Ibarra v. State, No. 69617

CitationNo. 69617
Case DateNovember 08, 2016
CourtCourt of Appeals of Nevada

GABRIEL IBARRA, Appellant,
v.
THE STATE OF NEVADA, Respondent.

No. 69617

COURT OF APPEALS OF THE STATE OF NEVADA

November 8, 2016


ORDER VACATING JUDGMENT AND REMANDING

This is an appeal from a judgment of conviction entered pursuant to a jury verdict of one count of larceny from the person. Eighth Judicial District Court, Clark County; Michael Villani, Judge.

The parties do not dispute the basic facts underlying this appeal. The victim was sitting at a bus stop, texting on her cell phone, when appellant Gabriel Ibarra approached her and asked if he could use her phone to make a call. The victim agreed, and the two conversed for a few minutes while the victim typed in the phone number Ibarra provided her. She then handed Ibarra her phone. Ibarra, who was sitting to the right of the victim, accepted the phone and placed it to his left ear, then switched the phone to his right ear, further away from the victim, stood up, and started to walk away. The victim stood to follow Ibarra, who then ran away. The victim chased Ibarra into an apartment complex, where she lost visual sight of Ibarra. Using an iPhone-tracking application, the victim discovered her phone's location. Officers located Ibarra and found the iPhone in nearby bushes. The State charged Ibarra with larceny from the person, a felony. A jury convicted him following a two-day trial.

On appeal, Ibarra contends that his conviction should be vacated because insufficient evidence was adduced at trial to support the

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jury's verdict for larceny from the person. Ibarra argues that because the victim deliberately handed her phone to him before he ran away, he did not take the phone from the victim's person without her consent.1 The State counters that Ibarra did not obtain the victim's consent because he used a ruse to take the phone from the victim's hand. We agree with Ibarra that the evidence was insufficient to support the jury's verdict of guilt for larceny from the person.2

In reviewing a challenge to the sufficiency of the evidence supporting a criminal conviction, we consider "'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.'" McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

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To prove that a defendant is guilty of larceny from the person, the State must show that the defendant 1) took property from the person of another, 2) without the person's consent, and 3) with the intent to steal or appropriate the property for his own use. NRS 205.270(1). Larceny from the person "was meant to cover the common crime of pickpocketing, and from the beginning required an actual taking from the person[.]" Terral v. State, 84 Nev. 412, 413-14, 442 P.2d 465, 465 (1968) (quoting State v. Chambers, 22 W. Va. 779 (1883)) (internal quotation marks omitted). "The gravaman [sic] of [this] offense is that the person of another has been violated and his privacy directly invaded." Id. at 414, 442 P.2d at 466. Thus, "[i]t is important to restrict the coverage of NRS 205.270 to pickpockets, purse snatchers, jewel abstracters and the like, since larceny from the person is a felony, and the value of the property taken is immaterial so long as it has some value." Id.

Even when viewed in the light most favorable to the prosecution, the evidence adduced at Ibarra's trial does not support his conviction for larceny from the person. Critically, it is undisputed that the victim gave Ibarra permission to use her phone and deliberately handed her iPhone to Ibarra before he ran away with it. Although the evidence supports Ibarra's intent to steal the phone, it does not show that he initially took the phone from the victim's person without her consent, as required by NRS 205.270.3 Accordingly, Ibarra plainly did not "violate[]"

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the victim's person and "directly invade[]" her privacy. Terral, 84 Nev. at 414, 422 P.2d at 466. Therefore, no rational trier of fact could have found Ibarra guilty of the offense of larceny from the person.4

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These facts and Terral's holding compel us to vacate the judgment of conviction.5 To affirm would effectively read the element of

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consent out of the statute. This we cannot do. Further, because we vacate the judgment and do not order a new trial, the district court shall direct the appropriate officials to discharge Ibarra from custody on this judgment of conviction. See NRS 177.275. Accordingly, we

ORDER the judgment of the district court VACATED AND REMAND this matter to the district court for proceedings consistent with this order.

/s/_________, C.J.
Gibbons

SILVER, J., concurring:

I agree with the majority's reasoning and therefore join its order resolving this case. I write separately to simply emphasize that no

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rational finder of fact could have found Ibarra guilty of larceny from the person.

Terral v. State is directly on point and is controlling authority in this case. 84 Nev. 412, 442 P.2d 465 (1968). The Nevada Supreme Court in Terral held that larceny from the person does not occur where, as here, "the person of another has [not] been violated and his privacy [has not been] directly invaded." See id. at 414, 442 P.2d at 466. Although Ibarra deceived the victim into relinquishing possession of the iPhone, because the victim had knowledge of the taking and deliberately handed the iPhone to Ibarra, Ibarra plainly did not "violate[]" the victim's person and "directly invade[]" her privacy. Id. at 414, 422 P.2d at 466; see also State v. Harrison, 373 A.2d 680, 682-84 (N.J. Super. Ct. App. Div. 1977) (indicating that tricking a victim into giving the defendant a handkerchief filled with money would not constitute a taking from the person); People v. Washington, 548 N.Y.S.2d 48, 49 (App. Div. 1989) (emphasis added) (holding that using deceit to obtain the victim's money did not constitute a taking from the person because the victim "voluntarily handed $20 to the defendant hoping to receive two 'dimes' of cocaine in return"); Commonwealth v. Monroe, 678 A.2d 1208, 1210-14 (Pa. Super. Ct. 1996) (holding that a handkerchief scheme similar to that discussed in Harrison did not constitute a taking from the person), overruled in part on other grounds by Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998).

If this court did not follow Terral's holding by vacating the judgment of conviction, then an absurd result would occur. In fact, anytime someone "handed" an item to another person, and that person intended to convert that item (committing a theft), it would constitute "larceny from the person." This is absurd. For example, if an impecunious

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perpetrator walked into a jewelry store, tried on a ring that was handed to him by the jeweler intending to steal it, and then walked out of the store while still wearing the ring, under the State's logic, the State could prosecute the charge as a larceny from the person instead of as a larceny or a theft merely because the item stolen was taken from the hand of the jeweler after the offender falsely represented he was considering buying an expensive ring. Further, a defendant who deliberately shortchanged a cashier would also be guilty of larceny from the person,6 as would a person who knowingly presented a bad check,7 so long as these defendants took the cash or property from their victims' hands. Yet, no victim's privacy is invaded in any of these scenarios, and these offenders are in no way akin to "pickpockets, purse snatchers, jewel abstracters and the like[.]" Terral, 84 Nev. at 414, 442 P.2d at 466.

Here, there is no question that Ibarra committed a larceny or theft. The only question to be resolved in this case is whether the act of taking the item out of the victim's hand under these facts constitutes the crime of larceny from the person. I believe that under these facts, as a matter of law, pursuant to the holding in Terral, the crime of larceny from

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the person did not occur.

I, therefore, concur.

/s/_________, J.
Silver

TAO, J., dissenting:

The words "invasion of privacy" appear nowhere in the text of NRS 205.270, which defines the crime of "larceny from the person." This appeal should have been treated as a straightforward case of statutory interpretation involving an unambiguous statute whose plain language supports the jury's verdict.

I.

Here is the crux of my disagreement: my colleagues would limit the scope and reach of NRS 205.270 only to the specific common-law crimes ("pickpockets, purse-snatchers, jewel abstracters, and the like") that drove its enactment regardless of what the words of the statute literally say. I'm not sure we can do that to any statute, but I certainly don't agree that we can do it here.

How far courts can go to modify, limit, or expand the otherwise plain words of any statute is a question that has vexed judges and divided appellate panels, including panels of the Nevada Supreme Court, for decades. Contrast State v. Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011) ("when a statute is clear on its face, a court cannot go beyond the statute in determining legislative intent") with Tate v. State Bd. of Medical Examiners, 131 Nev. ___, ___, 356 P.3d 506, 508 (2015) ("Words in a statute should be accorded their plain meaning unless doing

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so would be contrary to the spirit of the statute"); see also United States v. Kirby, 74 U.S. 482 (1869) (holding that statute making it a crime to "knowingly and willfully to obstruct the passage of the mail" includes an "implied exception" permitting police to arrest mail carriers pursuant to lawful warrants even though doing so literally obstructs the mail). See generally Wayne R. LaFave & Austin W. Scott, Criminal Law, § 2.2(c) at pp. 76-77 (2d ed. West 1986).

But even if one accepts as a general proposition that we can sometimes put the plain words of a statute aside and read...

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