Summary
The Supreme Court of Nevada affirmed Frederick Green’s convictions for sexual assault and aggravated stalking. The court held that the district court improperly used an “acquittal first” transition instruction for the lesser-included offense of misdemeanor stalking, adopting instead an “unable to agree” instruction, but concluded that the instructional error did not affect Green’s substantial rights. The court also rejected Green’s claim that the jury should have been instructed to view his oral admissions to police with caution.
Holdings
- Nevada trial courts must use an "unable to agree" transition instruction, rather than an "acquittal first" instruction, when instructing juries on consideration of lesser-included offenses. The jury may consider the lesser-included offense after fully and carefully considering the charged offense if it either finds the defendant not guilty or is unable to agree whether to acquit or convict.
- Although the district court erred by using an acquittal-first instruction, the error did not constitute plain error because it did not affect Green's substantial rights.
- The district court did not err by failing to instruct the jury to view Green's oral admissions to police with caution.
Questions Presented
- Whether the district court plainly erred by instructing the jury that it had to unanimously acquit Green of aggravated stalking before considering the lesser-included offense of misdemeanor stalking.
- Whether the district court plainly erred by failing to instruct the jury to view Green's oral admissions to police with caution.
Disposition
affirmed
Cases Cited (24)
- Walker v. State, 116 Nev. 670, 673, 6 P.3d 477, 479 (2000)(followed)
- Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001)(followed)
- United States v. Olano, 507 U.S. 725, 732-35, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)(followed)
- Phenix v. State, 114 Nev. 116, 119, 954 P.2d 739, 740 (1998)(followed)
- State v. Taylor, 141 N.H. 89, 677 A.2d 1093, 1097 (1996)(discussed)
- State v. Sawyer, 227 Conn. 566, 630 A.2d 1064, 1073 (1993)(discussed)
- State v. Townsend, 124 Idaho 881, 865 P.2d 972, 979 (1993)(discussed)
- State v. Van Dyken, 242 Mont. 415, 791 P.2d 1350, 1361 (1990)(discussed)
- People v. Boettcher, 69 N.Y.2d 174, 513 N.Y.S.2d 83, 505 N.E.2d 594 (Ct. App. 1987)(discussed)
- Lindsey v. State, 456 So. 2d 383, 387-88 (Ala. Crim. App. 1983)(discussed)
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Court Document
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