Phillips v. State
| Decision Date | 27 September 1983 |
| Docket Number | No. 14437,14437 |
| Citation | 669 P.2d 706,99 Nev. 693 |
| Parties | Jesse Willard PHILLIPS, Jr., Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
A jury convicted Jesse Willard Phillips, Jr., the appellant, of (1) two counts of robbery with the use of a deadly weapon; (2) burglary; and (3) escape. On appeal, appellant urges that the conviction for one of the robbery counts must be reversed since there was no evidence that the victim had any interest in the property taken in the robbery. We agree, and accordingly reverse the robbery conviction on that count.
On April 10, 1982, appellant entered a jewelry store planning to rob it. Displaying a pellet pistol, appellant forced the proprietor of the store and two employees into a back room where he taped their hands together and gagged one employee. A customer entered the store. Appellant bound and gagged the customer as well, and carried him back into the shop where he placed him behind the service counter. Appellant then forced the proprietor to show him the cash box, and the bag with the daily receipts. Appellant took the contents of these bags as well as eight diamond rings and sixty-six gold chains.
The police arrived on the scene. Appellant came out of the store with his hands raised. The officers twice attempted to search the appellant. Despite being held under guard with a .12 gauge shotgun, appellant ran. He was apprehended two blocks away after being shot.
The jury found appellant guilty of two counts of robbery. The first count involved the store owner and is not appealed. The second count was based upon an indictment stating that appellant "did willfully and unlawfully take personal property, to wit, United States currency, various checks to JAY'S JEWELERS and numerous items of jewelry, in the presence of JOHN LESLIE LAKE [the customer who entered the store], ..., against his will, and by means of force and violence and fear of immediate and future injury to his person ...." The court permitted this count to go to the jury over appellant's objection by way of motion to dismiss. This was error.
The issue centers on the construction of Nevada Revised Statute Section 200.380, defining robbery. 1 The state argues that one is robbed if he is present during a taking of an item of personal property, regardless of whether he has any interest in the item taken, provided only that he is "subjected to force in order to facilitate [the] taking." This test, however, ignores other essential elements of the offense. Just as we are unwilling to read an unstated element into a silent statute, see Litteral v. State, 97 Nev. 503, 508, 634 P.2d 1226, 1228-1229 (1981), so are we unwilling to ignore one that is stated.
We set forth a definition of "presence" in Robertson v. Sheriff, 93 Nev. 300, 302, 565 P.2d 647, 648 (1977). "The generally accepted definition states that '[a] thing is in the presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.' " (Emphasis added.) We held that a bartender was present despite his remaining in a washroom throughout the robbery of the bar. We noted that "the bartender was prevented by fear from retaining possession of the money." Id. (Emphasis added.)
If the statute meant that robbery was limited to a taking from only the person, the holding would have been different in Robertson. To preclude such a result, the phrase "in his presence" was added to increase the area in which a taking by force or fear constituted the crime of robbery. W. LaFave &...
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Hubbard v. State
....... . ." NRS 200.380(1). In addition to proving the presence element of robbery, the State must prove the possession element. See Phillips" v . State , 99 Nev. 693, 696, 669 P.2d 706, 707 (1983) (concluding that defendant could not be guilty of robbery where the State failed to prove the victim, a customer present during a jewelry store robbery, had a possessory interest in any of the items stolen from the jewelry store). \xC2"......
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Klein v. State, 20078
...... See Phillips v. State, 99 Nev. 693, 669 P.2d 706 (1983) (conviction for robbery of customer of jewelry store reversed where customer had no possessory interest whatsoever in stolen property). Our review of the record on appeal, however, reveals sufficient evidence to establish appellant's guilt ......
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Valentine v. State
......6 Additionally, we have held that the State must show that the victim had possession of or a possessory interest in the property taken. 454 P.3d 716 See Phillips v. State, 99 Nev. 693, 695-96, 669 P.2d 706, 707 (1983). The challenged robbery counts stem from a similar fact pattern. Beginning with count 4, Valentine was charged with robbing Deborah Faulkner of money; Valentine was also charged with robbing Darrell Faulkner, Deborah’s husband, of money in ......
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Campbell v. State
......Additionally, the jury was instructed that the State bore the burden of proving every element of an offense beyond a reasonable doubt. Second, relying on Phillips v. State, 99 Nev. 693, 669 P.2d 706 (1983), appellant contends the district court should have given his proffered robbery instruction because it was more accurate than the instruction given, as his instruction advised the jury that the State must show that the victim had a possessory interest in ......