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
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 habitual criminal and sentenced to serve 10 concurrent life sentences without the possibility of parole, and credit for time served on the assault conviction.
Hubbard appealed from the judgment of conviction, and we transferred the case to the court of appeals. See NRAP 17(b). The court of appeals concluded that the district court
DISCUSSION
I. Admission of the 2012 burglary conviction
Evidence of other crimes, wrongs, or acts is not admissible to prove a person's character and show the person acted in conformity therewith, but may be admissible "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." NRS 48.045(2). "A presumption of inadmissibility attaches to all prior bad act evidence." Ledbetter v. State,
"Identification of an at-issue, nonpropensity purpose for admitting prior-bad-act evidence is a necessary first step of any NRS 48.045(2) analysis." Newman v. State ,
A. Intent
Hubbard contends that every crime has an element of intent, and for that reason, unless intent is raised "in substance" or is "at issue" during trial, bad act evidence is inadmissible to prove it. Thus, Hubbard argues that since he denied being present at the residence that evening and asserted that he had been shot during an unrelated incident, he implicitly or practically conceded that he acted with intent if the jury found he committed the acts inside the residence, and thus, because intent was not at issue, evidence of the 2012 burglary was irrelevant. The State argues that intent is automatically at issue in specific intent crimes and it is not necessary for the defense to contest intent before the prosecution may address it.
Our prior caselaw does not clearly address the admissibility of prior act evidence to prove intent for a specific intent crime, particularly where the defendant denies involvement in the crime. In Wallin v. State, this court held that prior bad act evidence was admissible where the defense placed intent at issue, but the case involved a prosecution for battery, a general intent crime.
The prosecution has the burden to prove all elements of the charged offenses, and prior bad act evidence may be probative of an essential element of the criminal offense. See Estelle v. McGuire ,
We are persuaded by an alternative approach taken in United States v. Gomez , in which the United States Court of Appeals for the Seventh Circuit held that although intent is at issue in specific intent crimes, the rule is not one of automatic admission.
Here, the State charged Hubbard with burglary while in possession of a firearm when he willfully, unlawfully, and feloniously entered the residence while possessing
The evidence showed that three unknown men barged into the house at night and ordered the occupants about, property was taken by the men at gunpoint, shots were fired, and the three men fled the residence. This evidence left little doubt that at the time the perpetrators entered the residence, they intended to commit a robbery, larceny, or other felony therein. See Clifford S. Fishman & Anne T. McKenna, 3 Jones on Evidence § 17:64 (7th ed. 2016). This is because "[w]hen a person's conduct leaves no real doubts as to the actor's intent, it is difficult to see much need or justification for similar acts on that issue. When a man walks into a store, draws a gun, and orders the store clerk to empty the cash register into a sack, surely a jury needs no additional evidence as to the man's intent.... [T]he only real issue is not, why did the actor do what he or she did, but is the defendant in fact the person in question."
B. Absence of mistake
Hubbard contends that mistake is not an element of the offense and can only be at issue when the defendant raises it as a defense, such as admitting to the act but claiming a genuine mistake in the belief that the act was legal. Here, for example, mistake would have been at issue had Hubbard's defense been that he entered the home believing that he was attending a party or that he mistakenly went to the wrong home for dinner with friends. The State asserts that NRS 48.045 permits prior act evidence to prove absence of mistake or accident, and it is not necessary that the absence of mistake or accident occur on the part of the defendant. The State argues that absence of mistake was relevant because Hubbard claimed he was not present and was shot during an unrelated incident.
For the absence of mistake or accident exception under NRS 48.045(2), we have stated that it applies when "the evidence tends to show the defendant's knowledge of a fact material to the specific crime charged," such as knowledge of the controlled nature of a substance when such knowledge is an element of the charged offense. Cirillo v. State ,
Thus, the absence of mistake or accident exception may be relevant to proving either the mens rea (the defendant concedes performing the act but claims to have done so mistakenly or with innocent intent) or the actus rea (the defendant concedes harm or loss but argues it resulted from an accident and not of his agency). See Edward J. Imwinkelried,
In this case, evidence of the 2012 burglary would be relevant to proving that Hubbard entered the home with a felonious intent rather than by mistake, under some misapprehension, or as an innocent victim of the circumstances surrounding the robbery. But the State did not make that argument for admission of the evidence under this exception, and instead asserted that the evidence was relevant to prove Hubbard was the perpetrator who was shot during the robbery and did not receive the wound during some unrelated accident.
Given the lack of relevance that the 2012 burglary has to either intent or lack of mistake, it becomes clear that the evidence was instead being used for an impermissible propensity purpose, i.e., if Hubbard committed a burglary before, he must have done so in this case. Thus, the low probative value was substantially outweighed by the unfair prejudice, and we conclude that the district court's admission of Davis' testimony regarding the 2012 burglary for purposes of proving intent or absence of mistake was a manifest abuse of discretion.
II. Harmless error
Because we conclude that the district court's decision to admit evidence of the prior conviction was a manifest abuse of discretion, any error in admitting the evidence under NRS 48.045(2) is subject to harmless error review. Rosky v. State,
First, when the State questioned Hubbard on cross-examination, he admitted to the 2012 Washington burglary conviction, as well as three other felony convictions. This evidence of the prior felony convictions was admissible for impeachment purposes only. NRS 50.095(1) ("For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is admissible...."). Impeachment evidence cannot be used as substantive evidence of guilt or to show propensity. See Harris v. State,
Additionally, the quality of the impeachment evidence was different and less prejudicial than Davis' live testimony about her experience concerning the prior burglary. See Tomarchio v. State,
In concluding that any error in admitting the prior bad act evidence was harmless, the dissent does not address these consequential effects and what impact they may have had in determining the jury's verdict. Davis' testimony cannot be said to be harmless where it provided powerful details about the nature of an unrelated burglary in another state for which Hubbard was convicted, and given the fact that Hubbard testified in his own defense. In that regard, the dissent ignores that the introduction of evidence concerning the nature of a prior conviction similar to the substantive charges in the pending case carries a singular risk of substantial unfair prejudice that can jeopardize the defendant's right to a fair trial. See Old Chief v. United States ,
Second, the evidence of guilt was not overwhelming. In concluding otherwise, the dissent focuses only on the significance of certain circumstantial evidence without addressing weaknesses in the State's case, including other evidence supporting Hubbard's defense, and whether it can be said with assurance that, without stripping the erroneously admitted prior bad act evidence from the whole, the jury's verdict was not substantially influenced by the error. Kotteakos v. United States,
For the reasons set forth above, we reverse the judgment of conviction and remand for further proceedings consistent with this opinion.
We concur:
Douglas, C.J.
Gibbons, J.
Parraguirre, J.
Stiglich, J.
HARDESTY, J., with whom PICKERING, J., agrees, concurring in part and dissenting in part:
I agree with the majority's adoption of the reasoning in United States v. Gomez, that intent is automatically at issue for specific intent crimes because it is an element of the offense and relevant evidence of other acts may be admissible to prove intent without the defendant placing intent "at issue."
But, even if the district court erred in admitting the bad acts evidence here, the error was harmless. An error is harmless and not reversible if it did not have "a substantial and injurious effect or influence in determining the jury's verdict." Newman v. State,
Hubbard admitted that he drove to Las Vegas in a red Chevy Impala. An hour before the robbery, the surveillance photos from the Rhodes Ranch gated community show Hubbard arriving at the Rhodes Ranch gate at 7:53 p.m. in a red Chevy Impala. Hubbard called Joseph at his number while at the Rhodes Ranch gate at 7:54 p.m. and again at 7:58 p.m. Joseph resided within the Rhodes Ranch community.
At 8:43 p.m., the victim's neighbor's surveillance video showed a dark colored SUV, later identified as belonging to Joseph, pulling up and three men barging into the front door of the victim's house. The victims testified that the men robbed them at gunpoint. KJ identified Hubbard to an 80-percent certainty as one of the assailants. Other family members identified one of the men as the darker, thicker, broader, and heavier black male, which matched Hubbard's description. That man ran up the stairs after entering the residence. David, who was upstairs, fired his gun at the man when he reached the top of the stairs and hit him in the left shoulder. After the shots were fired, the three men began to flee the residence. David was able to identify Joseph as one of the perpetrators. At the end of the neighbor's video, Hubbard and Joseph are shown running back to the SUV and driving away. It then shows a flash where Carter shot into the house and ran away on foot.
David called 911 at 8:51 p.m. to report the robbery. Five minutes later, at 8:56 p.m., Joseph called 911, from the number 702-236-4175, to report that his friend had been shot and was at the Chevron Station at Durango
Shortly after, Hubbard stumbled into the Short Line Express at 8096 South Durango, which is approximately 4 miles and 7 minutes from 657 Shirehampton Drive-the victim's address. Hubbard had a gunshot wound in the left shoulder. At 8:58 p.m., the cashier at Short Line Express called 911 to report Hubbard's gunshot wound. Hubbard refused to tell the 911 operator, the paramedics, the police officers, and the detectives how he was shot. The surveillance video at Rhodes Ranch showed a SUV matching the description of the vehicle used in the robbery entering Rhodes Ranch on 8:59 p.m.
Hubbard was arrested the night of the crime. Upon being booked at the Clark County Detention Center, Hubbard called Joseph at 702-236-4175, which is the same number that Joseph used to make the 911 call. Hubbard attempted to call Joseph a total of seven times at that number while Hubbard was in jail. He also called three of the same numbers that appeared on Joseph's phone records.
In resolving an appeal from a criminal conviction, we must view the evidence in the light most favorable to the prosecution. See Koza v. State,
I concur:
Pickering, J.
Notes
The court of appeals also concluded that three of the robbery convictions were not supported by sufficient evidence, but we did not grant review as to that portion of the decision.
To support its argument, the State cites United States v. Woods ,