Dalie v. State
This text of 574 P.2d 271 (Dalie v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
OPINION
Appellant was convicted, by jury verdict, of robbery (NRS 200.380) and assault with intent to commit murder (NRS 200.010, NRS 208.070), and, pursuant to NRS 193.165, received an enhanced sentence for use of a deadly weapon in commission of the robbery.1 Appellant contends we are compelled to reverse because (1) the evidence was insufficient to [11]*11sustain his conviction for robbery, (2) the evidence was insufficient to support the finding he used a deadly weapon in the commission of the robbery, and (3) the district court erred in failing to properly instruct the jury. We disagree.
On June 11, 1976, appellant approached a cashier at the Thrifty Drug Store on E. Charleston Boulevard in Las Vegas, Nevada, to buy some candy. The cashier took his money and, “as [she] turned to give him his change . . . [she] hit a gun and [appellant] reached in and grabbed the [money].” The cashier began screaming and two employees ran to her assistance. Meanwhile, appellant ran out the door, jumped into a waiting Ford Mustang, and sped away. The cashier told the two employees what had occurred, and the employees pursued the Mustang in their own van. As the employees approached the rear of the Mustang, appellant leaned out the window and fired two shots, one of which hit the van’s radiator, forcing the employees to abandon their pursuit. Appellant was arrested several days later in New Hampshire.
1. Appellant contends his robbery conviction was not supported by the evidence. He admits he committed a crime in taking the money, but argues the crime was larceny instead of robbery because there was no proof that the money was taken by use of “force ... or fear of injury,” as contemplated by NRS 200.380.2 The thrust of his argument is that the taking of the money had already occurred when the cashier first noticed the gun, thus, the gun was not “used” to perpetrate the crime.
On direct examination, the cashier testified that she was aware of the presence of the gun before appellant reached for the money, and further, that she was “frightened.” In our view, the jury could properly conclude from this evidence that the money was taken by “force ... or fear of injury” and, accordingly, appellant’s conviction will not be disturbed. See Watkins v. State, 93 Nev. 100, 560 P.2d 921 (1977); Hayden v. State, 91 Nev. 474, 538 P.2d 583 (1975); State v. Childs, 422 P.2d 898 (Kan. 1967). Cf. Mangerich v. State, 93 Nev. 683, 572 P.2d 542 (1977).
[12]*122. Appellant next argues the evidence was insufficient to support the finding that he used a deadly weapon in commission of the robbery.
The jury, by its verdict, found that appellant had used a deadly weapon in the commission of a crime and the record clearly supports that finding. Thus, we will neither disturb the verdict nor set aside the judgment in this appeal. See Sanders v. State, 90 Nev. 433, 529 P.2d 206 (1974).
3. Finally, appellant contends the district court should have instructed the jury on the definition of “use” as that word is used in NRS 193.165. Because of appellant’s failure to request such an instruction at trial, we decline to consider the contention. Larsen v. State, 93 Nev. 397, 566 P.2d 413 (1977).
The district court judgment is affirmed.3
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Cite This Page — Counsel Stack
574 P.2d 271, 94 Nev. 10, 1978 Nev. LEXIS 464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalie-v-state-nev-1978.