Chadwick v. State

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IN THE COURT OF APPEALS OF THE STATE OF NEVADA

JOEY TERRALL CHADWICK, No. 86161-COA
Appellant,

vs.

THE STATE OF NEVADA,
Respondent.

Appeal from a judgment of conviction, pursuant to a jury
verdict, of leaving the scene of an accident involving personal injury. Eighth
Judicial District Court, Clark County; Bita Yeager, Judge.

Affirmed.

Steven S. Owens, Henderson,
for Appellant.

Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, and Alexander G. Chen and Karen Mishler, Chief Deputy District
Attorneys, Clark County,

for Respondent.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, Ju.

OPINION
By the Court, WESTBROOK, J.:

Appellant Joey Terrall Chadwick was convicted of one count of

leaving the scene of an accident involving personal injury. On appeal,

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Chadwick contends that the district court abused its discretion in admitting
other bad act evidence of his alcohol consumption and apparent intoxication
prior to the accident in contravention of NRS 48.045(2).

Nevada’s appellate courts have not previously addressed the
admissibility of evidence of a defendant’s alcohol consumption and apparent
intoxication while driving in cases where the defendant is charged with
leaving the scene of an accident in violation of NRS 484E.010. We conclude
that the district court did not abuse its discretion by admitting this evidence
because it was relevant to Chadwick’s motive to flee, proven by clear and
convincing evidence, and not unfairly prejudicial.

Chadwick also argues that the district court erred by failing to
hold a Petrocelli! hearing and provide Tavares” limiting instructions prior
to the admission of testimony that he threatened a witness and belonged to
a gang. In addressing these arguments, we conclude that when bad act
evidence is directly elicited by the defendant, it is incumbent upon the
defendant to request a limiting instruction, and if they do not do so, the
district court is not obligated to raise the issue or provide one sua sponte.
Because Chadwick directly elicited testimony about the threat and did not
request a limiting instruction, the court did not err in failing to conduct a
Petrocelli hearing or provide a Tavares instruction. Further, Chadwick has
not established unfair prejudice from the admission of gang affiliation

evidence. Accordingly, we affirm.

1Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), superseded in
part by statute as stated in Thomas v. State, 120 Nev. 37, 44-45, 83 P.3d 818,
823 (2004).

2Tavares v. State, 117 Nev. 725, 30 P.3d 1128 (2001), holding modified
on other grounds by Mclellan v. State, 124 Nev. 263, 182 P.3d 106 (2008).

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FACTS AND PROCEDURAL HISTORY
On October 31, 2021 (Halloween night), Chadwick accidentally

ran over and injured three-year-old T.B., who was crossing the street while
trick-or-treating, without stopping or returning to the scene. At the time of
the accident, Chadwick was driving an older white van with his friend,
Helen Henry, in the passenger seat. Chadwick and Henry were both
members of the Bloods gang, and the accident occurred in a neighborhood
where rival gang members lived.

The day after the accident, Henry returned to the scene and told
T.B.’s family that Chadwick was the one who hit T.B., though she did not
mention that she was also in the van at the time of the accident. The
following day, Chadwick went to the police station and turned himself in.
He denied drinking the night of the accident and wrote a voluntary
statement indicating that he drove away because he thought he only hit a
pothole. Chadwick was eventually charged with leaving the scene of an
accident involving personal injury and reckless driving resulting in
substantial bodily harm.

Prior to trial, the State filed a motion to admit evidence of
Chadwick’s intoxication to show his motive to flee from the scene of the
accident and to impeach his claims to law enforcement that he did not
consume alcohol that night or know he was in an accident. The district
court held a Petrocelli hearing, where Henry testified about Chadwick's
alcohol consumption and apparent intoxication prior to the accident. Henry
testified that when Chadwick picked her up the night of the accident, his
eyes were red and he smelled of alcohol. According to Henry, they went to
a house party where Chadwick drank at least half a bottle of Hennessey
cognac, and they shared a bottle of Barton vodka. Henry also testified that
Chadwick snorted “powder.”

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After the Petrocelli hearing, the district court granted the
State’s motion in part and allowed Henry to testify about her direct
observations, including Chadwick's alcohol consumption prior to the
accident. However, the court precluded Henry from testifying that
Chadwick snorted powder because Henry had no actual knowledge of what
the powder was.

The matter proceeded to a jury trial. In its case-in-chief, the
State introduced into evidence Chadwick’s recorded interview with police
and his voluntary statement. The State’s key witness was Henry.

On direct examination, Henry testified that when Chadwick
picked her up on the night of the accident, he smelled “[vJery moderate[ly]”
of alcohol, his eyes were “yellowish red like you can tell he was drinking,”
and he appeared to be a “little drunk.” Henry also testified about their
alcohol consumption at the house party with the aid of demonstrative
exhibits depicting bottles of Hennessey and Barton liquor similar to what
they consumed that evening. Henry testified that Chadwick drank “half” of
a 750 ml bottle of Barton and “[t]hree red cups” of Hennessey.

According to Henry, the accident occurred after they left the
party to get some food. Chadwick had slowed down at an intersection,
waiting for a group of children to cross the street after an adult called them
over. When Chadwick accelerated, Henry saw a little girl suddenly dart out
in front of the van so fast that Chadwick could not avoid hitting her. Henry
testified that it felt like “[a] speed bump” when the girl went under the
driver’s side of the vehicle. Henry looked back and saw a body in the street,
then told Chadwick that he just hit a young girl. According to Henry,
Chadwick denied hitting the girl and told Henry “to calm down” and “say

nothing.”

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Henry testified that Chadwick sped away from the scene and
did not slow down until they reached a nearby Dotty’s Casino, where they
inspected the van for damage. Henry saw a shattered left headlight with
blood and pink barrettes in it. When Henry told Chadwick they needed to
call the police, Chadwick allegedly told her, “You’re the only witness and
only person that knows I was driving.” This comment made Henry feel
unsafe, so she left and got a ride home.

On cross-examination, Chadwick asked Henry about her status
as a gang member. Henry affirmed that she was in a gang, and when
Chadwick asked which gang she belonged to, the State objected before
Henry could answer. During a sidebar, the State argued that the question
about Henry’s gang affiliation was highly prejudicial and would open the
door to questions about Chadwick’s own gang affiliation. Chadwick
responded that Henry’s gang membership was relevant to why she did not
report the accident to law enforcement because “if word got [out] on the
street that she was” involved with the accident, she would face retaliation
from the rival gang. The court determined that Chadwick's question would
open the door to Chadwick’s own gang affiliation because “[t]hat same
motive, if he is a part of a gang, goes as to why he wouldn't stop when he's
in a gang area[,] that they're the kids of gang members and he doesn't report
it. I think it goes both ways.” Following the sidebar, Chadwick proceeded
to ask Henry what gang she was affiliated with, and she admitted to being
a member of the Bloods. Chadwick then asked Henry an open-ended
question about why she did not report the accident, and Henry responded
that Chadwick had “threatened” her.

During redirect examination, the State asked Henry follow-up

questions about Chadwick’s threat and how Chadwick’s gang affiliation was

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related to that threat. In response, Henry testified that Chadwick was also
in the Bloods and that, after the accident, he told her, “[dJon’t snitch”
because of “what happens to snitches.” Chadwick did not object or move to
strike Henry’s testimony about his gang affiliation or the threat.

The State presented testimony from members of T.B.’s family,
who witnessed the van speeding away from the scene. T.B.’s mother
testified about T.B.’s injuries, including a gash on her forehead and scalp
damage, which required a two-week hospital stay. The State also presented
testimony from several individuals involved in the Las Vegas Metropolitan
Police Department (LVMPD) investigation. Of note, LVMPD hit-and-run
detective Michae] Almaguer testified that when Chadwick’s van was
impounded, the van’s left headlight was nonfunctional and had significant
damage that appeared to be recent. Detective Almaguer also stated that
there were no irregularities in the roadway, such as potholes, near the scene
of the accident. On cross-examination, Almaguer confirmed that his initial
investigation did not indicate that drugs or alcohol were involved, but he
clarified that it was impossible to investigate and collect evidence of driving
under the influence because the driver left the scene.

After the State rested, Chadwick testified in his own defense.
Chadwick averred that when he drove himself and Henry to the house
party, neither of them had consumed any alcohol. Shortly after getting to
the party, Henry asked Chadwick to go to McDonald’s. Chadwick testified
that when they left the house party, he still had not consumed any alcohol.

Chadwick testified that, on their way to McDonald’s, he heard
a “thump” and believed he had hit a pothole in the street. Chadwick looked
in his rearview mirror and did not see anything, so he proceeded to

McDonald’s. Chadwick testified that because the van often made similar

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noises and he did not see anything in his mirrors, he had no reason to think
he was in an accident. He further testified that there were no kids at the
intersection when he stopped, but in any event, he would not have been able
to see T.B. cross the street due to the van’s height, the van’s side window
tint, and the unlit streetlamps. Chadwick also testified that Henry was
leaning back in the passenger chair at the time of the accident, so she could
not have seen the accident, nor did she inform him that he hit a child.

Chadwick testified that when they got to McDonald's, Henry
immediately asked him to take her home. From McDonald's, he drove to
Dotty’s Casino, where Chadwick stated he was looking for a friend.
Chadwick did not find his friend at Dotty’s but did notice that the left
headlight of the van was broken. He stated that the headlight still worked,
so he assumed the damage was from a rock or debris. Chadwick testified
that there was no blood or barrettes on the headlight. The two drove from
Dotty’s toward Henry’s house and passed by Chadwick’s friend’s house.
Chadwick said that he wanted to stop by quickly, at which point Henry
became upset and got out of the van. Chadwick drove alone to his mother's
house.

Chadwick testified that the next morning, people told him that
a person was run over by a white van the night before in the area where
Chadwick had been driving, and they asked Chadwick if he was involved.
Chadwick “put two and two together” and felt compelled to “go up and clear
my name when I seen that family on that street on the news that evening.”

The jury ultimately found Chadwick guilty of leaving the scene
of an accident involving personal injury, but acquitted him of the other filed
charge, reckless driving resulting in substantial bodily harm. Chadwick

received a sentence of 72-240 months in prison and timely appealed.

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ANALYSIS

The district court did not err in admitting evidence of Chadwick’s alcohol
consumption and apparent intoxication while driving

Chadwick contends that the district court abused its discretion
by admitting other bad act evidence of his alcohol consumption and “drunk
driving.” NRS 48.045(2) governs the admissibility of “[e]vidence of other
crimes, wrongs or acts” and provides that such evidence may not be used to
establish a defendant’s propensity to commit the alleged act. Nevertheless,
evidence of a defendant's other bad acts may be introduced for
nonpropensity purposes, for instance, to establish “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” NRS 48.045(2). However, before a district court can
admit other bad act evidence, it must first conduct a Petrocell: hearing
outside the presence of the jury and determine that “(1) the incident is
relevant to the crime charged; (2) the act is proven by clear and convincing
evidence; and (3) the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice.” Tinch v. State, 113 Nev.
1170, 1176, 946 P.2d 1061, 1064-65 (1997), holding modified by Bigpond v.
State, 128 Nev. 108, 270 P.3d 1244 (2012): Tavares v. State, 117 Nev. 725,
731, 30 P.8d 1128, 1131 (2001), holding modified on other grounds by
Mcelellan v. State, 124 Nev. 263, 182 P.3d 106 (2008). This court reviews a
district court’s decision to admit other bad act evidence for an abuse of
discretion. Mclellan, 124 Nev. at 269, 182 P.3d at 110.

Chadwick argues that the evidence of his alcohol consumption

and apparent intoxication while driving did not satisfy the three Tinch

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factors because it was irrelevant, unsupported by clear and convincing
evidence, and unfairly prejudicial. We disagree.*

First, the evidence of Chadwick’s alcohol consumption and
apparent intoxication while driving was relevant to the charge of leaving
the scene of an accident involving personal injury. As noted above, motive
is a proper nonpropensity purpose for admitting bad act evidence. See NRS
48.045(2). In this case, evidence that Chadwick consumed copious amounts
of alcohol and appeared to be intoxicated while driving was relevant because
it provided a motive for him to flee after the accident. See, e.g., State v.
Sutton, No. 18CA0057-M, 2020 WL 2319311, {| 30 (Ohio Ct. App. May 11,
2020) (providing that, where a defendant was charged with the failure to
stop after an accident, an officer's testimony that he “smelled the odor of
alcohol on [the appellant’s] breath had probative value with respect to [the
appellant’s] ... possible motivation for leaving the scene”); Gillum v.
Commonwealth, No. 2002-SC-0415-MR, 2004 WL 1907027, *3 (Ky. Aug. 26,
2004) (stating that an officer's “testimony as to Appellant’s consumption of

aleohol and state of intoxication appears to be relevant to the charge of

3The district court does not appear to have given Tavares hmiting
instructions in connection with this evidence; however, Chadwick did not
raise this issue in his appellate briefs, and only mentioned it in passing for
the first time at oral argument. Therefore, we do not consider it. See State
ex rel. Dep't of Highways v. Pinson, 65 Nev. 510, 530, 199 P.2d 631, 648
(1948) (“The parties, in oral arguments, are confined to issues or matters
properly before the court, and we can consider nothing else . . . .”); see also
State v. Eighth Jud. Dist. Ct. (Doane), 138 Nev., Adv. Op. 90, 521 P.8d 1215,
1221 (2022) (“[I]n both civil and criminal cases, in the first instance and on
appeal, we follow the principle of party presentation. That is, we rely on
the parties to frame the issues for decisions and assign to courts the role of
neutral arbiter of matters the parties present.” (alteration in original)
(quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008))).

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leaving the scene of the accident .. . and was properly admitted”); State v.
Kovalik, No. 92-2213-CR, 1993 WL 112024, *2 (Wis. Ct. App. Apr. 14, 1993)
(concluding that evidence of driving while intoxicated was relevant to
appellant's motive and intent to elude an officer).

Chadwick argues that his motive to flee “was only minimally
relevant” because he admitted to leaving the scene of the accident, and
therefore the element of flight was already established. See NRS
484E.010(1) (providing that “[t]he driver of any vehicle involved in a
crash ... resulting in bodily injury or death shall immediately stop his or
her vehicle at the scene of the crash or as close thereto as possible, and shall
forthwith return to and in every event shall remain at the scene of the crash
until the driver has fulfilled the requirements of NRS 484.030"). However,
the State was also required to establish criminal intent by proving that
Chadwick knew or should have known he was involved in an accident when
he left the scene. See Clancy v. State, 129 Nev. 840, 847, 313 P.3d 226, 230-
31 (2013). And Chadwick’s motive to flee was relevant to this question of
criminal intent. See NRS 48.015 (stating that evidence is relevant if it has
any tendency to make a fact of consequence more or less probable).

In a similar case, the Wisconsin Supreme Court explained why
evidence of driving under the influence would be relevant to establish that
the appellant had a motive to flee and therefore “knowingly fle[d] or
attempt[ed] to elude” an officer. Kovalik, No. 92-2213-CR, 1993 WL 112024,
*9 Like Chadwick, the appellant argued that the evidence was irrelevant
because “motive was not an element” of the crime and because “evidence of
intoxicated driving does not make it more probable that he knowingly
attempted to elude an officer.” Jd. In rejecting both arguments, the court

explained,

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“Matters going to motive...are inextricably
caught up with and bear upon considerations of
intent....” State v. Johnson, 121 Wis. 2d 287, 253,
358 N.W.2d 824, 832 (Ct. App. 1984). [Appellant]
does not persuade us that the trial court
erroneously exercised its discretion in holding that
the evidence was admissible as being relevant.
Although it cannot be said that drinking makes a
person more likely to try to elude the police, it is
generally well known that penalties for [operating
a motor vehicle while intoxicated (OW])] are severe.
The evidence that [appellant] may have been
drinking or was intoxicated could make it more
probable that [appellant] intended to elude the
police in order to avoid the OWI penalties.

Id. (first and second alterations in original).

We agree with the reasoning in Kovalik. “Even though motive
is not an element of a crime and need not be proven, it has virtually always
been an integral element of proof in a criminal trial.” Richmond v. State,
118 Nev. 924, 942, 59 P.3d 1249, 1261 (2002) (Shearing, J., concurring in
part and dissenting in part); see also Shults v. State, 96 Nev. 742, 748-49,
616 P.2d 388, 392-93 (1980) (holding that because “the prosecution is
entitled to present a full and accurate account of the circumstances
surrounding a crime,” the district court did not abuse its discretion by
admitting other crimes evidence that was relevant to motive (internal
quotation marks omitted)). Motive has been described as the “reason that
nudges the will and prods the mind to indulge the criminal intent.” United
States v. Benton, 63 F.2d 1052, 1056 (5th Cir. 1981). A motive thus operates
as an “incentive for criminal behavior.” People v. McKinnon, 259 P.3d 1186,

1224 (Cal. 2011).

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Here, Chadwick’s motive to flee was relevant to the knowledge
element of the crime because it offered an alternative explanation for why
he left the scene—that he knew he had hit a child but sought to avoid the
criminal penalties associated with driving under the influence of alcohol.
The State was entitled to present the jury with this alternative to the
explanation offered by Chadwick—that he failed to stop because he did not
know about the accident. Had Chadwick remained at the scene after hitting
T.B., officers may have determined that he was intoxicated. See, e.g.,
Weaver v. State, Dep't of Motor Vehicles, 121 Nev. 494, 499, 117 P.3d 193,
197 (2005) (concluding that a police officer had a reasonable belief that the
appellant was intoxicated at the time of the accident where he “smelled
strongly of alcohol, had watery bloodshot eyes, and slurred his speech when
he spoke”). Because the crash resulted in an injury, Chadwick risked being
arrested on a charge of driving under the influence causing substantial
bodily harm, which carries a potential sentence of imprisonment of 2 to 20
years. See NRS 484C.430(1).1 Instead, because Chadwick left the scene,
investigators could not determine whether alcohol was involved in the
accident, and he was not charged with that crime. Therefore, the evidence

of Chadwick’s alcohol consumption and apparent intoxication offered a

4At oral argument, Chadwick suggested that, because the penalty for
leaving the scene of an accident resulting in injury was the same as the
penalty for driving under the influence causing substantial bodily harm, he
would not have had a motive to flee. However, by leaving the scene,
Chadwick might have avoided any penalty, had his vehicle not been
identified by others, which he testified prompted him to come forward two
days later.

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motive for him to flee, making it less likely that he failed to stop simply
because he was unaware of the accident.”

Second, Chadwick’s alcohol consumption and apparent
intoxication while driving were established by clear and convincing
evidence through Henry’s testimony at the Petrocelli hearing. Testimony
alone can establish an act by clear and convincing evidence. See Meek v.
State, 112 Nev. 1288, 1295, 930 P.2d 1104, 1108 (1996) (stating that “clear
and convincing evidence can be provided by a victim’s testimony alone’).
However, personal knowledge on the part of the testifying witness is
necessary. See Randolph v. State, 136 Nev. 659, 662, 477 P.3d 342, 347
(2020) (holding that “the district court erred in finding that the State proved
the prior bad acts by clear and convincing evidence by [a witness's]
testimony alone” where the testimony was not based on the witness's
firsthand knowledge); accord Lane v. Second Jud. Dist. Ct., 104 Nev. 427,
446, 760 P.2d 1245, 1257 (1988) (“[T]o be competent to testify, a witness
must have personal knowledge of the subject of his testimony.”).

Here. Henry’s testimony was based on her direct observations
of Chadwick and was rationally based on her perceptions. When Chadwick
picked Henry up, she saw that Chadwick had red eyes and smelled alcohol
on him. Henry also watched Chadwick consume large quantities of
Hennessey and Barton at a party before getting behind the wheel of his

vehicle. Because a proper foundation was laid in this case, Henry's

5Chadwick also suggests that the district court erred by overruling
his relevance objection to the generic pictures of liquor bottles. However,
the State utilized the photos for demonstrative purposes only to help Henry
identify the type and amount of liquor that Chadwick drank on the night of
the accident. This was not an abuse of discretion. Mclellan, 124 Nev. at
269, 182 P.3d at 110.

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eyewitness testimony about Chadwick's consumption and her lay opinion
testimony regarding Chadwick’s apparent intoxication were admissible.
See NRS 50.265; Dooley v. United States, 577 F. Supp. 3d 229, 236 (S.D.N.Y.
2021) (“It is settled that a lay witness can offer an opinion as to a person's
intoxication.”); Durant v. United States, 551 A.2d 1318, 1324 (D.C. Cir.
1988) (“[B]ecause alcohol intoxication is considered to be a matter of
common knowledge, lay witnesses may render opinion testimony regarding
alcohol intoxication.”).

To the extent that Chadwick argues Henry was not a credible
witness because she was intoxicated herself on the night of the accident, the
district court had an opportunity to observe Henry and determine her
credibility, which we do not reweigh on appeal. See Tinch, 113 Nev. at 1175,
946 P.2d at 1064 (“It is not this court’s prerogative to determine the
credibility of witnesses below.”). Indeed, the record reflects that the district
court meaningfully analyzed the evidence presented and we perceive no
abuse of discretion in its conclusion that Henry’s testimony provided clear
and convincing evidence of Chadwick’s alcohol consumption and
intoxication while driving."

Third, evidence of Chadwick’s alcohol consumption and
intoxication was not “substantially outweighed by the danger of unfair
prejudice.” /d. at 1176, 946 P.2d at 1064-65. Though the evidence was
prejudicial, “all evidence against a defendant will on some level ‘prejudice’
(i.e., harm) the defense,” and so the focus in NRS 48.045(2) is on “unfair”

prejudice. State v. Eighth Jud. Dist. Ct. (Armstrong), 127 Nev. 927, 933,

6Notwithstanding the court’s pretrial ruling, Chadwick was able to
argue to the jury that Henry’s testimony was not credible because of her
own alcohol consumption.

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267 P.3d 777, 781 (2011). Unfair prejudice is defined as an appeal “to the
emotional and sympathetic tendencies of a jury, rather than the jury's
intellectual ability to evaluate evidence.” Krause Inc. v. Little, 117 Nev. 929,
935, 34 P.3d 566, 570 (2001). In this case, the record does not reflect that
the evidence of Chadwick's alcoho] consumption and apparent intoxication
prevented the jury from intellectually evaluating the evidence. To the
contrary, the jury acquitted Chadwick of felony reckless driving, which
implies that the jury was able to properly evaluate the evidence even after
learning of Chadwick’s alcohol consumption and apparent driving while
intoxicated. Therefore, we conclude that the district court did not abuse its
discretion in admitting evidence of Chadwick's alcohol consumption and
apparent intoxication while driving.’
Evidence of Chadwick's threat and gang affiliation

Chadwick argues that the district court abused its discretion by
allowing Henry to testify that Chadwick was a gang member who

threatened her after the accident not to “snitch” because of “what happens

7Because this evidence was admissible to establish Chadwick's motive
to flee and, inferentially, his knowledge of the accident, we necessarily reject
Chadwick’s claim that it was inadmissible in the State’s case-in-chief “as
preemptive impeachment” using extrinsic evidence of a collateral matter.
Cf. Jezdik v. State, 121 Nev. 129, 136-37, 110 P.8d 1058, 1063 (2005)
(discussing the collateral fact rule and stating, “[i]t is error to allow the
State to impeach a defendant’s credibility with extrinsic evidence relating
to a collateral matter”) (alteration in original) (internal quotation marks
omitted)). To be “collateral,” facts must be “outside the controversy,
or... not directly connected with the principal matter or issue in dispute.”
Id. at 137, 110 P.3d at 1063 (quoting Lobato v. State, 120 Nev. 512, 518, 96
P.3d 765, 770 (2004)) (further internal quotation marks omitted)). Here,
the evidence of Chadwick’s consumption and intoxication was directly
connected with an element of the charged crime—knowledge—and was not
collateral.

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to snitches.” Chadwick contends that this evidence was erroneously
admitted without a Petrocelli hearing or Tavares limiting instructions.
Failure to conduct a Petrocelli hearing

When the State seeks to admit bad act evidence, it bears the
burden of requesting a Petrocelli hearing outside the presence of the jury to
determine its admissibility under Tinch’s three-part test. See generally
Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), superseded in part by
statute as stated in Thomas v. State, 120 Nev. 37, 44-45, 83 P.3d 818, 823
(2004). However, the “failure to conduct a Petrocell: hearing is not
reversible error when the record is sufficient to establish that the evidence
is admissible under [Tinch] or the trial result would have been the same
had the trial court excluded the evidence.” Diomampo v. State, 124 Nev.
414, 430, 185 P.38d 1031, 1041 (2008). Additionally, if the defendant fails to
object to the absence of a Petrocelli hearing, an appellate court may review
only for plain error affecting the defendant’s substantial rights. Id.

Assuming for the sake of argument that Chadwick’s threat was
a bad act that required a Petrocelli hearing,? Chadwick invited any error in
its admission. The invited error doctrine “establish{es] that ordinarily

inadmissible evidence may be rendered admissible when the complaining

8Compare Evans v. State, 117 Nev. 609, 628, 28 P.3d 498, 512 (2001)
(“Evidence that after a crime a defendant threatened a witness with
violence is directly relevant to the question of guilt. Therefore, evidence of
such a threat is neither irrelevant character evidence nor evidence of
collateral acts requiring a hearing before its admission.” (footnote omitted)),
overruled on other grounds by Lisle vu. State, 131 Nev. 356, 366 n.5, 351 P.3d
725, 732 n.5 (2015), with Bellon v. State, 121 Nev. 436, 444-45, 117 P.3d
176, 181 (2005) (holding that a defendant’s threat to officers during his
arrest was “more reflective of his frustration at being arrested than
demonstrative of his consciousness of guilt” and inadmissible under NRS
48.045(2)).

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party is the party who first broached the issue.” Taylor v. State, 109 Nev.
856-67, 858 P.2d 843, 848 (1993) (Shearing, J., concurring in part and
dissenting in part). Here, Chadwick directly elicited the testimony he
complains of on cross-examination by asking Henry an open-ended question
about why she did not report the accident. In response to Chadwick's
questioning, Henry testified that he “threatened me that if I told, he was
going to do something to me.” Although the State asked follow-up questions
about the substance of Chadwick's threat on redirect, Chadwick had already
introduced the bad act into evidence. Under these circumstances, we
conclude that Chadwick invited any error from the admission of the threat
without a Petrocelli hearing. See Carter v. State, 121 Nev. 759, 769, 121
P.3d 592, 599 (2005) (holding that the defense elicited the bad act testimony
and was “estopped from raising any objection on appeal”); Taylor, 109 Nev.
at 856-57, 858 P.2d at 848.

As for the gang affiliation testimony, Chadwick did not object
to its admission, and we conclude that the district court did not plainly err

in admitting it without a Petrocelli hearing.’ See Green v. State, 119 Nev.

"The State argues that Chadwick invited any error by asking Henry
questions about her gang affiliation after the district court warned him that
doing so would open the door to evidence of his own gang affihation. We
disagree. The district court ruled that if Chadwick asked Henry about her
gang affiliation to establish her fear of a rival gang as a motive for her
actions, it would open the door to allow the State to ask about Chadwick's
gang affiliation to establish a similar motive for his actions—-e.g., that he
fled the scene because he feared retaliation by the rival gang for running
over one of their children. However, the State did not use the evidence for
the limited purpose permitted by the court. Instead, during the State's
redirect examination of Henry, it questioned Henry about Chadwick’s gang

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542, 545, 80 P.3d 93, 95 (2003) (holding that a defendant must show actual
prejudice or a miscarriage of justice to establish plain error). There 1s no
indication that the jury convicted Chadwick based on his gang affiliation.
Neither the State nor Chadwick argued that the accident itself was gang-
related or that Chadwick’s gang affiliation went to any material element of
the offense. Rather, the evidence was offered for the limited purpose of
explaining Henry’s conduct and substantiating why she did not report the
accident to law enforcement. Although the evidence was used to illustrate
the seriousness of Chadwick’s threat, the State only made one brief
reference to it at trial. Chadwick’s gang affiliation was also not mentioned
by either party in closing argument. In light of the minimal testimony on
the subject of Chadwick’s gang affiliation and its collateral nature being in
relation to a witness’s conduct rather than his own, Chadwick cannot
establish actual prejudice or a miscarriage of justice from the admission of
his gang affiliation without a Petrocell: hearing, and therefore he cannot

demonstrate plain error. See Tinch, 113 Nev. at 1176, 946 P.2d at 1065

affiliation to provide context for his threat about what would happen to
Henry if she reported him to police.

Immediately after asking Henry about Chadwick's gang affiliation,
the State asked Henry to describe how he threatened her. In this way, the
State tied the evidence of Chadwick’s gang affiliation to his threat about
what happens to “snitches,” to make his threat appear more serious because
it carried the force of gang violence behind it. Because the evidence of
Chadwick's gang affiliation was introduced for a purpose that was outside
the scope of the district court’s ruling, we cannot find that he invited this
alleged error by opening the door. Cf. Dickey v. State, 140 Nev., Adv. Op. 2,
540 P.3d 442, 451 (2024) (‘When admitting evidence for limited purposes
under NRS 48.045(2), limiting instructions must instruct the jury to
consider only those purposes for which the evidence was actually
admitted.”).

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(“Other state and federal courts have found gang-affiliation evidence
relevant and not substantially outweighed by unfair prejudice when it tends
to prove motive.” Gnternal quotation marks omitted)).

Failure to give Tavares instructions

In Tavares, the Nevada Supreme Court imposed a burden on
the State to request “that a limiting instruction be given both at the time
the prosecutor introduces the [other bad act] evidence and in the final
charge to the jury.” 117 Nev. at 727, 30 P.3d at 1129. If the State fails to
request the limiting instruction, the district court “should raise the issue”
sua sponte, giving the defendant an opportunity to decide whether such an
instruction is desirable, Jd. at 731, 30 P.3d at 1132.

When the State introduces bad act evidence, the failure to give
Tavares instructions is reviewed for harmless error, even if the defendant
does not request one. Jd. at 731-32, 30 P.3d at 1132 (“Because the defendant
no longer has the burden of requesting a limiting instruction on the use of
uncharged bad act evidence, we will no longer review cases involving the
absence of the limiting instruction for plain error. Instead, we will review
future cases for error under NRS 178.598.”). The standard of review “is
whether the error ‘had substantial and injurious effect or influence in
determining the jury’s verdict.’ Thus, unless [the court is] convinced that
the accused suffered no prejudice... , the conviction must be reversed.” Jd.
at 732, 30 P.3d at 1132 (footnote omitted) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)).

On the other hand, “a party will not be heard to complain on
appeal of errors which he himself induced or provoked the court or the
opposite party to commit.” Pearson v. Pearson, 110 Nev. 293, 297, 871 P.2d
343, 345 (1994) (quoting 5 Am. Jur. 2d Appeal and Error § 713 (1962)).

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Thus, under the invited error doctrine, an appellant is not entitled to relief
if they “induced or provoked” the error in the trial court. Id.

As noted above, Chadwick introduced the threat into evidence
while cross-examining Henry and failed to object when the State asked
Henry follow-up questions about both the threat and his gang affiliation on
redirect. Additionally, Chadwick did not request Tavares instructions in
connection with either the threat (which he first elicited) or the gang
affiliation evidence (which the State first elicited).

Although the Tavares decision contains language suggesting
that a defendant has no burden to request a limiting instruction, that case
involved a situation where the State introduced the bad act into evidence,
not the defendant. The reason the supreme court placed the burden on the
State to request a limiting instruction had to do with the State’s role in
admitting the bad act evidence:

Because the prosecutor is the one who must
seek admission of uncharged bad act evidence and
because the prosecutor must do so in his capacity
as a servant to the law, we conclude that the
prosecutor shall henceforth have the duty to
request that the jury be instructed on the limited
use of prior bad act evidence.

Tavares, 117 Nev. at 731, 30 P.3d at 1132.

By contrast, a defendant who introduces a bad act into evidence
invites the error and is not automatically entitled to receive a Tavares
instruction without request. See LaChance v. State, 130 Nev. 263, 276, 321
P.3d 919, 928 (2014); Morton v. State, No. 83884-COA, 2022 WL 4391751,
at *4 (Nev. Ct. App. Sept. 22, 2022) (Order of Affirmance) (declining to reach
the appellant’s argument that the district court erred by failing to give a
Tavares instruction where the defendant elicited the bad act evidence and

failed to request a limiting instruction). Other jurisdictions with statutes

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similar to NRS 48.045(2) have also determined that trial courts are not
obligated to sua sponte provide limiting instructions when the defendant
introduces bad act evidence. See, e.g., State v. Benitez, No. 96257, 2011 WL
5118418, at *7 (Ohio Ct. App. Oct. 27, 2011) (concluding that the trial court
was not required to give a limiting instruction because the bad act evidence
was initially raised by the defense on cross-examination); State v. Elston,
No, 98,344, 2008 WL 4291518, at *1 (Kan. Ct. App. Sept. 19, 2008) (“The
State did not present prior bad acts evidence requiring a limiting
instruction; the defendant’s presentation of such evidence and failure to
request a limiting instruction constitutes invited error... .”).

Therefore, we hold that a defendant bears the burden of
requesting a limiting instruction when they directly elicit bad act evidence.
In such circumstances, the general rule set forth in NRS 47.110 apphes:
“When evidence which is admissible...for one purpose but
inadmissible ... for another purpose is admitted, the judge, upon request,
shall restrict the evidence to its proper scope and instruct the jury
accordingly.” NRS 47.110 (emphasis added). Further, when a defendant
introduces a bad act and fails to request a limiting instruction, the district
court is not obligated to raise the issue or provide a Tavares instruction sua
sponte. In this case, Chadwick directly elicited Henry's testimony about his
threat, and therefore it was Chadwick’s burden to request a Tavares
limiting instruction, if he desired one, to reduce the risk of unfair prejudice
in connection with the threat. See NRS 47.110. Because he did not request
a limiting instruction in connection with the threat, Chadwick invited any
alleged error regarding the absence of a Tavares instruction, and he is not

entitled to relief.

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Although Chadwick was not entitled to a Tavares instruction
pertaining to the threat, he was entitled to a Tavares instruction to limit
the jury’s consideration of his gang affiliation, which the State elicited on
redirect. Nevertheless, we conclude that the court’s error in failing to give
that instruction was harmless.

In Tavares, the supreme court determined that the absence of
a limiting instruction was prejudicial and warranted reversal when the
State introduced prior bad act evidence that the appellant had previously
engaged in the same behavior underlying the charge for which he stood trial.
117 Nev. at 728-33, 30 P.3d at 1130-33. The appellant was charged with
first-degree murder in the death of his three-month-old daughter. Id. at
728, 30 P.3d at 1130. The State’s theory was that the appellant, who hada
history of mishandling children, broke his daughter’s ribs and asphyxiated
her. Id. To prove its case, the State introduced evidence that the appellant
had mishandled another child six years earlier and also squeezed his infant
daughter and covered her mouth on prior occasions. /d. at 728-29, 30 P.3d
at 1130. No limiting instruction was given regarding the use or purpose of
this prior bad act testimony, which was admitted to establish Tavares's
propensity to engage in similar conduct. Jd. The supreme court noted that
Tavares’s conviction rested primarily on circumstantial evidence and prior
bad acts, and the prior bad act evidence “impermissibly tainted the jury's
verdict.” Id. at 733, 30 P.3d at 1133.

In contrast, Chadwick's conviction in this case did not rest
primarily on circumstantial evidence and prior bad acts. Chadwick did not
dispute that he was in an accident or that he left the scene. Further,
multiple witnesses, including Chadwick himself, testified to facts that

would imply he knew or should have known he was in an accident. Henry

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testified as a direct eyewitness to Chadwick’s actions and stated that she
told him that he had struck a child with his van but he continued to flee the
scene. She also testified that Chadwick had consumed a substantial
amount of alcohol, which provided a motive for him to flee and inferentially
established his knowledge of the accident. In addition, Chadwick testified
that he was driving through the intersection and heard a “thump” outside
his van. While Chadwick testified that he believed he hit a pothole,
Detective Almaguer testified that there were no potholes or irregularities
in the road near the accident site. Several members of T.B.’s family also
testified that Chadwick drove away quickly after the accident.

Further, Chadwick’s gang affiliation was not offered to show
that he “acted in conformity therewith” to prove guilt of the underlying
charges, which was central to the supreme court’s prejudice analysis in
Tavares. NRS 48.045(2). Therefore, we conclude that any error in failing
to provide a Tavares instruction to limit the jury’s consideration of
Chadwick's gang affiliation was harmless and did not have a “substantial
and injurious effect” on the jury’s verdict. Kotteakos, 328 U.S. at 776; see
also Tinch, 113 Nev. at 1176, 946 P.2d at 1065.

CONCLUSION

In summary, we conclude that the district court did not abuse
its discretion in admitting evidence of Chadwick's alcohol consumption and
apparent intoxication prior to the accident. This evidence was admissible
to establish Chadwick’s motive to flee and, inferentially, his knowledge that
he had been in an accident when he fled the scene. We also hold that when
a defendant directly elicits bad act evidence, it is the defendant's burden to
request a Tavares limiting instruction in connection with that evidence. If

the defendant fails to do so, the district court is not obligated to provide one

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att.

whee

sua sponte. Because Chadwick has not established any basis to reverse his

conviction, we affirm the judgment of conviction.!”

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Westbrook

We concur:

LA Mime , BE

Gibbons

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l0Chadwick also argues that (1) the district court plainly erred in
admitting a 9-1-1 call; (2) the district court abused its discretion in
sentencing; and (3) cumulative error warrants reversal. We have
considered those arguments and conclude that they lack merit. Insofar as
Chadwick has raised any other arguments that are not specifically
addressed in this opinion, we have considered the same and similarly
conclude that they do not present a basis for relief.

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