Klepar v. State ( 1976 )

546 P.2d 231 (1976)

Ronald Albert KLEPAR, Appellant,
v.
STATE of Nevada, Respondent.

No. 8471.

Supreme Court of Nevada.

February 17, 1976.

Horace R. Goff, State Public Defender, and Michael R. Griffin, Deputy Public Defender, Carson City, for appellant.

Robert List, Atty. Gen., Carson City, Howard D. McKibben, Dist. Atty., and Steven D. McMorris, Deputy Dist. Atty., Douglas County, Minden, for respondent.

OPINION

PER CURIAM:

Ronald Albert Klepar, convicted by jury verdict of burglarizing a hotel room at Lake Tahoe (NRS 205.060), was sentenced to a five (5) year term in the Nevada State Prison.

In an attempt to obtain release from incarceration Klepar has appealed contending an incriminating statement he made to a private hotel security officer was inadmissible because he was not given the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The identical issue was recently considered and rejected by this court in Silks v. State, 92 Nev. ___, 545 P.2d 1159.

Klepar also contends the trial judge erred in refusing to give a requested instruction on trespass, which he suggests is a lesser included offense of burglary. He argues that since he testified that he had been "invited" into the hotel room that he is entitled to the instruction.

Even if we assume trespass to be a lesser included offense, Klepar's testimony does not raise the question and this record is totally barren of any evidence to support such a finding. "... [W]here the defendant denies any complicity in the crime charged and thus lays no foundation for any intermediate verdict ... the lesser offense is either not proved or shown not to exist. The [requested] instruction is not only unnecessary but is erroneous because it is not pertinent." Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 595 (1966).

Affirmed.