## Facts

- Brian Rose spent an evening at a friend’s home after earlier handling a semiautomatic handgun with friends.
- Rose allowed friends to examine the gun and later regained possession of it.
- Rose went into the kitchen where his girlfriend, Jackie Watkins, was talking on the phone.
- Rose aimed the gun in Watkins’s general direction and told her to get off the phone.
- The gun discharged and shot Watkins in the head; she later died from the injury.
- Rose told investigators he did not intend to shoot Watkins and said he had been waving the gun around as a joke.
- The State charged Rose with murder with the use of a deadly weapon and pursued second-degree murder under a felony-murder theory, using assault with a deadly weapon as the predicate felony.
- Before trial, Rose moved to strike the felony-murder theory, arguing the merger doctrine barred using an assaultive felony (assault with a deadly weapon) as the basis for felony murder because it merges with the homicide.
- The trial court denied the motion and instructed the jury on second-degree felony murder based on assault with a deadly weapon.
- The jury convicted Rose of second-degree murder with the use of a deadly weapon; the trial court denied Rose’s post-trial motions for a new trial and to set aside the verdict.
- Rose appealed to the Nevada Supreme Court.

## Issues

1. Whether assault with a deadly weapon merges with the homicide (under the merger doctrine) and therefore cannot serve as the predicate felony for second-degree felony murder.
2. Whether the jury must decide, based on the manner in which the felony was committed, whether the predicate felony is “assaultive” and thus merges with the homicide.
3. Whether any instructional error concerning the felony-murder theory was harmless beyond a reasonable doubt.

## Decision

- The Nevada Supreme Court reversed Rose’s conviction and remanded for further proceedings.
- The court held that assaultive-type felonies involving a threat of immediate violent injury merge with a charged homicide for purposes of second-degree felony murder and cannot be used as the predicate felony.
- The court held the district court erred by failing to instruct the jury that it had to determine whether the predicate felony was assaultive based on how it was committed.
- The court concluded the instructional error was not harmless beyond a reasonable doubt because there was a reasonable possibility the jury relied on the improperly permitted felony-murder theory.

## Legal Principles

- The merger doctrine limits second-degree felony murder by barring the State from using an assaultive-type felony—one involving a threat of immediate violent injury—as the predicate felony when that felony is bound up with the homicide.
- For second-degree felony murder in Nevada, whether the alleged predicate felony is “assaultive” depends on the manner in which the felony was committed in the case, not only the statutory label of the offense.
- The jury must be instructed to decide whether the predicate felony is assaultive (and therefore merges), when the facts would permit that determination.
- When a jury is instructed on an invalid or improperly unconstrained felony-murder theory, reversal is required unless the State shows the error was harmless beyond a reasonable doubt.
- A felony-murder instruction can prejudice a defendant by allowing conviction without the findings otherwise required for murder (such as malice), so courts must ensure the predicate felony is legally available for felony-murder use.

## Conclusion

Rose v. State reversed a second-degree murder conviction because the State’s felony-murder theory used assault with a deadly weapon as the predicate felony without requiring the jury to determine whether the felony, as committed, was assaultive and therefore merged with the homicide; the Nevada Supreme Court held that assaultive-type felonies cannot support second-degree felony murder and that the instructional error was not harmless beyond a reasonable doubt.


Rose v. State, 127 Nev. 494, 255 P.3d 291 (2011)