                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 DAIMON MONROE,                                       No. 62264
                 Appellant,
                 vs.
                 LAS VEGAS METROPOLITAN POLICE
                 DEPARTMENT,
                                                                           FILED
                 Respondent.                                               MAR 1 8 2016



                                    ORDER AFFIRMING IN PART,
                                REVERSING IN PART AND REMANDING
                            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 was found guilty of one count of conspiracy to
                 possess stolen property and/or to commit burglary and 25 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, $13,825 was seized from appellant's home that he shared
                 with Tanya Trevarthen and $26,938.64 was seized from Trevarthen's bank
                 account that appellant accessed as if it was a joint account he held with
                 Trevarthen. Respondent also recovered $5,634.33 from bail bond
                 companies and $40,002.18 from attorneys that Trevarthen allegedly paid
                 on appellant's behalf. Respondent filed a forfeiture complaint and in
                 support of its summary judgment motion, respondent attached excerpts of
                 the transcripts of Trevarthen's testimony at the grand jury hearing and
                 the jury trial on appellant's criminal charges that the money in the house
                 was proceeds from stolen property and that most of the money in the bank
                 account was proceeds from stolen property. The district court granted
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                   respondent's motion for summary judgment on the underlying forfeiture
                   complaint.
                                Having considered the parties' arguments and the record on
                   appeal, we conclude that the district court properly granted respondent's
                   motion for summary judgment in regard to the money seized from
                   appellant's house and Trevarthen's bank account, but erred in granting
                   the motion concerning the funds recovered from the bail bond companies
                   and the attorneys.'    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); NRCP 56(c) (providing that
                   'summary judgment is only appropriate when there is no genuine issue of
                   material fact); Fergason v. Las Vegas Metro. Police Dep't, 131 Nev., Adv.
                   Op. 94, 364 P.3d 592, 595-96 (2015) (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 denied directly or indirectly from the commission or
                   attempt" (internal citation omitted)).
                                As an initial matter, the district court erred in concluding that
                   appellant's judgment of conviction was conclusive evidence establishing all
                   elements of the forfeiture complaint. See Fergason, 131 Nev., Adv. Op. 94,
                   364 P.3d at 596. While appellant's judgment of conviction can be used to
                   establish that a felony was committed, NRS 179.1173(5) (2001), here it


                          "We conclude that the district court had jurisdiction to enter the
                   summary judgment order despite appellant's then pending appeal from an
                   order denying his motion to strike the summary judgment motion because
                   "[a]n appeal from a non-appealable order does not divest the trial court of
                   jurisdiction." Knox v. Dick, 99 Nev. 514, 516, 665 P.2d 267, 269 (1983).

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                    cannot be used to establish that the funds seized were attributable to the
                    felony. 2 Fergason, 131 Nev., Adv. Op. 94, 364 P.3d at 596. "Possession 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.
                                 Here, Trevarthen's testimony concerning the money in the
                    house and the bank account established that those funds were directly
                    attributable to the felony. She testified that appellant did not work, he
                    would keep cash from selling stolen property in the house, and that the
                    money in the bank account, other than her income, was money appellant
                    made selling stolen property. 3
                                 There was no evidence included with respondent's summary
                    judgment motion, however, that established that the funds recovered from
                    the bail bond companies and the attorneys were attributable to the
                    felony. 4 See Cuzze v. Univ. & Cmty. Coll, Sys.,   123 Nev. 598, 602, 172 P.3d


                          2 We  note that appellant's conspiracy charge was a gross
                    misdemeanor, not a felony, see NRS 199.480, and thus, that charge could
                    not be a predicate for forfeiture under NRS 179.1164 because that statute
                    requires connection to a felony. NRS 179.1164(1)(a).

                          3 Appellant would have no interest in Trevarthen's income that was
                    deposited into the bank account and a default was taken against
                    Trevarthen for failing to answer the forfeiture complaint.

                          4Appellant  has standing to contest the funds seized from the bail
                    bond companies and attorneys because appellant has claimed an interest
                    in those funds. 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, 131 Nev., Adv. Op. 94, 364 P.3d at 601
                    (explaining that a party has standing to challenge a forfeiture complaint if
                    they claim an interest in the property).

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                131, 134 (2007) (explaining that the party requesting summary judgment
                must introduce evidence entitling it to judgment as a matter of law in the
                absence of contrary evidence when that party bears the burden of
                persuasion). Trevarthen's testimony that there were "some instances
                where I removed money to pay attorney fees" without more evidence does
                not establish that the funds recovered from the attorneys were
                attributable to the felony. Accordingly, the district court's summary
                judgment regarding the funds seized from the house and Trevarthen's
                bank account is affirmed, but the summary judgment concerning the funds
                recovered from the bail bond companies and the attorneys is reversed and
                remanded for further proceedings. 5
                            It is so ORDERED.


                                            /         frea in
                                                          -
                                                                  , J.
                                        Hardesty



                Saitta
                       jo                 ,J.




                cc: Hon. Douglas Smith, District Judge
                     Daimon Monroe
                     Marquis Aurbach Coffing
                     Clark County District Attorney
                     Eighth District Court Clerk


                      We direct the clerk of this court to file appellant's pro se response
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                received on January 11, 2016. To the extent appellant's additional
                arguments are not addressed herein, we conclude they lack merit and do
                not warrant relief other than provided in this order.

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