Preview:

319 (1979); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). It is for the jury to determine the weight and credibility to give conflicting testimony, and a reviewing court will not disturb a verdict if it is supported by substantial evidence. 624 P.2d 20, 20 (1981). In order to demonstrate use of a deadly weapon for the purpose of enhancement, 'there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a [deadly weapon] in aiding the commission of [a crime]." CuIverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221 (1979) (alterations in original) (quoting People v. Chambers, 498 P.2d 1024, 1027 (Cal. 1972)). In the instant case, the victim testified that a gun was brought out and used to hit him over the head twice. The victim testified that during the subsequent events, when he was forced into a van, driven to another location, tied to a chair, and robbed of his property, he was afraid he would be killed. A juror could reasonably infer from the evidence presented that there was conduct which produced fear of harm or force by the presence of the gun and that appellant used a deadly weapon in the commission of the crimes. 1

See Bolden v. State, 97 Nev. 71, 73

'To the extent that appellant argues the BB gun does not qualify as a deadly weapon, we conclude this argument is without merit. Under NRS 193.165(6)(c), a deadly weapon means "[a] dangerous or deadly weapon specifically described in NRS . . . 202.265." NRS 202.265(5)(b) defines a firearm, in part, as any device from which a metal projectile may be expelled by means of a spring or gas; therefore, a BB gun, even if used in a manner not contemplated by its design and construction, constitutes a deadly weapon. See Barnhart v. State, 122 Nev. 301, 304-05, 130 P.3d 650, 652 (2006).
SUPREME COURT OF NEVADA

2
(0) 1947A

1111111111111

1114100012WialT

Lastly, the jury heard testimony that appellant admitted he initially had the gun concealed in his waist band right behind his back and that he gave the gun to the co-offender. Appellant also admitted to hitting the victim with the gun before his co-offender did. From this evidence a juror could reasonably infer that appellant knew of the use of the gun and was thus subject to the deadly weapon enhancement. See Brooks v. State, 124 Nev. 203, 210, 180 P.3d 657, 661 (2008); NRS 193.165(1). Accordingly, we ORDER the judgment of conviction AFFIRMED.

A6--t

J.

Hardesty

J.

cc: Hon. James M. Bixler, District Judge Carl E. G. Arnold Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA

3
(0) 1947A



Download 59946.pdf

Nevada Law