IN THE SUPREME COURT OF THE STATE OF NEVADA
TASHAMI SIMS,
Appellant, N° ""9FILED
vs.
THE STATE OF NEVADA, OCT 2 3 2020
Respondent. ELIZABETH A. BROWN
CLERK9F,UPREME COB
BY
DEPUTY CLERK
ORDER REVERSING IN PART AND VACATING JUDGMENT IN PART
AND REMANDING
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of ownership or possession of a firearm by a prohibited person
and carrying a concealed firearm or other deadly weapon. Eighth Judicial
District Court, Clark County; Michelle Leavitt, Judge.
Officers Joshua Griffith and Jacob Noriega were patrolling in
Las Vegas on July 4, 2018, around 7:30 p.m., when they observed appellant
Tashami Sims jaywalk. The officers pulled into the motel parking lot Sims
had entered and activated the patrol car's lights and sirens. According to
the officers, Sims continued walking behind several vehicles, crouched
down, reached into the front of his waistband area and then stood back up,
all while the officers were giving him verbal commands. Officer Griffith
heard what he believed to be a metallic object hit the ground where Sims
had crouched. Sims then approached the officers and Officer Noriega placed
him in handcuffs. Officer Griffith found a.22 caliber firearm on the ground
where Sims had been.
Sims went to trial on two charges: ownership or possession of
a firearm by a prohibited person and carrying concealed firearm or other
-
deadly weapon. After a four-day jury trial, the jury found Sims guilty on
both counts and the district court sentenced him to 19-48 months for the
felon-in-possession charge, and a concurrent 12-36 months for the concealed
weapon charge. Sims now appeals.
Insufficient Evidence
Sims argues that the evidence presented at trial was
insufficient to support the charges against him. We agree as to the
concealed weapon charge. In considering a claim of insufficient evidence,
we view the evidence in the light most favorable to the prosecution to
determine whether "any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." McNair v. State, 108
Nev. 53, 56,
825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia,
443 U.S.
307, 319 (1979)). In doing so, we do not reweigh the evidence or determine
witness credibility, as those functions belong to the jury.
Id. The
defendant's mere presence at the crime scene cannot support the inference
that the defendant is a party to an offense, although the defendant's
presence, companionship, and conduct before, during, and after the crime
may support such an inference. See Walker v. State,
113 Nev. 853, 869,
944
P.2d 762, 773 (1997); Winston v. Sheriff, Clark Cty.,
92 Nev. 616, 618,
555
P.2d 1234, 1235 (1976).
NRS 202.350(1)(d)(3) provides that a person within Nevada
shall not, without a permit, carry concealed upon his or her person any
"pistol, revolver or other firearm, other dangerous or deadly weapon or
pneumatic gun." And NRS 202.360(1)(b) prohibits a felon from possessing
or controlling a firearm. For purposes of these offenses, NRS 202.253(2)
defines a "firearm" as "any device designed to be used as a weapon from
2
which a projectile may be expelled through the barrel by the force of any
explosion or other form of combustion." The firearm neither has to be loaded
nor operable to support a felon-in-possession conviction. See NRS
202.360(3)(b) (providing that, for a felon-in-possession charge, Iflirearm'
includes any firearm that is loaded or unloaded and operable or
inoperable").
Here, the State failed to present sufficient admissible evidence
demonstrating that the gun the officers found fit within NRS 202.253(2)s
definition of "firearm," as required to support the concealed weapon charge.
The State failed to present any testimony from a witness that test fired the
gun to determine that it was designed to expel a projectile by force of
explosion or other combustion. See NRS 50.265 (providing that a lay
witness may testify to opinions that are "Nationally based on the
perception of the witnese). Additionally, the State did not call a firearms
expert at trial who could testify from their "specialized knowledge or skill
beyond the realm of everyday experience to educate the jury as to whether
the gun fit the definition of "firearm." See Burnside v. State, 131 Nev. 371,
382-83, 352 P.3d 627, 636 (2015); ,see also NRS 50.265 (providing that a
qualified expert may testify to matters within their "special knowledge,
skill, experience, training or education" when "scientific, technical or other
specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue"). Although one officer testified that the gun
appeared to be functional, we conclude that this testirnony is speculative.
Because the State failed to present sufficient evidence, we reverse the
concealed weapon conviction. See Vega v. State, 126 Nev. 332, 342,
236 P.3d
632, 639 (2010) ("The Due Process Clause of the United States Constitution
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requires that each element that constitutes a crime be proven beyond a
reasonable doubt."). However, because the felon-in-possession charge does
not require the gun to be operable or concealed, and because Sims presents
no other arguments challenging the sufficiency of the evidence supporting
that conviction, we decline to reverse that conviction for insufficient
evidence. See NRS 202.360(3)(b).
Additional issues with the concealed weapon conviction
Even if the concealed weapon conviction was supported by
sufficient evidence, other errors require reversal. First, Sims correctly
argues that the jury instructions on the charge were wholly lacking. The
instructions failed to provide the jury with NRS 202.253(2)s definition of
firearm. Instead, the instructions essentially told the jury that any person
found carrying a deadly weapon in a concealed manner is guilty of carrying
a concealed weapon. This is a clear error of law. See Gollman v. State, 116
Nev. 687, 714-20,
7 P.3d 426, 443-47 (2010) (concluding that a district court
erred when it failed to instruct the jury on all of the elements of a crime).
Sims also challenges a letter admitted into evidence purporting
to show that he did not have a concealed carry permit, arguing that it did
not comply with NRS 51.175 (addressing how to prove the absence of a
public record through a certificate or testimony of the custodian of records).
We agree that the district court abused its discretion in admitting this letter
because it was not accompanied by a sworn affidavit from the custodian of
records or testified to as authentic under oath by the custodian of records or
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other authorized person. See NRS 51.175; NRS 52.015(1) (requiring that
evidence be authenticated as a condition precedent to admissibility, which
"is satisfied by evidence or other showing sufficient to support a finding that
the matter in question is what its proponent claime); Mclellan v. State, 124
Nev. 263, 267,
182 P.3d 106, 109 (2008) (reviewing a district court's decision
to admit evidence for an abuse of discretion); see also Sanders v. Sears-Page,
131 Nev, 500, 514-15,
354 P.3d 201, 210 (Ct. App. 2015) (recognizing that
lajuthentication is a basic prerequisite to the admission of evidence"
because, without proper assurance that the evidence is what its proponent
claims, it lacks relevance).
Fair-cross-section challenge
Sims also argues that the district court abused its discretion in
not having the jury commissioner testify after Sims made what he contends
are plausible arguments that the jury selection process systematically
excluded Hispanics. See Williams v. State, 121 Nev. 934, 939-40,
125 P.3d
627, 631 (2005) (stating that a defendant is entitled to a jury that is a fair
cross section of the community and discussing how to show a prima facie
violation of that right); see also Valentine v. State,
135 Nev. 463, 466,
454
P.3d 709, 714 (2019) (discussing when an evidentiary hearing is warranted
on a defendant's claim that his right to such a jury was violated). In doing
so, Sims makes the same claim of systematic exclusion that this court found
'While we recognize that NRS 51.175(2) requires a "certificate" from
the custodian of records rather than a sworn affidavit, the evidence still
must comply with NRS 52.015s authentication requirements to be
admissible.
5
4,trav
warranted an evidentiary hearing in Valentine.2 135 Nev. at 466-67, 454
P.3d at 714-15 (concluding that the district court abused its discretion by
not holding an evidentiary hearing on the defendant's allegation that the
jury commissioner sent "an equal number of jury summonses to each postal
ZIP code in the jurisdiction without ascertaining the percentage of the
population in each ZIP code" because, if true, that would establish
underrepresentation of a distinctive group based on systematic exclusion).
Instead of having the jury commissioner testify regarding this allegation at
an evidentiary hearing, the district court relied on previous jury
commissioner testimony that did not address Sims specific allegations to
reject his fair-cross-section argument. This was an abuse of discretion
because, as in Valentine, if Sims' allegations are true, they "would be
sufficient to establish a prima facie violation of the fair-cross-section
requirement." Id. at 464, 466-67, 454 P.3d at 713, 714-15 (reviewing the
denial of a requested evidentiary hearing for an abuse of discretion). We
therefore vacate the judgment of conviction as to the felon-in-possession
charge and remand for an evidentiary hearing. Thereafter, if the court finds
no systematic exclusion, it may reinstate the judgment of conviction as to
2The State does not dispute that Sims met the other two elements
identified in Valentine to establish a prima facie fair-cross-section claim: a
distinctive group within the community that is being excluded and the
representation in the venire is not fair and reasonable when compared to
that group's community population. 135 Nev. at 465, 454 P.3d at 713.
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the felon-in-possession count only.3 Id. at 467, 454 P.3d at 715 (instructing
the district court that it can reinstate the judgment of conviction if it finds
no systematic exclusion on remand, except as to convictions that were not
supported by sufficient evidence).
Accordingly, we
ORDER the judgment of the district court REVERSED IN
PART AND VACATED IN PART AND REMAND this matter to the district
court for proceedings consistent with this order.
A/A.5(1,1i J.
Stiglich
J
Silver
cc: Hon. Michelle Leavitt, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3We decline to address Sims remaining assertions of error as to the
felon-in-possession charge at this time, but he may re-raise those
arguments if the district court reinstates his conviction.
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