Opinion
No. 82252-COA
11-17-2021
In the MATTER OF: J. W., Date of Birth: 08/18/2004, a minor 16 Years of Age. J. W., Appellant, v. The State of Nevada, Respondent.
Law Office of Julian Gregory, L.L.C. Attorney General/Carson City Clark County District Attorney
Law Office of Julian Gregory, L.L.C.
Attorney General/Carson City
Clark County District Attorney
ORDER OF AFFIRMANCE
J.W., a minor, who was 15 years and 11 months of age, and A.W., another minor, allegedly contacted Eduardo Hernandez-Cuevas through social media in order to buy marijuana. The juveniles met Hernandez-Cuevas at an agreed upon location and then got into his vehicle to complete the transaction. Hernandez-Cuevas drove J.W. and A.W. to a nearby convenience store, parked the car, and initiated the drug deal. J.W. and A.W. allegedly became upset with Hernandez-Cuevas over the quality and quantity of the marijuana for sale, and the situation escalated when A.W. pulled the key out of the ignition of Hernandez-Cuevas's vehicle.
We do not recount the facts except as necessary to our disposition.
A bystander observed J.W., A.W., and Hernandez-Cuevas arguing inside the parked vehicle. The bystander also saw A.W., who was sitting in the front passenger seat, punching Hernandez-Cuevas, while J.W., who was sitting in the back seat on the driver's side, allegedly choked Hernandez-Cuevas from behind. The bystander witnessed Hernandez-Cuevas attempt to fight back, but A.W. pulled out a gun and pointed it at Hernandez-Cuevas. Hernandez-Cuevas managed to get out of his vehicle. He ran inside the convenience store, and told the store clerk to call 9-1-1 because he was being robbed. The clerk dialed 9-1-1, handed Hernandez-Cuevas the phone, and heard Hernandez-Cuevas tell the operator that he needed police assistance.
Meanwhile, J.W. and A.W. had exited the vehicle and walked away from the convenience store. Video footage showed J.W. and A.W. stopping to talk with each other, A.W. handing J.W. the gun, and then the two returning to the front of the convenience store. As soon as Hernandez-Cuevas exited the convenience store, J.W. allegedly shot him twice. One of the bullets struck Hernandez-Cuevas in the head, killing him. Surveillance footage then showed J.W. and A.W. fleeing the scene on foot. As they fled, A.W. carried a backpack that he took from Hernandez-Cuevas's vehicle, and J.W., who was only wearing one sandal, allegedly carried the gun.
After law enforcement and paramedics arrived on the scene, medical personnel pronounced Hernandez-Cuevas dead. The officers conducted a visual inspection of the interior of Hernandez-Cuevas's vehicle and noticed a single slip-on sandal positioned on the floor of the backseat where J.W. had been sitting. Officers also saw a blue surgical mask lying on the ground by the passenger door of the vehicle, consistent with the type of masks that J.W. and A.W. were seen wearing on the video. In addition, officers noted that the key to Hernandez-Cuevas's vehicle was missing.
Law enforcement officers patrolling a nearby apartment complex observed two males walking near apartment 1125, and recognized that one matched the description of A.W. The officers watched as they carried and discarded what appeared to be a bag of garbage and a t-shirt to a dumpster. The officers also noticed a backpack located in a parking space where the two individuals had been. The officers then detained A.W. and the other male, identified as Nehemiah Malcolm, for being out past the COVID-19 curfew. Ultimately, the officers found Hernandez-Cuevas's cell phone, identification, and ATM card lying on the ground near the backpack.
The officers next investigated apartment 1125, where A.W. and Malcolm had been lingering, and determined that Jomeika W. resided at the apartment. The officers made contact with Jomeika, who was J.W.’s sister, and she consented to a limited search of her apartment to ensure that no armed suspects were inside. While walking through Jomeika's apartment, officers found J.W. lying on the floor in one of the bedrooms, allegedly feigning sleep. The officers identified J.W. as a suspect from the convenience store video, and obtained a telephonic search warrant for Jomeika's apartment.
After obtaining the warrant, the officers found several incriminating items inside the apartment, including the distinctive clothing J.W. wore during the shooting as depicted on the video, unspent ammunition cartridges bearing the same head stamp as the cartridges found at the shooting scene, one slip-on sandal matching the slip-on sandal found in Hernandez-Cuevas's vehicle, the key to Hernandez-Cuevas's vehicle, and a blue surgical mask, like the one seen on surveillance as well as the one found by Hernandez-Cuevas's vehicle.
Subsequently, officers interviewed both J.W. and A.W., and A.W. alleged that J.W. shot Hernandez-Cuevas, consistent with what appeared to be captured by surveillance footage and witnessed by bystanders.
The State charged J.W. with delinquent acts consisting of murder with use of a deadly weapon, conspiracy to commit murder, robbery with use of a deadly weapon, and conspiracy to commit robbery. Thereafter, the State moved the juvenile court to certify J.W. as an adult. The juvenile court found that J.W. had rebutted the presumptive certification for being charged as an adult, but that discretionary certification was warranted pursuant to NRS 62B.390(1) given the brutal nature of the crime. J.W. now appeals.
We note that under NRS 62B.330(3)(a) the juvenile court would not have had jurisdiction to adjudicate the offense of murder if J.W. had been sixteen years old at that the time of the offense.
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On appeal, J.W. raises only one issue: whether the juvenile court abused its discretion in certifying J.W. as an adult by improperly weighing the factors under In re Seven Minors, 99 Nev. 427, 664 P.2d 947 (1983), disapproved of on other grounds by In re William S. , 122 Nev. 432, 442 n.23, 132 P.3d 1015, 1021 n.23 (2006). "[T]he [juvenile] court retains broad discretion in making discretionary certification decisions in accordance with the guidelines set forth in Seven Minors." See In re Eric A.L ., 123 Nev. 26, 33, 153 P.3d 32, 36 (2007) (alterations in original). Juvenile certifications are reviewed under an abuse of discretion standard. Id. "An abuse of discretion occurs if the [juvenile] court's decision is arbitrary or capricious or if it exceeds the bounds of law or reason." Id. at 33, 153 P.3d at 36-37 (alteration in original). With some exceptions, an error does not warrant reversal if it is harmless. See NRS 178.598 ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.").
NRS 62B.390(1) authorizes discretionary certification, and provides, in relevant part, that "the juvenile court may certify a child for proper criminal proceedings as an adult" when a juvenile "is charged with an offense that would have been a felony if committed by an adult and was 14 years of age or older at the time the child allegedly committed the offense." (Emphasis added.) When considering discretionary certification, the court must consider: "(1) the nature and seriousness of the charged offense(s); (2) the persistency and seriousness of past adjudicated or admitted criminal offenses; and (3) personal considerations such as age, maturity, character, personality and family relationships." In re William S ., 122 Nev. at 440-41, 132 P.3d at 1021 ; Seven Minors , 99 Nev. at 434-35, 664 P.2d at 952. ‘The juvenile court must give primary consideration to the first two factors, although the decision to certify may rest on either or both of these factors." Eric A.L. , 123 Nev. at 33, 153 P.3d at 36. "But in close cases, when application of the first two factors does not compel certification, the juvenile court may consider the third factor." Id.
Here, the juvenile court analyzed the discretionary certification standard by first finding that J.W. was over 14 years of age at the time of the alleged incident and the offenses would be charged as felonies in the adult court. The juvenile court then certified J.W. primarily based on the nature and seriousness of the charged crimes, specifically finding that the charged crimes were heinous and egregious, and that J.W. was the principal actor therein. J.W. asserts that the juvenile court abused its discretion because it certified J.W. "almost exclusively based upon the nature and seriousness of the charged offenses," as he had no prior adjudicated crimes.
J.W. provides no authority to support his assertion that the juvenile court erred by certifying him based solely on the serious nature of the charged offense. See Edwards v. Emperor's Garden Rest. , 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (explaining that this court need not consider an appellant's argument that is not cogently argued or lacks the support of relevant authority); Maresca v. State , 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) ("It is appellant's responsibility to present relevant authority and cogent argument; issues not so presented need not be addressed by this court."). In fact, relevant Nevada authority expressly permits juvenile courts to certify juveniles based on the nature and seriousness of the charged offense alone. See Seven Minors , 99 Nev. at 435, 664 P.2d at 952 (holding that "the nature and seriousness of the crime upon which the transfer proceedings are based may be such that transfer should be based on this factor alone"). Thus, the juvenile court did not abuse its discretion in relying on the nature and seriousness of the charged crimes in certifying J.W. pursuant to NRS 62B.390(1).
Additionally, the juvenile court's finding that the charged crimes were heinous and egregious, and thus justified J.W.’s certification, is not arbitrary or capricious and is supported by substantial evidence in the record. The juvenile court weighed the severity of the charged crimes against J.W.’s lack of juvenile adjudications and other personal considerations, such as family support and J.W.’s dependency on marijuana, and concluded that J.W.’s certification to the adult court was warranted. Therefore, given the nature of the delinquent acts, which were serious crimes, when committed by an adult, and involved the use of a firearm resulting in death, see NRS 62B.330(3)(c) and (3)(d), the juvenile court did not abuse its discretion in certifying J.W. as an adult pursuant to NRS 62B.390(1). Therefore, we
ORDER the judgment of the district court AFFIRMED.