Berry v. State

• Decision Date: 30 July 2009
• Docket Number: No. 49709.,49709.
• Parties: Durand Eugene BERRY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

212 P.3d 1085

Durand Eugene BERRY, Appellant, v. The STATE of Nevada, Respondent.

No. 49709.

Supreme Court of Nevada.

July 30, 2009.

Philip J. Kohn, Public Defender, and Lauren Diefenbach and Nancy Lemcke, Deputy Public Defenders, Clark County, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Ercan E. Iscan, Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.

OPINION

By the Court, HARDESTY, C.J.:

A jury convicted appellant Durand Eugene Berry of burglary while in possession of a deadly weapon, robbery with use of a deadly weapon, and one count of open and gross lewdness. In this opinion, we address three of the issues Berry raises on appeal and their accompanying subissues.

First, we consider Berry's challenges to the district court's jury instructions defining "deadly weapon" for purposes of the burglary-while-in-possession-of-a-deadly-weapon and robbery-with-use-of-a-deadly-weapon charges. Specifically, we discuss whether the district court erroneously instructed the jury on the meaning of "deadly weapon" by using NRS 202.265(5)(b)'s and NRS 202.253(2)'s definitions of "firearm." The instruction at issue provided, in pertinent part:

[A] deadly weapon includes:

1. Any device, whether loaded or unloaded, operable or inoperable, designed to be used as a weapon from which a projectile may be expelled through the barrel by the force of any explosion or other form of combustion; or

2. Any device, whether loaded or unloaded, operable or inoperable, from which a metallic projectile, including any ball bearing or pellet, may be expelled by means of spring, gas, air or other force.

We conclude that because NRS 202.265's list of weapons is specifically referenced in NRS 193.165(6)(c) as being deadly weapons, the district court did not err by instructing the jury on NRS 202.265(5)(b)'s definition of "firearm." We similarly hold that the district court did not err by instructing the jury on NRS 202.253(2)'s definition of "firearm," even though Berry was not charged with possession or use of a firearm and NRS 193.165(6) does not reference NRS 202.253. We are persuaded that a "firearm" under the general firearm definition of NRS 202.253(2) is an instrument designed to cause substantial bodily harm or death, and therefore, it falls within the meaning of "deadly weapon" under NRS 193.165(6)(a). As a result, we conclude that the district court did not err by using definitions from NRS 202.265(5)(b) and NRS 202.253(2) to define "deadly weapon."

Further, we discuss whether the law supports a jury instruction that a firearm is a deadly weapon despite it being unloaded or inoperable. Because NRS 202.265(5)(b) defines "firearm" as a device from which a metal projectile may be expelled by spring, air, gas, or other force, and NRS 202.253(2) defines "firearm" as a device from which a projectile may be expelled by explosion or combustion, we conclude that under both definitions, if the trier of fact finds that the weapon's capabilities are established by its design, not its operability, then the weapon meets the definition of a "deadly weapon." Thus, whether the weapon was unloaded or inoperable at the time of the crime is irrelevant.

In reaching this conclusion, we take the opportunity to clarify this court's holdings in Allen v. State, 96 Nev. 334, 609 P.2d 321 (1980), and Anderson v. State, 96 Nev. 633, 614 P.2d 540 (1980). While we stated in Allen that the purpose of the deadly weapon statute was to penalize an offender's use of a weapon not only because of the weapon's ability to inflict deadly harm but also because of the deadly reaction the weapon is likely to provoke, we note that the Legislature subsequently spoke on the issue by enacting NRS 193.165(6) to define what constitutes a "deadly weapon." Thus, although the rationale expressed in Allen is still part of this court's consideration, we conclude that a weapon must fall within NRS 193.165(6)'s definitions to uphold a finding that an instrument is a deadly weapon. And, contrary to Anderson's implications, we reiterate that if the weapon is not a "firearm" under NRS 202.253(2), the State must prove that the weapon supporting the deadly weapon finding is a "deadly weapon" as defined in NRS 193.165(6).

Second, we consider whether sufficient evidence supports the deadly weapon findings for the charges of burglary while in possession of a deadly weapon and robbery with use of a deadly weapon. We conclude that based on the applicable statutory definitions of "deadly weapon," no rational trier of fact could have found beyond a reasonable doubt that the toy pellet gun used in this case was a deadly weapon.

Third, we consider Berry's challenges to his open and gross lewdness conviction. In particular, we consider whether the open and gross lewdness statute, NRS 201.210, is unconstitutionally vague and whether the district court erred by instructing the jury on definitions of "gross" and "lewdness" that were not prescribed by Nevada law. We conclude that the terms "gross" and "lewdness," although not statutorily defined, are common words with generally accepted meanings. Thus, we hold that NRS 201.210 is not unconstitutionally vague because an average person of ordinary intelligence can determine what conduct is proscribed by the statute. We further conclude that based on the common law definition of "open lewdness," and the plain, ordinary meaning of NRS 201.210's terms, Berry failed to demonstrate that any error in the district court's instruction amounted to plain error affecting his substantial rights.

FACTS AND PROCEDURAL BACKGROUND

On February 26, 2006, the victim, Armstrong, was working by herself at Koster's Cash Loans, a payday loan store. At the end of her shift, Armstrong began to close the store by counting the money that the business had received that day and placing it in the store's safe. As she prepared to leave for the evening, she went outside to start her car, intending to return to the store only to retrieve her personal belongings and lock the doors. On her way back into the store, Berry approached her, held a gun (later determined to be a "Speedy Toys" pellet gun) to her neck, and told her to go into the store and give him all the money.

Berry and Armstrong went into the store and into the closet where the store's safe was kept. Armstrong explained to Berry that it was a time-delay safe and, therefore, he would have to wait ten minutes before it would open. Armstrong testified that Berry told her that he would not shoot her as long as she was not lying and that he would wait for the safe to open.

Armstrong testified that while they were waiting for the safe to open, Berry began touching her on her "behind area and [her] hips and [her] back and shoulders." She testified that Berry said she had a nice body and that if he had known about the time-delay safe taking ten minutes he would have "had his fun with [her]." She thought that he meant he would try to have sex with her. Armstrong described the touching as Berry standing behind her and holding her near him. She testified that he was rubbing his genitals against her for the entire ten minutes that they waited for the safe to open. At one point, Berry also massaged her shoulders and told her to relax.

When the safe's ten-minute time delay had elapsed, Armstrong opened the safe. Berry ordered her to kneel in the corner of the closet, facing away from him. Berry took everything out of the safe, placed it in a backpack, and ordered Armstrong to stay in the closet for one minute after he left, threatening that someone would shoot her otherwise. Armstrong, who had her cellular telephone in her jacket pocket, called 911 from the closet.

Police officers had already been dispatched to the store based on an anonymous 911 call. Upon arrival, an officer saw Berry exit the closet door and pull a mask over his face. As Berry exited the store, the officer identified himself to Berry and, with his gun pointed at Berry, demanded that he stop. Berry ran from the officer, jumped over some shrubs, and climbed a wall into a nearby apartment-style retirement community. The officer found Berry hiding behind a washing machine on a patio.

Berry dropped his backpack while fleeing. Inside the backpack, the crime scene analyst found a toy pellet gun, the contents of the safe, an identification card, a bandana, and a hammer.

On February 28, 2006, the State charged Berry with burglary while in possession of a deadly weapon, robbery with use of a deadly weapon, first-degree kidnapping with use of a deadly weapon, and two counts of open and gross lewdness. Berry pleaded not guilty and the matter proceeded to trial. At trial, the State offered Detective Lance Spiotto as the single witness to testify as to the appearance and capabilities of the gun that Berry used during the crime. Detective Spiotto testified that it was a type of pellet gun with a plastic body and a spring action magazine, designed to look like a Beretta 9-millimeter handgun. The gun, manufactured by Speedy Toys, was available for purchase online for approximately $20. Detective Spiotto further testified that the gun would be capable of firing a projectile because normally a gun of its type was "operated by a sealed-to-cartridge spring mechanism." When asked whether it could fire a bullet, he answered, "Definitely not a .45, but I guess if you made one small enough, you can—I don't know what a .22 would do in there." To his knowledge, no one had tried to fire the gun when it was seized, and no pellets were found in Berry's possession. Additionally, the crime scene analyst testified that when impounding the evidence she labeled the gun a toy but that it appeared capable of firing a projectile. The gun was also admitted into evidence for the jury to examine.

At the conclusion of trial, the district court...