                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 LESLIE VILLA,                                          No. 67568
                 Appellant,
                 vs.
                 THE STATE OF NEVADA,
                 Respondent.
                                                                                     FILED
                                                                                     JUL 2 8 2016
                                                                               TRACE K LINDEMAN
                                                                            CLERK OF SUPREME COURT

                                                                            BY   -   LS--(
                                                                                       -  g
                                         'ORDER OF AFFIRMANCE                          DEPUTY CLERK


                             This is an appeal from a judgment of conviction, pursuant to a
                 jury verdict, of first-degree kidnapping, domestic battery (strangulation),
                 and battery causing substantial bodily harm. Fifth Judicial District
                 Court, Nye County; Kimberly A. Wanker, Judge.
                             Appellant Leslie Villa first argues that relief is warranted
                 because the jury's verdicts are inconsistent. Verdicts will not be rejected
                 for inconsistency when substantial evidence supports the defendant's
                 convictions. Bollinger; v. State, 111 Nev. 1110, 1116, 901 P.2d 671, 675
                 (1995); see also United States v. Powell, 469 U.S. 57, 65 (1984). The record
                 contains substantial evidence for the jury to find, beyond a reasonable
                 doubt, that Villa kidnapped the victim by carrying her to his car and
                 driving away with the intent of substantially harming or killing her,
                 battered her by strangling her, and battered her causing a protracted loss
                 of function to her right eye.     See NRS 0.060; NRS 200.310(1); NRS
                 200.481(2)(b). Accordingly, we conclude that this claim lacks merit.
                             Second, Villa argues that the State filed multiplicitous charges
                 and thereby deprived him of a fair trial. "Multiplicity concerns the
                 charging of a single offense in several counts."   Gordon v. Eighth Judicial
                 Dist. Court, 112 Nev. 216, 229, 913 P.2d 240, 248 (1996). The "test for
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                 multiplicity is that offenses are separate if each requires proof of an
                 additional fact that the other does not."   Bedard v. State, 118 Nev. 410,
                 413, 48 P.3d 46, 48 (2002) (internal citations omitted). First-degree
                 kidnapping, domestic battery (strangulation), and battery causing
                 substantial bodily harm constitute separate offenses under this review.
                 As kidnapping requires a carrying away, domestic battery (strangulation)
                 requires strangulation but not substantial bodily harm, and battery
                 causing substantial bodily harm requires substantial bodily harm but not
                 strangulation, each contains an element that the other does not. Despite
                 Villa's misconception to the contrary, strangulation is conduct that
                 impedes a person's breathing or circulation in a manner that "creates a
                 risk of death or substantial bodily harm," and does not require that the
                 conduct actually cause substantial bodily harm. NRS 200.481(1)(h)
                 (emphasis added). We conclude that Villa's multiplicity claim lacks
                 merit.'
                             Third, Villa argues that his two battery convictions violated
                 the prohibition against double jeopardy. Two offenses do not violate the
                 prohibition against double jeopardy if each offense requires an element
                 that the other does not. Jackson v. State, 128 Nev. 598, 604, 291 P.3d
                 1274, 1278 (2012). As domestic battery (strangulation) and battery
                 causing substantial bodily harm each contain an element that the other
                 does not, as shown above, convictions for both offenses do not violate
                 double jeopardy, and we conclude that Villa's claim lacks merit.


                        Willa also argues that the charges were improperly duplicitous.
                 Duplicity is the charging of two crimes in one count, Gordon v. Eighth
                 Judicial Dist. Court, 112 Nev. 216, 228, 913 P.2d 240, 247-48 (1996), and
                 is in no way present here.

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                              Fourth, Villa argues that the State committed misconduct in
                 its closing argument. The court follows a two-step approach in assessing
                 claims of prosecutorial misconduct: we first determine whether the
                 conduct was improper, and if so, we then determine whether reversal is
                 warranted.    Valdez v. State,   124 Nev. 1172, 1188, 196 P.3d 465, 476
                 (2008). The court reviews unpreserved error for plain error affecting the
                 appellant's substantial rights by causing "actual prejudice or a
                 miscarriage of justice."   Id. at 1190, 196 P.3d at 477. Deputy District
                 Attorney Michael Vieta-Kabell undeniably committed prosecutorial
                 misconduct both in injecting personal opinion by stating his personal view
                 of certain facts and his belief that the case contained a clear instance of
                 attempted murder, see Collier v. State, 101 Nev. 473, 480, 705 P.2d 1126,
                 1130 (1985), and in urging the jury to disregard its instructions and find
                 Villa guilty of each offense and its lesser-included offenses, see State v.
                 McCorkendale, 979 P.2d 1239, 1252-53 (Kan. 1999), disapproved of on
                 other grounds by State v. King, 204 P.3d 585 (Kan. 2009). However, Villa
                 has failed to show that this error affected his substantial rights because
                 overwhelming evidence supported Villa's guilt and the jury rejected Vieta-
                 Kabell's personal opinion by acquitting Villa of attempted murder and
                 properly completing its verdict form in accordance with the jury
                 instructions. Thus, we conclude that Villa has failed to show that Vieta-
                 Kabell's misconduct warrants relief.
                              Fifth, Villa argues that the State improperly failed to preserve
                 potentially exculpatory evidence in failing to take a blood draw when he
                 gave his police statement. If the State fails to gather evidence and the
                 defense shows that the evidence was material, relief is warranted when
                 the failure to gather the evidence was the result of gross negligence or a

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                bad faith effort to prejudice the defendant. Daniels v. State, 114 Nev. 261,
                267, 956 P.2d 111, 115 5 (1998). Villa argues that a blood draw would have
                demonstrated an elevated level of phentermine in his bloodstream,
                showing that he was under the influence of that medication during the
                incident. We conclude, however, that Villa has failed to show that the
                bloodstream evidence was material because he has not shown a reasonable
                degree of probability that the evidence would have led to a different trial
                outcome when (1) he appeared cogent and not intoxicated when arrested
                shortly after the incident and during the police statement the next day, (2)
                the police statement was taken 18 hours after the incident and no
                evidence was produced regarding phentermine's dissipation rate and
                showing the significance that such a delayed sample could have, (3) the
                State's expert testified that he had found no reported instances of
                phentermine causing psychosis, and (4) overwhelming evidence supported
                Villa's guilt. See id. Accordingly, this claim lacks merit.
                            Sixth, Villa argues that the district court erred in denying his
                motion to suppress his police statement when he did not expressly waive
                his Miranda2 rights. A defendant's statement during a police
                interrogation is inadmissible unless the defendant knowingly and
                voluntarily waived his Miranda rights. Berghuis v. Thompkins, 560 U.S.
                370, 382 (2010); Mendoza v. State, 122 Nev. 267, 276, 130 P.3d 176, 181
                (2006). We review whether a waiver was voluntary de novo.          Mendoza,
                122 Nev. at 276, 130 P.3d at 181. Here, Detective Michael Eisenloffel gave
                Villa a Miranda warning, Villa asserted that he understood his rights and
                had no questions, and Villa commenced speaking with Eisenloffel without


                      2Miranda   v. Arizona, 384 U.S. 436 (1966).

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                any coercion or undue pressure. Villa later objected to representation by
                counsel and stated thdt he wanted to admit to his misconduct to "get it
                over with." As the rectird shows that Villa received his Miranda warning,
                understood the waiver, and made his statement without coercion, we
                conclude that he implicitly waived his Miranda rights. See Berghuis, 560
                U.S. at 384. 3
                             Seventh, Villa argues that the evidence presented at trial was
                insufficient to support the jury's finding of guilt for the substantial-bodily-
                harm element of battery causing substantial bodily harm. Our review of
                the record on appeal, however, reveals sufficient evidence to establish
                guilt beyond a reasonable doubt as determined by a rational trier of fact.
                See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Origel-Candido v. State,
                114 Nev. 378, 381, 956313 .2d 1378, 1380 (1998).
                             The victiml testified, and Villa admitted, that he punched and
                choked the victim, caUsing her to lose consciousness. At the hospital, the
                victim presented with petechiae on her face and eyes, among other
                injuries, and the examining nurse testified that this indicated that the
                compression that Villa applied caused capillaries in the victim's face, eyes,
                and brain to rupture.t The following day, the victim's eye "completely



                      3 To  the extent that Villa suggests that the phentermine he ingested
                the previous day rendered him intoxicated and his waiver thus
                involuntary, we reject that contention, as the record does not support that
                he was intoxicated or unable to understand his rights during the
                interrogation. See Falcon v. State, 110 Nev. 530, 534, 874 P.2d 772, 775
                (1994) (concluding waiver was valid, despite prior ingestion of controlled
                substances, when appellant exhibited no signs of intoxication, appeared
                able to comprehend and voluntarily waive his rights, and spoke willingly
                to police).

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                 turned inward towards [her] nose," remaining in that impaired condition
                 for more than one week.
                             The jury could reasonably infer from the evidence presented
                 that Villa willfully and unlawfully used force upon the victim's person,
                 causing protracted impairment of the function of her right eye. See NRS
                 0.060; NRS 200.481(2)(b). It is for the jury to determine the weight and
                 credibility to give witness testimony, and the jury's verdict will not be
                 disturbed on appeal where, as here, substantial evidence supports the
                 verdict. See McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
                 Accordingly, we conclude that this claim lacks merit.
                             Eighth, Villa argues that the district court erred in allowing
                 the State to amend the information by affidavit. The district court may
                 allow the State to amend the information by affidavit where the
                 magistrate made egregious errors in failing to bind the defendant over for
                 trial. NRS 173.035(2); State v. Sixth Judicial Dist. Court (Warren), 114
                 Nev. 739, 741-42, 964 P.2d 48, 49 (1998). We review determinations of
                 egregious error de novo. See Murphy v. State, 110 Nev. 194, 198, 871 P.2d
                 916, 919 (1994), overruled on other grounds by Warren, 114 Nev. at 742-43,
                 964 P.2d at 50. The preliminary-hearing transcript showed that the
                 magistrate concluded that the State had shown probable cause that Villa
                 committed first-degree kidnapping causing substantial bodily harm but
                 struck that count in favor of first-degree kidnapping. Having reviewed the
                 record, we conclude that the district court did not err in determining that
                 the magistrate egregiously erred by striking a count that it had found was




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                  supported by probable cause and permitting the State to amend its
                  information by affidavit. 4
                              Ninth, Villa argues that the kidnapping conviction should not
                  stand because the movement involved was incidental to the conduct
                  constituting the batteries. To sustain convictions for both kidnapping and
                  another offense arising i out of the same course of conduct, the movement or
                  restraint involved in the kidnapping must have independent significance
                  apart from the other offense, create a substantially greater risk of danger,
                  or involve movement that substantially exceeds that necessary to complete
                  the other offense. See Mendoza v. State, 122 Nev. 267, 275, 130 P.3d 176,
                  181 (2006). Whether the victim's movement was incidental to the
                  associated offense is generally a question of fact for the jury.   Curtis D. v.
                  State, 98 Nev. 272, 274, 646 P.2d 547, 548 (1982). Here, movement is not
                  an element of the battery offenses, Villa created a substantially greater
                  risk by transporting the victim away from her home—as he said that he
                  had to take her to the desert to finish what he had started—and he had
                  completed his batteries when he moved the victim in his car. We conclude
                  that the jury had sufficient evidence to determine that the victim's
                  movement was not merely incidental.       See Wright v. State, 106 Nev. 647,
                  649, 799 P.2d 548, 549 (1990).




                        4To the extent that Villa argues that he had inadequate notice of the
                  facts constituting kidnapping, in alleging that Villa seized and abducted
                  the victim to kill or substantially harm her by forcing her into a bedroom
                  and by carrying her away from her home in his car, we conclude that the
                  information provided sufficient notice for Villa to prepare an adequate
                  defense. See Viray v. State, 121 Nev. 159, 162, 111 P.3d 1079, 1081-82
                  (2005).

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                            Tenth, Villa argues that the district court erred in failing to
                grant relief on his pretrial petition for a writ of habeas corpus challenging
                the sufficiency of the [ evidence to establish probable cause. As Villa
                concedes that sufficient evidence supported his charge of domestic battery
                (strangulation), does not identify error pertaining to his other convictions
                beyond mistakenly asserting that the salient arguments were raised
                elsewhere, he failed to ;cogently argue this issue, and we need not address
                this claim. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
                            Eleventh, [Villa argues that the district court erred in
                calculating his credit for time served when it excluded the term that he
                served for committing a subsequent offense during the pendency of this
                matter. Villa relies solely on NRS 211.230, which addresses a prisoner's
                temporary release for medical treatment and does not apply to the present
                facts. We conclude that Villa has failed to present cogent argument and
                need not address this claim. See Maresca, 103 Nev. at 673, 748 P.2d at 6. 5
                            Twelfth, Villa argues that cumulative error warrants relief.
                As Villa has only identified the prosecutorial-misconduct error that did not
                affect his substantial rights, the quality and character of this error do not
                warrant relief under cumulative error.     See Mulder v. State, 116 Nev. 1,
                17, 992 P.2d 845, 854-55 (2000).


                      5To the extent that Villa intended to argue that he was entitled to
                good-time credit on the 180-day sentence that he served during these
                proceedings and should have received more credit for time served on this
                sentence, he has offered no support to show that his misdemeanor
                sentence was reduced, see Haney v. State, 124 Nev. 408, 413, 185 P.3d 350,
                353-54 (2008) (concluding that power to award good-time credits under
                NRS 211.320 lies with sheriff or chief of police and such awards are
                discretionary), and thus has failed to show that the district court erred.

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                              Having considered Villa's contentions and concluded that they
                   are without merit, we
                              ORDER the judgment of conviction AFFIRMED.




                                                                                         J.



                                                                      V                 , J.
                                                            Gibbons


                   cc: Hon. Kimberly A. Wanker, District Judge
                        Harry R. Gensler
                        Attorney General/Carson City
                        Nye County District Attorney
                        Nye County Clerk




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