Wong (Lisa) v. State

Because none of the offenses Wong was convicted of were higher than those charged in the information, NRS 175.311 is inapplicable. Additionally, it is not improper for the district court to submit all charges that are pleaded in the alternative to the jury for consideration. See Jenkins v. Fourth Judicial Dist. Court, 109 Nev. 337, 341, 849 P.2d 1055, 1057 (1993). Although it is impermissible to convict a defendant of offenses that are statutory alternatives, "multiple convictions and punishments for attempted murder, assault, and battery are statutorily authorized" and convictions for each of these offenses do not offend double jeopardy. Jackson v. State, 128 Nev. , 291 P.3d 1274, 1282-83 (2012). Accordingly, we conclude that the district court did not err by entering the convictions for attempted murder with the use of a deadly weapon, battery with a deadly weapon resulting in substantial bodily harm, and assault with a deadly weapon. Second, Wong claims that the district court erred by denying her motion for acquittal, in which Wong asserted that the State did not prove the common law trespassory element of burglary and she was wrongly convicted of burglarizing her own residence. We agree. "[Where there is insufficient evidence to support a conviction, the trial judge may set aside a jury verdict of guilty and enter a judgment of acquittal." Evans v. State, 112 Nev. 1172, 1193, 926 P.2d 265, 279 (1996); see NRS 175.381(2). When reviewing a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution and determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008). We have recently held that "a person

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with an absolute unconditional right to enter a structure cannot burglarize that structure." State v. White, 130 Nev. „ P.3d (Adv. Op. No. 56, July 10, 2014, at 9). The evidence presented at trial demonstrated that Wong worked in a brothel in exchange for room and board. Wong resided in one room but also had access to, and stored some of her possessions in, another room called the "cool room." Wong was convicted of burglary for entering the "cool room" with the intent to commit assault, battery, murder, or attempted murder. Because Wong resided in the building and the State did not prove that Wong's right to enter the "cool room" was conditional, we conclude that insufficient evidence supports the conviction for burglary. Therefore, we conclude the district court erred by denying the motion for acquittal and we reverse the burglary conviction. Having concluded that Wong is only entitled to the relief granted herein, we ORDER the judgment of conviction AFFIRMED IN PART AND REVERSED IN PART.

J. Hardesty

, J. Douglas

cc: Hon. Alvin R. Kacin, District Judge Elko County Public Defender Attorney General/Carson City Elko County District Attorney Elko County Clerk SUPREME COURT OF NEVADA 3 (0) 1947A