Ibarra v. State, 69617
| Citation | 426 P.3d 16 |
| Decision Date | 13 September 2018 |
| Docket Number | No. 69617,69617 |
| Parties | Gabriel IBARRA, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Supreme Court of Nevada |
Philip J. Kohn, Public Defender, and Jeremy B. Wood and Howard Brooks, Deputy Public Defenders, Clark County, for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Ryan J. MacDonald, Deputy District Attorney, Clark County, for Respondent.
BEFORE THE COURT EN BANC.
A jury convicted Gabriel Ibarra of larceny from the person. To convict a defendant of this crime the State must prove that, "under circumstances not amounting to robbery, with the intent to steal or appropriate to his or her own use, [the defendant took] property from the person of another, without the other person’s consent." NRS 205.270. Ibarra stole a cell phone from a woman sitting next to him at a bus stop. He asked to use her phone to make a call, then, as she handed it to him, he grabbed the phone and ran. Because the woman voluntarily handed him her phone, Ibarra maintains he did not take the phone "from the person of another, without [her] consent," so the State failed to prove its case. We hold that the evidence supports Ibarra’s conviction and affirm.
Ibarra approached his victim, E.M., at a Las Vegas bus stop around 3 a.m. E.M. was seated on a bench, texting on her iPhone, when Ibarra sat down next to her. E.M. did not know Ibarra but she responded when he spoke to her, asking her where she was from and what kind of phone she had. After a few minutes, Ibarra asked E.M. if he could use her phone to make a call. Ibarra’s request made E.M. "a little nervous," so she asked Ibarra for the number he wanted to call and typed it into her phone before extending her arm to hand him the phone. E.M. testified that Ibarra "grabbed" the phone from her hand, then stood to walk away. When E.M. stood to stay close to her phone, Ibarra ran. E.M. gave chase but soon lost Ibarra. She returned to the bus stop, where she borrowed another person’s phone and called the police. Using an iPhone tracking application, the police found E.M.’s phone—and Ibarra, whom they arrested—outside a nearby apartment complex.
E.M. valued her iPhone at $500. Stealing property worth less than $650 constitutes petit larceny, a misdemeanor. See NRS 205.240. Stealing property worth less than $3,500 under circumstances amounting to larceny from the person, by contrast, is a category C felony. See NRS 205.270(1)(a).
The State charged Ibarra with larceny from the person. At trial, Ibarra defended the charge on the ground that, while he might have committed petit larceny, he did not commit the more serious crime of larceny from the person. His reasoning was this: Because E.M. voluntarily handed Ibarra her phone, he did not take it from E.M.’s person, without her consent, or invade her privacy, as the jury was told larceny from the person requires. At Ibarra’s request, the judge instructed the jury that petit larceny is a lesser included offense of larceny from the person. The verdict form gave the jury its choice of finding Ibarra not guilty, guilty of petit larceny, or guilty of larceny from the person. After deliberation, the jury found Ibarra guilty of larceny from the person.
Ibarra timely appealed. In a split decision, the court of appeals vacated Ibarra’s conviction for the reason the evidence did not establish the elements required for the crime of larceny from the person. The State petitioned for review under NRAP 40B, which we granted.
Larceny from the person has been a crime in Nevada since 1911 See 1911 Nev. Crimes & Punishments § 557, codified in 2 Nev. Rev. Laws § 6822 (1912). Except for its penalty provisions, the statute has changed little over the past 100 years. NRS 205.270 defines the crime of larceny from the person as follows:
Ibarra’s sole issue on appeal is the sufficiency of the evidence to sustain his conviction. He accepts that sufficient evidence established he intended to steal the phone. But he argues that, since E.M. gave him permission to use her phone and handed it to him, Ibarra did not take the phone "without [her] consent," as NRS 205.270(1) requires. He also maintains that he did not "take[ ]" the cell phone "from [E.M.’s] person," as this court interpreted those elements of the crime in Terral v. State, 84 Nev. 412, 442 P.2d 465 (1968).
A sufficiency-of-the-evidence challenge asks "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Middleton v. State, 114 Nev. 1089, 1103, 968 P.2d 296, 306 (1998) (internal quotation marks omitted; emphasis in original). An appellate court will not second-guess a jury’s determination of the facts. Deciding what constitutes "the essential elements of the crime" presents a question of law and statutory interpretation that we decide de novo. See Coleman v. State, 134 Nev. ––––, 416 P.3d 238, 240 (2018).
NRS 205.270 does not define what it means to take property "without the other person’s consent." Larceny was a crime at common law and included lack of consent as an element of the crime. See 3 Wayne R. LaFave, Substantive Criminal Law § 19.1(a), at 69 (3d ed. 2017) (). To define "without the other person’s consent" in NRS 205.270, we therefore look to how the common law approached lack of consent in the context of larceny. See NRS 193.050 (); 3 Charles E. Torcia, Wharton’s Criminal Law § 342, at 350 (15th ed. 1995) ("to understand the language and concepts of modem larceny statutes, an understanding of the pertinent common law is essential [since] if a term known to the common law has not otherwise been defined by statute, it is assumed that the common-law meaning was intended").
Judged by the common law, Ibarra took E.M.’s phone without her consent. At common law, "larceny is committed only when the aim of the thief is to divest the owner of his ownership, in distinction from the mere use or temporary possession; so that a consent which comes short of this necessary intent does not cover the whole ground of the taking, and avails nothing." 2 Joel Prentiss Bishop, Commentaries on the Criminal Law § 813, at 451 (6th ed. 1877) (footnote omitted); id. § 809, at 448 (); see Jarvis v. State, 73 Fla. 652, 74 So. 796, 796 (1917) (). "A watch might be handed by the owner to a friend to be used only for a moment in timing a race, and to be kept right in the presence of the owner." Rollin M. Perkins, Criminal Law § 1, at 197 (1957). The friend would "have custody only" and if, at the time he accepted the watch, he intended to and did steal it, permanently dispossessing the owner of his watch, the friend committed the crime of larceny. Id.; see Charles Hughes, Hughes' Criminal Law: The Law of Crimes, Prosecutions, Defenses and Procedure as Determined by Decisions of the Courts of Last Resort in the United States and England § 398, at 105 (1901) (). E.M. agreed to let Ibarra use her phone to make a call; she did not agree to him taking her phone permanently. The mismatch between the limited permission E.M. gave and the permanent dispossession Ibarra intended rendered the taking without E.M.’s consent.
Ibarra’s fraud in telling E.M. he only wanted to use the phone briefly to make a call when in fact he intended to steal the phone permanently is another reason the common law would deem the taking to be without E.M.’s consent. Common law larceny required "a trespass in the taking." See 3 LaFave, supra § 19.1(a), at 69. In 1779, an English court recognized "larceny by trick" as a form of trespassory taking. Rex v. Pear, 168 Eng. Rep. 208, 209 (1779). Larceny by trick, a form of larceny, occurs "when a defendant, with the intent permanently to deprive, obtained the personal property of another by fraudulently inducing such other person to part with its possession." 3 Wharton’s Criminal Law, supra § 343, at 350.
Fraudulently representing that you want to hire another’s horse temporarily when, in fact, you intend to steal the horse represents a classic case of larceny by trick. State v. Humphrey, 32 Vt. 569, 571-72 (1860) ; see Rex, 168 Eng. Rep. at 209. The taking is "without the consent and against the will of the owner " because of "the absence of all free and voluntary consent upon the part of the owner to the party taking his goods and appropriating them to his own use." Humphrey, 32 Vt. at 571 (emphasis in original).
Where the consent of the owner to the taking has been obtained by fraud and deception by inducing him to believe that the taker...
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...of NRS 205.270 to pickpockets, purse snatchers . . . and the like"). These notions were again articulated in the supreme court's decision in Ibarra. Ibarra labeled Terral [t]he seminal Nevada case interpreting the" requirement that larceny from the person requires the taking of property fro......