McIntyre v. State

• Decision Date: 22 November 1988
• Docket Number: No. 18728,18728
• Parties: George Junior McINTYRE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 482

764 P.2d 482

104 Nev. 622

George Junior McINTYRE, Appellant, v. The STATE of Nevada, Respondent.

No. 18728.

Supreme Court of Nevada.

Nov. 22, 1988.

Morgan D. Harris, Public Defender, Thomas W. Rigsby, Deputy Public Defender, Clark County, Las Vegas, for appellant.

Brian McKay, Atty. Gen., Carson City, Rex A. Bell, Dist. Atty., James Tufteland and Christopher Blair, Deputy Dist. Attys., Clark County, Las Vegas, for respondent.

OPINION

PER CURIAM:

On seven separate occasions between December 10, 1986, and February 12, 1987, someone wearing a mask, goggles, and gloves robbed various Las Vegas bars. In each of these early morning robberies, the perpetrator handed a yellow and white striped pillowcase to the bartender and demanded that the bartender fill the bag with money from the cash register and coins from under the counter. In six of the seven incidents, the robber used what appeared to be a machine gun.

On March 3, 1987, police arrested the appellant, George Junior McIntyre. At the time of his arrest he possessed two blue athletic bags which contained, among other things, a ski mask, goggles, gloves, a yellow and white striped pillowcase, and a plastic toy machine gun.

McIntyre was charged with the seven bar robberies. During the trial, witnesses from each of the robberies identified one or more of the articles from McIntyre's bags as something the robber used when committing the crimes. Witnesses from three of the robberies specifically identified McIntyre's toy gun as the robber's weapon.

A jury convicted McIntyre on seven counts of burglary, six counts of robbery with the use of a deadly weapon, and one count of robbery without the use of a deadly weapon. The court, thereafter, sentenced McIntyre to ten years in prison for each of the burglary convictions and fifteen years for each of the robbery convictions. The court added a consecutive fifteen year sentence, in accordance with NRS 193.165, to each of the robbery convictions in which the jury found McIntyre used a deadly weapon.

The question before us on appeal is whether a toy gun, absent proof of deadly capabilities, can support an enhanced sentence for the commission of a crime "with use of a deadly weapon." We hold that it cannot.

NRS 193.165 requires that a criminal's sentence be enhanced when he or she "uses a firearm or other deadly weapon ... in the commission of a crime." ¹ We have previously determined that in statutorily distinguishing firearms from "other deadly weapons," the legislature, for purposes of sentence enhancement, attributed to firearms a per se deadly status; proof of a firearm's deadly capabilities is not required. Stalley v. State, 91 Nev. 671, 541 P.2d 658 (1975). We have applied this rationale in cases involving blank guns, Anderson v. State, 96 Nev. 633, 614 P.2d 540 (1980), and firearms which are, in fact, inoperable. Allen v. State, 96 Nev. 334, 609 P.2d 321 (1980).

However, because McIntyre's toy gun is not a firearm, ² it does not partake of a firearm's per se deadly status. Proof of a toy gun's actual deadly capabilities is necessary before NRS 193.165 can apply. In this case, no evidence suggests that McIntyre could have used his toy gun as a bludgeon or in some other way to inflict death or great bodily harm, prospects that the enhancement provision was designed to deter. Absent such evidence, the enhanced sentences for use of a deadly weapon cannot stand. See People v. Skelton, 83 Ill.2d 58, 46 Ill.Dec. 571, 574, 414 N.E.2d 455, 458 (1980); State v. Allen, 317 N.C. 119, 343 S.E.2d 893 (1986); Pena Cortez v. State, 732 S.W.2d 713 (...