Opinion
No. 62029
2013-10-16
JOHNNY ESQUIVEL, Appellant, v. THE STATE OF NEVADA, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of second-degree murder with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.
Appellant Johnny Esquivel's sole contention on appeal is that there was insufficient evidence to support his conviction for second-degree murder because he shot the victim in self-defense. We review the evidence in the light most favorable to the prosecution and determine whether any rational j uror could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
Here, evidence was presented that Esquivel got into an altercation with Brent West, the occupant of a home near downtown Las Vegas, after Esquivel's friend was beat up by West's friend Eddie. The day after the altercation, Esquivel approached Eddie outside West's home and told him, "get your . . . homeboy out [here]." Eddie called to West who was inside the home. As West exited the home, Esquivel displayed a firearm while standing in West's front yard. Meanwhile, Eddie's girlfriend heard the commotion, climbed out of the back of a truck in the driveway, and grabbed a bat. This occurred after Esquivel displayed the firearm. When Eddie saw the gun, he told West and his girlfriend, "he's got a gun, he's got a gun" and threw a chair at Esquivel. Esquivel dodged the chair and shot Eddie in the back as he ran toward the front door of West's home. When Esquivel tried to fire a second shot his gun jammed and he fled.
We conclude that a rational juror could infer from these circumstances that Esquivel was the original aggressor, see NRS 200.120(2)(a), did not have a right to be present at the location where he used deadly force, see NRS 200.120(2)(b), and was actively engaged in conduct in furtherance of criminal activity, see NRS 200.120(2)(c); NRS 207.200(1) (unlawful trespass), when he shot the victim. Therefore, he had the duty to retreat before using deadly force in order for his homicide to be justifiable. See NRS 200.120; see also Harkins v. State, 122 Nev. 974, 990, 143 P.3d 706, 716 (2006) ("Self-defense is not available to an original aggressor."). No evidence was presented that Esquivel attempted to retreat before he shot the victim in the back, and a rational juror could conclude from these circumstances that Esquivel committed second-degree murder. See NRS 200.010(1); NRS 200.030(2). The jury's verdict will not be disturbed on appeal where, as here, substantial evidence supports the conviction. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 1100, 1112 (2002) ("[C]ircumstantial evidence alone may support a conviction."); McNair, 108 Nev. at 56, 825 P.2d at 573 ("[I]t is the jury's function, not that of the court, to assess the weight of the evidence and determine the credibility of witnesses."). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
______________, J.
Hardesty
______________, J.
Parraguirre
______________, J.
Cherry
cc: Hon. Valerie Adair, District Judge
Sandra L. Stewart
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk