Ikie v. State, 21170

• Decision Date: 20 December 1991
• Docket Number: No. 21170,21170
• Parties: Dan IKIE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 258

823 P.2d 258

107 Nev. 916

Dan IKIE, Appellant, v. The STATE of Nevada, Respondent.

No. 21170.

Supreme Court of Nevada.

Dec. 20, 1991.

Morgan D. Harris, Public Defender and R. Michael Gardner, Deputy Public Defender, Clark County, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., and James Tufteland, Chief Deputy Dist. Atty., Clark County, Las Vegas, for respondent.

OPINION

ROSE, Justice:

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of larceny from the person. The district court sentenced appellant Dan Ikie to a term of ten years in the Nevada State Prison, to run consecutively to a sentence imposed for another conviction.

On November 13, 1989, Alberto Silva was staying at the Sands Hotel in Las Vegas, Nevada. That evening, he left his room with $1,200 in cash in his pocket in a money clip. The cash was in the form of nine one hundred dollar bills and fifteen twenty dollar bills. When Mr. Silva and his wife stopped by a deli in the hotel and read the menu posted on the wall, Mr. Silva noticed a man whom he later identified as Ikie, eating pizza in the deli with a black woman. Mr. Silva also noticed another man in the deli, whom he later identified as Ralph Kado.

Mr. Silva and his wife left the deli and walked down a flight of three stairs. As they descended the stairs, a man whom Mrs. Silva later identified as Kado passed between them. Then, the black woman they had seen in the deli bumped into Mr. Silva from behind. Mr. Silva thought the woman had broken her ankle, and he held her up in an effort to assist her. At that time, he noticed another black man whom he could not identify, standing nearby. The woman quickly recovered her composure and walked away. Mr. Silva testified that Ikie was not present at the time of the incident on the stairs.

Mr. Silva felt there was something wrong. He checked for his money and discovered it was gone. Meanwhile, the black woman was joined by the man Mr. Silva had seen on the stairs, and then by Ikie. As the three walked quickly towards the exit door of the hotel, Mr. Silva called to his wife to get security because he thought he had been robbed, and he began pursuing the three people. After leaving the hotel, the three suspects stopped in a liquor store about one hundred feet away. Mr. Silva saw them exit the store, and he began to chase them. Security guards from the Sands caught up with Mr. Silva, and he pointed out the three suspects. He and the guards followed them across the street towards the Frontier Hotel. When Mr. Silva entered the Frontier, the security guards had both Ikie and Kado in custody. He did not see the woman who had bumped into him.

Marlin Barry Smith, a security officer from the Sands Hotel, testified that when Kado was apprehended at the Frontier Hotel, he had five one hundred dollar bills and either five or six twenty dollar bills in his hand. Officer Stephen Michael Carter of the Las Vegas Metropolitan Police Department testified that he did a pat down search of Ikie, but he found no money. After Carter transported Ikie to the Clark County Detention Center, Ikie was searched again. At that time, one thousand and sixty dollars were found in his shoes. The money was in the form of eight one hundred dollar bills and thirteen twenty dollar bills. An unknown number of five and one dollar bills was also found in Ikie's shoes.

Ikie was arrested and charged by information with larceny from the person, a felony pursuant to NRS 205.270. ¹ The information charged both Ikie and Kado with personally taking the money from Mr. Silva's pocket. Specifically, it stated that the larceny was accomplished by:

[E]ach Defendant aiding and abetting the other and a third unnamed black female, in the following manner, to-wit: by the unnamed black female feigning a fall directly in front of the said ALBERT [sic] SILVA, thereafter Defendants DAN IKIE and/or RALPH KADO bumping ALBERT [sic] SILVA from behind as he went to the aid of the unnamed black female, thereby, causing confusion and allowing Defendants DAN IKIE and/or RALPH KADO to extract lawful money of the United States from the said ALBERTO SILVA'S pocket.

At trial, the facts previously recited were received in evidence and the Silvas confirmed that Ikie was not present when the money was taken. Ikie's attorney moved for dismissal, but the district court denied the motion. The jury returned a verdict of guilty, and the district court sentenced Ikie to ten years in the Nevada State Prison, to run consecutively with the sentence for another conviction.

On appeal, Ikie contends that the prosecutor improperly commented on his post-arrest silence, in violation of the fifth amendment right against self-incrimination and the fourteenth amendment right to a fair and impartial trial. Ikie does not identify the particular testimony or argument he finds objectionable. We have carefully reviewed the record and are unable to identify a time at which the prosecutor either improperly elicited comment on Ikie's post-arrest silence or improperly commented on Ikie's post-arrest silence in closing argument. Therefore, we conclude that this argument lacks merit.

Ikie also contends that the district court erred in admitting expert testimony on pickpocket crimes. We conclude, however, that the testimony was properly admitted. See Townsend v. State, 103 Nev. 113, 734 P.2d 705 (1987) (threshold test for admissibility of testimony by qualified experts is whether expert's specialized knowledge will assist trier of fact to understand evidence or determine fact in issue).

Next, Ikie argues that the evidence presented at trial was insufficient to support the jury's finding of guilt. We conclude that there was, in fact, insufficient evidence to indicate that Ikie was guilty of taking property "from the person of another" as is required under NRS 205.270. The information alleged that Ikie aided and abetted by taking the money from Mr. Silva. It did not specifically allege that Ikie aided and abetted by any acts prior to or subsequent to the taking. Ikie was not in the vicinity when the woman bumped into Mr. Silva. Only Kado was standing on the stairs nearby, and Ikie did not join Kado and the woman until the woman was away from Mr. Silva and they were exiting the hotel.

The only evidence presented at trial connecting Ikie with the crime is the testimony that he was with the woman before the crime, that he fled the hotel with the other two suspects, and that he was found with one thousand sixty dollars in his shoe. The conviction cannot be buttressed by finding that there is sufficient evidence to prove aiding and abetting in ways other than those charged in the information.

The State is required to set forth in the information or indictment the specific acts constituting the means of aiding and abetting so as to afford the defendant notice to prepare his defense. Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983). In Barren, the defendant was convicted for murder, robbery, and burglary. On appeal, he challenged the indictment's sufficiency, arguing that it failed to provide adequate notice of the offenses charged so as to enable him to prepare an adequate defense. On its face, the indictment alleged that the defendant was responsible for the victim's death because he personally struck her, and committed robbery by personally taking property from the person or presence by force or fear. Despite the wording of the indictment, the State presented little or no evidence that the defendant struck the victim or took property from her presence by force or fear. Instead, the State proceeded primarily on a theory of vicarious liability. After careful consideration of the varying legal views on this subject, we held that:

[W]here the prosecution seeks to establish a defendant's guilt on a theory of aiding and abetting, the indictment should specifically allege the defendant aided and abetted, and should provide additional information as to the specific acts constituting the means of the aiding and abetting so as to afford the defendant adequate notice to prepare his defense.

Id. at 668, 669 P.2d at 729. See also Skinner v. Sheriff, 93 Nev. 340, 566 P.2d 80 (1977) (mere presence does not render defendant guilty of the crime, however reprehensible her conduct was subsequent to the crime).

In the case at bar, the evidence failed to establish the State's theory that Ikie aided and abetted the woman and Kado. In fact, the State disproved the criminal allegations asserted against Ikie when Mr. Silva testified that Ikie was not present when he encountered the woman.

The State might have charged and presented sufficient evidence of receiving stolen property, possession of stolen property, aiding and abetting in larceny from the person, or conspiracy to commit grand larceny. However, these offenses were not charged in the indictment. Ikie was charged with taking property from the victim, but the proof clearly established that Ikie had nothing to do with the specific taking, as he was never near enough to Mr. Silva to take the money from his person, and he took no money from his person.

We hereby reverse the conviction entered against Ikie.

SPRINGER and YOUNG, JJ., concur.

STEFFEN, Justice, with whom MOWBRAY, Chief Justice, agrees, dissenting:

Unfortunately, the majority has revitalized and extended the meaning of this court's opinion in Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983), far beyond its original intendment in order to invalidate what, in my view, is a sound conviction. I therefore respectfully dissent.

By way of preliminary background, I note that two of the three justices signatory to the majority opinion, including the author thereof, were not members of this court when Barren was decided. Although the point has no relevance, I mention it in passing because it may partially explain why the majority has misperceived the...