State v. Lechuga (Matthew)

 v. Provenza, 97 Nev. 346, 630 P.2d 265 (1981). However, when the district
court's decision involves a question of law, we review that decision de
novo. Sheriff v. Witzenburg, 122 Nev. 1056, 1059, 145 P.3d 1002, 1004
(2006).
Lechuga first argued that the State failed to establish a proper
chain of custody for the firearm that was the gravamen of count one and
that the count should thus be dismissed. The district court acknowledged
the State's argument that "defects" in the chain of custody speak only to
the weight, not the admissibility, of the evidence, see Sorce v. State, 88
Nev. 350, 352-53, 497 P.2d 902, 903 (1972), but nevertheless concluded
that the "lack" of a chain of custody warranted dismissal. The order does
not explain nor cite any authority that the failure to establish a proper
chain of custody required dismissal of charges. The State presented
evidence that Lechuga had previously been convicted of a felony and that
the backpack he was carrying contained a firearm. The State thus
presented at least slight evidence that Lechuga violated NRS
202.360(1)(a), possession of a firearm by a felon. We therefore conclude
that the district court committed substantial error in granting Lechuga's
request to dismiss count one.
Lechuga also argued that the State failed to present any
evidence that he had constructive possession of the firearm that was the
gravamen of count two and that the count should thus be dismissed. An
"accused has constructive possession only if [he] maintains control or a
right to control the contraband." Glispey v. Sheriff, 89 Nev. 221, 223, 510
P.2d 623, 624 (1973). The State argued that there was slight or marginal
evidence of constructive possession because Lechuga was found with a
loaded magazine that would have fit into a gun found inside the console of
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a car, he and his girlfriend were walking towards the car, and the car had
been rented by his girlfriend's grandmother. The district court found that
because Lechuga was never seen in the car, did not have keys to the car,
and had not rented the car, the State failed to present even slight or
marginal evidence that Lechuga had control over the car so as to indicate
control over the gun and, accordingly, dismissed count two. We agree with
the district court and conclude that it did not commit substantial error in
dismissing count two. Accordingly, we
ORDER the judgment of the district court AFFIRMING IN
PART, REVERSING IN PART and REMANDING this matter to the
district court for proceedings consistent with this order.
, J.
Saitta
cc: Hon. Jessie Elizabeth Walsh, District Judge
Attorney General/Carson City
Clark County District Attorney
Clark County Public Defender
Eighth District Court Clerk
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