Lindsay v. State

Decision Date14 January 1971
Docket NumberNo. 5983,5983
Citation478 P.2d 1022,87 Nev. 1
PartiesGregory M. LINDSAY, Appellant, v. STATE of Nevada, Respondent.
CourtNevada Supreme Court
OPINION

THOMPSON, Justice.

A jury convicted Lindsay of the sale of marijuana to an undercover agent of the Reno Police Department. Substantial evidence supports the conviction, notwithstanding a conflict of testimony on material points. Of the several assigned errors, we find only one to possess merit and limit this opinion accordingly.

Over objection, the prosecutor was allowed to introduce evidence of two subsequent sales of marijuana by Lindsay to the same undercover agent. The basis upon which such evidence was offered and received is not clear from the record. Nevada follows the rule of exclusion concerning evidence of other offenses, unless such evidence is relevant to prove the commission of the crime charged with respect to motive, 1 intent, 2 identity, 3 the absence of mistake or accident, 4 or a common scheme or plan. 5 Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966). And, where the charge is a narcotic offense, other prior similar offenses may sometimes be received to show the defendant's knowledge of the narcotic nature of the substance sold. 6

As before noted, the record is not clear on what basis the evidence was offered and received. There is a hint that the prosecutor believed it admissible under the common scheme or plan exception to the exclusionary rule. If this was his belief, he was mistaken. Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967); Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959). Other than the mentioned hint, nothing appears to explain why the evidence was allowed. The court did not excuse the jury and first determined whether the probative value of the evidence outweighed its prejudicial impact upon the defendant. Cf. Nester v. State, supra; Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (1961). The jury was not instructed as to the limited purpose for which such evidence was received. Nester v. State, supra; Jones v. State, 85 Nev. 4, 448 P.2d 702 (1969); Dougherty v. State, 86 Nev. 507, 471 P.2d 212 (1970). Absent an appropriate instruction, the jury was free to use that evidence in anyway it desired and may have done so. Even when all safeguards concerning the reception of such evidence are observed prejudice is present, but the evidence is sometimes received because of the judge's belief that its probative value is essential to the case. When those safeguards are ignored the prejudice well may be devastating.

Reversed.

ZENOFF, C.J., BATJER and MOWBRAY, JJ., and MANN, District Judge, concur.

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7 cases
  • Hill v. State
    • United States
    • Supreme Court of Nevada
    • 9 Mayo 1979
    ...similar offenses may be received to show the accused's knowledge of the narcotic nature of the involved substance 6. Lindsay v. State, 87 Nev. 1, 478 P.2d 1022 (1971). The trial court, prior to admitting evidence of the sale of marijuana to the minor, excused the jury, heard an offer of pro......
  • Bigpond v. State
    • United States
    • Supreme Court of Nevada
    • 1 Marzo 2012
    ...announced in Molineux. See, e.g., Fairman v. State, 83 Nev. 137, 139, 425 P.2d 342, 343 (1967) (citing Molineux ); Lindsay v. State, 87 Nev. 1, 2–3, 478 P.2d 1022, 1022 (1971) (“Nevada follows the rule of exclusion concerning evidence of other offenses, unless such evidence is relevant to p......
  • Cirillo v. State
    • United States
    • Supreme Court of Nevada
    • 4 Junio 1980
    ...knowledge of the controlled nature of a substance, when such knowledge is an element of the offense charged, Lindsay v. State, 87 Nev. 1, 478 P.2d 1022 (1971); Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967); Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962); Wallace v. State, 77 Nev. 1......
  • Jacobs v. State
    • United States
    • Supreme Court of Nevada
    • 13 Marzo 1975
    ...same kind and type used in the commission of Alice Pablo's murder. Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959); Lindsay v. State, 87 Nev. 1, 478 P.2d 1022 (1971). 3. As to claimed errors 3 and 4, we perceive that the trial court was in error. NRS 50.095 provides that the credibility of......
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