Sentence nothing to spit at

PAHRUMP -- Good advice: Don't spit into the wind. Better advice: Don't spit into the face of your ex-girlfriend unless you're ready for 10 to 25 years in a Nevada prison.

That was the sentence handed to Timothy Hobbs by Nye County Judge John Davis, who made the seemingly harsh decision last year after he declared Hobbs a habitual criminal.

The question is: Did the judge follow the law in making that declaration?

On Tuesday, a Nevada Supreme Court panel heard oral arguments at Pahrump Valley High, part of its "justice on the road" program.

In briefs presented by Nye County Public Defender Harry Kuehn, who represents Hobbs, and Wes White, a Nye County deputy district attorney, the justices must decide whether spitting meets the state's definition of a battery, described as an unwanted use of force or violence, and whether prosecutors failed to establish Hobbs' criminal history.

It was in Pahrump, 55 miles west of Las Vegas, where Hobbs, 44, on Oct. 5, 2008, entered a beauty salon, confronted former girlfriend Patricia McClain and spat into her face. As he left, he threw a rock through the windshield of her vehicle.

Hobbs reportedly was upset because McClain was getting a manicure. It was not the first time a girlfriend had incurred his wrath. Twice before Hobbs was convicted of domestic violence.

In Nevada, a third conviction is treated as a felony.

Kuehn does not deny Hobbs spat on McClain or broke her windshield. His appeal is based on whether he was charged with the appropriate crime. He also alleges the state did not prove prior felony convictions in certifying the defendant a habitual offender.

"The sexiest issue in oral arguments, I guess, is whether spitting is an unlawful use of force or violence upon another," Kuehn said.

Both Kuehn and White acknowledged that battery definitions vary by state, and both men cited case law in support of their arguments. Kuehn said spitting is offensive but not an act of violence. Rather, he said, it is "impolite" behavior.

Justice Nancy Saitta said the "essence" of the state battery law has been interpreted simply as offensive contact, such as unwanted touching.

Kuehn hedged, saying the statute as written reads "use of force or violence," and urged the high court to send the question to lawmakers for clarification, rather than to legislate from the bench.

The question of whether the state provided Davis with sufficient evidence of prior felony convictions is a technical one: Kuehn acknowledged the man has six felony and 33 misdemeanor convictions.

But because a habitual criminal declaration adds significant time to a prison sentence, state law requires that judges be provided certified copies of conviction records to guard against a wrongful sentence.

Hobbs is serving his sentence at the High Desert Correctional Center near Indian Springs. He was sentenced in 2009.

Tina Brisebill, a Pahrump justice of the peace, found Hobbs had been twice convicted of domestic violence in ruling his case should go to District Court for a felony trial. Kuehn said the burden of proof at the Justice Court level is minimal compared with the burden at District Court.

He said that not only was Hobbs improperly certified as a habitual offender, Hobbs never should have been convicted of felony domestic violence because Davis never formally ruled his prior convictions were valid.

State laws clearly articulate the need for such rulings from the sentencing judge.

White urged the high court not to read the law "so stringently," arguing there was ample evidence of Hobbs' criminal past. He said Kuehn acknowledged that Hobbs had five felony convictions during the trial and in pretrial papers acknowledged two of his misdemeanors were domestic violence convictions. Nor did the attorney dispute the six felonies and 33 misdemeanors listed on a pre-sentence report compiled by the State Division of Parole and Probation.

White said Kuehn virtually stipulated to Hobbs' felony convictions, but Kuehn said the law is on his side.

"The DA is asking you to reverse 17 years of precedence," he said.

Because Hobbs' history was only discussed at the Justice Court level, Kuehn said, he was never properly certified a habitual offender because Davis failed to articulate a specific finding of fact that Hobbs had at least two prior felony convictions and at least two prior misdemeanor domestic battery convictions.

The justices took the issue under advisement and will rule later.

Contact Doug McMurdo at dmcmurdo@reviewjournal. com or 224-5512.