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                                                      131 Nev., Advance Opinion
                           IN THE SUPREME COURT OF THE STATE OF NEVADA


                    PATRICK NEWELL,                                         No. 66552
                    Appellant,
                    vs.
                    THE STATE OF NEVADA,
                                                                             FILED
                    Respondent.                                              DEC 2 2015
                                                                           TRACE K. LII:DEMAN
                                                                        CLERK OF SUPREME COURT
                                                                       EY   ___SLYnta:14___
                                                                              DEPUTY CLERK
                               Appeal from a judgment of conviction, pursuant to a jury
                    verdict, of battery with the use of a deadly weapon and attempted assault
                    with the use of a deadly weapon. Eighth Judicial District Court, Clark
                    County; Jerome T. Tao, Judge.
                               Affirmed.

                    Philip J. Kohn, Public Defender, and Howard Brooks and Scott L. Coffee,
                    Deputy Public Defenders, Clark County,
                    for Appellant.

                    Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                    District Attorney, Steven S. Owens and Jonathan VanBoskerck, Chief
                    Deputy District Attorneys, and Ryan J. MacDonald, Deputy District
                    Attorney, Clark County,
                    for Respondent.




                    BEFORE SAITTA, GIBBONS and PICKERING, JJ.


                                                    OPINION


                    By the Court, SAITTA, J.:
                               The plain language of NRS 200.160 states that homicide is
                    justified in response to a reasonable apprehension of the commission of a

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                felony or in the actual resistance of an attempted felony, but it does not
                specify the type of felony. This opinion addresses whether there is any
                limitation as to the use of deadly force in response to the commission of a
                felony under NRS 200.160. We extend our holding in State v. Weddell, 118
                Nev. 206, 43 P.3d 987 (2002), to require that the use of deadly force in
                response to a felony is only justified when the person poses a threat of
                serious bodily injury; otherwise, the amount of force used must be
                reasonable and necessary under the circumstances.
                                FACTUAL AND PROCEDURAL HISTORY
                            In 2012, appellant Patrick Newell sprayed Theodore Bejarano
                with gasoline and lit Bejarano on fire during an altercation at a gas
                station. Newell also threatened Bejarano with a small pocket knife,
                although Bejarano could not later recall this incident. Newell was charged
                with Count 1: attempted murder with the use of a deadly weapon; Count
                2: battery with the use of a deadly weapon; Count 3: assault with the use
                of a deadly weapon; and Count 4: performance of an act in reckless
                disregard of persons or property. Count 3 was later amended to attempted
                assault with the use of a deadly weapon.
                            At trial, Newell claimed that his actions were a justifiable
                battery because he reasonably believed that Bejarano was committing
                felony coercion against him at the time of the incident. Newell proposed
                the following instruction on justifiable battery:
                                   Justifiable battery is the battery of a human
                            being when there is reasonable ground to
                            apprehend a design on the part of the person
                            battered to commit a felony and there is
                            [imminent] danger of such a design being
                            accomplished. This is true even if deadly force is
                            used. . . .

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                The district court, over Newell's objection, added the following language to
                the instruction based on our decision in State v. Weddell, 118 Nev. 206, 43
                P.3d 987 (2002):
                            The amount of force used to effectuate the battery
                            must be reasonable and necessary under the
                            circumstances. Deadly force cannot be used
                            unless the person battered poses a threat of
                            serious bodily injury.
                            The jury found Newell guilty of Counts 2, 3, and 4. Count 4
                was later dismissed by the district court. On appeal, Newell argues that
                the district court abused its discretion by giving a jury instruction that
                was an incorrect statement of Nevada law and that his conviction for
                attempted assault is legally impossible.
                                                DISCUSSION
                The district court did not abuse its discretion in giving the jury instruction
                            Newell argues that the plain language of NRS 200.160 does
                not require the amount of force used in defense of a felony to be reasonable
                and necessary or that the person battered pose a threat of serious bodily
                injury in order for deadly force to be used. Therefore, he contends that the
                district court abused its discretion by adding those requirements to the
                instruction on justifiable battery.
                            "The district court has broad discretion to settle jury
                instructions, and this court reviews the district court's decision for an
                abuse of that discretion or judicial error." Crawford v. State, 121 Nev. 744,
                748, 121 P.3d 582, 585 (2005). Whether an instruction was an accurate
                statement of law is reviewed de novo. Davis v. State, 130 Nev., Adv. Op.
                16, 321 P.3d 867, 871 (2014).
                            "[W]hen the words of a statute are clear and unambiguous,
                they will be given their plain, ordinary meaning," and we need not look
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                beyond the language of the statute. State v. Friend, 118 Nev. 115, 120, 40
                P.3d 436, 439 (2002). However, when the "literal, plain meaning
                interpretation" leads to an unreasonable or absurd result, this court may
                look to other sources for the statute's meaning. Id. at 120-21, 40 P.3d at
                439.
                       The plain meaning of the justifiable battery statutes do not require
                       that the amount of force used be reasonable and necessary or in
                       response to a threat of serious bodily injury
                            Battery is justified in any circumstance that justifies
                homicide. NRS 200.275. Justifiable homicide is defined by NRS 200.120
                through NRS 200.190. At issue in the current case is NRS 200.160, which
                provides for "[ahlditional cases of justifiable homicide." NRS 200.160
                states that homicide is justifiable when committed
                                   1. In the lawful defense of the slayer, or his
                            or her husband, wife, parent, child, brother or
                            sister, or of any other person in his or her presence
                            or company, when there is reasonable ground to
                            apprehend a design on the part of the person slain
                            to commit a felony or to do some great personal
                            injury to the• slayer or to any such person, and
                            there is imminent danger of such design being
                            accomplished; or
                                  2. In the actual resistance of an attempt to
                            commit a felony upon the slayer, in his or her
                            presence, or upon or in a dwelling, or other place
                            of abode in which the slayer is.
                            The plain language of NRS 200.160 does not require that the
                amount of force used be reasonable and necessary in order to be justified
                or state that deadly force may only be used in response to a threat of
                serious bodily injury. Rather, the statute requires that in order to be
                justified, the homicide must be in response to a reasonable apprehension
                of a felony or in the actual resistance of an attempted felony, regardless of
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                  the type of felony. See Davis, 130 Nev., Adv. Op. 16, 321 P.3d at 873 ("The
                  plain language of a\IRS 200.1601 does not differentiate between the types
                  of felonies from which a person may defend himself."). Thus, a plain
                  reading of NRS 200.160 and NRS 200.275 appears to justify any battery
                  committed in the reasonable apprehension of any felony or in resistance of
                  an attempt to commit any felony, regardless of the amount of force used or
                  whether the person battered poses a threat of serious bodily injury.
                  Because such an interpretation is unreasonable and absurd, we look to
                  other sources for the statutes' meaning. See Friend, 118 Nev. at 121, 40
                  P.3d at 439.
                        State v. Weddell
                                 In drafting the jury instruction at issue, the district court
                  relied on our holding in Weddell, 118 Nev. at 214, 43 P.3d at 992. At issue
                  in Weddell was whether a private party could use deadly force to arrest a
                  fleeing felon. Id. at 208, 43 P.3d at 988. Nevada had previously codified
                  the common-law rule permitting a private person to use deadly force to
                  apprehend a felon but later repealed it. Id. at 212, 43 P.3d at 990. In the
                  same bill repealing Nevada's codification of this common-law rule, the
                  Legislature enacted NRS 171.1455, a statute limiting a police officer's use
                  of deadly force against a fleeing felon. Id. However, the new statute made
                  no mention of limiting a private party's use of deadly force. Id.
                                 The Weddell court, relying on the United States Supreme
                  Court's decision in Tennessee v. Garner, 471 U.S. 1 (1985), concluded that
                  the policy rationale that existed at common law for allowing deadly force
                  to be used in apprehending a felon had been eroded. Weddell, 118 Nev. at
                  211, 43 P.3d at 990. It reasoned that "[Oho rule was developed at a time
                  when felonies were only the very serious, violent or dangerous crimes and
                  'virtually all felonies were punishable by death"; therefore, the killing of a
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                      fleeing felon resulted in no greater punishment than the felon would
                      receive if arrested.   Id. (quoting Garner, 471 U.S. at 13). The Weddell
                      court noted that, in contrast, "the modern distinction between felonies and
                      misdemeanors is 'minor and often arbitrary" and that
                                  [s]ociety would not tolerate the use of deadly force
                                  to prevent the commission of any of these crimes
                                  or to apprehend someone suspected of any of these
                                  crimes. The modern arbitrary and expanded
                                  classification of crimes as felonies has undermined
                                  the rationale for the old common law fleeing-felon
                                  rule, which. . . was to prevent the escape of a felon
                                  by inflicting the punishment that was inevitably
                                  to come.
                      Id. at 211-12, 43 P.3d at 990 (quoting Garner, 471 U.S. at 14). Thus,
                      because of the "legislature's evident disapproval of the fleeing-felon
                      doctrine," and because "the rationale for the rule at common law no longer
                      exists," the Weddell court held that
                                  a private person may only use the amount of force
                                  that is reasonable and necessary under the
                                  circumstances. Further, we hold that the use of
                                  deadly force is, as a matter of law, unreasonable,
                                  unless the arrestee poses a threat of serious bodily
                                  injury to the private arrestor or others.
                      Id. at 214, 43 P.3d at 992. Thus, Weddell's holding is almost identical to
                      the language that the district court added to Newell's justifiable battery
                      instruction. See id.
                            Weddell's reasoning is applicable to our interpretation of the
                           justifiable homicide statutes
                                  Although Weddell dealt with the issue of the fleeing-felon rule,
                      we find that its reasoning is nonetheless applicable to our interpretation of
                      NHS 200.160. Similar to Weddell, this case deals with a common-law rule
                      allowing the use of deadly force against a felon or someone committing a

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                     felony without distinguishing the type of felony committed. See Weddell,
                     118 Nev. at 212, 43 P.3d at 990 (fleeing-felon statute held to be a
                     codification of the common law); see also People v. Ceballos, 526 P.2d 241,
                     245 (Cal. 1974) (holding that a justifiable homicide statute similar to NRS
                     200.160 was a codification of the common law). Thus, we find that in both
                     Weddell and the current case the "rationale for the rule at common law no
                     longer exists" because "the modern distinction between felonies and
                     misdemeanors is 'minor and often arbitrary."      Weddell, 118 Nev. at 211,
                     214, 43 P.3d at 990, 992 (quoting Garner, 471 U.S. at 14).
                                 Likewise, we believe that "[s]ociety would not tolerate the use
                     of deadly force to prevent the commission of any [nonviolent felony]." Id.
                     at 211, 43 P.3d at 990. Newell argues that by the plain language of NRS
                     200.160(2), in order for a homicide to be justifiable, a felony must be
                     committed upon the slayer. Thus, Newell argues that a literal
                     construction of NRS 200.160 would not create absurd results, as it would
                     not allow for nonviolent felonies such as bribery of a judicial officer or
                     forgery to be met with deadly force. However, we do not find the plain
                     language of NRS 200.160 to be so constrained. The plain language of NRS
                     200.160(2) authorizes the use of deadly force not only in resistance of
                     felonies committed upon the slayer but also in response to felonies
                     committed in the resistance of a felony in the slayer's presence or when the
                     felony is upon the slayer's dwelling.    Thus, the plain language of NRS
                     200.160(2) permits justifiable homicide in response to any felony
                     committed in the slayer's presence or upon the slayer's dwelling. Under
                     this reading, deadly force could be justifiably used in response to a drug
                     transaction committed in the slayer's presence.    See NRS 200.160(2). To
                     allow deadly force to be used in such circumstances is both intolerable to

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                society and inconsistent with the original intent of the Legislature when it
                first enacted NRS 200.160.
                            Therefore, we extend our holding in Weddell to NRS 200.160
                and require that in order for homicide in response to the commission of a
                felony to be justifiable under that statute, the amount of force used must
                be reasonable and necessary under the circumstances. Furthermore,
                deadly force cannot be used unless the person killed poses a threat of
                serious bodily injury to the slayer or others. By extension, the amount of
                force used in a battery must also be reasonable and necessary in order to
                be justified, and deadly force cannot be used unless the person battered
                poses a threat of serious bodily injury to the slayer or others. Because the
                district court correctly included these requirements in its justifiable
                battery jury instruction, we hold that it did not abuse its discretion.
                Attempted assault under NRS 200.471(1)(a)(2) is not legally impossible
                            Newell argues that because at common law assault was an
                attempted battery, attempted assault is a legally impossible double
                inchoate crime.
                            In Nevada, assault is broader than at common law. It
                includes:
                                  (1) Unlawfully attempting to use physical
                            force against another person; or
                                  (2) Intentionally placing another person in
                            reasonable apprehension of immediate bodily
                            harm.
                NRS 200.471(1)(a). Thus, Nevada law codifies assault as two distinct
                activities: (1) the attempt to commit battery or (2) the intentional
                placement of another person in fear of immediate bodily harm. Only the
                first is the equivalent of the common-law offense.


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                               Here, Newell was convicted of attempted assault under NRS
                 200.471(1)(a)(2): the intentional placement of "another person in
                 reasonable apprehension of immediate bodily harm." While we agree that
                 the attempt to attempt a crime is legally impossible, see Lamb v. State,
                 613 A.2d 402, 419 (Md. Ct. Spec. App. 1992) ("There can be no such offense
                 as an 'attempt to attempt' a crime." (internal quotation marks omitted)),
                 NRS 200.471(1)(a)(2) is not a crime of attempt. Therefore, we hold that
                 Newell's conviction for attempted assault under NRS 200.471(1)(a)(2) was
                 not legally impossible.
                                               CONCLUSION
                               Because the district court correctly based its justifiable
                 battery instruction on our holding in Weddell, it did not abuse its
                 discretion. Furthermore, attempted assault under NRS 200.471(1)(a)(2) is
                 not legally impossible. Therefore, we affirm Newell's judgment of
                 conviction.




                                                    Saitta

                 We concur:




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