Hand v. State

816 P.2d 468, 107 Nev. 577, 1991 Nev. LEXIS 143
CourtNevada Supreme Court
DecidedAugust 28, 1991
Docket21215
StatusPublished
Cited by7 cases

This text of 816 P.2d 468 (Hand 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
Hand v. State, 816 P.2d 468, 107 Nev. 577, 1991 Nev. LEXIS 143 (Neb. 1991).

Opinions

OPINION

By the Court,

Blake, D. J.:1

Appellant James A. Hand was convicted, upon jury verdict, of two counts of being an ex-felon in possession of a firearm and one count of possession of a controlled substance with intent to sell. Hand received consecutive one-year sentences on the firearm convictions and a consecutive three-year sentence on the crime of possession with intent to sell. Hand raises various issues concerning the three convictions, claiming that trial court error was prejudicial and therefore a mandatory basis for reversal. We disagree and affirm.

Facts

Armed with warrants for the arrest of appellant, and a search [579]*579of his residence, Pershing County Deputy Sheriff Zuwala proceeded on a gravel road in the direction of Hand’s home. Shortly before arriving at the residence, the deputy saw Hand driving toward him from the opposite direction. Ignoring Deputy Zuwala’s instruction to pull over, Hand accelerated down the gravel road with law enforcement vehicles pursuing him at approximately 65 miles per hour. At all times during the chase the pursuing deputies had lights flashing and sirens in operation. As the pursuit continued, Deputy Paige saw Hand throw a blue bag out of the pickup. Upon retrieving the bag, five loaded handguns were discovered inside. After Hand finally stopped, the search warrant was served, and a subsequent search of his residence produced a .22 rifle, 30.06 rifle and a shotgun. The searching deputies also found a number of small plastic bags containing methamphetamine.

Discussion

Hand contends on appeal that the jury verdict convicting him of possession of methamphetamine with the intent to sell was unsupported by the facts. He argues that the State presented no evidence that he sold methamphetamine to a government agent or anyone else. Also, under the apparent misapprehension that mitigating evidence produced at sentencing somehow vitiates a trial conviction, Hand emphasizes that he called some fifteen character witnesses from the town of Imlay, all of whom testified that he had not sold or tried to sell them drugs. This court will not disturb a jury finding when such finding is supported by substantial evidence. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).

Hand was residing alone and a lawfully conducted search produced various packets of methamphetamine packaged in the usual form for sale. The packages, or bindles, were in saleable quantities and the methamphetamine was cut with a unique substance of the same kind that Hand, in the course of his testimony, admitted purchasing. We conclude that there was substantial evidence to support the jury’s verdict finding Hand guilty of possession of methamphetamine with the intent to sell.

Hand’s primary contentions revolve around his convictions for violating NRS 202.360, being an ex-felon in possession of a firearm. We deem it necessary to address only a few of the numerous issues raised by Hand on this aspect of his appeal, the others being patently without merit.

In 1962, Hand pled guilty to a felony in Washoe County district court and was placed on probation for one year. At the [580]*580time of entering his guilty plea and at the time of sentencing, Hand was represented by counsel. Hand was honorably discharged from probation in 1963, and the pertinent part of his discharge read:

IT IS THEREFORE ORDERED that the said probationer’s plea of guilty be changed to that of not guilty, and the information herein dismissed.
IT IS FURTHER ORDERED that said probationer be, and is hereby discharged from supervision and from any obligation respecting the condition of said probation heretofore imposed by this court in accordance with the statute in such cases made and provided.

Hand’s principle argument is that he was not convicted of a felony under NRS 202.360, because the 1963 order effectually withdrew his guilty plea and dismissed the charges against him, thus mandating that his conviction be expunged. Consequently, Hand contends that the above 1963 order restored his right to bear arms.

Hand cites Bearden v. City of Boulder City, 89 Nev. 106, 507 P.2d 1034 (1973), as authority for the proposition that his “expunged” conviction cannot be used as a predicate for his ex-felon in possession of a firearm conviction. Hand is wrong. Bearden is not only distinguishable on the facts, the holding is not based on an expunging principle. Moreover, Hand’s 1962 conviction was not expunged.

The issue of whether an honorable discharge from probation effectively precludes a conviction under NRS 202.360 is one of first impression. Since Hand’s previous conviction occurred in 1962, it is necessary to examine the applicable probation discharge statutes then in effect with the relevant statute in effect at the time of the present conviction.

NRS 176.340, which was repealed in 1967, was the operative statute concerning the fulfillment of probationary conditions at the time of Hand’s prior felony conviction in 1962. In pertinent part, the statute then read:

176.340 When conditions of probation fulfilled, defendant may withdraw guilty plea and enter plea of not guilty; court may set guilty verdict aside; dismissal of indictment or information.
1. Every defendant who has fulfilled the conditions of his probation for the entire period thereof . . . may at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty ... the court shall thereupon dismiss the indictment or information against such defendant, who shall thereafter be released [581]*581from all penalties and disabilities resulting from the offense or crime of which he has been convicted.
3.[I]n any subsequent prosecution of the defendant for any other offense, such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the indictment or information had not been dismissed.

Hand’s contention is that the above statute, in conjunction with the discharge of probation order, effectively immunized him from liability under NRS 202.360. In so arguing, Hand fails to adequately consider the language in subsection 3 of the statute, which, as we shall hereafter discuss, is dispositive of the issue.

The statute which replaced NRS 176.340 in 1967, NRS 176.225, reads in pertinent part as follows:

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Hand v. State
816 P.2d 468 (Nevada Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
816 P.2d 468, 107 Nev. 577, 1991 Nev. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hand-v-state-nev-1991.