Deamicis (Carl) v. State

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

CARL BARRY DEAMICIS, No. 90439 Appellant, vs. THE STATE OF NEVADA, Respondent.

Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of assault with the use of a deadly weapon. Second Judicial District Court, Washoe County; Kathleen A. Sigurdson, Judge.

Affirmed.

Evelyn Grosenick, Public Defender, and Kathryn Reynolds, Chief Deputy Public Defender, Washoe County, for Appellant.

Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks, District Attorney, and Amanda Sage, Appellate Deputy District Attorney, Washoe County, for Respondent.

BEFORE THE SUPREME COURT, BELL, STIGLICH, and CADISH, JJ.

OPINION

By the Court, CADISH, J.:

Nevada law recognizes criminal assault as “[i]ntentionally placing another person in reasonable apprehension of immediate bodily harm.” NRS 200.471(1)(a). Appellant Carl Deamicis was convicted of two

2

counts of assault with the use of a deadly weapon for brandishing a knife at two park rangers. Deamicis argues the assault statute only allows one conviction for the single act of brandishing the knife. Because the plain language of NRS 200.471(1)(a)(2) authorizes a conviction for each person the defendant intentionally places in reasonable fear of immediate physical harm, we affirm.

FACTS AND PROCEDURAL HISTORY Two park rangers were patrolling Dick Taylor Park in Reno when they encountered Carl Deamicis and a woman sleeping in a hammock in the park playground. The rangers told Deamicis to remove the hammock and leave the park. After surveying the rest of the park, the rangers returned and found Deamicis asleep. The rangers woke Deamicis and began writing a citation for Deamicis to attend community court, a nonpunitive court designed to connect people in need with resources. Deamicis was initially friendly, but when one of the rangers asked Deamicis to spell his last name, Deamicis said “spell this” and brandished a knife at both rangers who were standing within several feet of Deamicis. The rangers fled to a safe distance and called police who arrived and arrested Deamicis.

A jury found Deamicis guilty of two counts of assault with the use of a deadly weapon. Before sentencing, Deamicis filed a motion to consolidate the two counts into one, arguing that the assault statute only authorized one conviction for Deamicis’s single act of brandishing the knife. The district court denied the motion and proceeded to sentence Deamicis to a prison term of 19 to 48 months on each count, to run concurrently.

3

DISCUSSION

Deamicis contends he may not be convicted of two counts of assault for one swing of the knife. “[D]etermining 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) (citation modified). Whether a single act may incur multiple convictions is a question of legislative authorization. See Jackson v. State, 128 Nev. 598, 611-12, 291 P.3d 1274, 1282-83 (2012). We review de novo, beginning with the statutory text. Castaneda, 132 Nev. at 437, 373 P.3d at 110.

A person commits assault when they either “[u]nlawfully attempt[ ] to use physical force against another person” or “[i]ntentionally plac[e] another person in reasonable apprehension of immediate bodily harm.” NRS 200.471(1)(a)(1)-(2). The State charged Deamicis under either definition of assault, and because the two definitions are linked by the conjunctive “or,” Deamicis could be convicted under either definition. See Anderson v. State, 109 Nev. 1129, 1134, 865 P.2d 318, 321 (1993). Most relevant here is the second definition under NRS 200.471(1)(a)(2)— “[i]ntentionally placing another person in reasonable apprehension of immediate bodily harm.” By this unambiguous language, the appropriate unit of prosecution is the number of persons the defendant intentionally places in reasonable apprehension of immediate bodily harm. See Firestone v. State, 120 Nev. 13, 16, 83 P.3d 279, 281 (2004) (“When a statute is unambiguous it should be given its plain meaning.”).

In arguing that he could be convicted of only one count of assault for brandishing a knife, Deamicis primarily relies on Powell v. State, 113 Nev. 258, 934 P.2d 224 (1997). In Powell, we reversed two of three convictions for assault where the defendant fired one shot at a group of three people. See id. at 264, 934 P.2d at 228. But the statutory language

4

at issue in Powell was markedly different. When Powell was decided, assault was defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Id. at 263, 934 P.2d at 227 (quoting the statutory definition of assault at the time). The legislature has since amended the assault statute. See 2009 Nev. Stat., ch. 37, § 1, at 74. Because the unit-of-prosecution analysis hinges on statutory interpretation and the relevant statutory language has been amended in a material way, Powell no longer applies. See Jackson, 128 Nev. at 612, 291 P.3d at 1283. As discussed, NRS 200.471(1)(a)(2) now authorizes a conviction for each person the defendant intentionally placed in reasonable apprehension of immediate bodily harm.

Here, Deamicis swung or jabbed a knife at two park rangers, establishing the intent to put both rangers in fear of harm. Both park rangers testified they fled in fear, establishing that Deamicis did in fact put both rangers in apprehension of immediate bodily harm. Given that Deamicis was within several feet of the rangers when he drew the knife, the rangers’ fear was reasonable. Thus, the evidence supports both convictions. See Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998) (holding that evidence is sufficient to support a conviction if any rational trier of fact could have found the defendant guilty beyond a reasonable doubt); NRS 200.471(1)(a) (defining assault). Because the evidence supports both counts of assault and the dual convictions are authorized by statute, the district court did not err by denying Deamicis’s motion to consolidate the counts.

CONCLUSION

We conclude the plain language of NRS 200.471(1)(a)(2)

authorizes convictions for each person the defendant intentionally places in reasonable fear of immediate physical harm. Because the evidence

5

established that Deamicis intentionally placed two park rangers in reasonable fear of immediate physical harm, both convictions for assault may stand. We therefore affirm the judgment of conviction.

Cadish, J.

We concur:

Bell, J.

Stiglich, J.