Jackson v. State
| Decision Date | 29 December 1977 |
| Docket Number | No. 9581,9581 |
| Citation | 93 Nev. 677,572 P.2d 927 |
| Parties | Raymoe JACKSON, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Morgan D. Harris, Clark County Public Defender, and Herbert F. Ahlswede, Deputy Public Defender, Las Vegas, for appellant.
Robert List, Atty. Gen., Carson City, George E. Holt, Clark County Dist. Atty., and H. Leon Simon, Deputy Dist. Atty., Las Vegas, for respondent.
Appellant was convicted of the crime of burglary of an automobile and sentenced to confinement in the Nevada State Prison for a term of four years. The vehicle was parked in a commercial parking lot. Two eyewitnesses, the owner of the lot and his daughter, who both knew the owner of the vehicle, observed the appellant standing next to the car bending a coat hanger, acting and looking around suspiciously. The owner of the lot summoned the police after the appellant had broken into the vehicle and was lying on the seat.
A motorcycle officer arrived immediately and as he approached the vehicle, the appellant got out, closed the car door, threw away the coat hanger, and attempted to leave the scene. The officer ordered the appellant to halt, but he continued walking and, as he did so, discarded a screwdriver. The officer then pinned the appellant against another vehicle with his nightstick, while the appellant continued to resist until a back-up squad car arrived with assistance.
The appellant was searched and some loose change together with a Showboat Hotel gaming chip was retrieved from his person. The owner of the vehicle stated both at the time of the burglary and in her testimony given at trial that she had locked the vehicle and that there was missing some change and a Showboat Hotel gaming chip. She further testified that she had not given anyone, including appellant, permission to enter the vehicle.
The owner of the parking lot, the police officer, and the owner of the vehicle all testified that the ignition switch had been removed from the steering column. The owner of the vehicle testified that the ignition switch was intact and operative at the time she parked the vehicle.
On the basis of the physical evidence removed from appellant's person, and upon the testimony of the eyewitnesses, who maintained a vigil of appellant from the time he was furtively standing outside the vehicle bending the coat hanger until the time of his arrest, the jury rendered a verdict of guilty as charged.
Premised solely on alleged error in jury instructions, the appellant seeks annulment of the judgment of conviction, contending error in the trial court's refusal: (1) to further instruct the jury as to the crime of tampering with a vehicle; (2) to instruct the jury regarding an attempted unlawful taking of a vehicle; and (3) in giving a further instruction pertaining to "reasonable doubt." We find each claim to be without merit.
The crux of the first two issues presented on this appeal involves the identification of the crimes which are by nature arguably lesser included offenses in the charge of burglary of a motor vehicle. Concerning these first issues, both appellant and respondent objected to two of the trial court's instructions given the jury. The lower court's instructions concerning lesser included crimes were as follows:
If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged he may, however, be found guilty of any other offense, the commission of which is necessarily included in the offense charged, if the evidence is sufficient to establish his guilt of such other offense beyond a reasonable doubt.
The offense of Burglary with which the defendant is charged may, given the facts of this case include the offense of Tampering With a Motor Vehicle.
Any person who without the consent of the owner, while a vehicle is at rest and unattended, shall attempt to manipulate the starting device shall be guilty of tampering with a vehicle.
The State strenuously objected to both these instructions on the basis that tampering with a vehicle (NRS 205.274) 1 is not a lesser included offense to a charge of burglary of a vehicle. The State argued that the misdemeanor tampering offense is separate and distinct from the crime of burglary and that the State had the option of charging appellant with both crimes but elected to proceed only on the burglary offense.
The appellant, on the other hand, objects to instruction number 10, stating that it insufficiently reproduces the language of NRS 205.274 by omitting the phrase: "shall climb into or upon such vehicle with intent to commit any crime . . . ." Appellant argues that the "climb into" and the "intent to commit any crime" language of the tampering statute (NRS 205.274) is virtually synonymous with the "enters" and the "intent to commit grand or petit larceny or any felony" language of the burglary statute (NRS 205.060). 2 Tampering is a misdemeanor while burglary is a felony.
Appellant is not content to simply argue that because of the similarity in language but disparity in punishments of the statutes, an instruction for tampering should have been given, but he goes further and contends that the tampering statute itself supercedes the burglary statute with respect to motor vehicles. Neither contention has merit.
Appellant contends that the burglary statute is repealed by implication and cites at length authority establishing that the rules for statutory construction are that newer provisions of law supplant older ones, and that specific provisions supercede general. Although there is no showing that the two statutes cover the same subject matter and that they are inconsistent, appellant's own logic is disserving. The burglary is more specific than the tampering statute in that it requires "intent to commit grand or petit larceny or any felony" as opposed to the general language of an "intent to commit any crime." In addition, the tampering statute was last amended in 1967, whereas the burglary statute was last amended in 1971, the latter expanding the definition of burglary. Further, in reviewing NRS 205.060 and 205.274, it is apparent from the penalty scheme and the class of crimes that the Legislature did not intend for the tampering provisions to comprehend the classic circumstances generally characteristic of a burglary. Unlike in Lapinski v. State, 84 Nev. 611, 446 P.2d 645 (1968), here, it is clear that the elements of the crimes significantly vary, the conduct prohibited is well defined, and the concomitant punishment is also well defined. In short, the Legislature in enacting both statutes has promulgated the laws "which will apply to what must be a clearly designated state of facts," id. at 614, 446 P.2d at 646, and appropriate penalties for the violations of same.
Appellant's claim that he was entitled to a jury instruction on tampering is more reasonable but remains nonetheless unpersuasive. In Holbrook v. State, 90 Nev. 95, 518 P.2d 1242 (1974), this Court held that while it is arguable that tampering is a necessarily included offense within the crime of grand larceny, "the evidence clearly showed appellant's conduct had gone beyond that encompassed by the 'tampering' statute." 90 Nev. at 97, 518 P.2d at 1243.
Likewise in the instant case, appellant's conduct had gone beyond that contemplated by the tampering statute and he would have been entitled to no jury instruction. The trial court, however, liberally instructed the jury as to the lesser offense but appellant was nevertheless convicted of burglary.
This assignment of error is without merit.
Appellant next contends that the trial court erred in not giving the following proposed jury...
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