Walklin (Frank) v. State

by the time the error was noticed, the correct video had been recorded over.

A defendant is entitled to the dismissal of charges if the State, acting in bad faith, fails to gather material evidence. Daniels, 114 Nev. at 267, 956 P.2d at 115. Here, the video was not material because there is no reasonable probability that, had it been available to the defense, the result of the proceedings would have been different; appellant's assertion that the video would have been favorable is simply a "hoped-for conclusion." Orfield v. State, 105 Nev. 107, 109, 771 P.2d 148, 149 (1989) (quoting Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979)). And under the circumstances presented, appellant fails to demonstrate that the State acted in bad faith. Rather, the failure to collect the video was the result of mere negligence, and therefore the appropriate remedy was for the defense to probe law enforcement's investigative deficiencies, as the district court permitted. See Daniels, 114 Nev. at 267, 956 P.2d at 115. Accordingly, we

ORDER the judgment of conviction AFFIRMED.

Pickering

J.

cc: Hon. Michelle Leavitt, District Judge

Blaine D. Beckstead

Attorney General/Carson City

Clark County District Attorney

Eighth District Court Clerk

SUPREME COURT

OF

NEVADA

10) 1947A aNStitp