Sorce v. State

• Decision Date: 09 June 1972
• Docket Number: No. 6634,6634
• Citation: 497 P.2d 902,88 Nev. 350
• Parties: James Jeffrey SORCE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 902

497 P.2d 902

88 Nev. 350

James Jeffrey SORCE, Appellant, v. The STATE of Nevada, Respondent.

No. 6634.

Supreme Court of Nevada.

June 9, 1972.

Rehearing Denied July 11, 1972.

William K. Lohse, Reno, for appellant

Robert List, Atty. Gen., Carson City, Robert E. Rose, Dist. Atty. and Kathleen M. Wall, Deputy Dist. Atty., Reno, for respondent.

OPINION

BATJER, Justice.

Appellant was convicted by a jury of selling narcotics, a violation of NRS 453.030. He appeals from that conviction and asserts that the marijuana was erroneously admitted into evidence, the trial court erroneously refused to grant a mistrial after alleged misconduct of a juror became known, and the prosecutor's closing statement went beyond permissible scope. We find these allegations of error to be without merit, and affirm the judgment.

Arrangements were made by Reno police officers to have an informer attempt to make a purchase of marijuana from appellant. Prior to being transported to appellant's home, the informer was searched and found to possess only his wallet, some change, and $15 which had been given to him by the police for the purchase. Appellant did sell the informer a bag of marijuana for $15. After making the purchase, the informer walked several blocks to a prearranged meeting place, and there gave the bag and its contents to Officer Farlow. This officer then transferred the marijuana to Officer Van Curen, who marked the items and placed them in a locker to be preserved for trial.

While appellant concedes that a proper chain of custody existed from the time Officer Van Curen received the items until the trial date, he asserts that no proper chain was established prior to that time as the informer was not asked to identify the exhibit at trial, and Officer Farlow made his identification based on marks placed on the exhibit by Officer Van Curen. Essentially, appellant argues that a fatal defect in the chain to custody existed because the informer, during his five to eight minute walk from appellant's house to where he met Officer Farlow, could have tampered with or substituted the substance he purchased from appellant. Although the informer was not asked to identify the exhibit at trial, he gave a detailed description of what he purchased from appellant, and this description matched the marijuana and container that were offered and received into evidence. The informer testified that he took five to eight minutes to walk from appellant's house to where he met Officer Farlow; that he went directly from one point to the other without entering any buildings; and that he did not meet or even talk with any other persons along the way. This testimony laid a proper foundation and established a sufficient chain of custody. It is not necessary to negate all possibilities of substitution or tampering with an exhibit, nor to trace its custody by placing each custodian upon the stand; it is sufficient to establish only that it is reasonably certain that no tampering or substitution took place, and the doubt, if any, goes to the weight of the evidence. Oliver v. State, 85 Nev. 10, 449 P.2d 252 (1969); Carter v. State, 84 Nev. 592, 446 P.2d 165 (1968); Eisentrager v. State, 79 Nev. 38, 378 P.2d 526 (1963). The jury was reasonably able to...