Owens v. State
| Decision Date | 10 May 1984 |
| Docket Number | No. 14935,14935 |
| Citation | 680 P.2d 593,100 Nev. 286 |
| Parties | Karen Lynette OWENS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Morgan D. Harris, Public Defender, and Michael L. Peters, Deputy Public Defender, Las Vegas, for appellant.
D. Brian McKay, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty. and James Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.
Following a jury trial, appellant was convicted of one count each of burglary, attempted robbery with the use of a deadly weapon upon a victim 65 years of age or older, battery with the use of a deadly weapon upon a victim 65 years of age or older, and conspiracy to commit robbery.
Appellant was charged as an aider and abettor in the commission of the first three offenses. At trial, the evidence indicated that appellant had helped her accomplice, Larry Williams, enter the victim's residence, and that Williams had immediately thereafter pointed a gun at the victim's face and had then begun beating the victim on the head with the gun. The victim, however, managed to take possession of one of his own firearms, and shot Williams several times, causing Williams' death. The victim was not sure what appellant was doing during the course of this struggle, and only noticed that she had left the residence when the shooting had ceased.
The victim testified at trial that neither appellant nor Williams had ever stated that they wished to rob him, but that he had simply inferred from the fact that Williams was beating him that they wanted his money. Nothing was found missing from his residence following the commission of the crime.
Appellant contends that under the particular facts of her case, the battery offense was a lesser included offense of the crime of attempted robbery, and that her fifth amendment right not to be placed twice in jeopardy was therefore violated when she was convicted for both offenses. We agree.
Nevada has adopted the double jeopardy test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), in which that court held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." See Givens v. State, 99 Nev. 50, 56, 657 P.2d 97, 101 (1983); Litteral v. State, 97 Nev. 503, 508, 634 P.2d 1226, 1229 (1981). We have further held that under the Blockburger test it will always be impermissible for a defendant to be convicted of both a greater and a lesser included offense. See Givens v. State, supra.
At the outset, we note that the general test for determining the existence of a lesser included offense is whether the offense in question "cannot be committed without committing the lesser offense." See Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 594 (1966). Battery requires only the "willful and unlawful use of force or violence upon the person of another." NRS 200.481(1)(a). Attempted robbery, on the other hand, requires an intentional and unlawful attempt to take another person's property "by means of force or violence or fear of injury, immediate or future, to his person or property ...." NRS 200.380(1), 208.070. It is clear that not every time a person commits an attempted robbery will he necessarily also commit a battery. Thus, under the Lisby test, battery would not be viewed as a lesser included offense of robbery or attempted robbery.
We have not, however, always applied the Lisby test in such a strict manner, and have instead held that one may look to the particular facts of a case to determine whether one crime is a lesser included offense of another crime. See Dicus v. District Court, 97 Nev. 273, 625 P.2d 1175 (1981) (); Graves v. Young, 82 Nev. 433, 420 P.2d 618 (1966) (). In Slobodian v. State, 98 Nev. 52, 53, 639 P.2d 561, 563 (1982), we recognized that the above rule is applicable whenever the lesser crime is "so closely related to the [greater] offense that it [is] necessary for the prosecutor to prove the lesser...
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Barton v. State
...lesser included offenses may be instructed, because the elements of one were entirely included in the other.23 On the other hand, in Owens v. State,24 this court addressed the issue of a lesser included offense in the double jeopardy context and applied a different test. In Owens, this cour......
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