IN THE SUPREME COURT OF THE STATE OF NEVADA
STEVEN VALENTI, No. 78764
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. MAY 1 7 2021
EuzAa A. BROWN
- F PREME COURT
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DE CLERK
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of grand larceny of a motor vehicle and four counts of grand
larceny of a firearm. Eighth Judicial District Court, Clark County; William
D. Kephart, Judge. Appellant Steven Valenti raises several issues on
appeal.
Convictions for grand larceny of a firearm under NRS 205.226
First, Valenti argues that the State did not prove he had the
requisite specific intent to steal the victim's firearms at the time he stole
the victim's vehicle and trailer. The State contends that it only needed to
prove Valenti had the specific intent to steal the victim's property. We
review issues of statutory interpretation de novo. Hobbs v. State, 127 Nev.
234, 237,
251 P.3d 177, 179 (2011). NRS 205.226(1) provides that: "[a]
person who intentionally steals, takes and carries away a firearm owned by
another person commits grand larceny of a firearm." (Emphasis added.)
Because the statute's plain language clearly and unambiguously
contemplates theft of a firearm, we agree with Valenti that the State had to
prove he had the specific intent to steal the victim's firearms. See Hobbs,
"The Honorable Carolyn Ellsworth, Judge, presided at trial.
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127 Nev. at 237,
251 P.3d at 179 (If the statute's language is clear and
unambiguous, we enforce the statute as written."); Garcia v. Sixth Judicial
Dist. Court, 117 Nev. 697, 701,
30 P.3d 1110, 1112 (2001) (When an intent
requirement is supplied in the statute, in order to sustain a conviction, that
intent must be proven as to each element of the crime."); see also Intent,
Black's Law Dictionary (11th ed. 2019) (defining "specific intenr as "Mlle
intent to accomplish the precise criminal act that one is later charged
with"). However, we conclude that the State met its burden.
Larceny is a specific intent crime and the larcenous intent must
coincide with the taking of the property. See Harvey v. State, 78 Nev. 417,
419,
375 P.2d 225, 226 (1962) (Nevada law is settled that, to constitute
larceny, there must exist in the mind of the perpetrator, at the time of the
taking, the specific intent to permanently deprive the owner of his
property."). Relying on Harvey, Valenti contends the State had to prove he
had the specific intent to steal the firearms at the time he stole the vehicle
and trailer containing the firearms. We disagree. Harvey is factually
distinguishable because it involved the taking of property with a laterformed intent to deprive the owner of that very same property. Id. at 420,
375 P.2d at 226. In this case, the evidence adduced at trial showed that
Valenti stole the victim's vehicle with an attached trailer. The victim
testified that the vehicle and trailer contained all of his personal property—
including four firearms. When law enforcement discovered the abandoned
vehicle and trailer, no firearms were recovered. The jury was provided with
sufficient evidence to suggest that Valenti, unlike the defendant in Harvey,
had the intent to commit larceny when he stole the original property, the
vehicle and its contents, but also that he separately formed the specific
intent to steal different items of property, the firearms, when he took them
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upon their discovery and removal. Further, the fact that no firearms were
recovered is sufficient circumstantial evidence that Valenti stole the
firearms. See Grant v. State, 117 Nev. 427, 435,
24 P.3d 761, 766 (2001)
("Intent need not be proven by direct evidence but can be inferred from
conduct and circumstantial evidence."). Therefore, Valenti's reliance on
Harvey is misplaced, and we conclude that Valenti's contention does not
warrant relief.2
Valenti also challenges the unit of prosecution under NRS
205.226. Specifically, he argues that because the four firearms were all
stolen during a single larceny, only one criminal charge can be alleged.
"Determining the appropriate unit of prosecution presents an issue of
statutory interpretation and substantive law." Castaneda v. State, 132 Nev.
434, 437,
373 P.3d 108, 110 (2016) (internal citation and quotation marks
omitted). Here, the State charged Valenti with four violations of NRS
205.226, which provides in relevant part:
1. A person who intentionally steals, takes
and carries away a firearm owned by another
person commits grand larceny of a firearm.
• • •
2Given our disposition, we conclude that Valenti's arguments that the
district court erred by denying his motions for an advisory verdict and a
judgment of acquittal and by refusing to give his proposed jury instructions
on intent do not warrant relief. Additionally, Valenti argues the State failed
to prove the operability of the stolen firearms. He did not present this
argument below, and NRS 205.226 has no operability requirement.
Accordingly, we disagree with his assertion that the issue affected his
substantial rights and discern no plain error. See NRS 178.602 (plain error
standard); see also Jeremias v. State, 134 Nev. 46, 50,
412 P.3d 43, 48 (2018)
(noting that this court may review unpreserved issues for plain error).
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3. In addition to any other penalty, the
court shall order the person who committed the
grand larceny of the firearm to pay restitution.
(Emphases added.) By using singular terms, the statute unambiguously
forbids the unlawful taking of an individual firearm. Compare Shue v.
State, 133 Nev. 798, 802,
407 P.3d 332, 336 (2017) (providing that a statute's
use of singular terms "necessarily precludes any contemplation of the
plurar), with State v. Fourth Judicial Dist. Court (Martinez), 137 Nev., Adv.
Op. 4, 481 P.3d 848, 850-51 (2021) (concluding that use of singular "firearm"
in NRS 202.360(1) did not clarify the unit of prosecution under that statute
given that the statute also used the word "any," which is ambiguous, to
modify "firearm"); see also Castaneda, 132 Nev. at 438, 373 P.3d at 111
(recognizing that "the word 'any has typically been found ambiguous in
connection with the allowable unit of prosecution, for it contemplates the
plural, rather than specifying the singulae (internal quotation marks
omitted)). Accordingly, we conclude that NRS 205.266 plainly provides that
each firearm stolen constitutes a separate violation of the statute. The
evidence showed Valenti stole four firearms. Therefore, applying the
statute's plain language, we conclude the jury properly found Valenti guilty
of four counts of grand larceny of a firearm.
Batson challenges
Valenti next argues that the district court erred by denying his
objections to the State's peremptory challenges to prospective jurors 422
and 503. The Equal Protection Clause forbids a prosecutor from striking
potential jurors solely on account of their race. Batson v. Kentucky, 476 U.S.
79, 89, (1986); McNair v. State,
108 Nev. 53, 62,
825 P.2d 571, 577 (1992).
A Batson objection to a peremptory challenge is assessed using a three-step
framework. See Batson, 476 U.S. at 93-100; see also Kaczmarek v. State,
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120 Nev. 314, 332-35,
91 P.3d 16, 29-30 (2004). Those steps consist of (1)
the opponent of the peremptory challenge making a prima facie showing
that the challenge was based on race; (2) if the prima facie showing is made,
the proponent presenting a race-neutral explanation for the peremptory
challenge; and (3) the district court hearing argument and determining
whether the opponent has proven purposeful discrimination. Williams v.
State,
134 Nev. 687, 689,
429 P.3d 301, 305-06 (2018). This court "give [s]
great deference to the district court's finding and will only reverse if the
district court clearly erred." Id. at 688,
429 P.3d at 305.
Here, only the second and third steps in the Batson analysis are
relevant because the parties agree that Valenti made a prima facie showing.
The State met its burden at the second step, offering a race-neutral
explanation for both challenges—prospective juror 422 did not appear to
understand the proceedings and the prosecutors had to explain that she
would not be serving as a juror for a murder trial after she expressed
concerns about being emotional during a murder case; prospective juror 503
expressed a desire to change the system and her demeanor during voir dire
implied bias against the State and law enforcement, e.g., she appeared
upset about a prior experience with the police. See id.at 691, 429 P.3d at
307 (recognizing that the explanation for the peremptory challenge only
needs to be race-neutral). At the third step, during a hearing outside the
presence of the jury, the district court considered Valenti's arguments,
including comparing the struck jurors to others that remained on the panel.
But ultimately, the district court found that Valenti had not met his burden
of proving purposeful discrimination by the State. See McCarty v. State,
132 Nev. 218, 226-27,
371 P.3d 1002, 1007-08 (2016) (discussing the
considerations that may be relevant in determining whether the defendant
5
has proven purposeful discrimination). As to prospective juror 422, the
district court agreed that her comments during voir dire were "troubling."
And regarding prospective juror 503, although the district court believed
the State read too much into her comment about changing the system, it
credited the State's demeanor argument and agreed that she appeared
upset about her prior encounter with law enforcement. Because the district
court made clear findings supported by the record, we perceive no clear
error in the denial of Valenti's Batson objections. See Williams, 134 Nev. at
693, 429 P.3d at 308 CThe outcome of a Batson challenge often turns upon
the demeanor of the prosecutor exercising the strike, and the demeanor of
the juror being struck—determinations that lie uniquely within the
province of the district judge." (citing Hernandez v. New York, 500 U.S. 352,
365 (1991))).
Plea negotiations
Valenti next argues the district court improperly participated
in his plea negotiations and failed to place that participation on the record.
See Cripps v. State, 122 Nev. 764, 771,
137 P.3d 1187, 1191 (2006) (limiting
judicial participation in plea negotiations to "indicat[ing] on the record
whether the judge is inclined to follow a particular sentencing
recommendation of the parties"). Here, after the parties placed the terms
of a plea negotiation on the record, the district court conducted an
unrecorded bench conference in which the district court expressed its
disinclination to follow the sentencing recommendation. Thereafter, the
parties proceeded to trial. At sentencing, Valenti recounted the unrecorded
bench conference, stating "[t]he Court wasn't going to follow [the plea
negotiations], [and] mentioned maybe try to do Drug Court." While the
district court erred in not placing its disinclination to follow the negotiations
on the record contemporaneously, the error was harmless as the later
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discussion of the bench conference provides for adequate appellate review.
See Daniel v. State, 119 Nev. 498, 508,
78 P.3d 890, 897 (2003) ("[A]n
appellant must demonstrate that the subject matter of the missing portions
of the record was so significant that the appellate court cannot meaningfully
review an appellant's contentions of error and the prejudicial effect of any
error."). Further, even assuming the district court's specialty court
suggestion constitutes improper involvement in plea negotiations under
Cripps, we conclude it was harmless because Valenti did not plead guilty.3
See id. at 771, 137 P.3d at 1192 C[T]he harmless error inquiry is whether
the district court's [erroneous participation] may reasonably be viewed as
having been a material factor affecting the defendanfs decision to plead
guilty." (internal quotation marks omitted)).
Sentencing
Finally, Valenti argues that the district court vindictively
sentenced him by imposing a "trial tax." At sentencing, the district court
heard from the State, Valenti, his counsel, and the victim. Before imposing
sentence, the district court stated that "the Court doesn't punish people for
exercising their right to go to trial." However, the district court went on to
state that when defendants "plead guilty and save a victim from having to
testify at a trial and putting them through that . . . they get credit for that."
While the latter comment is concerning, the district court then noted that
Valenti's extensive criminal history could have warranted habitual criminal
treatment. Further, the district court described the significant impact that
3To the extent Valenti argues that the district court forced him to go
to trial because he was not eligible for drug court, we conclude the argument
lacks merit as a defendant has no right to a plea bargain. See Weatherford
v. Bursey, 429 U.S. 545, 561 (1977).
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Valenti's crimes had on the victim, noting that Valenti "wasn't thinking
about how it might affect a person to steal a trailer with all their worldly
belongings in it." Thus, the record shows that the district court sentenced
Valenti based on the facts of the case, his criminal history, and the victimimpact statement. Consequently, Valenti has neither demonstrated that
the district court acted vindictively nor abused its discretion at sentencing.
See Chavez v. State, 125 Nev. 328, 348,
213 P.3d 476, 490 (2009) (reviewing
a district court's sentencing decision for an abuse of discretion); Mitchell v.
State, 114 Nev. 1417, 1428,
971 P.2d 813, 820 (1998) (reiterating that "a
sentencing court may not punish a defendant for exercising his
constitutional rights," and "Mlle defendant has the burden to provide
evidence that the district court sentenced him vindictively"), overruled on
other grounds by Rosky v. State, 121 Nev. 184, 190-91,
111 P.3d 690, 694
(2005). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
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Cadish
//4„
1 J.
Piekti cur J.
Pickering
Herndon
cc: Chief Judge, Eighth Judicial District Court
Department 19, Eighth Judicial District Court
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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101 1947A .4100.
