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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

AUSTIN (JOSEPH) v. STATE (CRIMINAL)

Court of Appeals of Nevada

• Citations: 142 Nev. Adv. Op. No. 12

• Docket Number: 90577-COA

• Opinion

• Authorities (20)

• Cited By (0)

• Summaries (0)

• Similar Cases (3.3K)

• PDF

Combined Opinion

Court OF APPEALS
OF
NevADA

(©) 1947B hn

142 Nev., Advance Opinion |

IN THE COURT OF APPEALS OF THE STATE OF NEVADA

JOSEPH ROBERT AUSTIN, No. 90577-COA
Appellant,

THE STATE OF NEVADA, F LL. E LJ
Respondent. FEB 26 2026

sips
RT
BY :
CHIEF DEPUTY

Joseph Robert Austin appeals from a judgment of conviction,
entered pursuant to a jury verdict, for home invasion, two counts of
destruction of property, and attempted home invasion. Second Judicial
District Court, Washoe County; Connie J. Steinheimer, Judge.

Affirmed.

Richard F. Cornell, Reno,
for Appellant.

Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Jennifer P. Noble, Chief Appellate Deputy District
Attorney, Washoe County,

for Respondent.

BEFORE THE COURT OF APPEALS, BULLA, C.J., and GIBBONS and
WESTBROOK, Ju.

2b6-o0xF9F4F

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OPINION
By the Court, BULLA, C.J.:

To be convicted of home invasion, an individual must forcibly
enter a dwelling, without permission of the owner, resident, or lawful
occupant of the dwelling. NRS 205.067(1). For purposes of the home
invasion statute, a “dwelling” includes “any structure, building, house,
room, [or] apartment... including, without hmitation, any part thereof
that is divided into a separately occupied unit... [i]n which any person
lives.” NRS 205.060(6)(b).

In this opinion, we must determine whether an attached garage
is part of a “dwelling” for purposes of the home invasion statute. Applying
the plain language of NRS 205.060(6)(b), we hold that when a garage is
attached to the other rooms of a house, it 1s part of the structure in which
the owner, resident, or lawful occupant lives, and thus is part of the dwelling
for purposes of the statute. As a result, when an individual forcibly enters
an attached garage, without permission of the owner, resident, or lawful
occupant, they have entered a dwelling and committed the crime of home
invasion under NRS 205.067(1). In this case, because the State presented
sufficient evidence that Austin forcibly entered an attached garage, without
permission of the residents, we affirm his home invasion conviction.

Austin also challenges his conviction for attempted home
invasion based on his attempt to forcibly enter the dwelling through the
laundry room door, which occurred the day after the home invasion
involving entry into the garage. Attempted home invasion involves an
intent to forcibly enter a dwelling without permission of the owner, resident,
or lawful occupant; performance of some act towards the commission of a

home invasion; and failure to consummate the home invasion. See Moffett

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v. State, 96 Nev. 822, 824, 618 P.2d 1223, 1224 (1980); NRS 193.153(1), On
appeal, Austin only disputes whether he intended to commit a home
invasion. Because there was sufficient circumstantial evidence to allow a
reasonable jury to find Austin intended to forcibly enter the dwelling
through the laundry room door without the residents’ permission, his
argument does not provide a basis for relief. And because Austin does not
argue that the State failed to prove the other elements of attempted home

invasion, we affirm his conviction.

FACTS AND PROCEDURAL HISTORY
On the night of May 28, 2024, Austin forcibly removed a window

panel on an exterior door leading into a garage attached to Ryan and Robin
Slaydens’ residence. He then unlocked the door and entered the garage.
Austin later claimed that he saw a person he knew named James at the
Slaydens’ residence and entered the garage to find him. After entering the
garage, Austin kicked the door leading from the garage into the laundry
room. Ryan, who responded to noise in the garage, confronted Austin, who
left. Robin called 9-1-1 and reported the incident. Police officers responded
to the Slaydens’ residence but were unable to locate Austin.

The next day, May 29, Austin again believed that he saw James
at the Slaydens’ residence and once again entered the garage, this time
apparently without using force. He then began forcefully “bang[ing] on the
door” leading into the laundry room inside the residence. The force Austin
used was such that it bowed in the door, impairing the door’s locking
mechanism. Ryan again confronted Austin, who left the garage, stopping
near a fence next to the Slaydens’ property line. According to Austin’s
subsequent testimony, he asked Ryan about James. However, Ryan

testified that Austin yelled that either Ryan or Robin had stolen his money

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and that they owed him. Austin eventually left the Slaydens’ property and
was later arrested.

The State charged Austin with home invasion, in violation of
NRS 205.067, for the May 28 act of forcibly entering the garage, and
attempted home invasion, in violation of NRS 205.067 in conjunction with
NRS 193.153(1)(a)(3), for use of physical force resulting in damage to the
laundry room door with intent to enter on May 29.!

At trial, Ryan and Robin testified regarding the events of
May 28 and May 29, including the damage to both the garage and laundry
room doors. Pictures depicting the damage to the doors were also shown to
the jury.

During Austin’s testimony, he admitted to damaging the
Slaydens’ exterior garage door and entering the garage on May 28 and
entering the garage and “bang[ing] on” the laundry room door on May 29.
However, Austin maintained that his intent on both days was only to find
James, not to enter the Slaydens’ residence. Austin described how, on
May 28, he thought he saw James and went to investigate. Austin asserted
that he subsequently saw a person in the garage with “a blue light on him,”
who invited Austin into the garage “so [he] could do music.” Austin claimed
he again saw James at the Slaydens’ residence and went to investigate on
May 29. Regarding banging on the laundry room door on this date, Austin

stated that he did so because he was “trying to see who [was] in this house.”

lIn addition to the home invasion and attempted home invasion
charges, Austin was also charged with burglary and two counts of
destruction of property.

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Austin also testified that he had been diagnosed with bipolar disorder and
was not taking any medication.

Because of Austin’s alleged underlying mental condition, the
State proffered a jury instruction stating that Nevada law does not
recognize a diminished-capacity defense for the crimes charged but that
evidence of a defendant’s mental illness or defect could be considered for the
purpose of considering whether the requisite intent was formed for specific
intent crimes. The instruction noted, among other things, that “the
existence or effect of a mental illness or defect is not a defense to [hlome
[i]Jnvasion ... and may not be considered in determining the existence of the
intent element of [that] offense[ ].”

Austin objected to the instruction, arguing that he was not
presenting a diminished-capacity defense; instead, he was arguing that he
did not have the requisite intent to steal for purposes of the burglary charge.
In response, the State argued that, regardless of the defense’s position,
there was evidence regarding Austin’s mental condition, and therefore the
State did not want the jury to be confused about how it was to consider that
evidence. Ultimately, the district court gave the State's proffered
diminished-capacity instruction, which Austin agreed was an accurate
statement of the law.

In its closing, and in support of the burglary charge, the State
pointed to circumstantial evidence that Austin entered the garage with the
intent to steal. Additionally, addressing the diminished-capacity
instruction, the State asserted that while Austin’s actions were “odd,”
“whatever mental diagnoses he may have had” did not negate his “very

formulated, very deliberate intent.”

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The defense, in closing, conceded many of the material elements
of the charged crimes, including that Austin forcibly entered the garage
without permission. But Austin’s counsel reminded the jury that it “[had]
the definition of what a dwelling is” and argued that the jury should not
find that the garage was part of the dwelling as it was not inhabited nor did

-anyone reside init. The defense further argued that Austin did not have an

intent to steal, nor did he intend to enter the laundry room on May 29.
Austin’s counsel acknowledged the diminished-capacity jury instruction but
asserted that what Austin claimed he saw in the garage-—his friend James
or another person in a blue light beckoning to him—‘shows his intent was
not to go into that house and steal anything.” Relevant here, the jury
ultimately convicted Austin of home invasion and attempted home
invasion.” This appeal followed.
ANALYSIS

On appeal, Austin challenges only his convictions for home
invasion and attempted home invasion. He also challenges the district
court's decision to give the diminished-capacity instruction. We address
each of Austin’s challenges below.

An attached garage is part of a dwelling for purposes of the home invasion
statute (NRS 205.067)

Austin was convicted of home invasion under NRS 205.067,
which provides that “[a] person who, by day or night, forcibly enters a
dwelling without permission of the owner, resident or lawful occupant,

whether or not a person is present at the time of the entry, is guilty of

2Austin was found not guilty on the burglary charge. While Austin
was convicted on the two destruction of property charges, he does not
challenge those convictions on appeal.

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invasion of the home.” NRS 205.067(1). For purposes of NRS 205.067,
“(d]welling’ has the meaning ascribed to it in NRS 205.060,” which states:

“Dwelling” means any structure, building, house,
room, apartment, tenement, tent, conveyance,
vessel, boat, vehicle, house trailer, travel trailer,
motor home or railroad car, including, without
limitation, any part thereof that is divided into a
separately occupied unit:

(1) In which any person lives; or

(2) Which is customarily used by a person for
overnight accommodations... .

NRS 205.067(5)(a); NRS 205,060(6)(b).

In challenging his home invasion conviction, Austin does not
dispute that he forcibly entered the Slaydens’ attached garage without
permission. Instead, Austin argues that, for purposes of the home invasion
statute, a dwelling does not include parts of a structure in which no person
lives or customarily uses for overnight accommodations, such as the
Slaydens’ attached garage.* We disagree.

“TWle review questions of statutory interpretation de novo.”

State v. Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011). Statutory

3While Austin also argues that NRS 205.067(1) was partially repealed
by implication by the 2015 enactment of NRS 205.0813, that argument was
forfeited as Austin failed to raise it before the district court. See Jeremias
v. State, 134 Nev. 46, 50, 412 P.3d 43, 48 (2018) (providing that failure to
preserve an error forfeits the right to assert it on appeal). But even if we
were to consider that argument, it would not provide a basis for relief
because the version of NRS 205.067 under which Austin was convicted is
materially different from the version in effect when NRS 205.0813 was
enacted in 2015. See 2019 Nev. Stat., ch. 633, § 56, at 4427 (amending NRS
205.067(1) to apply to a forceable entry into “a dwelling” rather than a
forceable entry into “an inhabited dwelling”).

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interpretation begins by considering legislative intent. Jd. “The starting
point for determining legislative intent is the statute’s plain meaning: when
a statute ‘is clear on its face, a court cannot go beyond the statute.” Id.
(quoting Robert E. v. Just. Ct., 99 Nev. 443, 445, 664 P.2d 957, 959 (1983));
see Judd v. State, 140 Nev., Adv. Op. 21, 547 P.3d 138, 142 (Ct. App. 2024).

According to Austin, because the definition of “dwelling” set
forth in NRS 205.060(6)(b)(1), and utilized by the home invasion statute,
“includ[es|, without limitation, any part thereof that is divided into a
separately occupied unit .. . [i]n which any person lives,” any portions of the
structure that could not be partitioned into a separate, occupied unit, like
an attached garage, cannot be considered a “dwelling.” But Austin’s
argument runs contrary to the plain language of that definition.

Specifically, NRS 205.060(6)(b)(1) provides that a dwelling is
“any structure, building, house, room, [or] apartment... including, without
limitation, any part thereof that is divided into a separately occupied
unit... [iJn which any person lives.” And here, because the Slaydens’
garage was attached to the other rooms of the house, it was part of the
“structure” in which they lived. Cf. Structure, Black’s Law Dictionary (12th
ed. 2024) (defining “structure” as “[a]ny construction ... composed of parts
purposefully joined together”).

Extrajurisdictional cases addressing similar statutory
language support this conclusion. See, e.g., Commonwealth v. Tinsley, 167
N.E.3d 861, 868-69 (Mass. 2021) Gnterpreting “dwelling place of another”
to include an attached garage); State v. Otto, 529 N.W.2d 193, 196 (S.D.
1995) (holding that “occupied structure” includes an attached garage
because “[a] garage which is attached to a house logically is all part of the

same building, and thus is part of the house or occupied structure” for

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purposes of a burglary statute); State v. Murbach, 843 P.2d 551, 553 (Wash.
Ct. App. 1993) Gnterpreting “any building. .., or a portion thereof, which
is used or ordinarily used by a person for lodging” to include an attached
garage because it “is a ‘portion’ of a building used as lodging” for a
residential burglary statute); People v. Fox, 68 Cal. Rptr. 2d 424, 427 (Ct.
App. 1997) (holding that “when a garage is attached to an inhabited
dwelling, it is to be considered a part of the inhabited dwelling” for a
residential burglary statute); People v. Ramsey, 107 N.E.3d 443, 448-49 (11.
App. Ct. 2018) (noting that “normally an attached garage is part of the
dwelling because it is part of the structure in which the owner lives”).
Tellingly, Austin fails to cite any authority holding that an
attached garage is not considered part of a dwelling. See Maresca v. State,
103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (explaining that this court need not
consider an appellant’s argument that is not supported by relevant
authority). Accordingly, we reject Austin’s statutory construction

argument.®

‘Austin’s reliance on Corona v. Superior Court is unavailing as that
case expressly contrasted the detached garage at issue there with attached
garages, which are considered part of a dwelling for purposes of the relevant
California statute. 280 Cal. Rptr. 3d 285, 290-92 (Ct. App. 2021).

5To the extent Austin argues that the language in NRS
205.060(6)(b)(1) providing that a dwelling “includ[es], without limitation,
any part thereof that is divided into a separately occupied unit... fiJn
which any person lives” limits “dwellings” to occupied portions of a
structure, that argument is unavailing. The use of statutory language that
a definition “includ{es], without limitation” implies enlargement rather
than restriction. See Platte River Ins. Co. v. Jackson, 137 Nev. 773, 777,
500 P.3d 1257, 1261 (2021) (holding that the legislature’s use of “including,
without limitation” did not restrict the lst to things enumerated).

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The State presented sufficient evidence to convict Austin. of home invasion

We now turn to whether sufficient evidence supports Austin’s
conviction for home invasion. When considering sufficiency of the evidence,
the test is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Guerrina v. State, 134
Nev. 338, 343, 419 P.3d 705, 710 (2018) (quoting Milton uv. State, 111 Nev.
1487, 1491, 908 P.2d 684, 686-87 (1995)). To convict a defendant of home
invasion, the State must show that the defendant: (1) “forcibly enter[ed] a
dwelling,” (2) “without permission of the owner, resident or lawful
occupant.” NRS 205.067(1).

Here, Austin does not dispute that he forcibly entered the
attached garage without the Slaydens’ permission on May 28. And the
record demonstrates that Austin forcibly entered the garage by breaking a
window pane of the exterlor garage door, unlocking it, and entering. See
NRS 205.067(5)(b) (defining “forcibly enters” to mean “the entry of an
inhabited dwelling involving any act of physical force resulting in damage
to the structure”). Additionally, Ryan testified that Austin was not
permitted to enter the Slaydens’ residence. As the Slaydens’ attached
garage is part of their dwelling, sufficient evidence was presented for the
jury to conclude Austin forcibly entered their dwelling without permission.
Accordingly, there was sufficient evidence to convict Austin of home
invasion under NRS 205.067.

The State presented sufficient evidence to convict Austin of attempted home
LILVASLON.

Austin also challenges his conviction for attempted home

invasion for the May 29 incident. Austin contends that his mere act of

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banging on the Slaydens’ door cannot support his conviction as the evidence
did not support the conclusion that he intended to break into the residence.
Instead, Austin insists that he was simply trying to get the Slaydens’
attention. For the reasons set forth below, we conclude that the State
presented sufficient evidence to support his conviction.

“To prove an attempt to commit a crime, the prosecution must
establish (1) the intent to commit the crime; (2) performance of some act
towards its commission; and (3) failure to consummate its commission.”
Moffett, 96 Nev. at 824, 618 P.2d at 1224. Austin challenges only the first
element: the intent to commit the crime of home invasion.

“Intention is manifested by the circumstances connected with
the perpetration of the offense, and the sound mind and discretion of the
person accused.” NRS 193.200. “[I]ntent need not be proved by positive or
direct evidence, but may be inferred from the conduct of the parties and the
other facts and circumstances disclosed by the evidence.” Moore v. State,
122 Nev. 27, 36, 126 P.3d 508, 518 (2006) (quoting Larsen v. State, 86 Nev.
451, 453, 470 P.2d 417, 418 (1970)). Further, “circumstantial evidence may
constitute the sole basis for a conviction.” Washington v. State, 132 Nev.
655, 661, 376 P.3d 802, 807 (2016) (quoting Canape v. State, 109 Nev. 864,
869, 859 P.2d 1023, 1026 (1993)).

Here, the record shows that on May 29, Austin entered the
Slaydens’ garage and began banging on the door to the laundry room with
such force that it bowed and cracked and the door’s lock was damaged.
Robin characterized Austin banging on the door as “kicking . .. like it was
trying to be kicked in.” And Ryan testified that he assumed Austin was
breaking into their house again. In addition, the jury was presented with

photographs depicting the damage to the laundry room door.

ll

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Thus, there was significant circumstantial evidence that Austin
intended to forcibly enter a part of the structure in which the Slaydens lived
without their permission. See Moore, 122 Nev. at 36, 126 P.3d at 513: NRS
205.067(1). While Austin claimed he merely intended to get the Slaydens’
attention, a reasonable jury could find otherwise. Accordingly, because
Austin does not contend that the State failed to prove the other elements of
attempted home invasion, he has not demonstrated that his conviction
should be overturned.

Austin forfeited his arguments regarding the diminished-capacity jury
instruction

Finally, Austin challenges the district court’s decision to give a
diminished-capacity jury instruction, arguing it improperly defined home
invasion “as a general intent offense in a way that” prevented him from
presenting a mistake-of-fact defense.

While Austin objected to the use of the diminished-capacity
instruction below, his objection was not premised on the instruction’s
purported impact on his ability to present a mistake-of-fact defense.®
Moreover, the record demonstrates that Austin never proffered a mistake-
of-fact instruction. Generally, the defense only applies to crime for which

“specific intent is an element.” Jenkins v. State, 110 Nev. 865, 868, 877 P.2d

6At trial, Austin focused on the instruction’s alleged impact on specific
intent crimes, as opposed to the general intent crime of home invasion. See
Truesdell v. State, 129 Nev. 194, 202, 304 P.3d 396, 401 (2013) (stating that
“invasion of the home is a general intent crime’). But Austin does not raise
this argument on appeal, and thus he has forfeited it. See Palmieri v. Clark
County, 131 Nev. 1028, 1033 n.2, 367 P.3d 442, 446 n.2 (Ct. App. 2015)
(citing Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d
668, 672 n.3 (2011), for the proposition that issues an appellant does not
raise on appeal are forfeited).

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1063, 1065 (1994). Thus, Austin’s argument that the diminished-capacity
jury instruction prevented him from presenting a mistake-of-fact defense to
the general intent home invasion charge is unavailing.’ See McKenna v.
State, 114 Nev. 1044, 1052, 968 P.2d 739, 745 (1998) (“Failure to . . . request
a jury instruction precludes appellate review, unless the error is patently
prejudicial and requires the court to act sua sponte to protect the
defendant's right to a fair trial.”).

CONCLUSION
We hold that an attached garage constitutes part of a dwelling

for purposes of the home invasion statute, such that when an individual
forcibly enters the garage without permission of the owner, resident, or
lawful occupant of the dwelling, a home invasion has been committed. And
because sufficient evidence was presented that Austin forcibly entered the
Slaydens’ attached garage without their permission, we affirm Austin’s
conviction for home invasion related to the May 28 incident. Regarding the
attempted home invasion conviction, sufficient circumstantial evidence was
presented to allow the jury to conclude Austin intended to forcibly enter the
Slaydens’ residence on May 29 without their permission. And because

Austin does not assert that the State failed to prove the other elements of

7Austin also points to NRS 194.010(7), which exempts from criminal
liability “[p]ersons who committed the act or made the omission charged,
through misfortune or by accident, when it appears that there was no evil
design, intention or culpable negligence.” But Austin failed to raise NRS
194.010(7) below, improperly raises this statute for the first time in his
reply brief, and supplies no cogent argument in support of its application.
See Cooper v. State, 134 Nev. 860, 861 n.2, 432 P.38d 202, 204 n.2 (2018)
(declining to consider an argument raised for the first time in a reply brief);
Maresca, 103 Nev. at 673, 748 P.2d at 6 (explaining that this court need not
consider issues that are not cogently argued).

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this crime, we affirm Austin’s attempted home invasion conviction related

to the May 29 incident. We therefore affirm the judgment of conviction.

—~.. , Cad.

Bulla
We concur:
4 %
Gibbons *
Westbrook
14