Silks v. State
| Decision Date | 12 February 1976 |
| Docket Number | No. 8146,8146 |
| Citation | 92 Nev. 91,545 P.2d 1159 |
| Parties | Donald Scott SILKS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Donald Scott Silks was convicted, by jury verdict, of possession of stolen property (an airplane owned by the Mexican Navy). After being sentenced to a seven-year term in the Nevada State Prison Silks caused this appeal to be perfected wherein he contends his conviction must be reversed because the trial judge denied his motions (1) to strike portions of the presentence report; and (2) to dismiss the charges against him. He also contends, unconvincingly, that an incriminating statement made by him to a private security guard who had detained him was involuntary and therefore was inadmissible; and further, that the interpreter retained for the purpose of translating the testimony of a certain material witness was incompetent.
1. We reject Silks' argument that he was prejudiced because the trial judge relied on portions of the presentence report which stated: (1) marijuana was found in the airplane; (2) there were outstanding federal warrants against Silks charging drug and narcotic offenses; (3) he had been exonerated of prior charges of contributing to the delinquency of a minor; (4) he had been convicted and sentenced to a six-year term in a Mexican prison on narcotic charges; (5) he had escaped from the Mexican prison just prior to perpetrating the theft of the aircraft from which the instant charge arose; (6) while incarcerated in the Tonopah jail, prior to trial, he had been overheard telling a cellmate that a large quantity of marijuana was buried at a specific location in Nevada and (7) when law enforcement authorities reached the 'secret' location, the marijuana cache had been removed, leaving only a few seeds and traces of leafy material.
Silks does not claim and there is nothing in the record to suggest that the presentence report contained information of a mendacious character. On that basis, this case is distinguished from United States v. Weston, 448 F.2d 626 (9th Cir. 1971), so heavily relied upon by appellant. In Weston, the pernicious material contained in the presentence report consisted of unsupported highly incriminating accusations of a drug dealer. The great weight afforded those accusations by the sentencing court was manifested when, before reviewing the presentence report, the court expressed its inclination to impose the minimum sentence; after reviewing the report, it imposed the maximum sentence. Here, the material contained in the presentence report was substantially more tangible in nature and was of a higher and more persuasive quality than in Weston.
The sentencing proceeding is not a second trial and the court is privileged to consider facts and circumstances which clearly would not be admissible at trial. United States v. Cifarelli, 401 F.2d 512, (2d Cir. 1968) cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968); United States v. Metz, 470 F.2d 1140 (3d Cir. 1972) cert. denied, 411 U.S. 919, 93 S.Ct. 1558, 36 L.Ed.2d 311 (1973). So long as the record does not demonstrate prejudice resulting from consideration of information or accusations founded on facts supported only by impalpable or highly suspect evidence, this court will refrain from interfering with the sentence imposed. In that context, we first observe that the record in this case reflects no prejudice occasioned by the report, 1 and second, that the report contains no objectionable material. 2 Accordingly, we are constrained to affirm the sentence as imposed by the lower court. See Regas v. State, 91 Nev. 502, 538 P.2d 582 (1975).
2. Silks argues that his motion o dismiss should have been granted because the state did not prove, beyond a reasonable doubt, that he knew the airplane was stolen and that it was owned by the Republic of Mexico.
In denying the motion the trial judge concluded that a motion to dismiss was not the appropriate device to challenge the sufficiency of the evidence. Properly, he should have moved that the jury be advised to acquit by reason of insufficient evidence. NRS 175.381; State v. Corinblit, 72 Nev. 202, 298 P.2d 470 (1956).
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