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Hano (David) v. State

Court: Nevada Supreme Court
Date filed: 2015-01-14
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                   v. Virginia, 443 U.S. 307, 319 (1979); Origel-Candido v. State, 114 Nev.
                   378, 381, 956 P.2d 1378, 1380 (1998). Keys to the stolen Ford F350 were
                   found on Hano's person during the search incident to his arrest for the
                   theft of a red Ford F250, which he conceded having stolen. The F350's
                   owner did not willingly give the keys or any right of possession to the F350
                   to Hano. Both trucks were stolen at night, false license plates were used
                   to conceal each theft, and distinguishing exterior accessories were
                   removed from each stolen vehicle as evidence of a common plan to steal
                   Ford F-series trucks.
                               The jury could reasonably infer from the evidence presented
                   that Hano constructively possessed the white Ford F350 with knowledge
                   that the vehicle was stolen.       See NRS 205.273(1)(b); cf. Webster v.
                   Woodford, 369 F.3d 1062, 1072 (9th Cir. 2004) (holding that a robbery
                   victim "clearly had constructive possession of the car at the time he was
                   attacked by virtue of having the keys to the vehicle");     United States v.
                   Brett, 872 F.2d 1365, 1369 & n.3 (8th Cir. 1989) (holding that possessing a
                   key establishes dominion or control to impute constructive possession and
                   noting that "every other circuit to address this issue agrees that the holder
                   of the key, be it to the dwelling, vehicle or motel room in question, has
                   constructive possession of the contents therein"); People v. O'Dell, 64 Cal.
                   Rptr. 3d 116, 120 (Ct. App. 2007) ("Possession of recently stolen property
                   itself raises a strong inference that the possessor knew the property was
                   stolen; only slight corroboration is required to allow for a finding of
                   guilt."). Circumstantial evidence is enough to support a conviction. Lisle
                   v. State, 113 Nev. 679, 691-92, 941 P.2d 459, 467-68 (1997), holding
                   limited on other grounds by Middleton v. State, 114 Nev. 1089, 1117 n.9,
                   968 P.2d 296, 315 n.9 (1998). Although the evidence was not

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                overwhelming, we conclude that sufficient evidence was present for any
                rational trier of fact to find Hano guilty of possessing the stolen Ford
                F350.
                            Hano argues that the district court abused its discretion in
                refusing to admit the judgment of conviction of a certain person because
                this evidence would have been relevant to his alternative-perpetrator
                defense. "A district court's decision to admit or exclude evidence will not
                be reversed on appeal unless it is manifestly wrong."   Archanian v. State,
                122 Nev. 1019, 1029, 145 P.3d 1008, 1016 (2006). "[R]elevant evidence" is
                any evidence that "[tends] to make the existence of any fact that is of
                consequence to the determination of the action more or less probable."
                NRS 48.015. The record, however, reflects that two witnesses for the
                State acknowledged that the purported alternative perpetrator was a
                convicted car thief and this point was never challenged. As the alternative
                suspect's prior conviction was not disputed, admission of the judgment of
                conviction would not make the individual's status as a convicted car thief
                more probable, especially insofar as it would be of consequence to the
                disposition. Further, to the extent that Hano sought to introduce the
                judgment of conviction to show that the alternative suspect acted in
                conformity therewith, that evidence would be inadmissible under NRS
                48.045(2). We conclude that the district court was not manifestly wrong in
                excluding the judgment of conviction.
                            Hano argues that the district court should have ordered a
                mistrial sua sponte when the jury foreman reported that the jury was not
                unanimous on the F350 count and that the holdout juror was firm and
                sincere in his position. The district court has discretion to determine
                whether to order a mistrial, and we review such a determination for an

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                abuse of that discretion. Rudin v. State, 120 Nev. 121, 142, 86 P.3d 572,
                586 (2004). If the defendant does not move for a mistrial, the district court
                must find that manifest necessity compels a mistrial to permit retrial
                without violating double jeopardy. Id. Hano did not move for a mistrial,
                and his counsel declined to object to the jury's continued deliberation. The
                district court asked the foreman whether the jury might be able to reach
                unanimity and directed deliberations to recommence after the foreman
                acknowledged that further deliberations might be successful. The jury's
                subsequent unanimous verdict suggests that it was not irreconcilably
                deadlocked. Thus, we conclude that the district court properly exercised
                its discretion. See Benson v. State, 111 Nev. 692, 698, 895 P.2d 1323, 1328
                (1995) (concluding that trial judges must not "foreclose the defendant's
                option until a scrupulous exercise of judicial discretion leads to the
                conclusion that the ends of public justice would not be served by a
                continuation of the proceedings" (internal quotation marks omitted)).
                               Hano argues that Nevada law should be changed by limiting
                adjudication as a habitual criminal to violent criminals. The adjudication
                as a habitual criminal is "subject to the broadest kind of judicial
                discretion."    Tanksley v. State, 113 Nev. 997, 1004, 946 P.2d 148, 152
                (1997) (internal quotation marks and citations omitted). The habitual
                criminal statute does not classify the type of felony convictions necessary
                to trigger its application. NRS 207.010. Hano does not cite any authority
                compelling this court to change state law or invalidate NRS 207.010. We
                note that Hano has been convicted of four prior felonies and, thus, was
                subject to adjudication under the large habitual statute. NRS
                207.010(1)(b). We conclude that the district court did not abuse its



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                discretion in imposing its sentence and deny the request to change Nevada
                law on habitual-criminal adjudication.
                            Having considered Hano's contentions and concluding that
                they are without merit, we
                            ORDER the judgment of conviction AFFIRMED. 1




                                        P.   O.
                                        Parraguirre
                                                                     ,J



                 ),coli-c2k I its                 Cl.
                Douglas                                     Cherry


                cc:   Hon. Jerome Polaha, District Judge
                      David Kalo Neidert
                      Attorney General/Carson City
                      Washoe County District Attorney
                      Washoe District Court Clerk




                       'Han° requests resentencing by a different judge if he is granted
                relief on any of his claims. As we perceive no error by the district court,
                resentencing is not warranted, and we deny this request.


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