portland Cement. These items are purchased both in Nevada and outside Nevada by Nevada Cement. The items are eventually wholly incorporated into the cement during the manufacturing process. Annually, out of 740,000 tons of raw mix material, approximately 21,000 tons consist of iron. Approximately one percent of that figure comes from the wearing down of the steel parts. Nevada Cement initially paid either sales or use tax when it purchased the steel grinding balls, steel kiln chain, kiln brick and castable materials. Thereafter, Nevada Cement determined that these items were not subject to taxation and requested a refund of the taxes paid from the Nevada Department of Taxation (“Department”).

The taxes at issue in this case are Nevada's sales and use taxes, which are codified under NRS Chapters 372 and 374. The Sales and Use Tax Act in NRS Chapter 372 was adopted during the 1955 legislative session and became effective on July 1, 1955. The sales and use taxes are imposed on items sold at retail. On February 29, 1996, the Department issued a Notice of Audit Deficiency in the amount of $38,496.23 to Nevada Cement. Nevada Cement filed a timely Petition for Redetermination of the Audit Deficiency. Nevada Cement's petition included an appeal of the Department's denial of its refund claim concerning its purchases of eleven different items, some of which were substantially incorporated and some of which were wholly incorporated into the final product. The audit deficiency was revised to $5,878.42, and Nevada Cement paid this in full. The refund claim then proceeded to an administrative hearing. At the administrative hearing, the Department's counsel conceded that of the eleven items, the steel grinding balls, steel kiln chain, kiln brick and castable materials were incorporated into the finished product and should be exempt from the sales and use tax. On October 18, 1996, the Department hearing officer issued his decision denying Nevada Cement's entire refund claim. Nevada Cement appealed to the Commission, and an adminisWUDWLYHKHDULQJZDVKHOG ........................................ Ð116 Nev. 877, 880 (2000) State, Tax Comm'n v. Nevada Cement Co.Ð Ð trative hearing was held. On April 23, 1997, the Commission issued its decision affirming the hearing officer's decision denying Nevada Cement's entire refund claim. Nevada Cement filed a petition for judicial review with the district court. In the petition, Nevada Cement abandoned its claim regarding the seven items that were not completely incorporated into the cement and pursued only the portion of the refund claim relating to the remaining four items (the steel grinding balls, steel kiln chain, kiln brick and castables) that were wholly incorporated into the cement. On September 8, 1998, the district court reversed the decision of the Commission and granted Nevada Cement's refund claim. The district court determined that iron alumina and silica are necessary components of Portland Cement, the four items at issue were composed of these elements, and the items contribute significant amounts of these ingredients to the cement. The district court concluded that the standard approved by the Attorney General in Op. Nev. Att'y Gen. 74 (June 24, 1955) (“Opinion 74”) established a physical-ingredient test to determine exclusion from the sales and use tax and rejected a primary purpose test. The district court also held that the administrative decisions had erroneously adopted a primary purpose test. The district court also held that the steel grinding balls, steel kiln chain, kiln bricks, and castable materials were excluded from taxation under the physical-ingredient test and that Nevada Cement was entitled to a refund of the taxes paid on the items, with interest. The Commission subsequently appealed. DISCUSSION [Headnotes 1, 2] The burden of proof is on the party attacking or resisting an administrative agency's decision. See NRS 233B.135(2). Although this court shall not substitute its judgment for that of the agency on a question of fact, review of questions of law, including a district court's interpretation of statutes, is de novo. See NRS 233B.135(3); State, Dep't. of Mtr. Vehicles v. Frangul, 110 Nev. 46, 48, 867 P.2d 397, 398 (1994). Additionally, this court has held that “[t]ax exemptions are strictly construed in favor of finding taxability and that any reasonable doubt about whether an exemption applies must be construed against the taxpayer.” Shetakis Dist. v. State, Dep't Taxation, 108 Nev. 901, 907, 839 P.2d 1315, 1319 (1992). The question of whether to apply the “physical-ingredient” test or the “primary purpose” test is an issue of first impression before this court. Several other jurisdictions have split between the two tests. These jurisdictions have dealt with statutes having simLODU ODQJXDJH WKDW SHUPLW H[HPSWLRQ IURP VDOHV RU XVH WD[

LWHPVZKLFKHQWHULQWRRUEHFRPHDQLQJUHGLHQWRUSDUWRIDILQLVKHGSURGXFW ........................................

Ð116 Nev. 877, 881 (2000) State, Tax Comm'n v. Nevada Cement Co.Ð Ð ilar language that permit exemption from sales or use tax items which enter into or become an ingredient or part of a finished product. Alabama, Georgia, Missouri, Nebraska, New York, Texas, and Washington all appear to follow the physical-ingredient rule. 1 Meanwhile, Arkansas, California, Colorado, Illinois, Ohio, and Tennessee have applied the primary purpose test. 2 Nevada Cement argues that the district court properly applied the physical-ingredient test to determine that the items at issue in the present case are exempt from taxation based on the Attorney General's Opinion 74, which interprets NRS 372.080. Under the physical-ingredient test, when an item becomes a physical ingredient or a component of the finished product, it is a sale for resale, which is excluded from taxation. The Nevada sales tax is imposed on the retail sale of tangible personal property to consumers. See NRS 372.105; NRS 374.110. A use tax is levied when a Nevada consumer purchases retail goods out of state, thus preventing avoidance of the sales tax. See NRS 374.190; NRS 372.185. This use tax is imposed on a purchaser based on the purchaser's storage, use or consumption of the goods in Nevada. See NRS 372.185. The definitional statutes exclude from sales tax a purchase for “resale in the regular course of business” and exclude from the use tax a purchase for “sale in the regular course of business.” See NRS 372.050; NRS 372.075. “Storage” and “use” do not include the keeping, retaining or exercising of any right or power over tangible personal property for the purpose of “being processed, fabricated or manufactured into, attached to, or incorporated into, other tangible personal property to be transported outside the state and thereafter used solely outside the state.” NRS 372.080. Nevada Cement argues that this is a clear statement of the physical-ingredient test. On May 23, 1955, the Nevada Tax Commission adopted Ruling No. 9. This ruling provides guidance on the resale exclusion as it applies to property used in manufacturing. The rule states that theVDOHVDQGXVHWD[

³DSSOLHV WR WKH VDOH RI WDQJLEOH SHUVRQDO SURSHUW\ WR SHUVRQV ZKR SXUFKDVH LW IRU WKH SXUSRVHRIXVHLQPDQXIDFWXULQJSURGXFLQJRUSURFHVVLQJWDQJLEOHSHUVRQDOSURSHUW\DQG QRWIRUWKHSXUSRVHRISK\VLFDOO\LQFRUSRUDWLQJLWLQWRWKHPDQXIDFWXUHGDUWLFOHWREHVROG´ __________ 1

See State v. Southern Kraft Corporation, 8 So. 2d 886 (Ala. 1942); Blackmon v. Atlantic Steel Company, 203 S.E.2d 710 (Ga. Ct. App. 1973); Nucor Steel, Etc. v. Herrington, 322 N.W.2d 647 (Neb. 1982); Matter of Finch, Pruyn & Co., Inc. v. Tully, 419 N.Y.S.2d 232 (N.Y. App. Div. 1979); Bullock v. Lone Star Industries, Inc., 584 S.W.2d 386 (Tex. Ct. App. 1979); Lone Star Industries v. State, Dept. of Rev., 647 P.2d 1013 (Wash. 1982). 2

See Hervey v. International Paper Co., 483 S.W.2d 199 (Ark. 1972); Kaiser Steel Corp. v. State Bd. of Equal., 593 P.2d 864 (Cal. 1979); Gold Star Sausage Co. v. Kempf, 679 P.2d 1116 (Colo. Ct. App. 1984); Brennan Cattle Company v. Jones, 242 N.E.2d 192 (Ill. 1968); Merchants Cold Storage Co. v. Glander, 83 N.E.2d 197 (Ohio 1948); Quaker Oats Co. v. Jackson, 745 S.W.2d 269 (Tenn. 1988); Kingsport Pub. Corp. v. Olsen, 667 S.W.2d 745 (Tenn. 1984). ........................................ Ð116 Nev. 877, 882 (2000) State, Tax Comm'n v. Nevada Cement Co.Ð Ð sales and use tax “applies to the sale of tangible personal property to persons who purchase it for the purpose of use in manufacturing, producing or processing tangible personal property and not for the purpose of physically incorporating it into the manufactured article to be sold.” Nevada Cement argues that this ruling does not require that an item be purchased solely for the purpose of incorporation into the finished product. Rather, Nevada Cement argues that “dual-purpose” items may be excluded from taxation as long as one purpose is the physical incorporation of the item into the finished product. Nevada Cement also cites Nevada Tax Commission Ruling No. 47, adopted on May 23, 1955. This ruling addresses the resale exclusion as it applies to property purchased for use in the manufacture of printed matter.

The rule reads, in part, that the printers “are the consumers of all materials which do not become an ingredient part of the printed job.” Nevada Cement argues that this is a clear expression of the physical-ingredient test; a printer must pay sales or use tax on purchases of items that do not become physically incorporated into the final product. In further support of the application of the physical-ingredient test, Nevada Cement points to Opinion 74. Opinion 74 examined the definition of “storage” and “use” to determine whether use of scrap iron in the Nevada portion of a multi-state mining process was excluded from Nevada's use tax. The scrap iron was used to precipitate copper out of a copper sulphate solution. In this process, some of the iron was absorbed into the copper precipitates, and the remainder of the iron lost its physical identity and became a part of the iron sulphate solution. The copper precipitate was then transported outside Nevada for further refining, which removed the iron from the copper precipitate and produced refined copper. See 55-74 Op. Att'y Gen. 180-81 (1955). Opinion 74 cites State v. Southern Kraft Corporation, 8 So. 2d 886 (Ala. 1942), as the case in which the circumstances and conditions best approximated those at issue in Opinion 74. Southern Kraft concerned chemicals used in an Alabama paper manufacturing process. The court in Southern Kraft held that the chemicals were excluded from taxation because they “did, in fact, enter into and become a component part of the finished pulp or paper, and . . . a chemical analysis of the completed product would reveal the exempt ingredients.”55-74 Op. Att'y Gen. 181 (1955). The iron in Opinion 74 was a dual-purpose item, serving two roles in the manufacturing process: it produced a chemical reaction, which caused the copper to precipitate, and the iron also became incorporated as an ingredient of the copper precipitate. Similarly, in the present case, the steel grinding balls, steel kilnFKDLQV

NLOQEULFNVDQGFDVWDEOHPDWHULDOVDOVRVHUYHGXDOSXUSRVHV ........................................ Ð116 Nev. 877, 883 (2000) State, Tax Comm'n v. Nevada Cement Co.Ð Ð chains, kiln bricks and castable materials also serve dual purposes: the items assist the manufacturing process, but also gradually disintegrate and become a necessary part of the final product. Unlike the present case, the iron in Opinion 74 did not remain in the finished product, which was refined copper. The opinion acknowledged that because the iron did not remain in the finished product, the facts presented a “borderline case.” 55-74 Op. Att'y Gen. 182 (1955). However, because the iron remained incorporated in the product while it was undergoing processing in Nevada, the Opinion concluded that the iron was excluded from tax as a sale-for-resale. See id. Nevada Cement also cites Lone Star Industries, Inc. v. State, Department of Revenue, 647 P.2d 1013 (Wash. 1982), for support. In Lone Star, the Washington Supreme Court specifically rejected the primary purpose test imposed by the Washington Department of Revenue. The court held that the purchase of iron grinding balls and firebrick, used in the manufacture of Portland Cement, was not subject to a retail sales tax or use tax. See id. at 1015. The court emphasized the fact that the iron grinding balls and firebrick actually “supply essential ingredients or components of the finished product.” Id. at 1016. Washington's definition of “retail sale” or “sale at retail” means every sale of tangible personal property except “purchases for the purpose of consuming the property purchased in producing for sale a new article of tangible personal property.” 3 Id. at 1014-15. This definition clearly differs from NRS 372.080 because it does not require that the finished product be transported out of the state for use. While NRS 372.080 does not specifically preclude dual-purpose items from exemption, it does not specifically permit such items either. Under Opinion 74, it appears as though a dual-purpose item could be exempted. However, even if this court should apply a physical-ingredient test, which may allow for the exemption of dual-purpose items under NRS 372.080, we conclude that Nevada Cement has not shown that it qualifies for such an exemption. NRS 372.080 requires that the final product into which the property is incorporated be transported outside the state for use outside the state. In the present case, it is undisputed that some of the product is transported outside Nevada and some remains within the state. Accordingly, we hold that the district court erred by applying a physical-ingredient test under NRS 372.080 to the items purchased by Nevada Cement.

__________ 3

NRS 372.050 defines “retail sale” or “sale at retail” as a sale “for any purpose other than resale in the regular course of business.” ........................................ Ð116 Nev. 877, 884 (2000) State, Tax Comm'n v. Nevada Cement Co.Ð Ð [Headnote 3] The Commission argues that the primary purpose test is the proper test to apply to the instant case. The Nevada sales tax is imposed on the retail sale of tangible personal property to consumers. See NRS 372.105; NRS 374.110. A “retail sale” or “sale at retail” is defined as “a sale for any purpose other than resale in the regular course of business of tangible personal property.” NRS 372.050. Thus, the Commission argues that all sales for any purpose other than resale are subject to sales and use tax. Accordingly, if a dual-purpose item is purchased and one purpose is not resale, under the primary purpose test, the sales and use tax would apply. In order for a sale to qualify as a nontaxable sale for resale, the sole purpose of the purchase must be resale. In support of their argument, the Commission points to the position articulated by the Attorney General in Op. Nev. Att'y Gen. 252 (October 26, 1961) (“Opinion 252”). Opinion 252 examined several of the statutes included in Chapter 372 of the Nevada Revised Statutes to determine the liability of American Linen Supply Company for payment of the Nevada use tax with respect to purchases of linens made by it from its wholly owned subsidiary, the American Uniform Company. In considering the language of NRS 372.050, the opinion noted that the wording of NRS 372.050 makes the legislative purpose reasonably clear to exempt only property solely used for resale, because “any purpose” would include all purposes generally. The words “other than” narrow the exempted purpose down to the singular. It is, therefore, reasonable to conclude that using purchased material in linen supply services and subsequently selling such articles after such useage [sic] will not carry with it the singular exemption from the sales tax as created by the act. 61-252 Op. Att'y Gen. 106 (1961) (citations omitted). The Commission argues that this is a clear interpretation of NRS 372.050 as a primary purpose test. The Commission also argues that the approach adopted by the California Supreme Court is persuasive in the present case. The California Supreme Court has determined that the primary purpose test is the proper method for determining whether a sale is taxable as a retail sale or exempt as a sale for resale under a statute nearly identical to NRS 372.050. 4 See Kaiser Steel Corp. v. State Bd. of Equal., 593 P.2d 864 (Cal. 1979). The Kaiser court held that the primary purpose test was proper to determine the exemption of sales of property for the “purpose of physicallyLQFRUSRUDWLQJLWLQWRWKHPDQXIDFWXUHGDUWLFOHWREHVROG´ __________ 4

California Revenue and Taxation Code section 6007 defines a retail sale as “a sale for any purpose other than resale in the regular course of business in the form of tangible personal property.” ........................................ Ð116 Nev. 877, 885 (2000) State, Tax Comm'n v. Nevada Cement Co.Ð Ð incorporating it into the manufactured article to be sold.” See id. at 866. [Headnote 4]

We conclude that the primary purpose test is the appropriate standard to apply under NRS 372.050. We find persuasive both Opinion 252 and the interpretation of the California Supreme Court in Kaiser. Additionally, the plain language of NRS 372.050 clearly suggests a primary purpose test. NRS 372.050 states that a retail sale is a sale “for any purpose other than resale in the regular course of business” (emphasis added). We conclude that this language is properly interpreted to exempt from taxation only those items purchased for the express purpose of resale. In the present case, it is undisputed that Nevada Cement purchased the machinery parts both for use in the manufacture of Portland Cement and for the contribution of ingredients to the raw mix. This is clearly a dual purpose, and under a primary purpose test the items would be subject to taxation. Accordingly, we hold that the district court erred by applying a physical-ingredient test. 5 [Headnote 5] Finally, Nevada Cement argues that the Department has historically followed a physical-ingredient rule. At the administrative hearing, the Department's counsel conceded that the steel grinding balls, steel kiln chain, kiln brick and castable materials were incorporated into the finished product and should be exempt from the sales and use tax. Nevada Cement now argues that this concession and Opinion 74 demonstrate that the Department has historically followed a physical-ingredient rule to distinguish a retail sale from a sale for resale. 6 We conclude that Nevada Cement has failed to show that the Department has historically followed a physical-ingredient test. The argument offered by the Department's counsel was made when Nevada Cement was seeking exclusion of eleven different items, not just the four wholly incorporated into the finished product. Also, Opinion 74 examines a statute not at issue in the preVHQWFDVH __________ 5

The Commission also argues that the items at issue in the instant case are subject to the sales and use tax pursuant to the current tax regulation pertaining to the tax treatment of manufacturers. See NAC 372.370. However, in light of our previous conclusion that the items at issue are subject to the sales and use tax under NRS 372.050, we need not consider this issue. 6

Nevada Cement also argues that the Commission is engaging in rulemaking in violation of the Nevada Administrative Procedures Act, which requires notice and public hearing for all proposed regulations or amendments to existing regulations. See NRS 233B.060. However, we conclude that the Commission is not promulgating regulations because the statute is being interpreted on its face and applied in a specific context. See K-Mart Corporation v. SIIS, 101 Nev. 12, 16, 693 P.2d 562, 565 (1985). ........................................ Ð116 Nev. 877, 886 (2000) State, Tax Comm'n v. Nevada Cement Co.Ð Ð sent case. Accordingly, we conclude that this does not show a historical pattern or use of the physical-ingredient test. CONCLUSION Based on the foregoing analysis, we conclude that the primary purpose test is the proper test to analyze proposed exemptions under NRS 372.050. We further conclude that the district court erred in applying the physical-ingredient test in the instant matter. Accordingly, we reverse the order of the district court holding that Nevada Cement is entitled to a refund and remand this matter to the district court for further proceedings.

____________

Ð116 Nev. 886, 886 (2000) Kantor v. KantorÐ Ð Ð JANET KANTOR, Appellant, v. GARY KANTOR, Respondent. No. 33659 JANET KANTOR, Appellant, v. GARY KANTOR, Respondent. No. 34185 September 15, 2000

8 P.3d 825

Consolidated appeals from the district court's decree of divorce, applying the provisions of a premarital agreement, and an order of the district court awarding respondent attorney's fees. Eighth Judicial District Court, Clark County; Robert E. Gaston, Judge (No. 33659); Gerald W. Hardcastle, Judge (No. 34185). 1 In dissolution proceeding, wife moved to amend her answer to deny validity of premarital agreement. The district court denied wife's motion and applied agreement's provisions to determine that husband's income from kidney dialysis business was not community property. Former wife appealed. Subsequently, the district court granted husband's motion for attorney's fees in connection with wife's motion to amend, awarding him $19,580.00. Former wife appealed. On consolidated appeals, the supreme court held that: (1) denying wife's motion to amend was not an abuse of trial court's discretion; (2) trial court was not obliged to independently determine validity and substantive fairness of premarital agreement, given former wife's admission as to its validity; (3) former husband was entitled to an award of attorney's fees under indemnity provision of premarital agreement; and (4) awarding formerKXVEDQGLQDWWRUQH\ VIHHVZDVQRWDQDEXVHRI

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Judge Robert E. Gaston presided over the divorce proceedings, but Judge Gerald W. Hardcastle ruled on the respondent's motion for attorney's fees. ........................................ Ð116 Nev. 886, 887 (2000) Kantor v. KantorÐ Ð husband $19,580.00 in attorney's fees was not an abuse of discretion. Affirmed. Dowling, Myers & Helm, LLP, Las Vegas, for Appellant. Lemons Grundy & Eisenberg, Reno; Ecker & Standish, Ltd., Las Vegas, for Respondent. 1. Divorce. Denying wife's motion to amend her amended answer in dissolution proceeding to challenge validity of premarital agreement was not an abuse of trial court's discretion. Motion was filed on the “eve” of trial, wife was dilatory in requesting leave to amend, and parties relied on the validity of the premarital agreement, with wife receiving $100,000.00 under terms of the agreement and husband continuing to employ same attorneys who drafted agreement, even though amendment probably would have resulted in their disqualification. NRCP 15(a). 2. Pleading. Although the court rule governing amendment to pleadings states that leave to amend shall be given when justice so requires, this does not mean that a trial judge may not, in a proper case, deny a motion to amend. NRCP 15(a). 3. Pleading. Sufficient reasons to deny a motion to amend a pleading include undue delay, bad faith or dilatory motives on the part of the movant. NRCP 15(a). 4. Appeal and Error; Pleading.

5.

6.

7.

8.

9.

Motion for leave to amend a pleading is addressed to the sound discretion of the trial court, and its action in denying such a motion will not be held to be error absent a showing of abuse of discretion. NRCP 15(a). Divorce. Substantial evidence that former wife was aware that former husband's income from his kidney dialysis business was separate from income from his medical practice, which income premarital agreement defined as community property, supported finding that former wife was dilatory in requesting leave to amend her answer to challenge validity of premarital agreement. Divorce. District court was under no obligation to independently determine the validity and substantive fairness of premarital agreement, where former wife's amended answer admitted the validity of the agreement. Appeal and Error. Generally, a timely notice of appeal divests the district court of jurisdiction to act and vests jurisdiction in the supreme court. Divorce. Decree of divorce was not interlocutory order which could only have been appealed by obtaining a certification. NRS 125.130(1); NRCP 54(b). Divorce. Issue of attorney's fees was collateral to denial of former wife's motion for leave to amend her amended answer and the decree of divorceDQGGLGQRWDIIHFWWKHPHULWVRIKHUDSSHDO

........................................ Ð116 Nev. 886, 888 (2000) Kantor v. KantorÐ Ð and did not affect the merits of her appeal. Thus, district court had jurisdiction to rule on former husband's motion for attorney's fees incurred in opposing former wife's motion to amend her answer. 10. Divorce. Former husband was entitled to an award of attorney's fees under indemnity provision of premarital agreement. Even though agreement also contained a general provision prohibiting an award of attorney's fees to either party, specific indemnity provision entitled a prevailing party to recover costs, including attorney's fees, from the party challenging the validity of the agreement, and former husband prevailed on issue of agreement's validity. 11. Divorce. Awarding former husband $19,580.00 in attorney's fees to oppose former wife's motion to amend her amended answer was not an abuse of discretion. District court was provided with a detailed breakdown of the work performed and the substantial hours billed for the work and court found that the amount requested was reasonable under the circumstances.

Before Young, Agosti and Leavitt, JJ. OPINION Per Curiam: This is a multimillion dollar divorce case involving a premarital agreement. Appellant Janet Kantor challenges (1) the district court's denial of her motion to amend her answer; (2) the district court's failure to determine the validity and substantive fairness of the premarital agreement before applying its provisions; and (3) the district court's award of attorney's fees. We affirm. FACTS AND PROCEDURAL HISTORY Dr. Gary Kantor is a medical doctor specializing in nephrology, which is the treatment of kidney disorders and diseases. Gary's practice, incorporated as a professional corporation, is named Kantor Nephrology Consultants, Ltd. (“KNC”). Gary also has formed separate business entities which provide kidney dialysis services. These businesses are collectively known as the Renal Dialysis Center (“RDC”). Because RDC is not a professional corporation, RDC cannot collect revenue for a physician's services. Therefore, when Gary renders personal medical treatment at an RDC facility, his services are billed through KNC. Before Gary married Janet on November 22, 1990, the parties entered into a premarital agreement. Gary and Janet were represented by separate counsel, although Gary paid Janet's attorney for his services. Under the premarital agreement, Gary and Janet agreed that the income of the other party would be that party's separate property, except as otherwise provided in the agreement. Paragraph 2.2 contained Janet's acknowledgment, which stated:

........................................ Ð116 Nev. 886, 889 (2000) Kantor v. KantorÐ Ð WIFE acknowledges that she understands that, except for this AGREEMENT, the earnings and income resulting from the personal services, skill, effort and work of HUSBAND after the parties' marriage would be community property in which she may have an interest, but that by this AGREEMENT such earnings and income are made HUSBAND's separate property, except as specifically set forth herein to the contrary. WIFE further acknowledges that the income from HUSBAND's separate property is his separate property. (Emphasis added.) The agreement designated some of Gary's earnings as community property. Paragraph 6.1 of the agreement stated, in part, that: [I]t is agreed that any and all salary or fees received by HUSBAND in exchange for his provision of personal medical care and services (as a practicing physician) shall be community property. The parties acknowledge that, presently, all such salary or fees come to HUSBAND in the form of a salary from Kantor Nephrology Consultants, Limited. . . . Janet contends that she was never informed as to the nature and amount of Gary's earnings, specifically his income from RDC. She further contends that, based on Paragraph 6.1 and Gary's representations, she understood that all of Gary's salary and income were derived from KNC, and were therefore community property. Gary, on the other hand, claims that, prior to executing the premarital agreement, he informed Janet that his expected income from KNC was in excess of $500,000.00 per year and that his income from RDC would be substantially higher than $500,000.00 per year. Exhibits to the premarital agreement indicate that Janet had assets worth over $7,000,000.00 and that Gary had assets worth nearly $22,000,000.00. Gary's stock ownership in KNC and RDC were listed as separate assets in these exhibits. Gary filed for divorce on October 22, 1997. The second paragraph of the complaint alleged that the premarital agreement was valid and enforceable. Janet's original answer denied the allegations contained in the second paragraph of the complaint on the ground that Janet was “without sufficient information with which to form a belief as to the truth of said allegations.” Because Gary's attorneys in the divorce proceedings were the same attorneys who represented Gary in the preparation and drafting of the premarital agreement, they were concerned that they would be disqualified as trial counsel if called as witnesses concerning the validity of the premarital agreement. One of Gary's attorneys then discussed the issue with Janet's attorney. On February 13, 1998, Janet filed an amended answer, which admitWHGWKHYDOLGLW\RIWKHSUHPDULWDODJUHHPHQW ........................................ Ð116 Nev. 886, 890 (2000) Kantor v. KantorÐ Ð ted the validity of the premarital agreement. This resolved any concerns regarding the disqualification of Gary's attorneys. A one-day bench trial was scheduled for August 14, 1998. Prior to that, on August 5, 1998, one of Gary's attorneys deposed Janet's accounting expert. During the deposition, the expert presented two reports regarding his calculations of community income. The first report concerned only income from KNC during the marriage. A second report included Gary's income from RDC earned during the marriage, which the expert contended should also be included as community property. Apparently this was the first time it was suggested that Gary's income from RDC should be considered community property. As a result, the original trial date was vacated and trial was re-set for November 20, 1998. On September 21, 1998, Janet's attorney requested depositions from Gary's attorneys. On September 30,

1998, Gary filed a motion for a protective order, seeking to prevent his attorneys from being deposed. Later that same day, Janet filed a motion to amend her amended answer in order to challenge the validity of the premarital agreement. Gary filed a written opposition to the motion. The district court thereafter denied the motion. The trial was held on November 20, 1998. Janet's accounting expert testified that the community was due more than $5,000,000.00 as a result of Gary's income from RDC during the marriage. The district court disagreed and ruled that Gary's income from RDC was not derived from the rendering of personal services as a practicing physician, and therefore was not community property under Paragraph 6.1 of the agreement. During trial, Gary requested attorney's fees arising out of his opposition to Janet's motion to amend her amended answer. The district court stated that Gary would have to file a motion for attorney's fees. Paragraph 10.2 of the premarital agreement states that “[t]he parties confirm and agree that, in the event of a dissolution of the parties' marriage, neither party shall make a claim for attorneys' fees against the other, whether by way of preliminary motion or at the time of trial.” However, Paragraph 12.5 contains a specific indemnity provision which states that: Each party hereunder shall be indemnified for and against all loss, damages, costs and expenses (including, but not limited to, attorneys' fees and costs incurred at the trial and appellate levels) as a result of or arising from any demand, claim or suit by or on behalf of either party hereto contesting or attempting to modify, change, set aside, nullify, or cancel this AGREEMENT or any part or provision of this AGREEMENT for any reason whatsoever. The indemnity SURYLVLRQV RI WKLV $*5((0(17

VKDOO VSHFLILFDOO\ DSSO\ WR FRVWV H[SHQVHV DQG DWWRUQH\V  IHHV DV GHILQHG KHUHLQ LQFXUUHG E\ D SDUW\ VXFFHVVIXOO\ VHHNLQJ HQIRUFHPHQW RI WKLV $*5((0(17 RU DQ\ SURYLVLRQKHUHRI ........................................ Ð116 Nev. 886, 891 (2000) Kantor v. KantorÐ Ð provisions of this AGREEMENT shall specifically apply to costs, expenses and attorneys' fees, as defined herein, incurred by a party successfully seeking enforcement of this AGREEMENT or any provision hereof. The findings of fact, conclusions of law and decree of divorce was filed on December 23, 1998. The district court's order stated that it would defer ruling on the issue of Gary's request for attorney's fees in order to give the parties an opportunity to settle this issue. Janet filed her notice of appeal on January 21, 1999. On January 27, 1999, Gary filed a motion for attorney's fees pursuant to the indemnity provision in the premarital agreement. Janet objected to this motion, in part, on the ground that the district court lacked jurisdiction to award attorney's fees after she filed her notice of appeal. The district court ruled that it retained jurisdiction and awarded Gary attorney's fees in the amount of $19,580.00. Janet then appealed the district court's order granting Gary attorney's fees. By order of this court, we consolidated Janet's appeals. DISCUSSION Whether the district court abused its discretion by denying Janet's motion to amend her amended answer [Headnotes 1-4] After a responsive pleading is filed, a party may amend his or her pleading “only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” NRCP 15(a). Although the rule states that leave to amend shall be given when justice so requires, “[t]his does not . . . mean that a trial judge may not, in a proper case, deny a motion to amend. If that were the intent, leave of court would not be required.” Stephens v. Southern Nevada Music Co., 89 Nev. 104, 105, 507 P.2d 138, 139 (1973). Sufficient reasons to deny a motion to amend a pleading include undue delay, bad faith or dilatory motives on the part of the movant. See id. at 105-06, 507 P.2d at 139. Furthermore, “[a] motion for leave to amend pursuant to NRCP 15(a) is addressed to the sound discretion of the trial court, and its action in denying such a motion will not be held to be error in the absence of a showing of abuse of discretion.” Connell v. Carl's Air Conditioning,

97 Nev. 436, 439, 634 P.2d 673, 675 (1981). In this case, the district court denied Janet's motion for leave to amend her amended answer because the parties relied on the validity of the premarital agreement, the motion was filed on the “eve” of trial and Janet was dilatory in requesting leave toDPHQG ........................................ Ð116 Nev. 886, 892 (2000) Kantor v. KantorÐ Ð amend. We conclude that the district court did not abuse its discretion by denying Janet's motion for leave to amend her amended answer. The district court found that both parties relied on the validity of the agreement. Janet received $100,000.00 under the terms of the agreement. Additionally, Gary, in reliance on the validity of the agreement, continued to employ the same attorneys who drafted the agreement. Since Gary's attorneys were involved in the drafting and execution of the premarital agreement, they would have become key witnesses at the divorce trial had Janet been allowed to challenge the validity of the premarital agreement. Therefore, Janet's amendment to her amended answer would probably have resulted in the disqualification of Gary's attorneys under SCR 178, which generally prohibits a lawyer from trying a case if the lawyer is a necessary witness in the case. 2 By October of 1998, when Janet sought to amend her answer to challenge the validity of the premarital agreement, Gary had expended substantial sums in legal fees. Janet's counsel informed the court that she would not request the disqualification of Gary's attorneys. However, Janet cites no legal authority for the proposition that the opposing party may waive a violation of an ethical rule such as SCR 178. Therefore, we conclude that the district court's concern about the disqualification of Gary's attorneys was reasonable. After eleven months had passed since the filing of the complaint, Janet filed a motion to amend her amended answer seven weeks before trial. The district court found that Janet filed the motion on the “eve” of trial. Although Janet's counsel informed the court that she would not request a continuance of the trial, we agree with the district court that, in this multimillion dollar divorce case, a challenge to the validity of the premarital agreement made seven weeks before trial would have necessitated an extensive delay. The district court also found that Janet was dilatory in requesting leave to amend her amended answer. Janet contends that upon learning that Gary was attempting to differentiate between his income from KNC and his income from RDC, Janet promptlyVRXJKWWRDPHQGKHUDQVZHULQRUGHUWRFKDOOHQJHWKHYDOLGLW\

RIWKHSUHPDULWDODJUHHPHQW __________ 2

SCR 178 provides that: 1. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (a) The testimony relates to an uncontested issue; (b) The testimony relates to the nature and value of legal services rendered in the case; or (c) Disqualification of the lawyer would work substantial hardship on the client. 2. A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 157 or Rule 159. ........................................

Ð116 Nev. 886, 893 (2000) Kantor v. KantorÐ Ð sought to amend her answer in order to challenge the validity of the premarital agreement. Janet also contends that she did not learn that Gary received income from sources other than KNC until after her expert analyzed financial documents obtained through discovery.

[Headnote 5] We conclude that the district court's finding that Janet was dilatory in requesting leave to amend is supported by substantial evidence. The exhibits attached to the premarital agreement listed KNC and RDC as separate business entities. Also, Paragraph 6.1 of the agreement indicated that Gary's income for “personal medical care and services (as a practicing physician) shall be community property.” This paragraph further explained that “all such salary or fees come to HUSBAND in the form of a salary from [KNC].” Furthermore, Janet was represented by counsel when she executed the agreement. This evidence indicates that Janet was aware that Gary's income from RDC was separate from income from KNC. Therefore, we conclude that the district court's finding that Janet was dilatory in her request for leave to amend was reasonable. In sum, we conclude that the district court did not abuse its discretion by denying Janet's motion for leave to amend her amended answer. Whether the district court erred by applying the terms of the premarital agreement [Headnote 6] Janet contends that the district court erred by applying the terms of the premarital agreement without determining its validity and substantive fairness. Janet primarily argues that Gary, in violation of the fiduciary duties that he owed to her, failed to make adequate disclosures regarding his income before she signed the agreement. See, e.g., Fick v. Fick, 109 Nev. 458, 464, 851 P.2d 445, 450-51 (1993) (recognizing that fiancés owe a fiduciary duty to each other which requires them to provide a full and fair disclosure of the nature and extent of their property and income prior to executing a premarital agreement). The legislature adopted the Uniform Premarital Agreement Act in 1989. The provisions of the act are applicable to any premarital agreement executed on or after October 1, 1989. 1989 Nev. Stat., ch. 472, § 22, at 1009. Since Janet and Gary executed their agreement in 1990, the provisions of the act, codified in NRS Chapter 123A, apply. NRS 123A.080 provides that: 1. A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: ........................................ Ð116 Nev. 886, 894 (2000) Kantor v. KantorÐ Ð (a) That party did not execute the agreement voluntarily; (b) The agreement was unconscionable when it was executed; or (c) Before execution of the agreement, that party: (1) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. NRS 123A.080 puts the burden of proving the invalidity of the agreement on the party challenging the agreement. Since Janet's amended answer admitted the validity of the premarital agreement, we conclude that the district court was under no obligation to independently determine the validity and substantive fairness of the agreement. Whether the district court erred by awarding Gary attorney's fees related to his opposition to Janet's motion to amend her amended answer Janet challenges the district court's award of attorney's fees on the grounds that: (1) the district court lost

jurisdiction to award such fees once Janet filed her notice of appeal; (2) Gary was not entitled to any attorney's fees under the terms of the premarital agreement; and (3) the amount of attorney's fees was unreasonable. [Headnotes 7-9] Generally, “a timely notice of appeal divests the district court of jurisdiction to act and vests jurisdiction in this court.” Rust v. Clark Cty. School District, 103 Nev. 686, 688, 747 P.2d 1380, 1382 (1987). The district court ruled that the decree of divorce was an interlocutory order, and therefore, Janet should have sought NRCP 54(b) certification before appealing the decree of divorce. 3 We conclude that the district court erred by ruling that WKH GHFUHH RI GLYRUFH ZDV DQ LQWHUORFXWRU\ RUGHU ZKLFK FRXOG QRW EH DSSHDOHG

DEVHQWDFHUWLILFDWLRQSXUVXDQWWR15&3E  __________ 3

NRCP 54(b) provides that: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence ........................................

Ð116 Nev. 886, 895 (2000) Kantor v. KantorÐ Ð the decree of divorce was an interlocutory order which could not be appealed absent a certification pursuant to NRCP 54(b). See NRS 125.130(1) (providing that a “judgment or decree of divorce granted pursuant to the provisions of this chapter is a final decree”). However, where the issue is “entirely collateral to and independent from that part of the case taken up by appeal, and in no way affected the merits of the appeal[,]” this court has allowed district courts to grant relief while the case was on appeal. Bongiovi v. Bongiovi, 94 Nev. 321, 322, 579 P.2d 1246, 1247 (1978). We conclude that the issue of attorney's fees was collateral to that part of the case which Janet appealed, i.e., the denial of her motion for leave to amend her amended answer and the decree of divorce. Since this collateral matter did not affect the merits of Janet's appeal, we conclude that the district court did have jurisdiction to rule on Gary's motion for attorney's fees. [Headnote 10] Janet next contends that Gary was not entitled to an award of attorney's fees under the terms of the premarital agreement. As previously stated, Paragraph 10.2 contained a general provision prohibiting an award of attorney's fees to either party. However, the agreement also contained a specific indemnity provision in Paragraph 12.5 which entitled a prevailing party to recover costs, including attorney's fees, from the party challenging the validity of the agreement. Janet argues that Gary was not entitled to recover attorney's fees under the indemnity provision because Janet never had the opportunity to litigate the validity of the agreement on the merits. We conclude that Janet's argument lacks merit because the terms of the indemnity provision state that the prevailing party may recover attorney's fees “as a result of or arising from any demand, claim or suit by or on behalf of either party hereto contesting or attempting to modify, change, set aside, nullify, or cancel this AGREEMENT or any part or provision of this AGREEMENT for any reason whatsoever.” (Emphasis added.) Janet's motion to amend her amended complaint denying the validity of the agreement was an attempt to set aside and nullify the agreement. Therefore, the district court did not err by awarding Gary attorney's fees related to his opposition to Janet's motion for leave to amend. __________

of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision 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. ........................................ Ð116 Nev. 886, 896 (2000) Kantor v. KantorÐ Ð [Headnote 11] Finally, Janet contends that the district court's award of $19,580.00 in attorney's fees to oppose Janet's motion to amend her amended answer was unreasonable. While we express our own surprise at the size of this award, we note that the district court was provided with a detailed breakdown of the work performed and the substantial hours billed for the work. The court found that the amount requested was reasonable under the circumstances. We conclude that the district court did not abuse its discretion by awarding such a large amount of attorney's fees in this matter. See Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138, 1139-40 (1994) (recognizing that a district court's award of fees and costs will not be disturbed upon appeal absent an abuse of discretion). For these reasons, we conclude that the district court did not err by awarding Gary attorney's fees related to his opposition of Janet's motion for leave to amend her amended answer. CONCLUSION In sum, we conclude that the district court did not abuse its discretion by denying Janet's motion for leave to amend her amended answer. Since Janet admitted the validity of the premarital agreement in her answer, the district court did not err by applying the terms of the agreement. Although the district court erred by finding that the divorce decree was an interlocutory order, we conclude that the district court had jurisdiction to determine Gary's motion for attorney's fees because that issue was collateral to and independent from that part of the case taken up on appeal. We further conclude that Gary was entitled to recover attorney's fees under the indemnity provision of the premarital agreement and that the amount of the award was not an abuse of discretion.

____________

Ð116 Ð Nev. 896, 896 (2000) LFC Mktg. Group, Inc. v. LoomisÐ Ð LFC MARKETING GROUP, INC., Appellant, v. CEBE W. LOOMIS, ANDREW F. LOOMIS, CHRISTIAN W. LOOMIS and JUST C. LOOMIS, Respondents. No. 31608 September 19, 2000

8 P.3d 841

Appeal from an order granting a writ of attachment and denying a third-party claim to the attached property. Second Judicial District Court, Washoe County; Brent T. Adams, Judge. Judgment creditor obtained ex parte writ of attachment in attempt to satisfy judgment against individual from assets held inHVFURZIRUFRUSRUDWLRQKHDOOHJHGO\FRQWUROOHG ........................................

Ð116 Nev. 896, 897 (2000) LFC Mktg. Group, Inc. v. LoomisÐ Ð escrow for corporation he allegedly controlled. Corporation filed third-party claim asserting sole ownership of assets. The district court determined that corporation was alter ego of individual and allowed satisfaction of judgment out of attached assets. Corporation appealed. The supreme court held that: (1) writ of attachment may be used post-judgment, (2) alter ego doctrine may be applied in reverse to reach corporation's assets to satisfy controlling individual's debt, and (3) substantial evidence supported determination that corporation was alter ego of individual. Affirmed. Skinner Sutton Watson & Rounds and Philip A. Olsen, Incline Village, for Appellant. Richard G. Hill and William Patterson Cashill, Reno, for Respondents. 1. Attachment. Writ of attachment may be used post-judgment under statute that allows application for writ of attachment at time of issuance of summons or “at any time thereafter.” NRS 31.010. 2. Corporations. Essence of alter ego doctrine, which allows piercing of the corporate shield, is to do justice whenever it appears that the protections provided by the corporate form are being abused. 3. Corporations. Reverse piercing, under which alter ego doctrine is applied to recover individual debt from assets of corporation determined to be alter ego of individual debtor, is appropriate in those limited instances where the particular facts and equities show the existence of an alter ego relationship and require that the corporation fiction be ignored so that justice may be promoted. 4. Appeal and Error. Exception to deferential standard normally applied to trial court's application of alter ego doctrine exists when it is clear that a wrong conclusion has been reached. 5. Corporations. Following factors, though not conclusive, may indicate the existence of an alter ego relationship: (1) commingling of funds, (2) undercapitalization, (3) unauthorized diversion of funds, (4) treatment of corporate assets as the individual's own, and (5) failure to observe corporate formalities. 6. Corporations. Absence of corporate ownership by individual debtor does not automatically preclude application of reverse piercing. Circumstances of each case and interests of justice control. 7. Corporations. Evidence, that individual debtor, despite not owning single share of corporation, held himself out as its president, CEO, and primary owner, acted as ultimate authority for all of corporation's dealings, and allowed FRUSRUDWLRQ V ELOOV WR EH

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........................................ Ð116 Nev. 896, 898 (2000) LFC Mktg. Group, Inc. v. LoomisÐ Ð corporation's bills to be paid by related entity owned by his wife, showed sufficient unity of ownership and interest to support determination that corporation was alter ego of individual. 8. Corporations. In determining whether corporate veil can be pierced to satisfy debt of individual out of corporate assets, potential harm to innocent shareholders or corporate creditors must be considered. 9. Corporations. Evidence that judgment creditors had been unable to satisfy judgment against individual debtor for three years, despite debtor's being dominant force behind Nevada corporation, and that debtor's brother, as corporation's sole shareholder, would not be harmed if debt was collected from corporate assets, supported finding that refusing to allow reverse piercing would sanction fraud or promote injustice.

Before Rose, C. J., Young and Leavitt, JJ. OPINION

Per Curiam: SUMMARY This case presents us with two issues: (1) whether a writ of attachment may be used to secure property after a judgment has already been obtained; and (2) whether a judgment creditor can pierce the corporate veil using a reverse alter ego analysis to reach the assets of a corporation that is allegedly controlled by the judgment debtor. Since 1996, Cebe, Andrew, Christian and Just Loomis (the “Loomises”) have been trying to recover a $25,000.00 judgment from William Lange (“William”) concerning a failed real estate transaction with William's brokerage firm Lange Financial Corporation (“LFC”). Unable to satisfy their judgment, the Loomises obtained a writ of attachment on commissions payable to LFC Marketing Group, Inc. (“LFC Marketing”) held in escrow by a Nevada title company. LFC Marketing, whose sole shareholder is William's brother Robert Lange (“Robert”), disputed that William was entitled to any of the commissions and requested a hearing on the writ to settle title to the deposited monies. The district court determined that LFC Marketing was the alter ego of William, and thus ordered that the Loomises' judgment be satisfied out of the attached commissions. We first conclude that the procedure employed by the Loomises—using a writ of attachment to aid in post-judgment recovery—is allowable under our statutes. Further, we conclude that in certain limited circumstances, the alter ego doctrine may be applied to recover an individual debt from the assets of a corporation determined to be the alter ego of the individual debtor. ........................................ Ð116 Nev. 896, 899 (2000) LFC Mktg. Group, Inc. v. LoomisÐ Ð Finally, we conclude that there was substantial evidence in this case to support the district court's finding. STATEMENT OF FACTS The underlying facts of the transaction that ultimately resulted in a judgment in favor of the Loomises against William are recited in Loomis v. Lange Financial Corp., 109 Nev. 1121, 865 P.2d 1161 (1993). The relevant judgment in that case was the district court order requiring William to pay the Loomises $25,000.00 in attorney fees. This case involves the Loomises' attempts to collect the judgment owed by William, a California resident and sole shareholder of LFC, who currently does not have a Nevada real estate license. LFC, a California brokerage firm with whom the Loomises contracted to market and sell property owned by the Loomises in downtown Reno, is associated with a consortium of smaller companies, collectively known as the LFC Real Estate Network. Included in this network is LFC Marketing, a Nevada corporation performing real estate brokering services whose sole shareholder and president is William's brother Robert. A month after LFC Marketing's incorporation, William was elected vice president “for the purpose of conducting related activities,” but was not authorized to conduct any activity on behalf of LFC Marketing that required a real estate license. Also included in the network is LFC Communications Limited (“LFC Communications”), a California entity performing advertising services whose sole shareholder is William's wife and whose president is William. Importantly, the Nevada Land and Resources Company (“NLRC”) hired LFC Marketing and LFC Communications to assist in selling its substantial Nevada real estate holdings. As a result of services provided by LFC Marketing, NLRC deposited funds in excess of $25,000.00 with a local Nevada title company to be paid to LFC Marketing. Having learned of the NLRC deposit, the Loomises filed an ex parte motion for a writ of attachment 1 on August 4, 1997, which requested the seizure of the deposited monies in the amount of $25,000.00 plus interest to satisfy William's judgment debt. Believing that the attached funds did not belong to William in any way, LFC Marketing filed a third-party claim asserting sole ownership of the attached funds. Pursuant to NRS 31.070(5), 2

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__________ 1

The motion was made pursuant to the writ of attachment procedure of NRS 31.010. However, the motion recognizes that the attachment requested is post-judgment, in contravention to the ordinary case where attachment is a pre-judgment action. 2

NRS 31.070(5) provides that a third party—after service of a written, verified claim—is entitled to a hearing to determine title to the property levied on. ........................................ Ð116 Nev. 896, 900 (2000) LFC Mktg. Group, Inc. v. LoomisÐ Ð hearing was scheduled and held to settle the ownership of the property. At the hearing, which was not attended by William, the Loomises argued that LFC Marketing was the alter ego of William, and thus sought to pierce the corporate veil in reverse to reach the deposited funds. In support of their contention, the Loomises presented the following: (1) Robert's testimony that William wrote ninety percent of LFC Marketing's correspondence to NLRC; (2) evidence that William negotiated and signed early drafts of the marketing agreement between LFC Marketing and NLRC; (3) testimony from one of LFC Marketing's brokers that William drafted the final marketing agreement but asked that the broker sign the final version on LFC Marketing's behalf; (4) evidence that William hired and supervised LFC Marketing's brokers; (5) testimony from NLRC's accountant that he dealt exclusively with William and believed William to be the ultimate authority for all of LFC Marketing's dealings; (6) documentation indicating that William was holding himself out to be the “president and CEO” and the “primary owner” of LFC Marketing; (7) evidence that LFC Communications paid LFC Marketing's bills and that checks written to LFC Marketing should be made out only to “LFC”; (8) evidence that William was being personally compensated for LFC Marketing's work; and (9) evidence that William had negotiated a settlement agreement between the LFC entities and NLRC, and determined how the proceeds were to be divided. LFC Marketing presented the following evidence supporting its claim that William's participation in LFC Marketing's activities was minimal: (1) testimony from Robert that he made LFC Marketing's decisions; (2) testimony from the president of NLRC that he consulted Robert for marketing decisions and William for advertising decisions, but also had joint meetings with the two; (3) testimony that the only reason William dealt more with NLRC was because the parties had agreed that there should be only one point person; and (4) testimony that inter-company checks were only used to pay “incidental expenses.” At the conclusion of the hearing, the district court made an oral ruling concluding that LFC Marketing was the alter ego of William, and thus granted the motion for writ of attachment. Further, the district court ordered that the attached funds be released to the Loomises in satisfaction of the debt owed by William. LFC Marketing appeals this order, claiming that the postjudgment writ of attachment procedure employed by the Loomises was improper and that the district court erred in allowing the corporate veil to be pierced in reverse. ........................................ Ð116 Nev. 896, 901 (2000) LFC Mktg. Group, Inc. v. LoomisÐ Ð DISCUSSION Whether a writ of attachment may be used post-judgment to secure property to satisfy the judgment LFC Marketing argues that the unusual procedure utilized by the Loomises here—using a writ of attachment in the post-judgment context—was unprecedented and improper. Specifically, LFC Marketing contends that the statutes governing the satisfaction of judgments required the Loomises to obtain a writ of execution, not

attachment, and to then issue a writ of garnishment, as the funds were in the hands of a third party, namely LFC Marketing. Typically, a writ of attachment is used as a pre-judgment remedy by which a plaintiff requests the court to secure the property of the defendant so that it may be used in satisfaction of any judgment obtained. See 6 Am. Jur. 2d Attachment and Garnishment § 1 (1999). In contrast, a writ of execution is a post-judgment remedy by which a successful plaintiff requests the court to enforce the judgment by seizing and delivering property owned by the defendant in satisfaction of the debt. See 30 Am. Jur. 2d Executions and Enforcement of Judgments §§ 43, 51 (1994). However, because attachment procedures are provided by statute, the issue of whether a writ of attachment may be issued post-judgment is controlled by the terms of these statutes. We have often stated that “ ‘ “[w]here the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.” ' ” Erwin v. State of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995) (quoting Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990) (quoting State v. Jepsen, 46 Nev. 193, 196, 209 P. 501, 502 (1922))). [Headnote 1] The Nevada provisions regulating writs of attachment are contained in sections 31.010 through 31.220 of the Nevada Revised Statutes. In particular, NRS 31.010 provides the general rule for when such writs may issue: The plaintiff at the time of issuing the summons, or at any time thereafter, may apply to the court for an order directing the clerk to issue a writ of attachment and thereby cause the property of the defendant to be attached as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment as provided in this chapter. ........................................ Ð116 Nev. 896, 902 (2000) LFC Mktg. Group, Inc. v. LoomisÐ Ð (Emphasis added.) We conclude that the plain language of this provision allows the unusual procedure of using a writ of attachment post-judgment. LFC Marketing argues that other language in the statute—namely, that a writ of attachment causes the defendant's property “to be attached as security for the satisfaction of any judgment that may be recovered”—suggests that the writ is a pre-judgment remedy only. However, we conclude that the language relied upon by LFC Marketing is ambiguous and unpersuasive in light of the plain and unambiguous provision allowing a plaintiff to apply for a writ of attachment at the time of issuance of the summons or “at any time thereafter.” We further note that under both attachment and execution procedures, the rights of third parties claiming title to the property levied upon is identical. 3 Specifically, a third party is entitled to a hearing within ten days of service of the third party's written, verified claim to resolve title to the property. See NRS 31.070 (providing third-party hearing in writ of attachment context); NRS 21.120(2) (providing that identical hearing procedure is used for third parties in writ of execution context). Therefore, we conclude that the Loomises' use of a writ of attachment to recover a post-judgment debt is allowed under Nevada's existing statutory framework. Whether the district court erred in allowing the corporate veil to be pierced in reverse LFC Marketing first contends that the district court erred when it allowed the Loomises to satisfy their judgment against William out of property belonging to LFC Marketing by piercing the corporate veil in reverse. Specifically, LFC Marketing argues that there is no precedent in Nevada for such a remedy and contends that the court's ruling resulted in fundamental unfairness to LFC Marketing by favoring the Loomises over other parties who may have an interest in the money. [Headnote 2]

Nevada has long recognized that although corporations are generally to be treated as separate legal entities, the equitable remedy of “piercing the corporate veil” may be available to a plaintiff in circumstances where it appears that the corporation is acting as the alter ego of a controlling individual. See McCleary Cattle Co. v. Sewell, 73 Nev. 279, 317 P.2d 957 (1957) (earlyDSSOLFDWLRQRIDOWHUHJRGRFWULQH  __________ 3

We also note that in this case the Loomises are particularly benefited by those provisions allowing a writ of attachment to issue without notice under certain circumstances. See NRS 31.017. Such circumstances include when the debtor resides in another state or when the property sought to be attached is in danger of being removed from the state. See id. ........................................ Ð116 Nev. 896, 903 (2000) LFC Mktg. Group, Inc. v. LoomisÐ Ð application of alter ego doctrine). Indeed, the “essence” of the alter ego doctrine is to “do justice” whenever it appears that the protections provided by the corporate form are being abused. See Polaris Industrial Corp. v. Kaplan, 103 Nev. 598, 603, 747 P.2d 884, 888 (1987). While the classic alter ego situation involves a creditor reaching the personal assets of a controlling individual to satisfy a corporation's debt, the “reverse” piercing situation involves a creditor reaching the assets of a corporation to satisfy the debt of a corporate insider based on a showing that the corporate entity is really the alter ego of the individual. See generally Gregory S. Crespi, The Reverse Piercing Doctrine: Applying Appropriate Standards, 16 J. Corp. L. 33, 55-69 (1990) (reviewing the case law on outsider reverse piercing). Although our case law has never directly addressed reverse piercing, most courts considering the issue have allowed such piercing. 4 See, e.g., McCall Stock Farms, Inc. v. United States, 14 F.3d 1562, 1568 (Fed. Cir. 1993); Towe Antique Ford Foundation v. I.R.S., 999 F.2d 1387, 1390-94 (9th Cir. 1993); Zahra Spiritual Trust v. United States, 910 F.2d 240, 243-45 (5th Cir. 1990); Select Creations, Inc. v. Paliafito Am., Inc., 852 F. Supp. 740, 773-74 (E.D. Wis. 1994); Taylor v. Newton, 257 P.2d 68, 72-73 (Cal. Ct. App. 1953); Cargill, Inc. v. Hedge, 375 N.W.2d 477, 478-80 (Minn. 1985); State v. Easton, 647 N.Y.S.2d 904, 908-910 (App. Div. 1995); cf. Floyd v. I.R.S., 151 F.3d 1295, 1298-1300 (10th Cir. 1998) (criticizing reverse piercing theory because practice may unfairly prejudice innocent shareholders and harm a corporation's ability to raise credit). [Headnote 3] Conceptually, we conclude that reverse piercing is not inconsistent with traditional piercing in its goal of preventing abuse of the corporate form. Indeed, “[i]t is particularly appropriate to apply the alter ego doctrine in ‘reverse' when the controlling party uses the controlled entity to hide assets or secretly to conduct business to avoid the pre-existing liability of the controlling party.” Select Creations, 852 F. Supp. at 774. However, it should be emphasized that “[t]he corporate cloak is not lightly thrown aside” and that the alter ego doctrine is an exception to the genHUDOUXOHUHFRJQL]LQJFRUSRUDWHLQGHSHQGHQFH __________ 4

LFC Marketing contends that this court has considered the issue in Baer v. Amos J. Walker, Inc., 85 Nev. 219, 452 P.2d 916 (1969), where we denied recovery from a creditor trying to collect an individual debt from a corporation controlled by the debtor. However, the decision in Baer was based on this court's conclusion that there was no evidence of the individual debtor's control over the corporation or of fraud. See id. at 220-21, 452 P.2d at 917. Thus, although the Baer court recognized that the creditor was seeking to use the alter ego doctrine in reverse, it did not expressly disapprove of such use. Accordingly, the holding in Baer does not control our analysis here. ........................................

Ð116 Nev. 896, 904 (2000) LFC Mktg. Group, Inc. v. LoomisÐ Ð eral rule recognizing corporate independence. Baer v. Amos J. Walker, Inc., 85 Nev. 219, 220, 452 P.2d 916, 916 (1969). Accordingly, we conclude that reverse piercing is appropriate in those limited instances where the particular facts and equities show the existence of an alter ego relationship and require that the corporate fiction be ignored so that justice may be promoted. Whether there was substantial evidence to support the district court's finding LFC Marketing next argues that the district court erred in finding it to be the alter ego of William because two of the requisite three elements of the doctrine were not demonstrated by substantial evidence. [Headnote 4] This court has stated that it will uphold a district court's determination with regard to the alter ego doctrine if substantial evidence exists to support the decision. See Lorenz v. Beltio, Ltd., 114 Nev. 795, 807, 963 P.2d 488, 496 (1998). However, there is an exception to this deferential standard where it is clear that a wrong conclusion has been reached. See Polaris Industrial Corp. v. Kaplan, 103 Nev. 598, 601, 747 P.2d 884, 886 (1987). [Headnote 5] The elements for finding an alter ego, which must be established by a preponderance of the evidence, are: (1) the corporation must be influenced and governed by the person asserted to be the alter ego; (2) there must be such unity of interest and ownership that one is inseparable from the other; and (3) the facts must be such that adherence to the corporate fiction of a separate entity would, under the circumstances, sanction [a] fraud or promote injustice. Id. at 601, 747 P.2d at 886. Further, the following factors, though not conclusive, may indicate the existence of an alter ego relationship: (1) commingling of funds; (2) undercapitalization; (3) unauthorized diversion of funds; (4) treatment of corporate assets as the individual's own; and (5) failure to observe corporate formalities. See id. at 601, 747 P.2d at 887. We have emphasized, however, that “[t]here is no litmus test for determining when the corporate fiction should be disregarded; the result depends on the circumstances of each case.” Id. at 602, 747 P.2d at 887. [Headnote 6] First, LFC Marketing argues that the district court blurred the second element—unity of ownership and interest—with the first—influence and control. LFC Marketing underscores the fact that:LOOLDPGRHVQRW

RZQDVLQJOHVKDUHRI/)&0DUNHWLQJDQGWKXVDUJXHVWKDWWKLVHOHPHQWFDQQRWEHIRXQG ........................................ Ð116 Nev. 896, 905 (2000) LFC Mktg. Group, Inc. v. LoomisÐ Ð William does not own a single share of LFC Marketing, and thus argues that this element cannot be found. We disagree. Although ownership of corporate shares is a strong factor favoring unity of ownership and interest, the absence of corporate ownership is not automatically a controlling event. Instead, the “circumstances of each case” and the interests of justice should control. Id. This is especially true when considering the ease with which corporations may be formed and shares issued in names other than the controlling individual. See State v. Easton, 647 N.Y.S.2d 904, 909 (App. Div. 1995) (allowing a corporation's assets to be reached through reverse piercing where the debtor did not own a single share of the corporation's stock).

[Headnote 7] In this case, there was evidence that William acted as the ultimate authority for all of LFC Marketing's dealings, had negotiated the marketing agreement with NLRC personally, and did not distinguish his interest from the various Lange entities. Further, there was evidence that William considered himself to be the “president and CEO” and the “primary owner” of LFC Marketing. Additionally, there was evidence that LFC Communications paid LFC Marketing's bills and that a common account was used among the LFC entities. Finally, there was testimony that William alone negotiated a settlement agreement with NLRC over a billing dispute and determined which of the LFC entities received the proceeds. We conclude that this evidence is adequate to support the district court's conclusion that there was a unity of interest and ownership. Next, LFC Marketing alleges that the Loomises failed to show that adherence to the corporate entity would sanction a fraud or promote injustice. We disagree. The record reveals that the Loomises were unable to recover their judgment against William for over three years, despite William's being the dominating force behind a Nevada corporation. Indeed, the evidence supports the district court's conclusion that the carefully designed business arrangements between the LFC entities, William, and NLRC contributed to the Loomises' inability to collect their judgment. [Headnotes 8, 9] We recognize, however, as the district court also did, that there are other equities to be considered in the reverse piercing situation—namely, whether the rights of innocent shareholders or creditors are harmed by the pierce. See Floyd v. I.R.S., 151 F.3d 1295, 1300 (10th Cir. 1998) (recognizing potential harm to innocent shareholders or creditors when the corporate veil is pierced in reverse); Cargill, Inc. v. Hedge, 375 N.W.2d 477, 479 (Minn. 1985). In this case, the district court found that Robert, the sole VKDUHKROGHU RI /)&

0DUNHWLQJ ZRXOG QRW EH KDUPHG E\ WKH DWWDFKPHQW DQG WKDW WKH SLHUFH ZDV RWKHUZLVH MXVW ........................................ Ð116 Nev. 896, 906 (2000) LFC Mktg. Group, Inc. v. LoomisÐ Ð shareholder of LFC Marketing, would not be harmed by the attachment and that the pierce was otherwise just. We therefore conclude that the district court's conclusion that adherence to the corporate fiction would sanction a fraud or promote injustice was supported by substantial evidence and proper under the circumstances. CONCLUSION We first conclude that the procedure of utilizing a writ of attachment in the post-judgment context is allowable under Nevada's statutes. Next, we conclude that there are limited circumstances where the alter ego doctrine may be applied “in reverse” in order to reach a corporation's assets to satisfy a controlling individual's debt. Finally, we conclude that there was substantial evidence to support the district court's ruling that LFC Marketing was the alter ego of William. Accordingly, the district court's order granting and issuing the Loomises' writ of attachment is affirmed.

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Ð116 Nev. 906, 906 (2000) Fullerton v. StateÐ Ð Ð ROBERT FULLERTON, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32295

CORINNE F. BENNETT, Appellant, v. THE STATE OF NEVADA, Respondent. No. 32320 September 19, 2000

8 P.3d 848

Petition for rehearing of a consolidated appeal from judgments of conviction, pursuant to a jury verdict, of twenty-one counts for each appellant of sale of an unregistered security. Second Judicial District Court, Washoe County; Deborah A. Agosti, Judge. Defendants were each convicted in the district court of 21 counts of sale of an unregistered security, and they appealed. Cases were consolidated for review. The supreme court, 116 Nev. 435, 997 P.2d 807 (2000), affirmed in part, reversed in part and remanded. State filed petition for rehearing. The supreme court held that defendant produced sufficient evidence that commissions were not paid with respect to 17 of the transactions, thereby indicating their entitlement to limited/small offering exemption from registration. Petition granted in part, denied in part; opinion clarified; remanded. ........................................ Ð116 Nev. 906, 907 (2000) Fullerton v. StateÐ Ð Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender, Washoe County, for Appellant Fullerton. Karla K. Butko, Reno, for Appellant Bennett. Frankie Sue Del Papa, Attorney General, and Grenville T. Pridham and Matthew S. Gabe, Deputies Attorney General, Carson City, for Respondent. Joseph C. Long, Norman, Oklahoma, for Amicus Curiae North American Securities Administrators Association, Inc. 1. Securities Regulation. In a prosecution for offering to sell or selling an unregistered security, the State has the burden of proving that: (1) the defendant offered or sold a security in the state, and (2) the security was not registered. NRS 90.460. 2. Securities Regulation. The State is not required to prove the lack of an exemption under the Uniform Securities Act until the defendant injects some competent evidence showing his entitlement to the exemption; however, once the defendant produces such evidence, the State bears the burden of proving beyond a reasonable doubt that the exemption does not apply. NRS 90.530, 90.690(2). 3. Securities Regulation. Defendants who were charged with 21 counts of sale of an unregistered security produced sufficient evidence that commissions were not paid with respect to 17 of the transactions, thereby shifting burden to State to prove the nonavailability of limited/small offering exemption from registration. Witness testified that he was paid commissions on six sales of stock, testimony only linked four of commissions paid to specific counts, and defendant's testimony showed that he paid commissions on the sales identified by the witness's testimony. NRS 90.460, 90.530(11)(c), 90.690(2).

Before Rose, C. J., Young and Leavitt, JJ. OPINION ON REHEARING Per Curiam: Appellants were each convicted, pursuant to a jury verdict, of twenty-one counts of sale of an unregistered security in violation of NRS 90.460. On appeal to this court, appellants' cases were consolidated for review. On April 6, 2000, this court issued an opinion affirming each appellant's convictions for four counts of sale of an unregistered security and reversing each appellant's convictions for the remaining seventeen counts on grounds of insufficient evidence. See Fullerton v. State, 116 Nev. 435, 9973G 

........................................ Ð116 Nev. 906, 908 (2000) Fullerton v. StateÐ Ð P.2d 807 (2000). Thereafter, the State timely petitioned this court for rehearing. 1 The State raises two issues on rehearing. First the State contends that this court overlooked or misapprehended the applicable law with respect to the burdens of production and proof related to the limited/small offering exemption at NRS 90.530(11). We are persuaded that rehearing is warranted as to this issue, and we grant rehearing for the limited purposes of clarifying the applicable law. NRS 90.460 makes it “unlawful for a person to offer to sell or sell any security in this state unless the security is registered or the security or transaction is exempt under [NRS chapter 90].” Exemptions from registration for certain transactions are set forth at NRS 90.530. At issue in this case is the limited/small offering exemption at NRS 90.530(11). This exemption may not be claimed with respect to a transaction involving the offer to sell or sale of an unregistered security unless “[n]o commission or other similar compensation is paid or given, directly or indirectly, to a person, other than a broker-dealer licensed or not required to be licensed under [NRS chapter 90], for soliciting a prospective purchaser in this state.” NRS 90.530(11)(c). In addressing the sufficiency of evidence to support appellants' convictions in our earlier opinion, we concluded that the evidence adduced at trial proved only that appellants paid to Mr. McVickers 2 commissions for the sales of unregistered securities alleged in four counts of the amended indictment. Fullerton, 116 Nev. at 437-40, 997 P.2d at 809-11. However, we further concluded that no evidence was adduced by the State to show that commissions were paid in connection with the transactions alleged in the remaining seventeen counts. Id. at 439-40, 997 P.2d at 810-11. Thus, we reversed the convictions for insufficient evidence on those counts relative to which no payment of commissions was proved by the State. Id. at 440-41, 997 P.2d at 810-11. Our opinion did not address the applicable burdens of proof and production pursuant to NRS 90.690(2), which states that “[i]n a criminal proceeding, the burden of going forward with evidence of a claim of exemption or exception from a definition is on the person claiming it.” This provision derives from and is identical to Section 608(b) of the Revised Uniform Securities Act of 1985, DQGVKRXOGEHLQWHUSUHWHGFRQVLVWHQWO\

WKHUHZLWK __________ 1

The State has petitioned for leave to allow an interested organization, North American Securities Administrators Association, Inc., to file an amicus brief in support of the State's rehearing petition. Cause appearing, we grant the motion for leave to file the proposed amicus curiae brief. See NRAP 29. The clerk of this court shall forthwith file the previously received brief. 2

Our opinion mistakenly identified Joel McVickers as the payee of the commissions in question; however, the evidence at trial actually showed that the commissions were paid to Greg McVickers. ........................................ Ð116 Nev. 906, 909 (2000) Fullerton v. StateÐ Ð and should be interpreted consistently therewith. 3 The provision is intended to make clear that, “[w]hile the standard of proof that the prosecuting attorney is required to meet to obtain a conviction is establishing the requisite elements of the criminal offense ‘beyond a reasonable doubt,' a defendant claiming an exemption or exception as a defense has the burden of offering evidence to establish that defense.” Uniform Securities Act (1985) § 608 cmt. 2 (amended 1988), 7B U.L.A. 210 (Supp. 2000). [Headnotes 1, 2] Consistent with the Uniform Securities Act, in a prosecution for a violation of NRS 90.460, the State has the

burden of proving that: (1) the defendant offered or sold a security in Nevada; and (2) the security was not registered. See State v. Kershner, 801 P.2d 68, 69-70 (Kan. Ct. App. 1990) (interpreting similar Kansas statute patterned after the Uniform Securities Act); see generally 12A Joseph C. Long, Blue Sky Law § 8.02[1] (1999) (interpreting Uniform Securities Act). Pursuant to NRS 90.690(2), the State is not required to prove the lack of an exemption until the defendant injects some competent evidence showing his entitlement to the exemption; however, once the defendant produces such evidence, the State bears the burden of proving beyond a reasonable doubt that the exemption does not apply. Cf. Kershner, 801 P.2d at 70 (upholding similar interpretation under Kansas statutes); see generally 12A Long, Blue Sky Law § 8.02[2][a]; 79A C.J.S. Securities Regulation § 450 at 514-15 (1995). [Headnote 3] On rehearing, the State argues that appellants failed to present sufficient evidence showing nonpayment of commissions to meet their burden pursuant to NRS 90.530(11)(c) and NRS 90.690(2). 4 Thus the State asserts that it was not required to prove nonavailability of the exemption. We disagree. __________ 3

In 1987, the Nevada Legislature adopted the Uniform Securities Act of 1985 with certain revisions inapplicable here. See 1987 Nev. Stat., ch. 794, §§ 1-77, at 2149-91. The Uniform Securities Act of 1985 was patterned after the Uniform Securities Act of 1956, which itself is patterned after the federal Securities Act of 1933. See Uniform Securities Act (1985) §§ 101-807 (amended 1988), 7B U.L.A. 155 (Supp. 2000); Uniform Securities Act (1956) §§ 101-419 (amended 1958), 7B U.L.A. 509 (1985); Securities Act of 1933, ch. 38, 48 Stat. 74 (codified as amended at 15 U.S.C. §§ 77a-77aa (1994)). Pursuant to NRS 90.860, Nevada's Uniform Securities Act “must be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it and to coordinate the interpretation and administration of this chapter with the related federal laws and regulations.” 4

The State does not contend that appellants failed to meet their burden of production on the remaining conditions listed at NRS 90.530(11)(a), (b) and (d). Indeed, the State conceded below that the only issue with respect to the ........................................ Ð116 Nev. 906, 910 (2000) Fullerton v. StateÐ Ð Our review of the evidence shows that McVickers testified that he was paid commissions on six sales of First Phoenix stock. However, McVickers' testimony only linked four of the commissions paid to specific counts alleged in the amended indictment—counts III, VI, VIII and IX. Fullerton's testimony showed that he paid the commissions on the sales of securities identified by McVickers' testimony, not on the remaining sales within the issue. We conclude that Fullerton's testimony was sufficient to meet appellants' burden of producing some competent evidence that commissions were not paid on the seventeen sales not identified as a basis for commissions received by McVickers. Therefore, consistent with NRS 90.690(2), the State was required to prove beyond a reasonable doubt that appellants in fact paid commissions for the remaining seventeen sales alleged in this case and thus were not entitled to claim the exemption as to those sales. This it failed to do. Accordingly, we reaffirm our previous reversal of appellants' convictions on all counts save counts III, VI, VIII and IX. The State additionally contends that rehearing is warranted because this court overlooked or misapprehended the law regarding whether the payment of commissions on any sale of securities vitiates the availability of the limited offering exemption at NRS 90.530(11) on other sales within the issue. We conclude that the State has failed to demonstrate that rehearing is warranted on this issue. See NRAP 40(c)(1). CONCLUSION We grant rehearing for the limited purpose of clarifying our earlier opinion with respect to the applicable

burdens of production and proof pursuant to NRS 90.690(2). We conclude that appellants met their burden of producing evidence indicating entitlement to an exemption pursuant to NRS 90.530(11)(c) on all counts save counts III, VI, VIII and IX. We further conclude that the State failed to prove beyond a reasonable doubt that commissions were paid on any sales alleged in the amended indictment other than those alleged in counts III, VI, VIII and IX. Accordingly, we reaffirm our previous reversal of the convictions for the remaining seventeen counts. We decline to grant rehearing on the State's remaining allegation. Consistent with our earlier opinion, we remand this case to the district court for further proceedings. __________ elements of the limited/small offering exemption was whether the respective defenses had produced sufficient evidence showing that no commissions were paid in conjunction with the sales in question. ____________

Ð116 Nev. 911, 911 (2000) Paschall v. StateÐ Ð RAYMOND PAUL PASCHALL, Appellant, v. THE STATE OF NEVADA, Respondent. No. 34288 September 19, 2000

8 P.3d 851

Appeal from a judgment of conviction, pursuant to a bench trial, of two counts of felony driving under the influence. Second Judicial District Court, Washoe County; Jerome Polaha, Judge. Defendant was convicted in the district court of two counts of felony driving under the influence (DUI). Defendant appealed, challenging validity of prior misdemeanor convictions that were used to enhance current charges from misdemeanors to felonies. The supreme court held that: (1) legislature had power to vest justice courts with jurisdiction to suspend sentences of misdemeanor defendants, and (2) county's DUI ordinance did not require approval of the board of directors of the state's Department of Transportation prior to its valid enactment. Affirmed. Edwin T. Basl, Reno, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe County, for Respondent. 1. Automobiles. Even if justice courts exceeded their jurisdiction by suspending defendant's jail sentences for his two prior misdemeanor convictions, this did not affect validity of defendant's prior misdemeanor convictions, and thus they could still be used to enhance defendant's driving under the influence (DUI) charges to felonies. NRS 4.373, 484.3792(1)(c). 2. Sentencing and Punishment. The failure to properly sentence does not render the trial and proceedings a nullity. 3. Constitutional Law. Statutes should be construed, if reasonably possible, so as to be in harmony with the constitution. 4. Statutes. Where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself. 5. Constitutional Law. The legislature has no power to enlarge the jurisdiction of any court beyond that expressed in the constitution. 6. Constitutional Law; Sentencing and Punishment.

Legislature has power under state constitution to vest justice courts with jurisdiction to suspend the sentences of misdemeanor defendants, and thus statute granting justice courts with such suspension power is constitutional. Const. art. 5, § 14; art. 6, § 8; NRS 4.373.

Ð116 Nev. 911, 912 (2000) Paschall v. StateÐ Ð 7. Courts. Attorney general opinions are not binding authority on the supreme court. 8. Automobiles. County's generally applicable driving under the influence (DUI) ordinance did not require approval of the board of directors of the state's Department of Transportation prior to its valid enactment. NRS 484.779(3).

Before Rose, C. J., Young and Leavitt, JJ. OPINION Per Curiam: SUMMARY This case involves Raymond Paul Paschall's two convictions for driving under the influence (“DUI”), which were enhanced from misdemeanors to felonies through the introduction of two prior misdemeanor convictions. Prior to trial, Paschall raised numerous arguments in an effort to invalidate the prior convictions, all of which the district court rejected. Now on appeal, Paschall argues that: (1) the earlier justice courts did not have jurisdiction to suspend Paschall's sentences in the prior convictions; and (2) one of the convictions was prosecuted under a county DUI ordinance that had not been approved by the board of directors (the “board”) of the Nevada Department of Transportation (“NDOT”), as required by statute. We conclude that the prior convictions were valid because: (1) justice courts properly have the power to suspend the sentences of misdemeanor defendants under the current statutory scheme; and (2) the county DUI ordinance under which Paschall was earlier convicted did not require approval of NDOT's board prior to enactment. STATEMENT OF FACTS In 1997 and 1998, Paschall received two DUI citations. Because Paschall had two prior DUI convictions within seven years, the 1997 and 1998 charges were enhanced to felonies under NRS 484.3792(1)(c), 1 and Paschall was bound over for a jointEHQFKWULDODWWKHGLVWULFWFRXUW __________ 1

NRS 484.3792(1)(c) provides that: [A person who drives under the influence for] a third or subsequent offense within 7 years, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and shall be further punished by a fine of not less than $2,000 nor more than $5,000.

Ð116 Nev. 911, 913 (2000) Paschall v. StateÐ Ð bench trial at the district court. Paschall's prior convictions both resulted in suspended sentences imposed by the justice courts. Paschall moved under several different theories to have the prior convictions invalidated in an effort to avoid the effects of the enhancement statute. However, all of his motions were denied, and the case

proceeded to trial where Paschall was found guilty of both felony charges. This appeal followed. DISCUSSION Whether the justice courts exceeded their jurisdiction by suspending Paschall's sentences in his two prior convictions [Headnote 1] Paschall asserts that the two prior convictions are invalid and cannot be used for enhancement purposes because the justice courts presiding over his earlier proceedings unconstitutionally exceeded their jurisdiction by suspending his jail sentences. 2 Specifically, Paschall asserts that the Nevada Constitution expressly limits the authority to suspend sentences in criminal cases to district courts, thereby depriving the legislature of the power to grant inferior courts, such as justice and municipal courts, authority to suspend. Consequently, Paschall's argument squarely challenges the constitutionality of NRS 4.373, the Nevada statute granting such suspension power to the justice courts. 3 [Headnote 2] Preliminarily, we conclude that Paschall's prior convictions are valid regardless of whether the justice courts exceeded their jurisdiction by suspending the sentences because “[t]he failure to properly sentence does not render the trial and proceedings a nullity.” State v. District Court, 85 Nev. 485, 488, 457 P.2d 217, 219 (1969). However, because the constitutionality of NRS 4.373 is one of first impression, we shall discuss it below. __________ 2

Preliminarily, the State argues that review of Paschall's prior convictions should be limited in light of the United States Supreme Court's decision in Custis v. United States, 511 U.S. 485 (1994). However, we decline this opportunity to adopt such a strict rule limiting collateral attacks and note that we are not bound by the Custis decision as it involved a federal sentencing law not at issue here and merely established the floor for federal constitutional purposes as to when collateral attacks of prior convictions may be prohibited. 3

NRS 4.373 provides, in relevant part, that “a justice of the peace may suspend, for not more than 1 year, the sentence of a person convicted of a misdemeanor,” and lists conditions that may be made a part of the suspension, such as participation in a treatment program. We note that NRS 5.055 provides similar powers to municipal judges and conclude that our analysis here would likely apply if the question of its constitutionality was before us.

Ð116 Nev. 911, 914 (2000) Paschall v. StateÐ Ð [Headnotes 3, 4] In matters concerning a statute's constitutionality, we have held that “ ‘statutes are presumed to be valid, and the burden is on the challenger to make a clear showing of their unconstitutionality.' ” Sereika v. State, 114 Nev. 142, 145, 955 P.2d 175, 177 (1998) (quoting Childs v. State, 107 Nev. 584, 587, 816 P.2d 1079, 1081 (1991)). Further, “ ‘statutes should be construed, if reasonably possible, so as to be in harmony with the Constitution.' ” Id. (quoting State of Nevada v. Glusman, 98 Nev. 412, 419, 651 P.2d 639, 644 (1982)). Finally, it is axiomatic that “ ‘ “[w]here the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.” ' ” Erwin v. State of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995) (quoting Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990) (quoting State v. Jepsen, 46 Nev. 193, 196, 209 P. 501, 502 (1922))).

[Headnote 5] With respect to the jurisdiction of justice courts, this court has recognized the well-established principle that courts of justices of the peace are of special and limited jurisdiction. They can take nothing by intendment or implication. They are creatures of the statute, and as they proceed they must move step by step with its requirements, or their acts will be void. Paul v. Armstrong, 1 Nev. 82, 99-100 (1865). However, the legislature's power to define a justice court's jurisdiction is not absolute because “the legislature has no power to enlarge the jurisdiction of any court beyond that expressed in the Constitution.” Moore v. Orr, 30 Nev. 458, 462, 98 P. 398, 399 (1908). Therefore, our inquiry focuses on the Nevada Constitution and its provisions regarding justice courts. [Headnote 6] As amended in 1978, article 6, section 8 of the Nevada Constitution states: The Legislature shall determine the number of Justices of the Peace . . . and shall fix by law their qualifications, their terms of office and the limits of their civil and criminal jurisdiction, according to the amount in controversy, the nature of the case, the penalty provided, or any combination of these. Nev. Const. art. 6, § 8. The plain language of this provision mandates that the legislature establish “by law,” and according to the³QDWXUHRIWKHFDVH´

Ð116 Nev. 911, 915 (2000) Paschall v. StateÐ Ð “nature of the case,” the “limits of [a justice court's] civil and criminal jurisdiction.” Id. Accordingly, we conclude that the legislature has the power to vest the justice courts with jurisdiction to suspend the sentences of misdemeanor defendants. [Headnote 7] Paschall, however, directs us to the somewhat contrary language contained in article 5, section 14 of the Nevada Constitution: 3. The legislature is authorized to pass laws conferring upon the district courts authority to suspend the execution of sentences, fix the conditions for, and to grant probation . . . . Nev. Const. art. 5, § 14 (language ratified in 1950) (emphasis added). Because “district courts” alone are mentioned, Paschall argues that by negative implication the legislature has no authority to vest justice courts with the power to suspend sentences. See State of Nevada v. Hallock, 14 Nev. 202, 205-06 (1879) (“The affirmation of a distinct policy upon any specific point in a state constitution implies the negation of any power in the legislature to establish a different policy.”). However, this view ignores the broad grant of power in article 6, section 8 of the Nevada Constitution and our duty to interpret statutes “in harmony with the Constitution” when reasonably possible. See Sereika, 114 Nev. at 145, 955 P.2d at 177. Accordingly, we conclude that that language of article 5, section 14 of the Nevada Constitution does not control the matter. 4 Having concluded that the Nevada Constitution gives the legislature authority to grant justice courts the power to suspend sentences, we hold that NRS 4.373, which grants such power to the justice courts, is constitutional. Therefore, the suspended sentences in Paschall's prior convictions were properly entered by the justice courts presiding over those charges. Whether Paschall's first prior conviction is invalid because the charged violation was not approved as required by NRS 484.779

[Headnote 8] Paschall next argues that his first prior conviction is invalid because the DUI ordinance under which he was charged, Washoe &RXQW\ &RGH †  KDG QRW EHHQ ³DSSURYHG E\ WKH ERDUG RI

GLUHFWRUVRIWKHGHSDUWPHQWRIWUDQVSRUWDWLRQ´DVUHTXLUHGE\156 __________ 4

We note that in 1976, voters defeated a proposed constitutional amendment to article 5, section 14, that would have included “inferior courts”—i.e., justice and municipal courts—to the list of courts the legislature could authorize to suspend sentences. However, because we have concluded that article 5, section 14, does not control the inquiry, this fact is only of historical import. We also note that two opinions from the Attorney General—from 1966 and 1978—concluded that justice courts did not have the authority to suspend sentences. However, we conclude that the opinions are distinguishable because

Ð116 Nev. 911, 916 (2000) Paschall v. StateÐ Ð County Code § 70.3865, had not been “approved by the board of directors of the department of transportation” as required by NRS 484.779. In general, a local authority's ability to enact its own traffic ordinances is governed by NRS 484.777(2), which provides the following broad grant of power: Unless otherwise provided by specific statute, any local authority may enact by ordinance traffic regulations which cover the same subject matter as the various sections of this chapter if the provisions of the ordinance are not in conflict with this chapter. NRS 484.777(2). One such “specific statute” limiting NRS 484.777 is NRS 484.779. NRS 484.779(1)(a)-(e) includes a list of specific regulations that may be enacted under its provisions, including: (1) regulation of processions or assemblages; (2) defining one-way roads; (3) regulating intersections with highways; (4) designating truck and bicycle routes; and (5) “[a]dopting such other traffic regulations related to specific highways as are expressly authorized by this chapter.” NRS 484.779(1)(e). NRS 484.779(3) then states an important condition to the enactment of the regulations it permits: An ordinance enacted under this section is not effective with respect to: (a) Highways constructed and maintained by the department of transportation under the authority granted by chapter 408 of NRS; .... until the ordinance has been approved by the board of directors of the department of transportation. NRS 484.779(3) (emphasis added). Thus, Paschall contends that the county DUI ordinance under which he was earlier prosecuted falls within the purview of NRS 484.779, and thus required approval from the NDOT board prior to enactment. However, the plain language of NRS 484.779 limits board approval to those ordinances “enacted under this section”—namely, those ordinances listed in NRS 484.779(1)(a)-(e). These subsections deal generally with the use and flow of traffic on state highways or the regulation of a “specific” highway. The ordinance at issue here, however, is a generally applicable safety regulation unrelated to those enumerated in NRS 484.779(1)(a)-(e). See Washoe County&RGH† __________

there was no legislative grant of such power in the statutes in effect at the time the opinions were written. Moreover, attorney general opinions are not binding authority on this court. See Goldman v. Bryan, 106 Nev. 30, 42, 787 P.2d 372, 380 (1990).

Ð116 Nev. 911, 917 (2000) Paschall v. StateÐ Ð Code § 70.3865. Accordingly, we conclude that the county DUI ordinance is not an ordinance “enacted under” NRS 484.779, and thus board approval is not required. 5 Therefore, we conclude that Paschall's first prior conviction was valid and not entered upon an improperly enacted county ordinance. CONCLUSION We first conclude that NRS 4.373, which authorizes justice courts to suspend sentences, is constitutional. Next, we conclude that a local authority's generally applicable DUI ordinance does not require NDOT board approval prior to its valid enactment. Therefore, the prior DUI convictions introduced against Paschall were valid and properly considered by the district court for enhancement purposes. 6 Accordingly, we affirm the district court's judgment. __________ 5

We note that a 1983 Attorney General's opinion considered an issue nearly identical to the one here and arrived at the same conclusion. See 83-12 Op. Att'y Gen. 43 (1983). 6

In addition to the issues discussed above, Paschall raises numerous other arguments on appeal, including: (1) that the prior convictions are invalid for alleged Faretta violations; (2) that his first prior conviction shows a jurisdictional violation on its face because the “State of Nevada” prosecuted the Washoe County DUI violation rather than the “County of Washoe”; (3) that the waiver form for the second prior conviction is invalid because it shows that Paschall did not waive three of his constitutional rights; (4) that the complaint used to evidence his second prior conviction is invalid because it is a “misdemeanor” complaint that contains an impermissible felony charge and was not in the form of a formal complaint; (5) that because the citation for his second prior conviction does not include all the elements of the offense and does not reference the first prior conviction, the subsequent conviction for second offense DUI is invalid because the State was allowed to proceed on an uncharged theory; (6) that the misdemeanor judgments for his priors, which included a jail term and were entered by a lay judge, violated United States Supreme Court precedent, and are thus void for enhancement purposes; (7) that because his priors imposed an administrative assessment, which funds are in part controlled directly by the courts, the judgment is void because the judge was no longer a neutral and detached magistrate; (8) that his first felony complaint from 1997 is defective because it refers to a conviction for his second prior conviction occurring on “January 8, 1997,” the day of his plea, rather than the later sentencing date; (9) that blood alcohol evidence should have been suppressed regarding his October 6, 1997, charge because he was not allowed to make a phone call within a three-hour time period; and (10) that because the arrests for the later DUIs occurred in Empire on private streets, the State had to prove that Paschall was driving on the “state highway” before Paschall could be convicted. Having reviewed all of Paschall's arguments, we conclude that they lack merit.

____________

Ð116 Nev. 918, 918 (2000) DeChant v. StateÐ Ð AMY RICA DeCHANT, Appellant, v. THE STATE OF NEVADA, Respondent. No. 33520 October 19, 2000

10 P.3d 108

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 one count of robbery with the use of a deadly weapon. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge. Defendant was convicted in the district court of first-degree murder and robbery, and she appealed. The supreme court held that: (1) retired police detective was improperly allowed to testify as to his opinion regarding credibility of story offered by defendant that victim, who was her husband, had been victim of an organized crime “hit”; (2) trial court erred by failing to compel private investigator hired by victim's family to investigate case to disclose his notes, which were not privileged; and (3) cumulative effect of errors deprived defendant of a fair trial, and required reversal. Reversed and remanded. Daniel J. Albregts, Ltd., Las Vegas, for Appellant. Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and Marc P. DiGiacomo, Deputy District Attorney, Clark County, for Respondent. 1. Criminal Law. Reviewing court would treat former police detective who testified on behalf of prosecution as a lay witness, in determining whether admission of his testimony that defendant's story that victim, who was her husband, was the victim of an organized crime “hit” was not credible warranted reversal, even though testimony essentially consisted of specialized knowledge obtained through his experience as a detective, where trial court allowed testimony into evidence as lay opinion. 2. Criminal Law. In general, it is exclusively within the province of the trier of fact to weigh evidence and pass on the credibility of witnesses and their testimony. 3. Criminal Law. A lay witness's opinion testimony concerning the veracity of the statement of another is inadmissible. 4. Criminal Law. Rule that a lay witness's opinion testimony concerning the veracity of the statement of another is inadmissible applies whether or not statePHQW ZKRVH YHUDFLW\ LV EHLQJ FKDOOHQJHG ZDV DFWXDOO\ H[SUHVVHG WKURXJK WHVWLPRQ\ RI DQRWKHU

ZLWQHVVDWWULDO

Ð116 Nev. 918, 919 (2000) DeChant v. StateÐ Ð ment whose veracity is being challenged was actually expressed through testimony of another witness at trial. 5. Criminal Law. Retired police detective could not testify during murder prosecution as to his opinion regarding credibility of story offered by defendant that victim, who was her husband, had been victim of an organized crime “hit.” State did not have detective testify regarding his experience with organized crime murders, and their characteristics, and his testimony had ultimate effect of impermissibly attacking veracity of defendant's statement, and the heart of her defense. 6. Criminal Law. Errors by trial court in permitting retired police detective to give his opinion regarding credibility of story offered by murder defendant that victim, who was her husband, had been victim of an organized crime “hit,” and allowing prosecutor to re-emphasize detective's opinion during trial and in closing argument, could not be deemed harmless, given crucial nature of detective's testimony, and required reversal. 7. Witnesses. Statute governing private investigators under which it is unlawful for a licensed investigator to divulge to anyone, except as he

may be so required by law to do, any information acquired by him, except at the direction of the employer or client for whom the information was obtained, afford no privilege to an investigator or employee summoned as a witness in court from testifying as to facts concerning an issue under investigation, and give a district court discretion to compel disclosure of documents in possession of investigator that are relevant to trial and not covered by any other privilege. NRS 648.200. 8. Criminal Law. Notes prepared by licensed private investigator who had been hired by family of murder victim during initial days of his investigation into murder were not privileged, and thus, trial court presiding over murder prosecution had discretion to compel investigator to disclose notes to defendant. NRS 648.200. 9. Criminal Law. If the cumulative effect of errors committed at trial denied defendant right to a fair trial, appellate court will reverse the conviction. 10. Criminal Law. Relevant factors to consider in deciding whether trial 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. 11. Criminal Law. Cumulative effect of trial court's errors in allowing retired police detective to testify during murder prosecution as to his opinion regarding credibility of story offered by defendant that victim, who was her husband, had been victim of an organized crime “hit,” allowing prosecutor to re-emphasize detective's opinion during closing, and refusing to compel disclosure of notes prepared by private investigator who had been hired by victim's family, denied defendant a fair trial, and mandated reversal.

Before Maupin, Shearing and Becker, JJ.

Ð116 Nev. 918, 920 (2000) DeChant v. StateÐ Ð OPINION Per Curiam: SUMMARY On the night of July 5, 1996, Bruce Charles Weinstein (“Weinstein”), an illegal bookmaker, disappeared from his Las Vegas home. Suspicious of the circumstances surrounding Weinstein's disappearance, his family hired a private investigator, Michael R. Wysocki (“Wysocki”), to determine what happened to Weinstein. Wysocki's investigative efforts focused on Weinstein's live-in love interest, Amy Rica DeChant (“DeChant”). After a week of investigation, Wysocki reported what he had learned to the police. The police then began an official investigation and interviewed DeChant. In a videotaped statement to the police, DeChant recounted that Weinstein was murdered by masked intruders who told her to clean up the evidence and to remain silent. DeChant inferred that Weinstein was killed by individuals connected with organized crime (“mob”) activities. Eventually, DeChant and one of her employees, Robert Wayne Jones (“Jones”), were indicted for the murder and robbery of Weinstein. During trial, over DeChant's objections, the State introduced testimony from a veteran police officer that DeChant's statements about Weinstein being the victim of a mob hit were not credible. This testimony was emphasized by the State during closing arguments. DeChant also attempted to subpoena Wysocki's investigative notes, but her request was denied by the district court, which concluded that the notes were privileged under Nevada law. We conclude that the officer's testimony and the State's reference to the testimony in the State's closing argument impermissibly commented on the veracity of DeChant's statement. Moreover, the district court erred in concluding that Wysocki's notes were privileged. Because of the effect of these errors, we reverse and remand for a new trial. FACTS In the fall of 1995, DeChant, an operator of a successful carpet cleaning business, became romantically involved with Weinstein, an illegal bookmaker working in Las Vegas. DeChant eventually lived with Weinstein at his new home. The following summer, the two planned a vacation for the week after the Fourth of July. On July 5, 1996,

two days before the trip was to begin, Weinstein disappeared from his home. Weinstein'sQHLJKERU