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Hager v. State

Supreme Court of Nevada

August 29, 2019


         Appeal 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. Freeman, Judge.

          John L, Arrascada, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe County, for Appellant.

          Aaron 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.



          PICKERING J

         NRS 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).

         This 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?

         We hold 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.


         In 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.

         A 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.

         After 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.

         In 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.

         A month 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.

         This 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.

         Hager 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.


         Similar 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. ยง 922(g) (2012)). Hager admits the possession and firearms elements of ...

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