Guerrina (Robert) vs. State (Nev. Supreme Ct. – June 7, 2018)
The issue is whether the State produced sufficient evidence to sustain convictions for robbery and kidnapping when both convictions stem from a defendant’s actions over the course of a single incident.
Cuevas worked at FastBucks, a payday loan store in Henderson, Nevada. Each morning, she retrieved money from the store and deposited it in the bank before the store opened at 10 a.m. On most mornings, that money consisted of the business’s proceeds from the previous day only, but on Mondays it included proceeds from both Friday and Saturday.
One Monday morning, as Cuevas was walking toward the store, a man wearing a hat and sunglasses approached her. He carried a plastic bag and an object that Cuevas believed to be a knife. The man ordered Cuevas to unlock the FastBucks door and accompany him inside.
Once inside, the man locked the door, stood with his back to it, and ordered Cuevas to get the money. As Cuevas went to a back room to retrieve the store’s money, the man removed a spray can from his bag and sprayed a surveillance camera above the door. After Cuevas handed him the money, the man demanded she give him her personal wallet and cellphone. Cuevas complied. The man then ordered Cuevas to disconnect a FastBucks telephone in the room and throw it onto the floor. Cuevas again complied. The man removed a container from his bag and poured its liquid contents onto the floor in front of the door. Finally, he exited the store and locked the door behind him using Cuevas’s key. Once locked, the door could not be opened from the inside without a key – which Cuevas no longer possessed.
After the man departed, Cuevas reconnected the FastBucks telephone and called the police. Upon entering the building, police identified the liquid near the door as chlorine or bleach, something nondangerous. Cuevas told a detective that the perpetrator was Guerrina, a former FastBucks employee whom she had previously seen several times at work events. The detective showed her a photograph of Guerrina from DMV records. Cuevas confirmed that he was the perpetrator.
After a four-day trial, the jury convicted Guerrina of burglary while in possession of a deadly weapon, first degree kidnapping with use of a deadly weapon, robbery with use of a deadly weapon, and coercion.
Was the evidence sufficient to support convictions of robbery and kidnapping?
On appeal, Guerrina argued, among other issues, that the evidence was insufficient to sustain his dual convictions for robbery and kidnapping. He contended that he could not be convicted of both crimes because all acts were in furtherance of the robbery and any movement of Cuevas did not create a greater risk of harm than was necessary to complete the robbery and escape.
First-degree kidnapping occurs where a person “holds or detains” another person “for the purpose of committing. . . robbery upon or from the person.” NRS 200.310(1). “Robbery is the unlawful taking of personal property from the person of another, or in the person’s presence, against his or her will, by means of force or violence or fear of injury . . . .” NRS 200.380(1). The Supreme Court of Nevada explained that in Mendoza v. State, it addressed the propriety of the State pursuing robbery and kidnapping charges stemming from a single incident:
[T]o sustain convictions for both robbery and kidnapping arising from the same course of conduct, any movement or restraint must stand alone with independent significance from the act of robbery itself, create a risk of danger to the victim substantially exceeding that necessarily present in the crime of robbery, or involve movement, seizure or restraint substantially in excess of that necessary to its completion.
122 Nev. 267, 275, 130 P.3d 176, 181 (2006). “Whether the movement of the victim is incidental to the associated offense and whether the risk of harm is substantially increased thereby are questions of fact to be determined by the trier of fact in all but the clearest cases.” Curtis D. v. State, 98 Nev. 272, 274, 646 P.2d 547, 548 (1982).
The Court noted that Guerrina accosted Cuevas outside of FastBucks, a public place, and forced her to accompany him into the secluded store, where he later demanded her personal wallet and cellphone. Viewing the evidence in the light most favorable to the State, the Court determined that moving Cuevas “from a public place into a private one . . . substantially increased the risk of harm” to her. Gonzales v. State, 131 Nev. 481, 498, 354 P.3d 654, 665 (Ct. App. 2015). Guerrina could have simply taken Cuevas’s key, cellphone, and wallet outside of the store, and a reasonable jury could conclude that forcing her to accompany him inside “substantially exceeded the movement necessary to complete the robbery.” Stewart v. State, 133 Nev., Adv. Op. 20, 393 P.3d 685, 688 (2017).
The Court further determined that a rational trier of fact could have concluded that pouring liquid around the door and then locking Cuevas within the store constituted “restraint substantially in excess of that necessary to [the robbery’s] completion.” Mendoza, 122 Nev. at 275, 130 P.3d at 181. The Court explained that “[t]his is not one of the ‘clearest of cases’ in which the jury’s verdict must be deemed unreasonable.” Stewart, 133 Nev., Adv. Op. 20, 393 P.3d at 688. Thus, the Court affirmed Guerrina’s convictions of both robbery and kidnapping.