TODD EVANS v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Todd Evans appeals from a district court order denying a petition to establish factual innocence filed on September 25, 2023. Second Judicial District Court, Washoe County; Barry L. Breslow, Judge.

Evans was convicted pursuant to a jury verdict for the battery, false imprisonment, kidnapping, and murder of T. Wilkinson. In his petition, Evans claimed he had newly discovered evidence that established his factual innocence: a declaration from R. Baker stating Evans was with her at her home from 4:30 a.m. to 5:00 a.m. the morning of the murder and a phone call Baker made to the Reno Police Department witness hotline where she “left a detailed message about him and possible whereabouts and him driving a white corvette [sic] and left my phone number.”¹ Evans alleged the declaration supported his claim that he left his home at 3:00 a.m., prior to the crimes occurring, and returned at approximately 5:00 a.m., after the crimes had occurred.² Baker's declaration further stated that she never heard back from police, relocated to Idaho after the crimes, and did not become involved in the case until she ran into Evans’ parents at her grandmother's funeral. Evans alleged he told counsel about Baker before trial, but he knew her under a different name at that time, and had been unable to locate her until she ran into his parents at her grandmother's funeral because she moved to Idaho. Although Evans testified at trial to the names of two other people he attempted to obtain drugs from during his absence from his home, he explained in his petition that he did not identify Baker during trial because he did not want to embarrass her given her family's connection to law enforcement. Baker's declaration described the interaction with Evans the morning of the crimes as “visit[ing] about old times and what we [had] been doing.”

A person who has been convicted of a felony may petition the district court for a hearing to establish their factual innocence. NRS 34.960(1). A petitioner is factually innocent if they did not (1) “[e]ngage in the conduct for which he or she was convicted,” (2) “[e]ngage in conduct constituting a lesser included or inchoate offense of the crime for which he or she was convicted,” (3) “[c]ommit any other crime arising out of or reasonably connected to the facts supporting the ․ information upon which he or she was convicted,” and (4) “[c]ommit the conduct charged by the State under any theory of criminal liability alleged in the ․ information.” NRS 34.920. The petition must contain supporting affidavits or other credible documents indicating that “[n]ewly discovered evidence exists ․ and, if credible, establishes a bona fide issue of factual innocence.” NRS 34.960(2)(a). ‘ “Newly discovered evidence’ means evidence that was not available to a petitioner at trial or during the resolution by the trial court of any motion to withdraw a guilty plea or motion for new trial and which is material to the determination of the issue of factual innocence.” NRS 34.930. ‘ “Bona fide issue of factual innocence’ means that newly discovered evidence presented by the petitioner, if credible, would clearly establish the factual innocence of the petitioner.” NRS 34.910. Evidence is material if it “establishes a reasonable probability of a different outcome.” NRS 34.940. The petition must also assert that “[n]either the petitioner nor the petitioner's counsel knew of the newly discovered evidence at the time of trial or sentencing or in time to include the evidence in any previously filed post-trial motion or postconviction petition.” NRS 34.960(3)(a).

The district court concluded the declaration and the witness hotline call did not constitute newly discovered evidence because the information was always available to Evans. In support of its conclusion, the district court found: (1) Evans acknowledged in his petition that he knew about his stop at Baker's home the entirety of the proceedings but did not present this information because he not did not want to embarrass her; (2) at the time of trial, Evans would have known he was at someone's house during the time of the murder and could have offered this evidence; (3) Evans acknowledged in his petition that trial counsel knew of Baker but chose not to use the information; and (4) Baker could have been located to testify through the exercise of reasonable diligence. These findings are supported by the record.

Further, the district court concluded the evidence was not material because it would not establish that Evans was not involved in the victim's death. In support of this conclusion, the district court found: (1) the accomplices testified Evans participated in the beating and shooting of the victim, and their testimony was corroborated by other evidence and (2) even if credible, Baker's declaration did not absolve Evans because it only accounted for his whereabouts from 4:30 a.m. to 5:00 a.m. while Evans alleged he was gone from 3:00 a.m. to 5:00 a.m. These findings are supported by the record. In light of these circumstances, we conclude the district court did not err by denying Evans’ petition, and we

ORDER the judgment of the district court AFFIRMED.³

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Evans did not attach a copy of the call to his petition but did attach police records he claimed show the existence of audio cassettes allegedly containing the purported call.

2.   Two accomplices, L. Hall and G. Rasco, testified for the State at trial that they were present when Evans committed the crimes. Evans testified in his own defense at trial that he left Wilkinson, Hall, and Rasco in his home prior to the homicide and went to various places in the Reno area to find methamphetamine. He further testified that when he returned to the house sometime after 5:00 a.m., Wilkinson was missing, there was blood on his floor, and Hall explained that Wilkinson was in Evans’ Jeep and that “it was personal” between Rasco and Wilkinson.

3.   Evans raises new arguments for the first time on appeal. We decline to consider them in the first instance. See State v. Wade, 105 Nev. 206, 209 n.3, 772 P.2d 1291, 1293 n.3 (1989). To the extent any of Evans’ arguments are not addressed in this order, we have considered those arguments and conclude they do not provide a basis for relief.