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Nevada Supreme Court Announces Felon’s Possession of Multiple Firearms at One Time and Place Is Only Single Violation of State Statute

Anthony Martinez was arrested after he allegedly shot two people. Police recovered five firearms at the scene – four from within Martinez’s car and a fifth lying beside his car. Among the 15 counts with which the State charged him were five counts of possession of a firearm by a convicted felon – one count for each firearm – in violation of NRS 202.360(1)(b).

Martinez filed a motion to consolidate the five counts into one count, arguing his charged conduct was, at most, a single violation of the statute. The district court agreed and granted his motion. The State sought pretrial relief in a petition for extraordinary relief seeking writs of prohibition and mandamus, which the Nevada Supreme Court narrowed to a petition for a writ of mandamus.

The Court observed “[d]eciding NRS 202.360(1)(b)’s ‘unit of prosecution presents an issue of statutory interpretation and substantive law.’” Jackson v. State, 291 P.3d 1274 (Nev. 2012). Questions of statutory interpretation, including unit-of-prosecution (“UOP”) analysis, begins with the statute’s text. Castaneda v. State, 373 P.3d 108 (Nev. 2016). If the statute’s UOP is ambiguous, the Court turns to other available resources that include related statutes, relevant legislative history, and prior judicial interpretations of comparable statutes. Id. If a reasonable doubt about the UOP persists after examination of all available resources, the rule of lenity requires that the ambiguity be resolved in the defendant’s favor. Id.

NRS 202.360(1)(b) reads, in pertinent part, “[a] person shall not own or have in his or her possession ... any firearm if the person ... [h]as been convicted of a felony....” The Court explained “a defendant who is a convicted felon and possesses one firearm ... can be charged and convicted of one count of violating [the statute],” but based on that, “it does not follow ... that a felon who possesses five such firearms at one time and place can be charged with and convicted of five counts of violating [the statute].”

The problem with NRS 202.360(1)(b) is its use of the word “any” to modify “firearm.” The word “any” when used in a criminal statute creates ambiguity as to that statute’s UOP. Bell v. United States, 349 U.S. 81 (1955). The word can mean (1) one; (2) one, some, or all regardless of quantity; (3) great, unmeasured, or unlimited in amount; (4) one or more; and (5) all. Castaneda. Because NRS 202.360(1)(b) does not specify a particular meaning for the word “any,” the statute’s UOP can be on a per-firearm basis, or it can be on the basis of a felon simultaneously possessing one or more firearms at one time and place. Since both interpretations are reasonable, the statute is ambiguous, the Court determined.

The State argued that prior judicial decisions interpreting other statutes demonstrate the Legislature intended the word “any” – as used in NRS 202.360(1)(b) – to define the UOP as “per firearm.” But the Court was unpersuaded, concluding that the State’s arguments failed to resolve the ambiguity, and the rule of lenity applied. The Court observed that its holding comports with federal jurisprudence interpreting the UOP of 18 U.S.C. § 922(g)(1) (i.e., the federal felon-in-possession of firearms statute). Section 922(g)(1) uses the word “any” to modify the “firearm” in possession of the felon. All federal circuits have applied the rule of lenity in interpreting that statute to mean “it does not matter if [the defendant] has one, two, three, or more firearms” so long as the defendant possesses the firearms simultaneously, at one time and place, he or she commits a single offense. United States v. Robinson, 855 F.3d 265 (4th Cir. 2017). Thus, the Nevada Supreme Court ruled that the district court was correct and did not commit any clear error.

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Related legal case

State v. Fourth Judicial District Court



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