IN THE SUPREME COURT OF THE STATE OF NEVADA
ANTHONY TERRELL BARR, No, 78295 Appellant, vs. THE STATE OF NEVADA, FILE Respondent. SEP 1 8 2020 ELIZABETH A. BROWN CLERK OF SUPREME COURT
ORDER OF AFFIRMANCE BY 6-Y DEPUTY CLERK eí This is an appeal from a judgment of conviction, pursuant to a jury verdict, of conspiracy to commit burglary, conspiracy to commit robbery, five counts of burglary while in possession of a deadly weapon, eight counts of robbery with the use of a deadly weapon, three counts of assault with a deadly weapon, assault with a deadly weapon of a victim 60 years of age or older, and carrying a concealed pneumatic gun. The district court adjudicated appellant Anthony Barr as a habitual criminal with respect to the burglary while in possession of a deadly weapon and robbery with the use of a deadly weapon counts, imposing an aggregate sentence of life without the possibility of parole. Eighth Judicial District Court, Clark County; Douglas Smith, I Judge. Barr raises seven main contentions on appeal.2 First, Barr contends that the evidence presented at trial was insufficient to support deadly weapon enhancements because no weapon was either seen by a witness or found at the crime scenes. But the totality of the evidence supports the deadly weapon enhancements because it showed Barr and/or his codefendant threatened the victims with the use of
1Judge Valerie Adair presided over the trial. SUPREME COURT 2 Pursuant to NRAP 34(f)(1), we have determined that oral argument OP NEVADA is not warranted. (0) 1947A -344471 a weapon, see NRS 193.165(6)(b) (including in the deadly weapon definition weapons "threatened to be usecr); Bartle u. Sheriff, 92 Nev. 459, 460, 552 P.2d 1099, 1099 (1976) (explaining that a deadly weapon enhancement is warranted if the evidence suggests the defendant used a deadly weapon to facilitate the crime, even if witnesses never actually saw a weapon), and guns were found in Barr's and his codefendant's cars. Additionally, an officer observed a bulge at Barr's waistline immediately preceding the final set of crimes and surveillance video thereafter captured Barr pulling a gun from his waistband while committing the final bank heist. Accordingly, there was sufficient evidence by which a rational juror could find Barr guilty beyond a reasonable doubt on the deadly weapon enhancements. See McNair u. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (recognizing that it is for the jury to weigh evidence and determine witness credibility, and when reviewing a challenge to the sufficiency of the evidence this court will consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))); Wilkins v. State, 96 Nev. 367, 374-75, 609 P.2d 309, 313-14 (1980) (providing that a jury can rely on both direct and circumstantial evidence in returning its verdict). Second, Barr argues that the district court erred by not severing the four robbery charges. After reviewing for plain error, we disagree. See Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (reviewing unpreserved claims for plain error, defined as one affecting a defendant's substantial rights by causing actual prejudice, a miscarriage of justice, or a grossly unfair outcome). The crimes occurred over the span of a few months, involved Barr or his codefendant entering banks while disguised, and involved threats of using a weapon against the tellers when demanding money. Thus, the offenses were connected together and joinder was appropriate. See NRS 173.115(1)(1)) (allowing for joinder of charges that are "connected togethee or "constituting parts of a common scheme or plan"); Farmer v. State, 133 Nev, 693, 699-700, 405 P.3d 114, 120-21 (2017) (defining common scheme and explaining that the offenses are not required to be identical to be joined under NRS 173.115). The evidence relating to the robberies also would have been admissible for relevant, nonpropensity purposes in separate trials, negating that any prejudice resulted from the joinder. See NRS 48.045(2) (providing that evidence of other crimes may be admissible for nonpropensity purposes such as proof of opportunity, preparation, plan, or identity); Middleton v. State, 114 Nev. 1089, 1108, 968 P.2d 296, 309 (1998) (pointing to the cross-admissibility of evidence as indicative of the lack of undue prejudice resulting from joinder). Further, the issue of guilt was not close—victim eyewitness testimony, testimony from witnesses who knew Barr and identified him as one of the perpetrators, and video surveillance all supported the jury's verdict. Cf. Weber v. State, 121 Nev. 554, 575, 119 P.3d 107, 122 (2005) (explaining that close cases are "more likely" to require reversal "because [joinder] may prevent jurors from making a reliable judgment about guilt"), ouerruled on other grounds by Farmer, 133 Nev. 693, 405 P.3d 114. Third, Barr argues that the district court erred in not severing his case from his codefendant's, whose defense was antagonistic to his and against whom there was more evidence. We disagree as Barr has not demonstrated plain error because he offers no argurnent as to how the
[*755]SUPREME COURT OF 3 NEVADA (0) 1947A codefendant's tria13 defenses were antagonistic to his. See Valdez, 124 Nev. at 1190, 196 P.3d at 477 (addressing plain error); see also NRS 173.135 (providing that defendants may be charged in the same charging document when they participated in the same criminal conduct); NRS 174.165 (providing discretion to the district court to sever where prejudice results from joining defendants). And a defendant is not entitled to severance merely because the evidence against a codefendant is more damaging. Lisle v. State, 113 Nev. 679, 690, 941 P.2d 459, 466 (1997), limited on other grounds by Middleton, 114 Nev. 1089, 968 P.2d 296. Fourth, Barr argues that the district court committed plain error by admitting character evidence—several previous traffic stops—and by doing so without first conducting a Petrocelli hearing. We conclude that Barr has not demonstrated plain error because the detective had to explain the circumstances surrounding the traffic stops in order to explain how he identified Barr as the perpetrator (the robbery perpetrators were seen getting into the same vehicle) and ultimately apprehended him after having placed a tracker on Barr's vehicle. See NRS 48.035(3) (Evidence of another act or crime which is so closely related to an act in controversy or a crime charged that an ordinary witness cannot describe the act in controversy or the crime charged without referring to the other act or crime shall not be excluded."); State v. Shade, 111 Nev. 887, 894, 900 P.2d 327, 331 (1995) 38arr only references antagonistic defenses that he claims affected him at sentencing, which the jury would not have been privy to and is irrelevant to a codefendant-severance analysis. See Marshall v. State, 118 Nev. 642, 646, 56 P.3d 376, 378 (2002) (explaining that antagonistic defenses only require severance when the defenses are so irreconcilable that the jury accepting the codefendant's theory would prohibit the defendant's acquittal).
[*757](determining "whether witnesses can describe the crime charged without referring to related uncharged acts" to decide whether to admit evidence under NRS 48.035(3)); see also Bellon v. State, 121 Nev. 436, 444, 117 P.3d 176, 180 (2005) (indicating that the district court is not required to hold a Petrocelli hearing when it admits evidence under NRS 48.035(3)). Fifth, Barr argues that the district court violated his right to confrontation when it limited his cross-examination of detectives regarding the aforementioned tracking device.[4] We disagree, as the district court properly excluded irrelevant questions regarding the tracker's size or location on the vehicle, but allowed all other questions about the tracker's accuracy and how it ultimately led detectives to Barr.5 See NRS 48.015