Nelson v. State

Decision Date08 November 2007
Docket NumberNo. 46353.,46353.
Citation170 P.3d 517
PartiesAnthony Tyrell NELSON, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.

OPINION

By the Court, HARDESTY, J.:

In this appeal, we consider the constitutionality of NRS 484.348(3)(b), which prohibits drivers from operating a motor vehicle in such a manner as to endanger other persons or property while fleeing a police officer who has signaled for the driver to stop. Appellant Anthony Tyrell Nelson contends that the term "endangers" as contained in NRS 484.348(3)(b) is vague. Although NRS 484.348(3)(b) does not define specific acts that are prohibited under the statute, we conclude that the statute is not unconstitutionally vague because individuals of ordinary intelligence can easily discern whether their operation of a vehicle while fleeing from a police vehicle places life or property in danger. Further, we determine that Nelson's additional claims are without merit. We therefore affirm the district court's judgment of conviction.

PROCEDURAL HISTORY AND FACTS

Carolyn Paquette and her friends, Jason Minkler and Alisha Chugg, were driving to Paquette's condominium after spending the evening at a club. As they entered Paquette's gated community, the group noticed that another vehicle followed them into the community before the gates closed. Minkler stopped the vehicle in front of Paquette's condominium; Paquette exited the vehicle and approached the door to her home.

A black two-door vehicle with a red stripe and two people inside stopped behind Paquette. A man quickly exited the vehicle, approached Paquette, and demanded her purse. Paquette asked the man if he was kidding. The man replied that he was not kidding and held a handgun in front of Paquette's face.

Minkler and Chugg exited their vehicle. Chugg ran towards the man and inquired what was happening, but turned around and returned to her vehicle when the man displayed the gun to her. Minkler approached the man, pulled out his cell phone, and began dialing 911. After taking Paquette's purse, the gunman and the driver quickly drove out of the complex.

Shortly after the incident, an officer arrived at the scene and obtained statements from Paquette, Minkler, and Chugg. At trial, the officer testified that when he interviewed Minkler he did not notice the smell of alcohol on Minkler's breath and Minkler did not appear to be intoxicated. The officer testified that Paquette had been drinking that evening, but that she did not appear to be "overly intoxicated." The officer also testified that Chugg had been drinking and appeared to be heavily intoxicated.

About 20-25 minutes after Paquette's purse was stolen, Officer Francis Shipp located a black Thunderbird with a red stripe parked on the shoulder of Boulder Highway that matched the description given by Minkler. Officer Shipp made a U-turn and positioned his vehicle almost three feet behind the Thunderbird when the vehicle began moving north on Boulder Highway. Officer Shipp then followed the Thunderbird with his lights off because he was alone and the vehicle was reportedly involved in an armed robbery. The Thunderbird eventually exited Boulder Highway and gradually increased its speed to between 40 and 60 miles per hour as it traveled through housing developments. During this time, Officer Shipp reported to police dispatch that he was following a vehicle matching the description of the one used in Paquette's purse robbery, and he requested assistance.

The Thunderbird re-entered Boulder Highway traveling northbound when extra patrol cars joined the pursuit with lights and sirens activated. Officer Shipp recognized that he now had assistance so he activated his lights and sirens. However, the Thunderbird did not yield. Officer Shipp accelerated to approximately 90 miles per hour but was unable to keep pace with the Thunderbird. Another police vehicle, driven by Officer Jonathan Boucher, passed Officer Shipp as they both continued to pursue the Thunderbird. The Thunderbird proceeded to speed through two red lights before turning onto a road that terminated in a fence, which was erected at the edge of a construction site.

By the time Officer Shipp had stopped his vehicle, Officer Boucher had his gun drawn on Mathew Neifeld who was standing near the passenger side of the Thunderbird and Nelson who was lying on the ground near the driver side. The officers arrested both Nelson and Neifeld. During the arrest, Officer Boucher found a stocking in the front right pocket of Neifeld's pants. A search of the car recovered Paquette's cell phone, Paquette's credit card, and three sets of black gloves. After the arrest, Officer Shipp retraced the path the Thunderbird traveled after he pulled his vehicle behind it. Officer Shipp searched for a discarded weapon, but never found one.

Nelson was later tried by a jury and found guilty of count 1—conspiracy to commit robbery, count 2—robbery with the use of a deadly weapon, and count 3—failure to stop on signal of a police officer, a violation of NRS 484.348(3)(b). The district court sentenced Nelson for count 1, to a minimum of 60 months and a maximum of 190 months; for count 2, to life with the possibility of parole after serving 120 months;1 and for count 3, to a minimum of 60 months and a maximum of 190 months. All counts are to run concurrently. Nelson appeals the judgment of conviction.

DISCUSSION

NRS 484.348(3)(b) is not unconstitutionally vague

Nelson argues that the conviction for "failure to stop" under NRS 484.348(3)(b) is constitutionally unfair. NRS 484.348(1) makes it a crime for the driver of a motor vehicle to fail to stop or otherwise flee from a police officer when signaled to stop:

[T]he driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a peace officer in a readily identifiable vehicle of any police department or regulatory agency, when given a signal to bring his vehicle to a stop is guilty of a misdemeanor.

The offense becomes a felony under NRS 484.348(3)(b) when, in addition to failing to stop when signaled, the driver "[o]perates the motor vehicle in a manner which endangers or is likely to endanger any person other than himself or the property of any person other than himself." Specifically Nelson argues that the term "endangers" in NRS 484.348(3)(b) is unconstitutionally vague because the term is not defined and is inadequate to give a person fair notice of what conduct is prohibited or to restrain arbitrary enforcement of the statute. We disagree.

The constitutionality of a statute is reviewed by this court de novo.2 In addition, statutes enjoy a presumption of validity, and the challenger has the burden of demonstrating their unconstitutionality.3

A statute is void for vagueness and therefore repugnant to the Due Process Clause of the Fourteenth Amendment if it fails to sufficiently define a criminal offense such that a person of ordinary intelligence would be unable to understand what conduct the statute prohibits.4 In addition, a statute is unconstitutionally vague if it encourages arbitrary and discriminatory enforcement because it lacks specific standards.5 However, "a statute will be deemed to have given sufficient warning as to proscribed conduct when the words utilized have a well settled and ordinarily understood meaning when viewed in the context of the entire statute."6 Although "there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls," such a limitation is not sufficient to determine that a criminal statute is unconstitutional.7

Although several states have determined that similarly worded statutes are indefinite and vague, a majority have determined that the term "endangerment" is sufficiently specific to withstand constitutional scrutiny.8 For example, in State v. Sarriugarte, the Oregon Court of Appeals rejected a constitutional challenge to an Oregon statute that proscribed driving a vehicle "`in a manner that endangers or would be likely to endanger any person or property.'"9 The court determined that this statutory language is "at least as informative about the conduct it proscribes and at least as capable of objective adjudicative application as are many standard civil or criminal jury instructions, e.g., those relating to negligence, recklessness and certain culpable mental states."10 Upon review of a similar statute, the Supreme Judicial Court of Maine held that when the statute is read to include as an element criminal negligence, which is defined as the lowest culpable state of mind, the statute withstands constitutional scrutiny.11 Finally, when addressing this issue, the New Jersey Supreme Court recognized that "`[w]here the legislative regulatory object is appropriate and the conduct intended to be prohibited is not fairly susceptible of definition in other than general language, there is no constitutional impediment to its use.'"12 We are persuaded by the majority position.

To violate NRS 484.348(3)(b), an individual first must flee from a police officer who is signaling the individual to stop his vehicle. Next, the individual must operate his vehicle in such a manner that it endangers or is likely to endanger other persons or property.

The term "endangers," as used in NRS 484.348(3)(b), is not unconstitutionally vague when considered in the context of the entire statute. The statute gives fair notice to people of ordinary intelligence that an individual is committing a felony when he or she drives in such a manner as to endanger persons or property while fleeing from a police...

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