93 Nev. 638 572 P.2d 211

FRANK ERNEST LEWIS, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 9420

December 21, 1977

572 P.2d 211

Morgan D. Harris, Public Defender, and John H. Howard, Deputy Public Defender, Clark County, for Appellant.

Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and H. Leon Simon, Chief Appellate Deputy, Clark County, for Respondent.

*639OPINION

Per Curiam:

Appellant was convicted by jury of robbery, a violation of NRS 200.380, and, pursuant to NRS 193.165, received an enhanced sentence for use of a deadly weapon in commission of that crime.1 See Woofter v. O’Donnell, 91 Nev. 756, 542 P.2d 1396 (1975). Appellant’s principal contentions are the district court erred in denying his motions for a mistrial, and for a new trial. We disagree.

1. Appellant contends his motion for a mistrial should have been granted because an unknown third party had attempted to influence the verdict of a juror.

After both the prosecution and defense rested their cases, but before jury instructions or closing arguments, a woman juror reported to the bailiff she had received a threatening telephone call from a person unknown to her. At an inquiry held outside the presence of the other jurors, the woman juror testified the caller had told her she “had best make the right decision or she was in trouble.” Asked by the court if she could continue as a juror and render a fair and just decision, *640she replied that she could. The court then stated its satisfaction that the incident would not contaminate either the verdict or the jury deliberations.

Under these circumstances, appellant carries the burden of showing he has been prejudiced by the threatening telephone call. State v. Jordan, 320 P.2d 446 (Ariz. 1958); cf. Parks v. State, 457 P.2d 818 (Okla.Crim.App. 1969). This he has totally failed to do and, accordingly, his motion for a mistrial was properly denied. See State v. Jordan, cited above.

2. Appellant also contends his motion for a new trial should have been granted on the grounds that improper and prejudicial statements made in the prosecutor’s closing argument deprived him of a fair trial. However, the purported improper statements are not included in the record, and, thus, we are unable to consider and resolve his contention. See Johnstone v. State, 93 Nev. 427, 566 P.2d 1130 (1977).

Other issues raised by appellant are without merit.

Affirmed.

Lewis v. State
93 Nev. 638 572 P.2d 211

Case Details

Name
Lewis v. State
Decision Date
Dec 21, 1977
Citations

93 Nev. 638

572 P.2d 211

Jurisdiction
Nevada

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