                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                STEVEN FONDO,                                           No. 65277
                Appellant,
                vs.
                THE STATE OF NEVADA,
                                                                             FILED
                Respondent.                                                   JAN 1 5 2016
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                                         ORDER OF AFFIRMANCE
                              This is an appeal from a judgment of conviction, pursuant to a
                jury verdict, of one count each of burglary, robbery, first-degree
                kidnapping, and unlawful taking of a motor vehicle. Eighth Judicial
                District Court, Clark County; Douglas W. Herndon, Judge.
                              Appellant Steven Fondo first contends that the district court
                erred when it excluded his prescription-medication records from trial,
                admitted his statements to the victim, and admitted a recording of a
                phone call he placed from jail. "We review a district court's decision to
                admit or exclude evidence for an abuse of discretion."     Mclellan v. State,
                124 Nev. 263, 267, 182 P.3d 106, 109 (2008). Evidence is relevant—and
                thus generally admissible, NRS 48.025(1)—when it has "any tendency to
                make the existence of any fact that is of consequence to the determination
                of the action more or less probable than it would be without the evidence."
                NRS 48.015.
                              First, Fondo argues that the district court violated his rights
                to due process and a fair trial by excluding his prescription-medication
                records, because the records went to his anticipated defense of voluntary
                intoxication. "[V]oluntary intoxication may negate specific intent," Nevius
                TX   State, 101 Nev. 238, 249, 699 P.2d 1053, 1060 (1985), and a defendant is
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                    entitled to admit evidence in support of his defense so long as that
                    evidence comports with the rules of evidence, Rose u. State, 123 Nev. 194,
                    205 n.18, 163 P.3d 408, 416 n.18 (2007). The mere fact that Fondo was
                    prescribed medications does not make it any more or less probable that he
                    was able to form the intent necessary to be convicted of the specific-intent
                    crimes with which he was charged. To be relevant, Fondo would have also
                    needed to introduce evidence that his medications impaired his ability to
                    form intent, that he had taken the medications, and that he was suffering
                    the aforementioned effects at the time of the crimes.   Cf. Nevius, 101 Nev.
                    at 249, 699 P.2d at 1060 (holding it was not error to refuse a voluntary-
                    intoxication jury instruction because there was no evidence of intoxication
                    at the time of the crime). Nor did the district court abuse its discretion in
                    not allowing Fondo's grandmother to lay the necessary foundation,
                    because the offer of proof did not include any claim that the grandmother
                    could testify to having observed Fondo ingest the medications and the
                    subsequent effects thereof or connect them to Fondo's state of mind at the
                    time he committed the charged crimes.
                                Second, Fondo argues that the district court abused its
                    discretion in admitting statements he made to the victim because they
                    were irrelevant and the statement regarding having shot someone
                    constituted evidence of a prior bad act without the benefit of a hearing
                    pursuant to Petrocelli u. State, 101 Nev. 46, 692 P.2d 503 (1985), or a
                    limiting instruction pursuant to Tavares v. State, 117 Nev. 725, 30 P.3d
                    1128 (2001). While the victim was driving at what he believed to be
                    gunpoint, Fondo told him, "I shot somebody yesterday. I've got nothing to
                    lose. I'm suicidal." The statements were relevant to and probative of the
                    robbery charge, an element of which is that Fondo took property "by

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                    means of force or violence or fear of injury." NRS 200.380(1). Defense
                    counsel's concession at trial that Fondo was guilty of robbery did not
                    render the evidence irrelevant, because the concession did not relieve the
                    State of its burden to prove every element beyond a reasonable doubt.
                    Armenta-Carpio v. State, 129 Nev., Adv. Op. 54, 306 P.3d 395, 397-98
                    (2013). Further, Fondo's statement that he shot someone was neither
                    unfairly prejudicial nor a prior bad act as the statement was not offered
                    "to prove the character of a person in order to show that the person acted
                    in conformity therewith." NRS 48.045(2). Accordingly, Fondo was not
                    entitled to a Pet rocelli hearing or a Tavares instruction.
                                Third, Fondo argues that the district court should not have
                    admitted a phone call that Fondo made from jail and/or should have
                    redacted from it all references to the Clark County Detention Center
                    (CCDC), because the call's contents         and jail reference were more
                    prejudicial than probative. "[E]vidence is not admissible if its probative
                    value is substantially outweighed by the danger of unfair prejudice." NRS
                    48.035(1). During the call, Fondo said that he needed money and was
                    "broke," "on the street," and "getting desperate." The conversation was
                    probative of Fondo's motive and intent, and Fondo has not demonstrated
                    that it was unfairly prejudicial. Further, the call contained no reference to
                    the CCDC, jail, or anything else that would have indicated Fondo was
                    incarcerated. But even if it had, any error would have been harmless
                    beyond a reasonable doubt as there was overwhelming evidence of Fondo's
                    guilt. See Haywood v. State, 107 Nev. 285, 287-88, 809 P.2d 1272, 1273
                    (1991).
                                Fondo next contends that the district court erred in denying
                    his NRS 175.381(1) motion to advise the jury to acquit him of the

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                  kidnapping charge as there was insufficient evidence to support it. We
                  review the district court's decision for an abuse of discretion.   Milton v.

                  State, 111 Nev. 1487, 1494, 908 P.2d 684, 688 (1995). A defendant may be
                  convicted of both robbery and kidnapping arising out of the same course of
                  events where any movement or restraint necessary for kidnapping is
                  "substantially in excess of that necessary to" complete the robbery.
                  Mendoza v. State, 122 Nev. 267, 275, 130 P.3d 176, 181 (2006). Sufficient
                  evidence supports a conviction when, "after viewing the evidence in the
                  light most favorable to the prosecution, any rational trier of fact could
                  have found the essential elements of the crime beyond a reasonable
                  doubt." Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380
                  (1998) (internal quotation marks omitted). When Fondo brandished what
                  the victim believed to be a gun, the victim told Fondo to take the cab and
                  leave him behind. Fondo instead ordered the victim to drive, and after
                  seven minutes, he ordered the victim to pull over and get out of the cab, at
                  which point Fondo drove off in the cab. Any rational juror could find that
                  forcing the victim to drive for several more minutes before finally taking
                  the offered cab was substantially in excess of any movement necessary to
                  complete the robbery. We therefore conclude the district court did not
                  abuse its discretion in refusing to give the advisory verdict.
                              Fondo next contends that the district court erred in finding
                  that he voluntarily waived his rights pursuant to Miranda v. Arizona, 384
                  U.S. 436 (1966). The voluntariness of Fondo's waiver presents mixed
                  questions of law and fact and is thus subject to de novo review.   Mendoza,
                  122 Nev. at 276, 130 P.3d at 181. A waiver is voluntary where, "under the
                  totality of the circumstances, [it] was the product of a free and deliberate
                  choice rather than coercion or improper inducement." Id. at 276, 130 P.3d

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                at 181-82. Fondo alleges no coercion or improper inducement, but instead
                argues that he was so intoxicated, his waiver was involuntary. Police
                officers testified at trial that Fondo exhibited no signs of intoxication:
                Fondo was not driving erratically, and after an initial delay in exiting the
                cab, Fondo followed all instructions, including walking backwards and
                kneeling with his hands in the air. An officer further testified that after
                waiving his Miranda rights, Fondo provided clear and accurate answers
                when asked his name, birthdate, and social security number; he recited a
                story about having borrowed the cab from a friend; and he repeated the
                story after the officer broke off the interview to speak with the victim. The
                totality of the circumstances indicate that Fondo's waiver of Miranda
                rights was voluntary.
                            Fondo next contends that the district court erred in finding
                that statements he made to the arresting officer were voluntary. As with
                the waiver, the voluntariness of Fondo's statements present mixed
                questions of law and fact and are thus subject to de novo review.    Rosky v.
                State, 121 Nev. 184, 190, 111 P.3d 690, 694 (2005). Fondo again argues
                that he was so intoxicated, his statements were involuntary. As discussed
                above, the totality of the circumstances indicate that Fondo was not
                intoxicated. Further, upon consideration of the voluntariness factors
                outlined in Rosky, Fondo has failed to demonstrate that his will was
                overborne such that his statement was involuntary.        Id. at 193-94, 111
                P.3d at 696. Fondo was not youthful, he had been Mirandized, the
                detention was not lengthy and he was not subject to repeated or prolonged
                questioning, he had not alleged any deprivation of food or sleep, and he
                had prior experience with law enforcement. See id. We therefore conclude
                the district court did not err in admitting his statements.

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                            Fondo next contends that the district court erred in giving
                certain jury instructions and in refusing to give others. "The district court
                has broad discretion to settle jury instructions, and this court reviews the
                district court's decision for an abuse of that discretion or judicial error."
                Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005). Whether
                an instruction was an accurate statement of law is reviewed de novo.
                Davis v. State, 130 Nev., Adv. Op. 16, 321 P.3d 867, 871 (2014).
                            First, Fondo argues that the district court abused its
                discretion in instructing the jury on burglary (nos. 6-9) and that first-
                degree kidnapping does not require the completion of robbery (no. 16)
                because they were unnecessary and confusing in light of defense counsel's
                concession that Fondo was guilty of burglary and robbery. The
                instructions were necessary because the concession did not relieve the
                State of its burden of proof.   See Armenta-Carpio, 129 Nev., Adv. Op. 54,
                306 P.3d at 397-98. Further, he offers no explanation for his claim that
                instruction nos. 6-9 were duplicative, where no other burglary instructions
                were given. "It is appellant's responsibility to present relevant authority
                and cogent argument; issues not so presented need not be addressed by
                this court." Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
                            Second, Fondo argues that the district court abused its
                discretion in rejecting his proposed instruction defining beyond a
                reasonable doubt, which was the same as that given (no. 25) but with
                additional language taken directly from this court's decision in Randolph
                v. State, 117 Nev. 970, 980-81, 36 P.3d 424, 431 (2001). We have
                recognized that any instruction beyond the statutory definition, which was
                given here, is not permissible. See Garcia v. State, 121 Nev. 327, 340, 113



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                P.3d 836, 844 (2005), holding modified on other grounds by Mendoza, 122
                Nev. at 274, 130 P.3d at 180.
                            Third, Fondo argues that the district court abused its
                discretion in its instruction on circumstantial evidence (no. 26) and in
                refusing Fondo's version of it as well as an instruction for when there are
                two reasonable interpretations of evidence. Fondo has not alleged that the
                circumstantial-evidence instruction given was an incorrect statement of
                law, and he acknowledges that this court has held that his proposed
                instructions are permissible but not required to be given where, as here,
                the jury was properly instructed on reasonable doubt.        See Deveroux v.
                State, 96 Nev. 388, 391-92, 610 P.2d 722, 724 (1980); Bails v. State, 92
                Nev. 95, 96-97, 545 P.2d 1155, 1155-56 (1976). Further, Fondo's reliance
                on Crawford v. State, 121 Nev. 744, 121 P.3d 582 (2005) is misplaced.
                Crawford does not, as Fondo claims, hold that a defense instruction may
                not be refused just because "other instructions cover similar material," but
                rather recognizes that they should not be refused "on the ground that the
                legal principle it provides may be inferred from other instructions." Id. at
                754, 121 P.3d at 588 (emphasis added).
                            Fourth, Fondo argues that the district court abused its
                discretion in rejecting his proposed instruction regarding witness
                credibility in favor of the State's (no. 27) where Fondo's version was more
                "expansive." "Mt is not error to refuse to give an instruction when the law
                encompassed therein is substantially covered by another instruction given
                to the jury."   Ford v. State, 99 Nev. 209, 211, 660 P.2d 992, 993 (1983).
                Fondo's version contained more examples of what the jury could consider,
                but it was substantially covered by the instruction given.



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                             Fifth, Fondo argues that the district court abused its
                 discretion when it instructed the jurors that they must use their common
                 sense and judgment and that the district court diluted the State's burden
                 of proof by requiring jurors to look to personal experiences as well as the
                 evidence (no. 28). Fondo misstates the instruction given. The jurors were
                 instructed that they were "to consider only the evidence in the case in
                 reaching a verdict," (emphasis added) but that they "may draw reasonable
                 inferences from the evidence which [they] feel are justified in the light of
                 common experience." Fondo acknowledges that this court has approved of
                 the law as stated in the instruction given.   See Meyer v. State, 119 Nev.
                 554, 568-72, 80 P.3d 447, 457-60 (2003). We decline Fondo's suggestion to
                 reconsider Meyer.
                             Finally, Fondo argues that the district court abused its
                 discretion in instructing the jury on consent as a defense to kidnapping,
                 because the instruction was irrelevant. Fondo's argument is a bare claim
                 devoid of any analysis. Accordingly, we do not address it.     See Maresca,

                 103 Nev. at 673, 748 P.2d at 6.
                             Fondo next contends that the district court erred in refusing to
                 prohibit the State from mentioning Fondo's prior convictions in its post-
                 trial communications with jurors, because the knowledge could potentially
                 taint future jury pools. In essence, Fondo seeks declaratory relief for the
                 benefit of future defendants. Where the Legislature has not provided a
                 statutory right to seek relief, this court has long required "an actual
                 justiciable controversy as a predicate to judicial relief."   Stockmeier v.

                 Nevada Dep't of Corr. Psychological Review Panel, 122 Nev. 385, 393, 135
                 P.3d 220, 225 (2006) (internal quotation marks omitted), abrogated on
                 other grounds by Buzz Stew, LLC v. City of N. Las Vegas,      124 Nev. 224,

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                  181 P.3d 670 (2008). To demonstrate an actual controversy, a litigant
                  must satisfy the "standing requirements of injury, causation, and
                  redressability."   Id. at 392, 135 P.3d 225 (citing Lujan v. Defenders of
                  Wildlife, 504 U.S. 555 (1992)). Fondo fails to demonstrate standing as he
                  has failed to demonstrate that he has suffered an actual injury from the
                  Stat's post-trial discussion or that a favorable ruling would redress any
                  injury.   See Lujan, 504 U.S. at 560-61. In his reply, Fonda argues that
                  courts have implicitly recognized that criminal defendants have inherent
                  standing to challenge such communications. However, the cases Fondo
                  relies upon are inapposite as in each case, the defendant had standing by
                  virtue of some other mechanism than simply being the defendant.             See
                  United States v. Kepreos, 759 F.2d 961, 967 (1st Cir. 1985) (on appeal from
                  convictions in a second trial after the first trial resulted in a hung jury and
                  discussing whether the government should have been able to discuss trial
                  results with the first trial's jury in order to prepare for the second trial);
                  Haeberle v. Texas Int'l Airlines, 739 F.2d 1019, 1021-22 (5th Cir. 1984) (on
                  appeal from order denying attorney requests to interview jurors); United
                  States v. Moten, 582 F.2d 654, 665-67 (2d Cir. 1978) (on appeal from ruling
                  on discovery motions regarding a claim of juror misconduct); Miller v.
                  United States, 403 F.2d 77, 82 (2d Cir. 1968) (on appeal from an order
                  prohibiting defendant from questioning the jurors who convicted him);
                  Rakes v. United States, 169 F.2d 739, 745-46 (4th Cir. 1948) (on appeal
                  from a motion for new trial based on juror misconduct); Commonwealth v.
                  Fidler, 385 N.E.2d 513, 520 (Mass. 1979) (on appeal from denial of a
                  motion for new trial based on juror misconduct); United States v. Narciso,
                  446 F. Supp. 252, 325 (E.D. Mich. 1977) (on appeal from rulings on



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                discovery motions where government attorneys admitted they had spoken
                extensively with jurors).
                             Fondo next contends that the district court erred in denying
                his motion to record all bench conferences. He acknowledges that we
                recently held that it is sufficient to allow counsel the opportunity to make
                a record of the bench conference after the fact.   See Preciado v. State, 130
                Nev., Adv. Op. 6, 318 P.3d 176, 178 (2014). We decline Fondo's suggestion
                to reconsider Preciado. Further, Fondo does not allege that any error
                occurred in any bench conference or that he was prejudiced by the lack of
                recording.
                             Finally, Fondo contends that cumulative error entitles him to
                relief. Fondo has not identified any error and, accordingly, there are no
                errors to cumulate, and Fondo has failed to demonstrate that he is entitled
                to relief.
                             Having considered Fondo's claims and concluding they are
                without merit, we
                             ORDER the judgment of conviction AFFIRMED.




                                            Hardesty


                                              J.                                       J.



                cc: Hon. Douglas W. Herndon, District Judge
                     Clark County Public Defender
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk
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