Stroup v. State

874 P.2d 769, 110 Nev. 525, 1994 Nev. LEXIS 55
CourtNevada Supreme Court
DecidedMay 19, 1994
Docket24302
StatusPublished
Cited by6 cases

This text of 874 P.2d 769 (Stroup 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
Stroup v. State, 874 P.2d 769, 110 Nev. 525, 1994 Nev. LEXIS 55 (Neb. 1994).

Opinions

[526]*526OPINION

Per Curiam:

FACTS

Appellant Terry L. Stroup (“Stroup”) and his friend, Melvin Skoglund (“Skoglund”) worked as woodcutters. Their employer was Larry Miller (“Miller”), who owned the Salisbury Ranch near Tonopah. In September 1992, Stroup and Skoglund were living in a tent at a wood camp in a remote area called Baxter Springs.

During one of their weekly trips to Tonopah for provisions, Stroup and Skoglund encountered the victim Larry Dixon (“Dixon”), who was an acquaintance of theirs. Dixon asked if he could accompany them back to the wood camp as he had no place to stay. He told them that he had been accused of stealing from the person with whom he had been living and had been asked to leave. Stroup and Skoglund reluctantly allowed Dixon to return with them to the wood camp.

The following morning, September 3, 1992, two more people, Sharon Lundy (“Lundy”) and her boyfriend Allen Elliot (“Elliot”), came to the camp to cut wood. In the afternoon, after splitting wood for several hours and drinking heavily, Stroup and Skoglund returned to their tent to sleep. Lundy, Elliot and Dixon remained outside.

A short time later, Skoglund awoke to find Dixon beating him. Dixon was apparently upset by an argument between Lundy and Skoglund which had taken place earlier in the day, but which had been settled amicably. Dixon left the tent and then returned shortly thereafter and continued to beat Skoglund. Dixon left and returned a third time. Skoglund later testified that Dixon also began hitting Stroup. Dixon then left and returned a fourth and fifth time. The fifth time Dixon returned, Stroup shot and killed him. It is unclear whether Dixon had completely entered the tent when he was shot or whether he was immediately outside. Lundy later testified that Dixon had been “acting like a madman” prior to and during the attack.

Later that evening, Stroup and Skoglund took Dixon’s body to Miller’s ranch. The following morning, Miller told another employee to take Stroup into town, after which Miller and Skoglund buried Dixon’s body on the property with a backhoe. [527]*527Miller later reported his actions to the Nye County Sheriff’s Office. Stroup was arrested and later charged with murder with the use of a deadly weapon pursuant to NRS 200.010, NRS 200.030, and NRS 193.165.

A jury trial was held. The jury found Stroup guilty of second degree murder, but made no finding as to the use of a deadly weapon. The district court sentenced Stroup to eleven years for second degree murder with an enhancement pursuant to NRS 193.165 of eleven years for the use of a deadly weapon. The judgment of conviction filed by the court stated that “[t]he court adjudged the Defendant guilty of the crime(s) of murder in the second degree with the use of a deadly weapon.” However, the jury verdict form only mentioned second degree murder. This appeal ensued.

Stroup asserts a number of errors on appeal, including: (1) the district court unconstitutionally enhanced his sentence for the use of a deadly weapon in light of the fact that the jury made no specific finding that he had used a deadly weapon in the commission of the crime; and (2) the district court erred in refusing to give his proffered instruction regarding justifiable homicide.

DISCUSSION

We first address Stroup’s assertion that the district court improperly enhanced his sentence pursuant to NRS 193.165 in light of the fact that the jury did not make a finding as to the use of a deadly weapon. NRS 193.165(1) provides that a crime committed with the use of a deadly weapon shall be enhanced by imprisonment for a term equal to and in addition to the term of imprisonment prescribed by statute for the crime. However, NRS 193.165(2) states that the statute “does not create any separate offense but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.” (Emphasis added.)

We addressed the use of NRS 193.165 in Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990). Zgombic involved the question of whether construction boots were a deadly weapon. There, we held that some weapons can be determined as a matter of law to be inherently dangerous, and thus the only question remaining for the trier of fact is whether the deadly weapon was used in the commission of the crime. Id. at 577, 798 P.2d at 551-52. If it is not clear whether the weapon is deadly, the jury must then determine that issue in addition to whether the weapon was used to commit the crime. Id. Regardless of whether the weapon is deadly or not, the jury must determine whether that weapon [528]*528was indeed used to commit the crime before NRS 193.165 may be utilized to enhance a defendant’s sentence.

The State contends that it would be absurd to argue that the jury could have returned a verdict in this case of guilty without the use of a deadly weapon when there was no doubt that Stroup used a gun to kill Dixon. However, we note that it is irrelevant whether it was obvious that Stroup used a deadly weapon to commit the crime. It is also irrelevant whether the jury’s verdict was due merely to a failure to include a finding of the use of a deadly weapon on the verdict form. NRS 193.165 requires the jury to find the use of a deadly weapon in the commission of the crime before the defendant’s sentence may be enhanced. In this case, the jury made no such finding. Accordingly, we reverse the enhancement of Stroup’s sentence for the use of a deadly weapon.

We next address Stroup’s assertion that the district court erred in refusing his proifered jury instruction as to justifiable homicide. At trial, Stroup requested that the following instruction be given to the jury:

If you find that Terry Stroup killed Larry Dixon at a time when Dixon was intending or endeavoring in a violent, riotous, tumultuous, or surreptitious manner to enter the habitation of Terry Stroup and Mr. Skoglund for the purpose of assaulting or offering personal violence to either of them, then the killing was justifiable and it is your duty to return a verdict of not guilty.

The court rejected this instruction in favor of the following:

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Stroup v. State
874 P.2d 769 (Nevada Supreme Court, 1994)

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Bluebook (online)
874 P.2d 769, 110 Nev. 525, 1994 Nev. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stroup-v-state-nev-1994.