                      leaving a bruise. During the fracas, the shotgun discharged. Afterward,
                      Barchenger forced Walters at gunpoint to leave the residence in his boxer
                      shorts and socks. As Walters walked down the road, Barchenger
                      attempted to hit Walters with his car, but Wilson intervened by driving
                      her car between Walters and Barchenger's car. Walters climbed into
                      Wilson's car and they, along with Cheynia and Ricky, fled and contacted
                      the police.
                                     Barchenger contends that the evidence presented at trial was
                      insufficient to support his conviction for battery with the use of a deadly
                      weapon involving Cheynia on two grounds. When reviewing a challenge to
                      the sufficiency of the evidence, we consider "whether, after viewing the
                      evidence in the light most favorable to the prosecution, any rational [juror]
                      could have found the essential elements of the crime beyond a reasonable
                      doubt."       McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992)
                      (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "[I]t is the
                      function of the jury, not the appellate court, to weigh the evidence and
                      pass upon the credibility of the witness."     Walker v. State, 91 Nev. 724,
                      726, 542 P.2d 438, 439 (1975). The jury's verdict will not be disturbed on
                      appeal where substantial evidence supports the verdict.        See Bolden v.
                      State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also McNair, 108 Nev. at
                      56, 825 P.2d at 573.
                                     First, Barchenger argues that his battery conviction must fall
                      because his striking Cheynia with the shotgun was accidental and not an
                      intended consequence of battering Walters. Cheynia testified that when
                      Barchenger pointed the shotgun at Wilson, she pushed the shotgun way
                      and Barchenger "grabbed the butt of the gun, twisted it around and hit me
                      in my arm." Walters testified that he saw Barchenger hit Cheynia with

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                     the shotgun. The jury could reasonably infer from the evidence presented
                     that Barchenger battered Cheynia with a deadly weapon. See NRS
                     200.481(2)(e).
                                 Second, Barchenger argues that the offense was not
                     committed with the use of a deadly weapon because Cheynia was struck,
                     rather than shot, with the shotgun. In this, he suggests that, "a deadly
                     weapon' should be governed by the 'old' definition of a 'deadly weapon'
                     under NRS 193.165, before the legislature amended that statute with NRS
                     193.165(6): A shotgun is a 'weapon' when it is used in an ordinary manner
                     contemplated by its design or construction." NRS 193.165 speaks to
                     sentence enhancement for the use of a deadly weapon during the
                     commission of a crime and does not apply where the use of a deadly
                     weapon is a necessary element of the offense, NRS 193.165(4). We have
                     observed that when a deadly weapon is an element of the offense, "an
                     instrumentality, even though not normally dangerous, is a deadly weapon
                     whenever it is used in a deadly manner." Zgombic v. State, 106 Nev. 571,
                     573, 798 P.2d 548, 549 (1990), superseded by statute on other grounds as
                     stated in Steese v. State, 114 Nev. 479, 499 n.6, 960 P.2d 321, 334 n.6
                     (1998). Under the facts presented here, we conclude that the jury could
                     reasonably infer that Barchenger battered Cheynia with a deadly
                     weapon.' See Loretta v. Sheriff, 93 Nev. 344, 345 n.1, 565 P.2d 1008, 1009



                            "In the alternative, Barchenger argues that the district court erred
                     by not giving appropriate instructions so that the jury could determine
                     whether the evidence presented was sufficient to support his conviction for
                     battery with the use of a deadly weapon involving Cheynia. He argues
                     that "[w]hat would be required is a general intent to commit a battery (in
                     this case against [Walters]) in such a way that it has the direct, natural
                                                                      continued on next page . . .

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                     11.1 (1977) (noting that an unloaded pistol may be considered a deadly
                     weapon to support a charge of assault with a deadly weapon if used as a
                     bludgeon); see generally Archie v. Sheriff, 95 Nev. 182, 183, 591 P.2d 245,
                     245 (1979) (concluding that evidence showing that the defendant struck
                     the victim with a two-by-four piece of lumber provided sufficient probable
                     cause to support a charge of battery with the use of a deadly weapon).
                                   Barchenger next argues that the district court erred by not
                     giving an instruction in accordance with Mendoza v. State, 122 Nev. 267,
                     275-76, 130 P.3d 176, 181 (2006), advising the jury that to convict him of
                     kidnapping, the prosecution must show that the kidnapping was not
                     incidental to the battery of Walters. Because he did not object to this
                     omission, his claim is reviewed for plain error affecting his substantial
                     rights.   See Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003).
                     Barchenger argues that "because of the way in which the kidnapping[ 2]



                     . . . continued

                     and probable consequence, if successfully completed, of causing injury to
                     another (in this case, to [Wilson] and/or Cheynia). He further contends
                     that the deadly weapon instruction was misleading because it allowed the
                     jury to find that the shotgun used here was a deadly weapon although it
                     was not used in the manner contemplated by its design. Barchenger did
                     not request such instructions or object to any instructions given, and we
                     conclude that he has not demonstrated plain error in this regard. See
                     Green, 119 Nev. at 545, 80 P.3d at 95. And to the extent he challenges the
                     charged offense of battery with the use of a deadly weapon involving
                     Wilson, he was acquitted of that offense and therefore no relief is
                     warranted.

                           2 The   district court instructed the jury on second-degree kidnapping
                     as follows:

                                                                       continued on next page. . .

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                  and false imprisonment counts were charged and argued, and because of
                  the way in which the jury was instructed, the crimes of second-degree
                  kidnapping and false imprisonment were both indistinguishable and
                  necessarily intrinsic to the associated crime of battery." In this, he
                  reasons that "by cornering Walters on the couch and striking him with a
                  shotgun, [he] to some degree detained, seized, and/or violated the personal
                  liberty of Walters at that point in time," a single act that could result in
                  convictions for battery, false imprisonment, and second-degree
                  kidnapping. Therefore, according to Barchenger, a Mendoza instruction
                  was necessary to ensure that he was not convicted of second-degree
                  kidnapping based on any movement of Walters that was incidental to the
                  battery. We conclude that he has not demonstrated plain error.
                               The State charged Barchenger with second-degree kidnapping
                  of Walters by "willfully, unlawfully, and without the authority of law,


                  . . . continued

                               Every person who shall willfully and without the
                               authority of law seize, inveigle, take, carry away
                               or kidnap another person with the intent to keep
                               such person secretly imprisoned within the state,
                               or for the purpose of conveying such person out of
                               state without authority of law, or in any manner
                               held to service or detained against his or her will,
                               shall be deemed guilty of kidnapping in the second
                               degree.
                               To support the charge of kidnapping it is the fact
                               of moving the victim, not the distance, which is
                               controlling. In other words, there does not have to
                               be any appreciable movement as long as the victim
                               was taken from one place to another.


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                   carry away, and/or kidnap the person of Robert Walters with the intent to
                   detain the victim against his/her will . . . ." Although not evident from the
                   charging document, the State argued to the jury twice during closing
                   arguments that it had proved second-degree kidnapping by Barchenger's
                   actions in taking Walters from inside the residence and forcing him at
                   gunpoint to walk down a road. While Barchenger appears to suggest that
                   the kidnapping occurred when he detained Walters on the couch at
                   gunpoint and beat him, that does not appear to be the factual basis of the
                   second-degree kidnapping charge. Barchenger's actions in removing
                   Walters from his residence at gunpoint and forcing him to walk some
                   distance down a road were not incidental to the battery but distinct
                   conduct that supports a separate second-degree kidnapping conviction.
                   Further, we are not persuaded by Barchenger's arguments concerning the
                   relevance of the false imprisonment charge to this issue as he was
                   acquitted of that charge. Having reviewed the trial transcripts, jury
                   instructions, and charging document, we cannot say that the district court
                   had a sua sponte duty to provide a Mendoza instruction and therefore
                   Barchenger has failed to demonstrate plain error.
                               Having considered Barchenger's arguments and concluded
                   that they lack merit, we
                               ORDER the judgment of conviction AFFIRMED.




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                 cc: Hon. Brent T. Adams, District Judge
                      Richard F. Cornell
                      Attorney General/Carson City
                      Washoe County District Attorney
                      Washoe District Court Clerk




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