Cureton (Kenneth) v. State

This court "review [s] a district court's decision to admit or exclude evidence for abuse of discretion." Chavez v. State, 125 Nev. 328, 344, 213 P.3d 476, 487 (2009). Evidence is inadmissible hearsay if it is an out-of-court "statement offered in evidence to prove the truth of the matter asserted." See NRS 51.035. "A statement of the declarant's then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain and bodily health, is not inadmissible under the hearsay rule." NRS 51.105(1). The state-of-mind exception only applies if the declarant's then-existing state of mind is a relevant issue in the case. See Shults v. State, 96 Nev. 742, 751, 616 P.2d 388, 394 (1980). Here, what is relevant is Caren's state of mind at the moment that she committed the larceny. Robinson v. Goldfield Merger Mines Co., 46 Nev. 291, 303, 213 P. 103, 105 (1923) ("To convict of larceny, it is necessary to find that the intent to steal existed at the time of the taking."). If, at that moment, she declared, "I intend to turn this purse in," such a statement would be admissible. But a later declaration of a prior mental state—a recollection of a state of mind—is not admissible under the then-existing state-of-mind exception to the hearsay rule. "Declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past. There would be an end, or nearly that, to the rule against hearsay if the distinction were ignored." Shepard v. United States, 290 U.S. 96, 105-06 (1933) (Cardozo, J.). Because Caren's state of mind after the arrest is not relevant to whether she had the intent to steal the purse when she took it, the state-of-mind exception does not apply to this case. See Shults, 96 Nev. at

SUPREME COURT OF NEVADA 2 (D) 1947A 4004.

751, 616 P.2d at 394. We conclude that the district court did not abuse its discretion by excluding the out-of-court statement. Accordingly, we ORDER the judgment of conviction AFFIRMED.

Parraguirre

J.

J.

cc: Hon. Michael Villani, District Judge Carl E. G. Arnold Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (0) 1947R peyo