by Douglas Ankney

The Supreme Court of Nevada reaffirmed that theft offenses and possessing or receiving stolen property offenses are mutually exclusive, and double jeopardy protections precluded a defendant’s convictions for both offenses where charges stem from the same conduct.

Background

In February 2022, the home of Gavin Filarsky and Mary Berberian was burglarized. Using an Apple AirTag and the “Find My” app, police located a refrigerator belonging to Berberian at the residence of John Paul Alvarez. Police then discovered other items belonging to Filarsky and Berberian inside Alvarez’s home and in his pockets.

Alvarez was arrested, and on March 2, 2022, the city attorney charged Alvarez in Reno Municipal Court with misdemeanor possession of stolen property. Alvarez pleaded guilty and was sentenced to 30 days in jail. Then, on March 4, 2022, the county district attorney filed a criminal complaint against Alvarez in Reno Justice Court, and Alvarez was subsequently indicted on charges of home invasion, residential burglary, conspiracy to commit burglary, and grand larceny—all based on the same incident as the misdemeanor possession of stolen property offense.

After the case was bound over to the district court, Alvarez moved for dismissal of the grand larceny charge on double jeopardy grounds, arguing that the grand larceny count involved the same factual basis and elements as the misdemeanor possession offense, barring the State from prosecuting Alvarez on the grand larceny. The district judge, relying on the framework of Blockburger v. United States, 284 U.S. 299 (1932), concluded that each offense contained an element the other did not and denied the motion. The case proceeded to trial, and a jury convicted Alvarez of residential burglary, conspiracy to commit burglary, and grand larceny. The trial court imposed a sentence of incarceration of 48-120 months on the residential burglary with concurrent terms of 19-48 months for grand larceny and 364 days for conspiracy to commit burglary. Alvarez timely appealed.

Analysis

The Court observed that the “Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’” The prohibition against double jeopardy applies to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784 (1969), and it is also guaranteed by the Nevada Constitution, Nev. Const. art. 1, § 8. The Court stated that it reviews double jeopardy claims de novo. Davidson v. State, 192 P.3d 1185 (Nev. 2008).

The Double Jeopardy Clause prohibits a criminal defendant from being punished multiple times “for the same offense without clear authorization from the legislature,” according to the Court. See LaChance v. State, 321 P.3d 919 (Nev. 2014) (citing Missouri v. Hunter, 459 U.S. 359 (1983)). Multiple punishments for the same offense do not violate the prohibition against double jeopardy where Congress or a state legislature has clearly authorized such punishments. See Whalen v. United States, 445 U.S. 684 (1980).

The Court stated that the issue for the current case is “whether the relevant statutes penalize the same or several distinct offenses, and if so, whether a presumption arises against cumulative punishment.” Jackson v. State, 291 P.3d 1274 (Nev. 2012). In making this determination, the Court first considers the text of the statutes. If legislative intent cannot be determined by reference to the statutes, the Court turns to the Blockburger test, which examines the elements of each offense. Id. (“The Blockburger test ‘inquires whether each offense contains an element not contained in the other; if not, they are the “same offence” and double jeopardy bars additional punishment and successive prosecution.’” (quoting United States v. Dixon, 509 U.S. 688 (1993))). The Blockburger test alone is not determinative as two separate offenses may contain an element the other does not yet also be “mutually exclusive by their terms.” Jackson. (“‘Alternativity’ refers to the mutually exclusive quality of certain offenses—the application of one logically excludes the application of another to the same factual situation.”).

Under Nevada law, “a person cannot be convicted of a theft crime and possessing or receiving the property stolen in the commission of that theft crime.” Stowe v. State, 857 P.2d 15 (Nev. 1993). For instance, in Point v. State, 717 P.2d 38 (Nev. 1986), the defendant was convicted of both grand larceny and possession of stolen property. The Point Court reversed the conviction for possession of stolen property, reasoning that, absent “legislative intent to the contrary,” the Nevada Legislature did not intend to “compound the punishment for larceny, robbery, or embezzlement by permitting convictions for the receipt or possession of stolen property against the one who took the property in the first instance.” Further, by “enacting the statute addressing the receipt or possession of stolen property, NRS § 205.275, it is apparent that the Legislature sought to reach and punish those who unlawfully receive or possess stolen property from the initial wrongdoer,” the Court reasoned. Id.

The Court observed that the principle that theft offenses and possession of stolen property are mutually exclusive offenses was reinforced in Lane v. State, 956 P.2d 88 (Nev. 1998), where the Lane Court concluded that under “Nevada law, [the defendant] could not be convicted of both robbery and receiving stolen property.” The defendant’s “conviction [could] not be aggravated by both the robbery and the receipt of money stolen during that robbery.” Id.

Turning to the present case, the State conceded the principle established in Point and Stowe but attempted to distinguish those cases from the current one by arguing each charge must involve the same property in order for the principle to apply. That is, the State claimed that only a small portion of the stolen property overlapped between the property at issue in the possession case and the property in the grand larceny case. Accordingly, the State argued that Alvarez can be convicted of both offenses without violating the Double Jeopardy Clause. However, the Court rejected the State’s argument, explaining that “the determination rests on whether the charges are based on a single act, not what property is attributed to each offense.”

Conclusion

The Court reaffirmed that Point and Stowe remain “good law” and govern the current case. Alvarez’s convictions for grand larceny and possession of stolen goods were based on the same conduct, so he could be convicted of either offense but not both, according to the Court. Thus, because he had already been convicted of possession of stolen goods, the Court held that his subsequent prosecution and conviction for grand larceny violated the Fifth Amendment’s protection against double jeopardy.

Accordingly, the Court reversed the district court’s denial of the motion to dismiss the grand larceny charge and remanded to the district court for proceedings consistent with its opinion. See: Alvarez v. State, 561 P.3d 23 (Nev. 2024). 

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