                information alleged that Sencion entered a residence with the intent to
                commit larceny. The amended information alleged that Sencion conspired
                with an unknown person or aided and abetted that person by (1) providing
                counsel, (2) providing encouragement, (3) removing a dog door, (4)
                carrying away property, and/or (5) acting as a lookout, with the intent that
                the person enter a residence with the intent to commit larceny. We must
                decide whether the late notice prejudiced Sencion's substantial rights. See
                NRS 173.095 (allowing the State to amend an information to include
                another theory of liability at any time before the verdict so long as the
                substantial rights of the defendant are not prejudiced); Green, 94 Nev. at
                177, 576 P.2d at 1123 (explaining that such prejudice amounts to an abuse
                of discretion).
                             Before deciding whether the district court abused its
                discretion, we note that, contrary to the argument in the State's written
                motion and during a subsequent hearing that "[it has always been
                evident since the preliminary hearing that Sencion acted in concert with
                another unidentified person and as a team in burglarizing the victim's
                home," there was no indication from the preliminary hearing testimony
                that anyone other than Sencion participated in the burglary. For this
                reason, we are not confident that we should give the district court's
                decision the deference ordinarily due under an abuse-of-discretion
                standard. See generally Burke v. Town Of Walpole,      405 F.3d 66, 82 (1st
                Cir. 2005) (explaining that a court owes no deference to a magistrate's
                decision where magistrate was misled about relevant information).




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                            The State argued that Sencion would not be prejudiced
                because the evidence had not changed since the preliminary hearing. This
                argument only assisted the State with satisfying its burden under NRS
                173.095 if evidence of a conspirator had been introduced during the
                preliminary hearing and thereby placed Sencion on notice that the State
                believed such a person existed. Without such evidence, the State's
                argument supports Sencion's contention that he was completely
                unprepared to defend against the new theories of liability. If new evidence
                had not been uncovered since the preliminary hearing, and the
                preliminary hearing did not provide notice, the State's motion to amend
                provided the first notice of the new theories of liability to Sencion. Thus,
                this argument did not support the district court's decision to grant the
                State's motion to amend.
                            The only other stated basis for the district court's decision is
                the district court's interpretation of State v. Eighth Judicial Dist. Court
                (Taylor), 116 Nev. 374, 378, 997 P.2d 126, 129 (2000), which the court
                concluded was "analogous." The court specifically noted that our opinion
                in Taylor requires a defendant's substantial rights to be prejudiced by an
                amendment alleging an aiding and abetting theory of liability, and then
                noted that it agreed with the State that Sencion was not prejudiced by
                such an amendment because "he's not looking at any additional time."
                This reasoning is flawed and is at odds with Taylor, where we concluded
                that the district court did not abuse its discretion in determining that the
                defendant's substantial rights were effectively prejudiced by the State's
                delay in amending the information to include a theory of aiding and



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                abetting because "there is no indication from the documents before this
                court that prior to the morning of trial [defendant] received adequate
                actual notice of the State's theory."   Taylor, 116 Nev. at 378, 997 P.2d at
                129. If this court followed the district court's reasoning, correlating
                "additional time" with prejudice, a defendant would never face prejudice
                when an information is amended to include a theory of aiding abetting
                because the underlying charges, and thus the sentence, always remain the
                same. Taylor does not stand for this proposition.
                            Although the amendment here occurred on Friday, rather
                than just before the trial began the following Monday, we conclude that
                the district court abused its discretion by granting the State's motion to
                amend. Under the facts of this case, a weekend was not a sufficient
                amount of time for Sencion to prepare to defend against the new theories
                of liability. Because of the amendment, Sencion not only had to defend
                against the allegation that he intended to commit larceny when he entered
                the residence, he now had to defend against the allegation that he
                intended another person to enter the residence with the intent to commit
                larceny and knowingly aided and abetted that person in five different
                ways. See Sharma v. State, 118 Nev. 648, 655, 56 P.3d 868, 872 (2002)
                (requiring aider and abettor to have the specific intent "that the other
                person commit the charged crime"). This prejudiced his substantial rights.
                By definition, such an error cannot be harmless.         See NRS 178.598.
                Moreover, we do not believe Sencion should have been forced to choose
                between waiving his right to a speedy trial and requesting a continuance




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after this right had been previously invoked, and proceeding to trial
unprepared. Accordingly, we"
              ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.




                                 Saitta


cc: Hon. David B. Barker, District Judge
     Clark County Public Defender
     Attorney General/Carson City
     Clark County District Attorney
     Eighth District Court Clerk




      'Because we are reversing and remanding for a new trial, we need
not consider Sencion's other claims of error.




                                    5
                PICKERING, J., dissenting:
                            A district judge may allow the prosecution to amend the
                charging document in a criminal case any time before verdict so long as
                "no additional or different offense is charged and [the] substantial rights of
                the defendant are not prejudiced." NRS 173.095(1). Our review is
                deferential; we will not second guess the district court except when it
                "manifestly abuses" its considerable discretion.    State v. Eighth Judicial
                Dist. Court (Taylor), 116 Nev. 374, 379, 997 P.2d 126, 129 (2000). Because
                I do not agree that a manifest abuse of discretion occurred in this case, I
                respectfully dissent.
                            The Friday before a Monday trial, Judge Barker permitted the
                prosecution to amend its information charging Sencion with burglary to
                state that it sought to hold him liable for the acts he directly committed
                and/or those he aided and abetted. 1 NRS 195.020 states that anyone who
                aids and abets the commission of a crime is liable as a principal. Despite
                this statute, Nevada has case law requiring that accomplice liability be
                specifically alleged in the information for a defendant to be convicted of a
                charged offense on an aiding and abetting theory. E.g., Barren v. State, 99
                Nev. 661, 668, 669 P.2d 725, 729 (1983); but see State v. Gonzales, 56 P.3d
                969, 972 n.2 (Utah App. 2002) (noting that "[t]he Nevada rule" articulated
                in Barren and its progeny "comprises a single-state minority position").
                But this due-process-based rule does not inhibit amendment to state an
                accomplice liability theory unless the prosecution has "conceal[ed] or
                vacillat[ed] in its theory of the case to gain an unfair advantage over the

                      'The focus in the brief and by the majority is on aiding and abetting
                rather than conspiracy, so this dissent does the same.



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                defendant." Randolph v. State, 117 Nev. 970, 978, 36 P.3d 424, 429 (2001).
                Thus, in Randolph, we upheld the district court's decision to instruct the
                jury on aiding and abetting even though this theory of liability was not
                alleged in the indictment. We distinguished Barren as follows:
                            Randolph argues that the State was precluded
                            from the benefit of such instructions because it did
                            not originally charge aiding and abetting. We
                            disagree.    Randolph's argument, carried to its
                            logical end, would allow a defendant, in any case
                            where the State did not allege aiding and abetting
                            in the charging document, to escape liability for a
                            crime by proving that he actually aided and
                            abetted the crime. Our holding in Barren was not
                            intended to produce such a perverse result. Nor is
                            such a result acceptable under Nevada statutory
                            law: pursuant to NRS 195.020, anyone who aids
                            and abets in the commission of a crime is liable as
                            a principal.
                Id. at 978, 36 P.3d at 429-30 (footnote omitted; emphasis added); see also
                Ewish v. State, 110 Nev. 221, 236, 871 P.2d 306, 316 (1994).
                            Barren does not apply to this case because nothing suggests
                the prosecution vacillated or concealed its theory. On the contrary, the
                aiding and abetting charge grew out of the prosecution obtaining, at the
                defense's suggestion, documents from the victim's insurance company,
                including the insurance adjuster's lengthy examination under oath of the
                victim that made clear that, to move the sizeable objects reported missing,
                more than one person likely was involved. These documents were
                obtained shortly before trial; they were provided to the defense when the
                prosecution obtained them.
                            The only question before the district court, then, was whether
                the amendment comported with NRS 173.095(1). I submit that it did.
                The amendment did not charge Sencion with "an additional or different
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                offense"; the charge remained burglary. Nor did the district court abuse
                its discretion in finding that the amendment did not prejudice Sencion's
                substantial rights.
                            Respecting prejudice, Sencion argues that allowing the
                prosecution to amend on the eve of trial forced him to a Hobson's choice
                between his speedy trial rights and an adequately prepared defense. But
                this alone cannot be enough because this argument obtains any time leave
                to amend is sought close to or during trial to conform to the evidence and
                the proof, yet NRS 173.095(1) specifically allows the charging document
                "to be amended at any time before verdict or finding if no additional or
                different offense is charged and if substantial rights of the defendant are
                not prejudiced." (Emphasis added.)
                            The prosecution argues that its aiding and abetting theory did
                not unfairly surprise Sencion, since the preliminary hearing transcript
                suggested more than one person may have been involved in the burglary.
                The majority suggests that the district court was misled by this argument.
                I respectfully disagree. The victim testified at the preliminary hearing
                that he came home to find his house ransacked, upstairs and down. A
                police report referenced an insurance company to whom the victim
                submitted a claim. Both sides had this report but neither side pursued
                claim documentation from the insurance company until shortly before
                trial. From the insured victim's examination under oath by the insurance
                adjuster it became clear that more than one person had to have been
                involved in the burglary; hence, the formal amendment. But the
                preliminary hearing transcript also supports the aiding and abetting
                charge from the extent of the ransacking the victim described and the
                short time between the victim leaving to go to work and returning at the

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noon hour. The district court's comment about amendment not affecting
the number of years Sencion faced was in the context of a discussion about
whether, given the new insurance documents, the prosecution was
amending to add a grand larceny charge, which it confirmed it was not.
            Sencion does not tie his claim of prejudice to the facts of the
case. The evidence at trial showed that Sencion's fingerprints were on
both sides of the dog door in the victim's house and that the victim did not
know Sencion or authorize him to come inside his house. Sencion's
defense was that a stranger hired him as a day laborer to help move the
stranger's belongings from what the stranger told Sencion was his current
residence to his new residence. This defense applies equally to accomplice
as well as to direct-actor liability; it seems unaffected by the theory of
liability alleged. Given that the charge did not change, that the
prosecution did not spring a surprising new theory on the eve of trial, and
the lack of demonstrable prejudice, I do not find an abuse of discretion in
the amendment allowed. For these reasons, I would affirm and therefore
respectfully dissent.



                                   Pickering




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