Zgombic v. State, 19977

• Citation: 798 P.2d 548, 106 Nev. 571
• Case Date: September 13, 1990
• Court: Supreme Court of Nevada

Page 548

798 P.2d 548

106 Nev. 571

Daniel Frank ZGOMBIC, Appellant, v. The STATE of Nevada, Respondent.

No. 19977.

Supreme Court of Nevada.

Sept. 13, 1990.

Terri Steik Roeser, State Public Defender and Janet Bessemer, Deputy Public Defender, Carson City, for appellant.

Brian McKay, Atty. Gen., Carson City, Brent T. Kolvet, Dist. Atty. and Michael P. Gibbons, Deputy Dist. Atty., Douglas County, for respondent.

[106 Nev. 572] OPINION

ROSE, Justice:

The primary issue presented by this appeal is whether appellant's heavy boots constituted a deadly weapon for purposes of sentence enhancement pursuant to NRS 193.165. We conclude that, as a matter of law, the boots did not constitute deadly weapons under NRS 193.165. In reaching this conclusion, we set forth a different definition of deadly weapon for purposes of sentence enhancement than the definition used in our previous decisions. Accordingly, while we affirm appellant's two convictions and sentences therefor, we vacate the sentence enhancement for use of a deadly weapon.

FACTS

On November 3, 1988, Carl Bergemann left his car parked in a parking garage at Harvey's Casino in Stateline, Nevada. At about 8:00 o'clock that evening, Bergemann headed towards his car. Zgombic and two of his friends arrived and parked their car [106 Nev. 573] nearby. Zgombic was angry with his friends and separated from them.

According to Bergemann, Zgombic approached him at his car, said that he had lost all his money in the casino, and demanded Bergemann's money. When Bergemann did not immediately comply, Zgombic threatened to kill him. Zgombic punched Bergemann in the face, grabbed his tie and forcefully threw him to the ground. Zgombic also kicked Bergemann several times in the head, ribs, and side. Zgombic was wearing heavy construction-type boots that had steel-reinforced toes. As Zgombic was walking away, he saw Bergemann's wallet on the ground, removed forty dollars from it, and then discarded the wallet.

As a result of this incident, Bergemann suffered a broken and cut nose, chipped teeth, internal bleeding, several bruises, and two black eyes. Following a jury trial, Zgombic was convicted of robbery with use of a deadly weapon and battery. Zgombic was sentenced to seven years for robbery, an additional consecutive sentence of seven years for use of a deadly weapon, and a concurrent six-month sentence for battery.

LEGAL DISCUSSION

I. Analysis of whether boots constitute a deadly weapon for purposes of sentence enhancement pursuant to NRS 193.165.

Zgombic contends that the district court erred by applying the deadly weapon sentencing enhancement provision of NRS 193.165 ¹ to boots. Appellant specifically asserts that his boots are not hand-held "weapons" used for the purpose of inflicting injury.

This case gives us the opportunity to re-examine our decision in Clem v. State, 104 Nev. 351, 760 P.2d 103 (1988), where we adopted the functional test for determining whether an instrumentality is a deadly weapon for purposes of penalty enhancement under NRS 193.165. Under the functional test, an instrumentality, even though not normally dangerous, is a deadly weapon whenever it is used in a deadly manner. Id. at 357, 760 P.2d at [106 Nev. 574] 106. In Clem, we cited several cases in support of the functional test. Some of these cases dealt with the interpretation of a deadly weapon clause in a statute where a deadly weapon was an element of a crime, such as

assault with a deadly weapon. ² We have no dispute with these cases which use the functional test to define a deadly weapon when a deadly weapon is an element of a crime. Indeed, that is the interpretation generally followed in Nevada. See Loretta v. Sheriff, 93 Nev. 344, 565 P.2d 1008 (1977). Whether the same functional test applies for purposes of sentence enhancement is a different question, however. Upon reflection, we conclude that interpreting the deadly weapon clause in NRS 193.165 by means of a functional test was not what our legislature intended or what is mandated by statutory rules of construction. Accordingly, we overrule the functional test stated in Clem and substitute the "inherently dangerous weapon" test to determine whether an instrumentality is a deadly weapon pursuant to NRS 193.165

Arizona formerly had a penalty enhancement statute that contained language almost identical to NRS 193.165, except that the word gun was used instead of firearm and the enhancement penalty was somewhat different. See State v. Hartford, 130 Ariz. 422, 636 P.2d 1204 (1981) (discussing former A.R.S. Section 13-249(B)). This statute was construed by the Arizona Supreme Court in State v. Church, 109 Ariz. 39, 504 P.2d 940 (1973). The Church court explained:

By adding the words "or deadly weapon" after "armed with a gun" in subsection B, we believe the rule of "ejusdem generis" has application here. The words "ejusdem generis" literally translated means [sic] of the same kind, class or nature. Such rules apply only to persons or things of the same nature, kind or class as preceding specific enumerations. In applying these principles in construing A.R.S. § 13-249, subsec. B, as amended, we are of the opinion that the legislature intended that one armed with a deadly weapon of the type like a gun (ones that are inherently dangerous ), is subject to increased punishment.

Church, 504 P.2d at 943-44 (emphasis added) (citations omitted). Both the Nevada statute and the former Arizona statute refer, essentially, to a "firearm or other deadly weapon." Thus, the Church decision is strong persuasive authority for application of the rule of ejusdem generis to NRS 193.165.

[106 Nev. 575] The dissent points out that the Arizona Supreme Court has limited the holding in Church to cases involving constitutional problems of vagueness where both the underlying crime and the enhancement statute require use of a deadly weapon. See State v. Moss, 119 Ariz. 4, 579 P.2d 42 (1978). Nevertheless, the legislative intent analysis contained in Church is persuasive authority for our interpretation of the nearly identical language in Nevada's enhancement statute. We are not adopting in its entirety Arizona's law of sentence enhancements based on the use of deadly weapons. The Arizona law contains a number of enhancement provisions and, while not overruling Church or its rationale, it permits the consideration of the manner of use of the instrument in some cases.

In Church, the court also determined that the legislative intent in enacting the enhancement penalty statute was to deter criminals from carrying arms which have the potential of inflicting death. Church, 504 P.2d at 943. In Anderson v. State, 95 Nev. 625, 600 P.2d 241 (1979), we concluded that NRS 193.165, our penalty enhancement statute, "demonstrates generally the legislature's concern regarding the increased use of deadly weapons in the commission of crimes and its belief that such proscription will serve to deter persons from using weapons during the perpetration of certain crimes in the hope that the possibility of death and injury will be reduced." Id. at 630, 600 P.2d at 244 (citation omitted). The thrust of the penalty enhancement statutes for using a firearm or other deadly weapon is clearly to deter those who are or may be involved in criminal activity from using weapons that are inherently dangerous. It is meant to inform the criminal element and those preparing

to engage in criminal activity that they will be subject to a severe additional penalty if they use a gun or a deadly weapon in the commission of a crime

Our conclusion finds further support in other canons of statutory construction. First, a criminal statute must be strictly construed against the imposition of a penalty when it is uncertain or ambiguous. Carter v. State, 98 Nev. 331, 334-35, 647 P.2d 374, 376 (1982) (interpreting NRS 193.165 and 193.167). Here, the term "deadly weapon" is indeed uncertain, and thus the broader functional interpretation is not warranted. More importantly, the canons of statutory construction direct us to follow the intent of the legislature whenever a statute is unclear on its face. McKay v. Bd. of Supervisors, 102 Nev. 644, 650, 730 P.2d 438, 443 (1986). We have already cited that intention. Third, this court has stated that Nevada's statutes providing for penalties for crimes must be construed in a manner which avoids unreasonable results. Vidal v. State, 105 Nev. 98, ---, 769 P.2d 1292, 1294 (1989). Under the functional definition of "deadly weapon," [106 Nev. 576] virtually any instrumentality would be a deadly weapon if used to kill or injure a victim. If so, the sentence for almost every crime involving any instrumentality (even a knitting needle or string) causing injury would be doubled. While this result is not patently absurd or unreasonable, we do not believe that this was the public policy which the legislature intended when it enacted NRS 193.165. Following these canons, we conclude that the enhancement penalty for use of a deadly weapon in the commission of a crime pursuant to NRS 193.165 is limited to firearms and other instrumentalities that are inherently dangerous.

NRS 193.165 is designed to deter injuries caused by weapons, not by people. It is the potential violence inhering in the weapon itself which NRS 193.165 addresses. The legislature intended violence caused by people to be remedied by the statutes proscribing the underlying crime. Accordingly, NRS 193.165(3) provides that the deadly weapon enhancement does not apply where use of the weapon is an element of the underlying crime. Clem's functional test for defining a deadly weapon focuses on the defendant's acts of violence, rather than on the potential for violence inhering in the use of a weapon itself. This contravenes the legislature's purpose in enacting NRS 193.165, and, accordingly, we overrule this aspect of our decision in Clem.

Two cases cited in Clem construed enhancement statutes which are...