Point v. State

• Decision Date: 09 April 1986
• Docket Number: No. 15418,15418
• Parties: Patrick Olin POINT and Darlene Walker Point, Appellants, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 38

717 P.2d 38

102 Nev. 143

Patrick Olin POINT and Darlene Walker Point, Appellants, v. The STATE of Nevada, Respondent.

No. 15418.

Supreme Court of Nevada.

April 9, 1986.

Morgan D. Harris, Public Defender, Susan Deems Roske, Deputy Public Defender, Las Vegas, for appellant Patrick Olin Point.

Thomas P. Pitaro, Las Vegas, for appellant Darlene Walker Point.

Brian McKay, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., and James Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

Appellant Patrick Olin Point assigns numerous errors to his convictions for burglary (two counts), grand larceny (two counts) and possession of stolen property. All of Patrick's contentions are without merit except as to the conviction for possession of stolen property, which must be reversed. Appellant Darlene Walker Point's convictions for burglary, grand larceny and possession of stolen property are affirmed without exception.

FACTUAL AND PROCEDURAL BACKGROUND

Mike and Zella Burns, victims of appellants' criminal activities, owned and operated a restaurant and motel in Mesquite, Nevada. The two proprietors customarily kept large quantities of currency in their residence to service the needs of their businesses. They also collected silver dollars and uncirculated dollar bills. On September 25, 1982, Mike and Zella returned home from a nine-day vacation and discovered that their house had been ransacked and about $200,000 in bills and $40,000 in silver and other coins had been taken from a vault in the garage. The victims testified at trial that a window to their house had been pried open and a set of men's footprints together with a smaller set of footprints were visible leading from the window and across a ditch away from their property.

On March 9, 1983, when the two victims again returned from a trip, one or more intruders had removed numerous coins, including a silver dollar with a hole in it, and a number of foreign coins. This time a garage window had been broken and the same vault had been relieved of its contents. The alarm system at the residence had been disconnected.

On April 30, 1983, after receiving an informant's tip, Las Vegas police detective Eric DuCharme served a search warrant at appellants' residence and seized bank bags, containers filled with over $8,000 in silver dollars, including a silver dollar with a hole punched through the center of it, nickels, pennies and foreign coins, a rubber mask, a pistol, and handwritten tally sheets with numerical computations similar to those made by Mike and Zella Burns when bundling their bills. A bundle of $100 bills bound by a paper bill wrapper was removed from Darlene's purse. On May 10, 1983, DuCharme executed a second search warrant at appellants' residence and seized furniture and other property thought to have been purchased with the victims' money, various receipts, personal papers, and an additional amount of cash.

At trial, Zella Burns identified as her property the bank bags, the handwritten tabulation sheets, the bundle of $100 bills wrapped with the paper bill wrapper and several unusual coins. A handwriting expert confirmed that the handwriting on sheets with numerals on them seized in the search was that of Mike Burns.

Darlene Point had worked for Mike and Zella Burns as a cashier in 1982 and had observed large sums of cash being brought in and out of the business. Patrick Point was absent from his work from September 20, 1982 to October 7, 1982. The secretary for a doctor who signed a work release slip for Patrick covering those dates testified at trial that the release was given as a courtesy, that Patrick was not examined by the doctor and that Patrick appeared to have no medical problems when the release slip was given. Patrick resigned from his place of employment on October 14, 1982.

The bookkeeper for Patrick's former employer testified that Patrick's annual income was less than $22,000 in both 1981 and 1982. Testimony also revealed that in late September 1982 Patrick purchased for cash a $9,000 motor home. Several days later, Patrick purchased a 1978 Winnebago motor home by adding approximately $14,000 in hundred dollar bills to the trade-in allowance for the other motor home. In the middle of October 1982, Patrick bought a 1983 Ford Bronco and in early December 1982, he paid for a pickup truck with a quantity of two dollar bills and a check, stating that he had won the money gambling. During the course of the trial, testimony revealed numerous other acquisitions of furniture and other property by appellants during the seven-month period immediately following the first burglary.

The defense presented evidence indicating that when Mike Burns was taken to appellants' residence at the time of the search to identify property, he had freely moved in and out of the house unaccompanied by officers. The defense argued in closing that Mike Burns had planted the stolen property in the Points' residence and that Zella Burns misidentified the stolen property.

The jury found Patrick guilty of two counts of burglary, two counts of grand larceny and possession of stolen property. The jury found Darlene guilty of the September 1982 burglary and larceny, and possession of stolen property, and acquitted her of the March 1983 burglary and larceny.

DISCUSSION

Patrick argues that it was error to convict him on both the theft offenses and the offense of possession of stolen property. We agree and accordingly reverse Patrick's conviction for possession of stolen goods.

When any felony is committed after a building is entered with the specific intent to commit a felony, the perpetrator has committed both burglary and the subsequent felony and may be charged and sentenced for both offenses. Sheriff v. Stevens, 97 Nev. 316, 630 P.2d 256 (1981). Thus, Patrick and Darlene could properly be convicted of both burglary and grand larceny. However, in interpreting the federal theft statutes, the United States Supreme Court has held it is error for trial courts to fail to charge the jury that they could not convict of both larceny and receiving stolen property. Milanovich v. United States, 365 U.S. 551, 555, 81 S.Ct. 728, 730, 5 L.Ed.2d 773 (1961). The United States Supreme Court has also decided that it was improper to "pyramid penalties" for the offense of receiving the fruits of one's own theft. Heflin v. United States, 358 U.S. 415, 419, 79 S.Ct. 451, 454, 3 L.Ed.2d 407 (1958); United States v. Gaddis, 424 U.S. 544, 547, 96 S.Ct. 1023, 1025-26, 47 L.Ed.2d 222 (1975). The Supreme Court concluded that the Legislature, in enacting the proscription against receipt and possession, was "trying to reach a new group of wrongdoers, not to multiply the offense of the ... robbers themselves." Heflin v. United States, 358 U.S. at 420, 79 S.Ct. at 454. We have accordingly required a new trial on burglary and receiving stolen property charges where an instruction in accordance with Milanovich was not given and there was no way of knowing whether a properly instructed jury would have found the defendant guilty of burglary or receiving. Shepp v. State, 87 Nev. 179, 484 P.2d 563 (1971).

In the absence of any legislative intent to the contrary, we similarly refuse to attribute to the Nevada Legislature an intent to compound the punishment for larceny, robbery or embezzlement by permitting convictions for the receipt or possession of stolen property against the one who took the property in the first instance. By enacting the statute addressing the receipt or possession of stolen property, NRS 205.275, it is apparent that the Legislature sought to reach and punish those who unlawfully receive or possess stolen property from the initial wrongdoer.

The State produced sufficient evidence to convict Patrick for burglary and grand larceny. However, his conviction for possessing the same property that he had stolen constituted punishment unintended or specified by any Nevada criminal statute. Moreover, because Patrick did not distribute his booty to others, society's interest in proscribing possession of stolen property, i.e., isolating thieves from networks for disposal of their spoils, was not furthered in any way when the jury convicted him of possession. Patrick was not part of the class of persons that society has an interest in punishing for possession of stolen goods. The jury should have been instructed that they could convict defendant of either theft or possession, but not both. The court did not so instruct, and the refusal to grant the motion for new trial on this ground was error. See Shepp v. State, 87 Nev. at 179, 484 P.2d at 563; Thomas v. United States, 418 F.2d 567, 568 (1969).

Where the accused cannot be convicted of both crimes, both convictions are reversible when the reviewing court cannot ascertain what verdict would have been returned by a properly instructed jury. Milanovich v. United States, 365 U.S. at 551, 81 S.Ct. at 728; Heflin v. United States, 358 U.S. at 415, 79 S.Ct. at 451; Shepp v. State, 87 Nev. at 179, 484 P.2d at 563. However, where it is ascertainable upon which count, if either, a properly instructed jury would have convicted the defendant, a new trial would result in an unnecessary expenditure of judicial resources. Under circumstances where the elements of the greater offense are sufficiently established, the lesser offense of possession or receiving should simply be reversed without affecting the conviction for the more serious crime. United States v. Gaddis, 424 U.S. at 551-553, 96 S.Ct. at 1027-28; People v. Francis, 129 Cal.App.3d 241, 180 Cal.Rptr. 873 (1982); People v. Perez, 40 Cal.App.3d 795, 115 Cal.Rptr. 405 (1974); People v. Lohman, 6 Cal.App.3d 760, 86 Cal.Rptr. 221 (1970); People v. Taylor, 4 Cal.App.2d 214, 40 P.2d 870 (1935).

Zella Burns testified that the disfigured silver dollar was taken in the March 1983 burglary. The jury apparently based Patrick's conviction for the larceny...