                         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

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                    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
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                 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.

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                 cc: Hon. Douglas Smith, District Judge
                      Robert Holmes, III
                      Marquis Aurbach Coffing
                      Clark County District Attorney
                      Eighth District Court Clerk




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