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Collman v. State8/23/2000
iolates his Fifth Amendment right against self-incrimination. Accordingly, he argues that he should not have to admit to any action which caused Damian substantial bodily harm to get the lesser related offense instruction. This argument clearly lacks merit. Collman was not compelled to admit to criminal conduct. He was merely required to demonstrate that his theory of defense was consistent with his proposed instruction. He had no right to an instruction which was inconsistent with his "complete denial of culpability." Again, all of Collman's defense theories consisted of denying any wrongful action on his part. He asserted that Damian fell down the stairs, choked on bubble gum, or died from Stach's abuse. None of these defenses are consistent with Collman's claim of inflicting substantial bodily harm upon Damian on January 19, 1996.
The district court therefore did not err by refusing to give the requested instruction.
X. Sufficiency of the evidence to support the conviction
Collman contends that the evidence was insufficient to support his conviction. We reject this contention.
In reviewing the evidence supporting a jury's verdict, this court must determine whether the jury, acting reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt by the competent evidence. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). This court will not disturb a jury's verdict on appeal where there is substantial evidence to support it. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981). The jury determines what weight and credibility to give conflicting testimony. Id. Circumstantial evidence alone may support a judgment of conviction. Deveroux v. State, 96 Nev. 388, 391, 610 P.2d 722, 724 (1980).
Collman asserts that Stach lied on the stand and that the evidence was just as strong that Stach caused the fatal injuries, not he, or that Damian had died as a result of a fall down the stairs. Collman seeks to reargue the credibility of the witnesses, particularly Stach's. The jury, however, already determined credibility in the state's favor. Also, sufficient evidence existed to convince the jury beyond a reasonable doubt that Damian's death was not caused by an accidental fall.
XI. The jury instruction that child abuse constituted conclusive evidence of malice aforethought
During the guilt phase, the jury received instruction number 11, which read:
There are certain kinds of murder which carry with them conclusive evidence of malice aforethought. One of these classes of murder is murder committed by means of child abuse. Therefore, a killing which is committed by child abuse is deemed to be murder of the first degree, whether the killing was intentional or unintentional. (Emphasis added.)
Collman did not challenge this instruction below or on appeal, but after reviewing the record, we ordered the parties to provide supplemental briefs addressing whether this instruction correctly provided that child abuse constituted conclusive evidence of malice when murder is charged pursuant to NRS 200.030(1)(a). Having considered the supplemental briefs of the parties and of amici curiae, we conclude that instruction number 11 was erroneous, but we conclude that the error was harmless beyond a reasonable doubt in light of the other proper instructions provided to the jury, the jury's verdicts as a whole, and the evidence in this case.
The types of malice and of murder
In Nevada, consistent with the common law, murder "is the unlawful killing of a human being, with malice aforethought, either express or implied." NRS 200.010; see Wayne R. LaFave & Austin W. S
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