No. 63737 

JUL 3 0 2015 

131 Nev.9 Advance Opinion 5b 

IN THE COURT OF APPEALS OF THE STATE OF NEVADA 

TABUTA JOHNSON, A/K/A TABUDAH 

EUGENE HUMES, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

Appeal from a sentence and conviction following a jury trial of 

one count of conspiracy to commit robbery, two counts of robbery, and one 

count of battery with intent to commit a crime. Eighth Judicial District 

Court, Clark County; Kathy Hardcastle, Judge, and Carolyn Ellsworth, 

Judge. 1 

Affirmed. 

Lambrose Brown and William H. Brown, Las Vegas, 

for Appellant. 

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, 

District Attorney, and Steven S. Owens, Chief Deputy District Attorney, 

Clark County, 

for Respondent. 

Off' 

1Johnson was tried before he Honorable District Judge Kathy 

Hardcastle and sentenced by the-Honorable District Judge Carolyn 

Ellsworth. 

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BEFORE GIBBONS, C.J., TAO and SILVER, JJ. 

OPINION 

By the Court, TAO, J.: 

Appellant Tabuta Johnson was convicted of various criminal 

01/ offenses following a tria during which the jury was permitted to hear 

testimony regarding an out-of-court "show-up" identification and the 

victims identified him in court as the perpetrator of the offenses. In the 

show-up, Johnson was handcuffed, placed in front of a police car, and 

illuminated with a spotlight to be viewed by witnesses who then identified 

him as the perpetrator of the crimes. Johnson did not object below but 

now asks this court to hold that the show-up was improperly conducted in 

violation of his constitutional due process rights. He also argues for the 

first time on appeal that he was improperly sentenced as a habitual 

criminal. 

The Nevada Supreme Court has been presented with few 

opportunities to review the validity of such show-up identifications; the 

court last visited this area of the law in Bias v. State, 105 Nev. 869, 871, 

784 P.2d 963, 964-65 (1989), in which it held that a show-up somewhat 

factually similar to the one in this case was unnecessarily suggestive and 

therefore improper. Under the particular facts of this case, we conclude 

that the trial court did not plainly err by admitting the identification 

testimony into evidence because the identification procedure used was not 

unnecessarily suggestive and the identification was reliable. 

We also conclude that the sentencing court did not plainly err 

in adjudicating Johnson as a habitual criminal because the record does not 

demonstrate that the court operated under a misconception of the law 

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regarding the discretionary nature of a habitual criminal adjudication. 

Accordingly, we affirm the judgment of conviction and sentence. 

FACTUAL AND PROCEDURAL HISTORY 

One evening, Christina Raebel and Albert Valdez were 

walking to a bar in downtown Las Vegas when they noticed two men, later 

identified as Johnson and his brother, Varian Humes, following them. 

Raebel viewed the two men directly as they approached for about "a 

second and a half' while Valdez saw them through his peripheral vision 

for "[o]ne second." Suspicious, Raebel moved her purse from her hip to the 

front of her body with both hands. 

Without warning, Humes punched Valdez in the head, causing 

him to fall to the ground. At the same time, Johnson grabbed Raebel from 

behind, covering her mouth with one hand and gesturing with the other to 

indicate he was carrying a firearm. Johnson removed Raebel's purse from 

her shoulder and pushed her to the ground. Raebel screamed as she fell 

and Johnson responded by punching her in the face. While both Raebel 

and Valdez lay helpless on the sidewalk, Humes demanded that Valdez 

"give [him] everything" and in response Valdez emptied his pockets, 

throwing his wallet and cell phone on the sidewalk. Valdez's wallet was 

unique and easily identifiable because it was constructed entirely out of 

duct tape. Johnson and Humes then tried to escape by running 

southbound. Raebel was bruised and Valdez was bleeding from a gash in 

his forehead. The entire incident lasted "about thirty seconds." 

Within minutes, police officers from the Las Vegas 

Metropolitan Police Department (LVMPD) arrived at the scene. Raebel 

and Valdez told the police they were attacked by two black males about six 

feet tall, with one slightly taller than the other, and described their 

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clothing and the direction in which they fled. Based upon those 

descriptions, the police issued a radio broadcast to search for two black 

males about six feet tall wearing dark pants and hoodies who ran 

southbound from the scene, with the "taller male. . . wearing a black 

hooded sweatshirt and the shorter of the males. . . wearing a brown 

sweatshirt." The broadcast also alerted officers to look for a stolen purse, 

wallet, and other property. 

A few moments later, patrolling officers saw Johnson and his 

brother emerge from an alley two or three blocks south of the crime scene 

and jaywalk diagonally across an intersection. The other end of the alley 

was a dead end blocked by a chain-link fence and shrubbery. According to 

the officers, Johnson was wearing "a dark black sweatshirt with a hood on 

it and dark jeans," while his brother was wearing "a black sweatshirt but 

it was faded so it actually looked brown in the light and he was also 

wearing jeans." 2Deciding that the duo "match[ed] the description to a tee" 

and suspicious as to what the two had been doing in a dead-end alley, the 

officers detained the men for questioning. When they looked in the alley, 

the officers saw Raebel's purse, car keys, some makeup containers, and 

Valdez's unique duct-tape wallet scattered on the ground. The officers 

handcuffed the two men and issued Miranda warnings to them. Officers 

later found Valdez's cell phone in Humes's pocket. 

Approximately 20 to 30 minutes after the crime, officers 

informed Raebel and Valdez that they "found people that matched the 

2At trial, Raebel testified that Johnson wore a "brownish zip up 

hoodie" with "a pattern on it" and the "hood up." Valdez testified that he 

recalled Johnson wearing "a grey jacket with red lining like a grid almost." 

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description" and asked if they wanted to identify them. After agreeing, 

Raebel and Valdez were separately transported to where Johnson and his 

brother were held. On the way there, the police asked Raebel and Valdez 

to state if they recognized the people that would be shown to them, and 

instructed that "[a] person is just as innocent as they are guilty" and that 

it was "just as important to free an innocent man" as it was to identify a 

guilty one. While Raebel and Valdez took turns sitting inside a police car 

approximately 30 to 60 feet away, officers brought out Johnson and his 

brother one at a time in handcuffs and shined spotlights on them as they 

stood in front of another marked patrol car. Raebel and Valdez were 

separated from each other during this process to prevent them from 

influencing each other. Raebel immediately recognized both Johnson and 

*On 

his brother and informed the police that she was 100A percent certain they 

were the two perpetrators. Valdez felt approximately 90A percent certain 

about Johnson's identity but did not recognize Johnson's brother at all. 

Johnson and Humes were charged with one count of 

conspiracy to commit robbery, two counts of robbery, and one count of 

battery with intent to commit a crime. Humes would later enter a plea of 

guilty to various charges, but Johnson chose to proceed to trial. 

During the trial, the jury was apprised of the out-of-court 

"show-up" identification during which Johnson was affirmatively 

identified as one of the perpetrators by both Raebel and Valdez. 

Additionally, both Raebel and Valdez testified at trial and identified 

Johnson in court as one of the perpetrators. The jury convicted Johnson 

on all counts. 

Following trial, the State sought to have Johnson adjudicated 

as a habitual criminal and submitted certified copies of six judgments of 

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conviction reflecting prior felonies. 3At sentencing, the district court 

voiced concern about the violence of the crime, the randomness of the 

victims, and the "escalation of [Johnson's] willingness to go from nonviolent crimes to violent crimes." The court adjudicated Johnson a 

habitual criminal and sentenced him to four sentences of a maximum of 25 

years with minimum parole eligibility of 10 years, with two of those 

sentences to run consecutively. 

ANALYSIS 

On appeal, Johnson contends that the show-up identification 

was conducted in an unnecessarily suggestive and therefore 

unconstitutional manner, and the trial court should not have admitted 

either testimony describing the show-up identification or the victims' incourt identification of him during the trial. Johnson also argues that the 

sentencing court plainly erred in adjudicating him as a habitual criminal. 

At trial, Johnson did not object to either the show-up 

identification or the trial testimony relating to it, nor did he object to his 

sentence when it was rendered. Consequently, the scope of our review is 

narrowly limited to determining whether plain error occurred. See NRS 

178.602. In particular, we examine (1) whether there was error, (2) 

whether the error was plain or clear, and (3) whether the error affected 

the defendant's substantial rights. Green v. State, 119 Nev. 542, 545, 80 

P.3d 93, 95 (2003). "An error is plain if [it] is so unmistakable that it 

reveals itself by a casual inspection of the record. At a minimum, the 

error must be clear under current law, and, normally, the defendant must 

3Johnson's criminal history mainly consisted of fraud and controlled 

substances violations. 

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show that an error was prejudicial in order to establish that it affected 

substantial rights." Saletta v. State, 127 Nev. , , 254 P.3d 111, 114 

(2011) (internal quotation marks and citations omitted). 

Under the particular facts of this case, we conclude that 

neither the trial court nor the sentencing court committed plain error 

warranting reversal. 

The validity of show-up identification procedures 

When a witness testifies that he knows a particular suspect 

committed a crime because he personally saw the crime as it occurred and 

then at a different time and place recognized the suspect to be the same 

person he previously saw, he is said to have performed an "identification" 

of the suspect. Witnesses can be asked to identify a suspect either outside 

of the courtroom prior to the trial during the initial police investigation of 

the crime, or later during the trial itself (or both). Both in-court and outof-court identifications can be challenged by the defendant. 

Out-of-court pretrial identifications are typically conducted 

through a number of common methods, including asking the witness if the 

perpetrator is one of several people lined up together in the same room 

(commonly called a "physical line-up"); showing the witness an array of 

facial photographs and asking if the perpetrator is among them (commonly 

called a "photographic line-up"); or, as in this case, by presenting a single 

suspect (or a very small group of potential suspects) to the victim soon 

after a crime is committed and inquiring if that person is the perpetrator 

(commonly known as a one-on-one "show-up" identification, a 

"confrontation," or a "field identification"). 

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Whichever method is used, the Due Process Clause of the 

United States and Nevada Constitutions 4forbids a criminal prosecution to 

be based upon any witness's identification that was procured under 

circumstances that were unnecessarily suggestive and likely to have 

resulted in a mistake that cannot be repaired. See Gehrke v. State, 96 

Nev. 581, 583-84, 613 P.2d 1028, 1029 (1980); Baker v. State, 88 Nev. 369, 

372, 498 P.2d 1310, 1312 (1972). The Constitution prohibits these 

suggestive and mistaken identifications whether they occurred outside of 

the courtroom before trial or during a criminal trial itself when a witness 

identifies the defendant from the witness stand. See Manson v. 

Brathwaite, 432 U.S. 98, 104-07 (1977). Indeed, in some instances, when a 

witness participated in a pretrial identification procedure that was 

extremely unreliable, courts have concluded that the witness's memory 

may have been so contaminated that a later in-court identification of the 

same suspect may also be precluded. See generally United States v. 

Bagley, 772 F.2d 482, 492 (9th Cir. 1985) ("Suggestive pretrial 

identification procedures may be so impermissibly suggestive as to taint 

subsequent in-court identifications and thereby deny a defendant due 

process of law."). Thus, an in-court identification of the defendant during 

trial can be challenged in two ways, either because the in-court 

`Nevada's Due Process Clause is textually identical to the federal 

clause in relevant respects, see Nev. Const. art. 1, § 8(5), and the Nevada 

Supreme Court reads the state clause as coextensive with the federal 

clause. See generally Wyman v. State, 125 Nev. 592, 600, 217 P.3d 572, 

578 (2009). "Nevada has historically followed the United States Supreme 

Court on most, if not all, of its interpretations and applications of the law 

governing searches and seizures." State v. Lloyd, 129 Nev. „ 312 

P.3d 467, 471 (2013) (internal quotation marks omitted). 

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identification is itself improper, or because it was contaminated by an 

improper out-of-court identification that occurred before trial. 

In the instant case, Raebel and Valdez identified Johnson as 

the perpetrator in a pretrial show-up. During the trial, Raebel and Valdez 

described the pretrial show-up and also identified Johnson again in court 

as the perpetrator. Johnson challenges both the in-court and out-of-court 

identifications, but only contends that the in-court identification was 

improper because it was tainted by the prior show-up identification. 

Therefore, our focus is upon the validity of the out-of-court show-up. 

Historically, "[t]he practice of showing suspects singly to 

persons for the purpose of identification, and not as part of a lineup, [was] 

widely condemned" and viewed by courts with deep suspicion. Stovall v. 

Denno, 388 U.S. 293, 302 (1967). The Nevada Supreme Court has held 

that show-ups are "inherently suggestive because it is apparent that law 

enforcement officials believe they have caught the offender." Jones v. 

State, 95 Nev. 613, 617, 600 P.2d 247, 250 (1979). 

Though frowned upon, such show-up identifications are 

nonetheless permissible when the "totality of the circumstances" 

surrounding the identification demonstrate that they are reliable. Stovall, 

388 U.S. at 302 ("[A] claimed violation of due process of law in the conduct 

of a confrontation depends on the totality of the circumstances 

surrounding it."); see also Jones, 95 Nev. at 617, 600 P.2d at 250; Banks v. 

State, 94 Nev. 90, 94-96, 575 P.2d 592, 595-96 (1978). The question is 

whether the confrontation was so unnecessarily suggestive and conducive 

to irreparable mistaken identification that due process was denied to the 

defendant. Stovall 388 U.S. at 302; Jones, 95 Nev. at 617, 600 P.2d at 

250. If it was not, the witness's identification is admissible during a 

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criminal trial and the jury may examine its credibility and reliability. 

Gehrke, 96 Nev. at 584, 613 P.2d at 1030. 

Even though the Due Process Clause may theoretically bar an 

overly suggestive identification whether it occurred before trial or during 

trial, courts review the validity of identifications under different legal 

standards depending upon when and how they occurred. Because the 

show-up identification of Johnson in this case occurred outside of court 

and preceded the filing of any formal charges, our inquiry involves two 

questions: (1) whether the show-up procedure was unnecessarily 

suggestive, and (2) whether the identification was nonetheless reliable in 

spite of any unnecessary suggestiveness in the identification procedure. 

Banks, 94 Nev. at 94, 575 P.2d at 595 (citing Manson, 432 U.S. at 98). 

We base our answer to both questions upon a review of the 

totality of the circumstances. Id. Those circumstances include 

examination of any countervailing policy considerations that might justify 

an otherwise problematic identification, including such factors as the 

presence or absence of any exigent circumstances, the need to quickly 

clear any incorrectly detained suspects so that police can continue 

searching for the true culprit, the freshness of the witness's recollection, 

and the possibility that memories might start to fade if other procedures 

were to be employed. See Bias, 105 Nev. at 872, 784 P.2d at 965 (holding 

that show-up was unnecessarily suggestive when no countervailing policy 

considerations or any exigency existed); Jones, 95 Nev. at 617, 600 P.2d at 

250 (holding that policy considerations justified on-scene show-up when, 

under the circumstances, the witness's memory was fresher immediately 

after the crime and an immediate identification might have exonerated an 

innocent suspect and freed authorities to continue the investigation). A 

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show-up is more likely to be deemed unnecessarily suggestive, and 

therefore invalid, when countervailing policy considerations are absent. 

Jones, 95 Nev. at 617, 600 P.2d at 250. 

The show-up in this case was not unnecessarily suggestive 

Johnson alleges that the show-up procedures utilized in this 

case were unnecessarily suggestive, and that no countervailing policy 

considerations exist to justify the procedures the police chose to employ. 

Specifically, Johnson contends that because he was wearing handcuffs and 

spotlighted in front of a marked police car during the show-up, the 

circumstances strongly implied to Raebel and Valdez that the police had 

already arrested the perpetrators of the crime based on other evidence, 

and Raebel and Valdez were therefore implicitly pressured to corroborate 

the police work already done. Johnson did not object below and raises 

these arguments for the first time on appeal. 

In seeking reversal of his conviction, Johnson relies principally 

upon Bias, 105 Nev. at 871-72, 784 P.2d at 964-65, in which the Nevada 

Supreme Court held that a show-up was unnecessarily suggestive where 

the defendant was handcuffed, placed in front of a police car, and 

illuminated with a spotlight to be viewed by witnesses who then identified 

him as the perpetrator of the crimes. The show-up was conducted four 

hours after the crime, under conditions in which no exigency existed. Id. 

at 872, 784 P.2d at 965. The Nevada Supreme Court concluded "that this 

show-up procedure was unnecessarily suggestive because there were no 

countervailing policy considerations to justify it." Id. The court 

nonetheless affirmed the conviction because the identification was deemed 

"sufficiently reliable." Id. 

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In Gehrke, approximately 45 minutes after the incident, 

eyewitnesses were escorted by an officer to the defendant's home where 

they were told the police had a suspect in mind. 96 Nev. at 584, 613 P.2d 

at 1030. The police placed the defendant in front of the headlights of a 

police car. Id. The two eyewitnesses "were seated together in the back 

seat of the police car, where their initial reaction, whether correct or not, 

could be reinforced." Id. at 586, 613 P.2d at 1031 (Mowbray, C.J., 

concurring). The Nevada Supreme Court concluded that due to the lack of 

exigent circumstances, the identification procedure was unnecessary. Id. 

at 584, 613 P.2d at 1030. 

Determining whether a particular show-up was unnecessarily 

suggestive turns not on general principles, but rather upon the particular 

circumstances surrounding the identification. In this case, even though 

Johnson was handcuffed and spotlighted, several other circumstances 

demonstrate that the show-up was not unduly suggestive when considered 

as a whole, and therefore the show-up in this case was unlike those in 

Bias and Gehrke. In this case, Raebel and Valdez were specifically 

cautioned that it was just as important for the show-up to exonerate 

innocent people as it was to implicate guilty ones. Additionally, during 

the show-up, Raebel and Valdez were separated and not allowed to talk to 

each other while they each independently viewed Johnson and his brother. 

Neither of these circumstances occurred in Bias or Gehrke. In Gehrke, the 

two eyewitnesses were seated together in the back seat of the car, "where 

their initial reaction, whether correct or not, could be reinforced." 96 Nev. 

at 586, 613 P.2d at 1031 (Mowbray, C.J., concurring). Moreover, the 

witnesses in Bias and Gehrke were never directed that an important 

purpose of the show-up was to free the innocent and not merely to blindly 

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confirm the suspicions of the police whether true or not. Quite to the 

contrary, in Gehrke, the witness was merely told that the police "had a 

suspect in mind," and no other instructions were given. 96 Nev. at 584, 

613 P.2d at 1030. In Bias, the witness was simply asked "if the black guy 

was the one." 105 Nev. at 870, 784 P.2d at 964. In contrast, the 

circumstances of the instant case reflect that the police took substantial 

steps to ensure that Raebel and Valdez were not unduly pressured into a 

false or mistaken identification. 5 

Even if the show-up contained elements of suggestiveness, 

strong countervailing policy considerations existed in this case that 

justified the officers' decision to attempt a show-up rather than another 

form of identification. The show-up was conducted within half an hour of 

the crime, while the victims' memories were still fresh. The crime was 

violent and occurred in the open on the streets of Las Vegas; had the police 

mistakenly detained the wrong people and employed a more timeconsuming method of identification before clearing the suspects and 

resuming their search, the true criminals could have committed additional 

5Various federal cases have held that show-up identification 

procedures similar to the one employed in this case were not improper. 

See United States v. Drake, 543 F.3d 1080, 1088-89 (9th Cir. 2008) 

(holding that show-up was not unnecessarily suggestive, although the 

robbery occurred in less than one minute, the police officers informed the 

victim "that they had captured the suspect," and the defendant was 

handcuffed and surrounded by officers); United States v. Bagley, 772 F.2d 

482, 492-93 (9th Cir. 1985) (holding that show-up was not unnecessarily 

suggestive, although the witness viewed the defendant seated in a police 

car, handcuffed, and surrounded by officers); United States v. Kessler, 692 

F.2d 584, 586 (9th Cir. 1982) (explaining that "Mlle use of handcuffs or 

other indicia of custody" does not automatically invalidate a show-up). 

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violent offenses against other unsuspecting victims in the meantime or 

escaped apprehension entirely. Furthermore, Johnson suggested he had a 

firearm during the robbery. While no firearm was ultimately recovered, 

his claim to have had one on him underscored the need to find him quickly 

before he could endanger other victims. Thus, the decision to employ a 

show-up rather than another more onerous method of identification was 

warranted under the exigencies that existed in this case. 

Therefore, we conclude that the confrontation in this case was 

not unnecessarily suggestive, and any suggestiveness that might have 

existed was counterbalanced by important policy considerations justifying 

the show-up. 

The identification was reliable 

Even if the procedures employed here could be said to have 

been suggestive, suggestiveness by itself does not necessarily preclude the 

use of identification testimony at trial if the identification was otherwise 

reliable. Bias, 105 Nev. at 872, 784 P.2d at 965. In fact, when assessing 

admissibility, reliability rather than suggestiveness is the main concern. 

Jones, 95 Nev. at 617, 600 P.2d at 250. Reliability is measured by: (1) the 

opportunity of the witness to view the suspect at the time of the crime, 

(2) the degree of attention paid by the witness, (3) the accuracy of the 

witness's prior description, (4) the level of the witness's certainty 

demonstrated at the confrontation, and (5) the length of time between the 

crime and confrontation. Canada v. State, 104 Nev. 288, 294, 756 P.2d 

552, 555 (1988) (quoting Manson, 432 U.S. at 114). 

Here, Raebel testified that she had a clear opportunity to view 

the two suspects for about a second-and-a-half as they approached her 

prior to the crime, and paid special attention because she sensed danger. 

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She then remained in close physical proximity to her assailants for 

another 30 seconds as the assault took place. Valdez testified that, prior 

to the crime, he only viewed the suspects for a second through his 

peripheral vision, but had more opportunity to see them as they assaulted 

him over the next 30 seconds. Raebel and Valdez were in close proximity 

to their attackers and were asked to conduct the show-up within about 30 

minutes after the crime while the incident was still fresh in their minds. 

At the show-up, Raebel immediately recognized both suspects with 100,( 

percent certainty. Valdez immediately recognized Johnson with 90; 

percent certainty. 

Moreover, prior to the show-up, Raebel and Valdez accurately 

described the race, gender, and height of the suspects they later positively 

identified, and provided descriptions of the color of their clothing accurate 

enough that, within minutes, the police found suspects who fit the 

description "to a tee."6Raebel and Valdez informed officers that the two 

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6Johnson notes that the victims' clothing descriptions appeared to 

change and became more detailed only after they participated in the showup. At the scene, the victims told police that the perpetrators wore dark 

pants and hoodies, one black and the other brown. At trial, Raebel 

recalled that Johnson wore a "brownish zip up hoodie" with "a pattern on 

it" and the "hood up." Valdez testified that he recalled Johnson wearing "a 

grey jacket with red lining like a grid almost." While it is certainly true 

that notable discrepancies existed, on balance these discrepancies are 

insufficient to render the identification unreliable when weighed against 

all of the other facts present in this case. See Kessler, 692 F.2d at 586 

(explaining that subsequent descriptions that became more "detailed and 

accurate cannot be used to show impermissible suggestiveness" because 

"one of the central and legitimate purposes of a show-up is to sharpen the 

recollections of eyewitnesses and to enable them to focus attention on 

details they may have otherwise overlooked"). See also United States v. 

Brown, 636 F. Supp. 2d 1116, 1127 (D. Nev. 2009) (holding that 

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perpetrators fled south on foot, and police found Johnson and Humes 

minutes later on foot two or three blocks immediately south of the crime 

scene disposing of the victims' property. Additionally, Valdez's cell phone 

was discovered in Humes's pocket. 

Under these circumstances, we conclude that the 

identification of Johnson, both in court and during the pretrial show-up, 

was reliable and not mistaken. See Bias, 105 Nev. at 872, 784 P.2d at 965 

(holding that show-up not inadmissible when the victim was certain that 

the defendant was the assailant and recognized the defendant's features 

and clothing, as well as the weapon found at the scene of the show-up); see 

also United States v. Gregory, 891 F.2d 732, 734-35 (9th Cir. 1989) 

(holding that identification was reliable when the witnesses viewed the 

robber for approximately 30 seconds and described the assailant to police 

officers soon after the robbery); United States v. Barrett, 703 F.2d 1076, 

1085 (9th Cir. 1983) (explaining that the witness's "degree of attention 

was undoubtedly high" because she was the victim of the robbery). 

Consequently, we conclude that the district court did not commit plain 

error when it permitted the jury to hear testimony regarding the victims' 

identification of Johnson both before and during trial. 

...continued 

identification was reliable, although the witness held a mistaken belief 

about the color of the assailant's sweatshirt and jeans); Drake, 543 F.3d at 

1088-89 (holding that identification was reliable, although the victim 

"significantly underestimated" the defendant's height and the robbery 

occurred in less than a minute). 

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The district court did not plainly err in adjudicating Johnson a habitual 

criminal 

Johnson argues that the sentencing court improperly 

adjudicated him as a habitual criminal based only on his perceived 

escalating violence. Although Johnson did not object when the sentence 

was rendered, he contends this constituted plain error because the 

sentencing court impermissibly based its sentence upon only a single 

consideration rather than the multiplicity of factors on which a proper 

sentence should be based. Thus, Johnson avers that the district court 

believed that it was required to apply the habitual sentencing statutes. 

Under NRS 207.010, a defendant who has been convicted of at 

least three felonies qualifies as a habitual criminal. The Nevada Supreme 

Court has held that a district court has the discretion to sentence a 

defendant as a habitual offender merely because the defendant was 

convicted of at least three separate prior felonies. LaChance v. State, 130 

Nev. „ 321 P.3d 919, 930 (2014). Nevertheless, a district court may 

exercise discretion to "dismiss a count under NRS 207.010 when the prior 

offenses are stale or trivial, or in other circumstances where an 

adjudication of habitual criminality would not serve the purposes of the 

statute or the interests of justice." French v. State, 98 Nev. 235, 237, 645 

P.2d 440, 441 (1982); see Clark v. State, 109 Nev. 426, 428, 851 P.2d 426, 

427 (1993) (explaining that "[t]he decision to adjudicate a person as a 

habitual criminal is not an automatic one"). The purpose of the habitual 

criminality statute is to allow the criminal justice system to deal 

determinedly with career criminals who seriously threaten public safety. 

Sessions v. State, 106 Nev. 186, 191, 789 P.2d 1242, 1245 (1990). 

Adjudication under the habitual criminal statutes entails "the 

broadest kind of judicial discretion," Tanksley v. State, 113 Nev. 997, 1004, 

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946 P.2d 148, 152 (1997) (internal quotation marks omitted), and the 

statutes do not include any express limitations on the judge's discretion. 

French, 98 Nev. at 237, 645 P.2d at 441. In reviewing a district court's 

decision to sentence a defendant under these statutes, we consider the 

record as a whole and evaluate whether the sentencing court, in fact, 

exercised its discretion. O'Neill v. State, 123 Nev. 9, 16, 153 P.3d 38, 43 

(2007). In doing so, no requirement exists that "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." Hughes v. State, 

116 Nev. 327, 333, 966 P.2d 890, 893 (2000) (internal quotation marks 

omitted). Moreover, the habitual criminal statute "makes no special 

allowance for non-violent crimes or for the remoteness of convictions" but 

rather regards these as "considerations within the discretion of the district 

court." Arajakis v. State, 108 Nev. 976, 983, 843 P.2d 800, 805 (1992). 

The sentencing court acts properly as long as it does not operate "under a 

misconception of the law regarding the discretionary nature of a habitual 

criminal adjudication." Hughes, 116 Nev. at 333, 996 P.2d at 893-94. 

Here, we conclude that the district court properly exercised its 

discretion to sentence Johnson as a habitual criminal. The record does not 

demonstrate that the district court was unaware of the discretion 

statutorily entrusted to it. While the sentencing court expressed concern 

over the "escalation of [Johnson's] willingness to go from non-violent 

crimes to violent crimes," the court never characterized this as the sole 

basis for adjudicating Johnson as a habitual criminal, nor did the court 

indicate any belief that habitual criminal adjudication was mandatory or 

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automatic. The court was not required to utter specific phrases or findings 

to justify its decision. Taken as a whole, the record does not demonstrate 

that the district court operated under a misconception of the law regarding 

the discretionary nature of a habitual criminal adjudication. Thus, the 

sentencing court did not plainly err in adjudicating Johnson as a habitual 

criminal. 

CONCLUSION 

For the reasons discussed above, we conclude that the trial 

court did not plainly err in admitting testimony relating to the show-up 

identification, nor did the sentencing court plainly err in adjudicating 

Johnson as a habitual criminal. Accordingly, we affirm the judgment of 

conviction and sentence. 

We concur: 

• 

J. 

Silver 

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