                        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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