IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA,
Appellant, N ° €7°11F IL ED
vs.
NATASHA GALENN JACKSON, FEB 2 5 2016
Respondent.
ORDER OF REVERSAL AND REMAND
This is an appeal from a district court order granting in part a
pretrial petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; Jessie Elizabeth Walsh, Judge.
Respondent, Natasha Jackson, along with Cody Winters,
allegedly entered into a home to steal a car. During the course of the
crime, they killed one occupant and stabbed another. Jackson and
Winters then allegedly entered an abandoned house nearby where, after
attempting to shoot police officers, the officers shot and killed Winters and
arrested Jackson. At the grand jury indictment hearing, the State elicited
testimony that Winters carried a handgun throughout the course of
events. Although there was no testimony that Jackson handled the gun,
evidence was presented that she was aware that Winters had it, and at
times even gave Winters directions on what to do with it. After the
hearing, the State charged Jackson via indictment with, among other
crimes, burglary while in possession of a firearm and burglary while in
possession of a deadly weapon.
In response to a pretrial petition for a writ of habeas corpus,
the district court struck the aforementioned charges in their entirety
because there was no evidence that Jackson actually possessed the
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weapon. The district court ruled that "possession" for the purposes of NRS
205.060(4)'s definition of burglary while in possession of a firearm or
deadly weapon is only satisfied upon a showing of actual possession of the
weapon. We disagree.
"In reviewing a district court's order granting a pretrial
petition for writ of habeas corpus for lack of probable cause, . . . [t]his court
will not overturn the district court's order unless the district court
committed substantial error." Sheriff, Clark Cty. v. Burcham, 124 Nev.
1247, 1257, 198 P.3d 326, 332 (2008). In doing so, this court must
"determine whether all of the evidence received . . . establishes probable
cause to believe that an offense has been committed and that the accused
committed it." Kinsey v. Sheriff, Washoe Cty., 87 Nev. 361, 363, 487 P.2d
340, 341 (1971). A finding of probable cause may be based upon slight or
marginal evidence. State v. White, 130 Nev., Adv. Op. 56, 330 P.3d 482,
486 (2014).
"[P]ossession necessary to justify statutory enhancement may
be actual or constructive. . . ." Anderson v. State, 95 Nev. 625, 630, 600
P.2d 241, 244 (1979), abrogated on other grounds by Brooks v. State, 124
Nev. 203, 180 P.3d 657 (2008). 1 Constructive possession occurs when an
unarmed participant in an underlying crime "has knowledge of the other
'In Brooks, this court abrogated Anderson on the basis that the
ability to control the weapon, necessary for a constructive possession
analysis was not necessary for a "use" enhancement analysis because "use"
is satisfied when an "unarmed offender is liable as a principal for the
offense that is sought to be enhanced, another. . . is armed with and uses
a deadly weapon in the commission of the offense, and the unarmed
offender had knowledge of the use of the deadly weapon." 124 Nev. at 209-
10, 180 P.3d at 661.
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offender's being armed, and where the unarmed offender has .. . the
ability to exercise control over the [weapon]." Id. at 630, 600 P.2d at 244.
This interpretation of "possession" is consistent with other holdings by
this court "involving interpretations of the term 'possession." Id. (citing
Glispey v. Sheriff, Carson City, 89 Nev. 221, 510 P.2d 623 (1973)); see also
Jones v. State, 111 Nev. 848, 852, 899 P.2d 544, 546 (1995) (concluding
that an unarmed offender constructively possessed firearms possessed by
his cohorts when he collected property of victims at gunpoint); Walters v.
State, 108 Nev. 186, 189, 825 P.2d 1237, 1239-40 (1992) (concluding that
an unarmed offender did not constructively possess the knife used by the
armed offender because there was no evidence that he could have
controlled the armed offender); Moore v. State, 105 Nev. 378, 382, 776 P.2d
1235, 1238 (1989) (concluding that a defendant constructively possessed
the rock thrown by the armed offender when the defendant was able to
verbally deter the armed offender), overruled on other grounds by Peck v.
State, 116 Nev. 840, 7 P.3d 470 (2000), overruled on other grounds by
Rosas v. State, 122 Nev. 1258, 147 P.3d 1101 (2006). Control can be
demonstrated merely by the ability to give verbal instructions or
deterrence to the person with actual possession of the weapon. Moore, 105
Nev. at 382, 776 P.2d at 1238.
Jackson does not deny that she was aware that Winters was
armed. Further, the evidence presented appears to indicate that minutes
prior to the first home invasion, she loaded a commandeered NDOT van
with items from her and Winters' car while Winters held the NDOT driver
at gunpoint.
The evidence also showed that Jackson had sufficient control
over the weapon. Jackson allegedly directed occupants in the first house
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based on the threat of the firearm. Additionally, Jackson allegedly
instructed Winters to shoot the police officers. While there may be doubt
regarding her actual ability to control Winters and the firearm, there was
at least slight and marginal evidence to support a finding of probable
cause that Jackson was able to exercise control and thus had constructive
possession of the firearm.
Therefore, we conclude that the district court substantially
erred when it ruled that "possession" refers only to actual possession.
Moreover, we conclude that the district court substantially erred when it
failed to find slight or marginal evidence that Jackson constructively
possessed the weapon and when it struck the relevant counts, based on
our conclusion that there was sufficient evidence for a rational juror to
determine that Jackson both knew about the firearm and was able to
exercise control over it. Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order. 2
Parraguirre
, J.
Cherry
2Because we reverse the district court's judgment, we need not reach
the issue of whether the district court erred in striking the counts in their
entirety rather the merely striking the possession language.
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cc: Hon. Jessie Elizabeth Walsh, District Judge
Attorney General/Carson City
Clark County District Attorney
Clark County Public Defender
Eighth District Court Clerk
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(44) 1.947A 40P