Roland v. State

• Decision Date: 25 March 1980
• Docket Number: No. 11608,11608
• Citation: 96 Nev. 300,608 P.2d 500
• Parties: Kenneth M. ROLAND, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 500

608 P.2d 500

96 Nev. 300

Kenneth M. ROLAND, Appellant, v. The STATE of Nevada, Respondent.

No. 11608.

Supreme Court of Nevada.

March 25, 1980.

Morgan D. Harris, Public Defender, and Gary H. Lieberman, Deputy Public Defender, Las Vegas, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., and Howard Douglas Clark and Booker T. Evans, Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

PER CURIAM:

A jury convicted Kenneth M. Roland for unlawfully possessing a short-barreled shotgun. ¹ The facts are not in dispute. Police videotaped appellant and Ricky Dwayne Williams on April 25, 1978, as they negotiated the sale of a short-barreled shotgun to an undercover officer. The appellant, using a false name, bargained with the officer as to price. During the discussions, Ricky Williams left the building, returning with the shotgun. While negotiations continued, the shotgun remained in the physical possession of Ricky Williams. Appellant directed the officer to pay Williams the price agreed upon.

On appeal, appellant cites as error the trial court's refusal to give an instruction defining "possession," and the court's instructing the jury concerning principals in crime.

1. Instruction as to possession.

The trial court gave the following instruction without objection:

"Instruction No. 6: It is a crime for any person to have in his personal or constructive possession a shotgun having a barrel of less than 18 inches in length. Such possession constitutes the crime of possession of a short-barreled shotgun."

The appellant requested that the court give the following instruction:

Defendant's Proposed Instruction A: Possession means that one must have dominion and control over the property. Being merely present at the location, or being merely a spokesman for the true possessor, is not necessarily enough. One must oneself have dominion and control over the property in order to possess it, under the law.

The trial court refused the proposed instruction. ²

It is not error to refuse to give an instruction when the law encompassed therein is substantially covered by another given to the jury. Beets v. State, 94 Nev. 89, 575 P.2d 591 (1978); Geary v. State, 91 Nev. 784, 793, 544 P.2d 417, 423 (1975). This is so even though the offered instruction correctly states the law. Azbill v. State, 88 Nev. 240, 251-252, 495 P.2d 1064, 1071 (1972). It does not appear that the proposed instruction added anything with any degree of precision on a question of importance in the case. Instead, the proposed instruction tended to eliminate elements which were circumstantial and helpful to the State. Instructions on every aspect of the case must be given clearly, simply and concisely, in order to avoid misleading the jury or in any way overemphasizing either party's case. See Guerra v. Handlery Hotels, Inc., 53 Cal.2d 266, 1 Cal.Rptr. 330, 347 P.2d 674 (1959); People v. Rice, 59 Cal.App.3d 998, 131 Cal.Rptr. 330, 333 (1976).

2. Instructions as to principals.

The following instructions were given to the jury:

"Instruction No. 8: To be considered a principal, a person must have (1) committed the act constituting the offense and/or (2) aided or abetted in the commission of the act constituting the offense, and/or (3) directly or indirectly counseled, encouraged, hired, commanded, induced, or procured another to commit the offense."

"Instruction No. 9: To aid under the law is knowingly to aid, support, help or assist in the commission of a crime; it is the intentional doing of some act to render aid to the actual perpetrator of the crime."

"Instruction No. 10: The presence of one at the commission of a felony by another is evidence to be considered in determining whether or not he was guilty of aiding and abetting; and it has also been held that presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred."

The appellant contends that the court erred in giving instructions 8, 9, and 10 because the appellant could not aid and abet another in the crime of possession of a short-barreled shotgun. In our view, however, it is clear that an individual can aid and abet a possessory crime. See, e. g., People v. Storr, 186 Colo. 242, 527 P.2d 878, 881-82 (Colo.1974); People v. Francis, 71 Cal.2d 66, 75 Cal.Rptr. 199, 450 P.2d 591, 595 (1969); see,...