Negotiate this: In Nevada it’s burglary

By Sam Skolnik

Tuesday, Sept. 5, 2006 | 7:20 a.m.

Last Monday afternoon, Raneisha Williams walked into a 7-Eleven on Atlantic Street, took a $1.79 bottle of Starbucks Frappuccino from the cooler and drank it before heading to the register.

A store employee approached Williams and asked if she planned to pay. Instead, she grabbed another Frappuccino, opened and drank it. Asked a second time to pay, "she looked at him and replied, 'no,' then walked out," according to the Metro Police report.

Williams was arrested soon after and charged with burglary - an offense that could have landed her in prison for up to 10 years.

Her case highlights how prosecutors use - and, defense lawyers claim, often misuse - Nevada's expansive burglary statute.

More and more, local defense attorneys say, prosecutors are tacking the charge of burglary - a felony that carries a 1-10-year prison sentence - onto other criminal charges in an effort to compel plea agreements and ensure more prison time.

Those underlying crimes have ranged from shoplifting coffee drinks to stealing cars, from passing bad checks in casinos to punching people in bar fights. In most people's minds, those offenses are not often associated with burglary. But they are to Clark County prosecutors.

They insist they are well within their rights to charge any number of crimes also as burglary offenses because that's the way the law is defined. In fact, if you enter any type of house, store or vehicle with the intent to steal anything, including money, to commit an assault or battery "or any felony," you are a burglar under the state's statute.

In other words, the guy who tries to steal a candy bar from a grocery - normally classified as a petty thief, guilty of a misdemeanor at worst - could become a hardened felon with the burglary charge added.

"I don't believe that's what the Legislature had in mind," Clark County Public Defender Phil Kohn says. "When you call people burglars who are actually petty larcenists, there are better ways to deal with these folks. You turn them into felons and then they really can't participate in society."

Local defense lawyers, public and private, and other observers of the criminal justice system, say prosecutors are charging people with burglary more than ever and in a wider variety of cases.

Just a couple of hours after Kohn sent an e-mail to his deputies this week asking for recent cases in which burglary was charged, more than 85 such cases landed on his desk. The other alleged crimes in those cases - most within the last couple of months - ranged from thefts and forgeries, which typically are the other charges applied in check fraud cases, to petty larcenies. One of the latter involved a man who boosted three bottles of liquor from a Las Vegas Wal-Mart.

Each of these other crimes, of course, is covered by its own criminal statute. The fact that burglary was charged on top of those crimes adds to defenders' sense that the charge is being used as padding or piling on, insurance to make sure the defendant gets sent away for as long as possible.

Defense lawyer Dayvid Figler, a former interim Municipal Court judge, says prosecutors are finding every way imaginable to charge someone with a burglary violation. It got so bad, he says, that during a short stretch last year he counted 20 cases in a row in which his clients had been charged with burglary.

Those included bad check cases, home invasions and even a bar brawl, he says, in which the defendant had re-entered the bar to throw fists.

"It became sort of a running joke," Figler says. "The only time they can't charge burglary is when a crime is committed in the great outdoors."

One Clark County prosecutor, however, says it's simple: The law allows prosecutors to charge burglary in a wide variety of cases; so they should use it whenever appropriate.

"It's one of the best burglary laws in the nation, from a prosecutor's point of view," says Chief Deputy District Attorney Ben Graham, who is also a lobbyist for the Nevada District Attorneys Association. "If the law is applicable, you should charge crimes you can prove beyond a reasonable doubt."

Graham concedes that the burglary charge, "99.9 percent of the time, it's a bargaining chip" toward a plea, and it is often dropped when an agreement is reached.

Bill Kephart, who heads the DA's career criminal unit, questions why defense lawyers are "always so worried about what we're charging. If you think he's not guilty of it, prove it in court."

Much of the wording of the original state law governing burglary, formulated in 1912, is consistent with the way the law reads today.

Anyone who enters a structure with the intent to commit a theft, big or small, or any felony is guilty of burglary, the original law said.

But the statute has been broadened over the years. In 1989, law enforcement lobbyists convinced legislators to add "assault or battery" to the list of intended crimes that could precipitate a burglary charge.

Last year legislators approved a change adding a clause to the law making it a burglary if someone tries to "obtain money or property by false pretenses," meaning, for instance, if a person brings a receipt for goods into a store that is not their receipt in an attempt to obtain a refund.

During an April 4, 2005, Senate Judiciary Committee hearing, Sen. Terry Care, D-Las Vegas, questioned whether the bolstered law was simply an effort to give prosecutors more leverage: "I am not suggesting there is anything wrong with (the proposed bill); however, it would give a prosecutor an additional vehicle to, perhaps, obtain a plea agreement."

According to UNLV law professor Raquel Aldana, the burden should be on the Legislature to revisit laws such as the burglary statute if they are not being applied properly.

The burglary law is so broad, Aldana says, that, "as a result, the plea bargaining is stacked up heavily in favor of the prosecutor."

For example, she says that in the type of case where a petty thief is caught after the fact, "it's not so much whether you're guilty or innocent. It's a question of what type of punishment you'll receive. It seems to me the possibility of 10 years is outrageous."

It is unclear if anyone charged with burglary for a minor shoplifting offense actually has gone to trial, been convicted and then sentenced to 10 years.

Kohn says he hasn't heard of any such cases but notes that defendants often feel forced to plead down to attempted burglary, also a felony and which can significantly alter how these convicted felons can live the rest of their lives.

Frappuccino shoplifter Williams pleaded guilty to petty larceny later last week, according to her attorney, Deputy Public Defender Jason Frierson. Williams was sentenced to the brief time she had already served in jail.

Williams also was charged with burglary in 2004 for shoplifting a pair of men's jeans and some ladies' lingerie from a Ross clothing store on Rainbow Boulevard. She pleaded guilty to conspiracy to commit burglary for that crime and served a six-month sentence in Clark County Detention Center.

Frierson says he's fortunate to have worked with a prosecutor in Williams' current case who didn't demand jail time. But, he says, his client should never have been charged with burglary in the first place.

"I don't know there's any other reason for this (charge) than to force a negotiation," Frierson says. "I certainly don't think we need to protect society from people stealing $1.79 Frappuccinos."