Denson v. State

915 P.2d 284, 112 Nev. 489, 1996 Nev. LEXIS 70
CourtNevada Supreme Court
DecidedApril 30, 1996
DocketNo. 26581
StatusPublished
Cited by44 cases

This text of 915 P.2d 284 (Denson 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.

Bluebook
Denson v. State, 915 P.2d 284, 112 Nev. 489, 1996 Nev. LEXIS 70 (Neb. 1996).

Opinion

[490]*490OPINION

Per Curiam:

Appellant Tyrone Randolph Denson (“Denson”) agreed to plead guilty to two counts of burglary. During the sentencing hearing, the district court viewed a surveillance videotape that showed a series of incidents recorded by surveillance cameras at Harrah’s, Reno (“Harrah’s”). Seven of the eight incidents on the videotape showed Denson in Harrah’s. The videotape was narrated by an employee of Harrah’s security department. After viewing the videotape, the district court sentenced Denson. The district court’s sentence included two five-year prison terms, one for each burglary charge to which Denson pleaded guilty. The [491]*491district court also directed that the two prison terms be served consecutively.

In this appeal, Denson contends that the district court improperly relied upon the surveillance videotape and the testimony of the Harrah’s security officer in its sentencing decision. We conclude that the district court properly considered the videotape and properly allowed the security officer to narrate that videotape. Because the district court’s sentence was intended to punish Denson for uncharged crimes, however, we vacate the district court’s sentencing determination and remand this case to a different district judge for resentencing.

FACTS

Denson was charged by information with five burglaries at five different casinos. During the preliminary hearing, testimony was heard from victims of the burglaries and from security officers at the five casinos. Subsequently, Denson agreed to plead guilty to two counts of burglary. The Parole and Probation Department (“PPD”) recommended that Denson’s sentence includes a six-year prison term for each burglary count to which Denson pleaded guilty. PPD also recommended that the sentences be served concurrently.

Over Denson’s objection, the district court viewed a videotape offered by the prosecution during Denson’s sentencing hearing. The videotape was prepared by Les Silva (“Silva”), a surveillance shift supervisor at Harrah’s, from portions of surveillance tapes recorded at Harrah’s. Also over Denson’s objection, Silva narrated the videotape while it was played for the district court.

The first incident on the videotape showed Denson with another individual at Harrah’s. Silva believed that Denson was working with the other individual to distract a casino customer in order to rob that customer. The videotape then showed a second incident in which Denson approached a casino customer from behind. Silva conceded that no theft was reported on that day. The third event on the videotape, according to Silva, showed Denson moving a plastic barrier between two rows of slot machines. Also, the videotape showed a person standing next to Denson whom Silva could not identify. Silva believed the person was conspiring with Denson to rob casino patrons.

The fourth videotaped incident showed an unidentified person distracting a casino customer while Denson removed coins from that customer’s coin bucket. A fifth videotaped event showed a person, often seen with Denson, distracting a casino change person. While Denson was not present in the fifth videotaped event, Silva commented that he had seen similar diversions occur which allowed another person, possibly Denson, to take coins [492]*492from the distracted change person. In a sixth incident, Denson was looking at the mirrors in the casino. Silva opined that Denson was using mirrors to locate a potential victim on the other side of a row of slot machines. A seventh videotaped event showed Denson watching a security guard. An eighth videotaped event showed Denson talking to a woman at Harrah’s.

After viewing the videotape, the district court sentenced Denson to a five-year prison term for each count of burglary to which Denson pleaded guilty. The district court also directed that the two prison terms be served consecutively.

DISCUSSION

Consideration of the surveillance videotape

Few limitations are imposed on a judge’s right to consider evidence in imposing a sentence, and courts are generally free to consider information extraneous to the pre-sentencing report. See United States v. Trigg, 392 F.2d 860, 864 (7th Cir. 1968); United States v. Schipani, 315 F. Supp. 253, 257-60 (E.D.N.Y. 1970). Possession of the fullest information possible concerning a defendant’s life and characteristics is essential to the sentencing judge’s task of determining the type and extent of punishment. Williams v. New York, 337 U.S. 241, 247 (1949). Further, a sentencing proceeding is not a second trial, and the court is privileged to consider facts and circumstances that would not be admissible at trial. Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). A district court is vested with wide discretion regarding sentencing, but this court will reverse a sentence if it is supported solely by impalpable and highly suspect evidence. Renard v. State, 94 Nev. 368, 369, 580 P.2d 470, 471 (1978); Silks, 92 Nev. at 94, 545 P.2d at 1161.

We conclude that the district court’s consideration of the surveillance videotape in the present case withstands the Silks test because the district court’s sentencing decision was not founded solely upon impalpable and highly suspect evidence. At Denson’s preliminary hearing, the State presented testimony from security personnel at five casinos regarding five separate burglaries.

At the sentencing hearing, Silva testified that he personally saw Denson in Harrah’s casino on numerous occasions and believed Denson was intending to rob casino customers. The State was also prepared to examine three other witnesses at the sentencing hearing who were security officers at other casinos. The security officers were prepared to testify that they were familiar with [493]*493Denson “on sight,” and had recorded Denson committing crimes on videotape. Further, the district court was informed that Denson had three prior gross misdemeanor convictions that were similar to the crimes with which Denson was charged in this case. See United States v. Weston, 448 F.2d, 626, 633 (9th Cir. 1971), cited with approval in Silks, 92 Nev. at 94 n.2, 545 P.2d at 1161 n.2.

Accordingly, we conclude that the district court did not abuse its discretion by considering the videotape in question.

Narration of surveillance videotape by Silva

A district judge’s sentencing decision will be reversed if it is supported solely by impalpable and highly suspect evidence. Silks, 92 Nev. at 94, 545 P.2d at 1161. As stated above, however, Silva’s narration was not the only evidence that the district court relied upon before sentencing Denson. Therefore, we conclude that the district court did not abuse its discretion by allowing Silva to narrate the surveillance videotape during Denson’s sentencing hearing.

Punishment for uncharged crimes

Denson contends that the district court improperly sentenced him for prior acts which were not supported by any evidence. We agree.

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Bluebook (online)
915 P.2d 284, 112 Nev. 489, 1996 Nev. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denson-v-state-nev-1996.