BOLDEN v. NEVADA 1

EXPLORING CASE LAW

Bolden v. Nevada, 124 P.3d 191 (2005) Bolden was charged along with his crime partners with several crimes, including kidnapping and assault. The challenge we are concerned with is his claim that he was not responsible for the actions of his crime partners. 1. Bolden was charged and convicted of a list of crimes; what were those crimes and which were the object of the appeal? 2. What was the specific issue the court addressed in this part of the holding? 3. What was the court’s opinion regarding the Pinkerton Rule? 4. Why were the crimes of burglary and kidnapping distinguished from the crime of robbery?

ANTHONY THOMAS BOLDEN, v. SUPREME COURT OF NEVADA 124 P.3d 191 (2005)

[Opinion] cannot be held harmless under the circumstances of this Appellant Anthony Thomas Bolden and four other case. Therefore, we reverse Bolden’s conviction with masked men broke into Silvia Rascon’s apartment and respect to the counts concerning the specific intent committed a number of crimes against the occupants. crimes of burglary and first- and second-degree kid - A jury convicted Bolden of burglary while in possession napping, and we remand this matter for further of a deadly weapon, home invasion while in possession proceed ings consistent with this opinion. We affirm of a deadly weapon, first-degree kidnapping with use of Bolden’s conviction of the remaining counts. a deadly weapon, second-degree kidnapping with use of a deadly weapon, two counts of robbery with use of FACTS a deadly weapon, and conspiracy to commit robbery and/or kidnapping. In this appeal, Bolden alleges that On December 7, 2002, at approximately 2 a.m., Bolden the district court committed error during jury selection and four other masked men kicked in the door of Silvia under Batson v. Kentucky and that the State failed to Rascon’s apartment. Rascon, her three children and a present sufficient evidence to support the jury’s verdicts friend were present. The men apparently broke into with respect to all the charged offenses, failed to prove the apartment looking for drugs and money. With the that the kidnapping charges were not incidental to the aid of knives, box cutters or other sharp objects, one robbery charges, and failed to present sufficient evidence or more of the men separately moved Rascon and in support of the deadly weapon enhancements. her oldest daughter from room to room for the purposes Although we reject Bolden’s specific contentions, in of locating items to steal and sexually molesting resolving his sufficiency of the evidence challenge, we the daughter. Police arrived and apprehended all of the have found it necessary to determine whether the jury intruders, three of whom had exited the residence in could have properly based its verdicts for the specific possession of property stolen from Rascon and her intent crimes of burglary and kidnapping on the State’s family. Police found Bolden inside the apartment, theory of vicarious coconspirator liability. We conclude hiding under a bedroom mattress. Ironically, these that the jury was not properly instructed on this theory men were misinformed concerning the presence of of vicarious coconspirator liability and that the error either drugs or considerable financial lucre. 2 CASES RELATING TO CHAPTER 4: PREPARATORY ACTIVITY OFFENSES

The State charged Bolden and his compatriots with in furtherance of the conspiracy the defendants in fact burglary, home invasion, first-degree kidnapping of committed the crimes of robbery and kidnapping. Rascon, second-degree kidnapping of Rascon’s daugh - Nevada law defines a conspiracy as “an agreement ter, robbery of Rascon, robbery of Rascon’s son, and between two or more persons for an unlawful purpose.” conspiracy to commit robbery and/or kidnap ping. All “A person who knowingly does any act to further the of the charges, save the conspiracy count, were accom - object of a conspiracy, or otherwise participates therein, panied by deadly weapon enhancements. This timely is criminally liable as a conspirator . . . .” “Evidence of appeal followed. . . . a coordinated series of acts furthering the underlying Bolden contends that the State failed to present offense is sufficient to infer the existence of an agree - sufficient evidence to convict him on any of the ment and support a conspiracy conviction.” “However, charges. In short, he claims that the entire body of proof absent an agreement to cooperate in achieving the against him established no more than his mere presence purpose of a conspiracy, mere knowledge of, acquies - during the events in question. In this, the district court cence in, or approval of that purpose does not make one instructed the jury that “mere presence” of the a party to conspiracy.” defendant, or his “knowledge that a crime is being Here, the evidence presented at trial established that committed,” is insufficient to establish guilt without Bolden and his cohorts forcibly entered the Rascon proof that the defendant was “a participant and not apartment armed with switchblades, box cutters or merely a knowing spectator.” other sharp objects and robbed the occupants. Some More specifically, Bolden asserts that the State failed of the men moved two of the victims around in the to prove his participation in a conspiracy; failed to prove residence for purposes that were both incidental and the intent elements of the home invasion, robbery, not incidental to the robberies themselves. The State burglary, first-degree kidnapping and second-degree presented overwhelming circumstantial and direct kidnapping charges; failed to prove that the kidnapping evidence that Bolden participated in the joint enterprise charges were not incidental to the robbery charges; and to acquire drugs and money; that he entered into an failed to present sufficient evidence in support of the agreement to rob the Rascon family; that he was not deadly weapon enhancements. merely a spectator in the Rascon apartment, as he The relevant inquiry in reviewing the sufficiency of claims; and that when the police arrived, Bolden was the evidence supporting a jury’s verdict is “‘whether, found hiding under a mattress. To the extent that after viewing the evidence in the light most favorable Bolden contends that the evidence fails to support his to the prosecution, any rational trier of fact could have participation in the conspiracy, his contention is found the essential elements of the crime beyond a without merit. The State presented more than sufficient reasonable doubt.’” Moreover, “circumstantial evidence evidence to support Bolden’s conviction for conspiracy alone may support a conviction.” In resolving Bolden’s to commit robbery and/or kidnapping. contentions, we have reviewed the evidence support- ing the jury’s findings of guilt with respect to each of THE BURGLARY, HOME the charged offenses. Additionally, with respect to the INVASION, ROBBERY, AND nonconspiracy offenses, we have reviewed the evidence KIDNAPPING CHARGES supporting the jury’s verdicts under the three separate theories of guilt alleged by the State for those offenses. With respect to the burglary, home invasion, robbery and kidnapping charges, the State alleged three CONSPIRACY TO COMMIT ROBBERY alternative theories of criminal liability: (1) that Bolden directly committed the offenses, (2) that he aided AND/OR KIDNAPPING and abetted his cohorts, or (3) that he was vicariously The State alleged that Bolden and the other defendants responsible for all of the acts of his cohorts done in aid met with each other and willfully, unlawfully, and of the conspiracy. When alternate theories of criminal feloniously conspired and agreed to commit robbery liability are presented to a jury and all of the theories and/or kidnapping. Additionally, the State alleged that are legally valid, a general verdict can be affirmed even BOLDEN v. NEVADA 3 if sufficient evidence supports only one of the theories. legally responsible for an act of a co-conspirator that When any one of the alleged theories is legally follows as one of the probable and natural conse- erroneous, however, reversal of a general verdict is quences of the object of the conspiracy even if that required—except under the very narrowly defined was not intended as part of the original plan and circumstances discussed below-regardless of the legal even if he was not present at the time of commission and factual sufficiency of the other theories. Accord - of such act. . . . ingly, we turn to an analysis of the legal and evidentiary support for each of the State’s theories of liability. In Garner v. State, . . . this court approved the above- quoted “probable and natural consequences” doctrine, AIDING AND ABETTING which exposes conspirators to criminal liability for any AND DIRECT PARTICIPATION act so long as the act was committed in furtherance of the conspiracy as a natural or probable consequence of [Discussion of the aiding and abetting liability is omitted.] the unlawful agreement. However, Garner restricted the doctrine considerably by holding that “this rule does not COCONSPIRATOR LIABILITY constitute a per se basis for holding an accomplice to one crime liable for a related crime by the principal Our conclusion that there is sufficient evidentiary and simply because the related crime was foreseeable.” To legal support for Bolden’s conviction of the charged do so, we concluded, “would be ‘to base criminal crimes as a principal and as an aider and abettor does liability only on a showing of negligence rather than not end our inquiry. Bolden’s sufficiency argument, criminal intent.’” Consequently, Garner concluded coupled with his reliance on this court’s holding in that if “the relationship between the defendant’s acts and Sharma, calls into question the legal viability of the the charged crime is too attenuated, the State must State’s remaining theory of vicarious coconspirator provide ‘some showing of specific intent to aid in, or liability. As noted above, if any one of the theories of specific knowledge of, the crime charged.’” Garner, criminal liability alleged by the State is legally erroneous, however, did not discuss vicarious coconspirator and reversal of a verdict that fails to specify the precise accomplice liability as discrete concepts. theory upon which the verdict is based is generally As previously noted, in Sharma v. State, this court required regardless of the legal and factual sufficiency overruled Garner to the extent that a defendant could of the other theories. Despite our conclusion that be held accountable for the specific intent crime of Bolden’s conviction of the nonconspiracy crimes is another, under an aiding or abetting theory of liability, legally and factually sufficient under the State’s theories without proof that he specifically intended to aid the of principal and aiding and abetting liability, we must other in the commission of the charged crime. We now determine whether there is a valid legal and stated, factual basis supporting Bolden’s conviction of the nonconspiracy crimes under the State’s theory of [The natural and probable consequences] doctrine vicarious coconspirator liability. has been harshly criticized by most commentators In this respect, the district court gave the following . . . as both incongruous and unjust because it instruction: imposes accomplice liability solely upon proof of foreseeability or negligence when typically a higher Each member of a criminal conspiracy is liable for degree of mens rea is required of the principal. It each act and bound by each declaration of every permits criminal liability to be predicated upon other member of the conspiracy if the act or the negligence even when the crime involved requires declaration is in furtherance of the object of the a different state of mind. Having reevaluated the conspiracy. wisdom of the doctrine, we have concluded that its The act of one conspirator pursuant to or in general application in Nevada to specific intent furtherance of the common design of the conspiracy crimes is unsound precisely for that reason: it is the act of all conspirators. Every conspirator is permits conviction without proof that the accused 4 CASES RELATING TO CHAPTER 4: PREPARATORY ACTIVITY OFFENSES

possessed the state of mind required by the statutory a part of the ramifications of the plan which could not definition of the crime. . . . As the Supreme Court be reasonably foreseen as a necessary or natural conse - of New Mexico observed in rejecting the doctrine quence of the unlawful agreement. . . . for similar reasons, the doctrine thus allows a The Nevada Legislature has not adopted the defendant to be convicted for crimes the defendant Pinkerton rule, but a number of states have addressed the may have been able to foresee but never intended. issue by judicial decision. Several states have embraced . . . Because the natural and probable consequences the rule and permit defendants to be held liable for the doctrine permits a defendant to be convicted of a criminal acts of a coconspirator so long as the crime was specific intent crime where he or she did not foreseeable and committed in furtherance of the con- possess the statutory intent required for the offense, spiracy. Nonetheless, the Pinkerton rule has garnered we hereby disavow and abandon the doctrine. It is significant disfavor. Concerns respecting the ramifica- not only inconsistent with more fundamental tions of the rule arose shortly after the opinion issued: principles of our system of criminal law, but is also In the final analysis the Pinkerton decision extends the inconsistent with those Nevada statutes that require wide limits of the conspiracy doctrine to the breaking- proof of a specific intent to commit the crime point and opens the door to possible new abuses by alleged. . . . Accordingly, we . . . hold that in order over-zealous public prosecutors. While membership in for a person to be held accountable for the specific a conspiracy may well be evidence for the jury’s intent crime of another under an aiding or abetting consideration in holding others than the direct actor theory of principal liability, the aider or abettor must guilty, it should not be sufficient, in the absence of some have knowingly aided the other person with the further showing of knowledge, acquiescence, aid or intent that the other person commit the charged assistance, to convict one conspirator for another’s crime. criminal act. . . . The drafters of the Model Penal Code have Thus, Sharma addressed the natural and probable similarly rejected the Pinkerton view, commenting that consequences doctrine only with respect to a theory the “law would lose all sense of just proportion” if by alleging that a defendant could be held criminally liable virtue of his crime of conspiracy a defendant was “held for the specific intent crime of another under an aiding accountable for thousands of additional offenses of and abetting theory of principal liability. The question which he was completely unaware and which he did left unanswered in Garner and Sharma, but presented in not influence at all.” this case, is whether a theory of vicarious coconspirator The Washington Supreme Court has rejected liability based upon the natural and probable conse- Pinkerton as an inaccurate reflection of state law. A quences doctrine is a legally viable theory in this state. Washington criminal statute provides liability for Nearly 60 years ago in Pinkerton v. United States, the criminal conspiracy but is silent respecting vicarious United States Supreme Court defined coconspirator liability for coconspirators. The Washington court liability in terms of reasonable foreseeability and concluded that vicarious liability of coconspirators, if reaffirmed the concept that a conspiracy and the any, must be based on a state accomplice liability completion of the substantive offense are two distinct statute, which requires knowledge of the crime charged. criminal acts. The Court concluded, . . . Therefore, the court held that liability based on If [the overt act] can be supplied by the act of one foreseeability alone is incompatible with its state law. conspirator, we fail to see why the same or other acts The Arizona Supreme Court has also rejected the in furtherance of the conspiracy are likewise not Pinkerton rule, holding that conspiratorial liability does attributable to the others for the purpose of holding not extend to separate criminal acts of coconspirators them responsible for the substantive offense. when a particular coconspirator is not an accomplice or A different case would arise if the substantive offense principal to those crimes, even though he may be guilty committed by one of the conspirators was not in fact of conspiracy. That court noted that its holding “simply done in furtherance of the conspiracy, did not fall prevents a conspirator, who is not also an accomplice, within the scope of the unlawful project, or was merely from being held liable for a potentially limitless number BOLDEN v. NEVADA 5 of criminal acts which, though later determined to be consequences doctrine, presents the same problem ‘foreseeable,’ are at the time of their commission totally addressed in Sharma, and we conclude that Sharma’s beyond the conspirator’s knowledge and control.” . . . rationale applies with equal force under the circum- stances of the instant case. To convict Bolden of THE NATURAL AND PROBABLE burglary and kidnapping, the State was required to CONSEQUENCES DOCTRINE UNDER prove under Nevada law that he had the specific intent NEVADA LAW to commit those offenses. Holding otherwise would allow the State to sidestep the statutory specific intent Nevada case law addressing the principles of conspiracy required to prove those offenses. is limited to the following concepts. As we noted above, The overriding factor in our decision to reject the a conspiracy is generally defined as “an agreement natural and probable consequences doctrine for between two or more persons for an unlawful purpose.” coconspirator liability respecting specific intent crimes “A person who knowingly does any act to further is the absence of a statutory basis for it. Our statutes lack the object of a conspiracy, or otherwise participates a comprehensive statutory definition or explanation of therein, is criminally liable as a conspirator . . . .” coconspirator liability. Nevada distinguishes parties as “Evidence of a coordinated series of acts furthering principals or accessories and by statute outlines the the underlying offense is sufficient to infer the existence criminal liability of both. NRS 195.010 classifies parties of an agreement and support a conspiracy convic- as principals and accessories. NRS 195.020 defines tion.” “However, absent an agreement to cooperate in criminal liability as a principal: achieving the purpose of a conspiracy, mere knowledge of, acquiescence in, or approval of that purpose does not Every person concerned in the commission of a make one a party to conspiracy.” felony, gross misdemeanor or misdemeanor, whether We have never expressly adopted the Pinkerton he directly commits the act constituting the offense, rule and our discussion of coconspirator liability has or aids or abets in its commission, and whether been limited. . . . In McKinney v. Sheriff, . . . McKinney present or absent; and every person who, directly or challenged the sufficiency of the evidence supporting indirectly, counsels, encourages, hires, commands, an indictment for murder, which was committed during induces or otherwise procures another to commit the course of a robbery. McKinney argued that he was a felony, gross misdemeanor or mis demeanor is a unaware of and did not participate in the murder and principal, and shall be proceeded against and thus there was no probable cause to support the murder punished as such. The fact that the person aided, charge. In rejecting his claim, this court stated that the abetted, counseled, encouraged, hired, commanded, fact that McKinney’s cohorts deviated from their induced or procured, could not or did not entertain agreed-upon plan by committing the murder did not a criminal intent shall not be a defense to any person absolve McKinney of liability. “Where the purpose of aiding, abetting, counseling, encouraging, hiring, the conspiracy is to commit a dangerous felony, each commanding, inducing or procuring him. member runs the risk of having the venture end in homicide . . . . Hence each is guilty of murder if one Additionally, NRS 199.480 sets forth the penalties for of them commits homicide in the perpetration . . . of conspiracy offenses. These statutes are silent respecting an agreed-upon robbery. . . . “ the parameters of coconspirator vicarious liability...... [O]ur overarching concern in Sharma centered In the absence of statutory authority providing on the fact that the natural and probable consequences otherwise, we conclude that a defendant may not be doctrine regarding accomplice liability permits a held criminally liable for the specific intent crime defendant to be convicted of a specific intent crime committed by a coconspirator simply because that where he or she did not possess the statutory intent crime was a natural and probable consequence of the required for the offense. We are of the view that object of the conspiracy. To prove a specific intent vicarious coconspirator liability for the specific intent crime, the State must show that the defendant actually crimes of another, based on the natural and probable possessed the requisite statutory intent. 6 CASES RELATING TO CHAPTER 4: PREPARATORY ACTIVITY OFFENSES

Although we refuse to adopt the natural and be found guilty of the specific intent crimes of burglary probable consequences doctrine in general, our decision and first- and second-degree kidnapping as long as the is limited to vicarious coconspirator liability based on commission of those offenses was a natural and probable that doctrine for specific intent crimes only. The mental consequence of the conspiracy, and even if Bolden state required to commit a general intent crime does not never intended the commission of those crimes. We raise the same concern as that necessary to commit a further conclude, however, that the error is applicable specific intent crime. General intent is “the intent to do only with respect to Bolden’s conviction of the specific that which the law prohibits. It is not necessary for the intent crimes of burglary and kidnapping and does not prosecution to prove that the defendant intended the require reversal of his conviction of the general intent precise harm or the precise result which eventuated.” crimes of home invasion and robbery. . . . On the other hand, specific intent is “the intent to [Other points of error deleted.] accomplish the precise act which the law prohibits.” To hold a defendant criminally liable for a specific intent CONCLUSION crime, Nevada requires proof that he possessed the state of mind required by the statutory definition of the Although sufficient evidence supports Bolden’s crime. convictions for the specific intent offenses of burglary Although we affirm Bolden’s conviction for the and kidnapping under the State’s alternative theories of general intent crimes of home invasion and robbery, we direct participation and aiding and abetting liability, we conclude that in future prosecutions, vicarious must reverse these convictions because under the coconspirator liability may be properly imposed for particular facts of this case, the jury’s general verdict general intent crimes only when the crime in question precludes us from concluding with absolute certainty was a “reasonably foreseeable consequence” of the that the jury did not find Bolden guilty of these offenses object of the conspiracy. We caution the State that this based on the State’s alleged theory of coconspirator court will not hesitate to revisit the doctrine’s liability. We affirm Bolden’s remaining convictions. applicability to general intent crimes if it appears that Accordingly, we affirm Bolden’s conviction in part, the theory of liability is alleged for crimes too far reverse it in part, and remand this matter for further removed and attenuated from the object of the proceedings consistent with this opinion. conspiracy. We conclude that the district court understandably [Concurring and dissenting opinions omitted. Footnotes and but erroneously instructed the jury that Bolden could citations omitted.]