                                                  130 Nev., Advance Opinion 10
                       IN THE SUPREME COURT OF THE STATE OF NEVADA

                DAVID SANCHEZ-DOMINGUEZ,                             No, 58345
                Appellant,
                vs.                                                           FILED
                THE STATE OF NEVADA,
                                                                               FEB 2 7 2014
                Respondent.
                                                                             TRAACIEN LINDEMA
                                                                          CLEPOWSCIEIRgMe:q
                                                                         BY
                                                                              C1-1(EF DEPUTY CLERK
                           Appeal from a judgment of conviction, pursu t to a jury
                verdict, of first-degree murder with the use of a deadly weapon,
                aggravated stalking, and burglary. Second Judicial District Court,
                Washoe County; Steven R. Kosach, Judge.
                           Affirmed.

                Richard F. Cornell, Reno,
                for Appellant.

                Catherine Cortez Masto, Attorney General, Carson City; Richard A.
                Gammick, District Attorney, and Terrence P. McCarthy, Deputy District
                Attorney, Washoe County,
                for Respondent.




                BEFORE THE COURT EN BANC.'

                                                OPINION

                By the Court, PICKERING, J.:
                           First-degree felony murder      occurs   when a murder is
                "EcIommitted in the perpetration or attempted perpetration of' certain

                       'Following oral argument, this matter was transferred from a panel
                to the en banc court pursuant to TOP Rule 13(b).

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                felonies, including burglary. NRS 200.030(1)(b). In this appeal, we
                address the meaning of "in the perpetration or attempted perpetration of'
                a burglary, specifically, whether a killing must be caused by, and occur at
                the exact moment of, a burglar's entry into a protected structure. Because
                NRS 200.030(1)(b) holds felons strictly responsible for killings that result
                from their felonious actions, we affirm the judgment of conviction, even
                though the killing here occurred after the offense of burglary was
                complete.
                                                     I.
                            David Sanchez-Dominguez married Maria Angustias Corona
                in 2002. Over the course of their seven-year marriage, Sanchez-
                Dominguez subjected Maria to physical and mental abuse. Maria
                attempted to leave Sanchez-Dominguez several times, but always
                returned. In September 2009, Maria again left Sanchez-Dominguez and
                moved into her mother's home. She also obtained a temporary protective
                order that forbade Sanchez-Dominguez from coming within 100 yards of
                Maria, her mother's home, or her place of work. Despite the protective
                order, Sanchez-Dominguez continued to pursue Maria.
                            On November 13, 2009, Sanchez-Dominguez drove to Maria's
                mother's home. He entered the home, uninvited, through the unlocked
                front door. Inside, he encountered several of Maria's relatives, including
                her mother, two cousins, and two brothers. Repeatedly, Sanchez-
                Dominguez asked for Maria and was told that she was not home. Maria's
                relatives told Sanchez-Dominguez to leave, but he refused. When Maria's
                cousin Jose moved toward the phone to call 911, Sanchez-Dominguez
                pulled a gun from the waist of his pants and told Jose not to move. He
                then pointed the gun at Maria's mother. Hearing the commotion, Roberto

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                   Corona, Maria's brother, came downstairs. Upon realizing what was
                   happening and seeing that Sanchez-Dominguez had the gun drawn,
                   Roberto stepped between his mother and Sanchez-Dominguez and said, "if
                   you're going to shoot, shoot." Immediately, Sanchez-Dominguez held the
                   gun to Roberto's chest and fired a single shot, killing him
                               The State charged Sanchez-Dominguez with burglary,
                   aggravated stalking, and murder. The murder count was charged as
                   willful, deliberate, and premeditated murder and, alternatively, as felony
                   murder in the perpetration of burglary. After a seven-day trial, the jury
                   found Sanchez-Dominguez guilty on all three counts. The jury then chose
                   a sentence of life imprisonment without parole for the murder, and the
                   district court sentenced Sanchez-Dominguez on the remaining counts.
                               Sanchez-Dominguez raises two issues on appeal, only one of
                   which warrants extended discussion: Did the district court err by issuing
                   an incomplete jury instruction regarding felony murder and rejecting the
                   alternative instructions Sanchez-Dominguez proffered, thereby allowing
                   the jury to base a first-degree murder conviction on the felony-murder
                   theory predicated on a completed felony? 2




                         2Sanchez-Dominguez also argues that the aggravated stalking
                   charge should have been severed and tried separately because it was
                   unrelated to the other offenses and highly prejudicial. The district court
                   did not abuse its discretion in refusing severance. The record shows that
                   Sanchez-Dominguez had an overarching plan to terrorize and control
                   Maria that ultimately resulted in the burglary and murder. See NRS
                   173.115(2). Also, the evidence that Sanchez-Dominguez burglarized the
                   home and killed Roberto was overwhelming, leaving little reason to
                   believe the jurors convicted him of murder based on emotional outrage
                   over the stalking, rather than admissible evidence regarding the murder.

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                            In the district court, Sanchez-Dominguez's theory of defense
                was that the felony-murder rule did not apply because the underlying
                felony, burglary, was complete before the killing happened, and thus, the
                death did not occur "during the perpetration or attempted perpetration" of
                a felony. He offered three jury instructions consistent with his theory of
                the case:
                            (1) Burglary is confined to a fixed locus in time.
                            The crime of Burglary is complete at entry into a
                            house where the necessary specific intent is also
                            determined to exist at that same fixed locus in
                            time. All matters following the burglary are not a
                            part of the Burglary. Thus, any act of violence
                            following the actual entry into a house cannot be
                            an act done during the perpetration or attempted
                            perpetration of a Burglary.
                                  Because the evidence in this case
                            demonstrates that ROBERTO CORONA was
                            killed after the defendant's entry into the
                            house . . . , you may not consider the alternative
                            theory of felony murder as a basis for conviction of
                            First Degree Murder. That theory is therefore
                            removed from your consideration.
                                 The only theory of First Degree Murder that
                            you may consider is premeditated and deliberate
                            murder as defined in these instructions.
                            (2) In order to find that the defendant willfully
                            and unlawfully killed ROBERTO CORONA in the
                            perpetration or attempted perpetration of a
                            Burglary . . . , you must find beyond a reasonable
                            doubt that the killing occurred while the
                            defendant was entering the house.
                            (3) The offense of Burglary is complete upon entry
                            of a house only when at the time the house


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                            is entered, the defendant has the specific intent to
                            commit assault or battery or coercion or
                            kidnapping therein.
                The district court rejected the proffered instructions on the grounds they
                did not accurately state the law.
                            Citing Carter v. State, 121 Nev. 759, 765, 121 P.3d 592, 596
                (2005), Sanchez-Dominguez argues that defendants are entitled to have
                the jury instructed on their theory of the case. He urges that even if his
                proposed instructions were poorly worded, the district court had an
                obligation to provide the substance of the requested instructions to the
                jury. And because the district court refused to instruct the jury on the
                substance of his theory that the burglary ended before the murder,
                Sanchez-Dominguez maintains that the court violated his constitutional
                rights.
                            We review the district court's rejection of the proposed
                instructions for an abuse of discretion, keeping in mind that a defendant is
                not entitled to misleading, inaccurate, or duplicative jury instructions.
                Crawford v. State, 121 Nev. 744, 748, 754, 121 P.3d 582, 585, 589 (2005).
                            The first and second proposed instructions misstate the law
                regarding felony murder because the duration of felony-murder liability
                can extend beyond the termination of the felony. See infra § III(B). Thus,
                the district court had no obligation to give either instruction. See Barron
                v. State, 105 Nev. 767, 773, 783 P.2d 444, 448 (1989) ("if a proffered
                instruction misstates the law or is adequately covered by other
                instructions, it need not be given"); see also Eddy v. State, 496 N.E.2d 24,
                27-28 (Ind. 1986) (affirming district court's rejection of defendant's
                completed-felony instruction). The third instruction is an accurate
                statement of the law of burglary enumerated in NRS 205.060.
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                 Nonetheless, the court did not err by omitting this instruction because the
                 instruction duplicates, and is less accurate than, the burglary instruction
                 the court gave as instruction 31. 3 See Crawford, 121 Nev. at 754, 121 P.3d
                 at 589. Thus, the district court did not abuse its discretion by rejecting
                 the three instructions that Sanchez-Dominguez proffered.


                              Sanchez-Dominguez also argues that jury instruction number
                 24 did not include all the elements of felony murder. The instruction read:
                                   The elements of the second category of First
                              Degree Murder are:
                                   1. During the defendant's perpetration or
                              attempted perpetration of a Burglary;
                                       2. a killing resulted.
                                   Whenever death occurs during the
                              perpetration or attempt to perpetrate certain
                              felonies, including Burglary, the killing
                              constitutes First Degree Murder. This second
                              category of First Degree Murder is the "Felony
                              Murder" rule.
                 While the district court was settling jury instructions, Sanchez-Dominguez
                 objected that the phrase "a killing resulted" did not have the same
                 meaning as "a murder committed in the perpetration." He did not tender
                 an alternative instruction to capture this concept or expand on this
                 objection.




                       3 Instruction
                                   31 read: "The elements of the crime of Burglary are: (1)
                 the defendant willfully and unlawfully; (2) entered any house, room
                 apartment, tenement, shop or other building; (3) with the intent to
                 commit. (a) assault, or (b) battery, or (c) any felony crime; including
                 coercion and/or kidnapping."

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                               Now, for the first time on appeal, Sanchez-Dominguez argues
                   that instruction 24 erroneously omitted the principle of causation from its
                   definition of felony murder, thereby relieving the State of its burden of
                   proving "that the killing [was] linked to or part of the series of incidents so
                   as to be one continuous transaction," as required by Payne v. State, 81
                   Nev. 503, 506-07, 406 P.2d 922, 924-25 (1965). At oral argument,
                   Sanchez-Dominguez admitted that he did not request a causation
                   instruction or use causation as a theory of his defense. And so, Sanchez-
                   Dominguez essentially argues that the district court had a sua sponte
                   obligation to instruct the jury on the required connection between the
                   burglary and the killing.
                               Generally, a party's failure to object to or request an
                   instruction precludes appellate review. Flanagan v. State, 112 Nev. 1409,
                   1423, 930 P.2d 691, 700 (1996); Green v. State, 119 Nev. 542, 545, 80 P.3d
                   93, 95 (2003) (failure to clearly object to a jury instruction generally
                   precludes review). There is an exception to this rule, however, if a plain
                   and obvious error occurred that is so serious, it affected the defendant's
                   substantial rights. Green, 119 Nev. at 545, 80 P.3d at 95. "In conducting
                   plain error review, we must examine whether there was 'error,' whether
                   the error was 'plain' or clear, and whether the error affected the
                   defendant's substantial rights."     Id.   To demonstrate plain error, the
                   appellant has the burden of demonstrating actual prejudice. Id.
                                                         A.
                               "A necessary antecedent to invoking the plain-error doctrine is
                   to determine whether error occurred at all." People v. Walker, 982 N.E.2d
                   269, 273 (Ill. App. Ct. 2012); see also Archanian v. State, 122 Nev. 1019,



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                 1031, 145 P.3d 1008, 1017 (2006) (the first step in conducting plain-error
                 analysis is to consider whether an error exists).
                              NRS 200.030(1)(b) defines first-degree felony murder as a
                 killing that is "[c]ommitted in the perpetration or attempted perpetration
                 of' certain felonies, including burglary. The phrase "[c]ommitted in the
                 perpetration or attempted perpetration" of a felony does not give clear
                 answers as to the time, place, and causal connection required. 2 Wayne R.
                 LaFaye, Substantive Criminal Law § 14.5(f) (2d ed. 2003). And, as noted
                 in Payne, 81 Nev. at 506, 406 P.2d at 924, "Mhe point at which the crime
                 was 'perpetrated' ... has been subject to varying degrees and wide
                 latitude."
                              Sanchez-Dominguez construes the phrase "committed in the
                 perpetration of' temporally—as requiring that the killing occur before all
                 the statutory elements of burglary have been completed. Citing Carr v.
                 Sheriff, 95 Nev. 688, 689-70, 601 P.2d 422, 423-24 (1979), he maintains
                 that he was no longer engaged "in the perpetration" of a burglary when he
                 shot Roberto; the burglary, he argues, was complete once he had entered
                 the family home with the specific intent to commit a felony against Maria.
                 Because the burglary was completed before Roberto was killed, Sanchez-
                 Dominguez maintains that the felony-murder rule does not apply.
                                                       B.
                                                       1.
                              The phrase "in the perpetration of' has common-law roots. In
                 most states, "felony murder statutes are premised upon the 1794 felony-
                 murder statute of Pennsylvania." People v. Gillis, 712 N.W.2d 419, 427
                 (Mich. 2006) (comparing the Pennsylvania statute with Michigan's
                 identical felony-murder statute); see also 2 Wharton's Criminal Law § 147

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                (15th ed. 1994) ("In most states, the felony-murder statutory pattern
                continues to this day to be grounded conceptually on the 1794 felony-
                murder statute of Pennsylvania"). Pennsylvania defined felony murder as
                "[a]ll murder. . . which shall be committed in the perpetration or attempt
                to perpetrate any arson, rape, robbery or burglary . ."       Rodriguez v.
                State, 953 S.W.2d 342, 346 (Tex. App. 1997) (citing Edwin Keedy, History
                of the Pennsylvania Statute Creating Degrees of Murder, 97 U. Pa. L. Rev.
                759 (1949)).
                               Nevada's original first-degree murder statute dates back to
                territorial days and used the same "in the perpetration of' language to
                describe a killing committed during the course of an enumerated felony.
                See 1861 Laws of the Territory of Nevada, ch. 28, § 17, at 58 (murder
                includes a killing "which shall be committed in the perpetration, or
                attempt to perpetrate any arson, rape, robbery, or burglary. . ."); see also
                State v. Millain, 3 Nev. 409, 440 (1867) ("Let us here, however, repeat the
                parent statute, being the Pennsylvania one of 1791."). 4 The Nevada
                Legislature has continued to use this language, with small changes, for
                over 153 years. Much like the current statute, the original version did not
                define "in the perpetration of." But because this language was widely
                used, the contemporaneous understanding of "in the perpetration of'
                among the states in the mid-to-late 1800s is useful in understanding what
                Nevada's statute meant in 1861 and still means today.




                      4 The 1791 statute that Nevada adopted is identical to the 1794
                version that most states followed.

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                            Indiana was one of the first states to address the meaning of
                "perpetration." In an 1876 decision, the Indiana Supreme Court upheld a
                felony-murder conviction where the defendant killed a marshal who
                confronted him after he broke into a drug store.     Bissot v. State, 53 Ind.
                408, 411-12 (1876); see also State v. Pratt, 873 P.2d 800, 811-12 (Idaho
                1993). Rejecting the suggestion the burglary was already "complete"
                before the killing occurred, the court explained that "where the homicide is
                committed within the res gestae of the felony charged, it is committed in
                the perpetration of, or attempt to perpetrate, the felony within the true
                intent and fair meaning of the statute," and affirmed the conviction.
                Bissot, 53 Ind. at 413-14.
                            In another early case, Ohio similarly rejected a defendant's
                argument that a killing was not "in the perpetration of" a burglary
                because the burglary was complete before he killed the victim. Conrad v.
                State, 78 N.E. 957, 958-59 (Ohio 1906). Citing the well-established rule
                that statutory construction must not defeat the purpose of a statute, the
                court explained that a killing within the res gestae of burglary is
                committed in the "perpetration of" the burglary, as the term is used in the
                felony-murder statute. Id. at 959; see also Dolan v. People, 64 N.Y. 485,
                497 (1876) (even if the offense of burglary is "doubtless complete," an
                accused "may be said to be engaged in the commission of the crime until
                he leaves the building").
                            And in 1905, this court used a similar analysis when it
                interpreted the time requirement of the felony-murder rule.      See State v.
                Williams, 28 Nev. 395, 82 P. 353 (1905). There, the defendant claimed he
                finished robbing a victim two minutes before shooting the victim and he
                therefore could not be found guilty of first-degree murder. Id. at 407, 82 P.

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                    at 353. This court disagreed and affirmed Williams's conviction because
                    the shooting was part of a continuous assault that began with the robbery
                    and did not end until after the shooting. Id.
                                                         2.
                                The felony-murder rule has not substantially changed over
                    time. Its "purpose [is] to deter felons from killing negligently or
                    accidentally by holding them strictly responsible for the killings that are
                    the result of a felony or an attempted one."    Payne, 81 Nev. at 506, 406
                    P.2d at 924.   See also People v. Wilkens, 295 P.3d 903, 911 (Cal. 2013)
                    ("Once a person perpetrates . . . one of the enumerated felonies [in the
                    felony-murder statute], then in the judgment of the Legislature, he is no
                    longer entitled to such fine judicial calibration, but will be deemed guilty
                    of first degree murder. . ."). Because the felony-murder rule seeks to
                    make punishment more certain, "[it was not intended to relieve the
                    wrong-doer from any. . . consequences of his act." People v. Boss, 290 P.
                    881, 884 (Cal. 1930). Consistent with this purpose, under NRS
                    200.030(1)(b), the perpetration of a felony does not end the moment all of
                    the statutory elements of the felony are complete Instead, the duration of
                    felony-murder liability can extend beyond the termination of the felony
                    itself if the killing and the felony are part of one continuous transaction.
                    See, e.g., State v. Hardy, 283 P.3d 12, 18-19 (Ariz. 2012) (en banc)
                    (upholding felony-murder conviction where a felony occurred before a fatal
                    shooting); Yates v. State, 55 A.3d 25, 34 (Md. 2012) (holding that "the
                    felony murder doctrine applies when the felony and the homicide are parts
                    of one continuous transaction").
                                While the phrase "in the perpetration of' suggests a temporal
                    component, it is not absolute; "the crimes of arson, burglary and rape may

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                   be considered to continue while the building burns, while the burglars
                   search the building and while the sexual connection is maintained."
                   LaFaye, supra, § 14.5(0; see also 2 Charles E. Torcia, Wharton's Criminal
                   Law § 150 (15th ed. 1994 & Supp. 2012) ("the period during which a
                   burglary is deemed to be in progress has ordinarily been extended"). If the
                   opposite were true and a technical construction was given to the statute,
                   as advanced by Sanchez-Dominguez, it would make it "quite impracticable
                   to ever convict for a murder committed in the perpetration of any of the
                   felonies mentioned" in the felony-murder statute.       Bissot, 53 Ind. at 412;
                   see also Pratt, 873 P.2d at 811-12 (to say felony murder predicated upon
                   burglary cannot obtain once the burglary is complete would restrict the
                   felony-murder rule to cases where "the burglar had one leg over the
                   windowsill or one foot across the threshold" and defeat the purpose of the
                   felony-murder statute (internal quotations omitted)).
                                                        3.
                               Thus, both historical and modern interpretations of the phrase
                   "in the perpetration of" as used in the felony-murder rule lead to the same
                   conclusion: the phrase encompasses acts beyond the predicate felony's
                   statutory elements to include all acts connected to the predicate felony.
                   So, even granting that Sanchez-Dominguez had completed the statutory
                   elements of burglary by the time he killed Roberto, the felony-murder rule
                   still applies because the killing occurred moments later while Sanchez-
                   Dominguez remained in the family home uninvited.
                                                        C.
                               But Sanchez-Dominguez argues that NRS 200.030
                   additionally requires, as a separate element, direct and immediate
                   causation between the underlying felony and the victim's death. He

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                  asserts that if a felony is already complete, there can be no direct causal
                  connection between the felony and the killing, such that the district court's
                  failure to instruct on causation beyond the reference to "a killing resulted"
                  in instruction number 24 constitutes plain error. We disagree.
                              A cause is "something that precedes an effect or result,"
                  whereas perpetration is a specific type of causation where an actor
                  "commit[s] or cardies] out" a• crime. Black's Law Dictionary 250, 1256 (9th
                  ed. 2009). So, if a person commits a homicide "in the perpetration" of a
                  felony, he commits the homicide while "causing" a felonious event. In
                  other words, "Mlle only nexus required is that the felony and the killing be
                  part of a continuous transaction." People v. Thompson, 785 P.2d 857, 877
                  (Cal. 1990). And with regard to Sanchez-Dominguez's actions, that nexus
                  is established.
                              After all, the felony-murder rule holds felons strictly
                  accountable for the consequences of perpetrating a felony, and it is
                  immaterial whether a killing is intentional or accidental.           State v.
                  Fouquette, 67 Nev. 505, 529-30, 221 P.2d 404, 417 (1950); Walker, 982
                  N.E.2d at 275) (discussing pattern jury instructions); People v. Huynh, 151
                  Cal. Rptr. 3d 170, 191 (Ct. App. 2012) ("the felony-murder rule imposes a
                  type of strict liability on the perpetrator .. ."). So, even if a perpetrator
                  did not intend to cause a death, causation is assumed where a killing
                  would not have occurred but for the perpetrator's purposeful decision to
                  cause a felony. See, e.g., Walker, 982 N.E.2d at 270 (upholding a felony-
                  murder conviction where a Jehovah's Witness's decision to refuse a blood
                  transfusion actually caused death because the victim would not have
                  needed a life-saving transfusion but for perpetrator's actions); Gillis, 712
                  N.W.2d at 422-23 (holding felony-murder rule applied where a burglar

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                killed two people during a high-speed police chase). Accordingly, "in the
                perpetration of' captures the nominal causation that felony murder
                requires.
                            This is not• to say that a felon is responsible for "mere
                coincidence [s] of time and place." 2 LaFave, supra, § 14.5(0. For example,
                the felony-murder rule would not apply where a bank customer unaware
                that a robbery is taking place suffers a fatal heart attack from natural
                causes. Id. See also, e.g., Huynh, 151 Cal. Rptr. 3d at 190-91 (explaining
                that "causation principles" are only pertinent where other acts allegedly
                caused the death). But in these situations what has absolved the
                defendant of felony-murder liability is not a lack of causation, but rather
                that the death did not occur "in the perpetration of' the felony.
                            Here, Roberto's death would not have occurred but for
                Sanchez-Dominguez's burglary of the home, and there is no doubt that
                Sanchez-Dominguez shot Roberto at point-blank range as Roberto stood
                between Sanchez-Dominquez and Roberto's and Maria's mother, the
                matriarch of their family. Even though Sanchez-Dominguez completed
                the statutory elements of burglary once he crossed the threshold of the
                house, Roberto's efforts to defend his family and home were natural
                consequences of Sanchez-Doming-uez's unlawful entry.            See State v.
                Contreras, 118 Nev. 332, 336, 46 P.3d 661, 663 (2002) ("It should be
                apparent that the Legislature, in including burglary as one of the
                enumerated felonies as a basis for felony murder, recognized that persons
                within domiciles are in greater peril from those entering the domicile with
                criminal intent. ." (quoting People v. Miller, 297 N.E.2d 85, 87 (N.Y.
                1973))). Accordingly, as we have indicated above, the killing that resulted
                falls within the purview of the first-degree felony-murder statute.      See,

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                     e.g., Contreras, 118 Nev. 337, 46 P.3d at 664 (reversing a district court's
                     dismissal of a felony-murder charge predicated upon burglary because the
                     legislative language in NRS 200.030(1)(b) is clear); State v. Burzette, 222
                     N.W. 394, 399 (Iowa 1928) (upholding felony murder predicated upon
                     burglary even though the killing happened after the perpetrator's illegal
                     entry); Dolan, 64 N.Y. at 498-99 (same); Conrad, 78 N.E. at 958 (same);
                     Hardy, 283 P.3d at 18-19 (same)
                                   In light of this analysis, we conclude that the district court did
                     not commit plain error in instructing the jury on the felony-murder rule.
                     Its instruction informed jurors that felony murder requires a finding that,
                     during the perpetration or attempted perpetration of a burglary, a killing
                     resulted. This language closely mirrors NRS 200.030(1)(b), as interpreted
                     in Payne, 81 Nev. at 506-07, 406 P.2d at 924-25. The district court did not
                     err by not sua sponte including more in the instruction than it did.
                                   Thus, we conclude that the assignments of error are without
                     merit and affirm the judgment of conviction.


                                                                 Pitiebt 7
                                                           Pickering
                                                                                        , J.




                     Parraguirre


                     Douglas
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                CHERRY and SAITTA, JJ., dissenting:
                            We respectfully dissent. We would reverse thefl judgment of
                conviction on the grounds that the district court plainly erred in failing to
                instruct the jury that it could not convict appellant of felony murder if it
                concluded that the crime of burglary was completed at the time of the
                killing.
                            The felony-murder rule exists "to deter dangerous conduct by
                punishing as a first degree murder a homicide resulting from dangerous
                conduct in the perpetration of a felony, even if the defendant did not
                intend to kill." Nay v. State, 123 Nev. 326, 332, 167 P.3d 430, 434 (2007)
                (quoting State v. Allen, 875 A.2d 724, 729 (Md. 2005)). It aims to deter a
                person from committing the felony itself, or, at the very least, to avoid
                committing it in a violent manner.        Id.   It cannot apply where the
                perpetrator does not have the "'intent to commit the underlying felony at
                the time of the killing," id. (quoting State v. Buggs, 995 S.W.2d 102, 107
                (Tenn. 1999)), because "the intent to commit the felony supplies the
                malice" which elevates the killing to a murder, id. This rule alleviates the
                State's burden of proving the malice required for murder if it shows that
                the murder occurred during the course of certain felonies.       See Rose v.
                State, 127 Nev. , 255 P.3d 291, 295 (2011) ("The felony-murder rule
                makes a killing committed in the course of certain felonies murder,
                without requiring the State to present additional evidence as to the
                defendant's mental state."). Accordingly, this court should be cautious
                with any ruling that could expand this doctrine.
                            In holding that the district court did not err in denying the
                requested instructions that burglary could not support felony murder if it


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                  ended prior to the killing, the majority adopts the premise that the killing
                  occurred within the res gestae of the burglary and, therefore, "in the
                  perpetration of' the burglary. It relies on State v. Pratt, 873 P.2d 800,
                  811-12 (Idaho 1993); Bissot v. State, 53 Ind. 408, 411-12 (1876); Dolan v.
                  People, 64 N.Y. 485, 497 (1876); and Conrad v. State, 78 N.E. 957, 958-59
                  (Ohio 1906). These cases, while similar to each other, are too dissimilar to
                  the facts before us. In each of the cited cases, the defendants entered a
                  structure with the intent to steal property. See Pratt, 873 P.2d at 811-12
                  (entering home with intent to steal); Bissot, 53 Ind. at 408 (entering drug
                  store for purpose of robbing it); Dolan, 64 N.Y. at 487 (entering dwelling
                  with intent to steal); Conrad, 78 N.E. at 958 (entering home with intent to
                  remove property). During the burglary, or their escape from the premises,
                  a killing occurs. The cases concluded that the burglary continued until the
                  defendants left the building with the property they intended to steal. See
                  Pratt, 873 P.2d at 811-12 (holding that killing occurring after entry but
                  before belongings were removed occurred in the perpetration of the
                  burglary); Bissot, 53 Ind. at 408 (holding that killing occurring during
                  burglary at drug store was committed in the perpetration of the burglary);
                  Dolan, 64 N.Y. at 497 (holding that a burglar "may be said to be engaged
                  in the commission of the crime until he leaves the building with his
                  plunder"); Conrad, 78 N.E. at 959 (holding that killing occurring during
                  escape from burglary of dwelling occurred in the res gestae of the
                  burglary). Inherent in the intent to steal is the desire to carry that
                  property from the structure in order to enjoy the possession of it.      See
                  State v. Fouquette, 67 Nev. 505, 528, 221 P.2d 404, 416 (1950) ("The escape
                  of the robber with his ill-gotten gains by means of arms is as important to


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                the execution of the robbery as gaining possession of the property.").
                Therefore, the felonious intent with which these defendants crossed the
                threshold informed their actions during the crime and accompanied them
                in their flight. See id. at 527, 221 P.2d at 416 ("Robbery, unlike burglary,
                is not confined to a fixed locus, but is frequently spread over considerable
                distance and varying periods of time."). This case, conversely, lacks such
                unifying intent.
                            The evidence produced at trial showed that Sanchez-
                Dominguez entered the home of his estranged wife's family with the intent
                to commit assault, battery, coercion, or kidnapping against his estranged
                wife. The charged burglary was complete when he entered the home. See
                Carr v. Sheriff Clark Cnty., 95 Nev. 688, 689-90, 601 P.2d 422, 423 (1979)
                ("The offenseS of burglary is complete when the house or other building is
                entered with the specific intent designated in the statute."). Upon
                learning that his wife was not at home and, therefore, the crimes he
                intended to inflict upon her became impossible to complete, the intent that
                accompanied Sanchez-Dominguez across the threshold of the residence
                waned. He did not attempt to escape, which may have demonstrated the
                logical continuation of the intent, but instead abandoned it. Thereafter,
                Sanchez-Dominguez's actions became informed by an intent that arose
                after entry into the home and could not support a burglary conviction, see
                State v. Adams, 94 Nev. 503, 505, 581 P.2d 868, 869 (1978) ("A criminal
                intent formulated after a lawful entry will not satisfy the statute."), and
                was separate and distinct from the earlier intent which accompanied him
                into the home.




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                            This discontinuity in the intent distinguishes the instant case
                from those relied upon by the majority. Unlike the defendants in those
                cases, Sanchez-Dominguez's actions after the completion of the burglary
                were not the logical continuation of the intent that accompanied him
                through the door. See Payne v. State, 81 Nev. 503, 507, 406 P.2d 922, 924
                (1965) ("The res gestae of the crime begins at the point where an
                indictable attempt is reached and ends were the chain of events between
                the attempted crime or completed felony is broken, with that question
                usually being a fact determination for the jury."). Therefore, there was a
                factual issue as to whether the killing occurred in the course of the
                burglary that turned on an obscure legal theory and the district court
                plainly erred in failing to provide sufficient instruction for the jury to
                evaluate the facts before it. See Crawford v. State, 121 Nev. 744, 754, 121
                P.3d 582, 588 (2005) ("Jurors should neither be expected to be legal
                experts nor make legal inferences with respect to the meaning of the law;
                rather, they should be provided with applicable legal principles by
                accurate, clear, and complete instructions specifically tailored to the fact
                and circumstances of the case.").
                            We further conclude that the failure to give the instruction
                affected Sanchez-Dominguez's substantial rights. See NRS 178.602; Green
                v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). Although the evidence
                unquestionably shows that Sanchez-Dominguez killed the victim, it is a
                close question regarding whether that killing occurred in the perpetration
                of the earlier burglary. Further, as there was evidence that Sanchez-
                Dominguez was extremely intoxicated, the evidence supporting the



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                 premeditation theory of liability was not so convincing that the failure to
                 give the instruction did not have a prejudicial impact on the verdict.
                             Accordingly, we would reverse the judgment of conviction and
                 remand for a new trial.




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