BOLDEN v. STATE (2022)

ORDER OF AFFIRMANCE 2

Appellant first argues that the district court erred in allowing the State to file an information by affidavit when the State did not provide an affidavit in support of the motion. Because appellant did not oppose the motion or otherwise object below, any error was forfeited.³ Jeremias v. State, 134 Nev. 46, 50, 412 P.3d 43, 48 (2018) (discussing forfeited error). And we decline to exercise our discretion to consider a forfeited error here. See id. at 52, 412 P.3d at 49 (recognizing this court's discretion to consider forfeited errors).

Appellant next claims that there was insufficient evidence of identity because the victim that identified appellant as the perpetrator at trial did not identify appellant at the preliminary hearing. We “view[ ] the evidence in the light most favorable to the prosecution,” to determine whether, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia., 443 U.S. 307, 319 (1979)). The victim explained at trial that he lied at the preliminary hearing because he did not want to aid in the investigation but later decided to “deal with the situation” after receiving numerous subpoenas. And other evidence identified appellant as the perpetrator, including a 911 call and the victim's photo identification, both made shortly after the shooting. “[I]t is the jury's function, not that of the court, to assess the weight of the evidence and determine the credibility of witnesses,” id., and based on the evidence presented, we conclude that a rational juror could have found beyond a reasonable doubt that appellant was the perpetrator. Based on the foregoing, we

ORDER the judgment of conviction AFFIRMED.

I concur in the result only.

FOOTNOTES

3.   And we further conclude that appellant fails to show an error apparent from a casual inspection of the record that affected his substantial rights as he was later convicted of the charges beyond a reasonable doubt following a jury trial. See Jeremias v. State, 134 Nev. 46, 50, 412 P.3d 43, 48 (2018) (discussing plain error review of otherwise forfeited assertions of error).