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

                 KEONIS DAVIS,
                 Appellant,
                 vs.
                                                                        No.
                                                                              5"°     P ILED
                 THE STATE OF NEVADA,                                                  MAR 27 2014
                 Respondent.                                                          T_QAQIE K. LINDEMAN
                                                                               (ILE
                                                                               BY
                                                                                    CHIEfF DEPritlrof.


                             Appeal from a judgment of conviction, pursuant to &..) jury
                 verdict, of battery with the use of a deadly weapon resulting in substantial
                 bodily harm. Eighth Judicial District Court, Clark County; Valerie Adair,
                 Judge.
                             Reversed and remanded.

                 Legal Resource Group, LLC, and T. Augustus Claus, Henderson,
                 for Appellant.

                 Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                 Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
                 Attorney, and Agnes Lexis, Deputy District Attorney, Clark County,
                 for Respondent.


                 BEFORE GIBBONS, C.J., DOUGLAS and SAITTA, JJ.

                                                  OPINION
                 By the Court, GIBBONS, C.J.:
                             In this opinion, we address justifiable battery and the exercise
                 of self-defense that results in the infliction of bodily harm but not death.
                 Appellant Keonis Davis shot Damien Rhodes in the chest during an
                 altercation. Rhodes survived, and the State charged Davis with one count
                 of attempted murder with use of a deadly weapon and one count of battery
                 with use of a deadly weapon. At trial, the district court denied two of
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                Davis' proposed instructions on justifiable battery, which were both based
                on a theory of self-defense. The jury found Davis guilty of battery with use
                of a deadly weapon resulting in substantial bodily harm. Davis now
                appeals, arguing that the district court erred in denying his proposed
                instructions regarding self-defense that were accurate statements of
                Nevada law. We agree, and because the error was not harmless, we
                reverse Davis' conviction and remand this case to the district court for a
                new trial.
                                 FACTS AND PROCEDURAL HISTORY
                             Davis and Rhodes had been close friends, but that friendship
                deteriorated after Rhodes "took" a gun charge for Davis, incurring a
                significant fine. Police found the gun during a traffic stop of a vehicle
                driven by Rhodes. Davis was riding in the backseat and had possession of
                the gun when the vehicle was stopped, but he passed the gun to another
                passenger who put it in the front dash. The police arrested Rhodes and
                the other passenger in connection with the gun; Davis was not arrested.
                Rhodes subsequently negotiated a plea deal that resulted in four days in
                jail and a $2,000 fine. After serving the jail time, Rhodes encountered
                Davis and asked him to reimburse him for the $2,000 fine. However,
                Davis responded that he did not have the money. As a result, Davis stated
                that Rhodes challenged him to a fistfight, but it was broken up before any
                physical altercation occurred. Davis heard from other individuals that
                Rhodes wanted to physically harm him. He knew that Rhodes had a short
                temper because he previously witnessed Rhodes violently beat another
                person. Davis also knew that Rhodes carried a gun and previously
                witnessed Rhodes shoot at another person.
                             About five months later, Davis was at the Rancho Mesa
                Apartments when he encountered Rhodes again Davis and Rhodes have
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                different versions of the encounter. According to Davis, he tried to shake
                Rhodes' hand, but Rhodes refused and asked Davis where the $2,000 was.
                When Davis responded that he did not have the money, Rhodes attempted
                to instigate a fight. Davis informed Rhodes that he was armed and did not
                want to fight. Rhodes implied that he had a gun as well. Davis tried to
                walk away, but Rhodes ran after him and swung his fist at Davis, clipping
                the side of his head. Davis pushed Rhodes away to get some space.
                Rhodes again attempted to attack Davis. Davis started backing up while
                pulling his gun out. Davis tried to pull the slide of the handgun to
                chamber the round, but the gun jammed. Rhodes did not retreat. Davis
                tried to unjam the gun, but it fired and the bullet struck Rhodes in the
                chest. Davis fled the scene.
                            Rhodes admitted that he instigated the verbal argument with
                Davis but claimed that Davis initiated the physical altercation when he
                shot Rhodes in the chest. While on the ground, Rhodes claimed he heard a
                loud and clear "click click" noise. Two other witnesses also testified
                regarding the shooting, one whose story corresponded with Davis' account
                and the other whose story mirrored Rhodes' version. The latter testified
                that he saw Davis stand over Rhodes after shooting him and attempt to
                pull the trigger two more times, but the gun jammed. Police recovered two
                unspent .22 cartridges and one .22 cartridge case from the scene.
                However, based on the evidence available, the State's firearms expert
                could not discern whether the gun jammed before or after the single bullet
                was successfully fired. Rhodes survived the shooting.
                            During his six-day jury trial, Davis proposed two jury
                instructions regarding justifiable infliction of bodily harm. The district
                court recognized that Davis was entitled to self-defense instructions but
                rejected his proposed instructions as confusing. Although the district
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                court acknowledged that the proposed instructions mirrored Nevada's self-
                defense statutory language nearly verbatim, it concluded that the statutes
                did not accurately reflect Nevada law. Therefore, the district court only
                provided the instructions this court set forth in Bunion.' The jury found


                     'The district court provided instructions that were almost verbatim
                from Bunion v. State, 116 Nev. 1041, 1051-52, 13 P.3d 52, 59 (2000).
                These instructions expressly addressed murder and attempted murder.
                      Jury Instruction No. 14 read:
                                 The killing or attempted killing of another
                           person in self-defense is justified and not unlawful
                           when the person who kills or attempts to kill
                           actually and reasonably believes:
                                 1[.] That there is imminent danger that the
                           assailant will either kill him or cause him great
                           bodily injury; and
                                 2[.] That it is absolutely necessary under
                           the circumstances for him to use, in self-defense,
                           force or means that might cause the death of the
                           other person, for the purpose of avoiding death or
                           great bodily injury to himself.
                                  A bare fear of death or great bodily injury is
                           not sufficient to justify a killing or attempted
                           killing. To justify the taking of a life of another in
                           self-defense, the circumstances must be sufficient
                           to excite the fears of a reasonable person placed in
                           a similar situation. The person killing or
                           attempting to kill must act under the influence of
                           those fears alone and not in revenge.
                     Jury Instruction No. 15 read:
                                  Actual danger is not necessary to justify a
                           killing or attempted killing in self[-]defense. A
                           person has a right to defend from apparent danger
                           to the same extent as he would from actual
                           danger. The person killing or attempted killing is
                           justified if:
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                Davis guilty of battery with use of a deadly weapon resulting in
                substantial bodily harm. Davis now appeals.
                                                 DISCUSSION
                The district court erred in refusing to give Davis' proposed justifiable
                battery instructions
                               Davis contends that the district court committed reversible
                error by rejecting his proposed instructions on justifiable infliction of
                bodily harm because they were accurate statements of law and supported
                his theory of defense. The State argues that the district court properly
                denied Davis' proposed instructions because (1) there was no evidence to
                support a self-defense instruction, (2) the instructions misstated the law


                ...continued
                                      1. He is confronted by the appearance of
                               imminent danger which arouses in his mind an
                               honest belief and fear that he is about to be killed
                               or suffer great bodily injury; and
                                     2. He acts solely upon these appearances
                               and his fear and actual beliefs; and
                                     3. A reasonable person in a similar
                               situation would believe himself to be in like
                               danger.
                                     The killing or attempted killing is justified
                               even if it develops afterward that the person
                               killing or attempted killing was mistaken about
                               the danger.
                      Jury Instruction No. 16 read:
                                      If evidence of self-defense is present, the
                               State must prove beyond a reasonable doubt that
                               the defendant did not act in self-defense. If you
                               find that the State has failed to prove beyond a
                               reasonable doubt that the defendant did not act in
                               self-defense, you must find the defendant not
                               guilty.
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                 because deadly force cannot be used in circumstances where no threat of a
                 felony involving substantial bodily harm or death exists, and (3) Davis'
                 theory of self-defense was substantially covered by the given instructions.
                 We agree with Davis.
                             "The district court has broad discretion to settle jury
                 instructions."   Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585
                 (2005). We review a district court's denial of proposed jury instructions for
                 abuse of discretion or judicial error. Id. "An abuse of discretion occurs if
                 the district court's decision is arbitrary or capricious or if it exceeds the
                 bounds of law or reason." Jackson v. State, 117 Nev. 116, 120, 17 P.3d
                 998, 1000 (2001). However, we review whether an instruction was an
                 accurate statement of law de novo.        Funderburk v. State, 125 Nev. 260,
                 263, 212 P.3d 337, 339 (2009).
                       Davis presented evidence of self-defense
                             The State argues that Davis was not entitled to self-defense
                 instructions because there was no competent evidence of self-defense. We
                 disagree.
                             Death does not have to be the result for self-defense to be
                 applicable. See Rosas v. State, 122 Nev. 1258, 1262, 147 P.3d 1101, 1104
                 (2006) (concluding that the district court erred in rejecting a jury
                 instruction on self-defense for defendant charged with battery upon a
                 police officer); Barone v. State, 109 Nev. 778, 779-81, 858 P.2d 27, 28-29
                 (1993) (district court committed reversible error by not instructing on the
                 burden of proof for self-defense when defendant was charged with battery
                 with a deadly weapon). Specifically, NRS 200.275 contemplates self-
                 defense applying in contexts outside of homicide, as it unambiguously
                 provides that "[in addition to any other circumstances recognized as
                 justification at common law, the infliction or threat of bodily injury is
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                justifiable, and does not constitute mayhem, battery or assault, if done
                under circumstances which would justify homicide" (emphases added); see
                also NRS 193.230 ("Lawful resistance to the commission of a public offense
                may be made . . . [b]y the party about to be injured."); NRS 193.240
                ("Resistance sufficient to prevent the offense may be made by the party
                about to be injured. . . [t]o prevent an offense against his or her
                person .. ."). These provisions ensure that persons who stop short of
                killing in self-defense are afforded the same defenses as those who
                actually kill their assailants.
                             A defendant "has the right to have the jury instructed on [his
                or her] theory of the case as disclosed by the evidence, no matter how weak
                or incredible that evidence may be." Crawford, 121 Nev. at 751, 121 P.3d
                at 586 (internal quotations omitted); see Harris v. State, 106 Nev. 667,
                670, 799 P.2d 1104, 1105-06 (1990) (concluding that the district court
                erred by refusing to approve a self-defense instruction when the defendant
                testified that the victim attacked and attempted to rob him); Mirin v.
                State, 93 Nev. 57, 59, 560 P.2d 145, 146 (1977) (concluding that the
                district court did not err by refusing to approve a self-defense instruction
                when the defendant was the established pursuer and aggressor).
                             Davis' theory of the case was that he was afraid that Rhodes
                was going to shoot him or beat him to death and he shot Rhodes to protect
                himself During trial, Davis testified that: (1) he had previously witnessed
                Rhodes violently punch and kick another person until police arrived, (2)
                Rhodes previously challenged Davis to a fistfight, (3) Davis heard from
                others that Rhodes wanted to kill him, (4) Davis knew that Rhodes carried
                a gun, (5) Rhodes started the argument, (6) Rhodes implied he was
                carrying a gun the day of the shooting, (7) Rhodes instigated the fight with
                Davis even though Davis informed him that he was armed and tried to
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                walk away, and (8) Rhodes punched Davis in the head. • Davis also opined
                that "Mist fights kill people too." Davis' testimony supported his self-
                defense theory that he reasonably believed that he was in imminent
                danger from Rhodes and that the use of force was necessary under the
                circumstances to avoid death or great bodily injury to himself.               See
                Runion, 116 Nev. at 1051, 13 P.3d at 59. Based on this evidence, we
                conclude that Davis was entitled to self-defense instructions.                See
                Williams v. State, 99 Nev. 530, 531, 665 P.2d 260, 261 (1983) ("[e]vidence
                from the defendant alone need not be supported by other independent
                evidence" to entitle him to jury instructions regarding his theory of the
                case).
                                While the State asserts that Davis was not allowed to claim
                self-defense because Rhodes' conduct did not amount to a felony, we
                conclude that this argument lacks merit for two reasons. First, a person is
                allowed to use "Hesistance sufficient . . . [t] o prevent an offense against
                his or her person," and, if the resistance is homicide, it is justifiable if "the
                circumstances were sufficient to excite the fears of a reasonable person."
                NRS 193.240; NRS 200.130. Second, whether Davis reasonably believed
                he was in fear of death or great bodily harm, or whether he was defending
                against an attempt by Rhodes to commit a felony, was a question of fact
                for the jury.
                         Davis' proposed jury instructions did not misstate Nevada law
                                The district court recognized Davis' entitlement to self-defense
                instructions, but provided the instructions from our opinion in Runion. 2


                        We specifically required in Bunion that "[tate district courts should
                         2

                tailor instructions to the facts and circumstances of a case, rather than
                simply relying on 'stock' instructions." 116 Nev. at 1051, 13 P.3d at 59.
                We did not intend the instructions set forth in Bunion to become "stock"
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                The Bunion case put the issue of self-defense for attempted murder in
                front of the jury. But here, attempted murder and battery were both
                before the jury. The district court denied two proposed defense
                instructions that would have put the specific issue of justifiable battery in
                front of the jury. Davis' first proposed instruction read:
                                  The infliction of bodily injury or the threat of
                            bodily injury is justifiable, and does not constitute
                            a public offense, if done under circumstances
                            which would justify homicide.
                The second proposed instruction read:
                                  Justifiable homicide is the killing of a
                            human being in necessary self-defense, or in
                            defense of habitation, property or person, against
                            an individual who manifestly inten[d]s, or
                            endeavors, by violence or surprise, to commit a
                            felony.
                            Homicide is also justifiable when committed:
                                   — In the lawful defense of the slayer or of
                                   any other person in his presence or
                                   company, when there is reasonable ground
                                   to apprehend a design on the part of the
                                   person slain to commit a felony or to do
                                   some great personal injury to the slayer or
                                   to any such person, and there is imminent
                                   danger of such design being accomplished[;]
                                   — In the actual resistance of an attempt to
                                   commit a felony upon the slayer[; on




                ...continued
                instructions, but provided them as samples only. Id. Thus, when bodily
                injury (and not death) is the resulting harm to the victim, or when battery
                (and not killing) is the intended action by the defendant, the sample
                instructions should be reworded to account for those factual changes.

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                                    — In all other instances which stan[di upon
                                    the same footing of reason and justice as
                                    those enumerated above.
                The district court rejected these instructions following an extensive
                discussion regarding the language in the second instruction dealing with a
                defendant's "reasonable ground to apprehend a design on the part of the
                person slain to commit a felony or to do some great personal injury."
                Engaging in a hypothetical discussion beyond the facts of Davis' case, the
                district court struggled with the broad "commit a felony" language and
                whether someone could shoot a person who is attempting to commit, for
                example, felony larceny. The district court ultimately concluded that
                while the proposed instructions were consistent with Nevada's justifiable
                homicide statutes, the statutes were overbroad and did not reflect the true
                state of the law because deadly force is not justifiable when exercised to
                prevent nonviolent felonies. As a result, the district court refused to give
                Davis' requested instructions.
                              The State argues that the district court properly rejected
                Davis' proposed instructions because deadly force cannot be used in
                response to all felonies, particularly in circumstances where no threat of a
                felony involving substantial bodily harm or death exists. We note that the
                two proposed instructions are near verbatim copies of NRS 200.120(1), 3




                      3 NRS   200.120(1) states, in pertinent part:

                                    1. Justifiable homicide is the killing of a
                              human being in necessary self-defense, or in
                              defense of habitation, property or person, against
                              one who manifestly intends or endeavors, by
                              violence or surprise, to commit a felony. . . .
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                         NRS 200.150, 4 NRS 200.160,5 and NRS 200.275. 6 The plain language of
                         these statutes does not differentiate between the types of felonies from
                         which a person may defend himself.
                                        However, regardless of the statutes' language, this case does
                         not present the question of whether battery is justifiable when used to
                         defend against a nonviolent felony, and the district court's reliance on the
                         proposed hypothetical was outside the facts of this case. This case did not
                         involve a nonviolent felony such as larceny; Davis anticipated that Rhodes
                         was going to violently attack him, causing him bodily injury or death if he


                               4 NRS    200.150 reads:

                                        All other instances which stand upon the same
                                        footing of reason and justice as those enumerated
                                        shall be considered justifiable or excusable
                                        homicide.
                               5   NRS 200.160 reads, in pertinent part:

                                        Homicide is also justifiable when committed:
                                              1. In the lawful defense of the
                                        slayer . . . when there is reasonable ground to
                                        apprehend a design on the part of the person slain
                                        to commit a felony or to do some great personal
                                        injury to the slayer . . . and there is imminent
                                        danger of such design being accomplished; or
                                            2. In the actual resistance of an attempt to
                                        commit a felony upon the slayer. . . .
                               6 NRS    200.275 reads:

                                        In addition to any other circumstances recognized
                                        as justification at common law, the infliction or
                                        threat of bodily injury is justifiable, and does not
                                        constitute mayhem, battery or assault, if done
                                        under circumstances which would justify
                                        homicide.
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                did not act. Thus, under Davis' theory of the case, the second proposed
                instruction allowed the jury to find that Davis defended himself against
                Rhodes, "who manifestly inten[dedl, or endeavor [ed] , by violence or
                surprise, to commit a felony" or against the imminent threat of "some
                great personal injury."
                            We note that, to assuage its concerns that the unqualified
                reference to "commit a felony" in the second proposed instruction might
                confuse the jury, the district court could have omitted the "commit a
                felony" language in the second part of the second instruction. See Runion,
                116 Nev. at 1050-51, 13 P.3d at 58 (allowing district courts to depart from
                repeating the exact statutory language in a jury instruction and instead
                encouraging the alteration of words to tailor the instruction to the facts of
                the case). Such an instruction would have allowed the jury to consider
                justifiable battery by determining (1) whether Rhodes' actions constituted
                an intent, by surprise or violence, to commit a felony; and (2) whether
                "there [was] reasonable ground to apprehend a design on the part of
                [Rhodes] . . . to do some great personal injury to [Davis]."   See Crawford,
                121 Nev. at 754-55, 121 P.3d at 589 ("[T]he district court is ultimately
                responsible for not only assuring that the substance of the defendant's
                requested instruction is provided to the jury, but that the jury is otherwise
                fully and correctly instructed. In this, the district court may either assist
                the parties in crafting the required instructions or may complete the
                instructions sua sponte.").
                            Davis' interpretation was legally correct and in accord with
                current statutes; justifiable battery is the battery of a human being, which
                does not result in death and is necessary for self-defense against one who
                manifestly intends to commit a felony by using violence or surprise, or


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                 when there is reasonable ground to apprehend a design on the part of the
                 person injured to do some great personal injury to the person inflicting the
                 injury. NRS 200.120; NRS 200.275.
                       Davis' justifiable battery theory was not substantially covered by
                       other instructions
                             "[The district court may refuse a jury instruction on the
                 defendant's theory of the case which is substantially covered by other
                 instructions." Runion, 116 Nev. at 1050, 13 P.3d at 58.
                             The State argues that the language in the jury instructions
                 regarding "attempted killing" included the conduct that formed the basis
                 for the battery charge and thus Davis did not need a separate self-defense
                 instruction focusing on battery. The State contends that the factual basis
                 of the attempted murder charge was that Davis unlawfully attempted to
                 shoot Rhodes more than once, which was also the basis for the battery
                 charge.
                             But the State's argument ignores the language in the
                 information. Davis' alleged attempt to shoot Rhodes more than once was
                 indeed the basis of the attempted murder charge. However, the State
                 pleaded the battery charge as arising when Davis fired the gun at Rhodes
                 and struck him in the chest. If the jury believed that Davis meant to shoot
                 Rhodes in self-defense, but not kill him, then the Runion instructions were
                 insufficient because they do not address justifiable battery, only justifiable
                 killing or attempted killing The first proposed instruction would have
                 notified the jury that infliction of bodily injury in self-defense does not
                 constitute a battery. See Williams, 99 Nev. at 531, 665 P.2d at 261. The
                 second proposed instruction would have clarified the circumstances that
                 constitute justifiable homicide in connection with the first instruction,


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                 which states that battery is justified "if done under circumstances which
                 would justify homicide." Therefore, Davis' proposed instructions were not
                 duplicative of those given by the district court and included unique
                 concepts that should have been considered by the jury.
                       The district court's rejection of Davis' proposed jury instructions was
                       not harmless and constitutes reversible error
                             "[T]rial error [s]' are subject to harmless-error review because
                 these errors 'may. . be quantitatively assessed in the context of other
                 evidence presented in order to determine whether [they were] harmless
                 beyond a reasonable doubt."      Patterson v. State, 129 Nev. „ 298
                 P.3d 433, 439 (2013) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08
                 (1991)). An error is harmless if this court determines beyond a reasonable
                 doubt that the error did not contribute to the defendant's conviction.
                 Hernandez v. State, 124 Nev. 639, 653, 188 P.3d 1126, 1136 (2008).
                             As discussed above, the district court's rejection of Davis'
                 proposed jury instructions was not harmless because we cannot conclude
                 beyond a reasonable doubt that the district court's rejection of these
                 instructions did not contribute, at least partially, to Davis' conviction. The
                 proposed instructions would have informed the jury about justifiable
                 battery because the approved self-defense instructions only referenced
                 "killing" and "attempted killing." Additionally, it is not clear whether the
                 jury reached its verdict because (1) the jurors found that Davis acted in
                 self-defense on the attempted murder charge because that was the only
                 crime for which they were provided self-defense instructions; or (2) the
                 jurors rejected Davis' self-defense theory regarding battery, but found he
                 lacked the specific intent to kill necessary for the attempted murder
                 charge. Therefore, we conclude that the district court's error was not


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                harmless and thus reversible. 7 Williams, 99 Nev. at 531, 665 P.2d at 261
                ("If a defense theory of the case is supported by some evidence which, if
                believed, would support a corresponding jury verdict, failure to instruct on
                that theory totally removes it from the jury's consideration and constitutes
                reversible error.").
                                                       CONCLUSION
                                      NRS 200.275 unequivocally provides that battery is justifiable
                in self-defense under the same conditions that would justify homicide. By
                refusing to provide an instruction to that effect, we conclude that the
                district court committed reversible error. Accordingly, we reverse Davis'
                conviction for battery with a deadly weapon causing substantial bodily
                harm and remand this case to the district cantrt Sara new tria1. 8

                                                                                          C.J.
                                                              GibboKs

                We con-
                      cur:

                                                         J.
                Do u la-sm
                                /

                                    1‘11                 J.
                Saitta


                          future cases involving justifiable-battery defenses, we strongly
                         7 In
                encourage a separate instruction that notifies the jury of the concepts set
                forth in NRS 200.120(1), NRS 200.150, NRS 200.160, and NRS 200.275.

                           have considered the parties' remaining arguments, including
                         8 We
                the State's argument that Davis was not entitled to self-defense
                instructions at all and that the jury must have found by its verdict that
                Davis was acting with cold-blooded intent to kill, and conclude they are
                without merit.

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