### IN THE SUPREME COURT OF THE STATE OF NEVADA

STEVEN ERIC GOULD, Appellant, vs. THE STATE OF NEVADA, Respondent. No. 83429



## 00 1 1 2022 ORDER OFAFFIRMANCE CLERK 

### This is an appeal from ajudgment ofconvic ion, pursuant to a jury trial, ofinvasion ofthe home while in possession ofa deadly weapon; first-degree kidnappingwith the use ofa deadlyweapon, victim 60 yearsof age or older;burglarywhileinpossession ofa deadly weapon, conspiracyto commit robbery; and robbery with the use of a deadly weapon, victim 60 years of age or older. Eighth Judicial District Court, Clark County; Jerry A. Wiese, Judge. Appellant Steven Eric Gould raises seven contentions on appeal.' Speedy trialFirst, appellant argues that his speedy trial rights were violated. We disagree. Astothe statutoryrighttoa speedytrial underNRS 178.556,there wasgoodcauseforthefour-yeardelay. SeeHuebnerv. State, 103 Nev. 29, 31, 731 P.2d 1330, 1332 (1987) (stating that dismissal is mandatoryunder NRS 178.556onlyifnogood causeis shownforthe delay). The delay in bringing appellant to trial was attributable to appellant's incarceration in California for over two years after his indictment, a conipetency evaluation upon his extradition to Nevada, issues cooperating with his counsel, the COVID-19 pandemic, and motion practice. As to the
'Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in thisappeal. avvsEr

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### constitutional right to a speedy trial, the four-year delay between the

indictment and trial was sufficient to trigger a speedy-trial analysis, State
v. Inzunza, 135 Nev. 513, 516-17, 454 P.3d 727, 731 (2019) (holding that a delayapproachingoneyearissufficienttotriggerthe speedy-trialanalysis), butthe relevantfactorsweigh against a violation. SeeBarkerv. Wingo, 407 U.S. 514, 530 (1972) (identifyingfactors tobebalanced in decidingwhether the right to a speedy trial has been violation). Little of the delay was attributable to the State, and the reasons for the delay were valid and appropriate. See id. at 531 (explaining that deliberate attempts to delay the trialby the State should weigh against the government, neutralfactors like negligence or overcrowded courts should be weighted less heavily, and valid reasons mayjustify appropriate delay);cf. United States v. Olsen, 995 F.3d 683, 693 (9th Cir. 2021) (holding that "a global pandemic that has claimed more than half a million lives in this country
. . . falls within such unique circumstances to permit a court to temporarily suspendjury trials intheinterest ofpublic health), amended and superseded ondenial ofreh'g
en banc, 21F.4th 1036 (2022); United States v. Smith, 460 F. Supp. 3d 981, 984(E.D. Cal.2020)("Almosteverycourtfacedwiththequestionofwhether generalCOVID-19considerationsjustify anends-of-justicecontinuance and exclusionoftime [from speedy-trialconsiderations]hasarrived atthe same
answer:yes."). Andappellanthasnotdemonstratedprejudice.2 SeeBarker, 407 U.S. at 532 (explaining that prejudice "should be assessed in the light

2

### To the extent that appellant argues that prejudice should be presurned, we reject the argument because the delay was less than five years and was not caused by bad-faith intentional misconduct or gross negligence on the State's part. See Inzunza, 135 Nev. at 519-20, 454 P.3d at 733-34 (discussing the circumstances in which the defendant may be relieved ofshowingprejudice).

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### 2

### ofthe interestsofthe defendantswhich the speedytrialright was designed

to protect"). He offered no proof that the delay impaired his defense by impacting the availability of witnesses, records, or other evidence. See Sheriffv. Berman, 99 Nev. 102, 108, 659 P.2d 298, 301 (1983) (holding that defendants failed to show prejudice when they offered no proof that the delay impacted their defense). Instead, he asserts prejudice based on the fact that during the delay his accomplices pleaded guilty and agreed to testify against hirn; however, those guilty pleas were entered while he was incarcerated in California, before any asserted delay by the State. He further claims prejudice because the State conducted confirmatory DNA testing shortly before the trial date. But we are not convinced that circumstanceimplicatestheharmsthat the speedy-trialright wasdesigned to protect against. In particular, in evaluating prejudice for purposes of a speedy-trial violation, we focus on whether the delay harmed the defendant's abilityto gather andpresent evidence. SeeBerman, 99 Nev. at 108, 659 P.2d at 301. The fact that the prosecution gathered additional inculpatory evidence during the delay did not impair appellant's ability to gather and present evidence. See, e.g., United States v. Rosson, 441 F.2d 242, 247 (5th Cir. 1971) ("[W]e conclude that a reasonable delay which enables the government to accumulate the evidence necessary tomake out
a prima facie case does not prejudice the accused by impairing his 'ability

... to defend himself."). And appellant did not assert that the timing of the DNA evidence disclosure prevented him from retaining a rebuttalexpert or conductingan appropriateinvestigation. Notablyinthat respect, the State had provided notice years before the trial date that it intended to present expert DNA testimony. We therefore conclude that

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### appellant has not dernonstrated a violation of his constitutional right to a

speedytrial. Sufficiency oftheevidence

Appellant argues that the State did not introduce sufficient evidence that he was involved in the crime, that he was responsible for using a deadly weapon, or that the movement or restraint underlying the kidnappingconviction werebeyond that necessary to complete the robbery. When it comes to a sufficiency-of-the-evidence challenge, we review the evidenceinthelightmostfavorabletotheprosecutiontodeterminewhether any rational trier of fact could have found the essential elements of the crirne beyond a reasonable doubt." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (emphasis ornitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Ajury'sverdict willnotbe disturbedon appealwhere substantial evidence supports its verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981). We conclude that appellant's contentions lack rnerit for the followingreasons.

First, sufficient evidence connects appellant to the crimes he
was convicted of committing. The victim identified appellant in a photographic lineup roughly one month after the crime. The accomplices testified that they planned and engaged in the home invasion with appellant. And other evidence corroborated the victim's pretrial identification ofappellant and the accomplice testimony. Appellant's DNA
was recovered from material used to bind the victim and the victim's property was recovered from a home where appellant's mother and wife lived. Evidence also showed that appellant fied from police in California because he knew he was wanted in Las Vegas: his phone contained texts that indicated he engaged in robberies in Las Vegas, research about the

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### 4Nevada home invasion statute, and photographs of the victim's property.

Although there was some evidence undermining the victim's pretrial identification and she was unable to identify appellant at trial four years later,thoseconsiderationswereforthejurytoweigh. See,e.g., Rosev. State, 123 Nev. 194, 202-03, 163 P.3d 408, 414 (2007) ("[I]t is thejury's function, not that ofthe court, to assesstheweight ofthe evidence and determinethe credibility of witnesses." (quoting Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998))). Viewing the evidence in the light most favorable to the State, we conclude there was sufficient evidence for a rationaljurorto findbeyond a reasonable doubtthat appellantplanned and participated in the offenses for which he was convicted.

Second, sufficient evidence supports the deadly weapon enhancement. The victim testified that both assailants brandished weapons. Police who responded to the home recovered a pellet gun and a live .38 special cartridge from the home. The victim did not own a gun or ammunition. A search of a co-conspirator's home revealed similar .38 specialammunitionandapneumaticpistol, whichisadeadlyweapon under Nevada law. See NRS 193.165(6)(c); NRS 202.350(1)(d)(3); NRS 202.265(5)(c). While theco-conspirator testifiedthat thepneumaticweapon
was not used in the crime, it was for the jury to determine the weight and credibility of that testimony. Rose, 123 Nev. at 202-03, 163 P.3d at 414. Viewing this evidence in the light most favorable to the State, we conclude that a rational juror could find beyond a reasonable doubt that appellant used a deadlyweapon in the crime. See NRS 193.165 (providing additional penalty for crimes committed with the use ofa deadly weapon); Harrison v. State, 96 Nev. 347, 351, 608 P.2d 1107, 1110 (1980) (recognizing that testimony of victim describing firearm is sufficient to support the deadly

SUPREME COURT OF NEVADA (01 I947A 5weapon enhancement); Brooks v. State, 124 Nev. 203, 210, 180 P.3d 657,

662 (2008) (explaining when an unarmed offender "uses" a deadly weapon for purposes of NRS 193.165).

Third, substantial evidence supportsthe kidnappingconviction independent of the robbery. See NRS 200.310(1) ("A person who willfully

. . . confines

. . . a personby anymeanswhatsoever with the intent to hold or detain

. . . the person . . . for the purpose of

. . . robbery upon or from the person . . . is guilty ofkidnapping in the first degree[1"); Wright v. State, 94 Nev. 415, 417-18, 581 P.2d 442, 443-44 (1978) (providing that incidental movement frorn one room to another during a robbery is, alone, insufficient to sustain a separate kidnapping charge). During the hour appellant and an accomplice spent in the victim's home, they demanded money, property, andher PINnurnber, andrepeatedlythreatenedher while ransackingher bedroom and home. Theyleft her presence for a discussion. Appellant left, and his co-assailant ordered the victim into the living room wherehetiedher to a chair. Appellant returned after 15minutesandagain demanded the PIN number for the victim's debit card. The assailants ordered her to remain bound for 30 minutes and then left. Viewing this evidenceinthelight most favorable tothe State, weconcludethat a rational juror, whohad beenproperlyinstructed that "movementofthevictim [must be] over and above that required to complete" the robbery as was the case here, could have found beyond a reasonable doubt that the movement and binding of the victim was "substantially in excess of that necessary" to complete the robbery or had "independent significance from the act of robbery" and supported the dual convictions for robbery and kidnapping. Mendoza v. State, 122 Nev. 267, 274-75, 130 P.3d 176, 180-81 (2006). Evidence offlight and uncharged conduct

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(0) 1947A 6Appellant argues that the district court erred in admitting

evidence that hefled from officersin California before hisarrest. He asserts that the State did not establish that his attemptsto elude California police
were relevant or that the probative value of the evidence was not outweighed by the danger of unfair prejudice. He also contends that the district court erred in removing the word "immediately" from the flight instruction. We discern no abuse ofdiscretion in admittingthe evidence or
error in giving the flight instruction. See Ledbetter v. State, 122 Nev. 252, 259, 129 P.3d 671, 676 (2006) (reviewing admission of uncharged conduct for abuse ofdiscretion); Crawford v. State, 121 Nev. 744, 748, 121P.3d 582, 585 (2005) (reviewing decisions regarding jury instructions for abuse of discretion orjudicial error).

After conducting an evidentiary hearing, the district court concluded that evidence of appellant's attempt to evade police in a highspeed and laterfoot-chase combinedwithhis statement acknowledgingthat he fled to avoid questioning by Las Vegas police showed his consciousness ofguilt and therefore was relevant. We agree. See Potter v. State, 96 Nev. 875, 876, 619 P.2d 1222, 1222 (1980) ("Flight is more than merely leaving the scene of the crime. It embodies the idea of going away with consciousness of guilt and for the purpose ofavoiding arrest"); Williams v. State, 85 Nev. 169, 175, 451 P.2d 848, 852 (1969) (considering defendant's flight and shootingofapolice officer whostopped and questioned defendant to be "admissible as indicative ofa guilty mind"). Further, these acts were supported by clear and convincing evidence through the testimony of an officer who pursued appellant during the vehicle chase, responded to the accident, and spoke with appellant in the hospital after his apprehension. And the probative value ofthe evidence was not substantially outweighed

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40) 1947A GOD. 7by the danger of unfair prejudice. See State v. Eighth Judicial Dist. Court

(Armstrong), 127 Nev. 927, 933, 267 P.3d 777, 781 (2011) (recognizingthat evidence is unfairly prejudicial when it appeals to the jurors' emotions or invites the jury to find guilt on a ground apart from proof ofthe charged offenses). We further conclude that the district court did not plainly err in omitting the word "immediately" frorn the flight instruction. See Jerernias v. State, 134 Nev. 46, 50, 412 P.3d 43, 48-49 (2018) (reviewingunobjected to error for plain error affecting substantial rights). The given instruction was consistent with the evidence showing that appellant fled whenpolice tried to apprehendhirn in California, not immediately after the crime. See Rosky v. State, 121 Nev. 184, 199, 111 P.3d 690, 699-700 (2005) (recognizing that district court may give flight instruction when evidence showsthat defendantfled "with consciousnessofguilt andtoevade arrest"). Because the jury could reasonably infer from the evidence presented that appellant's attempt to evade capture by California police signified something more than a mere going away," Weber v. State, 121 Nev. 554, 581-82, 119 P.3d 107, 126 (2005) (quoting State v. Rothrock, 45 Nev. 214, 229, 200 P. 525, 529 (1921)); see also Carter v. State, 121Nev. 759, 770, 121 P.3d 592, 599(2005), we concludethatthe district court did not errin giving the flight instruction asworded, see, e.g., Walkerv. State, 113Nev. 853, 871, 944 P.2d 762, 773 (1997) (approving of flight instruction without "immediately" qualification);Matthews v. State, 94 Nev. 179, 181, 576 P.2d 1125, 1126 (1978) (similar).

Appellant also contends that the district court abused its discretion in admitting his post-arrest statement because it referenced uncharged conduct. We disagree. Appellant told police that he tried to

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4411). 8elude them because "Vegaspolice wanted to talk tohim and that he did not

want to go back to jail." Although appellant's statenient implied he had engaged in other criminal activity ("he did not want to go back tojail"), see Rice v. State, 108 Nev. 43, 44, 824 P.2d 281, 281 (1992) (recognizing that a statement references prior criminal history where ajury could reasonably infer from it that defendant engaged in prior criminal activity), the statement was relevant to show appellant's consciousness of guilt with respect to the charged offenses and the district court instructed the jury that appellant's flight and statement were to be considered only for that purpose. Given those circumstances, we conclude the district court did not abuse its discretion in admitting the statement. See Rhymes v. State, 121 Nev. 17, 21-22, 107 P.3d 1278, 1281 (2005). Miranda violation

Appellant argues that his statement to California police was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). We discern no error that is plain from a casual inspection of the record and affected appellant's substantial rights by "causing 'actual prejudice or a miscarriageofjustice." Martinorellan v. State, 131Nev.43, 48-49, 343P.3d 590, 593 (2015) (quoting Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008)) (addressingrequirementsforplain-error review whenthere was
no objection in district court). The totality of the circumstances indicates that appellant was in custody after a high-speed chase when the officer guarding him asked him why he fled. See Carroll v. State, 132 Nev. 269, 281, 371 P.3d 1023, 1032 (201.6) ("Miranda warnings are required when a defendant is subjected to a custodial interrogation." (internal quotation marks omitted)). But appellant did not object below andthe record is silent
as to whether appellant was provided adequate Miranda warnings before

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admittingthe statementbasedon aMirandaviolationisplainfrom a casual inspection of the record. We also are not convinced that any error in this respect caused actual prejudice or a miscarriage ofjustice given the other evidence presented at trial. Cellphone contents

Appellant argues that the district court erred in admitting a seized cellphone's contents over his objections that the State did not establish an adequate foundation or disclose the evidence in a timely
manner. In addition, for the first time on appeal, he assertsthat messages
on the phone referred to uncharged conduct and impermissibly informed thejuryofthepenaltyforhomeinvasion. Healsoassertsthatthedisclosure of the entire cellphone contents rnay have obscured potentially exculpable location data.

We discern no abuse of discretion in admitting the cell phone contents as the State laid an adequate foundation for the admission ofthe evidence. Mclellan v. State, 124 Nev. 263, 266, 182 P.3d 106, 109 (2008). Testimonyestablished that the officer analyzing the phone received it from property taken from appellant's vehicle at the time ofhis arrest. See Sorce

v. State, 88 Nev. 350, 352-53, 497 P.2d 902, 903 (1972) (providing that foundation need only show that it is "reasonably certain that no tampering
or substitution took place" (citing Oliver v. State, 85 Nev. 10, 449 P.2d 252 (1969))). Although "cellular telephones are not always exclusively used by the person to whom the number is assigned," Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. Ct. 2011), here other evidence indicates that appellant used the phone: the phone was seized from the car appellant was driving and contained usernames for banking and social media apps that

SUPREME COURT OF NEVADA 10) 1947A 10indicated appellant was using it, cf. Rodriguez v. State, 128 Nev. 155, 162,

273 P.3d 845, 849 (2012) (providing that a proponent must provide "sufficient direct or circumstantial evidence of authorship in order to authenticate [a] text message as a condition precedent to its admission"). The record also indicates that the State timely disclosed the cell phone contents to the defense roughly three months before trial. See NRS 174.285(2) (requiring a party to comply with a disclosure request "not less than 30 daysbefore trial"). The State'ssubsequent,more focuseddisclosure merely highlighted evidence already in the defense'spossession. Appellant has not identified any exculpatory cell tower location data that he contends
was hidden within the disclosed data.

To the extent that the messages contained in the cell phone refer to uncharged conduct and information about potential sentencing ranges, appellant did not object on these grounds below and we discern no plain error. Mclellan, 124 Nev. at 266, 182 P.3d at 109. The messages referring to criminal conduct were relevant to show that appellant participated in the charged offenses and were not unduly prejudicial. See id. at 270, 182 P.3d at 111 (evaluating whether evidence of prior bad acts would have been admissible when conducting plain error review). The photo depicting the home invasion statute was relevant to appellant's consciousnessofguilt. Although the photo also depicted information that a jury may not consider when adjudicating guilt (the potential sentencing range for the offense), the photo was mentioned only briefly during testimony, the record indicates that it was a thumbnail image and only the statute'sheadingappearedtobereadily legible, andthejury wasinstructed that it was not to consider punishment in determining guilt. In these circumstances, the alleged error is not plain from a casual inspection ofthe

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### See

Patterson v. State, 111Nev. 1525, 1530, 907 P.2d 984, 987 (1995) ("An error is plain if the error is so unmistakable that it reveals itself by a casual inspection of the record." (internal quotation marks omitted)); 

### see also McNamara v. State, 132 Nev. 606, 622, 377 P.3d 106, 117 (2016) ("Jurors
are presumedto follow the instructions they are given."). 

### Prosecutorial misconduct

Appellant argues that the State impermissibly shifted the burden of proof by arguing that the defense failed to call a witness and improperly emphasized appellant's uncharged conduct. Appellant did not object to either argument, and we discern no plain error. 

### Valdez, 124 Nev. at 1190, 196 P.3d 477. The prosecutor's comments, when considered in context, do not amount to an attempt to shift the burden of proof. 

### See Knight v.State, 116 Nev. 140, 144-45, 993P.2d 67, 71 (2000) (observingthat [a] prosecutor's comments should be viewed in context" when considering whether a defendant should be afforded relief); 

### Whitney v. State, 112 Nev. 499, 502, 915 P.2d 881, 883 (1996) (recognizing that a prosecutor impermissibly shifts the burden of proof by commenting "on the defense's failure to produce evidence or call witnesses"). Instead, the argument responded to an assertion made in the defense's opening statement about a witness the defense intended to call to opine that the pretrial photographic lineup was unreliable. 

### See Greene v. State, 113 Nev. 157, 178, 931 P.2d 54, 67 (1997) (recognizing rebuttal arguments may permissibly respond to issues raised by the defense's closing), 

### receded from on other grounds by Byfordv. State, 116Nev. 215, 235, 994P.2d 700, 713 (2000). Theprosecutor pointing out that the "defense failed to substantiate its theories with supporting evidence," does not amount to burden shifting. 

### Evans v. State,

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((1, I947A .sIEND 12, C.J.

, Sr.J.

Herndon 117 Nev. 609, 631, 28 P.3d 498, 513 (2001), overruled on other ground.s by Lisle v. State, 131 Nev. 356, 366 n.5, 351 P.3d 725, 732 n.5 (2015). And because the contents of appellant's cellphone were properly admitted into evidence, the prosecutor could properly quote messages. Moreover, the prosecutor's argument relied on the statement and its timing shortly after the charged offense to show that appellant acknowledged his participation in that offense and did not emphasize the uncharged conduct. Cumulativeerror

Appellant contends that the cumulative effect of errors during trial warrants reversal. See Valdez, 124 Nev. at 1195, 196 P.3d at 481 (providing the relevant factors to consider for a claim ofcumulative error). Appellant has not demonstrated the existence of any error. Thus, there is nothing to cumulate. See Lipsitz v. State, 135 Nev. 131, 139 n.2, 442 P.3d 138, 145 n.2 (2019) (concluding that errors did not cumulate as there was only one error). Accordingly, we

ORDER thejudgment ofconvictionAFFIRMED.3

cc: Hon. JerryA. Wiese, District Judge Steven S. Owens Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

3The Honorable Mark Gibbons, Senior Justice, participated in the decision ofthis matter under a general order ofassignment.

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