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Hubbard v. State

Supreme Court of Nevada

August 2, 2018

CORY DEALVONE HUBBARD, Appellant,
v.
THE STATE OF NEVADA, Respondent.

          Appeal from a judgment of conviction pursuant to a jury verdict of conspiracy to commit robbery, burglary, seven counts of robbery with use of a deadly weapon, assault, and discharge of a firearm within a structure. Eighth Judicial District Court, Clark County; James M. Bixler, Judge.

          Law Office of Patricia M. Erickson and Patricia M. Erickson, Las Vegas; Brent D. Percival, Las Vegas, for Appellant.

          Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens and Krista D. Barrie, Chief Deputy District Attorneys, and Charles W. Thoman, Deputy District Attorney, Clark County, for Respondent.

         BEFORE THE COURT EN BANC.

          OPINION

          CHERRY, J.

         Appellant was convicted after a jury trial of conspiracy to commit robbery, burglary, seven counts of robbery with use of a deadly weapon, assault, and discharge of a firearm within a structure. The district court admitted evidence at trial concerning appellant's prior residential burglary conviction to prove intent and absence of mistake under NRS 48.045(2). In this appeal, we decide whether the defense must place intent or absence of mistake at issue before prior act evidence may be admitted.

         We conclude that the defense need not place intent or absence of mistake at issue before the State may seek admission of prior act evidence if the evidence is relevant to prove an element of the offense such as intent for the specific intent crime of burglary. Regardless, the evidence may still be inadmissible if it is not relevant or its probative value is substantially outweighed by the risk of unfair prejudice. Where, as here, the evidence left little doubt as to the assailants' intent to commit a felony at the time of entering the home, and appellant's defense was not based on a claimed lack of intent or on mistake, but rather on a claim that he was not present and had no involvement in the crime, the evidence of his prior residential burglary conviction had little relevance or probative value as to his intent or absence of mistake when compared to the danger of unfair prejudice resulting from its propensity inference. Therefore, the district court manifestly abused its discretion in admitting evidence of the prior conviction, and because the error was not harmless, we reverse the judgment of conviction and remand for further proceedings.

         BACKGROUND

         On the evening of August 22, 2013, several people were present at a residence located at 657 Shirehampton Drive in Las Vegas, including David Powers, Darny Van, Matthew Van, Thavin Van, Trinity Van, Asia Van, Kenneth Flenory ("KJ"), and Anthony Roberts. When the doorbell rang at about 8:45 p.m., Darny answered the door and a man asked for someone by the name of "Darnell," and then two other men along with the first barged their way into the house. The men were alleged to be appellant Cory Dealvone Hubbard, Willie Carter, and Stelman Joseph. One of the men pointed a gun at Darny's face, took an iPhone and iPad from Asia's hands, and pointed the gun at Thavin and Trinity. One of the men also pointed a gun at Matthew, but Matthew escaped out a back door. When KJ ran for the front door, one of the assailants, alleged to be Hubbard, pursued and tackled him, and took his cell phone. David, who was in a bedroom upstairs, grabbed a gun and ran toward the staircase as the assailant alleged to be Hubbard was coming up with a gun in his hand, and David fired two or three times, hitting the assailant in the left shoulder. One of the other two assailants shot at David, and all three assailants fled the residence.

         At about 9 p.m. the same night, Hubbard entered a Short Line Express Market located about four miles from the residence. He had blood on his shirt and he had been shot in his left shoulder. In his statement to the police, Hubbard indicated that he was randomly shot while walking down the street. The surveillance videos from the market did not show any vehicles dropping off a person that matched Hubbard's description. Except for KJ, none of the victims could positively identify Hubbard as one of the assailants based on a photo lineup. KJ was certain to an eight on a scale of one to ten that Hubbard was one of the assailants.

         Hubbard was indicted, along with Carter and Joseph, on several charges stemming from the armed robbery of the residence and several of its occupants. The indictment charged Hubbard, in relevant part, with burglary while in possession of a firearm when he did willfully, unlawfully, and feloniously enter the residence "while in possession of one or more firearms, with intent to commit a Larceny and/or any felony, and/or Robbery."

         The State filed a pretrial motion in limine to admit evidence of Hubbard's prior conviction for a residential burglary that occurred in the state of Washington on July 27, 2012, attaching the judgment of conviction and a police report. The State argued the evidence was admissible under NRS 48.045(2) to prove motive, intent, identity, and absence of mistake and to rebut a claim that Hubbard was an innocent victim of an unrelated, random drive-by shooting. Although the majority of the State's analysis focused on identity, the State did argue as to intent specifically that the prior conviction was relevant to prove that, at the time Hubbard entered the residence, he intended to steal items inside. The State also argued that the 2012 burglary conviction made it more likely that Hubbard was participating in a burglary when he was shot as opposed to being the victim of a random shooting. Hubbard did not file a written opposition, but he did object at the hearing based on significant differences between the two cases (the earlier one was a generic residential burglary and did not involve guns or holding anyone at gunpoint) and the danger of undue prejudice. At the hearing, the district court orally granted the motion to prove absence of mistake, motive, and intent because Hubbard claimed he was not involved in the robbery, but the court indicated it would continue to oversee how the evidence was presented in order to minimize the potential for undue prejudice. The district court did not enter a written order as to its ruling.

         At trial, all but one of the victims in the residence testified, as did Carter, who pleaded guilty to robbery with a deadly weapon and attempted murder but denied that Hubbard was involved in the crime. Testimony from a crime scene analyst and a forensic scientist indicated that none of Hubbard's DNA or fingerprints were found in the residence.

         The victim of the 2012 burglary, Kimberly Davis, also testified during the State's case-in-chief. Before this testimony, the district court gave the jury a limiting instruction that the evidence may not be considered to prove that Hubbard "is a person of bad character or to prove he has a disposition to commit crimes" but may be considered "only for the limited purpose of proving the defendant's intent and/or motive to commit the crimes alleged or the absence of mistake or accident." Thereafter, Davis testified that she was home alone in the house she shared with her parents when the doorbell rang and she observed a Hispanic male standing on her front porch and a white car on the street. He repeatedly rang the doorbell, but she did not answer, and the man left. She saw the car return, heard the doorbell ring again, and then heard footsteps in the gravel outside her window. Davis locked herself in the bathroom, she heard people come into the house and male voices in the bedroom, and someone attempted to force open the bathroom door without success. After the intruders left, Davis discovered jewelry and other items missing from the home. Davis never actually saw any individuals in her home.

         Hubbard was the only witness to testify in his defense. He testified that he was shot during an unrelated drug deal that had been arranged by Joseph. Hubbard testified that he drove to a parking lot near the Short Line Express Market and a person with the drugs entered the vehicle, and while Hubbard was inspecting the merchandise, another person came to the driver side window and shot him in the left shoulder. Hubbard ran away and ended up at the market. Hubbard testified that he had never been inside the residence where the robbery occurred, he did not know any of the victims present on that evening, and he denied any involvement in the robbery. On cross-examination, Hubbard admitted that he had been convicted of the 2012 burglary and had sustained three other felony convictions.

         During closing argument, the State referenced the 2012 burglary conviction and stated that it could not be considered to prove Hubbard has a disposition to commit crimes but could be used to prove his intent as to the burglary and to prove that Hubbard was not shot mistakenly or accidentally while walking down the street. Hubbard was convicted of the burglary, as well as conspiracy to commit robbery, seven counts of robbery with use of a deadly weapon, assault, and discharge of a firearm within a structure. Hubbard was adjudicated a ...


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