Washington v. State
| Decision Date | 17 September 2001 |
| Docket Number | No. 36589.,36589. |
| Parties | Charles Edward WASHINGTON, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender, Washoe County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad and Terrence P. McCarthy, Deputy District Attorneys, Washoe County, for Respondent.
Before SHEARING, AGOSTI and ROSE, JJ.
This case is one primarily of statutory interpretation—whether NRS 453.332, which renders the sale of an imitation controlled substance a misdemeanor, repeals by implication NRS 453.323, which renders the sale of an imitation controlled substance a felony. We conclude that these two statutes proscribe the same conduct, and because NRS 453.332 was enacted after NRS 453.323, NRS 453.323 is repealed by implication. Thus, we reverse the sentence imposed by the district court and remand for resentencing under NRS 453.332, the misdemeanor statute.
On March 29, 2000, the State filed a complaint charging appellant, Charles Edward Washington, with one count of selling an imitation substance, representing it to be a controlled substance. According to the charging documents, Washington offered to sell cocaine to an undercover police officer but actually sold a substance that was not cocaine.
The statute under which Washington was charged, NRS 453.323, made his actions a felony. However, another statute, NRS 453.332, prohibited the same conduct but made it a misdemeanor. In light of NRS 453.332, Washington filed a motion to strike the felony penalty, which the district court denied. Washington also filed a motion to dismiss, arguing that NRS 453.323 was repealed by implication and NRS 453.323 and 453.332 unconstitutionally overlapped.
After a hearing, the district court concluded that because both statutes were amended in 1995, even though merely technically, with no mention of repeal, there was no repeal by implication. In doing so, the district court further concluded that the legislative history of NRS 453.332 indicated that it was meant to fight the sale of imitation prescription drugs, while NRS 453.323 was meant to reduce the sale of imitation street drugs. However, the district court did not reference any particular legislative hearings or statutory language to support that proposition.
The State conceded that it was not sure how NRS 453.332 differed from NRS 453.323 and that it seemed that both statutes covered the same conduct. The district court even concluded that a reasonable person would not know from these two statutes which crime he was actually committing—a felony or a misdemeanor. Despite this conclusion, the district court denied the motion to dismiss.
Washington then submitted two jury instructions for consideration should the case go to trial that would have allowed the jury to consider NRS 453.332 as a lesser included offense.1 The district court concluded that under the California Court of Appeals case of People v. Hill,2 which dealt with identical statutes under California law, the lesser included instructions on the misdemeanor were impermissible because the conduct covered was the same. Hence, the district court rejected the proposed instructions.
Washington entered a conditional plea of guilty to the felony of selling a substance but representing it to be a controlled substance, reserving the right to appeal his arguments regarding the conflict between NRS 453.323 and NRS 453.332 and the denial of his request for a lesser included instruction on NRS 453.332. He was sentenced to twelve to thirty months in prison, but the district court suspended the sentence and placed him on probation. This timely appeal follows.
In determining whether the imposition of Washington's sentence based on the felony statute, NRS 453.323, instead of the misdemeanor statute, NRS 453.332, was improper, we must engage in traditional mechanisms of statutory interpretation to determine whether these statutes impermissibly overlap. Generally, we interpret statutes based on their plain meaning, which is intended to reflect legislative intent.3 Statutes within a scheme and provisions within a statute must be interpreted harmoniously with one another in accordance with the general purpose of those statutes and should not be read to produce unreasonable or absurd results.4 We also follow the doctrine of lenity, whereby we interpret criminal statutes liberally and construe inconsistencies or ambiguities in the defendant's favor.5 When a subsequent statute entirely revises the subject matter contained in a prior statute, and the legislature intended the prior statute to be repealed, the prior statute is considered to be repealed by implication.6 This practice is heavily disfavored, and we will not consider a statute to be repealed by implication unless there is no other reasonable construction of the two statutes.7 In making this determination, we look to the text of the statutes, legislative history, the substance of what is covered by both statutes, and when the statutes were amended.8 The fact that a statute is enacted after another statute, but is subsequently amended without mention of the first statute, may weigh against a finding of legislative intent to repeal by implication.9 However, a finding that the statutes entirely cover the same conduct could weigh in favor of finding repeal by implication.10 In addition, if a subsequent statute expresses a comprehensive plan to regulate a particular subject matter, this may repeal prior statutes that deal with smaller aspects of that plan.11
The statutes in question here are NRS 453.323, the felony statute, and NRS 453.332, the misdemeanor statute. NRS 453.323, enacted in 1977, provides in pertinent part:
NRS 453.332, enacted in 1983, provides in pertinent part:
Looking at the actual language of and conduct covered by these two statutes, we conclude that they substantially overlap both in form and application and cover identical conduct—punishing a person who sells imitation controlled substances, having represented them to be actual controlled substances. Under NRS 453.323(1), a person must represent a substance to be a controlled substance under schedules one or two,12 and actually sell an imitation substance in its place. The seller must also know that he has represented the substance to be controlled, and there is an implied requirement of knowledge that the substance sold was different from what it was represented to be.13
NRS 453.332(1) also prohibits a person from selling an imitation controlled substance, which is defined as an item that a person represents to be controlled by virtue of its shape, size, coloring or packaging.14 Moreover, the person must specifically intend to sell an imitation substance.15 The only cognizable differences between these two statutes are that NRS 453.332 punishes manufacture, distribution or possession in addition to sale,16 excludes placebos in medical research from its coverage,17 and does not refer to schedules to classify the controlled substances.18
Although the words may differ, the...
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