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

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                 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




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