source: Caselaw Access Project

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text:
    STATE of Montana, Plaintiff and Appellee, v. George HUDON, Defendant and Appellant.
    DA 18-0270
    Supreme Court of Montana.
    Submitted on Briefs: January 3, 2019 Decided: February 5, 2019
    For Appellant: Martin W. Judnich, Judnich Law Office, Missoula, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Mardell L. Ployhar, Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Angela Wetzsteon, Deputy County Attorney, Hamilton, Montana
   Justice Jim Rice delivered the Opinion of the Court.

¶1 George Hudon (Hudon) appeals his conviction of driving under the influence of alcohol or drugs, in violation of § 61-8-401, MCA (DUI), after jury trial in the Twenty First Judicial District Court, Ravalli County. We affirm, and restate the issues as follows:

1. Did the District Court err by denying Hudon's motion to exclude evidence because of an asserted discovery violation by the State?
2. Did the District Court err by granting the State's motion in limine to prevent Hudon from arguing the State had not fulfilled its discovery obligations, and err by disallowing Hudon's discussion of the subject of the motion in limine in his closing argument?
3. Did the District Court err by allowing the State to amend the information less than five days before trial?
4. Did the District Court err by admitting a State exhibit at trial when the redacted version of the exhibit was not provided to Hudon until the morning of the first day of trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On July 23, 2017, at approximately 12:30 a.m., Ravalli County Sheriff's Deputies Jason Liechty (Liechty) and Robert McGarvan (McGarvan) were patrolling in the Florence area near One Horse Lane when they witnessed a vehicle swerve from its lane of travel into the oncoming lane, and back again. The deputies initiated a stop of the vehicle, whose driver was Hudon.

¶3 Upon making contact, McGarvan smelled alcohol on Hudon and noticed he had bloodshot eyes and would not make eye contact. McGarvan described Hudon as "very fidgety," and stated that he kept reaching between his legs and under his car seat. Hudon admitted he had been drinking and asked both to go home and go to jail, because "he knew he was in trouble." When Liechty asked Hudon how much he had to drink, Hudon responded, "Quite a bit."

¶4 The deputies conducted two tests to determine whether Hudon was under the influence of alcohol or drugs-the Horizontal Gaze Nystagmus (HGN) test and the walk and turn test. Hudon exhibited six out of six indicators of impairment on the HGN test. On the walk and turn test, Hudon demonstrated six out of eight indicators of impairment, including loss of balance, inability to walk heel to toe, stepping off the line, making an improper turn, and stopping in the middle of the test. Hudon refused to do the one-leg stand test. Hudon's preliminary breath test yielded a result of 0.143 BAC. Hudon refused further testing.

¶5 Liechty arrested Hudon for DUI and was granted a telephonic search warrant for Hudon's blood, which was drawn at Marcus Daly Memorial Hospital and sent to the Montana State Crime Laboratory (Crime Lab) for processing. Blood testing revealed that Hudon's blood alcohol content was 0.284 BAC. Because Hudon had three prior DUI convictions, he was charged with felony DUI, for a fourth offense.

¶6 Hudon sought various items of discovery from the prosecution, including Crime Lab records and information related to Hudon's charge in this case. The prosecutor, Angela Wetzsteon, forwarded Hudon's discovery requests to the Crime Lab's toxicologist who analyzed Hudon's blood. By email, toxicologist Doug Lancon informed Wetzsteon that the Crime Lab's quality control manager, Emily Wemlinger (Wemlinger), was responsible for handling discovery requests and provided her contact information. Administrator Scott Larson further advised that certain items requested by Hudon required a court order to obtain, and that at least one of Hudon's attorneys was aware of this because he had requested this information in the past and knew the process. Wetzsteon then emailed Hudon's attorneys, advising them "the information held by the [C]rime [L]ab is mutually available to the defense just as it is to the state," and that they needed to directly contact Wemlinger for the information sought. Wetzsteon provided Wemlinger's email address and copied Wemlinger on the email so that she would have notice of Hudon's pending request. Wemlinger then contacted Hudon's counsel and informed him that he should contact her directly regarding his discovery requests.

¶7 Hudon's counsel did not contact Wemlinger or otherwise request the information from the Crime Lab. Instead, Hudon's attorneys responded to the prosecutor by email, stating they would not contact the Crime Lab, the prosecution was violating Hudon's due process rights by not obtaining the information for Hudon, and that they would file a motion to exclude all the toxicology information in the case based on the prosecution's failure to provide the information. Wemlinger again contacted Hudon's counsel and advised that he should contact her regarding his discovery request, but Wemlinger received no further inquiry or response.

¶8 Hudon moved to exclude the Crime Lab records and information because the prosecution did not produce the information requested by Hudon. The prosecution responded, arguing it had fulfilled its discovery obligations by contacting the Crime Lab and instructing Hudon how to obtain the information, which was in the exclusive possession and control of the Crime Lab. The prosecution attached the relevant Crime Lab policies to its response. Hudon filed a reply brief seeking sanctions under § 46-15-329, MCA, for the prosecution's alleged noncompliance.

¶9 On December 6, 2017, the District Court issued an order denying Hudon's motion to exclude the Crime Lab records and information, reasoning "Hudon's argument that the State is required under § 46-15-322, MCA, to request and obtain the information he seeks from the Crime Lab and then deliver it to him is unpersuasive and unsupported by law." The court determined the prosecution satisfied its discovery obligations under § 46-15-322, MCA, by providing Hudon with the relevant Crime Lab employee contact information.

¶10 After the District Court issued its order, the prosecution learned that Hudon intended to use certain documents from the Crime Lab-unrelated to his case or to any of the Crime Lab personnel involved in his case-at trial in an effort to show the prosecution violated its discovery obligations. The prosecution moved in limine to exclude evidence or argument to the effect the prosecution had violated discovery, arguing these would violate the court's order finding the prosecution had fulfilled its discovery obligation, were not relevant, and would unfairly prejudice the State. The District Court granted the motion, reasoning Hudon chose to "forego obtaining Crime Lab information he believes is relevant out of his continued belief that the State was required to obtain it for him." Accordingly, the court ruled Hudon was precluded from presenting evidence or argument "that accuses or suggests the State failed to provide Defendant with requested discovery or violated evidentiary or procedural rules." (emphasis added).

¶11 Hudon began his closing argument by stating that the evidence introduced by the prosecution was "incomplete." The prosecutor did not object, and moments later, Hudon added:

The blood test is probably the most incomplete, inconsistent piece of evidence that you received here yesterday. You received one piece of paper. One. You heard testimony from Ms. Everett [a toxicologist from the Crime Lab].... But you didn't get to hold those reports in your hand. The [S]tate did not go through that result, the actual result in detail with Ms. Everett. Ask yourself why not. Why didn't they go through that level of detail to prove this case?

The prosecution objected, stating Hudon's argument was "the subject of a pretrial ruling," and the court sustained the objection.

¶12 On April 4, 2018, the same day the prosecution filed its motion in limine, it also moved to amend the information. The original information charged Hudon with DUI under § 61-8-401, MCA, while the amended information added the alternative charge of operation of a vehicle with an alcohol concentration of 0.08 BAC or more, a felony, under § 61-8-406, MCA (DUI per se). The District Court granted the motion the next day, and the amended information was filed later that day. On the morning of trial, Hudon moved for denial of the amendment as untimely. In response, the prosecution argued the timing of the amendment was irrelevant because it was not substantive, but only as to form, which could be done at any time before verdict. The court denied Hudon's motion to deny the amendment, reasoning the DUI per se charge was closely related to the DUI charge, the two charges were based on the same facts, and no new charge was added because it was in the alternative.

¶13 At the final pre-trial conference on the morning of the first day of trial, the parties discussed a video of the officers' DUI investigation of Hudon on the night of his arrest, which the prosecution intended to introduce. The prosecution previously provided a complete copy of the hour-long video to Hudon during discovery, but had redacted large portions after Hudon filed a motion to exclude evidence about the portable breath test, his prior DUI convictions, drugs or drug paraphernalia, and the HGN test, absent proper foundation. Hudon did not receive a copy of the redacted video until the final pretrial conference, at which point he objected to its admission because he had not received a copy in time to adequately prepare for trial and did not know what information had been redacted. In response, the prosecution offered to play the original video to the jury instead, fast-forwarding through the redacted portions and, alternatively, suggested that Hudon review the redacted version before trial began, because it was only 11 minutes long. The prosecution noted it had reminded Hudon's counsel to bring a computer to view the redacted video on the morning of trial, and, accordingly, Hudon had not been unfairly surprised.

¶14 Hudon viewed the video before trial but continued to object to its admission, arguing the prosecution had untimely presented a new exhibit that violated his due process rights. The court denied Hudon's objection and admitted the video, and it was played to the jury.

¶15 After a two-day trial, the jury convicted Hudon of DUI, and did not address the alternative charge of DUI per se. Hudon appeals.

STANDARD OF REVIEW

¶16 "A district court has broad discretion when determining the relevance and admissibility of evidence. Accordingly, we generally review evidentiary rulings for abuse of discretion. A district court abuses its discretion when it acts arbitrarily, without conscientious judgment, or exceeds the bounds of reason. To the extent the court's ruling is based on a rule of evidence, a statute, or a constitutional right, our review is de novo." State v. Given , 2015 MT 273, ¶ 23, 381 Mont. 115, 359 P.3d 90 (citations omitted). Additionally, the authority to grant or deny a motion in limine "rests in the inherent power of the district court to admit or exclude evidence so as to ensure a fair trial. Where a decision on a motion in limine involves the exercise of discretion, this Court will not overturn the district court absent an abuse of discretion." Folsom v. City of Livingston , 2016 MT 238, ¶ 11, 385 Mont. 20, 381 P.3d 539 (quoting Meek v. Mont. Eighth Judicial Dist. Ct. , 2015 MT 130, ¶ 9, 379 Mont. 150, 349 P.3d 493 ). Finally, we review a district court's determination "to permit an amendment to a criminal complaint or information for an abuse of discretion." State v. Hardground , 2019 MT 14, ¶ 7, --- Mont. ----, 433 P.3d 711.

DISCUSSION

¶17 1. Did the District Court err by denying Hudon's motion to exclude evidence because of an asserted discovery violation by the State?

¶18 Hudon argues the District Court erred by denying his motion to exclude his blood test results from the Crime Lab because the prosecution willfully withheld additional Crime Lab records and information, violating its discovery duties under § 46-15-322, MCA. That provision, which governs the prosecution's discovery obligations, provides: "Upon request, the prosecutor shall make available to the defendant for examination and reproduction the following material and information within the prosecutor's possession or control...." According to the statute's plain language, the discovery obligation extends to information, identified in the statute, that is in "the prosecutor's possession or control."

¶19 Here the evidence sought was in the possession of the Crime Lab. The Crime Lab is "a laboratory of criminalistics within the" Montana Department of Justice that was established "to perform analysis of specimens submitted by all Montana state, county, or city law enforcement officers and all state agencies." Section 44-3-301(1), MCA. Consequently, the Crime Lab is under the control of a different government agency, separate from the county attorney's office, and is not located at or within a county attorney's office. The Crime Lab is not supervised by the county attorney's office, does not report to or take direction from the county attorney's office, is not funded by the county attorney's office, and is not administratively connected to any county attorney's office.

¶20 Further, county attorneys must comply with the same procedures to obtain evidence from the Crime Lab that are applicable to the defense. Under the Crime Lab's policy, of which Hudon's counsel was aware, certain kinds of information sought from the Crime Lab require a court order, whether requested by the prosecution or the defendant, illustrating that "control" of such information was exercised solely by the Crime Lab, not the county attorney. Thus, for purposes of § 46-15-322(1), MCA, the evidence sought by Hudon in this case was not in the "possession or control" of the prosecution.

¶21 Moreover, any due process concerns were more than alleviated by the prosecution, followed by the Crime Lab itself, advising Hudon how to obtain the evidence he sought. Similar to our decision in State v. Sol , 282 Mont. 69, 78, 936 P.2d 307, 312 (1997), where we determined the defendant was not prejudiced when he was on notice of the existence of the evidence, knew how and from whom to obtain the evidence, and could have obtained it himself, Hudon cannot claim a due process or discovery violation here. Sol , 282 Mont. at 78, 936 P.2d at 312.

¶22 2. Did the District Court err by granting the State's motion in limine to exclude Hudon from arguing that the State had not fulfilled their discovery obligations to him, and err by disallowing Hudon's discussion of the subject of the motion in limine in his closing argument?

¶23 Hudon argues the District Court violated his due process rights by granting the State's motion in limine to exclude Hudon's evidence and arguments about the subject of the motion at trial, because it illegally shifted the burden of proof to Hudon and did not allow him to rely upon the nature of the prosecution's evidence presented at trial.

¶24 Evidence that is not relevant is inadmissible. Mont. Rule Evid. 402. "Relevant evidence" is evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Mont. Rule Evid. 401. Otherwise relevant evidence may also be inadmissible "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." Mont. Rule Evid. 403. A court has the "inherent power" to grant or deny a motion in limine "to ensure a fair trial." Folsom , ¶ 11.

¶25 Hudon sought to admit, and subsequently mentioned in his closing argument, documents from the Crime Lab unrelated to his case or to any of the Crime Lab personnel involved in his case, in an effort to prove the prosecutor failed to produce evidence. This evidence did not pertain to Hudon's case and likely did not have a tendency to make the existence of any fact related to his guilt more or less probable. Mont. Rule Evid. 401. Nonetheless, even if the evidence was relevant to an attack on the prosecution's efforts, the evidence was unfairly prejudicial to the State because it was premised upon an assertion that the prosecution had violated its discovery obligations, about which the District Court had already ruled to the contrary. Further, admitting the evidence could well have confused or misled the jury regarding the issues to be determined.

¶26 Hudon argues the District Court also erred by limiting his closing argument that the prosecution's evidence was incomplete because he "was not commenting upon the court's denial of [his] motion." However, Hudon's argument fails to account for all of the circumstances. The District Court's order in limine did not merely prohibit comment on its ruling, but, rather, prohibited any defense effort to "accuse[ ] or suggest" the prosecution had failed to provide evidence in discovery. The defense pushed back on this ruling throughout the trial, leading to objections by the prosecution that were sustained. While defense counsel's argument in closing, quoted above, may have been a generally appropriate subject for argument, the context here was the District Court's ruling that the prosecution had not violated its discovery obligations, and the defense's continued efforts, despite the ruling, to establish or imply the prosecution was hiding something, when in reality the defense had failed to obtain the additional evidence it desired. In that context, we cannot conclude the District Court abused its discretion by either granting the State's motion in limine, or by prohibiting Hudon from introducing evidence or argument that the court perceived was an effort to raise an issue it had prohibited.

¶27 3. Did the District Court err by allowing the State to amend the information less than five days before trial?

¶28 Hudon argues the District Court erred by allowing the State to amend the information less than five days before trial, asserting the amendment was substantive rather than of form, and that the differences between the two charges "alter[ed] the crime charged as well as the elements, burdens of proof, nature of proof and defenses."

¶29 Amendments to an information "in matters of substance" may be allowed not less than five days before trial, providing a motion seeking leave to amend is filed in a timely manner. Section 46-11-205(1), MCA. A court may allow an amendment "as to form" at any time before the verdict is issued, providing the amendment will not prejudice the substantial rights of the defendant. Section 46-11-205(3), MCA ; Hardground , ¶ 9. Here, the motion to amend the information was filed five days before trial, and approved by the court the next day. While the amendment itself was not filed at least five days before trial, we conclude any violation of the statute was harmless because it did not prejudice Hudon. He had notice of the amendment and, ultimately, he was not convicted of the subject of the amended information-the alternative charge of DUI per se-thus mooting the effect of the amendment. "A cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial.... Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Section 46-20-701, MCA. We need not determine whether the amendment was one of substance or form.

¶30 4. Did the District Court err by allowing the State to present an exhibit at trial when the redacted version of that exhibit was not disclosed to Hudon until the morning of the first day of trial?

¶31 Lastly, Hudon argues his due process rights were violated when the District Court allowed the State to introduce the redacted video exhibit that had not been disclosed to Hudon in its redacted form until the morning of the first day of trial.

¶32 Montana Rule of Evidence 104(a) provides that "the admissibility of evidence shall be determined by the court." Moreover, "[a] district court has broad discretion when determining the relevance and admissibility of evidence," thus this determination is reviewed for an abuse of discretion. Given , ¶ 23.

¶33 Hudon received the proffered video in its entirety well before trial. He moved to exclude, and obtained exclusion of, significant portions of the video. The prosecutor advised Hudon that he would receive a copy of the video, with redactions he had sought, on the morning of the first day of trial, and reminded him to bring a computer to view it. The redacted video was 11 minutes in length, and this version was shown to the jury. Thus, Hudon was long aware of the evidence that would be used against him, and had the opportunity to view the redacted version before trial began. Accordingly, the District Court did not abuse its discretion by admitting the evidence and Hudon's due process rights were not violated.

¶34 Affirmed.

We concur:

JAMES JEREMIAH SHEA, J.

BETH BAKER, J.

LAURIE McKINNON, J.

INGRID GUSTAFSON, J.

      Hudon requested 14 types of information regarding the blood test results. Specifically, Hudon sought: the CVs of all Crime Lab employees involved in the handling of his blood sample; a copy of the actual chromatogram of his blood testing results; toxicology worksheets; toxicology notes; the actual blood sample collection containers; the Crime Lab's most recent certification; maintenance, calibration, and certification records for equipment used in the blood analysis; refrigerator temperature logs; complete chain of custody records; batch test information; and the Crime Lab's complete case file related to his blood sample.

      The relevant Crime Lab policies state: "[c]onfidential criminal justice information and supporting casework documentation contained in the case file will be provided to either the prosecution or defense upon receipt of a copy of a Court Order or Subpoena Duces Tecum which is signed or stamped by the Judge."

      Our inquiry here is distinct from the speedy trial consideration of delay in the processing of evidence, which we have held is "institutional delay" attributable to the State as a whole. See State v. Velasquez , 2016 MT 216, ¶¶ 13-15, 384 Mont. 447, 377 P.3d 1235. In those cases, we "attribute the delay to the responsible party," Velasquez , ¶ 13, and the prosecution "bears a higher burden to provide justifications for the delay." Velasquez , ¶ 18. The statutory question we address here concerns the production of evidence within "the prosecutor's possession or control." Section 46-15-322, MCA (emphasis added).


author: Justice Ingrid Gustafson delivered the Opinion of the Court. Justice James Jeremiah Shea, dissenting.

text:
    STATE of Montana, Plaintiff and Appellee, v. Kenneth Arnold OSCHMANN, Defendant and Appellant.
    DA 17-0141
    Supreme Court of Montana.
    Submitted on Briefs: January 3, 2019 Decided: February 7, 2019
    For Appellant: Chad Wright, Appellate Defender, Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Morgan E. Shaw, Deputy County Attorney, Billings, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Appellant Kenneth Oschmann (Oschmann) appeals the denial of his Motion to Set Aside Jury Verdict and Grant the Defendant a New Trial by the Thirteenth Judicial District Court, Yellowstone County. We affirm.

¶2 We restate the issue on appeal as follows:

Did the District Court err in denying Defendant's Motion to Set Aside Jury Verdict and Grant the Defendant a New Trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In July 2015, Oschmann was charged with Count I: Partner or Family Member Assault (felony) and Count II: Criminal Destruction of or Tampering with a Communication Device (misdemeanor). He entered a not-guilty plea and the cause proceeded to jury trial on April 4, 2016.

¶4 Pursuant to § 46-16-118, MCA, the District Court directed the parties to include two alternate jurors during jury selection. Both the State and Oschmann questioned the jury panel as they desired. Following voir dire , Oschmann passed the jury, including the two alternates, for cause and the jury was sworn and empaneled. After the parties presented their opening statements but prior to presentation of evidence, the court and the parties learned Juror 3 was having an allergic reaction and needed to be excused. Without objection, Juror 3 was excused for a medical issue. The District Court directed the first alternate, Juror 13, to take the place of Juror 3. The court instructed the bailiff to have Juror 13 move to the Juror 3 chair to accomplish the replacement. Unbeknownst to the court and the parties, Juror 14 rather than Juror 13 took the place of Juror 3 and served on the jury.

¶5 On April 5, 2016, the jury found Oschmann guilty of both charges. Upon the poll of the jury, the court and the parties learned that the second alternate, Juror 14, rather than the first alternate, Juror 13, had replaced Juror 3, and had served as a jury member. At that time, Oschmann's trial counsel indicated he was not in a position to move for a mistrial but rather needed to look into the situation further. The court advised it would also research the issue should Oschmann file a motion. Through subsequent counsel, Oschmann filed his Motion to Set Aside Jury Verdict and Grant the Defendant a New Trial on September 29, 2016, 175 days after the pronouncement of the guilty verdict. The District Court denied the motion and Oschmann appeals.

STANDARD OF REVIEW

¶6 This Court reviews a district court's denial of a motion for a new trial to determine whether the court abused its discretion. State v. Morse , 2015 MT 51, ¶ 18, 378 Mont. 249, 343 P.3d 1196. To the extent the district court makes findings of fact, those findings are reviewed for clear error. Morse , ¶ 18.

DISCUSSION

¶7 Did the District Court err in denying Defendant's Motion to Set Aside Jury Verdict and Grant the Defendant a New Trial?

¶8 Oschmann asserts the District Court erred when it denied Defendant's Motion to Set Aside Jury Verdict and Grant the Defendant a New Trial as the court included facts not in the record and failed to follow § 46-16-118(3), MCA. Oschmann asserts the District Court "recited some background facts which are at odds with the record." Specifically, Oschmann takes issue with the District Court's assertion that it made inquiry of Juror 14 to confirm he had been sworn, deliberated, and that the guilty verdict was indeed his verdict. Oschmann asserts the record is devoid of confirmation from Juror 14 he was sworn, deliberated, and whether the guilty verdict was his true verdict.

¶9 We find this argument somewhat disingenuous. After the juror mix-up was discovered during the jury poll, the District Court called Juror 14 into court to briefly discuss the situation. At that time, in the court's presence, Juror 14 confirmed he was Juror 14. Throughout the trial, the court could see the jury panel during presentation of the parties and, upon Juror 14 confirming his identity, clearly recognized that Juror 14 rather than Juror 13 sat and deliberated as a principal member of the jury. Defendant concedes this in his Opening Brief when he acknowledges, "[i]t is during the jury poll that the parties became aware the wrong alternate juror deliberated," and "the second alternate juror sat on the jury, instead of the first alternate juror." Further, at no time during the jury poll, or while briefly discussing the matter with the court in the presence of the parties, did Juror 14 iterate he had not deliberated or that the verdict read was not his true verdict.

¶10 Juror 14 was one of the original 30 individuals called forward as potential jurors. Oschmann had full opportunity to question the prospective jurors, including Juror 13 and Juror 14, following which he passed the jury panel for cause. Upon completion of the jury selection and the parties exercising their peremptory challenges, the jury was seated and in open court, and the court declared Juror 13 to be the first alternate and Juror 14 to be the second alternate jurors. Thereafter, the Clerk swore in the trial jurors, including the alternates. Following opening statements, during an in-chambers conference, the court and the parties learned of Juror 3's medical problem and, without objection, the court excused her and informed the bailiff that alternate Juror 13 should physically move to the Juror 3 seat. Upon resuming trial, Oschmann had full opportunity to see that Juror 14, rather than Juror 13, had moved to the Juror 3 seat. Oschmann did not object and did not otherwise bring the mix-up to the attention of the court or the State.

¶11 At no time did Juror 14 contradict the guilty verdict during the original polling or when he was recalled by the court to discuss the matter. The verdict forms indicate both guilty verdicts were unanimous and the jury foreman signed the verdicts. While the District Court could have made more direct inquiry of Juror 14, it is clear from the record on the whole, in conjunction with the court's ability to see and perceive the jurors who were sworn, deliberated, and rendered a verdict, that Juror 14 was among them. As such, we conclude the District Court's findings in this regard were not clearly erroneous.

¶12 Defendant next asserts he is entitled to a new trial because the District Court failed to acknowledge and follow § 46-16-118(3), MCA, by failing to acknowledge that, if needed, alternate jurors are placed on the jury in the order in which they are called. Oschmann argues Juror 14's presence on the jury was not permitted as Juror 14 was not called upon by the court to replace a member of the jury, but instead Juror 13 was called upon by the court to replace a member of the jury.

¶13 The State asserts that although § 46-16-118(3), MCA, was technically violated, this violation did not deprive Oschmann of his constitutional right to a fair and impartial jury and Oschmann has failed to show how the interest of justice requires a new trial. The State argues this technical violation did not implicate Oschmann's substantial rights and was thus harmless error. We agree.

¶14 Following a guilty verdict, "the court may grant the defendant a new trial if required in the interest of justice" without a motion or "if justified by law and the weight of the evidence" deny, grant, or modify the verdict after motion and hearing. Section 46-16-702, MCA. The Montana and United States Constitutions guarantee a defendant a right to a fair and impartial jury.

Mont. Const. Art. II, §§ 17, 24 ; U.S. Const., Amend. VI.

¶15 Section 46-16-118, MCA, provides:

(1) The court may direct that one or more alternate jurors be selected in the same manner as principal jurors. The alternate jurors shall take the same oath as the principal jurors.
(2) Each party shall have one additional peremptory challenge for each alternate juror.
(3) Alternate jurors, in the order in which they are called, shall replace jurors who, prior to the time the jury arrives at its verdict, become unable or disqualified to perform their duties. An alternate juror may not join the jury in its deliberation unless called upon by the court to replace a member of the jury. An alternate juror's conduct during the period in which the jury is considering its verdict is regulated by instructions of the trial court. An alternate juror who does not replace a principal juror must be discharged after the jury arrives at its verdict.

¶16 While the statutory jury selection procedures-including those regarding alternate jurors contained in § 46-16-118, MCA -are designed to protect against violations of the defendant's constitutional right to a fair and impartial jury, not every violation of the statutory process must result in reversal. "Technical departures from the jury selection statutes and violations which do not threaten the goals of random selection and objective disqualification do not constitute a substantial failure to comply." State v. Bearchild , 2004 MT 355, ¶ 15, 324 Mont. 435, 103 P.3d 1006. In Bearchild , we adopted the harmless error standard "to technical or immaterial violations of the statutory jury selection scheme" requiring the defendant to demonstrate prejudice to his substantial rights with violation thereof rather than presuming prejudice. Bearchild , ¶ 24, and § 46-20-701, MCA. Similar to Bearchild , Oschmann does not challenge the composition of the jury or even its impartiality but rather, challenges a particular juror: Juror 14. Although Oschmann is entitled to an impartial jury, he has no right to a particular juror. Bearchild , ¶ 21.

¶17 Oschmann does not argue his constitutional right to a fair and impartial jury was violated nor does he describe how he was prejudiced such that the interests of justice require a new trial. Oschmann has not demonstrated or asserted any failure of the random selection of prospective jurors called to potentially serve at his trial. Further, he had full opportunity to question the jurors called forth, including Juror 14, to discern any bias or prejudice warranting a challenge for cause and to intelligently exercise his peremptory challenges. The alternate jurors were selected in the same manner as the original principal jurors, both parties exercised peremptory challenges in selecting the alternate jurors, and the alternate jurors took the same oaths as the principal jurors. Oschmann has failed to demonstrate any prejudice from alternate Juror 14 serving as a juror in replacement of Juror 3 instead of alternate Juror 13. As such, there was no material failure by the District Court to comply with Montana's jury selection statutes and the technical error occurring herein was harmless. As the error was harmless, the District Court correctly concluded the interest of justice does not require a new trial.

¶18 Alternatively, Oschmann asserts his attorneys provided ineffective assistance of counsel (IAC)-asserting trial counsel was ineffective for failing to file a timely motion for a new trial and his later counsel was ineffective for failing to argue in his motion for a new trial that seating the alternate jurors out of order violated § 46-16-118(3), MCA.

¶19 As we have determined there was no material failure by the District Court to comply with Montana's jury selection statutes and the technical error occurring herein was harmless, it is not necessary for us to consider Oschmann's IAC claims further. Even if we accepted Oschmann's assertion that trial counsel was ineffective for not filing a motion, when one was ultimately filed by subsequent counsel the District Court did not deny the motion as untimely but rather determined it on the merits. Whether trial counsel "was ineffective because he failed to file a motion for a new trial based upon the alternate juror error" became moot, as any potential prejudice from trial counsel's failure to file a motion for a new trial was cured by subsequent counsel's filing of the motion and the District Court's consideration of it on its merits. Further, even if we were to accept Oschmann's assertion subsequent counsel was ineffective for failing to specifically argue the requirements of § 46-16-118(3), MCA, in the motion for a new trial, we have determined the technical violation of § 46-16-118(3), MCA, was harmless and not prejudicial to Oschmann. As such, Oschmann is unable to establish he was prejudiced by subsequent counsel's deficient performance. CONCLUSION

¶20 There was no material failure by the District Court to comply with Montana's jury selection statutes and the technical error occurring herein was harmless. As the error was harmless, the District Court correctly concluded the interests of justice do not require a new trial and, as such, Oschmann is unable to establish his IAC claims.

¶21 Affirmed.

We concur:

MIKE McGRATH, C.J.

BETH BAKER, J.

JIM RICE, J.

Justice James Jeremiah Shea, dissenting.

¶22 The Court today concludes it is harmless error to allow an individual who, by law, was forbidden from deciding the guilt or innocence of a criminal defendant, to sit on a jury instead of the individual who, by law, was mandated to decide the guilt or innocence of a criminal defendant. The Court reaches this conclusion by focusing its analysis exclusively on the individual who was forbidden from serving on the jury, to the exclusion of the individual who was mandated to serve on the jury. This is the fundamental flaw in the Court's holding.

¶23 The Court notes that the District Court confirmed with Fisher that he had been sworn, that he had deliberated, and that the guilty verdict was indeed his verdict. Opinion, ¶ 8. The Court notes this as if it somehow cures the defect that § 46-16-118(3), MCA, prohibited Fisher from deliberating and rendering a guilty verdict. Section 46-16-118(3), MCA ("[a]n alternate juror may not join the jury in its deliberation unless called upon by the court to replace a member of the jury....") (emphasis added). Fisher was not called upon by the District Court to replace Juror 3. Opinion, ¶ 4. Indeed, Fisher could not be called upon by the District Court to replace Juror 3 since § 46-16-118(3), MCA, mandates that alternate jurors "in the order in which they are called, shall replace jurors who ... become unable or disqualified to perform their duties."

¶24 Ultimately, the fact that Fisher-who should not have been on the jury in the first place-was sworn, deliberated, and found Oschmann guilty, misses the point. The point is how Peterson-who should have been on the jury-would have deliberated and voted; a question that remains unanswered. In Bearchild , we listed several reasons why a material failure to substantially comply with Montana statutes governing the procurement of a trial jury cannot be treated as harmless error. First among those reasons was that "such an error precedes the presentation of any evidence to the jury, and cannot be analyzed as mere trial error without resorting to speculation." Bearchild , ¶ 17. Yet that is precisely what the Court does in this case.

In order to find harmless error, the Court must speculate that Peterson-the individual whom the statute mandated be the replacement of Juror 3-would also have found Oschmann guilty.

¶25 The Court relies exclusively on Bearchild to support its harmless error conclusion. This is curious because the facts of Bearchild could not be more different from the present case. In Bearchild , we held it was harmless error to dismiss a prospective juror prior to voir dire, because:

Even though it occurred prior to trial, the impact of [the prospective juror's] dismissal can be discerned from the record. The outcome of Bearchild's trial would be the same regardless of [the prospective juror's] dismissal, because as No. 43 on the venire, [the prospective juror] never would have served on the jury in any event.... [T]he error in this case can be isolated and assessed for its prejudicial impact; [the prospective juror's] dismissal did not affect Bearchild's right to an impartial jury.

Bearchild , ¶ 22. The situation in the present case is the polar opposite of Bearchild . Rather than a prospective juror who "never would have served on the jury in any event," this case involves a juror who, but for the District Court's error, definitely would have served on the jury. Since it is impossible to know how Peterson would have deliberated had he been seated on the jury as required by the statute, it is likewise impossible to isolate and assess the error for its prejudicial impact. Yet the Court arrives at the unfounded conclusion that Peterson's erroneous dismissal did not affect Oschmann's right to an impartial jury, and that the outcome of his trial would have been the same regardless, even though the record is completely devoid of any indication as to how Peterson's presence on the jury would have impacted deliberations.

¶26 Bearchild and the Court's Opinion in this case create an interesting set of bookends for what constitutes harmless error in the jury selection process. Read together, Bearchild and this case establish that it is harmless error to excuse a prospective juror, but only when that individual would have had no chance of serving on the jury or when that individual would have definitely served on the jury. This does not seem to leave a lot of room for harmful error.

¶27 I dissent.


author: By the Court, GIBBONS, C.J.:

text:
    Ricardo P. PASCUA, Appellant, v. BAYVIEW LOAN SERVICING, LLC; Seaside Trustee, Inc.; and Bank of New York Mellon, Respondents.
    No. 71770
    Supreme Court of Nevada.
    FILED FEBRUARY 07, 2019
    Robison, Sharp, Sullivan & Brust and Therese M. Shanks, Reno, for Appellant.
    Weinstein & Riley, P.S., and Aaron Waite, Las Vegas, for Respondents.
    BEFORE GIBBONS, C.J., PICKERING and HARDESTY, JJ.
   By the Court, GIBBONS, C.J.:

This case presents us with the question of whether a decedent's spouse, who has been appointed as special administrator over the decedent's estate, may elect to participate in the Foreclosure Mediation Program (FMP) regarding the decedent's residential real property, despite the fact that the property was purchased in the decedent's name only. We conclude that where an individual has been appointed special administrator of an estate that includes residential real property, the special administrator resides in the property as his or her primary residence, and the special administrator retains an ownership interest via intestate succession laws, he or she is entitled to participate in the FMP.

I.

During her marriage to appellant Ricardo P. Pascua, Myrna Pascua purchased a home in her name only, which was encumbered by a deed of trust. In 2010, Myrna passed away, survived by Ricardo and their two children. After Myrna's death, Ricardo filed a petition for special letters of administration with the probate court wherein he requested appointment as special administrator of Myrna's estate. Ricardo later filed an amended petition, listing the purpose of the appointment as "marshall[ing] all assets," and listing himself and his two children as relatives and heirs. In 2011, Ricardo was ultimately appointed special administrator of Myrna's estate "for the purpose of administrating the estate in accordance with [NRS] 140.040."

In 2016, respondent Bayview Loan Servicing, LLC, which serviced Myrna's mortgage for respondent Bank of New York Mellon, the assignee of the deed of trust, commenced foreclosure proceedings on the property. Ricardo, as special administrator of Myrna's estate, requested foreclosure mediation through Nevada's FMP. At the mediation, the mediator found that the homeowner failed to attend the mediation because she was deceased and concluded that the property was not eligible for the FMP because, among other things, Ricardo was not an owner or grantor of the property, and the order appointing him as special administrator did not specifically authorize him to participate in the FMP. Ricardo filed a petition for judicial review in the district court, which was denied. Ricardo now appeals and raises a single issue: whether a special administrator of an estate that includes residential real property subject to foreclosure proceedings may elect to participate in the FMP.

II.

Ricardo argues that a special administrator's general powers and duties under NRS 140.040 to preserve and take charge of real property of the estate, and specific powers under NRS 140.040(2)(a) to "commence, maintain or defend actions and other legal proceedings ... " as a special representative are sufficient to vest authority in the special administrator to participate in the FMP. He further argues that a special administrator may participate in the FMP under the foreclosure mediation rules (FMRs) and NRS 107.086.

A.

"In reviewing a district court order granting or denying judicial review in an FMP matter, this court gives deference to a district court's factual determinations and examines its legal determinations," such as the construction of a statute or FMP rule, de novo. Jacinto v. PennyMac Corp., 129 Nev. 300, 304, 300 P.3d 724, 727 (2013) ; Pasillas v. HSBC Bank USA, 127 Nev. 462, 467, 255 P.3d 1281, 1285 (2011). "If the plain meaning of a statute is clear on its face, then [this court] will not go beyond the language of the statute to determine its meaning." Beazer Homes Nev., Inc. v. Eighth Judicial Dist. Court, 120 Nev. 575, 579-80, 97 P.3d 1132, 1135 (2004) (alteration in original) (internal quotation marks omitted). Moreover, "[w]here the statutory language ... does not speak to the issue before us, we will construe it according to that which 'reason and public policy would indicate the legislature intended.' " Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 514 (2000) (quoting State, Dep't of Motor Vehicles & Pub . Safety v. Lovett, 110 Nev. 473, 477, 874 P.2d 1247, 1249-50 (1994) (internal quotation marks omitted)).

B.

The FMP applies to "owner-occupied residence[s]," FMR 1(1), defined as "housing that is occupied by an owner as the owner's primary residence," NRS 107.086(1), (19)(d). The stated purpose of the FMP "is to provide for the orderly, timely, and cost-effective mediation of owner-occupied residential foreclosures," and to "encourage[ ] deed of trust beneficiaries (lenders) and homeowners (borrowers) to exchange information and proposals that may avoid foreclosure." FMR 1(2). The question before us is whether the FMP rules and statutory scheme contemplate Ricardo's participation in the FMP as special administrator of Myrna's estate.

A special administrator is a person appointed "to collect and take charge of the estate of the decedent ... and to exercise such other powers as may be necessary to preserve the estate " NRS 140.010 (emphasis added). NRS 140.040, the statute upon which Ricardo's special administration powers are based, provides that "[a] special administrator shall ... [t]ake charge and management of the real property and enter upon and preserve it from damage, waste and injury." NRS 140.040(1)(b). Property acquired during the marriage is presumed to be community property. Pryor v. Pryor , 103 Nev. 148, 150, 734 P.2d 718, 719 (1987). "Rebuttal of the presumption requires clear and convincing evidence," and "[e]ven a deed reciting that [the owner] owned the estate as his separate property would not of itself overcome the presumption." Id. The party claiming that the property is separate has the burden of demonstrating that it is not community property. Id. Pursuant to NRS 123.250(1), upon the death of a spouse:

(a) An undivided one-half interest in the community property is the property of the surviving spouse and his or her sole separate property.
(b) The remaining interest:
(1) Is subject to the testamentary disposition of the decedent or, in the absence of such a testamentary disposition, goes to the surviving spouse ....

See also McKissick v. McKissick, 93 Nev. 139, 148, 560 P.2d 1366, 1371 (1977).

Here, Myrna and Ricardo occupied the property in question as their primary residence, and Ricardo continued to do so after Myrna's death. Under such circumstances, the plain language of the relevant statutes and rules authorizes a special administrator to participate in the FMP, which is a preliminary step "necessary to preserve the estate" and keep "it from damage, waste and injury," i.e., foreclosure. NRS 140.010 ; NRS 140.040(1)(b). Even if the administrator statutes did not speak to this issue, reason and public policy indicate that the statutory schemes and court rules contemplate a special administrator's participation in the FMP to avoid foreclosure of residential property occupied by the special administrator as the spouse of the deceased owner and to preserve the estate. Salas, 116 Nev. at 1168, 14 P.3d at 514. In addition, the property was acquired during Ricardo's marriage to Myrna and is thus presumed to be community property. While the fact that the deed was titled as Myrna's sole and separate property may suggest that it was not meant to constitute community property, we conclude that Bayview Loan failed to demonstrate that the property was not intended to be community property. Thus, the record supports that, upon Myrna's death, Ricardo received, at a minimum, an undivided one-half interest in the property. See NRS 123.250(1)(a). Accordingly, Ricardo was empowered to participate in the FMP as a special administrator and because he obtained an ownership interest in the property upon Myrna's death.

III.

As Ricardo obtained an ownership interest in the property upon Myrna's death and the property served as his primary residence, he qualifies as an owner-occupier under Nevada statutes and the FMRs, and because his status as special administrator also authorizes him to take action to preserve Myrna's estate, Ricardo was entitled to participate in the FMP, Thus, the district court erred by denying Ricardo's petition for judicial review. We therefore reverse the district court's order and remand for proceedings consistent with this opinion.

We concur:

Pickering, J.

Hardesty, J.

      Ricardo initially filed a pro se informal brief, but the case was thereafter referred to the pro bono program for appointment of counsel.

      Alternatively, Ricardo argues that he substantially complied with NRS 140.040(2)(c) because his initial petition specifically stated that he was seeking special administrator status for the purpose of negotiating a short sale of the property. We are not persuaded by his argument, as the issue is not whether the scope of the order appointing him special administrator included authorization to negotiate a short sale, but whether a special administrator is eligible to participate in the FMP.

      The foreclosure proceedings were commenced on or about February 9, 2016. This mediation was therefore governed by the Foreclosure Mediation Rules as amended January 13, 2016. See In re Adoption of Rules for Foreclosure Mediation, ADKT 435 (Order Adopting Foreclosure Mediation Rules, June 30, 2009).

      NRS 107.086 was amended in 2017. 2017 Nev. Stat., ch. 571, § 2, at 4091-96. Except where otherwise indicated, the references in this opinion to statutes codified in NRS Chapter 107 are to the version of the statutes in effect when the events giving rise to this litigation occurred.

      Because Ricardo has an ownership interest in the property, and is authorized to participate in the FMP pursuant to NRS 140.040, we further conclude that Ricardo is an aggrieved party within the meaning of NRAP 3A. We thus reject Bayview Loan's contention that Ricardo lacks standing to appeal. See Valley Bank of Nev. v. Ginsburg, 110 Nev. 440, 446, 874 P.2d 729, 734 (1994) ("A party is 'aggrieved' within the meaning of NRAP 3A(a) 'when either a personal right or right of property is adversely and substantially affected' by a district court's ruling." (quoting In re Estate of Hughes v. First Nat'l Bank of Nev. , 96 Nev. 178, 180, 605 P.2d 1149, 1150 (1980) )).


text:
    EDWARD KIELTY TRUST, a Nevada Trust, Appellant, v. NATIONSTAR MORTGAGE, LLC, a Foreign Limited Liability Company; and Mortgage Electronic Registration Systems, Inc., a/k/a "MERS", a Delaware Corporation, Respondents.
    No. 74508
    Supreme Court of Nevada.
    FILED JANUARY 31, 2019
    DISMISSED.


text:
    Todd Matthew PHILLIPS, Appellant, v. Amber PHILLIPS, Respondent.
    No. 77900
    Supreme Court of Nevada.
    FILED FEBRUARY 11, 2019
    Dismissed.


text:
    Mark ADAMS, Appellant, v. Katrina HERRLING, Respondent.
    No. 77744
    Supreme Court of Nevada.
    FILED FEBRUARY 11, 2019
    Dismissed.


text:
    In the MATTER OF: D.D.W., a Minor.
    Eric Clayton, Appellant, v. Janice Sands ; and Sarge Wassel, Respondents.
    No. 77726
    Supreme Court of Nevada.
    FILED FEBRUARY 11, 2019
    Dismissed.


text:
    Michael HANNAH, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, Respondent, and The State of Nevada, Real Party in Interest.
    No. 78051
    Supreme Court of Nevada.
    FILED FEBRUARY 08, 2019
    DENIED.


text:
    In the MATTER OF Resignation of Blaine F. BATES, Bar No. 5215.
    No. 78022
    Supreme Court of Nevada.
    FILED FEBRUARY 12, 2019
    Granted.


text:
    In the MATTER OF Resignation of Lynn L. STEYAERT, Bar No. 3337.
    No. 78029
    Supreme Court of Nevada.
    FILED FEBRUARY 12, 2019
    Granted.


text:
    In the MATTER OF Resignation of Davis F. VANDERVELDE, Bar No. 7943.
    No. 78032
    Supreme Court of Nevada.
    FILED FEBRUARY 12, 2019
    Granted.


text:
    In the MATTER OF Resignation of Victor Hugo SCHULZE, II, Bar No. 3596.
    No. 78027
    Supreme Court of Nevada.
    FILED FEBRUARY 12, 2019
    Granted.


text:
    In the MATTER OF the Petition for Change of Name by: Jason Nicholas Eleson GUNN.
    Jason Nicholas Eleson Gunn, Appellant.
    No. 77487
    Supreme Court of Nevada.
    FILED FEBRUARY 11, 2019
    Dismissed.


text:
    In the MATTER OF Resignation of Patrick J. SULLIVAN, Bar No. 9292.
    No. 78031
    Supreme Court of Nevada.
    FILED FEBRUARY 12, 2018
    Granted.


text:
    In the MATTER OF Resignation of Christopher J. WALKER, Bar No. 10465.
    No. 78033
    Supreme Court of Nevada.
    FILED FEBRUARY 12, 2019
    Granted.


text:
    KOO KWANG JUNG, Appellant, v. Eric A. NICKEL, Respondent.
    No. 77213
    Supreme Court of Nevada.
    FILED FEBRUARY 12, 2019
    Dismissed.


text:
    In the MATTER OF Resignation of Lisa G. LEWALLEN, Bar No. 7424.
    No. 78024
    Supreme Court of Nevada.
    FILED FEBRUARY 12, 2019
    Granted.


text:
    In the MATTER OF Resignation of Daniel Thomas FOLEY, Bar No. 8068.
    No. 78023
    Supreme Court of Nevada.
    FILED FEBRUARY 12, 2019
    Granted.


text:
    In the MATTER OF Resignation of Gregory E. SMITH, Bar No. 1590.
    No. 78028
    Supreme Court of Nevada.
    FILED FEBRUARY 12, 2019
    Granted.


text:
    In the MATTER OF Resignation of Yvonne N. MADDALENA, Bar No. 9367.
    No. 78025
    Supreme Court of Nevada.
    FILED FEBRUARY 12, 2019
    Granted.


text:
    Sally Dorian VILLAVERDE, Appellant, v. Brian WILLIAMS, Warden, Respondent.
    No. 77750
    Supreme Court of Nevada.
    FILED FEBRUARY 13, 2019
    DISMISSED.


text:
    Burhan CULCULOGLU, Appellant, v. Michelle L. CULCULOGLU, Respondent.
    No. 76796
    Supreme Court of Nevada.
    FILED FEBRUARY 13, 2019
    DISMISSED.


text:
    MUSCLEPHARM CORPORATION ; and Ryan Drexler, Petitioners, v. The FIRST JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CARSON CITY; and the Honorable James Todd Russell, District Judge, Respondents, and White Winston Select Asset Fund Series Fund MP-18, LLC ; White Winston Select Asset Funds, LLC; and Brent Baker, Real Parties in Interest.
    No. 78091
    Supreme Court of Nevada.
    FILED FEBRUARY 12, 2019
    DENIED.


text:
    Terry Gene BROWN, Appellant, v. James DZURENDA; Tito Buenocamino; Dr. Romero Aranas; Dr. George Leaks; Jamila Torres; George Pele Taino; Bob Faulkner; and the State of Nevada, Respondents.
    Terry Gene Brown, Appellant, v. James Dzurenda; Tito Buenocamino; Dr. Romero Aranas; Dr. George Leaks; Jamila Torres; George Pele Taino; Bob Faulkner; and the State of Nevada, Respondents.
    No. 77013 No. 77349
    Supreme Court of Nevada.
    FILED JANUARY 02, 2019
    Administratively close.


text:
    Leondrus MCBRIDE, Jr., Appellant, v. The STATE of Nevada, Respondent.
    No. 77870
    Supreme Court of Nevada.
    FILED FEBRUARY 13, 2019
    DISMISSED.


text:
    Michael Kevin GARDENHIRE, Appellant, v. The STATE of Nevada, Respondent.
    No. 77701
    Supreme Court of Nevada.
    FILED FEBRUARY 13, 2019
    DISMISSED.


text:
    Carlos VALEZ, Appellant, v. OFFENDER MANAGEMENT DIVISION OF NDOC, Respondent.
    No. 78013
    Supreme Court of Nevada.
    FILED FEBRUARY 13, 2019
    DISMISSED.


text:
    Nelson TORRES-ARCIGA, Appellant, v. The STATE of Nevada, Respondent.
    No. 77937
    Supreme Court of Nevada.
    FILED FEBRUARY 13, 2019
    DISMISSED.


text:
    LA MANCHA ESTATES EDITION HOMEOWNERS ASSOCIATION, INC., Appellant, v. Mason MALMUTH, Respondent.
    No. 76035
    Supreme Court of Nevada.
    FILED FEBRUARY 13, 2019
    DISMISSED.


text:
    MOTOR COACH INDUSTRIES, INC., Appellant, v. A. K. and K. K., Minors, BY AND THROUGH Their Guardian Marie-Claude RIGAUD; Siamak Barin, as Executor of the Estate of Kayvan Khiabani, M.D. (Decedent); The Estate of Kayvan Khiabani, M.D. (Decedent); Siamak Barin, as Executor of the Estate of Katayoun Barin, DDS (Decedent); and the Estate of Katayoun Barin, DDS (Decedent), Respondents.
    No. 75953
    Supreme Court of Nevada.
    FILED FEBRUARY 13, 2019
    DISMISSED.


text:
    Thomas Lamar COTTON, Appellant, v. The STATE of Nevada, Respondent.
    Thomas Lamar Cotton, Appellant, v. The State of Nevada, Respondent.
    No. 76885 No. 77994
    Supreme Court of Nevada.
    FILED FEBRUARY 13, 2019
    Dismiss.