                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                ANTHONY TYRONE BROWN,                                  No. 67745
                Appellant,
                vs.
                                                                                FILED
                THE STATE OF NEVADA,
                                                                                 FEB 1 2 2016
                Respondent.
                                                                                    _ K. LINDEMAN
                                                                           CEBA1491FA 1IF/101.9QP RT
                                                                           BY
                                                                                CHIEF DE


                         ORDER AFFIRMING IN PART, REVERSING IN PART
                                      AND REMANDING
                            This is an appeal from a judgment of conviction, pursuant to a
                jury verdict, of robbery with the use of a deadly weapon and robbery.
                Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge.
                            Appellant Anthony Tyrone Brown argues that the district
                court erred in instructing the jury that a knife is a "deadly weapon" for the
                purpose of a sentencing enhancement under NRS 193.165. He contends
                that not all knives are deadly weapons as a matter of law, and the
                determination as to whether the knife used in this case was a deadly
                weapon should have been left to the jury. Because Brown failed to object
                to the district court's deadly weapon instruction at trial, we review the
                instruction for plain error affecting his substantial rights.      See Green v.
                State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003).
                            At trial, the jury was instructed on the meaning of a "deadly
                weapon" as follows:
                            "Deadly weapon" means any instrument which, if
                            used in the ordinary manner contemplated by its
                            design and construction, will or is likely to cause
                            substantial bodily harm or death; any weapon,
                            device, instrument, material or substance which,
                            under the circumstances in which it is used,

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                             attempted to be used or threatened to be used, is
                             readily capable of causing substantial bodily harm
                             or death.

                             A knife is a deadly weapon.

                 While the first sentence of this instruction mirrors the "deadly weapon"
                 definitions provided in NRS 193.165(6), the last sentence erroneously
                 informs the jury that a knife is a deadly weapon as a matter of law.
                 Neither the deadly weapon enhancement statute, nor the statutes
                 referenced therein, describes knives in general as deadly weapons.       See
                 NRS 193.165(6); NRS 202.265; NRS 202.320; NRS 202.350. Accordingly,
                 we conclude that this instruction is an incorrect statement of law.
                             We further conclude that this instruction erroneously removed
                 from the jury's consideration the factual issue of whether the knife
                 constituted a deadly weapon. The United States Supreme Court has held
                 that any fact, other than a prior conviction, that increases the penalty for
                 a crime beyond the statutory maximum must be submitted to a jury and
                 proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466,
                 490 (2000); accord Abrego v. State, 118 Nev. 54, 60, 38 P.3d 868, 871
                 (2002) (applying Apprendi to a sentencing enhancement). Because the use
                 of a deadly weapon is a required factual finding for the deadly weapon
                 enhancement to the robbery charge,             see   NRS 193.165(1), the
                 determination as to whether the knife was a deadly weapon should have
                 been submitted to the jury.' We conclude that it was plain error for the



                       'Our cases allowing this issue to be decided by the district court as a
                 matter of law pre-date Apprendi. See Steese v. State, 114 Nev. 479, 499,
                 960 P.2d 321, 334 (1998); Thomas v. State, 114 Nev. 1127, 1146, 967 P.2d
                                                                  continued on next page . . .

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                 district court to instruct the jury that a "knife" is a "deadly weapon" as a
                 matter of law. We further conclude that this error affected Brown's
                 substantial rights, as it is not clear that the knife—a Leatherman multi-
                 tool with a two-inch-long folding blade—meets the definition of a "deadly
                 weapon" under NRS 193.165(1). We therefore reverse the deadly weapon
                 enhancement and remand this case for a new trial on the deadly weapon
                 issue alone.
                                Brown also contends that the district court erred in
                 improperly instructing the jury on the "use" of a deadly weapon. The jury
                 was instructed that: "In order to 'use' a deadly weapon, there need not be
                 conduct which actually produces harm but only conduct which produces a
                 fear of harm or force by means or display of the deadly weapon in aiding
                 the commission of the crime." Brown argues that the district court should
                 have additionally instructed the jury, in accordance with Buschauer v.
                 State, 106 Nev. 890, 895, 804 P.2d 1046, 1049 (1990), that in order to use a
                 deadly weapon in the commission of a crime, the weapon "must be used in
                 conscious furtherance of a criminal objective." Brown did not request this
                 instruction or object to its omission. We conclude that he has failed to
                 demonstrate that the district court's failure to provide this instruction sua
                 sponte was patently prejudicial, see Flanagan v. State, 112 Nev. 1409,
                 1423, 930 P.2d 691, 700 (1996), or was plain error affecting his substantial
                 rights, Tavares v. State, 117 Nev. 725, 729, 30 P.3d 1128, 1130-31 (2001).




                 . . . continued
                 1111, 1124 (1998); Zgombic v. State, 106 Nev. 571, 577, 798 P.2d 548, 551-
                 52 (1990).



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                             Brown next argues that the State committed misconduct
                 during closing arguments. Specifically, Brown contends that the State
                 (1) shifted the burden of proof by commenting on the lack of evidence of
                 store policies; (2) belittled the defense's theory of self-defense by stating
                 that it blamed the victims; (3) shifted the burden of proof by commenting
                 on the lack of evidence supporting the defense's contention that Brown did
                 not enter the store with the intent to steal; and (4) improperly appealed to
                 community standards. Brown did not object below to any of these alleged
                 instances of prosecutorial misconduct, and we conclude that he fails to
                 demonstrate plain error affecting his substantial rights.
                             Finally, Brown contends that cumulative error warrants a
                 new trial. Because we have found only one error, there is nothing to
                 cumulate. Accordingly, for the foregoing reasons, we
                             ORDER the judgment of conviction AFFIRMED IN PART
                 AND REVERSED IN PART AND REMAND this matter to the district
                 court for proceedings consistent with this order.




                 ein   dir74
                 Douglas



                 cc:   Hon. Elissa F. Cadish, District Judge
                       Clark County Public Defender
                       Attorney General/Carson City
                       Clark County District Attorney
                       Eighth District Court Clerk
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