author: By the Court, TAO, J.: SILVER, C.J., concurring:

text:
    IN RE the Execution of Search Warrants for: 12067 OAKLAND HILLS, LAS VEGAS, NEVADA 89141; 54 Carolina Cherry Drive, Las Vegas, Nevada 89141; 5608 Quiet Cloud Drive, Las Vegas, Nevada 89141; and 3321 Alcudia Bay Avenue, Las Vegas, Nevada 89141.
    Las Vegas Metropolitan Police Department, Appellant, v. Laura Anderson, Respondent.
    No. 71536-COA
    Court of Appeals of Nevada.
    FILED DECEMBER 13, 2018
   By the Court, TAO, J.:

NRS 18.010(2)(a) permits an award of attorney fees to a "prevailing party" in a civil action when that party recovers a money judgment in an amount less than $20,000. At issue here is whether that provision permits a fee award against a police department ordered to return a large amount of cash (and other property) seized pursuant to a criminal search warrant.

We conclude that it does not because an order to return seized cash is an order to return physical property, not a "money judgment," and therefore we reverse the district court's award of fees. Further, we decline to affirm the award under NRS 18.010(2)(b) and in so doing we clarify the evidentiary burdens that parties litigating return-of-property motions against a police department must meet under NRS 179.085.

FACTUAL AND PROCEDURAL HISTORY

Suspecting respondent Laura Anderson of running a secret prostitution ring, the Las Vegas Metropolitan Police Department (LVMPD) obtained a series of search warrants allowing it to look for contraband in five properties connected to her. Acting on those warrants, officers seized automobiles, electronics, and other personal effects, including more than $50,000 in cash.

Nine months then elapsed without any criminal charges being filed against her and without any civil forfeiture proceedings being initiated against the seized property. Anderson filed a civil motion under NRS 179.085 seeking the return of all property seized during the search. Her motion did not challenge the legality of the search or the manner in which it was conducted, but only whether LVMPD's continued retention of the property remained reasonable in the absence of criminal charges.

LVMPD initially filed a written partial opposition to the motion agreeing that it possessed a legal duty to return property that no longer had any evidentiary value and stipulating to the immediate return of some computer equipment and memory devices whose contents had been copied. The written opposition asserted that the other seized evidence, including the large amount of cash, could not yet be returned because it was relevant to a federal criminal investigation that was ongoing at the time.

Something changed between the time the written briefs were filed and the date of the oral argument on Anderson's motion. When counsel for LVMPD appeared for the hearing, he abandoned the arguments made in the written briefing and instead informed the district court that he had recently learned that the federal investigation had terminated without the filing of any charges. He therefore verbally stipulated that all property could be returned to Anderson. Based on this non-opposition, the district court granted Anderson's motion and ordered the property returned.

Anderson thereafter filed a motion seeking an award of attorney fees against LVMPD pursuant to NRS 18.010(2). In her motion, Anderson contended that she was a "prevailing party" entitled to fees under NRS 18.010(2)(a) and, alternatively, that the police department mounted a defense to her motion "without reasonable ground," entitling her to fees under NRS 18.010(2)(b). The district court issued a written order awarding Anderson $18,255 in attorney fees under NRS 18.010(2)(a) but did not address Anderson's contention that an attorney fee award was warranted under NRS 18.010(2)(b). LVMPD now appeals the district court's fee award.

ANALYSIS

The district court based its award of attorney fees upon NRS 18.010(2)(a). On appeal, LVMPD argues that this constituted legal error because recovery of a money judgment is a prerequisite to an award of attorney fees under that subsection. Anderson counters that the underlying judgment was monetary in nature because some of the property she recovered was cash. Alternatively, she argues that this court could affirm the award under NRS 18.010(2)(b), under the doctrine of "right result, wrong reason." See Saavedra-Sandoval v. Wal-Mart Stores, Inc. , 126 Nev. 592, 599, 245 P.3d 1198, 1202 (2010) (holding that appellate courts "will affirm a district court's order if the district court reached the correct result, even if for the wrong reason").

Standard of review

This court reviews a district court's award of attorney fees for a "manifest abuse of discretion." Thomas v. City of N. Las Vegas, 122 Nev. 82, 90, 127 P.3d 1057, 1063 (2006) (internal quotation marks and citation omitted). "But when the attorney fees matter implicates questions of law, the proper review is de novo." Id. Here, the question is whether a district court may award attorney fees at all under NRS 18.010(2)(a) in a return-of-property action brought under NRS 179.085, which is a question of law. Thus, our review is de novo. See Valley Elec. Ass'n v. Overfield, 121 Nev. 7, 8-11, 106 P.3d 1198, 1199-200 (2005) (reviewing de novo the question of whether landowners in condemnation actions may be awarded attorney fees as prevailing parties under NRS 18.010(2)(a) ); see also Arguello v. Sunset Station, Inc., 127 Nev. 365, 368, 252 P.3d 206, 208 (2011) ("Questions of statutory construction, including the meaning and scope of a statute, are questions of law, which this court reviews de novo." (internal quotation marks, alterations, and citation omitted) ).

NRS 18.010(2)(a) cannot support an award of attorney fees when no money judgment has been entered

LVMPD argues that the district court's award of fees cannot be justified under NRS 18.010(2)(a). As always, the proper place to begin is with the plain text of the relevant statute, and if those words are unambiguous, that is where our analysis ends as well. See Pawlik v. Deng, 134 Nev. ----, ----, 412 P.3d 68, 71 (2018).

NRS 18.010(2)(a) states that a district court may award attorney fees to a "prevailing party" when that party "has not recovered more than $20,000." The Nevada Supreme Court has explained that this latter phrase represents an important limitation on the scope and reach of the statute, restricting it "to situations where the prevailing party's recovery was readily measurable against the standard set forth in the statute," meaning that it "ha[s] effect only when a party recovered some amount ... in damages." Smith v. Crown Fin. Servs. of Am., 111 Nev. 277, 282-83, 890 P.2d 769, 773 (1995) ; see Thomas, 122 Nev. at 93-94, 127 P.3d at 1065-66 (reaffirming money judgment requirement and refusing to overrule Crown Financial ). Such awards are permitted only in suits involving money judgments, which excludes actions seeking only declaratory or equitable relief.

A return-of-property action under NRS 179.085(5) is not an action seeking an award of money damages. Rather, the plain text of the statute states that a motion for return of seized property "filed when no criminal proceeding is pending ... must be treated as a civil complaint seeking equitable relief." NRS 179.085(5). Thus, a movant seeking relief only under NRS 179.085(5) is not eligible for an award of attorney fees under NRS 18.010(2)(a).

Anderson nonetheless counters that the underlying judgment was not merely equitable but rather fundamentally monetary in nature because some of the seized property was in the form of a large amount of cash (around $50,000). But the terms of the judgment itself concern the return of property. The mere fact that some of that property happened to be in the form of cash does not convert the nature of the award itself into one for a money judgment. Unlike a true money judgment, the judgment here was not constructed to award money damages as compensation for some injury inflicted upon Anderson, and she would not have been entitled to satisfy it by attaching or executing against other assets of LVMPD until paid in full. Quite to the contrary, in return-of-property actions like this one, NRS 21.020(5)

limits collection and execution to delivery of the specified property and nothing more, unless the judgment itself itemizes other costs or monetary damages. In any event, Anderson's argument fails on its own terms because, even if we somehow considered the district court's order to be a money judgment, the amount of cash seized exceeded $50,000. This sum falls outside the scope of NRS 18.010(2)(a), which is limited to cases involving judgments of $20,000 or less. Consequently, the district court erred by awarding attorney fees under NRS 18.010(2)(a).

The attorney fees award cannot be affirmed under NRS 18.010(2)(b) because the district court did not enter the required findings

Alternatively, Anderson argues that she was entitled to attorney fees under NRS 18.010(2)(b). NRS 18.010(2)(b) permits an award of attorney fees where a claim or defense was "brought or maintained without reasonable ground or to harass the prevailing party." Anderson contends that the district court's award of attorney fees can be affirmed under NRS 18.010(2)(b) because LVMPD failed to present any "credible evidence" with its opposition to her motion that justified the nine-month retention of her property.

Anderson's argument

As an initial observation, Anderson's argument conflates two very different things that must be sorted out. Anderson argues that attorney fees are warranted because LVMPD failed to provide proof that it had good reason to keep her property for so long without filing criminal charges. But NRS 18.010(2)(b) targets only how the litigation itself is conducted, not what the parties did before the litigation commenced. LVMPD may or may not have had a good reason to keep Anderson's property; either way, NRS 18.010(2)(b) permits an award of fees only if LVMPD "brought or maintained" a defense during the litigation itself that was either groundless or intended to harass.

Within the litigation, Anderson seems to argue that LVMPD failed to provide "credible evidence" in support of the factual allegations contained in its opposition to her motion. She cites Frantz v. Johnson , 116 Nev. 455, 999 P.2d 351 (2000), and Allianz Insurance Co. v. Gagnon, 109 Nev. 990, 860 P.2d 720 (1993), for the proposition that an award of fees under NRS 18.010(2)(b) is tested by whether the opposing party presented "credible evidence" to support its defense. From this, Anderson argues that LVMPD's opposing brief consisted entirely of argument unsupported by credible external "evidence" such as affidavits or exhibits, and consequently NRS 18.010(2)(b) was satisfied and she is entitled to fees.

In effect, Anderson argues that those cases imposed an affirmative burden of production upon LVMPD to immediately support everything it said in its opposition with corroborating evidence at peril of being later subject to a fee award. But the cases say no such thing. In fact, the language of those cases refers to the lack of any credible evidence being presented "at trial" to support the initial allegations contained in the pleadings. See Bobby Berosini, Ltd. v. People for the Ethical Treatment of Animals, 114 Nev. 1348, 1354, 971 P.2d 383, 387 (1998) (noting that Allianz defined a claim as "groundless" if "the allegations in the complaint ... are not supported by any credible evidence at trial"). They say nothing about whether any party possesses any affirmative burden of production on any issue at the pleading stage of a return-of-property motion.

In the end, the scope of NRS 18.010(2)(b) is defined not by a few words taken from isolated cases, but rather by the words of the statute itself. See Antonin Scalia & Bryan A. Gamer, Reading Law: The Interpretation of Legal Texts 56 (2012) (noting that "[t]he words of a governing text are of paramount concern"). The ultimate inquiry under NRS 18.010(2)(b) is whether a claim or defense was brought or maintained "without reasonable ground or to harass the prevailing party," with the stated goal of "deter[ring] frivolous or vexatious claims and defenses." What matters is whether the proceedings were initiated or defended "with improper motives or without reasonable grounds." Bobby Berosini, 114 Nev. at 1354, 971 P.2d at 387.

Here, the district court made no findings, and the record contains no evidence, that would enable us to affirm an award of attorney fees under this statute. The court never found that LVMPD asserted a defense that was brought or maintained "without reasonable ground," was intended to "harass" Anderson, or rendered the litigation "vexatious." Indeed, it's difficult to see how those findings could have been made when LVMPD immediately conceded part of the motion in writing in its response and then a few weeks later conceded the rest of it at the very first hearing on the motion. The litigation itself ended up lasting little more than a single month and the docket consists of nothing more than Anderson's initial motion, LVMPD's initial written opposition partly conceding the motion, Anderson's reply brief, the oral hearing at which LVMPD conceded the motion in its entirety, and then the proceedings surrounding Anderson's request for attorney fees. Accordingly, the district court's award of fees must be reversed.

The evidentiary burdens in return-of-property motions

Quite apart from whether Anderson was or was not entitled to fees, both parties and the district court appeared confused as to how they should have handled the underlying merits of Anderson's return-of-property motion. Moreover, this confusion extended to the way Anderson briefed her appeal, with Anderson arguing that fees should have been awarded because LVMPD failed to present "credible evidence" at a time when it never actually had any burden of production. Their confusion was understandable considering the general language employed in NRS 179.085 and the lack of any clear guidance from Nevada courts on how to understand the statute or handle such motions. Consequently, we take this opportunity to clarify the evidentiary burdens litigants bear in initiating and defending return-of-property motions quite outside of, and apart from, any subsequent request for attorney fees after the merits have been resolved.

NRS 179.085(1)(e) permits "[a] person aggrieved by ... the deprivation of property [to] move the court ... for the return of the property on the ground that ... [r]etention of the property by law enforcement is not reasonable under the totality of the circumstances." In resolving that motion, the statute contemplates an expedited procedure with no formal discovery mechanisms or eventual jury trial; instead, "[t]he judge shall receive evidence on any issue of fact necessary to the decision of the motion." NRS 179.085(1).

Here, LVMPD quickly conceded the merits of Anderson's motion. Consequently, the district court was not required to do anything more than grant Anderson's motion as unopposed. However, had things been different and had LVMPD contested the motion substantively, the district court may have been required to consider evidence to resolve the matter. To do so, the district court would have followed a procedure well established in federal courts.

NRS 179.085 largely mirrors Federal Rule of Criminal Procedure 41(g), and where Nevada statutes track their federal counterparts, federal cases interpreting the rules can be instructive. Exec. Mgmt., Ltd. v. Ticor Title Ins. Co., 118 Nev. 46, 53, 38 P.3d 872, 876 (2002) ; Middleton v. State, 114 Nev. 1089, 1107 & n.4, 968 P.2d 296, 309 & n.4 (1998) (citing a federal case interpreting Federal Rules of Criminal Procedure that were "largely equivalent" to Nevada statutes).

Fed. R. Crim. P. 41(g) generally requires that factual disputes in return-of-property motions be resolved through evidence, either affidavits or other documentary evidence or, if documentary evidence is insufficient, then by considering the testimony of witnesses during an evidentiary hearing. See United States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007) ; United States v. Albinson, 356 F.3d 278, 282 (3d Cir. 2004) ; United States v. Chambers , 192 F.3d 374, 378 (3d Cir. 1999).

During the consideration of such evidence, the moving party bears the initial burden to show that the government's retention of his or her property is facially unreasonable under the totality of all of the circumstances that then exist. See NRS 179.085(1)(e) ; In re Matter of Search of Kitty's E., 905 F.2d 1367, 1375 (10th Cir. 1990) ("A movant must demonstrate that retention of the property by. the government is unreasonable in order to prevail on a [ Fed. R. Crim. P. 41(g) ] motion."). When the movant initially files his or her motion, he or she may have little idea of where any criminal investigation might stand. Nevertheless, the burden can be met in a few ways based upon information already within the movant's possession. For example, this can occur when a criminal case has been completely resolved, either through a trial or a guilty plea, because such a resolution suggests that any criminal investigation is likely over. See United States v. Gladding , 775 F.3d 1149, 1152 (9th Cir. 2014) (holding that the burden of proof shifts to the government when "the property in question is no longer needed for evidentiary purposes, either because trial is complete, the defendant has pleaded guilty, or ... the government has abandoned its investigation" (quoting United States v. Martinson , 809 F.2d 1364, 1369 (9th Cir. 1987) ) ). It can also occur when no charges have been filed even after the government has had more than enough time to conduct its investigation. See Martinson, 809 F.2d at 1369 n.5 (recognizing that the burden could shift to the government if it has retained property for an extended period of time without filing charges); Mr. Lucky Messenger Serv., Inc. v. United States, 587 F.2d 15, 17 (7th Cir. 1978) (remanding for an evidentiary hearing to determine whether the government could reasonably justify retaining plaintiff's cash for over 17 months without bringing any charges).

If the movant fails to meet this initial burden, nothing more is required and the motion may be denied even if the government produces no evidence in response. If, however, the district court finds that the movant has made an initial showing that the retention of the property appears facially unreasonable, then the burden shifts to the government to demonstrate that it has a legitimate reason to retain the property. Martinson , 809 F.2d at 1369. The government could meet this burden in several ways. It could, for example, show that the property was contraband (such as drugs) that could not be legally returned. See id. Alternatively, it could show that the seized property was not actually owned by the movant (such as if it had actually been stolen from someone else). See United States v. Wright , 610 F.2d 930, 939 (D.C. Cir. 1979). It could also show that the property was the subject of civil forfeiture proceedings, or it could show that the property was related to an ongoing criminal investigation. See id. In any of these cases, the government would have the burden to prove its allegations through something more than a naked assertion of counsel. See Stevens, 500 F.3d at 628 ("[A]rguments in a Government brief, unsupported by documentary evidence, are not evidence.").

If the government intends to prove that it's keeping the property pursuant to an active criminal investigation, then things become interesting. The types of "evidence" that could prove the existence of an ongoing law enforcement investigation are likely to be wholly unlike the kinds of evidence that parties typically present in other types of lawsuits. Many law enforcement activities-especially ones that do not result in the filing of any criminal charges-are governed by a web of rules governing confidentiality that do not exist in other contexts, including rules that protect the secrecy of grand jury proceedings and the identities of confidential informants. See, e.g., Fed. R. Crim. P. 6(e) ; 28 C.F.R. §§ 16.21 - .29. Rules aside, the disclosure of an active and ongoing criminal investigation may jeopardize the integrity of the investigation itself by revealing to a suspect that he or she is being investigated, how the investigation is being conducted, and by whom. Indeed, when a federal grand jury has been convened to investigate a target, unauthorized disclosure of its existence may constitute the commission of a federal crime, even when the disclosure is made in defense of a civil action like this one. See 18 U.S.C. § 401 (allowing a federal court to punish contempt of its authority by fine or imprisonment, including for "disobedience or resistance to its lawful ... rule"). The question thus becomes how parties and district courts can determine whether keeping seized property is justified without either jeopardizing an active criminal investigation or running afoul of other statutes or rules requiring that such investigations remain confidential.

To solve this conundrum, the district court may choose; to permit the government to supply its evidence in camera to preserve the secrecy and integrity of any ongoing investigation, and to prevent such motions from becoming a discovery tool through which a suspect can gather intelligence through the back door on the progress of the government's investigative efforts. See, e.g., Mr. Lucky Messenger Serv., 587 F.2d at 17 (remanding and directing the district court to, in its discretion, conduct the evidentiary hearing in camera because the reasons for the government's continued retention of property "may be integrally related to ... grand jury proceedings"); In re Documents & Other Possessions at Metro., Ctr. of Prisoner Hale , 228 F.R.D. 621, 624 (N.D. Ill. 2005) (holding that the government could submit more information to the court "ex parte and under seal" if it wished "[d]ue to the sensitive nature of the case and in the event of an ongoing investigation that [it] does not wish to disclose").

In the instant case, had LVMPD contested Anderson's motion in a substantive way, the district court would have had to resolve the merits of the matter by weighing evidence. But because LVMPD quickly conceded the motion, the district court was not required to consider anything more. From this, Anderson seems to argue that merely because LVMPD produced no evidence and lost the motion, its defense was unreasonable and fees were appropriate. But LVMPD had no burden to produce anything yet, and even if it had, Anderson's assertion is far from true. Not every unsuccessful defense is ipso facto "unreasonable," "frivolous," or "vexatious." Merely losing a motion on the merits does not mean that the losing defense was utterly "without reasonable ground" for purposes of awarding attorney fees. NRS 18.010(2)(b) does not create an automatic "loser pays" system, of the kind found in England, in which the unsuccessful party always pays fees to the winning party. See Hensley v. Eckerhart, 461 U.S. 424, 443 n.2, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (Brennan, J., concurring in part and dissenting in part) (noting that the "English Rule" is one "under which the losing party, whether plaintiff or defendant, pays the winner's fees"). Instead, whether the losing party's defense went beyond merely unsuccessful into becoming "vexatious" and "without reasonable ground" is a decision for the district court to make in the first instance.

Here, LVMPD conceded the motion without much of a fight, and therefore the district court did not weigh any evidence and did not make any findings that LVMPD did anything to trigger NRS 18.010(2)(b). Moreover, because the district court granted Anderson's motion as unopposed, it never had to determine whether Anderson actually met her initial burden. Thus, the burden never shifted to LVMPD to do anything more or supply any evidence. Even if it had, that would not necessarily mean that fees were warranted; to award fees, the district court must have made a separate finding that LVMPD not only lost the motion, but unreasonably fought it based upon grounds prohibited under NRS 18.010(2)(b). No such findings exist, and therefore the award of fees must be reversed.

CONCLUSION

For the foregoing reasons, the district court's award of attorney fees was not proper under NRS 18.010(2)(a) and cannot be affirmed under NRS 18.010(2)(b) in the absence of any relevant findings or any clear evidence that LVMPD brought or maintained its defense without reasonable ground. Accordingly, we reverse the district court's order awarding attorney fees.

I concur:

Gibbons, J.

SILVER, C.J., concurring:

I concur in the result only.

      NRS 179.085 originally allowed individuals to seek return of seized property only on grounds that the underlying search and seizure were unlawful, but before Anderson filed her motion the Legislature amended it to add the additional ground that law enforcement's continued retention of the property was unreasonable in light of all the circumstances. See 2015 Nev. Stat., ch. 113, § 1, at 405-06.

      Anderson also argues that LVMPD's proffered defense was "legally impossible," but offers little support for that proposition and we decline to address it.

      Fed. R. Crim. P. 41 was amended in 2002 "as part of a general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules." United States v. Albinson, 356 F.3d 278, 279 n.1 (3d Cir. 2004) (internal quotation marks and citation omitted). What was formerly Fed. R. Crim. P. 41(e) became Fed. R. Crim. P. 41(g), but the rule itself stayed largely the same. Id.


source: Caselaw Access Project

author: By the Court, SILVER, C.J.: TAO, J., dissenting:

license: Public Domain

text:
    Helen NATKO, Appellant, v. The STATE of Nevada, Respondent.
    No. 73048-COA
    Court of Appeals of Nevada.
    FILED DECEMBER 20, 2018
   By the Court, SILVER, C.J.:

In this appeal, we consider whether the district court erred by instructing a jury, in a criminal case for exploitation of a vulnerable person and theft, that "[a] person's status as a joint account holder does not by itself provide lawful authority to use or transfer another['s] assets for their own benefit." We conclude this instruction is inconsistent with NRS 100.085, and it does not accurately and completely reflect the reasoning and conclusion in Walch v. State, 112 Nev. 25, 909 P.2d 1184 (1996). Accordingly, we hold the jury instruction was a misstatement of law, and it was error to give the instruction. Because the State has failed to demonstrate the error was harmless, we reverse.

FACTS AND PROCEDURAL HISTORY

Helen Natko and Delford Mencarelli began dating in 1982, a year or two after their respective spouses passed away. During a visit to Pennsylvania in May 2012, Mencarelli was hospitalized for low blood sugar, a complication of his diabetes. After the couple returned to their shared home in Las Vegas, Natko and Mencarelli gave each other durable power of attorney, purportedly so that Natko could help care for Mencarelli. Four days later, Mencarelli added Natko as a joint account holder on his Las Vegas credit union account. In July 2013, Natko withdrew $195,000 from the couple's joint bank account and temporarily placed it into her personal bank account. She returned the money to the couple's joint account within the month. Mencarelli died approximately two years later.

Nine months after Mencarelli's death, the State charged Natko with exploitation of a vulnerable person and theft based on the act of withdrawing the money from the joint account in 2013. At trial, the State proposed jury instruction 18, which stated: "A person's status as a joint account holder does not by itself provide lawful authority to use or transfer another['s] assets for their own benefit." This language was taken nearly verbatim from Walch. Natko objected to the instruction, arguing it was inaccurate under the current version of NRS 100.085, which was amended in 1995. The district court, relying on Walch, ultimately gave the instruction. A jury found Natko guilty on both counts, and the district court sentenced her to a suspended aggregate prison term of 36 to 144 months and placed her on probation. This appeal follows.

ANALYSIS

Natko argues that jury instruction 18 was a misstatement of law because it directly contradicts NRS 100.085, and the district court incorrectly relied on Walch in giving the instruction because Walch was decided under a prior version of NRS 100.085. The State counters that jury instruction 18 was a correct statement of law that was not overruled by the amendments to NRS 100.085 and, therefore, the district court properly relied on Walch.

"District courts have broad discretion to settle jury instructions." Cortinas v. State, 124 Nev. 1013, 1019, 195 P.3d 315, 319 (2008). "While we normally review the decision to [give or] refuse a jury instruction for an abuse of that discretion or judicial error, we review de novo whether a particular instruction, such as the one at issue in this case, comprises a correct statement of the law." Id. Further, whether jury instruction 18 was an accurate statement of the law involves statutory interpretation, which we also review de novo. See Bigpond v. State, 128 Nev. 108, 114, 270 P.3d 1244, 1248 (2012). When interpreting a statute, we first examine the statute's plain meaning. Id. "[I]f the statute is clear, we do not look beyond the statute's plain language." Sheriff v. Witzenburg, 122 Nev. 1056, 1061, 145 P.3d 1002, 1005 (2006).

NRS 100.085 was amended to its current version in 1995. 1995 Nev. Stat., ch. 426, § 1, at 1054-55. NRS 100.085(1) provides, in relevant part: "If an account is intended to be held in joint tenancy, the account or proceeds from the account are owned by the persons named, and may be paid or delivered to any of them...." (Emphasis added.) And, as relevant to this appeal, NRS 100.085(4) provides that, "[f]or the purposes of this section, unless a depositor specifically provides otherwise, the use by the depositor of [joint account] ... in designating the ownership of an account indicates the intent of the depositor that the account be held in joint tenancy." When read together, the plain language of NRS 100.085(1) and (4) establishes a presumption that a person's status as a joint account holder provides that person with ownership of, and authority to use, the funds in the joint account.

In contrast to NRS 100.085, jury instruction 18 stated that a person's status as a joint account holder alone does not provide the authority to use another person's assets. Jury instruction 18 was inconsistent with NRS 100.085 because it implied Natko did not have lawful authority to use or transfer the funds in the joint account for her own benefit. The State argues that the instruction was nevertheless a correct statement of the law under Walch. We disagree.

In Walch, the elderly victim gave the defendant, Walch, durable power of attorney that "expressly precluded Walch from using [the victim's] assets for Walch's own legal obligations, including but not limited to support of the agent's dependents." 112 Nev. at 27, 909 P.2d at 1185 (internal quotation marks omitted). Walch thereafter opened two joint bank accounts with the victim's money that named Walch and the victim as joint account holders, and Walch wrote checks from those accounts for her personal use. Id. at 27-29, 909 P.2d at 1185-86. On appeal, Walch cited to NRS 100.085(1) and argued that she could not be guilty of theft as a matter of law because, as a party on the joint accounts, she had lawful authority to withdraw any or all of the funds from those accounts and use them as she wished. Id. at 30-31, 909 P.2d at 1187-88. The supreme court rejected this argument, concluding that "Walch's mere status as a party to the joint accounts did not provide her with lawful authority to use [the victim's] assets for her own benefit and therefore did not preclude her conviction for theft." Id. at 33, 909 P.2d at 1189. This conclusion was based on the observation that the jury "could have concluded that Walch placed [the victim's] funds into the two accounts with the intention of withdrawing them later for her own benefit." Id. The court reasoned that "[i]f so, Walch's felonious intent and actions commenced before such monies reached the two accounts, and her status as a joint legal owner of the account funds would not shield her from culpability for theft of funds subsequently withdrawn and misused." Id.

In Walch , therefore, the supreme court did not conclude that NRS 100.085 does not create a presumption of ownership by a joint account holder of the funds in a joint account. Rather, Walch is best understood to stand for the proposition that despite the presumption of ownership established by NRS 100.085, a person named on a joint account can still be, under some circumstances, convicted of theft for withdrawing and/or misusing funds from the joint account. The State is correct that this aspect of Walch was not impacted by the 1995 amendments to NRS 100.085. This is so because there is nothing in NRS 100.085 that precludes a joint account holder from being convicted of theft for the withdrawal and/or misuse of funds in the joint account. However, based on the reasoning in Walch , in order to convict a joint account holder of theft based on the withdrawal and/or misuse of funds from a joint account, the State must allege and establish that the criminal intent arose prior to the funds being deposited into the joint account.

Because jury instruction 18 broadly stated: "A person's status as a joint account holder does not by itself provide lawful authority to use or transfer another['s] assets for their own benefit," it did not accurately reflect the reasoning and conclusions in Walch and was therefore incomplete. Notably, the instruction did not identify the circumstances under which a person named as a party on a joint account could be convicted of theft based on withdrawal and/or misuse of funds from the joint account. Accordingly, we conclude jury instruction 18 was not a correct statement of the law and it was error to give the instruction.

Because Natko objected to the use of jury instruction 18, we review the error under the harmless error standard. See Barnier v. State, 119 Nev. 129, 132, 67 P.3d 320, 322 (2003). "[T]he State bears the burden of proving that the error was harmless." Polk v. State, 126 Nev. 180, 183 n.2, 233 P.3d 357, 359 n.2 (2010). To meet this burden, it may be necessary for the State to file a respondent's appendix that includes "those documents necessary to rebut appellant's position on appeal which are not already included in appellant's appendix." NRAP 30(b)(4). Reversal will be warranted unless the State can show "it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Nay v. State, 123 Nev. 326, 334, 167 P.3d 430,435 (2007) (internal quotation marks omitted).

The State fails to argue on appeal, let alone demonstrate from the record, that the error is harmless. A joint appendix was not filed in this appeal and, although recognizing Natko did not provide this court with a copy of the trial transcripts, the State did not file a respondent's appendix and provide the trial transcripts to this court. Nothing in the record before this court indicates that Mencarelli or Natko specifically provided that they did not intend to hold the joint account in joint tenancy. Therefore, jury instruction 18 was not a correct statement of the law, and it improperly implied to the jury that Natko did not have lawful authority to use and/or withdraw the funds in the joint account. The State alleged Natko committed the crimes of exploitation of a vulnerable person and theft based on the act of withdrawing money from Natko and Mencarelli's joint account. Thus, without the trial transcripts, or anything to show the facts are like those in Walch, we cannot say that the error was harmless. Because the State has failed to meet its burden and demonstrate the error is harmless, we conclude the error warrants reversal.

CONCLUSION

The district court erred by giving jury instruction 18 because it was not a correct statement of the law. The instruction was inconsistent with NRS 100.085 because it broadly stated that a person's status as a joint account holder did not give her the authority to use another's assets within the joint account for her own benefit. Further, the instruction did not accurately reflect the reasoning and conclusions in Walch . Because the State has failed to meet its burden to demonstrate this error was harmless, we reverse and remand for further proceedings consistent with this opinion.

I concur:

Gibbons, J.

TAO, J., dissenting:

Before we can even get to the merits of Natko's arguments, there's a threshold problem: Natko was convicted following a jury trial, yet failed to supply copies of the trial transcript for us to review on appeal. We have partial transcripts of arguments of counsel surrounding the challenged jury instruction and some transcripts of post-trial motion argument. But we have no transcripts of the testimony of any trial witness reflecting the evidence admitted during the trial, no transcripts of the opening statements, and no transcripts of the closing arguments.

Consequently, we have no idea-none at all-what transpired at trial, what evidence either party introduced, or what the jury's verdict was or was not based upon. Absent that, I don't know how we can possibly analyze what effect, if any at all, jury instruction 18 may have had upon Natko's trial. To me, that omission alone demands affirmance, because we're required to presume that any missing portions of the record support, not undermine, the jury's verdict. See Johnson v. State , 113 Nev. 772, 776, 942 P.2d 167, 170 (1997) ("It is appellant's responsibility to make an adequate appellate record. We cannot properly consider matters not appearing in that record." (citation omitted) ); Riggins v. State , 107 Nev. 178 182, 808 P.2d 535, 538 (1991) (concluding that if materials are not included in the record on appeal, the missing materials "are presumed to support the district court's decision"), rev'd on other grounds by Riggins v. Nevada , 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992).

At the very least, I don't know what business we have reversing a felony jury verdict when the appellant has failed to properly apprise us of what actually happened below. Yet not only does the majority reverse a felony conviction without a transcript of the proceedings below, it does so via a broad legal ruling that upends a large swath of settled law. If the majority is correct, then NRS 100.085 isn't an obscure and rarely litigated statute unknown to much of the public, but rather one of the most sweeping laws ever enacted in Nevada-one that fundamentally undermines property law all the way back to the founding of this State.

Where I think the majority errs is in conflating the concept of legal authority (or possession) over personal property with the concept of ownership (or title) of the property. NRS 100.085 deals with the authority of any named account holder to withdraw money from a joint account and the bank's liability for allowing such withdrawals. But the majority makes it reach much farther to say that the act of depositing money into a joint account actually changes who owns the money. I read NRS 100.085 as saying nothing of the sort, and for all of these reasons I respectfully dissent.

I.

This appeal arises from a criminal case that implicates defenses based upon principles of banking and property law. On appeal, Natko raises a single argument: she asserts that one jury instruction given at trial (jury instruction 18) was incorrect.

Natko was convicted of two felony counts: one count of theft and one count of exploitation of a vulnerable person. The crux of the charges (as far as we can tell based upon arguments of counsel without a transcript of the trial) was that her name was added to a bank account first opened by her victim (her long-time boyfriend, according to the briefs), which changed it from a sole account to a joint one, and thereafter she withdrew large amounts of money from it at a time when the victim might not have been sufficiently lucid to agree to such financial decisions.

Her defense was this (again, based upon arguments of counsel without an actual trial transcript): once the account became a joint account, all of the money in it became hers as a "joint tenant" to use any way she pleased, and she could not possibly be convicted of stealing what already belonged to her. At common law, joint tenants could not "steal" jointly owned property from each other. See 3 Wayne LaFave, Substantive Criminal Law § 19.4(c), at 106 (3d ed. 2018) ("The common law view of larceny is that [one joint tenant] cannot steal from the other co-owner."); 3 Charles E. Torcia, Wharton's Criminal Law § 381, at 457-58 (15th ed. 1995) ("When, under principles of property law, property is owned by cotenants so that each one is entitled to the possession of the property jointly or in common with the others, one tenant cannot be guilty of larceny when he takes possession of the property, even though he does so with the intent to exclude the others from its use and enjoyment....").

The question is whether a "joint tenancy" existed here. For support, Natko contends that NRS 100.085 mandates that all money deposited in joint accounts, automatically and by operation of law, becomes the property of all account holders in joint tenancy. Consequently, she asserts the following jury instruction incorrectly describes the law:

18. A person's status as a joint account holder does not by itself provide lawful authority to use or transfer another [sic] assets for their own benefit.

But it seems to me to be Natko, not jury instruction 18, who misstates the law, Natko confuses the act of placing a name onto a bank account with legal ownership of the assets within the account. The creation of a bank account is governed by banking law. Ownership of personal property is governed by principles of property law. These are two entirely different things.

II.

First, property law. Personal property may be owned by one person as a sole owner, or it may be owned by more than one person simultaneously. If owned by more than one person, the owners may be tenants in common, or they may be joint tenants. See NRS 111.063 (tenants in common in personal property); NRS 111,065(2) (joint tenants in personal property). The difference between the two is whether the ownership provides for a right of survivorship should one owner die during the tenancy. See Smolen v. Smolen, 114 Nev. 342, 344, 956 P.2d 128, 130 (1998) ("[T]he principal feature of the estate [is] the right of survivorship."). In Nevada, personal property may also take the form of community property when co-owned by husband and wife, but because Natko and the victim were never married, that classification has no relevance here.

The parties do not dispute (again, based solely upon arguments of counsel; we don't know what was proven at trial) that, before Natko's name was added to the existing account, every penny of the money deposited in it was the sole property of the victim. Natko agrees that she had no ownership interest in any of the money before her name was added to the account. However, she argues that once the account became joint, by operation of law everything in it became hers as a "joint tenant."

Maybe. But maybe not. The answer depends upon other evidence introduced at trial. Adding Natko's name to the joint account gave her coequal access to the money in it. Did it also give her legal title and permission to withdraw and spend it as she pleased? Not necessarily.

A foundational principle of property law is that possession is not the same thing as title. Legal title to personal property, and factual possession of it, are different things that can be severed from each other. A person can legally possess property without owning it; it's the difference between a loan that conveys possession but not title, and a sale or gift that conveys both title and possession. It's why a house sitter doesn't become a legal owner of the home simply by residing overnight, and why a casino valet parking attendant doesn't own a car just by being handed the keys. Quite to the contrary, the civil tort of conversion occurs precisely when one person wrongfully exerts dominion over property that actually belongs to another. See Golden Rd. Motor Inn, Inc. v. Islam, 132 Nev. 476, 489, 376 P.3d 151,160 (2016). Further, the crime of embezzlement occurs when, with criminal intent, a bailee entrusted with only possession and not ownership of personal property uses it for the bailee's own benefit as if he were the owner. See NRS 205.300.

A second foundational principle of property law is that title may transfer from one owner (a grantor) to another (a grantee) only if the grantor intended to convey such title. This has been settled law since 1865. See Hendricks v. Perkins , 98 Nev. 246, 250, 645 P.2d 973, 975 (1982) (examining whether evidence proved "the parties' intent to convey" an interest in the property); Cox v. Glenbrook Co., 78 Nev. 254, 264, 371 P.2d 647, 654 (1962) (in determining whether property was conveyed to another, "the intention of the parties [is] the object of inquiry"); Ruhling v. Hackett, 1 Nev. 360, 367 (1865) (the extent of any transfer of property ownership is measured by "the intention of the parties"). Indeed, acting as if title to property has been transferred when the owner never intended to convey ownership is precisely when the tort of conversion and the crime of embezzlement occur.

Natko's argument thus runs afoul of long-established principles of property law: she argues that, under NRS 100.085, merely because she possessed legal authority to withdraw money from the joint account, the money actually belonged to her as a matter of property law. But this lumps together possession and ownership and makes property change title without any evidence of intent by the owner to do so.

What's more, she argues that the property not only changed title, but the form of the title changed from sole ownership to joint tenancy. Under Nevada law, a sole owner of property may convey a sole interest in the property to another simply by expressing an intent to do so and handing over possession. However, when the owner wishes to transmute the form of ownership from sole ownership into ownership by joint tenancy, Nevada law requires considerably more. At common law, creation of a joint tenancy required the "unities of interest, time, title, and possession," Smolen, 114 Nev. at 344, 956 P.2d at 130, meaning an intent to convey both title as well as possession without severing them, along with the unity of "time," which means both must be conveyed at the same time in the same transaction. Id. Beyond that, NRS 111.065 adds a writing requirement that did not exist at common law. This is so because the essence of joint tenancy is the "right of survivorship" that governs what happens when one of the joint tenants dies. Because many years or decades may go by before one tenant dies, Nevada law requires such transfers to be evidenced by "a written transfer, agreement, or instrument," so that the parties do not become embroiled in probate disputes years after the fact based upon oral statements whose contents may now be difficult to verify. See NRS 111.065(2). If any of these requirements is missing, then there is no proper conveyance in joint tenancy and what was conveyed was only either a tenancy in common or just sole ownership. Smolen, 114 Nev. at 344, 956 P.2d at 130.

We have no evidence that any of these requirements for creating a joint tenancy were ever met. So, for NRS 100.085 to make a joint tenancy anyway, it must displace quite a lot of statutory and common law. But "[t]he Legislature is presumed not to intend to overturn long-established principles of law when enacting a statute [and] this court strictly construes statutes in derogation of the common law." Shadow Wood HOA v. N.Y . Cmty. Bancorp . Inc., 132 Nev. 49, 59, 366 P.3d 1105, 1112 (2016) (internal quotation marks and citations omitted). To succeed, Natko needs NRS 100.085 to convey ownership of the victim's money to her whether or not the victim intended to give her a dime; whether or not he intended to convey title as well as possession; whether or not title and possession were conveyed in unity at the same time; whether or not anyone intended the account to be a tenancy in common instead of a joint tenancy; and whether or not any other formality of property law set forth in any other statute was followed.

To overcome these gaps and fill in the missing pieces, Natko argues that the victim's intent and all of the unities have already been established simply because once the victim agreed to comply with NRS 100.085(4) while constructively knowing what it said, he adopted and agreed to everything it imposed. In other words, by voluntarily agreeing to create a joint bank account under NRS 100.085, the victim constructively agreed to convey his money to Natko in joint tenancy because that's what the statute would make a joint account holder do. The way for the victim to avoid such a conveyance and keep the money for himself was not to deposit it into a joint bank account.

But this brings us to the next problem, which is that Natko's approach also conflicts with principles of banking law.

III.

Bank accounts may be in the name of a sole account holder or they may be in the name of joint account holders. Under traditional principles of banking law, the form of the account, and the name it may bear, may have little to do with the beneficial ownership of anything deposited into the account. By way of example, trust accounts-such as an attorney trust account holding money for clients, or any other type of trust account used by agents or fiduciaries to hold money on behalf of principals-are classic examples of bank accounts that may bear the name of one person or entity but actually hold money beneficially owned by other people whose names appear nowhere on the accounts. Indeed, the body of federal crimes commonly known as "money laundering" punishes the act of attempting to conceal ownership of ill-gotten money by depositing it into bank accounts in the names of others while secretly retaining control of it. See United States v. Davis, 226 F.3d 346, 357 (5th Cir. 2000) ; United States v. Rutgard , 116 F.3d 1270, 1292 (9th Cir. 1997).

The point is that the name on an account may have little to do with who owns what's in it. Who actually owns the money in an account, both before and after it is deposited, is a question for the depositors and account holders to handle between themselves: "[g]enerally, the respective rights of the parties to a joint bank account are determined by the rules of contract law, and the intent of the parties with respect to the joint savings account is controlling." Anderson v. Iowa Dep't of Human Servs., 368 N.W.2d 104, 109 (Iowa 1985). See Brasel v. Estate of Harp, 317 Ark. 379, 877 S.W.2d 923, 925 (1994) (stating that "each owner's right to the funds may depend upon an agreement between them as to their ownership rights"); see generally In re Estate of Greer, 128 P.3d 1104, 1107 (Okla. Civ. App. 2005) (stating that "actual ownership of the funds, as opposed to the right of possession, is a question of intent ").

Natko argues otherwise, but until now it's been long established that depositing money into a "joint account" does not automatically constitute a conveyance of money from the depositor to other account holders, either as sole owners or as joint tenants. "[A] person who deposits funds in a multiple-party account normally does not intend to make an irrevocable gift of all or any part of the funds represented by the deposit. Rather, he usually intends no present change of beneficial ownership." Deutsch Larrimore & Farnish , P.C., v. Johnson, 577 Pa. 637, 848 A.2d 137, 143 (2004). Thus, money deposited in a joint bank account does not belong to other account holders absent "clear and convincing evidence" that the depositing party intended to confer such ownership. Enright v. Lehmann, 735 N.W.2d 326, 331 (Minn. 2007). Some states have held that the creation of a joint account established a rebuttable presumption of joint ownership (notably not a conclusive or irrebuttable one), and at one time Nevada employed such a presumption. See Sly v. Barnett, 97 Nev. 587, 589, 637 P.2d 527, 528 (1981). Courts in those states recognized that an irrebuttable presumption of the kind Natko proposes would create a "hardship ... on parties having 'convenience' accounts, as where an incapacitated person might have a joint account for the sole purpose of financial management." Id. (Which, by the way, in view of the victim's alleged lack of mental capacity might be just what was intended here).

But it is simply not true that depositing money into a bank account by itself constitutes a transfer of ownership in the money to someone else just because their name also happens to be on the account, with no consideration of any evidence to the contrary no matter how weighty or persuasive that evidence might be, and no opportunity for ownership to be disputed or challenged by any other party. See id; see also South v. Smith , 326 Ark. 774, 934 S.W.2d 503, 507 (Ark. 1996) ("[E]ven though one has a right to withdraw funds from a joint bank account, a joint tenant may not, by withdrawing funds in a joint tenancy, acquire ownership to the exclusion of the other joint tenant...." (citation omitted) ). Quite the opposite: a party who merely has his name on a joint account and proves nothing more "fail[s] to establish his ownership of all the funds in the joint accounts." Marcucci v . Hardy, 65 F.3d 986, 992 (1st Cir. 1995). Indeed, if one owner of a joint bank account tries to withdraw more from the joint account than he owns or is entitled to, the other account holders may sue him for the tort of conversion because he has taken something that was not his to take. Newbro v. Freed , 409 F.Supp.2d 386, 395 (S.D.N.Y. 2006) ; see Matter of Kleinberg v. Heller , 38 N.Y.2d 836, 382 N.Y.S.2d 49, 345 N.E.2d 592 (1976) ; see also Kettler v. Sec. Nat'l Bank , 805 N.W.2d 817, 823 (Iowa Ct. App. 2011) (stating that "a cotenant may not withdraw from the account in excess of his interest; if he has done so, he is liable to the other joint tenant for the excess so withdrawn" (quotation and citation omitted) ); South , 934 S.W.2d at 507 ("[W]hen one [joint account holder] withdraws in excess of his moiety, he is liable to the other joint tenant for the excess withdrawn.").

The Nevada Supreme Court long ago rejected the very argument advanced here, in which "plaintiff contends that by depositing the money in the joint account defendant made a valid, completed gift to the plaintiff." Weeks v. Weeks, 72 Nev. 268, 275, 302 P.2d 750, 753 (1956). It rejected this argument summarily, pointedly noting that no authority existed for this proposition but "literally hundreds of cases" stood for the opposite. Id. at 276, 302 P.2d at 754 ; see Edmonds v. Perry, 62 Nev. 41, 140 P.2d 566 (1943) (under prior statute, merely because a bank account is joint does not mean that it is intended to be a joint tenancy with right of survivorship). Since then, the Nevada Supreme Court's position has consistently remained the same right through 2016: money retains its original ownership even when deposited into a joint account, and consequently "[a] judgment creditor may garnish only a debtor's funds that are held in a joint bank account, not the funds in the account owned by the nondebtor." Brooksby v . Nev. State Bank, 129 Nev. 771, 772, 312 P.3d 501 (2013). This is simply because "joint bank account funds [may] truly belong to someone other than the judgment debtor." Id. at 773, 312 P.3d at 502 ; see Brooks v. Mejia, 2016 WL 197396, Docket No. 67794 (Order of Affirmance, Jan. 14, 2016) (concluding that creditor could not garnish account to pay off debt owed by other account holder because appellant successfully "demonstrated that the funds in the bank account belonged to her alone"). In other words, even when funds from different sources are commingled in a joint bank account, the ownership of the funds does not automatically change merely by being deposited in the joint account. Rather, even when commingled, the funds retain their original ownership status at least so long as ownership can be traced. In re Christensen, 122 Nev. 1309, 1323, 149 P.3d 40, 49 (2006) (ownership over funds stays unchanged even when commingled with other funds "so long as tracing is possible").

None of these cases makes any sense (and all would have to be overruled) if Natko is correct about what NRS 100.085 does. These cases make sense only if Natko is wrong. Indeed, they show, conclusively, that she is.

What a joint bank account does is give every account holder some right of access to the money. But access is not the same thing as ownership. "The joint owner of a bank account ... has the right to withdraw all of the funds, thereby totally divesting the other joint owner of all interest. [But] the creator of a joint account has a cause of action against the other owner for having completely withdrawn the funds, upon establishing that in creating the account the creator did not intend to transfer [all of the funds]." In re Rauh, 164 B.R. 419, 424 (Bank, Ct. D. Mass. 1994) ; see Kettler, 805 N.W.2d at 823 ; South, 934 S.W.2d at 507. As another court described a virtually identical statute to NRS 100.085 :

The intent of [the statute] is to protect a financial institution from liability for distributing funds from a multiple-party account to any of the individual account holders. However, the relationship between a banking institution and the holders of a joint account does not in any manner shape the relationship between the account holders themselves. As such, while [one account holder] was authorized to withdraw the funds, she was not authorized to use the funds for her personal benefit.

Sandler v . Jaffe, 913 So.2d 1205, 1207 (Fla. Dist. Ct. App. 2005), See Erhardt v . Leonard, 104 Idaho 197, 657 P.2d 494, 497 (Idaho Ct. App. 1983) (noting that "[a]ccount contracts ... define the power of withdrawal held by each party to the account, as a means of protecting the financial institution," but that they do not affect the actual ownership of the funds therein, which is determined by looking to the intent of the depositor).

IV.

Natko argues that she is right and all of this is wrong because NRS 100.085 overturned it all in 1995, when the statute was last amended; ever since then, none of these statutes or common law principles has applied to any money held in joint bank accounts.

If she is correct, that raises an interesting question: what happened to money that was deposited into joint bank accounts before 1995 and remained there after the amended statute took effect? Natko concedes that, prior to 1995, money deposited into a joint account was not necessarily held in joint tenancy, agreeing that the Nevada Supreme Court said exactly that in Starr v. Rousselet, 110 Nev. 706, 712, 877 P.2d 525, 530 (1994) (holding that "a simple reference to a 'joint' account ... will not suffice for purposes of establishing a joint tenancy"). She argues, though, that money deposited into any joint account became automatically held in joint tenancy beginning in 1995 when the last amendment to NRS 100.085 took effect, thereby overruling Starr at least sub silentio .

Would this not be a governmental seizure of private property and conveyance to others of all money held in joint bank accounts at the moment the 1995 amendments took effect-possibly tens of millions of dollars of it across Nevada? Nev. Const, art. 1, § 8 (5) stipulates that "[n]o person shall be deprived of ... property, without due process of law," and art. 1, § 22 provides that "[p]ublic use shall not include the direct or indirect transfer of any interest in property taken in an eminent domain proceeding from one private party to another private party." Yet Natko seems to read the 1995 amendments as accomplishing something very much along those dangerous lines: taking all money deposited in any joint account before 1995 away from any original sole owner and giving it away in joint tenancy whether the owner wanted to or not.

Furthermore, it seems to me that this interpretation creates serious problems with the Contract Clause of the Nevada Constitution, which prohibits any "law impairing the obligation of contracts." Nev. Const, art. 1, § 15. Following Natko's reasoning, any contract governing the ownership of money held in a joint account before 1995-say, a 1994 contract that provided that money held in a joint account was expressly not held in joint tenancy between the parties-would have been voided, ex post facto, by the 1995 amendment to NRS 100.085. That would make NRS 100.085 unconstitutional. But we're not supposed to read statutes that way; to the contrary, "when a statute may be given conflicting interpretations, one rendering it constitutional, and the other unconstitutional, the constitutional interpretation is favored." State v. Kopp, 118 Nev. 199, 203, 43 P.3d 340, 342-43 (2002) (internal quotation marks omitted).

Central to the concept of liberty in our constitutional republic is the right to freely convey or dispose of private property as the owner, not the government, sees fit. Indeed, the right to own real and personal property free from government interference is the individual right most frequently mentioned in the U.S. Constitution. See U.S. Const, amend. III (protecting "any house"); amend. IV (protecting "houses" from unreasonable search and seizure); amend. V (prohibiting deprivation of life, liberty, or "property" without due process of law, and preventing "private property" from being taken without just compensation); amend. XIV (prohibiting deprivation of life, liberty, or "property" without due process of law). Government ownership and control of property is the hallmark of communist societies, not free ones. Yet that comes perilously close to what Natko seems to propose here: that the Legislature can simply take one's private property and give it to someone else (or at least make the original owner share it with others against his will) by enacting a statute like NRS 100.085.

V.

Natko argues that this is what NRS 100.085 demands. But the statute doesn't really say what she claims it does.

When reviewing statutes, we start with the statutory language and give it the meaning most reasonably supported by the text, structure, and context. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170, 174 (2012). If one is an "intentionalist" or "purposivist," one might also peek at the legislative history or announced purpose lurking behind a statute. But neither the stated purpose nor anything in the legislative history can ever override the plain meaning framed by the statute's own language and structure, because the language and structure were all that the Legislature voted on and all that the Governor signed.

As a starting point, the structure of NRS 100.085 tells us that it isn't the general all-purpose banking and property law statute that Natko says it is. Quite to the contrary, and quite notably, the general banking statute is located very far away, in NRS Chapter 657. The personal property statute is also located elsewhere, in NRS Chapter 111.

In contrast, NRS 100.085 is located within Chapter 100, a chapter directed specifically at "Special Relations of Debtor and Creditor," and NRS 100.085 is further located adjacent to a series of subchapters titled "Marshaling of Assets," "Suretyship," and "Transfer of Creditor's Rights." The statute is immediately preceded by a series of other statutes addressing "Agreements between principals and sureties for joint control of assets" ( NRS 100.060 ); "Deposits authorized in lieu of cash payment or surety bond for protection of State" ( NRS 100.065 ); and "Creditor's rights transferable without consent of debtor" ( NRS 100.075 ). The statute immediately following NRS 100.085 is NRS 100.091, titled "Impound account required under loan secured by real property...."

What does this tell us? That NRS 100.085 doesn't govern how bank accounts are set up for all purposes, nor does it supplant centuries of common law (along with several current statutes) to dictate who owns personal property; this chapter would be a pretty incongruous place to bury a statute that revolutionary. Rather, being placed here tells us that it's much narrower and is directed toward problems that may arise in debtor/creditor relations. As the Nevada Supreme Court has described the statute, "[t]he effect of NRS 100.085(1) is to protect a depository, such as a bank, from liability if it pays money out to a joint tenant of an account." Walch v . State, 112 Nev. 25, 31, 909 P.2d 1184, 1188 (1996).

Structure aside, here are what the plain words of the statute say. Under NRS 100.085(1) and (3), any "deposit made in the name of [two or more persons] and intended to be paid or delivered to any one of them" is the property of all named persons that can be withdrawn by any account holder, and the bank will suffer no liability if the withdrawal turns out to have been against the wishes of other account holders. NRS 100.085(4) specifically states that, "[f]or purposes of this section," the bank may treat a "deposit" into a joint account as if it were intended in joint tenancy so long as the deposit was made in the name of one or more persons into the joint account, unless the "depositor" indicates otherwise.

Take these words at face value, and notice what they don't say: they don't say that all joint bank accounts create joint tenancies all the time. Here's why. There are three ways that money can end up in a joint account: it can be deposited in a sole account to which more names are added later to make it joint; it can be deposited into a joint account in the name of only one account holder; or it can be deposited into a joint account in the names of multiple account holders. Yet NRS 100.085 addresses only one of these (the third). The plain words of NRS 100.085 state that the entire statute comes into play only when a joint account has already been established and a "deposit [is] made in the name of the depositor and one or more other persons." See NRS 100.085(1) ("When a deposit has been made in the name of the depositor and one or more other persons...."); 100.085(3) ("When a deposit has been made in the name of the depositor and one or more other persons....").

By its plain terms, NRS 100.085 isn't triggered by the initial creation of a joint account, but rather only by the making of certain kinds of deposits into one already established. That's the very title of the statute: "Deposits in names of two or more persons" (and not, by contrast, "joint bank accounts" or "joint tenancies"). Even NRS 100.085(4), the section that refers to joint tenancies (and upon which Natko most obviously hangs her hat), is triggered only by the actions of a "depositor" who makes the kind of deposit outlined in sections (1) and (3). In fact, here is the language from (4) that forms the backbone of Natko's entire argument:

4. For the purposes of this section, unless a depositor specifically provides otherwise, the use by the depositor of any of the following words or terms in designating the ownership of an account indicates the intent of the depositor that the account be held in joint tenancy.... (emphasis added).

On their face, these words don't apply to all joint bank accounts from inception but only when activated by the actions of a "depositor" following a deposit pursuant to (1) or (3). This would not be Natko if she never deposited any of her own money into the account herself in the specific manner provided by (1) or (3) (which she seems to concede); Natko couldn't trigger this statute herself as a mere account holder who never made a deposit in the name of more than one person. Did the victim ever trigger section (4)? That depends on evidence we don't have before us.

But let's keep going through the text. What happens with the other two situations? Say no such deposits are made in the names of multiple account holders. Or, say deposits were made only back when the account was a sole account before it became joint. Notably, neither of these is covered by NRS 100.085(1), (3), or (4). The statute omits bank accounts that began as sole accounts and then were later converted into joint ones without any more deposits having been made. It also omits bank accounts that are joint, but in which no deposits have yet been made "in the name of the depositor and one or more other persons." These seem like rather glaring omissions, omissions that may potentially encompass thousands of joint accounts, weirdly making some bank accounts into joint tenancies but leaving out quite a lot of them.

So if NRS 100.085 creates joint tenancies at all (which I doubt, but let's assume it does for the moment), it does so only sporadically and unpredictably: some joint bank accounts are joint tenancies because the right kind of "deposit" was made into them; some joint bank accounts are not joint tenancies right now but may become joint tenancies in the future upon the making of the right kind of "deposit"; and some joint bank accounts may never become joint tenancies if the right kind of "deposit" is never made. That's a pretty odd scheme.

More pointedly, oddity aside, those omissions matter very much to this appeal because at least one of the situations omitted may be precisely the situation at hand. Here, the victim originally deposited what had unequivocally been his own money into a sole account and Natko's name was added to the account only later. Absent a transcript it's not clear whether all of the money at stake was deposited before or after her name was added (your guess is as good as mine on the precise sequence of events). If all of the victim's money was deposited while the account was still sole, then there was never a deposit into any joint account made in the name of more than one person. If so, this case would be precisely one of the situations that the express words of NRS 100.085 would not cover, and Natko's interpretation of the statute leaves her own appeal out.

The strangeness of these results suggests something more broad: Natko is simply wrong about what the statute says. Why would a comprehensive banking and property statute omit so much and include so little? The answer must be: because NRS 100.085 is not the comprehensive banking and property statute that Natko argues it is. Rather, it is what Watch said it is: a statute that protects banks from liability. 112 Nev. at 31, 909 P.2d at 1188. It applies in only extremely limited circumstances, and says nothing about whether the mere creation of a joint account universally gifts every dollar deposited to everyone else whose name happens to be on the account. NRS 100.085(4) simply protects banks from being sued by a decedent's estate for allowing a surviving account holder to withdraw funds after the depositor has died and the bank mistakenly thought that a right of survivorship was intended. That's all it does. NRS 100.085(4) insulates the bank by allowing it to assume for purposes of the withdrawal that there existed a right of survivorship; but whether there actually was one is a matter to be resolved in probate court as a question of property law.

VI.

If Natko wanted to prove that the money was hers, she could have done so by introducing evidence of the victim's intent to gift the money to her, and perhaps the creating of the joint account may have constituted some evidence of such intent. But it did not become hers just by operation of law without any evidence that the victim intended a conveyance.

Alternatively, perhaps one might say that the creation of a joint bank account established a prima facie rebuttable presumption that the money in it might be intended to be held in joint tenancy. See Sly, 97 Nev. at 589, 637 P.2d at 528. But even then the jury must consider any and all evidence of intent offered to rebut that presumption.

Either way, NRS 100.085 is not the alpha and omega of the inquiry, with nothing more to ask. Accordingly, jury instruction 18 is more or less correct. It states that a person's status as a joint account holder by itself says nothing about who owns the money within the account or who can use it for their own personal benefit. That's manifestly true. Status as a joint account holder may constitute evidence pointing to ownership of the money. It may even create a rebuttable presumption of joint tenancy in some cases. But no legal conclusion can be drawn from the status itself, without anything more.

Although jury instruction 18 is poorly worded (including an obvious grammar and punctuation error), in substance it's a reasonable approximation of the law. It probably would have been more accurate had it stated that "a person's status as a joint account holder does not by itself provide lawful authority to use or transfer the assets in the account for their own benefit," or perhaps "a person's status as a joint account holder does not by itself convey legal ownership of the funds deposited in the account." But it's not that far off the mark. I do not think the district court erred in giving it, and therefore reversal is not warranted.

VII.

Even if one could read NRS 100.085 as broadly as Natko proposes-to make the name on a bank account single-handedly preempt any other principle of property ownership-I would still affirm the conviction. Without a transcript of the trial, we have no idea what the State or Natko proved about the money in the bank account or the victim's capacity or intent to convey it. We also don't know whether jury instruction 18 related to the evidence introduced at trial or whether it may have been entirely superfluous and irrelevant to everything that happened below. Those gaps requires affirmance.

But there's more. The central issue in this case appeared to be that, at the time the joint account was created, the victim may have lacked the mental capacity to make any serious financial decisions. If the trial evidence confirmed this (we can only guess), the jury could have concluded that the establishment of the joint bank account itself occurred without the victim's legal consent, and if so, then any withdrawal from it thereafter was either void or at least voidable due to the victim's lack of capacity. If the account itself and any deposit into it or withdrawals from it were legally void, then Natko never legally owned the money even under her theory of NRS 100.085, because the victim lacked the mental capacity to give it to her. A rational jury could have concluded that Natko committed theft and exploitation by inducing the victim to convert his money into joint tenancy and thereby gift it to her at a time when he had no legal capacity to agree, and I would affirm on this basis as well as for the other reasons set forth herein.

VIII.

For all of these reasons, I respectfully dissent. At common law, joint tenants could not steal from each other. But joint bank account holders might be able to, because not every joint bank account holder is necessarily a joint tenant to every penny ever deposited in the account by anyone at any time. In the absence of a trial transcript we simply do not know whether Natko was a joint tenant to the money deposited into the account, or whether she might have been a joint account holder without being a joint tenant. Consequently, we do not know whether any error occurred, and I would affirm the conviction.

      The dissent speculates that Mencarelli "may" have lacked mental capacity at the time the joint bank account was created a year prior, thus voiding the joint account and removing any legal claim Natko may have had to the funds within the account. This is mere speculation, and no evidence exists of this in our record. Tellingly, the State's information charged Natko with "willfully, unlawfully and feloniously" exploiting a vulnerable person and theft on July 5, 2013, by withdrawing the $195,000 from a bank account on which she was listed as a joint tenant. The withdrawal of money occurred a full year after the date from which she and Mencarelli set up the joint bank account. Significantly, too, the State never charged Natko with exploitation or fraud for any actions prior to the date of the withdrawal of funds from the joint bank account.

      The judgment of conviction erroneously states Natko was convicted pursuant to a guilty plea.

      We recognize that the opinion in Walch was issued in 1996. However, Walch is not controlling here, because the defendant, Walch, was charged based on acts that were committed before the amendment of NRS 100.085, and therefore, the Walch court would have considered the pre-amendment version of NRS 100.085 when deciding the appeal. See State v. Second Judicial Dist. Court (Pullin), 124 Nev. 564, 568, 188 P.3d 1079, 1081 (2008) (stating, in the context of addressing sentencing penalties, "the law in effect at the time of the commission of a crime governs the prosecution of criminal offenses").

      Because the statute is clear, we need not look to the legislative history to determine the meaning of the statute. See Witzenburg, 122 Nev. at 1061, 145 P.3d at 1005. Nevertheless, we note that the legislative history expressly demonstrates that the 1995 amendments to NRS 100.085 were specifically intended to clarify that each party on a joint account has a right to funds in the account and the right of survivorship to funds in the account upon the death of one of the account holders. See Hearing on S.B. 424 Before the Assembly Judiciary Comm., 68th Leg. (Nev., June 15, 1995) (John Sande, representing the Nevada Bankers Association, testified that "if it is held as a joint tenancy, as that is defined in [NRS 100.085 ] under Subsection 4 ... either party, or any party that [is] on the account, has the right to those funds, that they will pass to the survivor on the death so that there's certainty," and, upon inquiry, he clarified that "[u]nder any interpretation," any party on a joint account, even if the parties do not live in the same house and have different families, "could take all the funds out of that account.").

      A jury instruction that accurately reflects the reasoning and conclusions in Walch may have stated the following: A person's status as a joint legal owner of account funds does not shield the person from culpability for the taking of those funds if the State can demonstrate that the person's criminal intent and actions commenced before the money was placed into the joint account.

      The dissent argues that the lack of trial transcripts in the record demands an affirmance. However, because the State failed to argue harmless error after Natko alleged reversible error by the district court, the State waived its argument that harmless error applies. Polk, 126 Nev. at 183 n.2, 233 P.3d at 359 n.2 ("[A respondent] who fails to include and properly argue a contention in the [respondent's] brief takes the risk that the court will view the contention as forfeited." (internal quotations and citation omitted) ). And, because the jury instruction given here was incomplete, as a matter of law, we are constrained to reverse under the circumstances of this case. See Cortinas , 124 Nev. at 1019, 1023-27, 195 P.3d at 319, 322-24 (reviewing de novo whether a jury instruction is a correct statement of law and addressing the effect of instructional errors).


text:
    Lubuto MUSONDA, Appellant v. The STATE of Oklahoma, Appellee
    No. F-2016-988
    Court of Criminal Appeals of Oklahoma.
    FILED January 10, 2019
   APPEARANCES AT TRIAL, LARRY EDWARDS, ATTORNEY AT LAW, 601 S. BOULDER, STE. 1305, TULSA, OK 74119, COUNSEL FOR DEFENDANT

ANDREA BROWN, KATIE KOLJACK, ASST. DISTRICT ATTORNEYS, 500 S. DENVER, STE. 900, TULSA, OK 74013, COUNSEL FOR THE STATE

APPEARANCES ON APPEAL, NEAL B. KIRKPATRICK, 2021 S. LEWIS, STE. 335, TULSA, OK 74104, COUNSEL FOR APPELLANT

MIKE HUNTER, OKLA. ATTORNEY GENERAL, WILLIAM R. HOLMES, ASST. ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

SUMMARY OPINION

HUDSON, JUDGE:

¶1 Appellant, Lubuto Musonda, was tried by a jury and convicted in Tulsa County District Court, Case No. CF-2015-770, of Count 3: Child Abuse by Injury, in violation of 21 O.S.Supp.2014, § 843.5 ; Count 4: Second Degree Robbery, in violation of 21 O.S.2011, § 791 ; Count 5: Assault and Battery on a Police Officer, in violation of 21 O.S.2011, § 649 ; Count 6: Misdemeanor Assault and Battery, in violation of 21 O.S.2011, § 644 ; and Count 7: Cruelty to Animals, in violation of 21 O.S.2011, § 1685. The jury recommended the following sentences: Count 3-ten (10) year imprisonment and a $5,000.00 fine; Count 4-seven (7) years imprisonment and a $7,000.00 fine; Count 5-one (1) year imprisonment and a $500.00 fine; Counts 6-ninety (90) days in the county jail and a $1,000.00 fine; and Count 7-ninety (90) days in the county jail and a $500.00 fine. The Honorable Kelly Greenough, District Judge, sentenced Musonda in accordance with the jury's verdicts and ordered the sentences be run consecutively. The trial court further imposed various costs and fees.

¶2 Musonda now appeals, raising two (2) propositions of error before this Court:

I. THE TRIAL COURT ERRED BY NOT REQUIRING THE PROSECUTION TO DIVULGE TO THE DEFENDANT THE FINDINGS OF A PRIVATE EXPERT WITNESS, RETAINED BY THE STATE TO REBUT APPELLANT'S PLEA OF NOT GUILTY BY REASON OF INSANITY; and
II. THE TRIAL COURT SHOULD HAVE REQUIRED THE STATE TO FURNISH WHATEVER FINDINGS OR OTHER DETERMINATIONS THE STATE'S EXPERT MADE TO THE COURT FOR AN IN CAMERA DETERMINATION AS TO WHETHER THOSE FINDINGS COULD BE CONSTRUED AS EXCULPATORY TO THE DEFENDANT.

¶3 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties' briefs, we find that no relief is required under the law and evidence. Musonda's judgments and sentences are AFFIRMED .

¶4 Proposition I: Musonda complains the trial court erred when it denied his discovery request for any reports or statements made by the State's expert medical consultant, Dr. Shawn Roberson. Musonda argues that the trial court read too narrowly subsection (A)(1)(d) of the Oklahoma Discovery Code- 22 O.S.2011, § 2002. He further challenges the trial court's determination that Dr. Roberson's unsworn statements gathered by the State in preparation of its case were "work product" and thus excluded from discovery.

¶5 Notably, Musonda fails to cite in the record where he objected to this alleged discovery violation at trial. See Bramlett v. State , 2018 OK CR 19, ¶ 27, 422 P.3d 788, 797 (failure to object at trial to alleged discovery error waived all but plain error review). This Court will not search the record to determine if Musonda properly preserved his claim for appellate review. Rule 3.5(A)(5) & (C), Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch. 18, App. (2018) (requiring appellants support their arguments by citations to the authorities, statutes and relevant pages of the record);

Logsdon v. State , 2010 OK CR 7, ¶ 41, 231 P.3d 1156, 1169-70 (claim is waived for failure to cite the applicable portion of the record); Stouffer v. State, 2006 OK CR 46, ¶ 126, 147 P.3d 245, 270-71 (same); Brown v. State , 1997 OK CR 1, ¶ 33, 933 P.2d 316, 324-25 (appellant's failure to make sufficient citation to the record waived his claim that State improperly withheld an investigatory report containing exculpatory evidence). Musonda has thus waived all but plain error review of this claim.

¶6 To be entitled to relief under the plain error doctrine, Musonda must show the existence of an actual error (i.e., deviation from a legal rule), that is plain or obvious, and that affects his substantial rights, meaning the error affected the outcome of the proceeding. Bramlett , 2018 OK CR 19, ¶ 23, 422 P.3d at 796. If these elements are met, this Court will correct plain error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id . ; 20 O.S.2011, § 3001.1. Musonda fails to show error, plain or otherwise.

¶7 The Oklahoma Discovery Code exempts legal work product from discovery. 22 O.S.2011, § 2002(E)(3) ("[t]he discovery order shall not include discovery of legal work product of either attorney which is deemed to include legal research or those portions of records, correspondence, reports, or memoranda which are only the opinions, theories, or conclusions of the attorney or the attorney's legal staff."). However, the work product exemption is not absolute. Irrespective of the exemption, "[d]ue process requires the State to disclose exculpatory and impeachment evidence favorable to an accused." Bramlett , 2018 OK CR 19, ¶ 28, 422 P.3d at 797 (citing Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ). See also Nauni v. State , 1983 OK CR 136, ¶ 31, 670 P.2d 126, 133 ("the work-product privilege may not be applied in derogation of a criminal defendant's constitutional rights to disclosure of evidence favorable to the defendant").

¶8 In the present case, the State's conversations with Dr. Roberson were not discoverable under state law. Dr. Roberson was a consulting expert for the State. He was never retained as or endorsed as a fact witness. Moreover, he never examined or spoke with Musonda. While he reviewed Musonda's expert's notes, Dr. Roberson never generated any reports or findings. Nor were the State's conversations with Dr. Roberson recorded or memorialized in a report. Dr. Roberson's role as a consulting expert thus did not produce a discoverable species of evidence. Rather, his involvement in the case was purely limited to aiding the State in trial preparation. The conversations had between the State and Dr. Roberson therefore fell within the work product exception. Cf. Ellison v. Gray , 1985 OK 35, ¶ 7, 702 P.2d 360, 363 ("The opinion work product area is carved out to protect the right of counsel to privacy in the analysis and preparation of the client's case.").

¶9 Moreover, there is no indication from the record that a Brady violation occurred in this case. During the pre-trial discovery hearing, the State repeatedly acknowledged its ethical duty to disclose exculpatory evidence and assured the trial court that there was nothing exculpatory. We must presume that the prosecutor, as an officer of the court, adhered to her oath and nothing exculpatory was borne out of the State's consultation with Dr. Roberson. Brown , 1997 OK CR 1, ¶ 33, 933 P.2d at 325.

¶10 Musonda fails to show error, let alone plain error, in the trial court's denial of his discovery request. Proposition I is denied.

¶11 Proposition II: Musonda argues the trial court, at the very least, should have conducted an in camera review of Dr. Roberson's findings to determine if these materials contained anything exculpatory in nature. Given that Dr. Roberson did not evaluate Musonda or prepare a report containing any findings, we assume Musonda contends the State should have been made to produce any notes it generated from its consultation with Dr. Roberson for the trial court's review.

¶12 Again, Musonda's failure to object at trial to the alleged discovery error waived all but plain error review of this claim. Bramlett , 2018 OK CR 19, ¶ 27, 422 P.3d at 797. Musonda fails to show error, plain or otherwise, occurred. As previously observed in Proposition I, the prosecutor clearly acknowledged her ethical duty to disclose exculpatory evidence and assured the trial court that there was nothing "exculpatory in any way" in its communications with Dr. Roberson. Given that there is nothing in the record indicating a Brady violation occurred, we must presume the prosecutor, as an officer of the court, adhered to her oath. Musonda's mere speculation is insufficient to overcome this presumption and cause reversal. See Fairchild v. State , 1999 OK CR 49, ¶ 93, 998 P.2d 611, 629-30 ("The Appellant presents nothing beyond mere rank speculation to support this argument factually. Absent some showing of harm, we find no relief is warranted."). Musonda's Proposition II is therefore denied.

DECISION

¶13 The Judgments and Sentences of the District Court are AFFIRMED . Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

LEWIS, P.J.: CONCUR

KUEHN, V.P.J.: CONCUR

LUMPKIN, J.: CONCUR

ROWLAND, J.: CONCUR

      The jury acquitted Musonda on Counts 1 and 2-First Degree Burglary and Attempted Kidnapping, respectively. As to Count 4, Musonda was originally charged with Robbery by Force or Fear, but the jury rejected the original charge and convicted him of the lesser included offense of Second Degree Robbery.

      Musonda must serve eighty-five (85) percent of his Count 3 sentence before becoming eligible for parole. 21 O.S.Supp.2014, § 13.1(14).

      On December 13, 2017, this Court granted Musonda an extension of time to file his reply brief. The final due date for filing this brief was December 19, 2017. Musonda tendered his reply brief for filing on December 20, 2017. An application to file the reply brief out of time was not contemporaneously filed with the reply brief. Thus, Musonda's reply brief is ordered STRICKEN as it is not properly before the Court. See Rule 3.4, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch. 18, App. (2018).