Bennett v. State

• Court: Nevada Supreme Court
• Citation: Bennett v. State, 281 P.3d 1154 (Nev. 2009)
• Decision Date: 23 November 2009
• Docket Number: No. 50827.,50827.
• Parties: Cassio Lataurius BENNETT, Appellant, v. The STATE of Nevada, Respondent.

281 P.3d 1154

Cassio Lataurius BENNETT, Appellant,

v.The STATE of Nevada, Respondent.

No. 50827.

Supreme Court of Nevada.

Nov. 23, 2009.

Philip J. Kohn, Clark County Public Defender.

Catherine Cortez Masto/Carson City, Attorney General.

David J. Roger, Clark County District Attorney.

ORDER AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of trafficking in a controlled substance and allowing a child to be present during certain violations of NRS Chapter 453. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.

After surveilling an apartment for several months, the Las Vegas Metropolitan Police Department obtained a search warrant for drugs and narcotics paraphernalia and raided the residence. Appellant Cassio Lataurius Bennett was found inside, along with Dijeanette Gupton, Wendy Brown, and two minor children, D.B. and R.R. Bennett is not related to either of the minor children. Bennett and Gupton were arrested. Bennett was charged by amended information with trafficking in a controlled substance in violation of NRS 453.3385, and allowing a child to be present during certain violations of NRS Chapter 453, in violation of NRS 453.3325. Following a two-day trial, Bennett was convicted of and sentenced on both counts.

On appeal, Bennett argues that: (1) NRS 453.3325 is unconstitutionally vague, (2) count two of the amended information did not contain all of the essential elements of NRS 453.3325, (3) the district court abused its discretion when it allowed the testimony of Wendy Brown because she was an incompetent witness, (4) there was insufficient evidence to support the verdict, (5) two of the jury instructions were improper, and (6) his conviction and sentencing for violating both NRS 453.3385 and NRS 453.3325 constituted double jeopardy because NRS 453.3385 is a lesser-included offense of NRS 453.3325.

For the reasons set forth below, we affirm the district court's judgment of conviction in part, reverse in part, and remand this matter to the district court for further proceedings consistent with this order. We conclude that Bennett's double jeopardy argument has merit, but Bennett's other contentions are without merit. As the parties are familiar with the facts of this case, we do not recount them except as necessary to our disposition.

DISCUSSION

NRS 453.3325 is not unconstitutionally vague

NRS 453.3325 prohibits allowing a child to be present during the commission of certain violations of NRS Chapter 453 that involve controlled substances other than marijuana. Bennett argues that the statute is unconstitutionally vague because it does not adequately define three terms, making it unclear what constitutes allowing “a child to be present ... upon any premises wherein a controlled substance other than marijuana ... [i]s being sold.” ¹NRS 453.3325(1)(b) (emphases added). Bennett asserts that NRS 453.3325(1) fails to provide sufficient notice to enable an ordinary person to understand what conduct is prohibited, and (2) encourages arbitrary and discriminatory enforcement because it does not sufficiently explain the specific acts that constitute a violation of the statute. The State asserts that Bennett does not have standing to challenge the statute and that a plain reading of the statute makes clear the meaning of each word Bennett contests. We conclude that Bennett has standing and also determine that NRS 453.3325 is not unconstitutionally vague.

A statute's constitutionality is a question of law that this court reviews de novo. Nelson v. State, 123 Nev. 534, 540, 170 P.3d 517, 522 (2007). Statutes are presumed valid and the challenger of the law has the burden of proving its unconstitutionality. Id.

A law is unconstitutionally vague if it: “(1) fails to provide notice sufficient to enable ordinary people to understand what conduct is prohibited; and (2) authorizes or encourages arbitrary and discriminatory enforcement.” City of Las Vegas v. Dist. Ct., 118 Nev. 859, 862, 59 P.3d 477, 480 (2002). “ ‘[A] statute will be deemed to have given sufficient warning as to proscribed conduct when the words utilized have a well settled and ordinarily understood meaning when viewed in the context of the entire statute.’ “ Nelson, 123 Nev. at 540–41, 170 P.3d at 522 (quoting Williams v. State, 118 Nev. 536, 546, 50 P.3d 1116, 1122 (2002)). “Although ‘there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls,’ such a limitation is not sufficient to determine that a criminal statute is unconstitutional.” Id. at 541, 50 P.3d 1116, 170 P.3d at 522 (quoting United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947)). Further, one who engages in clearly proscribed conduct cannot complain of the law's vagueness as applied to the conduct of others. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

Bennett has standing to challenge NRS 453.3325 because it is clear that he is challenging the statute as it applies to him. See id. Bennett contends that the words “present,” “upon,” and “wherein” are vague. The words that Bennett contests all have well settled and ordinarily understood meanings when viewed in the context of the entire statute. See Nelson, 123 Nev. at 541, 170 P.3d at 522. To be “present” means to be at a “specified or understood place.” Webster's College Dictionary 1029 (2d ed.1997). To be “ upon ” any premises means to be in contact with the premises. See id. at 1411, 170 P.3d 517 (emphasis added). The term “premises” is defined in NRS 453.3325 as being “any temporary or permanent structure.” NRS 453.3325(4)(c). Further, “wherein” means “in what or in which.” See id. at 1463, 170 P.3d 517.

A person violates NRS 453.3325 if he allows a child to be either in the same room where the NRS Chapter 453 violation is happening or merely in the same residence when the violation occurs. We conclude that NRS 453.3325 is not unconstitutionally vague because it (1) “provide[s] notice sufficient to enable ordinary people to understand what conduct is prohibited,” and (2) adequately defines the forbidden conduct so that it does not “authorize[ ] or encourage[ ] arbitrary and discriminatory enforcement.” See City of Las Vegas, 118 Nev. at 862, 59 P.3d at 480.

The amended information was proper

Bennett contends that count two of the amended information omitted two essential elements of NRS 453.3325.² First, Bennett asserts that the information did not notify him of which specific proscribed action he was being charged with committing while a child was present on the premises. Second, Bennett contends that the information did not notify him of whether he participated in the proscribed action as a principal, conspirator, or aider and abettor.

Where a defendant raises a question of the sufficiency of an information for the first time on appeal, the information “ ‘will not be held insufficient to support the judgment, unless it is so defective that by no construction, within the reasonable limits of the language used, can it be said to charge the offense for which the defendant was convicted.’ “ Laney v. State, 86 Nev. 173, 178, 466 P.2d 666, 670 (1970) (quoting State v. Hughes, 31 Nev. 270, 272–73, 102 P. 562, 562 (1909)).

The purpose of an information is to put the defendant on notice of the crimes with which he is being charged. Id. at 178,466 P.2d 666,466 P .2d at 669. An “information must be a plain, concise and definite written statement of the essential facts constituting the offense charged.” NRS 173.075(1). It is permissible for a single count to allege that the defendant committed the crime “by one or more specified means.” NRS 173.075(2). Further, an information's sufficiency is determined by practical, not technical, standards and will not be deemed defective if it could have been “more definite and certain.” Laney, 86 Nev. at 178, 466 P.2d at 669.

While the amended information lists multiple means by which he may have violated NRS 453.3325, pursuant to NRS 173.075(2), this was not improper. The State may set forth more than one manner by which Bennett may have violated NRS 453.3325. SeeNRS 173.075(2). Therefore, even if count two of the amended information could have been more precise, the manner in which it was pled is proper. Bennett also claims that it was error for the State to fail to notify him whether he was being charged as a principal, conspirator, or aider and abettor. The amended information clearly charges Bennett with violating NRS 453.3325. See Laney, 86 Nev. at 178, 466 P.2d at 669. Therefore, we conclude that count two of the amended information sufficiently put Bennett on notice of the crime that he was being charged with violating. ³

Wendy Brown was a competent witness

Bennett contends that the district court abused its discretion when it permitted Wendy Brown to testify because she was an incompetent witness who based her testimony on unfounded suspicion and speculation, rather than on personal knowledge. We disagree.

A “trial court's [decision] to admit or exclude evidence is given great deference and will not be reversed absent manifest error .” Baltazar–Monterrosa v. State, 122 Nev. 606, 613–14, 137 P.3d 1137, 1142 (2006).

A witness is competent to testify to a fact if there is evidence that he has personal knowledge of the matter. NRS 50.025(l)(a). A person has personal knowledge of a fact that “he has personally observed.” State v. Vaughn, 101 Wash.2d 604, 682 P.2d 878, 882 (Wash.1984); cf. Lane v. District Court, 104 Nev. 427, 446, 760 P.2d 1245, 1257 (1988) (noting that the witness was incompetent to testify because she was not present at the time in question). A lay witness may testify as to his opinion or inferences if they are rationally based on the witness's perception and if the testimony is helpful to a “clear understanding of his testimony...