McKenna v. State, 114 Nev. 1044, 1052, 968 P.2d 739, 745 (1998) (noting that the "[f]ailure to object to or request a jury instruction precludes appellate review, unless the error is patently prejudicial and requires the court to act sua sponte to protect the defendant's right to a fair trial"). 95 Nev. 577, 599 P.2d 1043 (1979). In Jefferson, the defendant told a counter clerk that "this [was] a stick up," went behind the counter, and took money from the cash register.
As discussed infra, this ruling eliminates the distinctions between the rules for dual culpability for first-degree kidnapping and robbery and second-degree kidnapping and robbery. See Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978) and Jefferson v. State, 95 Nev. 577, 599 P.2d 1043 (1979). Our ruling today also attempts a reconciliation of vagaries that have developed in the rules concerning dual culpability for robberies and incidental kidnappings.
Therefore, we affirm Guerrina's convictions of both robbery and kidnapping. Guerrina cites two cases for the proposition that his movement of the victim was merely incidental to the robbery: Jefferson v. State, 95 Nev. 577, 580, 599 P.2d 1043, 1044 (1979), and Hampton v. Sheriff, 95 Nev. 213, 214, 591 P.2d 1146, 1146-47 (1979). However, those 1979 cases predate Mendoza, wherein this court revised Nevada's rule concerning convictions for both robbery and kidnapping arising out of the same course of conduct.
"'" After the facts are ascertained, an examination of whether multiple convictions are improperly redundant begins with an examination of the statute.Jefferson v. State, 95 Nev. 577, 599 P.2d 1043 (1979).Ebeling v. State, 120 Nev. 401, 404, 91 P.3d 599, 601 (2004).
The removal of the victims from one hotel room to another and back again was movement over and above that required to complete the associated crime charged. Jefferson v. State, 95 Nev. 577, 599 P.2d 1043 (1979). 3.
The indictment for second degree kidnapping was attacked on the ground that the movement of the victim was incidental to the open and gross lewdness charge and therefore, precluded. Jefferson v. State, 95 Nev. 577, 599 P.2d 1043 (1979). That contention presented an issue of fact which the district court resolved against Konstantinidis.
In Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978) we held that where the accused is convicted of first degree kidnapping and the associated offense of robbery, the kidnapping conviction would not lie if the movement of the victim was incidental to the robbery, and did not increase the risk of harm to the victim beyond that necessarily present in the robbery. In the recent decision of Jefferson v. State, 95 Nev. 577, 599 P.2d 1043 (1979), we limited the application of the Wright opinion to cases in which the appellant is charged with both first degree kidnapping and one of the associated offenses enumerated in the first degree kidnapping statute. We also stated in Jefferson, however, that where the accused is charged with second degree kidnapping and an associated offense, the second degree kidnapping charge would lie only if the movement of the victim is over and above that required to complete the associated crime charged.
Therefore, we conclude that the circumstances here do not, as a matter of law, satisfy the asportation requirement of second degree kidnapping and that defendant's conviction thereof must be reversed. See Government of Virgin Islands v. Berry, 604 F.2d 221 (3d Cir. 1979); Jefferson v. State, 95 Nev. 577, 599 P.2d 1043 (1979); People v. Caudillo, 21 Cal.3d 562, 580 P.2d 274 (1978) cited inPeople v. Bridges, 199 Colo. 520, 612 P.2d 1110 (1980); Friend v. State, 385 So.2d 696 (Fla.App. 1980); cf. Sheriff v. Medberry, 96 Nev. 202, 606 P.2d 181 (1980) (trier of fact could arguably find that moving victims to different part of prison, in which gunfire was being exchanged, increased their risk of harm). Both parties agree that defendant's conviction of second degree burglary must be reversed.