Four Advance Opinions for 3-28-24

3 months 3 weeks ago #244 by Joseph Allan Tommasino

In re I.S.,

140 Nev. Adv. Op. No. 18

March 28, 2024

Appeal from a district court order affirming and adopting a juvenile master's recommendations to adjudicate appellant a delinquent child and to impose formal probation conditions. Second Judicial District Court, Family Division, Washoe County; Bridget E. Robb, Judge. 



By the Court, CADISH, C.J.:


“The district court affirmed and adopted a juvenile court master's recommendations to adjudicate appellant I.S. a delinquent and place I.S. on formal probation despite Juvenile Services' recommendation for informal supervision. In doing so, the court rejected I.S.'s argument that NRS 62C.200(1)(b) creates an unconstitutional prosecutorial veto by requiring the district attorney's written approval before informal supervision may be ordered notwithstanding that NRS 62C.230(1)(a) gives a juvenile court authority to dismiss a petition without prejudice and refer the child to a probation officer for informal supervision. I.S. maintains on appeal that NRS 62C.200 is inconsistent with the separation of powers doctrine.” 

Issue #1:

“As I.S. is no longer under supervision, we first address whether this appeal is moot.”

Brief Answer #1:

“Because I.S. is under 18 and his record has not been sealed, collateral consequences of the underlying adjudication remain, and thus, we conclude that this appeal is not moot.”

Issue #2:

“As to the merits. . . .”

Brief Answer #2:

“. . . we conclude that NRS 62C.200(1) does not create a separation of powers issue because the court's ability to dismiss a petition without prejudice and refer a juvenile to informal probation is not a sentencing decision in nature, and thus, the statute does not encroach on the court's sentencing discretion.

We therefore affirm.”


Smith v. State,

140 Nev. Adv. Op. No. 19

March 28, 2024

Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of possession of a visual presentation depicting sexual conduct of a person under sixteen years of age. Second Judicial District Court, Washoe County; Barry L. Breslow, Judge.

Reversed and remanded.


By the Court, BELL, J.:


“This appeal raises issues regarding the scope of a valid search warrant. Under Nevada law, an affidavit may be incorporated into a warrant to establish probable cause, but that affidavit cannot expand the scope of the search and seizure permitted under the warrant's specific language. Absent an exception, officers must search only the places authorized on the face of the warrant. Further, if  exigent circumstances allow the warrantless seizure of a cell phone, police may not search the data on that cell phone unless a new warrant is obtained or exigent circumstances independently justify the search of the data.

Here, officers had a valid warrant for Appellant Deva One Smith's residence only; however, officers seized Smith's cell phone from his person while outside the residence.”

Brief Answers:

“Under the circumstances, the imminent destruction of evidence exigency justified the seizure.

Yet no other exigent circumstance allowed for the subsequent forensic search of the cell phone.

Because officers failed to obtain a warrant to search the cell phone, the search of that device violated Smith's Fourth Amendment rights.

Therefore, we conclude that the district court erred in denying Smith's motion to suppress the evidence found on the phone.

As a result, we reverse the judgment of conviction.”


Kabew v. Eighth Jud. Dist. Ct.,

140 Nev. Adv. Op. No. 20

March 28, 2024

Original petition for a writ of mandamus challenging a district court order denying a motion to set aside a judgment of conviction.

Petition granted.


By the Court, STIGLICH, J.:


“Petitioner Christopher Kabew pleaded guilty to attempted residential burglary and was placed on probation. As a term of probation, Kabew had to successfully complete a substance abuse treatment program.  Kabew did so and moved the district court to set aside the judgment of conviction under NRS 176A.240(6)(a). The district court denied the motion and honorably discharged Kabew from probation.

In this original proceeding, we consider a district court's discretion when resolving cases under NRS 176A.240(6)(a). That statute provides that when a defendant fulfills the terms and conditions of probation pursuant to a substance abuse treatment program (drug court), a district court ‘hall discharge the defendant and dismiss the proceedings or set aside the judgment of conviction, as applicable, unless the defendant’ has either a prior felony conviction or previously failed a specialty court program.”

Brief Answer:

“We hold that the statute does not afford district courts any discretion to deny a motion to set aside the judgment of conviction when the defendant meets the statutory requirements. Accordingly, we grant the petition.”


Judd v. State,

140 Nev. Adv. Op. No. 21

March 28, 2024

Appeal from a judgment of conviction, entered pursuant to a jury verdict, of one count of felony injuring or tampering with a motor vehicle and one count of felony coercion. Seventh Judicial District Court, Lincoln County; Gary Fairman, Judge.

Affirmed in part, reversed in part, and remanded.


By the Court, BULLA, J.:


“The consequences of criminal convictions vary widely between misdemeanors and felonies, including the potential terms of incarceration. And sometimes crimes—such as coercion—can be punished as either. Under NRS 207.190(2), criminal coercion is punishable as a felony if carried out using physical force or the immediate threat of physical force. However, absent the use or immediate threat of physical force, coercion is punishable as a misdemeanor.”


“In this opinion, we consider whether NRS 207.190(2)'s use of the phrase ‘physical force’ to distinguish between coercion being punished as a felony versus as a misdemeanor should be limited to physical force against a person, and not merely against property—in this case, a 1957 Chevrolet truck.”

Brief Answer:

“Because we conclude that the Nevada Legislature intended for the distinguishing statutory element of ‘physical force’ to be limited to force against a person, the jury should have been so instructed. 

In reaching our decision, we emphasize the importance of giving proper jury instructions for the essential elements of a crime. Doing so is particularly important where, as here, the jury's consideration of the essential element of physical force, without proper instruction, resulted in a felony conviction.

As the district court failed to properly instruct the jury on the definition of physical force as being limited to force against a person—the essential element required for a felony conviction—we necessarily reverse this conviction. However, we affirm the felony conviction for injuring or tampering with a motor vehicle, as the district court correctly instructed the jury as to the proper measure of damages for the partial destruction of property.”

Joe T.

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