Opinion
No. 63829
07-22-2014
EVER GEOVANY VIVAR, JR., 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 apeapl from a judgment of conviction, pursuant to a guilty plea, of battery with a deadly weapon. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Appellant Ever Geovany Vivar, Jr. contends that the district court abused its discretion at sentencing by focusing on his gang membership and not giving sufficient consideration to his mitigating evidence. We review a district court's sentencing determination for an abuse of discretion, Parrish v. State, 116 Nev. 982, 988-89, 12 P.3d 953, 957 (2000), and will refrain from interfering with the sentence imposed by the district court "[s]o long as the record does not demonstrate prejudice resulting from consideration of information or accusations founded on facts supported only by impalpable or highly suspect evidence," Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). As Vivar admits, evidence of his gang affiliation may be relevant to show his future dangerousness to society. See Lay v. State, 110 Nev. 1189, 1196-97, 886 P.2d 448, 453 (1994). In this case, Vivar was captured on video repeatedly smashing a rock into a rival gang member's head. Thus, evidence of Vivar's gang affiliation is not impalpable or highly suspect. As to Vivar's mitigation evidence, he argues, without citing to any authority, that the district court should be required to articulate whether it has considered that evidence in making its decision. Here, the district court did state that "the record should reflect the Court has received and reviewed" the mitigation evidence. Vivar has not demonstrated that the district court based its sentencing decision solely on his gang affiliation and that it did not sentence him as an individual by taking into consideration his mitigation evidence. We discern no abuse of discretion and we
ORDER the judgment of conviction AFFIRMED.
__________, J.
Pickering
__________, J.
Parraguirre
__________, J.
Saitta
cc: Hon. Brent T. Adams, District Judge
David Kalo Neidert
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk