from a judgment of conviction, pursuant to a jury verdict, of
six counts of possession of a firearm by a prohibited person.
Second Judicial District Court, Washoe County; Scott N.
L, Arrascada, Public Defender, and John Reese Petty, Chief
Deputy Public Defender, Washoe County, for Appellant.
D. Ford, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, Terrence P. McCarthy, Chief Appellate
Deputy District Attorney, and Joseph R. Plater, Appellate
Deputy District Attorney, Washoe County, for Respondent.
GIBBONS, C.J., PICKERING and HARDESTY, JJ.
202.360 (2015) makes it a felony for certain categories of
prohibited person to possess a firearm. A jury convicted Ian
Hager of six counts of violating this statute. Counts one
through three charged Hager with violating NRS 202.360(2)(a)
by virtue of him possessing specified firearms as a person
who has "been adjudicated as mentally ill... by a court
of this State, any other state or the United States."
Counts four through six charged Hager with illegally
possessing the same firearms based on his status as a person
who is "an unlawful user of, or addicted to, any
controlled substance." NRS 202.360(1)(d).
appeal presents questions as to both categories of prohibited
person. First, is a defendant who is assigned to and
successfully completes a mental health specialty court
diversion program under NRS 176A.250 through NRS 176A.265
(2013) thereby "adjudicated as mentally ill,"
making it illegal for him to possess a firearm under NRS
202.360(2)(a)? Second, was it harmless error to instruct the
jury in a way that theoretically allowed Hager to be
convicted of illegal possession of a firearm by an
"unlawful user" of a controlled substance under NRS
202.360(1)(d) based on a single current use of the substance?
that Hager's assignment to and successful completion of a
Nevada mental health court diversion program did not
constitute an adjudication of mental illness that made his
subsequent possession of a firearm a felony under NRS
202.360(2)(a). We further hold that, under NRS 202.360(1)(d),
the jury should have been instructed that an "unlawful
user" of a controlled substance is someone who regularly
uses the substance, in a manner not medically prescribed,
over a period of time proximate to or contemporaneous with
possession of a firearm. Based on these holdings, we reverse
the judgment of conviction as to counts one through three,
and reverse and remand for a new trial before a correctly
instructed jury as to counts four through six.
February 2013, Hager was arrested for outstanding warrants
after being stopped for speeding on 1-80 in Humboldt County.
When they arrested Hager, the police found and confiscated
two firearms. The Humboldt County district attorney charged
Hager with illegally carrying a concealed weapon and another
offense. After negotiations, Hager pleaded guilty to carrying
a concealed weapon. In exchange for Hager's plea, the
criminal case was suspended, the remaining charge was
dismissed, and Hager was referred by Humboldt County to the
mental health specialty court program that Washoe County
established under NRS 176A.250 through NRS 176A.265.
licensed mental health professional diagnosed Hager with
post-traumatic stress disorder (PTSD) associated with
traumatic family events. Hager's PTSD diagnosis, together
with the fact he was neither charged with nor previously
convicted of a felony involving violence or the threat of
violence, made him eligible for Washoe County's mental
health court diversion program. As part of the intake
process, a presentence investigator interviewed Hager, Then
28 years old, Hager admitted in the interview that he had
been addicted to methamphetamine between the ages of 12 and
19 but stated that, with the exception of a one-time use of
methamphetamine in January 2013, he no longer used drugs.
evaluation, and with Hager's consent, Washoe County
assigned him to its mental health court diversion program.
Among other conditions, the program required random drug and
alcohol tests. As a result of his assignment, no judgment of
conviction was entered on Hager's guilty plea in Humboldt
County. In May 2014, Washoe County discharged Hager from its
program based on his having successfully completed it, and
Humboldt County dismissed its criminal case against him.
Hager's "[d]ischarge and dismissal restore[d him],
in the contemplation of the law, to the status occupied
before the arrest, indictment or information," NRS
76A.260');">176A.260(4), and Hager's records were sealed, NRS
176A.265. After his discharge and dismissal, Hager filled out
paperwork asking the State to return his confiscated
firearms, which the State did in August 2015.
2015, police responded twice to disturbances at Hager's
residence, and both times confiscated firearms. Later, Hager
again contacted the police about returning his firearms.
After completing the necessary paperwork and background
check, the police again returned Hager's firearms to him,
this time in January 2016.
later, in February 2016, Hager contacted a detective to
discuss the police department's investigation into
Hager's brother's death in 2012. Hager believed his
brother had been murdered but the investigation concluded
that Hager's brother's death resulted from an
accidental methamphetamine overdose, not foul play. Hager
asked the detective to reopen the investigation. After
looking into the case, the detective told Hager he found
nothing to support reopening it. This infuriated Hager, and
he sent the detective a link to a video he created and posted
on Facebook. The record on appeal does not include the video
but the trial transcript indicates that it shows Hager
railing against the police for incompetence in attributing
his brother's death to an accidental overdose, with Hager
snorting a white substance from a baggy to dramatize how much
methamphetamine a person can consume without overdosing. The
video reportedly shows Hager with firearms beside him.
and other social media posts Hager made led police to take
Hager into custody for illegal possession of firearms. Hager
consented to a search of his car, which did not turn up guns
or drugs. Police then executed a search warrant at
Hager's home and found the firearms underlying the
charges in this case. They also found a glass pipe, and empty
baggies commonly used to hold drugs, but no controlled
substances or trace evidence of them. In the police interview
that followed his arrest, Hager admitted possessing the
firearms found in his home and that the substance he snorted
in the Facebook video was meth-a statement Hager later denied
at trial, where he testified the substance was salt.
was charged with three counts of possession of a firearm
after having been adjudicated mentally ill and three counts
of possession of a firearm while being an unlawful user of,
or addicted to, a controlled substance. A jury convicted
Hager on all counts, and he appeals.
to its federal counterpart, illegal firearm possession under
NRS 202.360 has three main elements: (1) a status element
(the defendant falls within one of the categories of person
the statute prohibits from possessing a firearm); (2) a
possession element ("[a] person shall not. . . have in
his or her possession"); and (3) a firearms element
("any firearm"). See Rehaifv. United
States, 588 U.S.__, .__, 139 S.Ct. 2191, 2195-96 (2019)
(stating the status, possession, and firearms elements of the
federal firearms statute, 18 U.S.C. § 922(g) (2012)).
Hager admits the possession and firearms elements of ...