Wynn Las Vegas Resort

GIBBONS, DOUGLAS and PARRAGUIRRE, JJ., concur.

MAUPIN, J., with whom HARDESTY, J., agrees, concurring:

I concur in the result reached by the majority. I write separately to point out an additional error in the admission of evidence concerning Phillips' 1983 and 1992 convictions, and the State's arguments thereon.

The prosecution clearly overplayed its hand in its closing remarks to the jury. As noted by Justice Rose, the prosecutor argued that this case involved the "same game, different victim" in referring to the prior convictions. This argument improperly treated the prior misconduct as character evidence, not for the stated other purposes under NRS 48.045(2). [FN1] Going further, the State's justification for admission of the prior bad act evidence strains credulity--conduct leading to convictions years before was not part of a common scheme to extort and stalk the victims in this case.

FN1. NRS 48.045(2) provides that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

While I agree that the admission of the evidence and the arguments do not compel reversal, I want to stress that there was no excuse for making arguments that endangered an otherwise strong case.

HARDESTY, J., concurs.

ROSE, J., concurring in part and dissenting in part:

I concur in the reversal of the extortion convictions for the reason stated, but I would also reverse the aggravated stalking charges and dissuading a witness from testifying because I do not believe the prior bad act evidence that was improperly admitted was harmless beyond a reasonable doubt.

The State's first five witnesses testified about two prior incidents that resulted in convictions against Mr. Phillips. The first was a 1982 incident where Phillips approached a bank teller, shoved a bag at her, and told her to fill it up. Phillips had his hand in his coat, implying that he had a gun. She asked loudly if this was a robbery and Phillips left. He was arrested jogging away from the bank and apparently intoxicated. A gun was never found. The second conviction was for the possession of a concealed weapon in 1991. Phillips approached a patron at a bar in San Francisco and demanded that he buy him a beer. Phillips then reached into his pocket, pulled out a bullet, and placed it in front of the patron, stating it had the stranger's name on it. Phillips pulled his coat back and revealed a pistol in a shoulder holster. Phillips then scooped up the change from the bar, told the man that if he said anything, he'd blow his head off, and ran. Phillips was arrested and found in possession of a loaded revolver. The man at the bar testified that Phillips was "threatening, intimidating, and scary."