petition for a writ of mandamus challenging a district court
order vacating misdemeanor convictions and remanding for a
Bradford R. Jerbic, City Attorney, and Kelly K. Giordani,
Deputy City Attorney, Las Vegas, for Petitioner.
Law Group, LLC, and Jason G. Weiner and Gregory G. Cortese,
Las Vegas, for Real Party in Interest.
HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
opinion, we consider an appellate court's review of
unpreserved trial error. As we have emphasized, it is
incumbent upon the parties to make a contemporaneous
objection to trial error. This not only ensures that the
trial court has an opportunity to rule upon the objection and
take remedial action if appropriate, but it also preserves
the alleged error for appellate review. Conversely,
unpreserved error need not be considered on appeal. While we
have allowed discretionary review of unpreserved error, we
have limited such review to errors that are unmistakably
apparent from a casual inspection of the record. Here, the
district court, acting in its appellate capacity, considered
an unpreserved claim but ignored the clear record and
speculated as to facts that could demonstrate error. As the
district court's review was not in accord with our
established plain error rule, we grant the petition and issue
the requested writ.
AND PROCEDURAL HISTORY
February 2015, Brock Rice, Trey Rosser, and Jeremy Hughes
were leaving a restaurant and bar when they saw Kimberly
Kamide lying on the ground, clearly intoxicated. The three
men offered to give Kimberly a ride to her nearby home. When
they arrived at Kimberly's residence, her husband, Steven
Kamide, ran out of the house toward the vehicle. He pushed
and shoved Kimberly to the ground and got into a physical
altercation with Rice, Rosser, and Hughes.
City of Las Vegas (the City) charged Kamide with one count of
domestic battery and two counts of simple battery in the Las
Vegas Municipal Court. During the bench trial, the City
invoked the witness exclusion rule and Rice, Ross, and Hughes
sat together in the hallway. While cross-examining Hughes
after Rice and Rosser had testified, Kamide's counsel
indicated that she had seen the three men talking together
during a recess. Hughes answered that they had been reading
Twitter together and had not been "talking about
anything." Kamide's counsel did not ask any other
questions regarding the witnesses' interaction or pursue
the matter further.
the municipal court found Kamide guilty of all counts
charged, he appealed to the district court, alleging for the
first time a violation of NRS 50.155(1), the witness
exclusion rule. The district court found that the rule had
been violated. The district court concluded that prejudice
had to be presumed because the record did not clearly show
the absence of prejudice and reversed Kamide's
convictions. The City filed this original writ petition
challenging the district court's decision.
decision to consider a petition for a writ of mandamus lies
within this court's complete discretion. Cote H. v.
Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d
906, 908 (2008). The writ will generally not issue if the
petitioner has a plain, speedy, and adequate remedy at law,
see NRS 34.170, but there is no such remedy for the
City in this matter as "district courts are granted
exclusive final appellate jurisdiction in cases arising in
Justices Courts and such other inferior
tribunals." Sandstrom v. Second Judicial Dist.
Court, 121 Nev. 657, 659, 119 P.3d 1250, 1252 (2005)
(internal quotation marks omitted). "[A]s a general
rule, we have declined to entertain [writ petitions] that
request review of a decision of the district court acting in
its appellate capacity, " noting that we are mindful of
"undermining] the finality of the district court's
appellate jurisdiction." State v. Eighth Judicial
Dist. Court (Hedland), 116 Nev. 127, 134, 994 P.2d 692,
696 (2000). But we have entertained such petitions in
circumstances where the district court "has exercised
its discretion in an arbitrary or capricious manner."
Id. A decision is arbitrary or capricious when it is
"founded on prejudice or preference rather than on
reason, or" is "contrary to the evidence or
established rules of law." State v. Eighth Judicial
Dist. Court (Armstrong), 127 Nev. 927, 931-32, 267 P.3d
777, 780 (2011) (citation and internal quotation marks
elect to exercise our discretion and consider whether the
district court's appellate decision in this case was
contrary to the evidence and established rules of
is well established that failure to object to asserted errors
at trial will bar review of an issue on appeal."
Brown v. State,114 Nev. 1118, 1125, 967 P.2d 1126,
1131 (1998) (internal quotation marks omitted). Nonetheless,
an appellate "court has the discretion to address an
error if it was plain and affected the defendant's
substantial rights." Green v. State, 119 Nev.
542, 545, 80 P.3d 93, 95 (2003) (internal quotation marks
omitted); see also NRS 178.602. The plain error rule
affords an appellate court discretion to consider an issue
raised for the first time on appeal only if it makes three
determinations: (1) there was error, (2) the error was plain
or clear from the record, and (3) "the error affected
the defendant's substantial rights." Green,
119 Nev. at 545, 80 P.3d at 95. ...