*1 Appellant, NAY, v. THE STEVEN CHRISTOPHER Respondent. NEVADA, STATE OF No.

September Defender, A. Cano and Kohn, Charles Public Philip J. Defenders, County, for Clark Public Coffee, L. Deputy Scott Appellant. General, Masto, David City; Carson Attorney

Catherine Cortez and James Lynn M. Robinson Attorney, Roger, J. District County, for Attorneys, Clark Chief District Tufteland, Deputy Respondent.

Before the Court En Banc.

OPINION Court, Cherry, By the J.:

The primary issue this appeal is whether a defendant be found guilty of first-degree felony murder if the intent to commit the predicate enumerated felony arises after the conduct resulting in death. We answer that question in the negative and adopt position for purposes of the first-degree felony- statute, murder the intent to commit the predicate enumerated felony must have arisen before or during the conduct resulting in case, death. In this the district court erred in refusing to so instruct the circumstances Under had requested. the defense as jury, with respect harmless cannot be considered the error presented, the judg- reverse We therefore murder conviction. the conviction We affirm to that conviction. ment as deadly weapon. the use of HISTORY FACTS AND PROCEDURAL with first- Steven Christopher charged appellant The State deadly weapon. of a with the use robbery, both degree Ansah to Elijah roommate Nay beat his alleged that The State money, marijuana, and took his a baseball bat death with de- only he acted in self-defense Nay claimed that handgun. was dead. after he believed Ansah cided to take Ansah’s at trial. evidence was following presented Ansah had 2003. Elijah April met Ansah Christopher various friends staying with lifestyle, a transient living been in with Nay, Ansah moved meeting months after relatives. A few 2003. him in June body was discovered July Ansah’s At 6:45 a.m. on He had suf- Vegas. in Northwest Las at Lone Mountain two hikers *3 it body, appeared head and and injuries to his fered blunt force had a Additionally, Ansah fire postmortem. he had been set on body system.1 in his Ansah’s hydrocondone level of near-fatal identified, re- released a news so authorities initially could not be body. and port pictures Nay Ansah. Nay admitted to police, interviewed When leading to Ansah’s following up account of events

gave police and Ansah went to July Nay Early morning in the on death. and one go girls, had wanted to meet some Ansah Lone Mountain. a bat for Nay brought them there.2 Ansah’s friends drove protection.3 off, walked toward the Nay and were Ansah they dropped After mountain, were girls. They where waited for back of the analgesic that make a a narcotic would drowsy, 1 Hydrocondone high.” a “little tired, uncoordinated, called him after 2 According friends, one of Joshua Nay’s Nay McCrarey, a ride to Lone Mountain. on 26 and asked for McCrarey 11:00 July p.m. 1:00 a.m. 12:30 or to Lone Mountain drove Ansah approximately Nay go girls. Al idea to meet the that it to be testified Nay’s McCrarey appeared after minutes though to wait for asked twenty McCrarey approximately Nay fifteen minutes. left after dropping off, them McCrarey got Eaton, his Michael 3 Although friend, claimed he the bat from Nay gang claimed that was not Eaton member, himself from Nay specific protect using joke it to and made a about he wanted the bat about puli why taking guard, knocking them catching out, off someone quickly “lick” — the comment Eaton did not take their seriously. possessions. minutes, twenty Nay only two in the After park. approximately were. At that Ansah girls point, asked Ansah where repeatedly Nay.4 it at handgun pointed out a pulled around because Ansah had Nay thought might playing Ansah be But when handgun Nay an unloaded at him. previously pointed ain’t in allegedly told Ansah to Ansah “We quit playing, replied, time.” He your f_ing no more. I ain’t apartment playing kicked in the stomach. handgun. Nay then cocked the Ansah the handgun. Nay Ansah buckled and almost fell before he fired the head. After swung then his bat and hit Ansah back of Nay hitting fell to the continued him in the back of ground, Ansah Nay eight the head with the bat. hit him the head five to times want because his adrenaline was and he did not Ansah to pumping get hitting back and shoot him. In the course of Ansah with the up bat, kicked him a few times in the ribs. Nay also Ansah,

After that he have killed became realizing Nay cigarette lighter. scared. He to bum Ansah’s shirt with a attempted might He took Ansah’s shoes out of concern that his fingerprints charged be on them and because he did not want to be with mur- He go through der. took Ansah’s so that he could pants pock- He figured “may get something” ets. he as well since Ansah had head, held a he wanted gun money, marijuana, to his Ansah’s handgun. Nay handgun and his claimed that he took the because he did not know whether Ansah was dead and did not want Ansah to him. indicated interview that Although Nay during police shoot handgun was in Ansah’s he became and said the pants, upset gun usually was not in Ansah’s but that Ansah pants kept gun there. stated that he had no intention to rob or kill Ansah. shoes, money, handgun took the and the pants, marijuana, and walked to his He discarded his clothes and Ansah’s apartment. clothes in a He did not turn be- dumpster. immediately himself cause he did not want be locked murder when he up just defending himself. killing, Nay

After the made comments to friends and acquain- indicating robbery. tances that he had used a bat to commit a Ac- Martinez, cording Nay’s friend Manuel that he *4 Nay claimed had used the bat in a “lick” —which catching refers to someone off out, them and their guard, knocking taking Nay also possessions. Martinez and handgun showed to another friend and said that thought Nay bragging it came from a “lick.” Martinez that to credibility. street friend get According Nay’s McCrarey, to Joshua the night killing, Nay McCrarey after told that Ansah’s for- 4 According to trial the level had of Ansah testimony, hydrocondone in his he would not have had control of his but he system, body, complete gun could have held a it at someone. pointed had and killed him. But Nay mer roommate found Ansah also had ‘ ’ money McCrarey a lot of and told that he had Ansah to ‘jumped’ get money. discovery body Nay

Sometime after the of Ansah’s and several by his friends Lone Mountain. did Nay usually of drove who not cash, bag marijuana, handgun, $600 have much had a of a to Eaton, $1000 According Nay’s Nay cash. friend Michael said got marijuana, handgun, that he and cash a “lick” on Mountain, past Nay Ansah. As drove Lone made a sarcastic Vegas comment about the Las Metropolitan Department Police (LVMPD) that the recent thinking Lone Mountain was Later, related. gang began making their own group up rap included, head, lyrics. Nay’s lyrics “I bashed someone over the he dead now lies behind Lone Mountain.” The next Bran- morning Martinez, Eaton, Lillegaard, den and an individual re- simply ferred to as talked Nay They Lorenzo about what had said. con- tacted the regarding LVMPD their suspicions killed Ansah.

The jury Nay guilty found of murder with the use of a deadly with the use a weapon deadly of weapon. Nay was sentenced to two consecutive terms of life in prison with eligibility for for parole his murder of the first with the degree use a deadly conviction and 35- weapon two to 156-month sentences the robbery with the of a deadly use conviction. He weapon now appeals judgment from the of conviction.

DISCUSSION On appeal, argues that the district court abused its discre- tion when it refused to the jury instruct that a committed an afterthought as to a murder cannot conviction. The State contends that the instruction mis- proffered stated law in Nevada. We have recognized that “while the de- right fense has the have the jury instructed on its theory of evidence,” by case as disclosed the defendant “is not entitled an instruction which incorrectly states the law or that is sub- stantially covered other instructions.”5 generally

We review a district court’s refusal give jury in- struction for an abuse of discretion judicial error.6 But whether a proffered instruction is a correct statement the law presents which we question review de novo.7 Whether robbery may (2003) (footnotes 5 Barnier v. omitted). quotations 116, 120, (2001).

6 Jackson v. 117 Nev. 7 Garcia v.

331 the in- murder when the does not form felony perpetrator (after- victim been killed tent to rob the victim until after the has court.8 an of first for this thought robbery) impression is issue felony for murder robbery may Whether serve as predicate vic killing the intent to rob after the when the formed perpetrator at tim a This court “must question statutory interpretation. is Am ambiguous.”9 the to a statute that is not plain meaning tribute “where the lends itself to two biguity statutory language is found arises, ambiguity or more reasonable When interpretations.”10 ‘strictly construed and resolved in statutes must be “[criminal ”11 favor of the defendant.’ 200.030(1)(b) which felony NRS defines murder as murder is in the or perpetration attempted perpetration “[committed . . . at robbery.” The statute does not define “perpetration ’ if he Nay argues any had not formed tempted perpetration.’ Ansah, intent to commit at the time he killed then the robbery could “in the the killing perpetration robbery. not been of” and, The argues State that intent is irrelevant as force or violence robbery, is the force or violence kill the vic required used to robbery.12 tim is “in the of” the As both perpetration interpreta reasonable, are ambiguous.13 tions statute is afterthought robbery Several other states have considered context of murder. The view majority “is that in order for invoked, felony-murder doctrine to be the actor must intend to occurs; time commit the at the underlying there 8 Weconcluded in Leonard v. State that a who takes from a property victim after he is dead still and we commits will not revisit that de robbery, (2001). cision. 117 Nev. 53, 17 P.3d 412 76-77, 397, Catanio,

9 State v. (2004). 120 1033, Nev. 590 588, 10 Id. 11 Firestone v. (2004) An (quoting 120 Nev. 13, 16, 279, 281

derson v. (1979)). 95 Nev. 600 625, 629, P.2d 243 argues afterthought 12 TheState that this court determined that rob already in Thomas v. State when this serve as bery may court stated, Thomas next asserts instructions should have stated that if the in tent to rob was not formed until after the then a did not murders, But the facts in Thomas occur and the rule did not felony-murder apply. showed that the intent to rob Moreover, murders. clearly preceded “in cases it is irrelevant when the intent to steal the formed.” (2004) (quoting Chappell 120 Nev. 37, 46, 83 P.3d 114 (1998)). The intent to rob in Thomas preceded 1403, 1408, P.2d even if passage murders, thus, the State’s of the above interpretation passage afterthought correct, is dicta as robbery. applied Kopp, 13 State occurs as an fol- felony-murder

is no where lowing the killing.”14 view on the doctrine’s is based *6 rule deter felony-murder The of the is “to purpose

purpose.15 murder a homi dangerous by degree conduct as a first punishing of a resulting dangerous perpetration cide from conduct intend The rule felony, even if the defendant did not kill.”16 felony the itself or deter a committing person deter from Thus, an ac committing felony the in a violent manner.17 if underlying felony does not have the “intent to commit the cused killing, felony-murder the time of the the basis for the rule does recognizes not view also that the deterrent apply.”18 effect a victim died—“ ... the trier fact ends once has of ‘[w]here accused, killing, determines that the at the time of the has not the the a rule deter felony, designed formed intent to commit ”19 can felony commission of a have no effect.’ contemplated the view the influencing majority underly Also is fiction ing felony-murder the rule—that the intent to commit the the malice for the murder. “Murder the unlawful supplies is being of a human . . . malice either aforethought, express [w]ith murder, With malice is the respect implied implied.”20 Thus, underlying felony.21 intent to commit the malice for imply murder, of the accused must intend to commit purposes at the time the killing. of The minority view is that where the and murder are part action, felony-murder and parcel of one continuous then the doc- taking trine does Courts view have determined that the apply.22 102, (Tenn. 1999) Buggs, (summarizing v. 14 State 995 S.W.2d 107 cases Allen, 724, stating majority position); v. see also State 875 A.2d 729-30 (Md. 2005); 1146, (Pa. Spallone, Super. Com. v. 406 A.2d 1147-48 Ct. 1979). 15 Allen, 729-30; Buggs, 875 A.2d at S.W.2d at 107. 995 16 Allen875 A.2d at 729. 729-30; Buggs,

17 Id.at 995 S.W.2d at 107.

18 Buggs,995 S.W.2d at 107. State, (Md. 2000) 19 Metheny (quoting Spallone, v. 755 A.2d 1115 1148). 406 A.2d at 20 NRS200.010. 21 State, Collman v. 444 Williams, (Ohio 1996); Perry 22 Statev. 660 N.E.2d 732-33 (Okla. 1993); App. Hightower Crim. Allen, 1995); (Wyo. (discussing see A.2d also at 730 the mi rule); rule). nority Buggs, (discussing minority 995 S.W.2d at 107 felony-murder doctrine does not explicitly the intent to require commit the underlying felony to be formed before or contempora- Instead, neously with the murderous apply gestae res act.23 theory long as the act murderous of the “part parcel” —as felony, same transaction as the then when the intent to commit the underlying felony was formed is irrelevant and the rule applies.24

We conclude minority view suffers from two flaws: a lack of intent to commit the prior felony and an predicate of the expansion First, felony-murder doctrine. if an accused lacks intent to commit the felony at the time predicate killing, then mal- no ice is supplied to murder. Developing the intent to commit not, fact, after the killing does after the supply malice for murder requisite because there unity must be a Second, act and any intent to commit the minority view crime.25 when, expands felony-murder doctrine as we recognized in Coliman v. weight “the of authority calls for restricting it.”26 Indeed, the felony-murder rule loses its traditional deterrent pur- pose discouraging felonious conduct or the use of violence in *7 committing felony where the intent to commit the felony only arises as an afterthought to a killing.

We conclude that the majority view the is better view. Robbery does not support felony murder where the evidence shows that the accused kills only later forms the intent to rob that However, person. in determining whether a defendant had the req- uisite intent to commit an enumerated predicate felony before or during killing, the fact-finder may infer that intent from the de- fendant’s during actions and immediately after the In killing.27 case, the failure to properly instruct the jury amounts to judicial error.

Harmless error erred, Having concluded that the district court we must deter- ‘

mine whether that error is harmless. We have explained ‘jury that instruction subject errors are to a analysis harmless-error if do not involve the jury of type instruction error which ‘vitiates all the jury’s findings’ and produces ‘consequences that are necessarily

23 Williams, 732-33; Allen, 660 N.E.2d at 875 A.2d at 730. 24 Allen, (describing 875 A.2d at 730 minority reasoning). 298, 307-08, 25 Labastidav. (1999); NRS

193.190. 26 116 Buggs, (Tenn. 1999).

27 Statev. 995 S.W.2d ”28 in- jury conclude that the We and indeterminate.’ unquantifiable harmless-error review. amenable to error in this case is struction ‘clear be- harmless when it is error is we have explained, As “[a]n found the would have jury that a rational yond a reasonable doubt ”29 the error.’ guilty defendant absent case, robbery predicate is a was instructed jury In this instruc- murder but received no felony of felony for purposes felony murder. The robbery in the context of afterthought tion on ir- robbery, of purposes instructed that for jury “[i]t was further the victim is steal relevant . . . when the intent to closing arguments, instructions in The State used these formed.” guilty then he is of robbery he committed that observing that “[i]f instructions, the ju- and the argument murder.” Given this rob- the conclusion that way arriving had no rors murder. “Ju- cannot bery provide make legal to be nor legal experts neither be expected rors should law; rather, they meaning inferences with respect accurate, with applicable principles should be provided clear, tailored to the facts instructions complete specifically and circumstances of case.”30 Moreover, between verdict forms did not differentiate jury Therefore, it is not clear first-degree murder and murder. Nay had the intent to rob Ansah jury whether the determined killed Ansah with pre- him or concluded that prior Therefore, de- possible we conclude that it is not meditation. jury a reasonable doubt that the would con- beyond termine if it had been properly victed However, im- further conclude that the error did not instructed. we can occur after conviction because pact death,31 overwhelming evidence to and the jury presented admission that he robbery charge, including Nay’s *8 robbed Ansah.

CONCLUSION felony-murder rule that the doctrine re- majority We the adopt intend commit the enumer- predicate that the actor must quires A conviction ated or at the time the occurred. before felony oc- jury will if the finds the for not stand 1155-56, 25, State, 1149, (2000) (quoting 14 P.3d 30 28 Wegnerv. 116 Nev. States, 1, (1999)). United 527 U.S. 10-11 Neder v. 29 Id. 744, 754, 582, State, (2005). 588 v. 121 Nev.

30 Crawford 53, 76, (2001). 412 31 Leonardv. 117 Nev.

335 as an to the we hold that killing. Additionally, curred the failure to instruct the in this case was not harm- properly jury Thus, the first-degree less error with murder conviction. respect we the with judgment robbery affirm as to the conviction for the deadly judgment use and the con- weapon reverse the as to deadly viction for murder with the use of a weapon, remand court. and we this matter to the district JJ., Douglas concur. Gibbons, Parraguirre, Saitta, J., J., C. whom agrees, concurring: with Maupin, Hardesty, I by majority. separately concur result reached the I write the the in majority’s address criticism of district court this matter. that, forcefully based indicates the State’s ar upon

gument given, jurors way and the instructions “the had of ar no at the riving conclusion that afterthought provide cannot “ murder,” the that should ‘[jurors] clear, accurate, be provided applicable legal by principles to the complete specifically instructions tailored facts ... of the case.1 This that the have implies district court somehow should not to known commit the error we have now identified “as a mat ’ view, my ter of first In impression.’ the district court did attempt existing to follow “applicable principles.” begin, the the Nay’s To basis of district court’s af- rejection of terthought robbery instruction came from Cer- arguably this court. that, could tainly, reasonably district court determined as law, a matter of our decision in v. State2 precluded Thomas use of jury stating instruction that an afterthought robbery does not im- plicate felony-murder rule. As noted we made majority, following statement Thomas: Thomas asserts next that the instructions should have stated if the intent to rob was not formed until after mur- ders, then a robbery did not occur the felony-murder rule did not apply. clearly But facts in Thomas that the showed Moreover, intent to rob preceded murders. “in it cases is irrelevant when the intent to steal the formedL”3 unclear,

A reading of this it passage close makes in retrospect, were trying say what we fair portion opinion. A as- sessment of this would language indicate added) majority opinion p. (emphasis (quoting 1 See ante Crawford 744, 754, (2005)). P.3d

2 120Nev. 83 P.3d 340 added) (emphasis (quoting Chappell 3 Id.at 83 P.2d at 824 (1998)). *9 is not intent to commit where the even implicated rule is However, the ex- to killed. has been after the victim until formed convey proposition such attempting were that we tent Chap- decision in Thomas, our upon previous relied improperly we taken language First, the emphasized clear that it is pell State.4 the crime commit necessary to to the intent referred Chappell Second, which the in that case to the discussion robbery itself. absolutely no bear- refers had in Thomas observation emphasized commit rob- the intent to timing of the formation ing upon we have rule. What necessary implicate bery ma- embracing the by expressly Thomas today clarify is to done mis- acknowledge our We should question. on this jority position acting court for the district take,5 criticizing than impliedly rather with that mistake.6 accordance reasonably susceptible felony-murder statute Because the “lenity” rale of apply we must interpretations, two inconsistent today.7 has done majority the measure as and interpret P.2d 838. 1403, 972 4 114 Nev. Thomas the court when majority was not on the author of the 5 Irealize that the court as a whole. authored However, decided. his opinion speaks that Thomas could be read to the extent that, notes 6 The correctly con that embrace robberies, on embrace the minority position that our dicta are entitled to assume district courts dictum. But stituted obiter law.” state the does “applicable (reiter (2004) 7 SeeFirestone accused). in favor must be construed ating that criminal statutes strictly