140 Nev., Advance Opinion c21
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
KIM A. JUDD, No. 85734-COA
Appellant,
vs. FILE
THE STATE OF NEVADA,
-
Respondent. MAR 28 20
RT
SY
EP DEPUTY CLERK
Appeal from a judgment of conviction, entered pursuant to a
jury verdict, of one count of felony injuring or tampering with a motor
vehicle and one count of felony coercion. Seventh Judicial District Court,
Lincoln County; Gary Fairman, Judge.
Affirmed in part, reversed in part, and remanded.
Katschke Law, LLC, and Franklin J. Katschke, Panaca,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Dylan V. Frehner, District
Attorney, Lincoln County,
for Respondent.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.
OPINION
By the Court, BULLA, J.:
The consequences of criminal convictions vary widely between
misdemeanors and felonies, including the potential terms of incarceration.
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And sometimes crimes—such as coercion—can be punished as either.
Under NRS 207.190(2), criminal coercion is punishable as a felony if carried
out using physical force or the immediate threat of physical force. However,
absent the use or immediate threat of physical force, coercion is punishable
as a misdemeanor. In this opinion, we consider whether NRS 207.190(2)'s
use of the phrase "physical force" to distinguish between coercion being
punished as a felony versus as a misdemeanor should be limited to physical
force against a person, and not merely against property—in this case, a 1957
Chevrolet truck. Because we conclude that the Nevada Legislature
intended for the distinguishing statutory element of "physical force" to be
limited to force against a person, the jury should have been so instructed.
In reaching our decision, we emphasize the importance of giving
proper jury instructions for the essential elements of a crime. Doing so is
particularly important where, as here, the jury's consideration of the
essential element of physical force, without proper instruction, resulted in
a felony conviction. As the district court failed to properly instruct the jury
on the definition of physical force as being limited to force against a
person—the essential element required for a felony conviction—we
necessarily reverse this conviction. However, we affirm the felony
conviction for injuring or tampering with a motor vehicle, as the district
court correctly instructed the jury as to the proper measure of damages for
the partial destruction of property.
FACTS AND PROCEDURAL HISTORY
In 2020, Scott Reber purchased a 1957 Chevrolet truck. After
having mechanical work completed on the truck to render it drivable, Reber
dropped his truck off at the residence of a longtime acquaintance, appellant
Kim A. Judd, for restoration and repair work to the truck's exterior. Reber
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initially paid Judd about $1,000 for the repairs, but the two did not sign a
formal agreement.
When the work was not completed several months later, Reber
decided to retrieve his truck and have the work finished elsewhere. In a
phone call, Judd refused to return the truck unless Reber paid Judd an
additional sum for the repairs he had already made. Reber declined to pay
more and told Judd he was coming to retrieve his truck. At this point, Judd
retorted that if Reber came on to Judd's property, Judd would kill him.
Thereafter, Judd continued to threaten Reber, stating in text messages that
if Reber came to retrieve the truck, he would burn or damage the truck.
Judd then struck the truck several times with a sledgehammer and sent
Reber pictures of the damage. The following day, the sheriff accompanied
Reber to Judd's residence to retrieve the truck.
The State charged Judd with one count of felony coercion and
one count of felony injuring or tampering with a motor vehicle, and the case
proceeded to trial. During the settling of jury instructions, Judd raised two
objections. First, Judd objected to a proposed jury instruction setting forth
the elements of felony coercion without defining "physical force."
Specifically, as an alternative to the standard coercion instruction, Judd
offered an instruction adopting the definition of physical force as set forth
in NRS 193.303, which defines physical force as force used against "another
person." In connection with Judd's request for this instruction, Judd orally
requested dismissal of the felony coercion count because the State had failed
to present evidence that either physical force or the immediate threat of
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physical force had been used against Reber.' Second, Judd objected to the
State's proposed jury instruction regarding the proper measure of damages.
The State argued that because the truck was only partially damaged the
proper measure of damages was the cost to repair or replace the damaged
parts. Conversely, Judd argued for an instruction that the proper measure
of damages was the fair market value of each individual part at the time of
the damage, the total of which he asserted had to be less than the value of
the truck when Reber dropped it off, or less than $5,000. The district court
denied Judd's motion to dismiss, refused Judd's proposed instructions, and
specifically declined to give an instruction defining "physical force." The
jury found Judd guilty on both felony counts, and Judd was sentenced to a
maximum of 48 months in prison on each count, to run concurrently. This
appeal followed.
Judd challenges his convictions on several grounds, and we
address two in this opinion. First, we agree with Judd's argument that,
with respect to the felony coercion charge, the district court erred in failing
to give a jury instruction defining "physical force" as being limited to force
against a person, and therefore we necessarily reverse the felony coercion
conviction. But second, as to the charge of injuring or tampering with a
motor vehicle, we conclude that the district court correctly instructed the
jury on the proper measure of damages applicable to the partial destruction
'To the extent that Judd contends the district court erred in denying
his oral motion to dismiss at the close of the State's case, we note that no
statutory authority permits a motion to dismiss during a criminal trial for
insufficient evidence, and therefore the district court did not err in denying
Judd's motion. Cf. NRS 175.381(1) ("If, at any time after the evidence on
either side is closed, the court deems the evidence insufficient to warrant a
conviction, it may advise the jury to acquit the defendant, but the jury is
not bound by such advice.").
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of property. Thus, we affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
ANALYSIS
The district court committed reversible error when it failed to instruct the
jury that NRS 207.190(2)'s use of the phrase "physical force" is limited to
force against a person
NRS 207.190 sets forth the crime of coercion and provides that
1. It is unlawful for a person, with the intent
to compel another to do or abstain from doing an act
which the other person has a right to do or abstain
from doing, to:
(a) Use violence or inflict injury upon the
other person or any of the other person's family, or
upon the other person's property, or threaten such
violence or injury;
. . . ; or
(c) Attempt to intimidate the person by
threats or force.
2. A person who violates the provisions of
subsection 1 shall be punished:
(a) Where physical force or the immediate
threat of physical force is used, for a category B
felony by imprisonment in the state prison for a
minimum term of not less than 1 year and a
maximum term of not more than 6 years, and may
be further punished by a fine of not more than
$5,000.
(b) Where no physical force or immediate
threat of physical force is used, for a misdemeanor.
Although Judd does not challenge the elements of coercion set
forth in NRS 207.190(1), he contests his felony conviction under the statute.
To convict Judd of felony coercion under NRS 207.190, the State was
required to prove an additional element as set forth in subsection 2: the use
of "physical force or the immediate threat of physical force." Judd contends
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that the district court erred when it failed to instruct the jury that "physical
force," as used in NRS 207.190(2), is limited to force against a person.
Specifically, Judd argues that the district court should have
adopted his proposed jury instruction that applied the definition of "physical
force" from NRS 193.303. That provision, located within the general section
of criminal statutes governing the use of force by peace officers, states that
"[p]hysical force' means the application of physical, techniques, chemical
agents or weapons to another person." (Emphasis added.) Alternatively,
Judd proposes that the district court should have given an instruction that
physical force or threat of physical force must be used against a person. And
since the evidence at trial did not establish the requisite physical force
against a person, Judd contends the district court should have dismissed
that felony charge. The State counters that Judd's proposed jury
instruction would have misstated the law, asserting that NRS 207.190(2)'s
plain language and legislative history support the conclusion that "physical
force" includes the use of force against both persons and property.2
We review a district court's refusal to issue a jury instruction
for an abuse of discretion or judicial error, but we review whether a
proffered instruction correctly states the law de novo. Nay v. State, 123
2 We do not necessarily agree that Judd's proposed instruction
incorporating language from NRS 193.303 should have been the exact
instruction given in this case, but we recognize that Judd's primary
argument is that an instruction should have been given to define physical
force or threat of physical force as being against a person and not merely
property. We note that the district court has the ultimate responsibility of
ensuring that the jury is properly instructed. See Crawford v. State, 121
Nev. 744, 754-55,
121 P.3d 582, 589 (2005) ("And in the final analysis, the
district court is ultimately responsible for not only assuring • that the
substance of the defendant's requested instruction is provided to the jury,
but that the jury is otherwise fully and correctly instructed.").
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Nev. 326, 330,
167 P.3d 430, 433 (2007). In this case, we must first
determine whether "physical force" as used in NRS 207.290(2), which
distinguishes felony coercion from misdemeanor coercion, requires force or
the immediate threat of force to be used against a person. Thus, to resolve
whether the district court abused its discretion or erred in failing to give an
instruction that "physical force" must be against a person, we necessarily
consider whether such an instruction encompasses a correct statement of
the law based on legislative intent.
Our "starting point for determining legislative intent is the
statute's plain meaning." State v. Lucero, 127 Nev. 92, 95,
249 P.3d 1226,
1228 (2011). However, "when 'the statutory language lends itself to two or
more reasonable interpretations,' the statute is ambiguous," and this court
will "look to the legislative history [to] construe the statute in a manner that
is consistent with reason and public policy." Id. (quoting State v. Catanio,
120 Nev. 1030, 1033,
102 P.3d 588, 590 (2004)); see also Jones v. Nev., State
Bd. of Med. Exam'rs, 131 Nev. 24, 28,
342 P.3d 50, 52 (2015) ("Because the
statute does not define [the disputed term] and the parties each advance a
different definition, we may look beyond the plain rneaning of the
statute . . . ."). Further, "[p]enal. statutes should be narrowly construed
where they are ambiguous."3 Romero v. State, 116 Nev. 344, 348,
996 P.2d
894, 897 (2000).
3We note that the phrase "physical force" is considered a legal term of
art that has different meanings in different statutory contexts. Cornpare
Johnson v. United States, 559 U.S. 133, 141 (2010) (holding that the phrase
"physical force" as used in the Armed Career Criminal Act refers to "force
capable of causing physical pain or injury to another person"), with United
States v. Castleman, 572 U.S. 157, 163 (2014) (holding that a federal
statute's use of the phrase "physical force" when setting out a "misdemeanor
crime of domestic violence" includes "even the slightest offensive touching").
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NRS 207.190 does not define "physical force." And in this case,
the parties each ascribe different reasonable meanings to the phrase.
Under the State's reading, NRS 207.190(2)'s inclusion of "physical force"
pertains to all conceivable types of physical force against persons or
property based on the elements of coercion set forth in NRS 207.190(1)(a).
While the State acknowledges that the phrase "physical force" is not
included in NRS 207.190(1)(a), the State interprets NRS 207.190(2) to mean
that if a defendant uses any physical force to accomplish the actions set
forth in NRS 207.190(1)(a) (e.g., violence against persons or property), then
the crime is punishable as a felony. Judd conversely interprets NRS
207.190(2)'s use of "physical force" to be a separate element required for
felony coercion and asserts it should be interpreted as physical force only
against a person. With this interpretation, Judd seeks to distinguish felony
coercion from misdemeanor coercion, as both felony and misdemeanor
coercion encompass the same elements set forth in NRS 207.190(1). Judd
relies on the narrower definition of "physical force" in NRS 193.303 to
support his argument that physical force must be against a person. See
Jones, 131 Nev. at 28, 342 P.3d at 52 (explaining that reasonable
interpretations may draw from "analogous statutory provisions"). Because
physical force" bears two reasonable interpretations in the context of the
statute, the phrase is ambiguous. See id. Thus, we next turn to the statute's
legislative history for additional insight.
In 1967, the Legislature added "physical force" as a required
element of felony coercion under NRS 207.190. See A.B. 71, 54th Leg. (Nev.
1967). The Legislature amended NRS 207.190 again in 1995 under S.B.
416, 68th Leg. (Nev. 1995), which classified all felony crimes under a letter-coded felony scheme—category A felonies being the most serious and
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carrying the longest potential sentences. The bill classified felony coercion
as a category B felony—the category containing the second-most serious
felonies—which is how the crime remains classified today. See id.; NRS
207.190(2).
In classifying felonies, the Legislature relied, in part, on a
report produced by the Nevada Department of Prisons detailing the average
sentence imposed and average time served for crimes separated by the
putative letter-coded tiers. See Hearing on S.B. 416 Before the Assemb.
Comm. on Judiciary, 68th Leg., at 757, 775 (Nev., May 17, 1995). That
report delineated felony coercion as a "serious crime" and category B felony
based on prior putative lists, as well as on the department's own
categorization of the crimes based on their elements. Id. at 773, 775.
Within this list, the only other "serious crime" listed as a category B felony
that also required physical force as a necessary element was felony battery,
which limited the use of physical force to force against another person.4 See
id. at 775; Hobbs v. State, 127 Nev. 234, 238-39,
251 P.3d 177, 180 (2011)
(explaining that the physical force required for battery includes "the
intentional and unwanted exertion of force upon another" (emphasis
added)). Because the LeOslature viewed felony coercion and felony battery
as similarly serious crimes when designating them as category B felonies,
we conclude that it intended for the crimes' shared elements to carry the
same meaning and, therefore, for felony coercion's requirement of "physical
4During oral argument, the State suggested that extortion under NRS
205.320(2) punishes threats to injure property with the intent to gain money
as a category B felony. But unlike extortion, coercion requires the use of
physical force or the immediate threat of physical force as a necessary
element of the felony crime. Moreover, as the State duly noted, it did not
charge Judd with extortion.
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force" to only include force against a person. See Savage v. Pierson, 123
Nev. 86, 94,
157 P.3d 697, 702 (2007) ("[W]hen the same word is used in
different statutes that are similar with respect to purpose and content, the
word will be used in the same sense, unless the statutes' context indicates
otherwise . . . ."). Thus, although "physical force" in NRS 207.190(2) is not
defined as force against a person, we conclude that the legislative history
supports Judd's position that it was intended to be, contrary to the State's
position. We also note that the only reference to "force" in NRS 207.190(1)
involves coercion by lalttempt[ing] to intimidate the person by threats or
force." See NRS 207.190(1)(c) (emphasis added).
Interpreting felony coercion to require the use of physical force
(or the immediate threat of physical force) against a person, and not merely
against property, is both reasonable and avoids absurd results. See State v.
Quinn, 117 Nev. 709, 713,
30 P.3d 1117, 1120 (2001) (explaining that a
reviewing court's interpretation of an ambiguous statute "should be in line
with what reason and public policy would indicate the [L]egislature
intended, and should avoid absurd results" (quoting Gallagher v. City of Las
Vegas, 114 Nev. 595, 599-600,
959 P.2d 519, 521 (1998))). For example,
under the State's proposed reading of the coercion statute, a defendant
would be guilty of felony coercion if they used physical force or immediately
threatened physical force against any personal property, even if the
resulting damage would be less than $1.
The State, in its supplemental authorities on appeal, points to
Guerrina v. State, where the Nevada Supreme Court observed in dicta,
paraphrasing subsection 1 of the coercion statute, that "felony coercion
consists of the use or immediate threat of violence or injury against a person
or property, with 'the intent to compel another to do or abstain from doing
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an act which the other person has a right to do or abstain from doing." 134
Nev. 338, 346,
419 P.3d 705, 712 (2018) (quoting NRS 207.190(1)). In
Guerrina, however, the supreme court affirmed the defendant's felony
coercion conviction because the defendant's immediate proximity to the
victim, accompanied with a command to disconnect the phone, arose to "an
immediate—albeit unspoken—threat of physical force" against the victim.
Id. at 347, 419 P.3d at 713 (internal quotation marks omitted). In contrast
to the facts in Guerrina, Judd and Reber were miles apart when Judd
threatened him over the phone, and that threat carried no immediate threat
of physical force against Reber's person, as Reber acknowledged at trial.
Thus, the holding of Guerrina is unpersuasive in resolving the matter before
US.
The State otherwise points to no controlling legal authority in
this jurisdiction, nor do we find any, where a felony coercion conviction was
affirmed based solely on the use of physical force or immediate threat of
physical force against property with no accompanying use or immediate
threat of force against the victim's person.5 Further, to the extent any
5At oral argument, the State discussed United States v. Edling, 895
F.3d 1153 (9th Cir. 2018), where the United States Court of Appeals for the
Ninth Circuit, in deciding whether a conviction for felony coercion was a
"crime of violence" for federal sentencing purposes, looked to three
unpublished orders by the Nevada Supreme Court affirming felony coercion
convictions. Although those unpublished decisions involved defendants
forcefully depriving victims of phones they were using to call law
enforcement, the Ninth Circuit speculated that there was a "realistic
probability' that a defendant could be convicted of felony coercion without
using or threatening to use violent physical force against the person of
another" and therefore felony coercion under NRS 207.190 was not a "crime
of violence" under federal sentencing guidelines. Id. at 1159 (quoting U.S.
Sent'g Guidelines Manual § 4B1.2). We are not persuaded by the Ninth
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lingering ambiguity as to the statutory requirement of "physical force"
remains, the rule of lenity weighs in favor of Judd. Under the rule of lenity,
if a penal statute remains ambiguous after exhausting all other methods of
statutory interpretation, then the statute should be "interpreted in the
accused's favor." Lucero, 127 Nev. at 99,
249 P.3d at 1230 (quoting Moore
v. State, 122 Nev. 27, 32,
126 P.3d 508, 511 (2006)). Thus, the rule of lenity
further supports our interpretation that the requirement of "physical force"
under NRS 207.190(2) is limited to force against a person because this
resolves any remaining ambiguity in Judd's favor.6
Circuit's conjecture. Of course, the use of such force could be directed to
both property and a person, such as the use of physical force to grab a phone
from a person's hand and destroy the phone to prevent a call to law
enforcement. See, e.g., Gramrn v. State, No. 72459, 2018 WL 679548, at *1
(Nev. Feb. 1, 2018) (Order of Affirmance) (affirming a conviction of felony
coercion where the defendant hit a phone out of the victim's hand while the
victim was trying to call the police). Thus, to establish felony coercion, there
must be some temporal proxirnity between the intent to damage property
and the victim such that a reasonable person under the same circumstances
would feel immediately threatened by the use of physical force against their
person. See Santana v. State, 122 Nev. 1458, 1462-63,
148 P.3d 741, 744-
45 (2006). We also note that in Barber v. State, No. 77650, 2020 WL
3570435, at *1 (Nev. June 30, 2020) (Order of Affirmance), the supreme
court expressly declined to address whether physical force requires force
against a person for felony coercion because the issue was not preserved for
appellate review and, therefore, affirmed a felony coercion conviction in an
unpublished order based on the sufficiency of evidence where the
defendant's actions of "cut[ting] the lines to the land line" and removing the
battery from the victim's cell phone prevented the victim from calling for
help.
6 Indeed, when faced with a similar question—determining whether
the language "threat of physical injury" in a criminal statute included
threats to both property or a person, or solely to a person—the United States
Court of Appeals for the Tenth Circuit relied, in part, on the rule of lenity
to hold that the phrase only applied to threats of physical injury to a person.
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We therefore conclude that the district court erred in refusing
to instruct the jury that "physical force" must be against a person, which is
necessary to support the charge of felony coercion in accordance with NRS
207.190(2). Having concluded that the district court erred in failing to
properly instruct the jury, we now determine whether that error was
harmless. See Nay, 123 Nev. at 333-34, 167 P.3d at 435 (recognizing that
harmless-error review applies to jury instruction errors). "[A]n error is
harmless when it is clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error." Id. at 334, 167
P.3d at 435 (quoting Wegner v. State, 116 Nev, 1149, 1155, 14 P.3d 25, 30
(2000), overruled on other grounds by Rosas v. State, 122 Nev. 1258, 1267-
68, 147 P.3d 1101, 1108 (2006) (further internal quotation marks omitted)).
At trial, Reber explicitly testified that Judd never used any
physical force against him and that he did not feel he faced any "immediate
threat of danger" when Judd, over the phone, threatened him and his
property if he attempted to retrieve the truck because they were more than
ten miles apart.7 Under these facts, we cannot conclude beyond a
reasonable doubt that a rational jury would have found Judd guilty of felony
coercion for partially damaging Reber's truck had the district court properly
instructed the jury on the definition of "physical force" as being against a
person. Under these same facts, absent the district court's error in failing
United States v. O'Connor, 874 F.3d 1147, 1157-58 (10th Cir. 2017) ("[T]he
rule of lenity counsels courts to interpret [ambiguous criminal statutes] to
'avoid an increase in the penalty prescribed for the offense." (quoting United
States v. Manatau, 647 F.3d 1048, 1055 (10th Cir. 2011))).
7At oral argument, both parties agreed that, at the time Judd
threatened Reber, they were approximately 10 to 15 miles away from each
other.
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to properly instruct the jury, a rational jury could have found a reasonable
person in Reber's position would not have felt immediately threatened. See
Santana v. State, 122 Nev. 1458, 1462-63,
148 P.3d 741, 744-45 (2006)
(holding that, when determining whether a threat of physical force was
irnmediate for the purposes of NRS 207.190(2), the factfinder must
determine whether a reasonable person under the same circumstances
would have felt immediately threatened). As we cannot conclude beyond a
reasonable doubt that Judd would have been convicted of felony coercion
had a proper instruction regarding physical force been given, we agree that
the error was not harmless and necessarily reverse Judd's conviction of
felony coercion.
The district court properly instructed the jury on the appropriate measure of
damages
Generally, the criminal charge of injuring or tampering with a
motor vehicle is punishable according to the extent of the property damage
caused.8 At trial, the State offered expert testimony to support a felony
conviction for the damage Judd caused to Reber's truck. Ronald Lourenco,
the owner of an autobody shop that provided Reber with an estimate of the
cost to repair the exterior damage to the truck Judd caused, testified that
the damaged exterior parts were not repairable and required replacement.
Lourenco also testified that he could not find original parts for the 1957
Chevrolet truck for sale—new or used—and therefore had to order replica
8Under NRS 205.274(1), it is unlawful to damage the motor vehicle of
another. If the cost of the damage to the motor vehicle is $5,000 or more,
then the defendant is guilty of a category C felony. NRS 193.155(1) (setting
forth the level of culpability for public offenses "proportionate to the value
of property affected"). If the cost of that damage is more than $250 but less
than $5,000, the defendant is guilty of a gross misdemeanor. NRS
193.155(2).
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parts. The shop's estimate costs for these replica parts totaled $17,594.80.
Judd offered no evidence of the parts' replacement value to the contrary.
Rather, Judd argued that each damaged part should be treated as its own
loss and, therefore, the proper measure of damages would be the combined
fair market value for each individual part at the time the damage occurred.
Judd asserts that this total had to be less than $5,000 because Reber
testified that the total value of the truck was less than $5,000 when he
purchased it. The jury ultimately found that the measure of darnages was
$5,000 or more, and Judd was therefore convicted of a felony for the damage
he caused.
On appeal, Judd essentially reargues his position below, that
the district court should not have instructed the jury that the proper
measure of damages was the cost to repair or replace its damaged parts, but
rather, the fair market value of each part at the time it was damaged. Judd
contends that the damaged exterior parts were not permanently affixed to
the truck and, therefore, each individual part should be considered its own
loss, thereby making the proper measure of damages the total fair market
value of the individual parts. The State counters that the district court
properly found that the truck, as a whole, was partially damaged and not a
total loss. Therefore, the district court correctly instructed the jury that the
measure of damages was the cost to repair or replace the parts necessary to
restore the truck. We agree with the State.
In Rornero v. State, the Nevada Supreme Court set forth two
standards for calculating property damage when determining a criminal
defendant's culpability based on the extent of the damage. 116 Nev. at 346-
49, 996 P.2d at 896-98. When property is "completely destroyed," the
appropriate standard is the fair market value of the property at the time it
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was destroyed. Id. at 348, 996 P.2d at 897. "However, when property is
only partially destroyed," "the appropriate measure of damages is the cost
related to repair or restore the property." Id. Under the latter method, the
damage must be directly tied to the offense. Id. at 349, 996 P.2d at 897
(holding that the costs of hiring security following an incident were not
directly tied to property damage at a store).
In this case, Judd partially destroyed Reber's 1957 Chevrolet
truck by damaging individual exterior parts. Even though these parts were
not permanently affixed to the truck's frame, they had to be replaced—as
they could not be repaired—to restore the truck to its condition before Judd
partially damaged it. Thus, the proper measure of damages was the cost to
repair or replace the damaged parts. See Romero, 116 Nev. at 348,
996 P.2d
at 897. Based on the uncontroverted expert testimony at trial, we conclude
that the invoice of $17,594.80 for the replica replacement parts was directly
tied to the offense charged and represented the amount necessary to restore
the partially damaged truck.
Therefore, the district court correctly instructed the jury on the
proper measure of damages for the partial damage Judd caused to Reber's
1957 Chevrolet truck. And, based on the replacement value of the replica
parts necessary to restore the truck, we affirm Judd's felony conviction of
injuring or tampering with a motor vehicle causing damage of $5,000 or
more.9
9We have considered other arguments raised by Judd on appeal,
including that the district court improperly allowed the State to amend the
information after the start of trial; abused its discretion in denying his
request to rernove a juror for misconduct; and erred in denying his motions
to set aside the conviction and conduct a competency evaluation and to
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CONCLUSION
We affirm Judd's felony conviction for injuring or tampering
with a motor vehicle because the district court correctly instructed the jury
on the proper measure of damages. However, we conclude that to affirm a
conviction of felony coercion, physical force or the immediate threat of
physical force must have been used against a person, not merely against
property. Therefore, the district court erred in rejecting a jury instruction
defining physical force or immediate threat of physical force as being
against a person. We further conclude that this error was not harmless.
Accordingly, we reverse Judd's conviction of felony coercion and remand for
further proceedings consistent with this opinion.
i f olswasfavisseaft,
Bulla
We concur:
, C.J.
(41411 , J.
Westburook
remove his attorney and conclude that they do not present a basis for
further relief.
COURT OF APPEALS
OF
NEVADA
17
(0) 1947B
