                                                   132 Nev, Advance Opinion 32.
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                JUSTIN PATRICK KELLEY,                                No. 67777
                Appellant,
                vs.
                THE STATE OF NEVADA,
                                                                             MEP
                Respondent.
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                            Appeal from a judgment of conviction, pursuant to 'guilty
                plea, of one count of felony eluding a police officer. Fourth Judicial
                District Court, Elko County; Alvin R. Kacin, Judge.
                           Reversed.

                Frederick B. Lee, Jr., Public Defender, and Roger H. Stewart, Chief
                Deputy Public Defender, Elko County,
                for Appellant.

                Adam Paul Laxalt, Attorney General, Carson City; Mark D. Torvinen,
                District Attorney, and Jonathan L. Schulman, Deputy District Attorney,
                Elko County,
                for Respondent.




                BEFORE DOUGLAS, CHERRY and GIBBONS, JJ.


                                                OPINION
                By the Court, DOUGLAS, J.:
                            In this appeal, we are asked to determine whether the charge
                of misdemeanor reckless driving, NRS 484B.653(1)(a), is a lesser included



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                offense of felony eluding a police officer, NRS 484B.550(3)(b). Because we
                conclude that reckless driving is a lesser included offense of felony eluding
                a police officer as charged in this case, we conclude that appellant may not
                be punished for both crimes.

                                 FACTS AND PROCEDURAL HISTORY

                            On February 8, 2014, appellant Justin Patrick Kelley drove an
                all-terrain vehicle (ATV) through the city of Wells in Elko County. A
                deputy sheriff noticed Kelley driving the vehicle without brake lights or
                turn signals. The deputy followed Kelley, who then drove on the left side
                of the road facing oncoming traffic. Soon after, the deputy activated his
                overhead lights and police siren. Kelley did not stop, and a chase ensued.
                After they drove through several streets, with Kelley surpassing the speed
                limit, the deputy finally stopped Kelley and arrested him. Kelley was
                charged with felony eluding a police officer, pursuant to NRS
                484B.550(3)(b). Based on the same incident, Kelley was charged with
                reckless driving, pursuant to Wells City Code 8-11-1 (NRS 484B.653(1)(a)).
                            On November 14, 2014, Kelley pleaded no contest to
                misdemeanor reckless driving. Then, on December 2, 2014, Kelley moved
                to dismiss the charge of felony eluding a police officer on the basis of
                double jeopardy. Ultimately, the district court decided that misdemeanor
                reckless driving did not constitute a lesser included offense of felony
                eluding. On January 5, 2015, Kelley pleaded guilty to felony eluding.
                This appeal follows.




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                                              DISCUSSION

                            Kelley argues that the district court erred in failing to dismiss
                his charge of felony eluding a police officer on the basis of double
                jeopardy.' According to Kelley, double jeopardy applies in this case
                because he was already convicted of a lesser included offense
                (misdemeanor reckless driving, pursuant to NRS 484B.653(1)(a)) and,
                thus, cannot be convicted of a greater offense (felony eluding, pursuant to
                NRS 484B.550(b)(3)). Kelley also argues that the plain language of the
                statutes pertaining to both offenses, NRS 484B.653 and NRS 484B.550,
                further demonstrates this relationship. We agree.
                            Generally, this court reviews a claim that a conviction violates
                the Double Jeopardy Clause de novo.       Davidson v. State, 124 Nev. 892,
                896, 192 P.3d 1185, 1189 (2008). De novo review applies to both the
                constitutional issues and statutory interpretation involved.      Jackson v.
                State, 128 Nev., Adv. Op. 55, 291 P.3d 1274, 1277 (2012).
                            Under the Double Jeopardy Clause, a criminal defendant may
                not be punished multiple times for the same offense without clear
                authorization from the legislature. LaChance v. State, 130 Nev., Adv. Op.
                29, 321 P.3d 919, 923 (2014) (citing Missouri v. Hunter, 459 U.S. 359, 366
                (1983)). In determining whether multiple convictions violate the Double
                Jeopardy Clause, this court applies the test in Blockburger v. United
                States, 284 U.S. 299 (1932). See Estes v. State, 122 Nev. 1123, 1143, 146




                      'Kelley did not include a copy of the plea agreement in his appendix,
                but both parties agree in their appellate briefs that the plea agreement
                reserved Kelley's right to a review of the district court's adverse decision
                on his motion to dismiss. See NRS 174.035(3).
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                P.3d 1114, 1127 (2006). Pursuant to Blockburger, "two offenses are
                separate if each offense requires proof of a fact that the other does not."
                Estes, 122 Nev. at 1143, 146 P.3d at 1127. Thus, under Blockburger, "if
                the elements of one offense are entirely included within the elements of a
                second offense, the first offense is a lesser included offense and the Double
                Jeopardy Clause prohibits a conviction for both offenses." Barton v. State,
                117 Nev. 686, 692, 30 P.3d 1103, 1107 (2001), overruled on other grounds
                by Rosas v. State, 122 Nev. 1258, 147 P.3d 1101 (2006). "The general test
                for determining the existence of a lesser included offense is whether the
                offense in question cannot be committed without committing the lesser
                offense." Mdntosh v. State, 113 Nev. 224, 226, 932 P.2d 1072, 1073 (1997)
                (internal quotation omitted).
                            NRS 484B.653 governs the offense of reckless driving, while
                NRS 484B.550 governs the offense of felony eluding. In relevant part,
                NRS 484B.653 provides:
                                  1. It is unlawful for a person to:
                                  (a) Drive a vehicle in willful or wanton
                            disregard of the safety of persons or property.
                                  ••••
                            A violation of paragraph (a) .. . of this subsection
                            or subsection 1 of NRS 484B.550 constitutes
                            reckless driving.

                              3. A person who violates paragraph (a) of
                        subsection 1 is guilty of a misdemeanor.
                NRS 484B.653(1), (3). In relevant part, NRS 484B.550
                provides:
                                   1. Except as otherwise provided in this
                            section, the driver of a motor vehicle who willfully
                            fails or refuses to bring the vehicle to a stop, or
                            who otherwise flees or attempts to elude a peace
                            officer in a readily identifiable vehicle of any police
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                             department or regulatory agency, when given a
                             signal to bring the vehicle to a stop is guilty of a
                             misdemeanor.

                                   3. Unless the provisions of NRS 484B.653
                             apply if, while violating the provisions of
                             subsection 1, the driver of the motor vehicle:
                                   (a) Is the proximate cause of damage to the
                             property of any other person; or
                                   (b) Operates the motor vehicle in a manner
                             which endangers or is likely to endanger any other
                             person or the property of any other person,
                             the driver is guilty of a category B felony . . .
                 NRS 484B.550(1), (3).
                             The elements of the felony eluding offense, as charged in this
                 case, include: (1) driving a vehicle (2) in a manner that endangers or is
                 likely to endanger any other person or the property of any other person.
                 NRS 484B.550(1), (3). All of the elements of misdemeanor reckless
                 driving—(1) driving a vehicle (2) in willful or wanton disregard of the
                 safety of persons or property, NRS 484B.653(1)(a)—are included in the
                 elements of the charged offense of felony eluding under NRS
                 484B.550(3)(b), making misdemeanor reckless driving a lesser included
                 offense in this case. Because the offense of reckless driving is a lesser
                 included offense of felony eluding as charged in this case, Kelley could not
                 be punished for both crimes.




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                             Accordingly, because Kelley was already convicted of a lesser
                included offense for the same act underlying the felony eluding offense, we
                conclude that his conviction for felony eluding violates double jeopardy
                and we reverse Kelley's conviction for felony eluding a police officer. 2




                                                                                      J.
                                                      Douglas

                We concur:


                                                 J.




                                                 J.
                Gibbons




                      2 We note that the State also argues that the two offenses in this case
                were directed at different acts. According to the State, Kelley's acts
                constituting reckless driving occurred on Moor Avenue and Shoshone
                Avenue. In contrast, Kelley's acts constituting felony eluding occurred on
                Shoshone Avenue and four other streets. Thus, although the reckless
                driving offense originated from the same event as the felony eluding
                offense, the City only charged a small part of the entire incident. We
                conclude that this contention lacks merit because the acts underlying both
                offenses are based on the same conduct. Further, the acts occurring on
                Moor Avenue and Shoshone Avenue are subsumed within the acts
                occurring on Shoshone Avenue and the additional four streets.
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