Rice v. State

• Decision Date: 24 January 1992
• Docket Number: No. 21150,21150
• Citation: 824 P.2d 281,108 Nev. 43
• Parties: Bruce Allen RICE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 281

824 P.2d 281

108 Nev. 43

Bruce Allen RICE, Appellant, v.The STATE of Nevada, Respondent.

No. 21150.

Supreme Court of Nevada.

Jan. 24, 1992.

Morgan D. Harris, Public Defender and Patrick E. McDonald, Deputy Public Defender, Clark County, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty. and James Tufteland, Deputy Dist. Atty., Clark County, Las Vegas, for respondent.

OPINION

PER CURIAM:

This is an appeal from a judgment of conviction upon jury verdict of one count of possession of stolen property.NRS 205.275(1).The district court adjudicated appellant a habitual criminal.Accordingly, appellant was sentenced to fifteen years in the Nevada State Prison.

Appellant first contends that the district court violated his due process rights by denying his motion for a mistrial after two state's witnesses made references to the department of parole and probation, in violation of a motion in limine.The test for determining whether a statement is a reference to criminal history is whether the jury could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.Manning v. Warden, 99 Nev. 82, 659 P.2d 847(1983).Because it affects the presumption of innocence, a reference to criminal history, absent special conditions of admissibility, is a violation of due process.Id.;Courtney v. State, 104 Nev. 267, 756 P.2d 1182(1988).Although a reasonable juror could conclude from the references at issue that appellant had engaged in prior criminal activity, we conclude that the error was harmless beyond a reasonable doubt.SeeChapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967).The statements were unsolicited, the references were inadvertent, and defense counsel declined the judge's offer to give the jury a limiting instruction.Under these circumstances, the error was not prejudicial.Cf.Stickney v. State, 93 Nev. 285, 564 P.2d 604(1977).

Appellant next contends that the evidence presented at trial was insufficient to support the jury's finding of guilt.Specifically, appellant contends that it was logically inconsistent for the jury to acquit him of the grand larceny charge and to convict him for possessing the same property as stolen.Furthermore, appellant denies having the requisite intent.

Our review of the record on appeal, however, reveals sufficient evidence to establish guilt beyond a reasonable doubt as determined by a rational trier of fact.SeeWilkins v. State, 96 Nev. 367, 609 P.2d 309(1980).To begin, we note that there is no inherent illogic in the jury's verdict.The fact that the jury did not convict appellant of grand larceny does not necessarily mean that the jury concluded that the property was not stolen, but rather that the jury was not convinced beyond a reasonable doubt that it was appellant who stole it.As the jury was correctly instructed, an accused may not be convicted of both larceny and possession of stolen property.Point v. State, 102 Nev. 143, 146-47, 717 P.2d 38, 40-41(1986).

Moreover, the record reveals sufficient evidence to support the jury's verdict.There is no question that appellant possessed the property.The jury could have concluded that he possessed it for his own gain because he admitted to having sold some of the items.The jury could have also concluded that he possessed it to prevent the victim from again possessing it because he moved it without telling her.In addition, as noted above, the jury could have concluded that someone else stole the goods, but that appellant knew or should have known that they were stolen.SeeNRS 205.275(1).

The jury could reasonably infer from the evidence presented that appellant possessed stolen property.It is for the jury to determine the weight and credibility to give conflicting testimony, and the jury's verdict will not be disturbed on appeal where, as here, substantial evidence supports the verdict.SeeBolden v. State, 97 Nev. 71, 624 P.2d 20(1981).Accordingly, we affirm the judgment of conviction.

ROSE, Justice, dissenting:

The district court realized the impropriety and damage that evidence of appellant Rice's prior criminal convictions would do to his defense.A motion in limine was granted precluding the State from making any reference to the fact that Rice was on parole when the alleged crimes were committed.This, of course, would include reference to parole and probation officers...