Merlino v. State

• Decision Date: 10 September 2015
• Docket Number: No. 65273.,65273.
• Citation: 131 Nev. Adv. Op. 65,357 P.3d 379
• Parties: Carrie Suzanne MERLINO, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Court of Appeals

357 P.3d 379

131 Nev. Adv. Op. 65

Carrie Suzanne MERLINO, Appellant

v.The STATE of Nevada, Respondent.

No. 65273.

Court of Appeals of Nevada.

Sept. 10, 2015.

Philip J. Kohn, Public Defender, Howard S. Brooks, Chief Deputy Public Defender, and Jasmin D. Spells, Deputy Public Defender, Clark County, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Colleen R. Baharav, Deputy District Attorney, Clark County, for Respondent.

Before GIBBONS, C.J., TAO and SILVER, JJ.

OPINION

By the Court, TAO, J.:

Under Nevada law, a defendant commits the crime of burglary when he or she enters a building with the intent to commit a predicate crime inside the building.The question raised in this appeal is whether NRS 193.0145,NRS 205.060(1), andNRS 205.060(5), which define the acts that can constitute an entry into a building for purposes of the burglary statute, encompass selling stolen property through the retractable sliding tray of a pawn shop's drive-through window.

A jury convicted appellantCarrie Suzanne Merlino of burglary for doing exactly that.On appeal, we conclude that no reasonable person could conclude that the sliding tray fell within the outer boundary of the building that housed the pawn shop, and therefore the evidence introduced at trial was insufficient to demonstrate that Merlino committed an unlawful entry of the building as defined in the burglary statutes.Accordingly, we vacate the conviction on count five.

FACTS

Merlino and her boyfriend, Dennis Byrd, befriended neighbor Teresa Wilson and would occasionally visit her in her apartment.During their visits, Merlino would sometimes bring Wilson food, clean her apartment, and run errands for her.Wilson eventually noticed that some jewelry was missing from her apartment and reported the theft, informing detectives with the Las Vegas Metropolitan Police Department that Merlino and Byrd might be responsible for the missing items.During their investigation, the detectives learned that Merlino had pawned items matching the descriptions of Wilson's missing jewelry.Wilson identified the pawned items as belonging to her and indicated that Merlino did not have permission to possess those items.Merlino was subsequently charged by way of indictment with conspiracy to commit a crime, grand larceny, and three counts of burglary.She was convicted on all counts but on appeal challenges only her conviction on count five, one of the three counts of burglary.

Count five of the indictment charged Merlino with entering an EZ–Pawn store on October 24, 2011, with the intent to obtain money under false pretenses by pawning items stolen from Wilson.The evidence introduced at trial in support of this count demonstrated that, on that date, Merlino pawned five items of jewelry through the drive-through window of the EZ–Pawn by placing them onto a metal tray that slid in and out of the building.

EZ–Pawn employee Leonard Yazzie described the drive-through window and its tray.Yazzie could not recall the particular transaction involving Merlino but testified that, in general, pawn transactions through the drive-through window required a customer outside the store to place items onto a sliding tray, which the cashier would extend out to the customer and then pull back into the interior of the store.The cashier would retrieve the items from the tray and place documents and money onto the tray before sliding it back outside the store to where the customer could access the tray.Only when extended could the customer access the tray; when retracted, the tray was enclosed entirely within the walls of the building and could not be accessed from outside.

After the close of evidence, the district court instructed the jury.Among the instructions given was InstructionNo. 23, which stated that “[a]n entry is deemed complete when, however slight, any portion of the intruder's body penetrates the space within the building.”Based upon this definition, the State argued that the sliding tray constituted part of the structure of the building and, therefore, Merlino entered the building by using the tray to pawn Wilson's property.Merlino maintained that no part of her body entered the interior of the building and, consequently, no entry occurred.

ANALYSIS

In this appeal, Merlino challenges only one of her three burglary convictions, namely, count five, which charged her with entering the EZ–Pawn store on October 24, 2011, with the intent to commit the crime of obtaining money under false pretenses.Merlino concedes that substantial evidence was introduced at trial to support her convictions on the remaining counts.

As to count five, however, Merlino contends that insufficient evidence exists to support her conviction.The test for sufficiency of the evidence in a criminal case is “ ‘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)(quotingJackson v. Virginia,443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979) ).“[I]t is the jury's function, not that of the court, to assess the weight of the evidence and determine the credibility of witnesses.”Id.(citingWalker v. State,91 Nev. 724, 726, 542 P.2d 438, 438–39(1975) ).

Merlino argues that the crime of burglary requires “entry” into the premises, and no such “entry” occurred when she merely placed items onto, and removed money from, the sliding tray of the drive-through window.The principal authority cited by Merlino is Smith v. First Judicial District Court,75 Nev. 526, 347 P.2d 526(1959), in which the Nevada Supreme Court held that removing items from the open bed of a pickup truck was not a burglarious “entry” of the truck itself.In response, the State argues that the sliding tray was part of the building, and therefore when Merlino's hand entered the tray, the hand necessarily entered the building itself.For the reasons set forth below, we agree with Merlino.

Nevada's burglary scheme

In Nevada, the offense of burglary is defined by NRS 205.060, which states, in pertinent part, as follows:

1.Except as otherwise provided in subsection 5, a person who, by day or night, enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car, with the intent to commit grand or petit larceny, assault or battery on any person or any felony, or to obtain money or property by false pretenses, is guilty of burglary.

An essential element of the offense of burglary is that the offender “entered” a “building.”NRS 193.0145 defines “enter” for purposes of the burglary statute as follows:

“Enter,” when constituting an element or part of a crime, includes the entrance of the offender, or the insertion of any part of the body of the offender, or of any instrument or weapon held in the offender's hand and used or intended to be used to threaten or intimidate a person, or to detach or remove property.

NRS 193.0125 defines a “building” as including “every house, shed, boat, watercraft, railway car, tent or booth, whether completed or not, suitable for affording shelter for any human being, or as a place where any property is or will be kept for use, sale or deposit.”¹

The question before us is whether the evidence at trial, construed in the light most favorable to the State, was sufficient to demonstrate that Merlino entered the EZ–Pawn within the meaning of NRS 193.0125,NRS 193.0145, andNRS 205.060, by pawning items through the sliding tray of the drive-through window.In this case, there is no evidence that Merlino used a weapon or otherwise “threaten[ed] or intimidate[d]” any person during the commission of the charged crime.Therefore, for Merlino's conviction to stand, the evidence adduced at trial must demonstrate that some part of Merlino's body, or something held in her hand, entered the building in question within the meaning of Nevada's burglary statutes.

Determining whether such an entry occurred in this case reveals a gap in Nevada's statutory burglary scheme.NRS 193.0125 defines the term “building” with reference to the functionality of a structure; specifically, a structure is a “building” that can be burglarized if it is functionally suitable to afford shelter or to keep property for use, sale, or deposit.NRS 193.0145 defines “entry” with respect to the offender's body or any tools that he or she uses.But the burglary statutes do not define the terms “enter” or “building” with reference to the size, shape, dimensions, or physical appearance of a particular structure.Consequently, the statutes do not delineate where the outer boundary of a structure begins and ends for purposes of determining when a particular structure has, or has not, been entered within the meaning of NRS 193.0145.Yet this is precisely the question before us in this appeal.Thus, resolving this appeal requires us to look outside of the statutes for guidance.

When the Legislature has not stepped in to address a particular question, we may look to the common law for an answer.SeeVansickle v. Haines,7 Nev. 249, 285(1872)(stating that the common law, “so far as it is not repugnant to or inconsistent with, the constitution or laws of the United States, or the laws of the territory of Nevada, shall be the rule of decision in all courts of this territory....[The common law] should remain in force until repealed by the legislature”(internal quotations omitted)).

Burglary at common law

The crime of burglary was originally a creature of the common law, but “[o]f all common law crimes, burglary today perhaps least resembles the prototype from which it sprang.”Minturn T. Wright III, Note, Statutory Burglary—The Magic of Four...