Fields v. State

*788OPINION

By the Court,

This is an appeal from a judgment of conviction of first-degree murder with the use of a deadly weapon and conspiracy to commit murder, asserting evidentiary and instructional error and improper argument by the prosecutor. We find no error or abuse of discretion and therefore affirm.

FACTS

A jury convicted John Vernon Fields (Fields) of murder and conspiracy to commit murder in connection with the death of Jaromir Palensky, whose fully clothed body was found floating in the Jordan River in Utah on January 14, 2004. Forensic evidence showed that Palensky had been dead for days, maybe weeks, and that he did not drown but died as a result of blunt force blows to the back of his head. Palensky did not have a car, current driver’s license, or phone. He was last seen alive on December 19, 2003, at the ranch outside Elko leased by Fields and his wife, Linda Walker Fields (Linda). For the six weeks before he disappeared, Palensky had been living in a trailer on the ranch and working for the Fieldses as a ranch hand.

Palensky was an alcoholic. In 2002, he was convicted of DUI and sentenced to an 18-month prison term, which he had just finished serving when he moved into the trailer on the Fieldses’ leased ranch. Linda befriended Palensky before he went to prison, and in late January of 2002, he gave her a general power of attorney. While Palensky was in prison, Linda used the power of attorney to liquidate a number of his assets, including two parcels of land, a savings account, a credit union account, and a pension plan benefit. Linda transferred these assets or their proceeds into joint accounts she held with Fields.

Some time after Palensky’s body was discovered, a $300,000 life insurance policy naming Linda as Palensky’s beneficiary surfaced, as did a handwritten will, naming Linda and Fields as the beneficiaries of Palensky’s estate. The will recited that it had been written out for Palensky by a man named Sherman Butts, who died in 2004. Trial testimony established the writing wasn’t that of Butts but a forgery by Fields.

Fields was tried separately from Linda, who was also charged with, and convicted of, murdering Palensky. In addition to first-degree murder and its lesser included offenses, Fields was charged with conspiring with Linda to murder Palensky “for the purpose of acquiring money either through the payout of a life insurance policy on the victim, the beneficiary being Linda Walker Fields, the spouse *789of the Defendant, or by acquiring the assets of the victim through a purported Will naming the Defendant and Linda Walker Fields, his spouse, as the primary beneficiaries.”

Fields defended the case on the basis that he didn’t murder Palensky, someone else did — probably a stranger but perhaps Linda, in concert with the man she later had an affair with, or another friend or associate of hers. Even if Linda arranged Palensky’s death, Fields argued, he still should be acquitted: the evidence did not show that he knew about the alleged scheme to murder Palensky; he was not named with Linda on Palensky’s life insurance policy; and being married to Linda didn’t mean that he conspired with her to kill Palensky.

DISCUSSION

Prior bad act evidence

Fields principally challenges the district court’s admission of prior bad act evidence concerning the Fieldses’ dealings with one Roy Mobert. Specifically, Fields challenges the district court’s admission of: (1) testimony from Mobert’s lawyer, Gregory Com, and documents Com authenticated, about the Fieldses’ debts to Mobert and Mobert’s foreclosure proceedings against them, which were imminent in December of 2003; and (2) a tape recording that captured Fields, Linda, and Billy Wells discussing a proposal for Wells to kill Mobert and make it look like an accident. The district court conducted a full Petrocelli hearing, Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), and gave the jury the limiting instructions required by Tavares v. State, 117 Nev. 725, 30 P.3d 1128 (2001), before and after admitting this evidence. The issue thus is not process but, purely, admissibility.

“A district court’s decision to admit or exclude [prior bad act] evidence under NRS 48.045(2) rests within its sound discretion and will not be reversed on appeal absent manifest error.” Ledbetter v. State, 122 Nev. 252, 259, 129 P.3d 671, 676 (2006). Our already deferential review is even more limited than usual in this case. The parties did not include the trial exhibits — including the Corn documents and the Wells tape — in the record on appeal. And, although the Wells tape was played at trial, it was not transcribed.

As the appellant, Fields had the “responsibility to provide the materials necessary for this court’s review.” Jacobs v. State, 91 Nev. 155, 158, 532 P.2d 1034, 1036 (1975). Under NRAP 30(d), the required appendix should include “[c]opies of relevant and necessary exhibits,” or “[i]f the exhibits are too large or otherwise incapable of being reproduced in the appendix, the parties may file a motion *790requesting the Supreme Court to direct the district court clerk to transmit the original exhibits.” Neither was done here. See Thomas v. State, 120 Nev. 37, 43 & n.4, 83 P.3d 818, 822 & n.4 (2004) (“Appellant has the ultimate responsibility to provide this court with ‘portions of the record essential to determination of issues raised in appellant’s appeal.’ ” (quoting NRAP 30(b)(3)). While the Com testimony and the pretrial and trial transcripts, which include the closing arguments, permit us to review the challenge to the Mobert evidence, not having the trial exhibits or a transcript of the Wells tape limits its scope.

NRS 48.045(2) prohibits the use of “other crimes, wrongs or acts ... to prove the character of a person in order to show that he acted in conformity therewith.” Such evidence “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” NRS 48.045(2). “To be deemed an admissible bad act, the trial court must determine, outside the presence of the jury, that: (1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.” Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997). In assessing “unfair prejudice,” this court reviews the use to which the evidence was actually put — whether, having been admitted for a permissible limited purpose, the evidence was presented or argued at trial for its forbidden tendency to prove propensity. See Rosky v. State, 121 Nev. 184, 197-98, 111 P.3d 690, 699 (2005). Also key is “the nature and quantity of the evidence supporting the defendant’s conviction beyond the prior act evidence itself.” Ledbetter, 122 Nev. at 262 n.16, 129 P.3d at 678-79 n.16.

The district court correctly found the Mobert evidence relevant to motive, intent, knowledge, and identity. Corn testified that, in November of 2003, the Fieldses had lost a three-year court battle with Mobert. Lying at the heart of the battle was the Fieldses’ part interest in the Silver Dollar Bar in Elko, on which Mobert held a note secured by a deed of tmst. Mobert was elderly and in ill health. Shortly before undergoing a hospital procedure in 2000, Mobert had given Linda a power of attorney and revised his will to include her and Fields as beneficiaries. Linda used the power of attorney to sell a bar Mobert owned in Jarbidge and to transfer the proceeds from that sale and money Mobert held in a brokerage account to accounts she and Fields jointly held. When Mobert recovered, he sued (and revoked his will), and the Fieldses countersued. To settle the suit, the Fieldses returned to Mobert what money of his they had left, *791with a note secured by a deed of trust on the Silver Dollar Bar for the rest. The Fieldses defaulted on the note and in 2002, they filed bankruptcy to delay foreclosure. In November of 2003, shortly before Palensky disappeared, Mobert obtained an order lifting the bankruptcy court stay against foreclosure on the Silver Dollar Bar.

The taped conversation between the Fieldses and Billy Wells occurred in June of 2001, after the litigation with Mobert began. From the pretrial Petrocelli arguments, it appears the three discussed Wells arranging Mobert’s death by having his car go over a cliff with Mobert in it. In return, the Fieldses would cancel a debt Wells owed them and pay Wells $1,000. Fields reportedly asks Wells on the tape whether a handshake would seal the agreement. The State argued that this conversation was similar to one Fields and Linda had with Palensky’s fellow ranch hand, Ralph Mackley, not long before Palensky disappeared, in which Linda suggested, in Fields’s presence, that Mackley run over Palensky with the front end loader and push his body into the river. An oddly jarring note: In the conversation with Wells and a later one with Mackley, Linda falsely accused Mobert and Palensky, respectively, of being child molesters, for no apparent reason except to devalue their worth as human beings.

The Corn testimony was properly admitted to establish that the Fieldses had a shared monetary motive to kill Palensky. The existence of their earlier litigation with Mobert, the debt owed on the Silver Dollar Bar, and the state of the bankruptcy lift-stay proceedings were not contested. In December of 2003, when Palensky disappeared, the Fieldses did not have enough money to pay their ranch hand, Mackley, and could no longer buy hay on credit. The Fieldses stood to lose their interest in the Silver Dollar Bar unless they immediately paid Mobert a significant sum of money. Linda receiving Palensky’s $300,000 life insurance benefit, or the two of them inheriting his estate, would help solve their problem with Mobert. It would also eliminate the brewing dispute they faced with Palensky over the asset transfers Linda had made while Palensky was in prison.1

A similar issue came before the court in Felder v. State, 107 Nev. 237, 810 P.2d 755 (1991). Felder, like Fields, appealed his murder conviction on the basis that the State violated the rule against using bad act evidence to prove criminal propensity by introducing evidence of the defendant’s “desperat[e]” financial condition to establish motive and identity. Id. at 241, 810 P.2d at 757. The evidence Felder challenged showed he “was in financial distress and took *792money from bank accounts without permission, forged signatures to obtain credit cards, and wrote a large check to his attorney, which bounced,” in the eight months preceding the murder. Id. at 240, 810 P.2d at 757. This evidence had multiple implications, some legitimate and others forbidden by NRS 48.045(2). Although it impugned Felder’s character, the evidence was also relevant to establish that Felder was in financial straits and invented a ransom demand after killing the victim as part of a scheme to obtain $100,000 from a third person. Felder argued that the forgery and unauthorized transfers from other people’s bank accounts should have been excluded as improper bad act evidence under NRS 48.045(2); the State countered that “the testimony was needed to demonstrate motive and that the prior acts were closely connected to Felder’s apparent scheme to obtain ransom money.” Felder, 107 Nev. at 240, 810 P.2d at 757.2 The court agreed with the State and held the unauthorized bank account transfers and forgery “may indicate desperation and [were] therefore properly admitted to prove motive.” Id. at 241, 810 P.2d at 757.

Not only did it tend to establish financial motive, as in Felder, the Mobert evidence also had relevance to knowledge and intent. It tended to show that Fields was not an innocent or ignorant bystander to Linda’s alleged murderous scheme, as he claimed. A defendant’s knowing participation in prior bad acts with alleged co-conspirators may be admitted in a proper case to refute claims that the defendant’s acts were “nothing more than innocent acts of a friend [or here, a husband], and not a knowing participation in a conspiracy,” and to show that “[defendant was not an innocent pawn taken by surprise” in the conspiracy charged. United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009) (Calabresi, J.) (applying Fed. R. Evid. 404(b), the counterpart to NRS 48.045(2), and Fed. R. Evid. 403). See United States v. Tse, 375 F.3d 148, 155-56 (1st Cir. 2004) (canvassing and applying cases holding that, “[i]n a conspiracy case, the district court may admit evidence of other bad acts if they tend to suggest a criminal association between the alleged conspirators . . . [and to] rebut a defendant’s claim that his association with the alleged conspirators was innocent”); United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996) (noting that, “One legitimate purpose for presenting evidence of extrinsic [prior bad] acts is to explain how a criminal relationship developed; this sort of proof [can] furnish[ ] admissible background information in a conspiracy case . . . [and] help the jury understand the basis for the co-*793conspirators’ relationship of mutual trust”); United States v. Cross, 308 F.3d 308, 322 (3d Cir. 2002) (upholding admission of evidence of other bad acts to refute claims that the defendants acted unwittingly and in good faith in connection with the events giving rise to the conspiracy charged); cf. Homick v. State, 108 Nev. 127, 139, 825 P.2d 600, 608 (1992) (upholding admission of testimony about prior bad acts to explain the relationship that led the defendant to give the murder weapon to an associate to use to commit another crime).

Last, the Mobert evidence tended to prove identity, a central disputed issue in this case. “ ‘[E]vidence of prior criminal behavior may only be admitted to prove identity when its prejudicial effect is outweighed by the evidence’s probative value and when that prior behavior demonstrates characteristics of conduct which are unique and common to both the defendant and the perpetrator whose identity is in question.’ ” Canada v. State, 104 Nev. 288, 292-93, 756 P.2d 552, 554 (1988) (quoting Coty v. State, 97 Nev. 243, 244, 627 P.2d 407, 408 (1981)). The district court did not abuse its discretion when it found the Mobert and Palensky facts sufficiently similar to permit the Mobert evidence to be used to show identity. Both scenarios involved grifting an older man (Palensky was in his sixties, Mobert in his seventies) who, facing loss of control of his life through hospitalization or prison, gave Linda a power of attorney, which she then used to transfer assets into accounts held by her and Fields; when the man recovered his autonomy and protested his missing money and property, Linda and Fields spoke to third parties about arranging the man’s death, making it look accidental; she even went so far, in Fields’s presence, as to falsely accuse each man of being a child molester, in conversation with their prospective killers.

The fact the Mobert solicitation did not lead to his death, while Palensky ended up murdered, weakens but does not eliminate the probative worth of the Mobert evidence. United States v. Robinson, 177 F.3d 643 (7th Cir. 1999), is analogous. Robinson challenged the admission to prove identity of a conversation he had with his girlfriend months before the bank robbery he was accused of. In it, he asked her to help him rob a different bank and outlined his thoughts on how to accomplish this. According to Robinson, this conversation showed only “the daydreams of a frustrated youth” and was too dissimilar from the robbery charged to be admitted. 177 F.3d at 647. Writing for the panel, Judge Wood found “no error, plain or otherwise” in admitting the girlfriend’s testimony. Id. Whether or not the “daydream” and the robbery shared a common “modus operandi,” they were similar enough “to show that Robinson had developed a plan for robbing a bank that he believed could be carried out quickly *794and easily. ... It also supplies a motive for bank robbery: Robinson thought this was a quick and easy way to solve his financial problems.” Id.

In sum, the Mobert evidence had probative value on issues besides propensity — motive, intent, knowledge, and identity — which satisfies the first prong of Tinch’s three-part test. Although the dissent argues otherwise, the facts relating to Mobert were sufficiently proved to satisfy Tinch’s second prong as well. The Corn testimony, as noted, addressed the fact of the Fieldses’ dispute with Mobert and Mobert’s imminent foreclosure of their interest in the Silver Dollar Bar. And as the district court found, the Wells “tape is what the tape is.” It was properly authenticated. The jury did not have to believe or like Wells. See Wade v. State, 114 Nev. 914, 917-18, 966 P.2d 160, 162-63 (1998) (upholding admission of tape-recorded conversation with an informant for the defendant’s statements, not the informant’s). Its significance lay in what Fields and Linda said on the tape. Whether they meant their words seriously was for the jury to decide. The words themselves were not contested.

The close question arises under Tinch’s third prong, in the district court’s determination that the risk of unfair prejudice did not substantially outweigh the probative value of the evidence. On the record we have, we cannot say that the district court manifestly abused its discretion in deciding this question, especially in view of the fact that the State charged Fields with conspiracy to commit murder. The court gave proper limiting instructions, and the State did not offer or argue the evidence to prove propensity. Presenting the Mobert evidence took less than a half day of the two-week trial in this case. We do not have a transcript of opening statements, but the transcript of closing arguments shows that the State did not put the Mobert evidence to improper use. In closing, the State made minimal mention of the Mobert evidence, addressing it once, briefly, in regard to the Fieldses’ financial straits and the financial motive their problems with Mobert gave them to kill Palensky, and a second time addressing the conspiracy charge against Fields.3 Finally, we have carefully reviewed the record and find there was sufficient proof, independent of the Mobert evidence, to convict Fields of both murder and conspiracy to commit murder, given the forged will, Fields’s statements to Mike Wilson, Mike Walker, and others about Palensky’s death and “dump[ing] the body,” his taped inculpatory conversations with Linda from the jail, and the Fieldses’ impending *795dispute with Palensky over his missing money and property. On this record, we therefore reject Fields’s NRS 48.045(2) challenge to the admission of the Mobert evidence.

Excluded testimony

Next, Fields challenges the district court’s exclusion of testimony from two witnesses, Wilson and Grondona, about statements non-testifying third parties made to them concerning Linda’s brother, Mike Walker. We review a district court’s determination of whether proffered evidence fits an exception to the hearsay rule for abuse of discretion. See Harkins v. State, 122 Nev. 974, 980, 143 P.3d 706, 709 (2006).

Fields sought to establish through Mike Wilson that Wilson once found Linda crying, covered in blood from a head wound for which she blamed her brother, Mike Walker, “not that Mike Walker did it, but it was tied to Mike Walker, to people tied to an act of his.” Walker testified at Fields’s trial about a conversation he overheard between Fields and Linda about Palensky’s life insurance benefit being paid into court and their fear of what would happen “if they find out we dumped the body.” Walker was impeached with a prior conviction and other bases for bias against his sister, but he was not asked about the episode sought to be introduced through Wilson. The district court properly excluded Wilson’s testimony about Linda’s accusations against her brother as improper collateral impeachment of a witness under NRS 50.085(3).

The Claire Grondona testimony was the subject of an offer of proof outside the jury’s presence. Grondona testified that she is a former reserve police officer, currently working as a Catholic lay minister and helping rehabilitate drug abusers. In July of 2007, a woman named Leah Rand came to Grondona’s home and broke down in tears describing how, in 2003, she had come to Nevada from California with a group of people, including Mike Walker, gotten drunk, and seen Walker hit “Jerry ... the Polack” in the head with an object. Rand said she did not report this to the police then or later, because in the summer of 2004, Walker threatened to kill her and her children. Nor did Grondona report her conversation with Rand to anyone until Grondona testified at the Fields trial. Rand was not shown to be unavailable; her statements to Grondona thus did not even arguably qualify for admission as statements against penal interest. NRS 51.345(l)(b). They also did not qualify as excited utterances, given that more than three years elapsed between the event and her telling Grondona about it. See Browne v. State, 113 Nev. 305, 313, 933 P.2d 187, 192 (1997) (noting that “the timing of the event precipitating [the declarant’s] fear ... is *796often the determining factor for an excited utterance”). The district court did not abuse its discretion in excluding the Grondona/Rand evidence as hearsay.

Citing Chia v. Cambra, 360 F.3d 997 (9th Cir. 2004), Fields argues he had a due process right to present Grondona’s testimony because, if accepted as true, Rand’s statements to Grondona exonerated him by implicating Walker. Fields overreads Chia. Relying on Chambers v. Mississippi, 410 U.S. 284 (1973), Chia held that “when a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation.” Id. at 1003. Rand’s statements to Grondona, unlike the declarant’s statements in Chia, bore no particular indicia of trustworthiness. To the contrary, according to Grondona, Rand said she was drunk when the fight she witnessed occurred; both Grondona and Rand reportedly had a prior history of bad blood with Walker, giving them motive to falsely inculpate Walker. Unlike the declarant in Chia, whose statements to detectives were recorded and close in time to the event (one was made as the declarant was being prepared for surgery and under fear of impending death), Rand’s statements to Grondona were made more than three years after the event. Most important of all, the declarant’s statements in Chia inculpated the declarant while exonerating the defendant, thus contributing to their reliability. The statements at' issue here, by contrast, did not inculpate the declarant (Rand) but merely placed her at the scene as a witness against a third person (Walker). With no assurances of trustworthiness, Chia does not apply. Id. at 1008.

“Although a criminal defendant has a due process right to ‘introduce into evidence any testimony or documentation which would tend to prove the defendant’s theory of the case,’ that right is subject to the rules of evidence.” Rose v. State, 123 Nev. 194, 205 n.18, 163 P.3d 408, 416 n.18 (2007) (quoting Vipperman v. State, 96 Nev. 592, 596, 614 P.2d 532, 534 (1980)). Grondona’s testimony about what Rand said to her did not carry sufficient assurances of trustworthiness to justify admission despite its hearsay status.

Jail telephone conversations

Fields spoke to Linda on the telephone while she was in jail and their conversations were recorded. Although the record on appeal includes neither the tape recordings nor transcripts of the calls played for the jury, the pretrial hearing transcript establishes that both *797Linda, as the inmate, and Fields, as the outside caller, would automatically be warned that the call was being recorded. This defeats the expectation of confidentiality required to sustain Fields’s claim of marital privilege under NRS 49.295 for these calls. Foss v. State, 92 Nev. 163, 167-68, 547 P.2d 688, 691 (1976).

Jury instruction on intent

Fields next complains that the jury instruction on specific intent was inadequate because the court did not add the following underscored language to its instructions that “murder is a specific intent crime” and that “[s]pecific intent means the intent or active desire to accomplish a precise act or forbidden objective, not merely the intent to do an act.” However, in addition to the instructions just quoted, the jury was instructed that, “[bjecause murder is a specific intent crime, the Defendant cannot be found guilty of murder merely because it was a natural and probable consequence of the conspiracy unless he had a specific intent to commit the murder,” that “[m]urder in the first degree” must be perpetrated by means of “willful, deliberate and premeditated killing,” and that “[w]illfulness is the intent to kill.” This adequately conveyed the information Fields sought to add to the specific intent instruction. See Powell v. State, 113 Nev. 258, 262-63, 934 P.2d 224, 227 (1997).

Comment in closing argument

When Linda spoke to Fields on the jail phone, she apparently complained to Fields that she was in jail because of what Fields did. During closing, the State commented on Fields’s silence in the face of these accusations. Fields objected and the court sustained his objection to the extent this could be interpreted as a comment on Fields’s not testifying. The court overruled his objection to the extent Fields’s silence on the accusatory calls with Linda were adoptive admissions. While the State’s comment should have been more narrowly tailored, this ruling comported with Maginnis v. State, 93 Nev. 173, 561 P.2d 922 (1977), and does not constitute reversible error.

CONCLUSION

Fields was charged with and convicted of both murder and conspiracy to commit murder. The district court did not abuse its discretion in making the evidentiary rulings it did or commit instructional error. Accordingly, we affirm.