Zgombic v. State

798 P.2d 548, 106 Nev. 571, 1990 Nev. LEXIS 110

• Court: Nevada Supreme Court
• Decided: September 13, 1990
• Docket: 19977
• Status: Published

Opinions

OPINION

By the Court,

Rose, J.:

The primary issue presented by this appeal is whether appellant’s heavy boots constituted a deadly weapon for purposes of sentence enhancement pursuant to NRS 193.165. We conclude that, as a matter of law, the boots did not constitute deadly weapons under NRS 193.165. In reaching this conclusion, we set forth a different definition of deadly weapon for purposes of sentence enhancement than the definition used in our previous decisions. Accordingly, while we affirm appellant’s two convictions and sentences therefor, we vacate the sentence enhancement for use of a deadly weapon.

FACTS

On November 3, 1988, Carl Bergemann left his car parked in a parking garage at Harvey’s Casino in Stateline, Nevada. At about 8:00 o’clock that evening, Bergemann headed towards his car. Zgombic and two of his friends arrived and parked their car nearby. Zgombic was angry with his friends and separated from them.

According to Bergemann, Zgombic approached him at his car, said that he had lost all his money in the casino, and demanded Bergemann’s money. When Bergemann did not immediately comply, Zgombic threatened to kill him. Zgombic punched Bergemann in the face, grabbed his tie and forcefully threw him to the ground. Zgombic also kicked Bergemann several times in the head, ribs, and side. Zgombic was wearing heavy construction-type boots that had steel-reinforced toes. As Zgom-bic was walking away, he saw Bergemann’s wallet on the ground, removed forty dollars from it, and then discarded the wallet.

As a result of this incident, Bergemann suffered a broken and cut nose, chipped teeth, internal bleeding, several bruises, and two black eyes. Following a jury trial, Zgombic was convicted of robbery with use of a deadly weapon and battery. Zgombic was sentenced to seven years for robbery, an additional consecutive sentence of seven years for use of a deadly weapon, and a concurrent six-month sentence for battery.

LEGAL DISCUSSION

I. Analysis of whether boots constitute a deadly weapon for purposes of sentence enhancement pursuant to NRS 193.165.

Zgombic contends that the district court erred by applying the deadly weapon sentencing enhancement provision of NRS 193.165¹ to boots. Appellant specifically asserts that his boots are not hand-held “weapons” used for the purpose of inflicting injury.

This case gives us the opportunity to re-examine our decision in Clem v. State, 104 Nev. 351, 760 P.2d 103 (1988), where we adopted the functional test for determining whether an instrumentality is a deadly weapon for purposes of penalty enhancement under NRS 193.165. Under the functional test, an instrumentality, even though not normally dangerous, is a deadly weapon whenever it is used in a deadly manner. Id. at 357, 760 P.2d at . In Clem, we cited several cases in support of the functional test. Some of these cases dealt with the interpretation of a deadly weapon clause in a statute where a deadly weapon was an element of a crime, such as assault with a deadly weapon.² We have no dispute with these cases which use the functional test to define a deadly weapon when a deadly weapon is an element of a crime. Indeed, that is the interpretation generally followed in Nevada. See Loretta v. Sheriff, 93 Nev. 344, 565 P.2d 1008 (1977). Whether the same functional test applies for purposes of sentence enhancement is a different question, however. Upon reflection, we conclude that interpreting the deadly weapon clause in NRS 193.165 by means of a functional test was not what our legislature intended or what is mandated by statutory rules of construction. Accordingly, we overrule the functional test stated in Clem and substitute the “inherently dangerous weapon” test to determine whether an instrumentality is a deadly weapon pursuant to NRS 193.165.

Arizona formerly had a penalty enhancement statute that contained language almost identical to NRS 193.165, except that the word gun was used instead of firearm and the enhancement penalty was somewhat different. See State v. Hartford, 636 P.2d 1204 (Ariz. 1981) (discussing former A.R.S. Section 13-249(B)). This statute was construed by the Arizona Supreme Court in State v. Church, 504 P.2d 940 (1973). The Church court explained:

By adding the words “or deadly weapon” after “armed with a gun” in subsection B, we believe the rule of “ejusdem generis” has application here. The words “ejusdem generis" literally translated means [sic] of the same kind, class or nature. Such rules apply only to persons or things of the same nature, kind or class as preceding specific enumerations. In applying these principles in construing A.R.S. § 13-249, subsec. B, as amended, we are of the opinion that the legislature intended that one armed with a deadly weapon of the type like a gun (ones that are inherently dangerous), is subject to increased punishment.

Church, 504 P.2d at 943-44 (emphasis added) (citations omitted). Both the Nevada statute and the former Arizona statute refer, essentially, to a “firearm or other deadly weapon.” Thus, the Church decision is strong persuasive authority for application of the rule of ejusdem generis to NRS 193.165.

The dissent points out that the Arizona Supreme Court has limited the holding in Church to cases involving constitutional problems of vagueness where both the underlying crime and the enhancement statute require use of a deadly weapon. See State v. Moss, 579 P.2d 940 (Ariz. 1973). Nevertheless, the legislative intent analysis contained in Church is persuasive authority for our interpretation of the nearly identical language in Nevada’s enhancement statute. We are not adopting in its entirety Arizona’s law of sentence enhancements based on the use of deadly weapons. The Arizona law contains a number of enhancement provisions and, while not overruling Church or its rationale, it permits the consideration of the manner of use of the instrument in some cases.

In Church, the court also determined that the legislative intent in enacting the enhancement penalty statute was to deter criminals from carrying arms which have the potential of inflicting death. Church, 504 P.2d at 943. In Anderson v. State, 95 Nev. 625, 600 P.2d 241 (1979), we concluded that NRS 193.165, our penalty enhancement statute, “demonstrates generally the legislature’s concern regarding the increased use of deadly weapons in the commission of crimes and its belief that such proscription will serve to deter persons from using weapons during the perpetration of certain crimes in the hope that the possibility of death and injury will be reduced.” Id. at 630, 600 P.2d at 244 (citation omitted). The thrust of the penalty enhancement statutes for using a firearm or other deadly weapon is clearly to deter those who are or may be involved in criminal activity from using weapons that are inherently dangerous. It is meant to inform the criminal element and those preparing to engage in criminal activity that they will be subject to a severe additional penalty if they use a gun or a deadly weapon in the commission of a crime.

Our conclusion finds further support in other canons of statutory construction. First, a criminal statute must be strictly construed against the imposition of a penalty when it is uncertain or ambiguous. Carter v. State, 98 Nev. 331, 334-35, 647 P.2d 374, 376 (1982) (interpreting NRS 193.165 and 193.167). Here, the term “deadly weapon” is indeed uncertain, and thus the broader functional interpretation is not warranted. More importantly, the canons of statutory construction direct us to follow the intent of the legislature whenever a statute is unclear on its face. McKay v. Bd. of Supervisors, 102 Nev. 644, 650, 730 P.2d 438, 443 (1986). We have already cited that intention. Third, this court has stated that Nevada’s statutes providing for penalties for crimes must be construed in a manner which avoids unreasonable results. Vidal v. State, 105 Nev. 98, 101, 769 P.2d 1292, 1294 (1989). Under the functional definition of “deadly weapon,” virtually any instrumentality would be a deadly weapon if used to kill or injure a victim. If so, the sentence for almost every crime involving any instrumentality (even a knitting needle or string) causing injury would be doubled. While this result is not patently absurd or unreasonable, we do not believe that this was the public policy which the legislature intended when it enacted NRS 193.165. Following these canons, we conclude that the enhancement penalty for use of a deadly weapon in the commission of a crime pursuant to NRS 193.165 is limited to firearms and other instrumentalities that are inherently dangerous.

NRS 193.165 is designed to deter injuries caused by weapons, not by people. It is the potential violence inhering in the weapon itself which NRS 193.165 addresses. The legislature intended violence caused by people to be remedied by the statutes proscribing the underlying crime. Accordingly, NRS 193.165(3) provides that the deadly weapon enhancement does not apply where use of the weapon is an element of the underlying crime. Clem’s functional test for defining a deadly weapon focuses on the defendant’s acts of violence, rather than on the potential for violence inhering in the use of a weapon itself. This contravenes the legislature’s purpose in enacting NRS 193.165, and, accordingly, we overrule this aspect of our decision in Clem.

Two cases cited in Clem construed enhancement statutes which are distinguishable from NRS 193.165. See Cummings v. State, 384 N.E.2d 605 (Ind.Ct.App. 1979); People v. Moran, 109 Cal.Rptr. 287 (Cal.Ct.App. 1973). Both the Indiana and the California statutes construed in these cases referred, in essence, to “deadly or dangerous” weapons. NRS 193.165, in contrast, refers only to deadly weapons. The term “dangerous” is broader than “deadly,” and is certainly more indicative of legislative intent to enact a functional test. Additionally, the California statute does not refer to “firearms or dangerous weapons” in the same clause. See Cal. Penal Code § 12022(a)-(b) (West Supp. 1990). Thus, the canon of ejusdem generis is inapplicable to the California statute. Finally, while the California enhancement statute is broader than Nevada’s, other states’ statutes are narrower, limiting sentence enhancements to crimes involving use of an actual firearm. See, e.g., Utah Criminal Code § 76-3-203. Like the former Arizona statute, NRS 193.165 falls somewhere in between the Utah and California enactments.

In conclusion, a deadly weapon under NRS 193.165 is any instrumentality which is inherently dangerous. Inherently dangerous means that the instrumentality itself, if used in the ordinary manner contemplated by its design and construction, will, or is likely to, cause a life-threatening injury or death. Hartford, 636 P.2d at 1209 (quoting State v. Gordon, 584 P.2d 1163, 1167 (1978)). As a practical matter, three possible results flow from our definition of deadly weapon under NRS 193.165. First, some weapons can be determined, as a matter of law, to be inherently dangerous. The only remaining question the trier of fact will have to determine is if the deadly weapon was used in the commission of the offense. Other weapons, as a matter of law, are not inherently dangerous. Finally, in a few close cases where the court cannot determine as a matter of law whether the weapon is or is not a deadly weapon, the judge will need to submit the entire issue to the jury after instructing it on the previously stated definition of a deadly weapon. In these close cases, the jury must specifically and separately find the instrumentality at issue to be a deadly weapon and that it was used in the commission of the offense before the enhancement can be imposed. Once such findings are made, however, the sentence enhancement is mandatory under the terms of NRS 193.165.

In this case, Zgombic was wearing a pair of boots with a reinforced toe. These standard construction-type boots were not modified in any way so as to facilitate their use as a weapon; the boots were simply reinforced with metal in the toe to prevent injury to the foot. We see nothing inherently dangerous in this instrumentality or any natural propensity of these boots to cause death or life-threatening injury. Therefore, we hold that, as a matter of law, the boots worn by Zgombic when he committed his crimes and which he used to kick the victim are not dangerous weapons as contemplated in this enhancement statute. Therefore, Zgombic was not subject to the enhancement penalty as set forth in NRS 193.165.

II. Appellant’s other claims of error.

Appellant next argues that his convictions for robbery with use of a deadly weapon and battery violate his right not to be placed twice in jeopardy. See Point v. State, 102, Nev. 143, 717 P.2d 38 (1986); Owens v. State, 100 Nev. 286, 680 P.2d 593 (1984). We disagree.

Nevada has adopted the double jeopardy test set forth in Blockburger v. United States, 284 U.S. 299 (1932), where the U.S. Supreme Court held that if “the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Owens, 100 Nev. at 288, 680 P.2d at 594 (quoting Blockburger, 284 U.S. at 304) (emphasis added). Applying the Blockburger test to the facts of this case, we conclude that these two convictions did not place Zgombic in double jeopardy. Under NRS 200.481, battery requires actual physical contact. Under NRS 200.380, however, robbery requires only fear of injury, with or without contact. Additionally, robbery requires a taking of personal property, while battery does not. Thus, each of these offenses requires proof of a fact which the other does not and there is no double jeopardy problem under Blockburger.

Appellant finally contends that there is insufficient evidence to support the robbery conviction. Although he admitted taking the victim’s money, Zgombic argues that the evidence shows that the fight had nothing to do with the theft of the money, which Zgombic says came as a mere afterthought. Thus, Zgombic contends, the jury had no basis to conclude that the money was taken by means of force, as required for robbery under NRS 200.380. This contention is without merit. Zgombic took the victim’s money immediately after inflicting a serious beating and the victim, Mr. Bergemann, testified that Zgombic had demanded money. The jury had a right to believe Bergemann’s testimony and the jury could convict on the basis of uncorroborated testimony from the victim. See King v. State, 105 Nev. 373, 784 P.2d 942 (1989); Deeds v. State, 97 Nev. 216, 626 P.2d 271 (1981). There was substantial evidence to support the jury’s determination that the money was taken by force.

CONCLUSION

For the reasons stated above, Zgombic’s convictions and sentences for robbery and battery are affirmed. The sentence enhancement for use of a deadly weapon is reversed. As we did in McIntyre v. State, 104 Nev. 622, 764 P.2d 482 (1988), we hereby vacate the sentence enhancement and order the language regarding use of a deadly weapon to be stricken from the judgment of conviction.

Young, C. J., and Springer, J., concur.

1 NRS 193.165 provides in pertinent part:

1. Any person who uses a firearm or other deadly weapon or a weapon containing or capable of emitting tear gas, whether or not its possession is permitted by NRS 202.375, in the commission of a crime shall be punished by imprisonment in the state prison for a term equal to and in addition to the term of imprisonment prescribed by statute for such crime. The sentence prescribed by this section shall run consecutively with the sentence prescribed by statute for such crime.

2 The cases cited by Justice Mowbray in his dissent concern statutes where a deadly weapon was an element of a crime.