134 Nev., Advance Opinion 70
IN THE SUPREME COURT OF THE STATE OF NEVADA
GABRIEL IBARRA, No. 69617
Appellant, ATI
vs. C
THE STATE OF NEVADA,
Respondent. SEP ! 3 2018
MPIR A. BROWN
CLL,ALAY'aeJNOU
CLERK
Appeal from a judgment of conviction, pursuant tdJa jury
verdict, of one count of larceny from the person. Eighth Judicial District
Court, Clark County; Michael Villani, Judge.
Affirmed.
Philip J. Kohn, Public Defender, and Jeremy B. Wood and Howard Brooks,
Deputy Public Defenders, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
Ryan J. MacDonald, Deputy District Attorney, Clark County,
for Respondent.
BEFORE THE COURT EN BANG.
OPINION
By the Court, PICKERING, J.:
A jury convicted Gabriel Ibarra of larceny from the person. To
convict a defendant of this crime the State must prove that, "under
circumstances not amounting to robbery, with the intent to steal or
appropriate to his or her own use, [the defendant took] property from the
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person of another, without the other person's consent." NRS 205.270.
Ibarra stole a cell phone from a woman sitting next to him at a bus stop. He
asked to use her phone to make a call, then, as she handed it to him, he
grabbed the phone and ran. Because the woman voluntarily handed him
her phone, Ibarra maintains he did not take the phone "from the person of
another, without [her] consent," so the State failed to prove its case. We
hold that the evidence supports Ibarra's conviction and affirm.
I.
Ibarra approached his victim, EM., at a Las Vegas bus stop
around 3 a.m. E.M. was seated on a bench, texting on her iPhone, when
Ibarra sat down next to her. E.M. did not know Ibarra but she responded
when he spoke to her, asking her where she was from and what kind of
phone she had. After a few minutes, Ibarra asked E.M. if he could use her
phone to make a call. Ibarra's request made E.M. "a little nervous," so she
asked Ibarra for the number he wanted to call and typed it into her phone
before extending her arm to hand him the phone. E.M. testified that Ibarra
"grabbed" the phone from her hand, then stood to walk away. When E.M.
stood to stay close to her phone, Ibarra ran. E.M. gave chase but soon lost
Ibarra. She returned to the bus stop, where she borrowed another person's
phone and called the police. Using an iPhone tracking application, the
police found E.M.'s phone—and Ibarra, whom they arrested—outside a
nearby apartment complex.
E.M. valued her iPhone at $500. Stealing property worth less
than $650 constitutes petit larceny, a misdemeanor. See NRS 205.240.
Stealing property worth less than $3,500 under circumstances amounting
to larceny from the person, by contrast, is a category C felony. See NRS
205.270(1)(a).
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The State charged Ibarra with larceny from the person. At
trial, Ibarra defended the charge on the ground that, while he might have
committed petit larceny, he did not commit the more serious crime of
larceny from the person. His reasoning was this: Because E.M. voluntarily
handed Ibarra her phone, he did not take it from E.M.'s person, without her
consent, or invade her privacy, as the jury was told larceny from the person
requires. At Ibarra's request, the judge instructed the jury that petit
larceny is a lesser included offense of larceny from the person. The verdict
form gave the jury its choice of finding Ibarra not guilty, guilty of petit
larceny, or guilty of larceny from the person. After deliberation, the jury
found Ibarra guilty of larceny from the person.
Ibarra timely appealed. In a split decision, the court of appeals
vacated Ibarra's conviction for the reason the evidence did not establish the
elements required for the crime of larceny from the person. The State
petitioned for review under NRAP 40B, which we granted.
A.
Larceny from the person has been a crime in Nevada since 1911.
See 1911 Nev. Crimes & Punishments § 557, codified in 2 Nev. Rev. Laws
§ 6822 (1912). Except for its penalty provisions, the statute has changed
little over the past 100 years. NRS 205.270 defines the crime of larceny
from the person as follows:
1. A person who, under circumstances not
amounting to robbery, with the intent to steal or
appropriate to his or her own use, takes property
from the person of another, without the other
person's consent, is guilty of:
(a) If the value of the property taken is less
than $3,500, a category C felony and shall be
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Ibarra's sole issue on appeal is the sufficiency of the evidence to
sustain his conviction. He accepts that sufficient evidence established he
intended to steal the phone. But he argues that, since E.M. gave him
permission to use her phone and handed it to him, Ibarra did not take the
phone "without [her] consent," as NRS 205.270(1) requires. He also
maintains that he did not "take[ I" the cell phone "from [E.M.'s] person," as
this court interpreted those elements of the crime in Terral v. State, 84 Nev.
412,
442 P.2d 465 (1968).
A sufficiency-of-the-evidence challenge asks "whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Middleton v. State, 114 Nev. 1089, 1103,
968
P.2d 296, 306 (1998) (internal quotation marks omitted; emphasis in
original). An appellate court will not second-guess a jury's determination
of the facts. Deciding what constitutes "the essential elements of the crime"
presents a question of law and statutory interpretation that we decide de
novo. See Coleman v. State, 134 Nev., Adv. Op. 28, 416 P.3d 238, 240 (2018).
B.
NRS 205.270 does not define what it means to take property
"without the other person's consent." Larceny was a crime at common law
and included lack of consent as an element of the crime. See 3 Wayne R.
LaFave, Substantive Criminal Law § 19.1(a), at 69 (3d ed. 2017) (at common
law, larceny occurred "when one person misappropriated another's property
by means of taking it from his possession without his consent"). To define
"without the other person's consent" in NRS 205.270, we therefore look to
how the common law approached lack of consent in the context of larceny.
See NRS 193.050 ("No conduct constitutes a crime unless prohibited by
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some statute of this state," but the "provisions of the common law relating
to the definition of public offenses apply to any public offense which is so
prohibited but is not defined, or which is so prohibited but is incompletely
defined."); 3 Charles E. Torcia, Wharton's Criminal Law § 342, at 350 (15th
ed. 1995) ("to understand the language and concepts of modern larceny
statutes, an understanding of the pertinent common law is essential [since]
if a term known to the common law has not otherwise been defined by
statute, it is assumed that the common-law meaning was intended").
Judged by the common law, Ibarra took E.M.'s phone without
her consent. At common law, "larceny is committed only when the aim of
the thief is to divest the owner of his ownership, in distinction from the mere
use or temporary possession; so that a consent which comes short of this
necessary intent does not cover the whole ground of the taking, and avails
nothing" 2 Joel Prentiss Bishop, Commentaries on the Criminal Law § 813,
at 451 (6th ed. 1877) (footnote omitted); id. § 809, at 448 ("if one consents to
part with merely the possession, and another, who takes the goods, intends
a theft, the latter, without reference to the question of fraud, goes beyond
the consent, and commits the offence"); see Jarvis v. State, 74 So. 796, 796
(Fla. 1917) ("The consent of the owner in surrendering possession of
property must be as broad as the taking."). "A watch might be handed by
the owner to a friend to be used only for a moment in timing a race, and to
be kept right in the presence of the owner." Rollin M. Perkins, Criminal
Law § 1, at 197 (1957). The friend would "have custody only" and if, at the
time he accepted the watch, he intended to and did steal it, permanently
dispossessing the owner of his watch, the friend committed the crime of
larceny. Id.; see Charles Hughes, Hughes' Criminal Law: The Law of
Crimes, Prosecutions, Defenses and Procedure as Determined by Decisions
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of the Courts of Last Resort in the United States and England § 398, at 105
(1901) (larceny from the person was properly found where the "defendant
entered a store and asked that he be permitted to look at some watches
[then, while] the owner was showing the watches to him, the defendant stole
two of them"). E.M. agreed to let Ibarra use her phone to make a call; she
did not agree to him taking her phone permanently. The mismatch between
the limited permission E.M. gave and the permanent dispossession Ibarra
intended rendered the taking without E.M.'s consent.
Ibarra's fraud in telling E.M. he only wanted to use the phone
briefly to make a call when in fact he intended to steal the phone
permanently is another reason the common law would deem the taking to
be without E.M.'s consent. Common law larceny required "a trespass in the
taking." See 3 LaFave, supra § 19.1(a), at 69. In 1779, an English court
recognized "larceny by trick" as a form of trespassory taking. Rex v. Pear,
168 Eng. Rep. 208, 209 (1779). Larceny by trick, a form of larceny, occurs
"when a defendant, with the intent permanently to deprive, obtained the
personal property of another by fraudulently inducing such other person to
part with its possession." 3 Wharton's Criminal Law, supra § 343, at 350.
Fraudulently representing that you want to hire another's
horse temporarily when, in fact, you intend to steal the horse represents a
classic case of larceny by trick. State v. Humphrey, 32 Vt. 569, 571-72
(1860); see Rex, 168 Eng. Rep. at 209. The taking is "without the consent
and against the will of the owner" because of "the absence of all free and
voluntary consent upon the part of the owner to the party taking his goods
and appropriating them to his own use." Humphrey, 32 Vt. at 571
(emphasis in original).
Where the consent of the owner to the taking has
been obtained by fraud and deception by inducing
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him to believe that the taker wishes to obtain the
property for an honest and temporary purpose,
when in fact the design is to wholly deprive him of
it, and where no consent would have been given if
the real purpose had been disclosed, this is not
regarded as any assent by the owner, and the
taking for the purpose and design of the taker is
against the will of the owner. A consent thus
obtained is wholly nugatory . . . .
Id. at 571-72. By 1860, the principle that fraudulently obtained permission- to-use does not equal consent-to-take for purposes of larceny was "fully
established. . . in England, and. . . in every State in the Union except
Tennessee [and was] so laid down by every elementary book on criminal
law." Id. at 572; see Bishop, supra § 814, at 452 (also noting Tennessee as
the lone exception to the rule that fraud defeats consent for larceny).
Such reasoning continues today. See People v. Williams, 305
P.3d 1241, 1245 (Cal. 2013) ("a property owner who is fraudulently induced
to transfer possession of the property to another does not do so with free
and genuine consent, so the one who thus fraudulently obtains possession
commits a trespass') (quoting 2 Burdick, Law of Crime § 535, at 301 (1946));
Reid v. Commonwealth, 781 S.E.2d 373, 375 n.1 (Va. Ct. App. 2016)
("Larceny by trick is not a separate and distinct statutory offense . . . but
rather is a common law species of larceny where the element of trick
substitutes for the wrongful taking element required by larceny."); see also
State v. Barbour, 570 S.E.2d 126, 128 (N.C. Ct. App. 2002) ("an actual
trespass is not a necessary element of larceny when possession of the
property is fraudulently obtained by some trick or artifice"). Because
Nevada law similarly does not distinguish between larceny by trespassory
taking or larceny by trick, the larceny offenses it recognizes encompass both
forms of larceny. See NRS 205.0833 (titled "Theft constitutes single offense
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embracing certain separate offenses. ."); 1 NRS 205.220 (grand larceny);
NRS 205.240 (petit larceny); see also People v. Gonzales, 392 P.3d 437, 441
n.6 (Cal. 2017) ("Larceny includes larceny by trick, which involves
fraudulently acquiring possession, but not title, of property.").
While larceny from the person is a distinct offense, it stems
from the crime of ordinary larceny. See Terral, 84 Nev. at 413,
442 P.2d at
465 ("Larceny from the person was first recognized as a crime distinct from
simple larceny by the Statute of 8 Elizabeth in the 16th century."); 3
LaFave, supra § 20.3(d)(1), at 235 n.48 ("such a snatching [of property from
the owner's grasp] constitutes larceny from the person, a crime less serious
than robbery but more serious than ordinary larceny"). At the heart of both
larceny from the person and the other larceny crimes is the same offense:
taking property of another without consent. 4 Wharton's Criminal Law,
supra § 464, at 40 ("larceny from the person' . . . is usually a higher grade
or degree of larceny permitting severer punishment irrespective of the value
of the property"). Because larceny from the person is the crime of larceny
with the additional element of taking from the victim's person, it follows
that what negates consent for ordinary larceny also negates consent for
larceny from the person. We therefore hold, consistent with the common
law, that a defendant who through fraud persuades a person to let him use
her property, asking to borrow the property temporarily while intending to
steal it permanently, takes the property "without the other person's
consent" for purposes of NRS 205.270(1).
'Although Nevada enacted general theft statutes in 1989, codified at
NRS 205.0821 through NRS 205.0835, it did not repeal its older larceny
statutes and, in fact, recognized that the penalties specified in a "specific
statute" may apply if those penalties are greater than those specified in the
theft statutes. See NRS 205.0835(1).
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The dissent dismisses our reading of NRS 205.270(1) as "deeply
flawed" because only this particular larceny statute uses the phrase
"without the other person's consent." That NRS 205.270(1) explicitly
includes the common law requirement that the taking be "without the other
person's consent" while Nevada's other larceny statutes do not speak to
consent does not turn fraudulently obtained permission-to-use into consent- to-take for purposes of larceny from the person. To so hold would produce
the anomalous result that in the one statute in which "without the other
person's consent" is stated as an element of the crime, mere permission will
defeat the offense, whereas in every other instance lack of actual consent
must be shown. This not only does not make sense, it would also defy the
mandate in NRS 193.050(3) that the common law apply to any statutory
offense that was also a crime at common law and is not defined or
incompletely defined
Also unpersuasive is the dissent's reliance on the distinction
some out-of-state cases have drawn between fraud in fact and fraud in the
inducement in assessing consent in the sex-crime context. Wholly apart
from fraud, the limited permission E.M. gave Ibarra to use the phone did
not establish consent to him taking it permanently because, as discussed
above, the permission given did not match the taking intended. (This also
suggests Ibarra's fraud was fraud in fact, not fraud in the inducement,
because Ibarra said he wanted to use the phone, not take it.) More
fundamentally, this case does not involve sexual assault but larceny. That
every jurisdiction except 19th century Tennessee recognized that fraud
defeats consent for purposes of common law larceny properly controls our
reading of the phrase "without the other person's consent" in NRS 205.270.
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C.
Ibarra also denies that the State's proof satisfied the "takes
property from the person of another" requirement in NRS 205.270. He
argues that, because E.M. handed him her phone, the "taking" did not occur
until he ran off with the phone, so he did not "take I ]" the phone "from the
person of another." Ibarra's argument misses the mark. A "taking" (or
"caption") at common law "occurs when the offender secures dominion over
the property." 3 LaFaye, supra § 19.3, at 90. Ibarra secured dominion over
the phone when he grabbed it from E.M.'s hand, intending to steal it, not
later, when he ran off with it.
The seminal Nevada case interpreting the "takes property from
the person of another" requirement is Terral v. State, 84 Nev. 412,
442 P.2d
465 (1968). In Terral, the victim was playing craps at the Dunes, with his
gaming tokens in front of him on a rack. Id. at 413,
442 P.2d at 465. The
defendant snatched the tokens from the rack, for which a jury convicted him
of larceny from the person under NRS 205.270 (1967). Id. We reversed.
Id.
at 413-14,
442 P.2d at 465-66. The tokens were in the victim's presence but
not on his person. Unlike the robbery statute, which defines that crime in
terms of taking property by violence, force, or fear "from the person of
another, or in the person's presence," NRS 200.380 (emphasis added); see
1911 Nev. Crimes & Punishments § 162, codified in 2 Nev. Rev. Laws § 6427
(1912) (similar), larceny from the person does not require violence, force, or
fear but does require that the taking be "from the person of another." Citing
People v. McElroy, 116 Cal. 583,
48 Pac. 718 (1897), which interpreted
comparable California statutes, we held that larceny from the person "is not
committed if the property is taken from the immediate presence, or
constructive control or possession of the owner." Terral, 84 Nev. at 414, 442
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P.2d at 466. Rather, the property must be taken "from the person" of the
victim. "The statutory words `from the person' mean precisely that." Id.
After construing NRS 205.270 as limited to takings "from the
person" and not from the person's mere presence, Terral explained its
reasons for reading the statute so literally: "It is important to restrict the
coverage of NRS 205.270 to pickpockets, purse snatchers, jewel abstracters
and the like, since larceny from the person is a felony, and the value of the
property taken is immaterial so long as it has some value." Id. The court
of appeals majority mistook Terral's stated rationale as the judicial creation
of new limitations on the crime of larceny from the person—limitations they
assume without citing authority (what is a jewel abstracter, anyway?)
require larceny from the person to occur through stealth, not fraud. But
"pickpockets, purse snatchers, jewel abstracters, and the like" resemble one
another in a more obvious way: They all (except possibly jewel abstracters)
take property "from the person" of their victim. McElroy confirms that this
is all Terral meant by the above-quoted language, for it explains its
rationale in terms Terral paraphrased, making explicitly clear that the
taking required for larceny from the person can occur openly or through
either stealth or fraud:
In view of these authorities and the origin of the
statute, we think its obvious purpose was to protect
persons and property against the approach of the
pick-pocket, the purse-snatcher, the jewel
abstracter, and other thieves of like character who
obtain property by similar means of stealth or
fraud, and that it was in contemplation that the
property shall at the time be in some way actually
upon or attached to the person, or carried or held in
actual physical possession—such as clothing,
apparel, or ornaments, or things contained therein,
or attached thereto, or property held or carried in
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the hands, or by other means, upon the person; that
it was not intended to include property removed
from the person and laid aside, however
immediately it may be retained in the presence or
constructive control of the owner while so laid away
from his person and out of his hands.. . . Had the
legislature intended that the offense should include
instances of property merely in the immediate
presence, but not in the manual possession about
the person, it would doubtless have so provided, as
it has in defining robbery.
McElroy, 116 Cal. at 586 (emphasis added).
Larceny from the person carries a heightened penalty over
other forms of larceny because, with larceny from the person, "the person of
another has been violated and his privacy directly invaded." Terral, 84 Nev.
at 414,
442 P.2d at 466. But this is not the sole reason for the heightened
penalty. A taking from the person, as opposed to other, more remote forms
of theft, places the victim at risk of confrontation, physical injury, and
alarm. See United States ix Mc Vicar, 907 F.2d 1, 2 (1st Cir. 1990), abrogated
on other grounds by Deseamps tx United States, 570 U.S. 254 (2013). While
larceny from the person does not require the taking to be accomplished by
force, violence, or fear of injury as robbery does, see NRS 200.380—
remember, larceny from the person can only occur "under circumstances not
amounting to robbery," NRS 205.270—a taking "from the person of another"
carries risks of physical and emotional harm that thefts that do not occur in
close proximity to the victim do not. Interpreting NRS 205.270 to include
all types of taking from a victim's physical person supports the statute's
objective: penalizing as a felony and therefore discouraging theft that
carries an unacceptable risk of violating the victim's person or privacy or
causing confrontation, physical injury, or alarm.
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Terral and McElroy represent a minority view in that they
require the taking to be from the victim's physical person; a taking from the
victim's immediate presence will not do. See 3 LaFave, supra § 19.3(b), at
94 ("While the traditional view of larceny 'from the person' is that the taking
must be directly from the body of the person, the current majority view is
that `from the person' includes the area within a victim's immediate
presence.") (footnotes omitted) (citing Terral and McElroy as the minority
view). The rationale for extending larceny from the person to include
takings from the victim's immediate presence is that, in a taking from the
victim's immediate presence, "the rights of the person to inviolability [are]
encroached upon and his personal security endangered quite as much as if
his watch or purse had been taken from his pocket." Id. (internal quotation
and footnote omitted). Whatever the merits of the current majority view
extending larceny from the person to including taking from the victim's
immediate presence as well as from his or her physical person, this case
does not require us to revisit Terral.
Ibarra took the phone from E.M.'s hand, not merely from her
presence, so the taking was from her physical person. Unlike Terra!, where
the victim elected to set his tokens on the craps table instead of keeping
them on his person, Ibarra separated E.M.'s phone from her person
wrongfully, approaching her at the bus stop at 3 a.m., asking to use her
phone, then in E.M.'s words "grabb fine the phone and running off with it.
These facts pose a threat of violent confrontation and injury to the victim
just as surely as—and perhaps more than—other cases sustaining a larceny
from the person charge. See Odom v. Sheriff Clark County, 88 Nev. 315,
316,
497 P.2d 906, 906-07 (1972) (affirming the sufficiency of the evidence
to charge a defendant with larceny from the person for taking money in a
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sting operation involving a police officer pretending to be drunk); In re
George B., 279 Cal. Rptr. 388, 390-91 (Ct. App. 1991) (upholding charge of
grand theft "from the person" where the juvenile stole groceries from a
shopping cart the victim was pushing toward her car in the parking lot); see
also In re Jesus 0., 152 P.3d 1100, 1101 (Cal. 2007) (upholding charge
requiring theft to be "from the person of another" where, intending to steal
something from the victim, the juvenile assaulted him, causing the victim
to drop his cell phone, which the juvenile picked up and kept: "When
someone, intending to steal, causes property to become separated from the
victim's person, then gains possession of the property, the theft is from the
person."). 2
D.
Last, Ibarra argues that Terral interpreted NRS 205.270 as
requiring an additional element not articulated in the statute's plain
language: invasion of privacy. He claims that implicit in the rule that the
theft occur from the person of another is the requirement that the theft
invade the victim's privacy, and that he did not invade E.M.'s privacy when
he tricked E.M. into relinquishing her cell phone. Whether Terral added
the element of invasion of privacy to NRS 205.270 is a question of law
2 The dissent cites three cases it claims reject larceny from the person
under circumstances our interpretation of NRS 205.270 would support:
Willis v. State, 480 So. 2d 56 (Ala. Crim. App. 1985); People v. Warner,
801
P.2d 1187 (Colo. 199W; and People v. Washington,
548 N.Y.S.2d 48 (Sup. Ct.
App. Div. 1989). From a common law perspective, these cases appear to
involve false-pretenses crimes, where a defendant uses fraud to obtain both
title and possession of money or property, not larceny, and so are inapposite.
See Wharton's Criminal Law, supra § 343. They also involve statutes that
differ from ours.
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reviewed de novo. See Paige v. State, 116 Nev. 206, 208,
995 P.2d 1020,
1021 (2000).
As discussed above, Terral limited NRS 205.270 to situations
where the defendant takes the property from the victim's physical person,
not the "immediate presence, or constructive control or possession of the
[victim]." 84 Nev. at 413-14,
442 P.2d at 465-66. Terral explained that the
Legislature specifically limited the statute's application so as not to confuse
larceny from the person, a felony, with petit larceny, a misdemeanor,
resulting in inconsistent applications of the law.
The gravam [e] n of [larceny from the person] is that
the person of another has been violated and his
privacy directly invaded . . . If we were to confuse
the statutory language and rule that "from the
person of another" also means "from the presence of
another," an accused in some instances could be
charged with either a felony or a misdemeanor—a
possibility which the legislature did not intend and
has carefully precluded by clear language.
Id. at 414,
442 P.2d at 466.
Terral did not impose an additional element of invasion of
privacy to the crime of larceny from the person; it simply interpreted larceny
from the person by relating it to similar criminal statutes. See 2B Norman
J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 51:1
(7th ed. 2012) (discussing the interpretive relevance of related statutes).
The term gravamen is used to identify "[t]he substantial point or essence of
a claim." Gravamen, Black's Law Dictionary 817 (10th ed. 2014). That
Terral notes that the "gravam[e]n of [larceny from the personl" is invasion
of privacy does not impose an invasion of privacy requirement for NRS
205.270. Terral identified that what distinguishes larceny from the person
from ordinary larceny and justifies its felony treatment is that the
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act of "taking from the person of another" violates and directly invades the
victim's privacy. See Terral, 84 Nev. at 414,
442 P.2d at 466. This
observation in Terral did not impose an additional element of invasion of
privacy for the crime of larceny from the person.
IV.
With NRS 205.270's application and meaning clarified, we now
determine whether there was sufficient evidence to convict Ibarra of larceny
from the person. Under NRS 205.2700), the State needed to show that
Ibarra took property from E.M.'s person, with the intent to steal or
appropriate to his own use, without E.M.'s consent, under circumstances
not amounting to robbery. At trial, the State provided evidence that Ibarra
asked to borrow E.M.'s cell phone with the ulterior motive of stealing it; that
when E.M. extended her arm to hand Ibarra the phone, %arra grabbed it
from her; and that after E.M. stood to follow Ibarra, he ran.
The judge instructed the jury it could find Ibarra not guilty,
guilty of petit larceny, or guilty of larceny from the person. The jury found
Ibarra guilty of larceny from the person. From the evidence the State
presented, a rational juror could so find. There was sufficient evidence to
support Ibarra's conviction, and we therefore affirm the judgment of
conviction.
J.
We concur:
, C.J. J.
Gibbons
I ArecA SA1, J.
Hardesty Parraguirre
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STIGLICH, J., with whom CHERRY, J., agrees, dissenting:
We can affirm a conviction pursuant to NRS 205.270 only if a
taking occurred "without the other person's consent." In affirming Ibarra's
conviction, the majority removes a material element from NRS 205.270,
misapplies this court's precedent, and blurs the distinction between a crime
the Legislature deemed a felony and others that it deemed misdemeanors.
Therefore, I dissent.
NRS 205.270 contains five elements. It occurs when, (1) "under
circumstances not amounting to robbery," (2) "with the intent to steal or
appropriate," a person (3) "takes property" (4) "from the person of another"
(5) "without the other person's consent." I agree with the majority that
substantial evidence in this case satisfies the first four elements.
Unlike the majority, however, I do not believe these facts
support a finding that Ibarra took the phone "without the other person's
consent." NRS 205.270(1). The uncontested fact is that E.M. willingly
handed her phone to Ibarra. 1 Therefore, as the majority notes, she
consented to him taking the phone. If the language of NRS 205.270 is
unambiguous—as the majority contends it to be—then we must reverse
because Ibarra did not take property "without [E.M.1's consent" Instead,
the majority affirms Ibarra's conviction on the ground that fraud vitiates
consent as a matter of law. This holding is flawed in several respects.
'The majority uses the word "grabbed" from the victim's testimony in
a manner that suggests the taking was forceful or aggressive. What is clear
from the entirety of the victim's testimony is that E.M. voluntarily handed
Ibarra her phone.
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First, the majority's holding contravenes the Legislature's
purpose in elevating larceny from the person to a felony. NRS 205.270
criminalizes a particular method of taking: taking in a way that "violate[sl"
the person of the victim and "directly invade [sl" her privacy. Terral v. State,
84 Nev. 412, 414,
442 P.2d 465, 466(1968) (defining "the gravaman" of NRS
205.270). That is why "[i] t is important to restrict the coverage of NRS
205.270 to pickpockets, purse snatchers, jewel abstracters and the like,
since larceny from the person is a felony, and the value of the property taken
is immaterial." Id. What "pickpockets, purse snatchers, jewel abstracters
and the like" have in common is that they use stealth to take property
without the person's consent. See People v. Warner, 801 P.2d 1187, 1191
(Colo. 1990) ("[Tilieft from the person of another involves circumstances,
such as pickpocketing, where something of value is taken from one who is
unconscious or unaware of the theft."). They "snatch[ I" property" from an
unaware victim. 3 Wayne R. LaFave, Substantive Criminal Law
§ 20.3(d)(1), at 235 & n.48 (3d ed. 2017).
The reason that the Legislature chose to inflict a greater
punishment on theft from the person is because—as the majority notes—
such conduct carries an unacceptable risk of "violating the victim's person
or privacy or causing confrontation, physical injury, or alarm." Majority
opinion ante at 12. Just as robbery is punished more severely because
taking "by means of force" often leads to violence, see NRS 200.380(1),
larceny from the person is heightened above ordinary larceny because "such
a theft involves special potentialities for physical violence or alarm
associated with the taking." Commonwealth v. Williams, 567 A.2d 709, 713
(Pa. Super. Ct. 1989) (internal quotation marks omitted). When, for
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example, a would-be victim discovers a pickpocket's hand in her pocket, she
immediately feels that her privacy has been violated and is likely to defend
herself using physical force.
But the "victim's person or privacy" is not violated when, as
here, the victim willingly hands over property to a fraudster. And the risk
of violence is lower when, as here, the victim hands property to a thief and
subsequently discovers the thief s criminal intent. That is because the
thief's criminal intent is not revealed until the thief is some distance from
the victim and therefore beyond striking distance. To engage in a physical
altercation, a victim must first chase and catch the thief—as E.M. tried to
do here. Such chases are equally likely to occur when a thief steals property
from the "immediate presence" of the victim. Terral, 84 Nev. at 414,
442
P.2d at 466. In sum, the Legislature believed that violence was more likely
to occur when a thief employs a particular method of taking: "from the
person" of the owner "without [that] person's consent." NRS 205.270. That
is not how Ibarra took E.M's phone.
In applying larceny from the person to this scenario, the
majority radically expands what the Terral court thought "important to
restrict." 84 Nev. at 414,
442 P.2d at 466. The majority's interpretation
expands the scope of NRS 205.270 to apply to any situation in which a
defendant fraudulently obtains property from a victim's hands. Examples
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include passing an invalid check, 2 deliberately shortchanging a cashier, 3
and any other scenario in which a defendant tricks a victim into handing
over property. 4 Such situations—like Ibarra's—involve fraud and deceit, as
opposed to stealth and trespass inherent in conduct that NRS 205.270 was
intended to cover. See Terral, 84 Nev. at 414,
442 P.2d at 466. We should
adhere to Terral and follow our sister states that declined to expand larceny
from the person in the manner espoused by the majority today. See, e.g.,
Willis, 480 So. 2d at 57-58 (Alabama); Warner,
801 P.2d at 1188 (Colorado);
Washington, 548 N.Y.S.2d at 49 (New York). Unlike the majority, I find
those well-reasoned opinions more persuasive than two words of dicta from
a nineteenth-century California case. See People v. McElroy, 48 P. 718, 719
(Cal. 1897).
The majority's consent analysis is deeply flawed. As an initial
matter, the majority confuses E.M.'s consent for Ibarra to take her phone—
which she provided—with consent for him to steal it—which she did not.
Unlike every other theft or larceny statute within the Nevada Revised
Statutes, NRS 205.270 is exclusively concerned with the act of taking.
Under a NRS 205.270 conviction, therefore, it is irrelevant that E.M. did
not consent for Ibarra to appropriate her property. By contrast, E.M.'s lack
2 See Willis v. State,480 So. 2d 56, 57-58 (Ala. Crim. App. 1985)
(holding that such conduct is not a taking from the person).
'See People v. Warner, 801 P.2d 1187, 1188, 1191-92 (Colo. 1990)
(holding that such conduct is not "theft from the person").
4 See People v. Washington, 548 N.Y.S.2d 48, 49 (App. Div. 1989)
(holding that a defendant who tricks a victim into voluntarily handing over
money has not committed a taking from the person).
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hitt
of consent to Ibarra's running away with her phone would be relevant to a
conviction for petit larceny, which criminalizes the acts of "steal ingif o
"tak fing] and carr [ying] away," NRS 205.240(1)(a), a misdemeanor when
the value of the stolen property is less than $650. NRS 205.240(2). Ibarra
could also be guilty of "[Ataining money, property, rent or labor by false
pretenses," a misdemeanor when the property obtained is worth less than
$650. NRS 205.380(1). Alternatively, he could be convicted of NRS
205.0832(1)(c) for obtaining E.M.'s property by making a "representation or
statement . . . which is fraudulent and which, when used or made, is
instrumental in causing the wrongful control or transfer of property"—also
a misdemeanor when the value of the property is below $650. NRS
205.0835(2). The fact that the Legislature crafted three misdemeanors to
perfectly cover Ibarra's conduct further indicates that the felony of larceny
from the person criminalizes something else. See Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 252 (2012)
("[L]aws dealing with the same subject—being in pan materia (translated
as 'in a like matter')—should if possible be interpreted harmoniously.").
"Because larceny from the person is the crime of larceny with
the additional element of taking from the victim's person," the majority tells
us, "it follows that what negates consent for ordinary larceny also negates
consent for larceny from the person." The problem with this reasoning is
that "ordinary larceny" does not contain an explicit element regarding the
victim's consent. The crime of ordinary larceny is complete when the
defendant "fiIntentionally steals, takes and carries away, leads away or
drives away" property. See NRS 205.220 (grand larceny); NRS 205.240
(petit larceny). Therefore, "larceny from the person" is not simply "the crime
of larceny with the additional element of taking from the victim's person."
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Rather, it is larceny with two additional explicit elements: "from the person
of another" and "without the other person's consent." NRS 205.270(1). We
should pause before applying a common law principle from "ordinary
larceny" (which does not have an explicit "without the other person's
consent" element) to "larceny from the person" (which does). The majority's
conclusion to the contrary renders superfluous "without the other person's
consent" within NRS 205.270(1). We should not interpret a provision in a
way "that causes it to duplicate another provision or to have no
consequence." Scalia & Garner, supra, at 174 (defining the "Surplusage
Canon").
Assuming arguendo that the legal concept of fraud negating
consent applies to NRS 205.270, the majority misapplies that legal concept.
"[Ti he basic common law rule [is] that, unless there is statutory language
to the contrary, whenever lack of consent is a necessary element of a crime,
the fact that consent is obtained through misrepresentation will not supply
the essential element of non-consent." People v. Cook, 39 Cal. Rptr. 802,
804 (Dist. Ct. App. 1964). In determining whether or not fraud vitiates
consent, courts draw a distinction between "fraud in fact" and "fraud in the
inducement." Fraud in fact occurs when "an act is done that is different
from the act the defendant said he would perform." State v. Bolsinger, 709
N.W.2d 560, 564 (Iowa 2006). Fraud in fact vitiates consent because "where
there is fraud in the fact, there was no consent to begin with." People v.
Harris, 155 Cal. Rptr. 472, 478 (Ct. App. 1979). By contrast, fraud in the
inducement occurs when "the act is done as the defendant stated it would
be, but it is for some collateral or ulterior purpose." Bolsinger, 709 N.W.2d
at 564. Such fraud does not vitiate consent. People v. Stuedemann,
67 Cal.
Rptr. 3d 13, 16 (Ct. App. 2007) ("When lack of consent is a necessary
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element of a crime, the fact the defendant employed fraudulent
misrepresentations to induce the victim to consent to the proscribed act
ordinarily does not vitiate the consent. . . .").
In the instant case, Ibarra obtained E.M.'s consent for him to
take the phone from her hand by misrepresenting his motives. Ibarra's act
of taking E.M.'s phone was "done as [Ibarra] stated it would be," but for the
"ulterior purpose" of appropriating it. Bolsinger, 709 N.W.2d at 564.
Therefore, his misrepresentation constitutes fraud in the inducement,
which does not negate E.M.'s consent for him to take the phone. See id. By
contrast, fraud in fact would occur, for example, if Ibarra had obtained
E.M.'s consent to merely touch her phone. In such a scenario, Ibarra's
taking of the phone would be "different from the act [he] said he would
perform." Id. But that is not what occurred here—E.M. consented to Ibarra
taking her phone, and that is precisely what he did. Thus, even if we
assume that fraud can negate consent within the context of NRS 205.270,
Ibarra's misrepresentation as to his purpose did not negate E.M.'s consent
for him to take her phone.
Finally, the majority's holding leads to bizarre and irrational
results. If E.M. had consented to Ibarra taking her property that lay on the
bench beside her, Ibarra could not be guilty of felony larceny from the
person, NRS 205.270, because he would have taken the property from the
bench rather than E.M.'s person. He would instead be guilty of a
misdemeanor, assuming the phone was worth less than $650. See NRS
205.0832(1)(c) (theft); NRS 205.240 (petit larceny); NRS 205.380 (obtaining
property "by false pretenses"). But, the majority tells us, because E.M.
handed Ibarra her phone, that misdemeanor is elevated to a category C
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felony. See NRS 205.270(1)(a). In both scenarios, Ibarra would have used
the same means (a lie) to achieve the same result (Ibarra taking the phone
with consent). Designating the former scenario a misdemeanor and the
latter a felony is not "consistent with reason and public policy." State v.
White, 130 Nev. 533, 536,
330 P.3d 482, 484 (2014) (internal quotation
marks omitted).
In sum, I believe that the majority's decision departs from the
plain meaning and purpose of NRS 205.270, it expands what the Terral
court deemed "important to restrict," 84 Nev. at 414,
442 P.2d at 466, and
it broadens a narrowly defined felony such that it is now practically
indistinguishable from misdemeanors. Accordingly, I dissent.
Stiglich
J.
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