IN THE SUPREME COURT OF THE STATE OF NEVADA
ROBERT HOLMES, III, No. 62274
Appellant,
vs. FILED
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT,
MAR 1 8 2016
Respondent.
ORDER OF REVERSAL AND REMAND
This is a pro se appeal from a district court summary
judgment in a forfeiture action. Eighth Judicial District Court, Clark
County; Douglas Smith, Judge.
Appellant pleaded guilty to one count of conspiracy to possess
stolen property and/or commit burglary and two counts of possession of
stolen property for his part in a series of burglaries. Respondent seized
$281,656.73 in connection with the burglaries. Of those funds, appellant
provided his attorney with $70,000, which his attorney then provided to
investigators. The district court granted respondent's motion for summary
judgment on the underlying forfeiture complaint.
As a threshold issue, we conclude that appellant has standing
to challenge the forfeiture of the $70,000. While the money was seized
from appellant's attorney, the record demonstrates that appellant's
attorney was acting as appellant's agent in delivering those funds to
investigators on appellant's behalf and that appellant actually
accompanied his attorney to the investigators' office but was merely
absent from the room when his attorney handed the funds over to
investigators. Further, appellant claims an interest in the funds, and
SUPREME COURT
OF
NEVADA
(0) t 947A e
thus, has standing to challenge the forfeiture of the $70,000. NRS
179.1158 (defining a claimant in a forfeiture action as a person claiming to
have an interest in the property or proceeds or a person having possession
of the property or proceeds at the time of seizure); see also Fergason v. Las
Vegas Metro. Police Dep't, 131 Nev., Adv. Op. 94, 364 P.3d 592, 601 (2015)
(explaining that a party has standing to challenge a forfeiture complaint if
they claim an interest in the property).
Next, we conclude that the district court erred in granting the
summary judgment motion in regard to the $70,000 because appellant's
judgment of conviction was not conclusive evidence establishing all
elements of the forfeiture complaint and questions of material fact exist
concerning whether the $70,000 is attributable directly or indirectly to the
commission or attempted commission of a felony. See Wood v. Safeway,
Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005) (explaining that this
court reviews a district court's grant of summary judgment de novo);
Fergason, 131 Nev., Adv. Op. 94, 364 P.3d at 595-96 (providing that to
support a forfeiture action "the State must establish by clear and
convincing evidence (1) that a felony was committed or attempted, and (2)
that the funds seized . . . are attributable to or derived directly or
indirectly from the commission or attempt" (internal quotation omitted)).
While appellant's judgment of conviction can be used to
establish that a felony was committed, NRS 179.1173(5) (2001), here it
cannot be used to establish that the funds seized were attributable to the
felony.' See Fergason, 131 Nev., Adv. Op. 94, 364 P.3d at 596. "Possession
'We note that appellant's conspiracy charge was a gross
misdemeanor, not a felony, see NRS 199.480, and thus, that charge could
continued on next page...
SUPREME COURT
OF
NEVADA
2
10) 1947A c:Firto
of stolen property, without more . . . does not establish the funds. . . as the
proceeds of those crimes but, rather, his possession of specific items of
stolen property." Id. Further, while Tonya Trevarthen testified that she
gave appellant $145,000 in proceeds from stolen property, there is
evidence in the record that appellant and his wife obtained over $145,000
in lines of credit from financial institutions, though for what purpose is
unclear. And appellant provided four notarized letters from his family
members indicating that the $70,000 provided to investigators constituted
money appellant was using to purchase a home for his mother, not funds
he received from Trevarthen. Because a question of material fact exists
concerning whether the $70,000 came from the commission or attempted
commission of a felony, see NRCP 56(c) (providing that summary judgment
is only appropriate when there is no genuine issue of material fact), we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order. 2
44-in
Hardesty
J. J.
Saitta
...continued
not be a predicate for forfeiture under NRS 179.1164 because that statute
requires connection to a felony. NRS 179.1164(1)(a).
2 To
the extent appellant's arguments are not addressed herein, we
conclude they lack merit and do not warrant relief other than provided in
this order.
SUPREME COURT
OF
NEVADA
3
(0) 1947A e
cc: Hon. Douglas Smith, District Judge
Robert Holmes, III
Marquis Aurbach Coffing
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A(4010
,