Appeal from a judgment of conviction, pursuant to a jury verdict, of battery with the use of a deadly weapon resulting in substantial bodily harm. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.
Reversed and remanded.
Legal Resource Group, LLC, and T. Augustus Claus, Henderson, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Agnes Lexis, Deputy District Attorney, Clark County, for Respondent.
BEFORE GIBBONS, C.J., DOUGLAS and SAITTA, JJ.
In this opinion, we address justifiable battery and the exercise of self-defense that results in the infliction of bodily harm but not death. Appellant Keonis Davis shot Damien Rhodes in the chest during an altercation. Rhodes survived, and the State charged Davis with one count of attempted murder with use of a deadly weapon and one count of battery with use of a deadly weapon. At trial, the district court denied two of Davis' proposed instructions on justifiable battery, which were both based on a theory of self-defense. The jury found Davis guilty of battery with use of a deadly weapon resulting in substantial bodily harm. Davis now appeals, arguing that the district court erred in denying his proposed instructions regarding self-defense that were accurate statements of Nevada law. We agree, and because the error was not harmless, we reverse Davis' conviction and remand this case to the district court for a new trial.
FACTS AND PROCEDURAL HISTORY
Davis and Rhodes had been close friends, but that friendship deteriorated after Rhodes " took" a gun charge for Davis, incurring a significant fine. Police found the gun during a traffic stop of a vehicle driven by Rhodes. Davis was riding in the backseat and had possession of the gun when the vehicle was stopped, but he passed the gun to another passenger who put it in the front dash. The police arrested Rhodes and the other passenger in connection with the gun; Davis was not arrested. Rhodes subsequently negotiated a plea deal that resulted in four days in jail and a $2,000 fine. After serving the jail time, Rhodes encountered Davis and asked him to reimburse him for the $2,000 fine. However, Davis responded that he did not have the money. As a result, Davis stated that Rhodes challenged him to a fistfight, but it was broken up before any physical altercation occurred. Davis heard from other individuals that Rhodes wanted to physically harm him. He knew that Rhodes had a short temper because he previously witnessed Rhodes violently beat another person. Davis also knew that Rhodes carried a gun
and previously witnessed Rhodes shoot at another person.
About five months later, Davis was at the Rancho Mesa Apartments when he encountered Rhodes again. Davis and Rhodes have different versions of the encounter. According to Davis, he tried to shake Rhodes' hand, but Rhodes refused and asked Davis where the $2,000 was. When Davis responded that he did not have the money, Rhodes attempted to instigate a fight. Davis informed Rhodes that he was armed and did not want to fight. Rhodes implied that he had a gun as well. Davis tried to walk away, but Rhodes ran after him and swung his fist at Davis, clipping the side of his head. Davis pushed Rhodes away to get some space. Rhodes again attempted to attack Davis. Davis started backing up while pulling his gun out. Davis tried to pull the slide of the handgun to chamber the round, but the gun jammed. Rhodes did not retreat. Davis tried to unjam the gun, but it fired and the bullet struck Rhodes in the chest. Davis fled the scene.
Rhodes admitted that he instigated the verbal argument with Davis but claimed that Davis initiated the physical altercation when he shot Rhodes in the chest. While on the ground, Rhodes claimed he heard a loud and clear " click click" noise. Two other witnesses also testified regarding the shooting, one whose story corresponded with Davis' account and the other whose story mirrored Rhodes' version. The latter testified that he saw Davis stand over Rhodes after shooting him and attempt to pull the trigger two more times, but the gun jammed. Police recovered two unspent .22 cartridges and one .22 cartridge case from the scene. However, based on the evidence available, the State's firearms expert could not discern whether the gun jammed before or after the single bullet was successfully fired. Rhodes survived the shooting.
During his six-day jury trial, Davis proposed two jury instructions regarding justifiable infliction of bodily harm. The district court recognized that Davis was entitled to self-defense instructions but rejected his proposed instructions as confusing. Although the district court acknowledged that the proposed instructions mirrored Nevada's self-defense statutory language nearly verbatim, it concluded that the statutes did not accurately reflect ...