[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from a judgment of conviction, pursuant to a jury verdict, of domestic battery by strangulation, domestic battery causing substantial bodily harm, possession of a controlled substance for the purpose of sale, possession of a controlled substance, false imprisonment, and unlawful taking of a motor vehicle. Second Judicial District Court, Washoe County; Patrick Flanagan, Judge.
Affirmed in part and reversed in part.
Richard F. Cornell, Reno, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.
BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ. Cherry, J. We concur: Hardesty, J. Parraguirre, J.
In this opinion, we address whether the charge of possession of a controlled substance is a lesser-included offense of possession of a controlled substance for the purpose of sale. Under the Double Jeopardy Clause, a criminal defendant may not be punished multiple times for the same offense unless the Legislature has clearly authorized the punishments. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Because we conclude that possession of a controlled substance is a lesser-included offense of possession of a controlled substance for the purpose of sale, we conclude that appellant may not be punished for both crimes. To remedy the double-jeopardy violation, we look to the range of punishment for the principal offenses and reverse the conviction with the lesser penalty. Based on appellant's criminal history, we conclude that simple possession was the less severely punishable offense, and we, accordingly, reverse that conviction. However, we affirm the remainder of the judgment of conviction, including the adjudication of appellant as a habitual criminal.
After Darren LaChance returned home from a three-day gambling binge, he and his girlfriend, Starleen Lane, got into an argument in the early hours of the morning. Their roommate, Conrad Coultre (CJ), also became involved in the argument later that morning. Lane testified that after LaChance and CJ started arguing, LaChance hit her on the right side of her forehead with a flashlight. Then, after CJ left for work, LaChance grabbed her by the arm and flung her into the bedroom while yelling, belittling, and threatening to kill and maim her. He began to punch and slap her face and ear, threw her on the bed, and got on top of her with his knee on her chest and his hand around the lower part of her neck. LaChance used his body weight to put pressure on her chest and lower neck. Lane had difficulty breathing and saw stars because of the pressure and because of her fear and anxiety. After Lane started to scream, LaChance covered her mouth with his hand.
Lane further stated that LaChance repeatedly slapped her ear, and it " just went blank." She could no longer hear and became immediately nauseous. Lane was able to roll into a fetal position while he kicked her in the shins and tailbone and hit her with the flashlight. When she tried to get up, LaChance stomped on her feet.
According to Lane, LaChance eventually left the room, and Lane opened the patio door, jumped off the balcony, and fled with LaChance chasing her. LaChance caught up to her but, after a neighbor yelled that she was calling the cops, LaChance fled to Lane's car and drove off without her permission. The neighbor testified that she saw LaChance beating Lane, and after she yelled at him, he ran off. The neighbor then called the police. Lane waited for the police to arrive, and she made a report before going to the hospital.
At the hospital, Lane was treated for multiple contusions on her face, back, legs, feet, and ear. She suffered pain in that ear and tenderness in her neck, abdomen, pelvis, and extremities. Lane stated that she was immobile for a few days afterward. She has permanent shin splints and can no longer run. Due to her tailbone injuries, she is unable to sit for long periods of time. Lane testified that she suffers from hearing loss and ongoing pain. But, due to a lack of medical insurance, she does not go to the doctor for these problems.
Lane testified that following the assault, she received a number of intimidating text messages from LaChance, indicating that she needed to make the case go away. Lane decided not to press charges out of fear.
About a week after the incident, Lane met with LaChance at a Motel 6. She indicated that the detectives knew of their meeting as her phones were tapped. Lane stayed with LaChance at the motel for two nights.
On the second morning, Lane stated that she left the motel room to smoke a cigarette, rounded the corner, and ran into a group of police officers looking for LaChance. They had established a perimeter when Lane happened upon them. Lane granted consent to the police to enter and search the motel room. Detective Curtis English testified that LaChance did ...